PARA LEGAL EDUCATION FOR SOCIAL WORKERS
Overview
15 Modules for Social Work Students
Preface
The western concept of 'Paralegals' has not been adopted in India so far. Full-fledged programs in para legal practice has not been developed in Indian Universities barring one (Indira Gandhi National Open University offering a diploma program in Para Legal Practice). However, the dire need for para legal in the local communities has tremendously increased due to increasing alienation and social exclusion. So, in order to fulfil the gap, four credits add on course in para legal practice is conceptualized with 15 simple and need-based modules for students of the schools of social work. The course participants will be trained in the basics of different Laws which would be applicable at the grassroots level with reference to their day-to-day life, the subtle nuances employed in the working of a judicial system, and the functioning of various other stakeholders like the Police, officials from Social Welfare Department, Woman and Child Welfare Department and other departments dealing with different beneficial schemes of Central and State Governments including the protection officers involved with Domestic Violence and Juvenile Justice Acts. With the basic knowledge in the laws and other available welfare measures and legislation, the social workers trained in para legal practice will be able to assist their immediate community and those who are in need of such assistance.
Content
- Context for Para Legal Volunteer Training
- State and Polity
- Constitutional Foundation of Indian State
- Foundational Concepts in Human Rights
- Human Rights of Different Social Groups
- Human Rights Institutions in India
- Indian Legal System and its Structure
- Concepts and Procedures in Law Enforcement
- Legal Aid and Writs
- Para Legal Practice with Prisoners and their Families
- Laws for Protection of Woman and Senior Citizens
- Laws for Protection of Children
- Laws for Protection of Labourers
- Schemes for Poverty Alleviation and Social Development
- Project Work
Context of Para Legal Volunteer Training
1.1: Introduction
The definition of paralegal varies by country to country. In the United States, they are not authorized to offer legal services in the same way as lawyers, nor are they officers of the court, nor are they usually subject to government-sanctioned or court-sanctioned rules of conduct. In contrast, in some provinces in Canada, paralegals are licensed and regulated the same way that lawyers are. For example, in Ontario Province of Canada, licensed paralegals provide permitted legal services to the public and appear before certain lower level courts and administrative tribunals.
As per the census report of 2011, 68.84% of the total populations in India are the inhabitant of village areas. Out of these inhabitants 33.8% persons are living below the poverty line. Article 39 A of the constitution of India directs the state to ensure the delivery of free legal aid to all citizens of India. Further the article elaborates that legal aid should not be denied to any citizen on the ground of economic or other disabilities. With the change of the concept of the legal service in India from “court annexed layer-based legal services” to “need based people friendly system”, the importance of paralegal practitioner has emerged in the society during recent times.
The word ‘para legal’ is neither defined in the Legal Services Authorites Act 1987, nor in General Clauses Act, 1897, but these words are similar to the para medical in medical terminology. The importance of the paralegal volunteers has come into notice when the Supreme Court of India gave its verdict in Sampurna Behrua Vs. Union of India & Others ( W.P. ( C ) No 473/2005). The All India Seminar on Legal Aid held in 1991 expressed the view that the para legal volunteers who are otherwise known as bare foot lawyers go to the villages and disseminate the legal literacy programmes and educate the common people particularly the exploited, depressed and the women about their rights guaranteed under the Constitution and various enactments. A paralegal volunteer can be associated or employed by NGO or CBO which performs phyco-social and legal intervention in the criminal and social justice systems.
In 2009, National Legal Service Authority (NLSA) studied the informal practices associated with grassroots community organizations and brought out a formal “para legal volunteers’ scheme” which for the first time formally aimed at imparting legal training to selected volunteers from different walks of life. The volunteers are expected to act as intermediaries who will bridge the gap between the common people and the legal service institutions. Armed with awareness on laws and the legal system, and skills in counselling, para legal volunteers are supposed to settle simple disputes between different parties at the source itself, and thus save the aggrieved parties from the of travelling of all the way to the Legal Service Institutions.
1.2: Para-Legal Volunteers Trained by Legal Services Authority
Para legal volunteers may be selected from any categories of the society like Teachers, Retired Government Servants, senior citizens, social work students, Doctors, Anganwadi workers, law students, educated prisoners with good behavior who are serving long term sentences in prisons, professionals from NGOs, SHG members, etc. Ideally every Taluk Legal Services Committee (TLSC) shall have a panel of PLVs; of a maximum number of 25 on their roll at any given point of time. The District Legal Services Authority (DLSA) shall have 50 active PLVs on their roll. The local legal aid services secretary ties up with colleges and other well known NGOs to implement the scheme in the locality.
1.3: Scope for Engagement under Legal Services Authority
As per the provisions, the services of para legal volunteers may be availed in the Taluk Legal Service Committee, District Legal service Authority, Legal Aid Clinic etc. There is a provision for payment of honorarium to the volunteers for the services rendered by them. As the natures of services to be rendered by them are social type, this engagement is most suited for the persons who are not considering it as a mode of income. It is good for the persons with mindset of providing assistance to the needy and marginalized section of the society. The para legal volunteers’ contribution have been highly appreciated when they assist the villagers in obtaining BPL Cards, Election Identity Card, Aadhaar card , gas connection and other government welfare schemes during recent times.
1.4: Empanelment and Training Process under Legal Services Authority
Applications are normally invited from the local residents by the respective DLSAs and TLSCs or Sub Divisional Legal Services Committee. There could be an advertisement, if required. The selection committee is entitled to use its discretion and shortlist the number of candidates for interview depending upon the number of applications received. Representation from suitable applicants belonging to SC/ST, minority and other backward classes must be ensured.
In the supervision of chairman of DLSA, volunteers undergo training programme under the control of the Member Secretary. In consultation with the State Legal Services Authority, the chairman of DLSA shall identify the trainers for training the PLVs and other resource persons. Training that is to be provided by DLSA would be in accordance with the curriculum prescribed by the NALSA
After completion of the training, the volunteers may be subjected to a written and oral test before they are declared to have successfully completed the training. On being declared successful, they may be given identity cards bearing the emblem of the District Legal Services Authority. The identity card shall have (i) serial number;(ii) name and address; (iii) contact number; (iv) photograph; (v) the date of issue and the period of validity of the identity card. It shall be clearly printed on the reverse side of the identity card that the loss of the identity card should be reported to the nearest Police Station as also its recovery. The validity of the identity card shall be for a period of one year. A new card shall be issued if the chairman of District Legal Services Authority finds him/her eligible to continue as for more than one year.
1.5: Duties of Trained Para-Legal Volunteers under Legal Services Authority
- Para-Legal Volunteer (PLV) shall educate people, especially those belonging to weaker sections of the society, to enable them to be aware of their right to live with human dignity, to enjoy all the constitutionally and statutorily guaranteed rights as also the duties and discharge of obligations as per law.
- Para-Legal Volunteers shall make people aware of the nature of their disputes/issues/problems and inform them that they can approach the TLSC/DLSA/HCLSC/SLSA/SCLSC so as to resolve the dispute/issue/problems through these institutions.
- Para-Legal Volunteers shall constantly keep a watch on transgressions of law or acts of injustice in their area of operation and bring them immediately to the notice of the TLSC through telephonic message or a written communication or in person to enable effective remedial action by the Committee.
- When the PLV receives information about the arrest of a person in the locality, the PLV shall visit the Police Station and ensure that the arrested person gets legal assistance, if necessary, through the nearest legal services institutions.
- The PLVs shall also ensure that the victims of crime also get proper care and attention. Efforts shall be made by the PLVs to secure compensation for the victims of crime under the provisions of Section 357-A Cr.P.C.
- PLVs shall, with proper authorization from the DLSA/TLSC visit jails, lock-ups, psychiatric hospitals, children's homes/observation homes and shall ascertain the legal service needs of the inmates and intimate the authorities concerned about any absence noticed of basic essential necessities with special emphasis on hygiene.
- PLVs shall report violations of child rights, child labour, missing children and trafficking of girl children to the nearest legal services institutions or to the child welfare committee.
- Para-Legal Volunteers shall assist the DLSA/TLSC for organizing legal awareness camps in their area of operation.
- Para-Legal Volunteers shall give information to the people of their locality about the legal services activities of SLSA/DLSA/TLSC/HCLSC/SCLSC and shall provide their addresses to the people so as to enable them to utilize the free services rendered by the above organizations to the eligible persons.
- Para-Legal Volunteers shall generate awareness amongst people about the benefits of settlement of disputes including pre-litigation stage through LokAdalats, Conciliation, Mediation and Arbitration.
- Para-Legal Volunteers shall make people aware of the benefits of inexpensive settlement of disputes relating to Public Utility Services like P&T, Telephones, Electricity, Water Supply, Insurance and hospital services through Permanent Lok Adalat (PLA).
- Para-Legal Volunteers shall submit monthly reports of their activities to the DLSA/TLSC under whom they are working in the prescribed format.
- A diary to record the daily activities shall be maintained by each PLVs. The diary shall be printed and given to PLVs by the District Legal Services Authority. Such diary shall be verified and endorsed by the Secretary, DLSA or the Chairman, TLSC as the case may be.
- Para-Legal Volunteers shall see that publicity materials on legal services activities are exhibited at prominent places in their area of activity.
- The PLVs shall take efforts to bring the parties of the locality involved in disputes, to settlement, by using the machinery of Lok Adalat, Mediation or Conciliation at the District ADR Centers.
1.6: Para Legal Education for Social Work Students
Most of the social work students are placed in communities and social welfare agencies for field placement and gain first-hand knowledge and experience related to the poverty conditions, their training in the schools of social work help them to connect with specific communities in their own environment. They also have a participatory approach by involving various community stakeholders in the process of sustainable and equitable development. Social work professional also motivates the students to empower people to know and claim their rights and increase the ability and accountability of individuals and institutions who are responsible for respecting, protecting and fulfilling rights. Para legal education to social work students will help achieve the goals for which these services were designed.
Training under this twinning approach can be organized with support of District Legal Aid Services Authority, local NGOs specializing in CJS field, and the School of Social Work either as part of the curriculum or as an add on course (4 Credit). The break up of the course are as follows:
- Political and Human Rights Foundation: 25Marks (15 Hours/ 1Credits)
- Legal Knowledge for Para Legals: 50 Marks (30 Hours/ 2 Credits)
- Project Work *: 25 Marks (15 Hours/ 1 Credits) (*Includes Practicums, Visits and Viva)
This book covers all the components and is developed by authors based on their experience and consultation with social workers and lawyers who work in the criminal justice space in the development sector.
State and Polity
2.1: State
The English word state comes from an 14th and 15th century Italian word stato. It primarily refers to a land and its people. State is also about a legal and political authority regulating the relationships of man in society. The state is related to other institutions such as the political parties, pressure groups, the opposition, etc. These institutions, existing outside of the state system, attempt to influence the functioning of the state by dominating or collaborating with it.
State is an elaborate system with key institutions such as the legislature, the executive and the judiciary. In these institutions lies the power of the state and through these institutions, laws are enacted and from that arises the legal right of using physical force to maintain law and order in the society.
State has meant different things to different people. We would be discussing the meaning of the state based on the understanding of political philosophers. Plato understood polis [state] as a system of relationships in which everyone does their own business and where the work of the state is to maintain, and promote such relationships. Aristotle, a pupil of Plato defined the state as a community, which exists for the supreme good. For Plato and Aristotle, the state was an organ and a part of the society. In fact, it was submerged in the society itself.
Cicero, another Greek scholar, refuted the polis argument of Plato and Aristotle and gave a notion that the state is a commonwealth. The Commonwealth in Cicero’s understanding is the coming together of a considerable number of people who are united by a common agreement about law and rights, and by the desire to participate in mutual advantages. Thus for the first time, Cicero differentiated state from society. Hobbes (1588-1679) made a clear distinction between the state and society by making the state a matter of mere governance. Machiavelli believed that state exists for power, whose main interest is to maintain, enhance and enlarge its own authority.
With the arrival of Locke (1632-1704), a liberal scholar, the concept of state attained different meaning. According to Locke, the role of state was to protect private property, and promote a better economic life. The later liberals such as J.S. Mill, T.H. Green and De Tocqueville felt that numerous/ plural social associations could become instruments through which individuals could fashion a political discourse which could limit the nature of state power.
The Marxists, regard the state as a product of a class society, and believe the state to be a class institution, protecting and promoting the possessing class, and oppressing and coercing the non-possessing class. In the Manifesto of the Communist Party (1848) Marx, look upon the state as “a committee for managing the common affairs of the whole bourgeoisie”.
2.2: Elements of the State
The state has primarily four essential elements, namely population, territory, government and sovereignty.
a. Population
No state can be imagined without the people, as there must be some to rule and others to be ruled. Hence population is the first and foremost element of the state. It is however, difficult to fix the size of the population of a state.
b. Territory
A state should have a definite territory, with clearly demarcated boundaries over which it exercises undisputed authority. The state has full rights of control and use over its territory. Any interference with the rights of one state by others may lead to war.
c. Government
Government is indispensable machinery by means of which the state maintains its existence, carries on its functions and realizes its policies and objectives. Government consists of three branches, namely the Legislature, the Executive and the Judiciary.
d. Sovereignty
Sovereignty is an important element which distinguishes the state from all other associations such as caste association, football clubs, etc. The word sovereignty denotes supreme and final legal authority and beyond which no further legal power exists. Sovereignty has two aspects- internal and external.
Internal sovereignty is the supreme authority of the state over all individuals and associations within its geographical limits. By virtue of it, the state makes and enforces laws on persons and associations. Any violation of these laws will lead to punishment. External sovereignty implies the freedom of the state from foreign control. No external authority can limit its power. Thus every state must have its population, a definite territory, a duly established government and sovereignty. Absence of any of these elements denies to it the status of statehood.
2.3 Functions of the state
Oversees Development Institute lists out the 7 basic functions of the state:
- To control and manage public finances
- To invest in human capital
- To delineate citizens’ rights and duties
- To provide infrastructure services
- To manage state’s assets
- To build international relations
- To administer the rule of law
2.4: Concept of democracy
The word democracy comes from the Greek word demokratio, which is a combination of two words, namely demos (people) and kratos (rule). This gives democracy its meaning as a form of government which the people rule, whether directly or indirectly.
Democracy was practiced in Greece even before 2500 years ago. As far as the modern history is concerned, Britain was the first country to bring the absolute monarchism to an end and hail democratic governance. Three concepts namely, autonomy, freedom and equality form the cornerstone of the liberal theory of democracy. Autonomy is the value that we attach to possessing control over our own individual lives, decisions and choices. Principle of freedom expresses the value that the state should play a limited and minimal role in society and it should not impose on us any particular view of the good life. The principle of equality expresses the value that decisions are made based on the views of the majority.
Democracy has both intrinsic and instrumental value. When we value democracy as a good in itself and for itself, we assert the intrinsic value of democracy. On the other hand, democracy may also be valued instrumentally or as a means to some other end. Democracy is procedural as well as substantive. Elections, legislative assemblies, and constitutional governments arising out of democracy is related as procedural, where as substantive democracy focuses on point that democracy is and should be the principle of organisation not only of government, but also the principle of all collective life in society.
2.5: Types of democracy
a. Representative Democracy
The representative democracy is where people take part indirectly in government through electing representatives to claim their will. It is based on the principle of majority. Hobbes and Locke defined this as a form of government authorised by the people to act on its behalf.
b. Participatory Democracy
Rousseau and Mill are the forerunners of the idea of participatory democracy. According to them, participation is important not only in decision-making, but also as a way of protecting interests and ensuring good government.
Participatory democracy is enhanced through strengthening local democracy, so that citizens are involved in community affairs. Advocates of participatory democracy generally follow Mill in attaching greater importance to civic education.
c. Deliberative Democracy
Deliberative democracy values open deliberation on public issues. It is based on the assumption that individuals as autonomous persons influence each other through reasoned argument and persuasion. Unlike participatory democracy, which requires individuals to be constantly engaged in making decisions, deliberative democracy allows for a political division of labour between citizens and professional politicians, though citizens are involved in deliberation about public issues.
2.6: Parliamentary and Presidential democracy
In Parliamentary democracy, people select their representatives. The party forming government determines who the prime minister is and the parliament gives the vote of confidence. Prime minister determines his team from the representatives chosen by the people either directly or indirectly and the whole government tries to take the confidence vote of the parliament.
In presidential system, people have right to choose their president directly and they vote for the candidate rather than the political party. People also choose their representatives in the assembly but the president enjoys a much greater autonomy and chooses his ministers by himself. We see this model in USA and in Latin American countries.
2.7: Political parties
a. Meaning
Political party is a group of persons organized to acquire and exercise political power. There are two types of political parties, namely mass based and cadre based.
Mass based parties appeal for support to the whole electorate and cadre based parties aim at attracting only active elite. All parties develop a political program that defines their ideology and sets out the agenda they would pursue.
b. Roles of political parties
- Contesting in general elections
- Forming and running governments
- Making laws
- Nominating candidates for public office
- Monitoring work of elected officials
- Shaping public opinion, etc
c. Single-party, Two-party, and Multiparty systems
Although people are free to form political parties, in some countries like China, only one party (namely Communist Party of China) is allowed to run the government. Free competition for power is not allowed in these regimes due to certain ideological bottlenecks. This arrangement is called the single party system.
In certain other countries like the United States of America, two main parties representing two contrasting ideologies have the chance of winning majority of the seats to form the government. Such system is called as the two-party systems.
But in countries like India several parties contest for attaining power and have more or less equal chance of forming the government at the appropriate levels. This is called as the multi party system. In the recent times, several parties (with same or competing ideological orientation) form an alliance or coalition to gain control. This arrangement in the multi party system is called as the coalition politics. Good example of coalition politics are the National Democratic Alliance headed by the BJP since the late 1990s, and the United Progressive headed by the Indian National Congress since 2004.
d. National and State Level Parties
There are about 750 political parties in India. But not all parties are recognized national or state level parties. In fact, every party has the right to be registered with the Election Commission of India, but only certain parties are offered special facilities such as to use a unique symbol (such as Hand for INC and Lotus for BJP). The parties which get these privileges are called as recognized political parties. In order to qualify for the same, the parties must get certain propotion of votes and seats. For example, a party that gets 6% votes and wins at least 2 seats is the state assembly an election is recognized as a state level party. In the similar vein, a party which gets 6% votes and wins at least 4 seats is recognized as a national party.
Some of the prominent national parties are Indian National Congress (f. 1885), Bharatiya Janata Party (f. 1980), Bahujan Samaj Party (f.1984), Communist Part of India- Marxist (f. 1964), Communist Part of India (f. 1925), and Nationalist Congress Party (f. 1999).
Some of the prominent state level parties include the Jammu and Kashmir National Conference (f. 1939), Shiromani Akali Dal (f. 1920), Indian National Lok Dal (f. 1977), Janata Dal (f. 1999), Lok Jan Shakti Party (f. 2000), Rastriya Janata Dal (f. 1998), Assam Gana Parishad (f. 1985), Manipur People’s Party (f. 1968), Sikkim Democratic Front (f. 1993), Nagaland People’s Front (f. 2002), Arunachal Congress (f. 1996), Trinamool Congress (f. 1997), Jharkhand Mukti Morcha (f. 1973), Biju Janata Dal (f. 1977), Shiva Shena (f. 1966), Muslim League (f. 1948), Dravida Munnetra Kazhagam (f. 1949), All India Anna DMK (F. 1972), etc.
2.8: Pressure Groups
Pressure groups seek to promote its particular interests within the society by exerting pressure on public officials and agencies. Pressure groups direct their efforts toward influencing legislative and executive branches of government. Pressure groups also play a vital role in the democratic functioning of a polity. They help promote, discuss, debate and mobilise public opinion on major public issues. In this process, they educate people and widen their vision, enhance democratic participation and raise and articulate issues.
2.9: Public Opinion
Public opinion is very important in democracy. It works as a constant check on the politicians and serves as a mandate of people/ guidelines for the government to follow. Public opinion can be formed by the following groups:
- Social Movements:
Social movements hold rallies, processions and public meetings to create public opinion in their favour.
- Parties:
Political parties organize public information meetings to share their vision and progress made to create public opinion.
- Policy Makers:
Elected representative create public opinion by discussing public issues in the floor of the parliament.
- Press:
The press influences a sizable section of the society, especially the literates through editorials, special columns, etc.
- Religious Institutions and Associations:
In a multi cultural and plural society like India, religious institutions and associations still influence policy through opinion building programs.
Constitutional Foundation of Indian State
3.1: Constitution
Constitution is the highest legal and political document of a country. It provides the framework for the powers and functions of the various organs of the government and the relationship between the state and the citizen.
Aristotle defines constitution as “the way in which, citizens who are the component parts of the state are arranged in relation to one another”. Bouncier defines constitution as “the fundamental law of a state directing the principles upon which the government is founded and regulating the exercise of the sovereign powers, directly to what bodies of persons thee powers shall be confined and the manner of their exercise”.
The Indian Constitution adopted on 26th January 1950 is the longest written constitution of any sovereign country in the world. It contains 395 articles in 24 parts, 12 schedules and 94 amendments. It has a liberal democratic framework with broader scope of governmental intervention to promote social reform and welfare. The democratic character of the state allows the people to elect the members of the Parliament and the respective state Legislative Assemblies on the basis of adult franchise. Article 326 of the Indian constitution allows every adult citizen to be registered as a voter.
3.2: Values in Indian Constitution
The India Constitution promises justice- social, economic and political to all citizens irrespective of caste, creed and religion; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; Fraternity and assurance on the dignity of the individual. By an amendment in 1976, secularism; socialism; and promoting the unity and integrity of the nation were also proclaimed as the central values.
3.3: Salient Features of Indian Constitution
Indian constitution is quite unique and peculiar. Some of the salient features and aspects are given below:
a. Sovereign, Secular, Democratic Republic
- Sovereign
India was in slavery before 15th August 1947. By 26th January 1950 India became a sovereign country. A sovereign state is not intrigued by internal or external pressures. It is free to formulate its own foreign and home policies.
- Secular
A secular state implies that there would be no official religion of the state and it would not discriminate against any religion. It also implies that all religions, groups and sects are free to practice their own religion.
- Democracy
Democracy is where people elect their own government. The constitution guarantees the people of India to elect their own representatives.
- Republic
A republic is a state where the head of the state is a popularly elected person for a specific and definite period of time. It is opposed to monarchy where the king or the queen comes to thrown through hereditary right and holds the monarch position till his/her birth.
b. Federal Structure
The Indian constitution provides for a federal form of government. The first article of the constitution defines India as a union of states. A federation must have three aspects, namely a written constitution, distribution of powers between union and the states, and an independent judiciary.
c. Parliamentary Form
In the parliamentary form of government, the head of the state, i.e the President is titular or nominal head. The real powers are enjoyed by the prime minister and the council of ministers. The council of ministers is jointly responsible to the parliament.
d. Fundamental Rights
Six fundamental rights guaranteed in the Indian constitution are right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, and right to constitutional remedies.
e. Directive Principles of State Policy
Like the constitution of Ireland, the Indian constitution has a chapter on directive principles of state policy. The directive principles guide the government to achieve the ends of a welfare state. It also works as a yard-stick with the electorate to judge the performance of the government.
f. Universal Adult Franchise
The Indian constitution provides for universal adult franchise. It implies that every citizen of India above the age of 21 will be entitled to take part in the elections and to vote for candidates of his/her choice.
g. Single Citizenship
Like that of Canada, our constitution confers single citizenship. There is no separate citizenship for the federating states
h. Independent and Singular Judiciary
Our constitution does not approve of separate judicial systems for the federating units. It favors a singular judiciary with only one Supreme Court.
3.4: Fundamental Rights
There are two kinds of rights under the Indian Constitution. One set of rights are universal (i.e granted to all people, irrespective of citizenship) and other are specific to the citizens only.
The universal rights available to all people include the following:
- Equality before the law and equal protection of the law (Article 14)
- Protection against unlawful conviction (Article 20)
- Right to life and personal liberty (Article 21)
- Protection against unlawful detention (Article 22)
- Right against exploitation in the form of human traffic and forced labour (Article 23)
- Right of children against hazardous employment (Article 24)
- Right to freedom of religion (Article 25)
- Freedom of religious denominations to manage their religious affairs (Article 26)
- Freedom from enforced religious instruction in schools (Article 28)
- Protection of minorities (Article 29)
- Right of minorities to establish educational institutions of their choice (Article 30
- Right to Constitutional Remedies (Articles 32 and 226)
All other rights are granted specifically to the citizens. It includes the following:
- Right against discrimination by the state (Article 15)
- Equality of opportunity in matters of public employment (Article 16)
- Right against practice of untouchability (Article 17)
- Right against creation of state titles other than military or academic (Article 18)
- Right to freedom of speech and expression, and to practice any profession (Article 19)
The important thing to be kept in mind is that the fundamental rights are not absolute. These rights can be suspended when the president declares emergency.
3.5: Fundamental Duties
The part IV A of the Indian Constitution imposes ten fundamental duties on the citizens of India. These duties were incorporated in the Indian constitution by 42nd Amendment of 1976. They are as follows:
- To abide by the constitution and respect its ideals and institutions, the national flag and national anthem.
- To cherish and follow the noble ideals which inspired out 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 and renounce practices derogatory to the dignity of women.
- To value and preserve the rich heritage of our composite culture.
- To develop the scientific temper, humanism and the spirit of inquiry and reform.
- To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
- To safeguard public property and to abjure violence.
- To strive toward excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement.
3.6: Directive Principles of State Policy
Directive Principles of State Policy are directions given to the State to guide the establishment of an economic and social democracy, as proposed by the preamble. Through Directive Principles of State Policy are not directly enforceable by the law courts, it is fundamental in governance and making of laws.
The most fundamental directive to the state is to strive to secure a social order in which justice, social, economic and political shall inform all the institutions of their national life. Based on it the following important social policy directives are made.
- Minimizing inequalities in income/ status/ facilities/ opportunities/ vocations (Article 38)
- Securing adequate means of livelihood and health with freedom and dignity (Article 39).
- Ensuring opportunities for citizen of economic and other disabilities (Article 39A)
- Empowering panchayats to function as units of self-government (Article 40).
- Securing the right to work, to education and to public assistance in case of unemployment, old age, sickness and disablement (Article 41).
- Raising the level of nutrition and standard of living of the people and the improvement of public health (Article 47).
- Securing a living wage, conditions of work and decent standard of life (Article 43).
- Securing the participation of workers in the management of public undertakings (Article 43A)
- Promoting the educational and economic interests of Scheduled Castes and the Scheduled Tribes and to protect them from social injustice and all forms of exploitation (Article 46)
The Directive Principles of State Policy are non- justicable and are not enforceable in any court of law. But they act as check on the state and yardstick in the hands of the electorate and the opposition to measure the performance of the government. They also serve to emphasise the welfare state model of the constitution and the stresses the positive role of state in promoting welfare and justice.
3.7: Constitution and Parliamentary Democracy
Indian Constitution adopted a parliamentary democracy in which executive power is enjoyed by council of ministers and subject to check and balances by the parliament elected directed by people. Parliament alone possesses legislative supremacy and thereby ultimate power over all the political bodies in the country. The parliament of India consists of the President of India and the two houses, the Lok Sabha (house of the people) and Rajya Sabha (council of states).
3.8: Union Legislature- Composition
Lok Sabha is composed of representatives of the people chosen by direct election on the basis of the adult suffrage. The maximum strength of the House envisaged by the Constitution is 552, which is made up by election of up to 530 members to represent the States, up to 20 members to represent the Union Territories and not more than two members of the Anglo-Indian Community to be nominated by the President, if, in his/her opinion, that community is not adequately represented in the House.
Constitution lays down the maximum strength of Rajya Sabha as 250, out of which 12 members are nominated by the President and 238 are representatives of the States and of the two Union Territories. The members nominated by the President are persons having special knowledge or practical experience in respect of such matters as literature, science, art and social service.
The President summons both the Houses of the parliament and prorogues them. He or she can dissolve the Lok Sabha. These powers are formal, and by convention, the President uses these powers according to the advice of the Council of Ministers headed by the Prime Minister. In the states, the Governor, as the representative of the President, is the head of Executive. Union Territories are administered by the President through an Administrator appointed by him/her.
3.9: Union Legislature- Functions
Parliament in India has the cardinal functions of legislation, overseeing of administration, passing of the Budget, ventilation of public grievances, discussing national policies, etc. The scheme of distribution of powers between the Union and the States, followed in the Constitution of India, emphasizes in many ways the general predominance of Parliament in the
Legislative field. Apart from the wide range of subjects allotted to it in the Seventh Schedule of the Constitution, even in normal times Parliament can, under certain circumstances, assume legislative power over a subject falling within the sphere exclusively reserved for the States.
Further, in times of grave emergency when the security of India or any part thereof is threatened by war or external aggression or armed rebellion, and a Proclamation of Emergency is made by the President, Parliament acquires the power to make Laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List.
Similarly, in the event of the failure of the constitutional machinery in a State, the powers of the Legislature of that State become exercisable by or under the authority of Parliament.Besides the power to Legislate on a very wide field, the Constitution vests in the Union Parliament the constituent power or the power to initiate amendment of the Constitution.
3.10: Role Differences
Lok Sabha has supremacy in financial matters. It is also the House to which the Council of Ministers, drawn from both Houses, is collectively responsible. On the other hand, the Rajya Sabha has a special role in enabling Parliament to legislate on a State subject if it is necessary in the national interest.
3.11: Union Executive
Union Executive of India consists of the President, Vice President, Prime Minister and Council of Ministers.
President is the constitutional head of the executive of the Union of India. He/ she is elected by members of an Electoral College consisting of elected members of both Houses of Parliament and Legislative Assemblies of the states, with suitable weightage given to each vote. His/her term of office is five years. Executive power of the Union is vested in the President, and is exercised by him either directly or through officers subordinate to him in accordance with the Constitution.
The Vice-President, second highest constitutional officer of the country is elected by the members of an electoral college consisting of members of both Houses of Parliament. The Vice-President is the ex-officio Chairperson of the Upper House or Council of States (Rajya Sabha). The Vice-President acts as President, during casual vacancy in the office of the President by reason of death, resignation or removal or otherwise, until a new President is elected as soon as practicable and, in no case, later than six months from the date of occurrence of the vacancy. When the President is unable to discharge his functions owing to absence, illness or any other cause, the Vice-President discharges those functions till the President resumes office.
The real executive power of the union is with the Council of Ministers with the Prime Minister as head. The Council of Ministers is collectively responsible to the Lok Sabha, the House of the People.
The Council of Ministers comprises Cabinet Ministers, Minister of States and Deputy Ministers. Prime Minister heads the Council of Ministers and communicates all decisions of the Council of Ministers relating to administration of affairs of the Union and proposals for legislation to the President.
The Prime Minister and the Council of Ministers are jointly accountable to the Lok Sabha. If there is a policy failure or lapse on the part of the government, all the members of the council are jointly responsible. If a vote of no confidence is passed against the government, then all the ministers headed by the Prime Minister have to resign. Every individual minister is in charge of a specific ministry or ministries. He is responsible for any act of failure in all the policies relating to his department. Generally, each department has an senior civil servant designated as secretary to the Government of India to advise the Ministers on policy matters and general administration.
3.12: Powers and Functions of the President
a. Appointing Officers
All the executive powers of the Union Government have been given to the President by the Constitution of India. He appoints the Prime Minister and other Ministers of the Union Council of Ministers
He also makes important appointments of the Union Government like the Attorney-General of the Union, the Comptroller and Auditor General, Chief Justice and Judges of the Supreme Court and the High Courts, etc. The President administers the Union Territories through administrators. Besides the appointment of such high dignitaries, the President has the power to appoint the following administrative commissions: An Inter-State Council, the Union Public Service Commission and a Joint Commission for a group of States, the Finance Commission, the Election Commission, etc.
b. Controlling the Military
The President is also the Supreme Commander of the armed forces in India. Declaration of war and peace is done in the name of the President.
c. Building International Relations
All matters relating to foreign affairs are conducted in the name of the President. Diplomatic envoys including High Commissioners and Ambassadors are accredited in his name. All treaties and international agreements are negotiated and concluded in the name of the President.
d. Legislative Powers
The President has the power to summon and prorogue the sessions of both Houses of the Parliament and to dissolve the House of the People (Lok Sabha). He can even dissolve the Lok Sabha. A bill passed by the Parliament can become a law only after receiving the signature of the President. The President can issue an ordinance when the Parliament is not in session.
Money bills can be introduced in the Lok Sabha only with the permission of the President of India. He also sees to it that the annual budget is laid in the Parliament in time. The Contingency Fund is placed at the disposal of the President from which he may make advances to meet unforeseen emergency situations.
e. Judicial Powers
The president of India, by virtue of his office can exercise the power of ‘prerogative of mercy’. He has the power to pardon offenders or suspend or commute their punishments.
f. Emergency Powers
The Constitution has given the President of India same special powers to meet emergency situations. He/she can declare national emergency under Article 352 when the country is threatened by war, external aggression or armed rebellion. He/she can issue state emergency order under Article 356 when there is break down of constitutional machinery and he/she can also declare financial emergency under Article 360 when there is a threat to the financial stability and credit of India.
Though the above-mentioned powers are given to the President by the Constitution of India, in reality, it is exercised by the Council of Ministers in his name.
3.13: Powers and Functions of the Vice President
Vice-President acts as the Chairman of the Rajya Sabha. He presides over the meetings of the House. He has to maintain order in the House. No bill is regarded as passed by the House unless it is signed by the Chairman. His decision is final in the House
3.14: Powers and Functions of the Council of Ministers
The Council of Ministers are responsible for the governance of the country. The functions of the government are divided into various departments and each department is placed under a particular minister. So, it is the duty of each minister to see that the function of his/her respective department is carried out effectively. Law making is another function of the Council of Ministers
The council of ministers has three categories besides the Prime Minister. They are:-
- Cabinet Ministers
- Minister of State (Independent Charge)
- Minister of State/ Deputy Minister
The annual budget of the Government of India is prepared by the Finance Minister and most of the higher appointments of the Government of India are made as per the advice of the Council of Ministers. It also makes rules and regulations regarding appointment, promotion and transfer dismissal of higher officials.
3.15: Powers and Functions of the Prime Minister
The Prime Minister is responsible for the real administration of the country. He is regarded as the chief administrator of the country. The Prime Minister plays a very important role in the formation of the Union Council of Ministers. He advises the President regarding appointment and removal of other ministers of the Council of Ministers. As the head of the Council of Ministers and cabinet, he presides over its meetings and co-ordinates the working of different ministers and tries to remove differences, if any, between them. The voice of the Prime Minister on any matter is regarded as the final voice of the Government of India.
3.16: Concept of Federalism
As a theory of nation building, federalism seeks to define state-society relationships in such a manner as to allow autonomy of identity of social groups to flourish in the constitutionally secured and mandated institutional and political space. The federal constitution recognizes the special cultural rights of the people, especially the minorities. The three essential components of federalism are as follows:
- Formation of states and territorialisation of federal-local administration
- Distribution of federal powers
- Creation of the institutions of shared rule
3.17: Federal features of Indian state
Some of the prominent features of the Indian federalism are discussed below:
a. Unionism
Unionisation is an import feature which is bestows upon the union government with added responsibility of securing balanced economic growth and social change across the regions through means and measures of mixed economy and state regulated welfare planning. Beyond this, the unionisation process has no more political meaning and relevance
b. Unitarianism
Indian federalism also assumes unitarian status (centralized federalism) when there is a perceived threat to the maintenance of national unity, integrity and territorial sovereignty, and the maintenance of constitutional-political order.
c. Regionalism and regionalization
The constitution of India acknowledges and recommends the formation of a multilevel or multilayered federation with multiple modes of power distribution. The multilayered federation may consist of a union, the states, the sub-state institutional arrangements like regional development/ autonomous councils, and the units of local self-government at the lower levels. While the union and the state constitute the federal superstructure, the remaining two constitutes the federal substructure.
d. Special distribution of competence and power
Article 370, 371, 371A-H, and the fifth and sixth schedules allows for a special type of union-state relations. To put succinctly, these provisions restrict the application of many union laws; delimit the territorial extent of the application of the parliamentary acts having bearing upon the law making power of parliament and the concerned state legislatures; and, bestows upon the office of Governor with special powers and responsibility in some states like Arunachal Pradesh, Sikkim, Assam, Manipur, Nagaland, Jammu & Kashmir, Maharashtra and Gujarat.
Thus, federalism in India has been fine tuned to accommodate ethnic diversity and ethnic demands like application of customary law in the administration of civil and criminal justice etc. It is for reasons of accommodating ethnic features in the formation of polities that the constitution permits for the ethnic self governance through specially created institutions like autonomous regional or district councils. A few dozen such councils exist in the northeast regions and other parts of India. These councils seek to protect and promote the indigenous identity and development.
With the passage of 73rd and 74th Constitution Amendment Acts, the constitution of India further federalised its powers and authority at the village and municipal levels. Constituted through direct election, the Panchayats and Municipal bodies are expected to do the below:
- Build infrastructure of development
- Build and maintain community assets
- Promote agricultural development, soil conservation and land improvement;
- Promote social forestry and animal husbandry, dairy and poultry;
- Promote the development of village industry;
- Manage and control of education and health at the local level.
3.18: Centre- State relations in Indian federalism
Centre- state relations in Indian federalism can be studied under three divisions, namely legislative relations, administrative relations and financial relations.
As far as the legislative relations between the Central government and the State governments are concerned, the Central government has been given exclusive power to make law on the subjects of the Union list. The union list has 96 subjects. These subjects are of great importance for the country and uniform in character. So, these subjects are given to the Union government. Some such subjects are defense, foreign affairs, currency and coinage, citizenship, census, etc.
The State governments can make laws on the subjects mentioned in the State list. The State list has 61 subjects. The subjects which are of local importance are included in the State list. Some subjects of the State list are - law and order, public health, forests, revenue, sanitation, etc.
The Concurrent list has 52 subjects. On these subjects both the central and the state governments can make laws. Some subjects of this list are economic planning, social security, electricity, education, printing and news papers, etc.
In case of residuary powers, the Union government has exclusive power to make laws. The States have nothing to do in this regard. Thus, we find that in legislative matters, the Union Parliament is very powerful. It has not only exclusive control over the Union list and the residuary powers, but it has also dominance over the Concurrent list and the State list.
Foundational Concepts in Human Rights
4.1: Introduction
Human rights are those inalienable fundamental rights to which a person is inherently entitled to. Human rights are universal (applicable anywhere and everywhere), egalitarian (same irrespective of sex, caste, status), natural and legal. The idea of human rights evolved from the human rights movements across the globe and culminated with the adoption of the Universal Declaration of Human Rights in 1948. In the ancient world, there was no concept of universal human rights. The nearest and true forerunner of human rights discourse is the concept of natural rights which appeared in the medieval and enlightenment period.
There are three categories of rights, such as civil and political rights; economic, social, and cultural rights; and solidarity rights.
Civil and Political Rights
Civil rights include such rights as the right to life, liberty, equality before the law, fair trial, right to religious freedom, etc. Political rights include such rights as the right to speech, association, political participation, etc. Both civil and political rights have been considered as fundamental human rights.
Social, Economic and Cultural Rights
Social and economic rights include rights such as the right to a have a family, education, health, work, fair remuneration, social security, etc. When protected, these rights help promote individual social and economic development and self-esteem. Cultural rights, on the other hand include such rights as the right to indigenous land, rituals, cultural practices, etc. In contrast to the civil and political rights, the social, economic, and cultural rights is an aspirational set of rights that national governments ought to strive to achieve through progressive legislations. Thus the same are called ‘positive’ rights whose realisation depends heavily on the fiscal capacity of nation states.
Solidarity Rights
Solidarity rights include rights to public goods such as development and the environment. It seek to guarantee that all individuals and groups have the right to share in the benefits of the natural resources, as well as those goods and products that are made through processes of economic growth, expansion, and innovation.
4.2: Definition of Human Rights
Justice D. D Basu defines human rights as those minimal rights, which every individual must have against the State, or other public authority, by virtue of his being a member of human family irrespective of any consideration.The Universal Declaration of Human Rights (1948) defines human rights as rights derived from the inherent dignity of the human person. There are two basic characteristics of human rights. They are as follows:
- Firstly, human rights are inherent (it is in all human beings, they do not have to be granted), inalienable and equal.
- Secondly, the main duties deriving from human rights fall on states and their authorities or agents, not on individuals.
4.3: Origin and Evolution of the Notion of Rights
During the ancient ages, people with position held enormous powers and controlled the others as slaves. Around 550 BC, Cyrus the Great, issued a declaration that citizens of his empire would be allowed to practice their religious beliefs freely and be free of slavery. The incident in history is considered as the first substantial step in establishing the rights of human beings. After a period of slumber, the 12th century AD saw the awakening of the idea of rights of human beings. The Magna Charta of 1215 (in England), the Golden Bull of 1222 (in Hungary), Håndfaestning of 1282 (in Denmark) laid the foundation. The Joyeuse Entrée of 1356 (in Brussels), the Union of Utrecht of 1579 (in Netherlands) and the Bill of Rights of 1689 (in England) also helped in consolidation of the idea. All these decrees and declarations lacked a philosophical base and did not talk individual freedom and liberty.
During the middle ages, the concept of liberty gained prominence. Francisco de Vitoria (1486-1546) and Bartolomé de las Casas (1474-1566) of Spain laid the doctrinal foundation for the recognition of freedom and dignity of all humans by defending the personal rights of the indigenous peoples inhabiting the territories colonised by the Spanish Crown.
The Enlightenment was another important period in the development of human rights concepts. Locke was one of the first scholars to develop a comprehensive concept of natural rights (rights to life, liberty and property) in the 18th century Europe. Later, Rousseau elaborated the concept using the social contract theory.
The American Declaration of Independence in 1776 set the practical tone that all human beings are equal. Thomas Jefferson referred to the right to life, liberty and the pursuit of happiness as the core of freedom. Later, these ideas were adopted in the American Constitution also. The French declaration of 1789 and the French Constitution of 1793 also reflected the idea of universal rights.
The atrocities of World War II pushed the formation of United Nations (UN) on 26 June 1945. The UN urged its members to protect human rights and established the UN Commission on Human Rights (UNCHR) in 1946. Finally the Universal Declaration of Human Rights (UDHR) was passed in the UN General Assembly on 10th December 1948.
Since the 1950s, the UDHR has been backed up by a large number of international conventions. The most significant of these conventions are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These two Covenants together with the UDHR form the International Bill of Human Rights.
The UN continues its commitment to human rights and pressurized the nation states to establish national human rights commissions to protect the rights of the people. Indian government set up the national commission of human rights in 1993.
4.4: Concept of Natural Rights
The idea that individual have certain basic, inalienable rights as against a sovereign State had its origin in the doctrines of natural law and natural rights. Hobbes, Locke and Rousseau are the three main thinkers of Natural Rights theory.
Thomas Hobbes was the first champion of the theory of natural rights. In his Leviathan, he advocated that no individual could ever be deprived of the right to life. He asserted that all human beings are equal, without any consideration.
John Locke developed the idea further in his Two Treatises on Government. He argued that every human being has a natural right to life, personal liberty, and property, and that no governmental authority has power to deprive individuals of these rights because they had enjoyed them even before the creation of the civil or political society.
Rousseau in his Social Contract finally established the natural rights theory. The famous quotation of Rousseau “all men are born free but everywhere they are in chains” captured the imagination of many people. He proclaimed that human beings are bestowed with inalienable rights of liberty, equality and fraternity.
Natural rights theory helped in the evolution of the human rights discourse and gave a much needed philosophical background for the debate.
4.5: American Declaration of Independence and the Bill of Rights
The United States Congress approved the Declaration of Independence on July 4, 1776. The main formulator of the declaration is Thomas Jefferson, an American statesman. Following the declaration of independence, the constitution of the United States of America was written. The first ten amendments to the constitution are collectively called the Bill of Rights. It came to effect on 15th December 1791.
The Bill of Rights limits the powers of the federal government and protects the freedom of citizens. The Bill of Rights also prohibits the federal government from depriving any person of life, liberty and property without due process of law.
4.6: The French Declaration
Inspired by the natural rights theory, the Declaration of the Rights of Man and of the Citizen (French Declaration) is the fundamental source of the French revolution and constitution. There are 17 articles of the declaration. They are listed below:
- Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.
- The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.
- The principle of all sovereignty resides essentially in the nation. Nobody nor individual may exercise any authority which does not proceed directly from the nation.
- Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.
- Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided forby law.
- Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.
- No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law. Any one soliciting, transmitting, executing, or causing to be executed, any arbitrary order, shall be punished. But any citizen summoned or arrested in virtue of the law shall submit without delay, as resistance constitutes an offense.
- The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offense.
- As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all harshness not essential to the securing of the prisoner's person shall be severely repressed by law.
- No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.
- The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.
- The security of the rights of man and of the citizen requires public military forces. These forces are, therefore, established for the good of all and not for the personal advantage of those to whom they shall be intrusted.
- A common contribution is essential for the maintenance of the public forces and for the cost of administration. This should be equitably distributed among all citizens in proportion to means.
- All the citizens have a right to decide, either personally or by their representatives, as to the necessity of the public contribution; to grant this freely; to know to what uses it is put; and to fix the proportion, the mode of assessment and of collection and the duration of the taxes.
- Society has the right to require of every public agent an account of his administration.
- A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.
- Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified.
4.7: The Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. It was drafted by representatives with different legal and cultural backgrounds from all regions of the world. The Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948. It sets out, for the first time, fundamental human rights to be universally protected.
4.8: Slavery Convention 192
The Slavery Convention or the Convention to Suppress the Slave Trade and Slavery was an international treaty facilitated by the erstwhile League of Nations in 1926. The objective of the Convention was to confirm and advance the suppression of slavery and slave trade. The Convention entered into force in 9 March 1927, in accordance with article 12. It was amended by the Protocol done at the Headquarters of the United Nations, New York, on 7 December 1953. The amended Convention entered into force on 7 July 1955. The Economic and Social Council within the United Nations was instrumental in monitoring the Slavery Conventions, in addition to dealing with other issues of contemporary slavery. In 1974, the United Nations Working Group on Slavery was formed, which now takes care of the issue.
4.9: Convention of the Political Rights of Women (1952)
The Convention on the Political Rights of Women was adopted by the UN General Assembly in 1953. It is one of the first international legislation protecting the equal status of women to exercise political rights. The Convention entered into force in 1954. As of 2013, it has 122 state parties to the convention.
4.10: Convention on the Elimination of all Forms of Racial Discrimination (1965)
In 1963, the Sub-Commission on Prevention of Discrimination and Protection of Minorities submitted a draft declaration on the elimination of all forms of racial discrimination to the Commission on Human Rights. The Commission submitted the draft convention to the Economic and Social Council, which in turn, submitted it to the General Assembly. Finally, the Convention on the Elimination of All Racial Discrimination was adopted by the General Assembly on 21 December 1965 by resolution 2106 (XX), and it entered into force on 4 January 1969. The Convention consists of a preamble and 25 articles. By the Convention, States parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms.
4.11: Convention on the Elimination of all Forms of Discrimination against Women (1979)
The Convention on the Elimination of all Forms of Discrimination against Women adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women. Consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination.
The Convention defines discrimination against women as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. By accepting the Convention, States commit themselves to undertake a series of measures to end discrimination against women in all forms, including:
- to incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women;
- to establish tribunals and other public institutions to ensure the effective protection of women against discrimination; and
- to ensure elimination of all acts of discrimination against women by persons, organizations or enterprises.
4.12: The International Bill on Human Rights
The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols.
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a milestone document in the history of human rights. Drafted by representatives with different legal and cultural backgrounds, the Declaration was proclaimed by the UN General Assembly in Paris on 10-12-1948. It sets out, for the first time, fundamental human rights to be universally protected.
International Covenant on Economic Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral international treaty adopted by the UN General on 16 December 1966, and in came to force from 3 January 1976. It commits its parties to work toward the granting economic, social and cultural rights to individuals. As on January 2013, the Covenant has been signed by 160 parties. Seven other countries including the United States of America have signed the convention but not yet ratified. The core provisions include principle of progressive realisation, labour rights, social security rights, family rights, health rights, free education rights. It also includes cultural participation and right to adequate standard of living.
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the UN General Assembly on December 1966, and in force from March 1976. It commits its parties to respect the civil and political of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of May 2013, the Covenant had 74 signatories and 167 parties
Optional Protocols
Often, human rights treaties are followed by optional protocols which may either provide for procedures with regard to the principal treaty or address a substantive area related to the treaty. Optional Protocols to human rights treaties are treaties in their own right, and are open to signature, accession or ratification by countries who are party to the main treaty. The Optional Protocol establishes the competence of the Human Rights Committee to receive individual communications in relation to violations of the International Covenant on Civil and Political Rights.
4.13: India and Human Rights Covenants
India is party to the six core human rights covenants/conventions, namely, the International Covenant on civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child (and its two Optional Protocols) and the Convention on the Rights of Persons with Disabilities. In 2007 India became one of the earliest countries to ratify the UN Convention on the Rights of Persons with Disabilities.
Human Rights of Different Social Groups
5.1: Rights of Women
The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio economic, education and political disadvantages faced by them. Fundamental Rights, among others, ensure equality before the law and equal protection of law; prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place of birth, and guarantee equality of opportunity to all citizens in matters relating to employment. Articles 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the Constitution are of specific importance in this regard.
The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) is an international treaty adopted in 1979 by the UN General Assembly. Described as an international bill of rights for women, it came into force on 3 September 1981. Over fifty countries that have ratified the convention.
In 1993, the UN World Conference on Human Rights in Vienna confirmed that women’s rights were human rights. In the following year, the International Conference on Population and Development in Cairo affirmed the relationship between advancement and fulfilment of rights and gender equality and equity. The Fourth World Conference on Women in Beijing in 1995 finally generated the much needed global commitments to advance a wider range of women’s rights.
5.2: Rights of Children
There was a common belief of people till the Middle Ages that the father had absolute rights over his children to do what so ever with him/her. This was the predominant argument because family and relationship were considered paramount during those days. It was believed that the well being of children depended wholly on parents only and nobody else is responsible for it.
Later during the Victorian age, welfare emerged as the key role of the state and therefore the state took the position of protector of the children left outside the system. The trend continued till the 1980's. At this juncture, the UN sponsored the international year of children in 1978. Following which a convention was held on Rights of the Child in 1989. Based on this, the Convention on the Rights of the Child (1989) was developed. It is the first legally binding international instrument. The Convention sets out these rights in 54 articles and two Optional Protocols.
Convention on the Rights of the Child spells out the basic human rights that children everywhere have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. The four core principles of the Convention are non-discrimination; devotion to the best interests of the child; the right to life, survival and development; and respect for the views of the child.
Every right spelled out in the Convention is inherent to the human dignity and harmonious development of every child. The Convention protects children's rights by setting standards in health care; education; and legal, civil and social services.
By agreeing to undertake the obligations of the Convention (by ratifying or acceding to it), national governments have committed themselves to protecting and ensuring children's rights and they have agreed to hold themselves accountable for this commitment before the international community. States parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child.
5.3: Rights of Aged
Since 1982, the international community has explored the situation of older persons in a series of international declarations such as the Madrid International Plan of Action on Ageing which called for the elimination of age discrimination, neglect, abuse and violence. In India, the right of parents, without any means, to be supported by their children having sufficient means has been recognised by section 125 (1) (d) of the Code of Criminal Procedure 1973, and Section 20 (1&3) of the Hindu Adoption and Maintenance Act, 1956.
The central government came out with the National Policy for Older Persons in 1999 to promote the health, safety, social security and well being of senior citizens in India. The Policy recognizes a person aged 60 years and above as a senior citizen. This policy strives to encourage families to take care of their older family members. A National Council for Older Persons (NCOP) has been constituted by the Ministry of Social Justice and Empowerment to operationalize the National Policy on Older Persons.
5.4: Rights of Mentally and Physically Challenged
United Nations Convention for Rights of Persons with Disabilities (UNCRPD) was adopted in 2006, which marks a paradigm shift in respect of disabilities to a human right issue. The new paradigm is based on presumption of legal capacity, equality and dignity. Following ratification of the convention by India in 2008, it became obligatory to revise all the disability laws to bring them in harmony with the UNCRPD.
Therefore, the Mental Health Act (1987) and Persons with Disability Act (1995) are under process of revision and draft bills have been prepared. Human right activists groups are pressing for provisions for legal capacity for persons with mental illness in absolute terms, whereas the psychiatrists are in favour of retaining provisions for involuntary hospitalization in special circumstances.
5.5: Rights of PLHA
In 1998, the Office of the High Commissioner for Human Rights (OHCHR) and the Joint United Nations Programme on HIV/AIDS (UNAIDS) issued the International Guidelines on HIV/AIDS and Human Rights. These Guidelines built on expert advice to integrate the principles and standards of international human rights law into the HIV/AIDS response.
United Nations adopted a Declaration of Commitment on HIV/AIDS in June 2001 which pledged to scale up the response to HIV/AIDS within a human rights framework. In response to these developments, in 2002, and 2006, the OHCHR and UNAIDS convened a group of experts to update the International Guidelines on HIV/AIDS and Human Rights.
5.6: Rights of Refugees
India is not a party to the United Nations Convention Relating to the Status of Refugees (1951) and the Protocol Relating to the Status of Refugees (1967). India maintains that the 1951 Convention is Euro-centric and cannot be effectively implemented in the South Asian region. The outdated Foreigners Act 1946 is the national legislation that defines the nature of treatment of refugees in India.
5.7: Rights of Nomadic and Denotified Tribes
The social category generally known as the Denotified and Nomadic tribes of India covers a population approximately of 60 million. Some of them are included in the list of Scheduled castes, some others in the Scheduled Tribes, and quite a few in Other Backward Classes. But there are many of these tribes, which find place in none of the above. There are 313 Nomadic Tribes and 198 Denotified Tribes in India.
There is a wide range of atrocities perpetrated on members of these denotified tribes by those whose prejudice has not subsided. The National Advisory Council set up a working group to identify some key recommendations to lift DNT communities. But there has not been any legislations specially on them and protecting their rights.
5.8: Rights of Minorities (Regional, Religious, Linguistic)
The Indian Constitution ensures “justice, social, economic and political” to all citizens. The Indian Constitution has adopted measures for the protection of the rights of the religious and ethnic minorities. Some of the major rights according to the constitution are as follows:
Article 25: Freedom of conscience and free profession, practice and propagation of religion
Article 26: Freedom to manage religious affairs
Article 28: Freedom as to attendance at religious instruction or religious worship
Article 29: Protection of interests of minorities
Article 30: Right of minorities to establish and administer educational institutions
5.9: Caste Based Social Exclusion and Violations
According to Thorat, social exclusion is “the denial of equal opportunities imposed by certain groups of society on others, leading to the inability of an individual to participate in the basic political, economic and social functioning of society”. Dalits in India face social exclusion in various spheres of everyday life. Atrocities also happen against dalits in various parts of the country. The following are some of the forms of atrocities:
1. Causing injury, insult, or annoynance to a dalit;
2. Assaulting, raping, or using force of any kind against a dalit woman or a dalit girl;
3. Physically injuring or murdering a dalit;
4. Occupying or cultivating any land owned by or alloted to a dalit;
5. Forcing a dalit to leave his/her house, village, or other place of residence;
6. Interfering with a dalit’s legal rights to land, premises, or water;
7. Compelling or enticing a dalit to ‘beg’ or similar forms of forced or bonded labour;
8. Intentionally insulting or intimidating a dalit with the intent to humiliate him.
Ostracism (individual or the family is excluded from the caste group/ society) is also common in various parts of the country. The newspaper article given below gives a chance to understand the issue at hand.
5.10: Rights of Scheduled Castes & Scheduled Tribes
Denial of justice to dalits and adivasis and violence directed at them continues in India today despite constitutional safeguards. Article 17 of the Constitution which abolishes untouchability has to be read with Article 35 which confers on Parliament the exclusive power to make laws prescribing punishments for those acts that are declared to be offences under Part III of the Constitution. Pursuant to this, the Untouchability (Offences) Act was enacted in 1955 to award punishment for offences amounting to the observance of the practice of untouchability.
This was amended in 1976, and more stringent provisions were introduced. The name of the Act was changed to the Protection of Civil Rights Act.
The normal provisions of the existing laws like the Protection of Civil Rights Act 1955 and Indian Penal Code have been found inadequate to check these atrocities continuing the gross indignities and offences against Schedule Caste and Schedule Tribes. Recognizing these existing problems the Parliament passed “Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 and Rules, 1995.
The Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 is a landmark Indian legislation dealing with their human rights. The purpose of the act is to prevent crimes against members of DALITS (scheduled castes) and ADIVASIS (scheduled tribes), and to provide for relief and rehabilitation of victims of such offences. Any person who is not a member of a scheduled caste or a scheduled tribe and commits an offence listed in the Act against a member of a scheduled caste or a scheduled tribe is an offender.
The victim is a member of a scheduled caste or a scheduled tribe against whom any of the following offences is committed by the offender:
- forced to eat or drink an offensive or uneatable substance
- caused annoyance, injury or insult by any excreta or waste matter being dumped in his premises or neighborhood
- paraded naked or with painted face or body
- wrongfully deprived of cultivation of his land
- wrongfully deprived of his rights over any land, premises or water
- forced to beg or work as a bonded labourer
- prevented from exercising his right to vote or according to his wishes
- subjected to false legal proceedings
- caused injury or annoyance by a public servant on the basis of false information given
- deliberately insulted and humiliated in public view
- deprived of his right to clean drinking water
- deprived of his right of passage to a public place
- forced to leave his house or village, etc
All offences listed in the Act are cognizable. The police can arrest the offender without warrant and start investigation into the case without taking any orders from the court. The Act prescribes both minimum as well as maximum punishment. The minimum in most cases is six months imprisonment while the maximum is five years sentence and with fine.
5.11: Rights of Victims of Crime
In 1985, the United Nations adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The Declaration recognised four types of rights and entitlements of victims of crime. They are:
(a) Access to justice and fair treatment — which includes prompt redress, right to be informed of benefits and entitlements under law, right to necessary support services throughout the proceedings, and right to protection of privacy and safety.
(b) Right to restitution — return of property lost or payment for any harm or loss suffered as a result of the crime.
(c) Compensation — when compensation is not fully available from the offender or other sources, the State should provide it at least in violent crimes that result in serious bodily injury, for which a national fund should be established.
(d) Personal assistance and support services — includes material, medical, psychological, and social assistance through governmental, voluntary, and community-based mechanisms.
Human Rights Institutions in India
6.1: National Human Rights Commission
Human Rights Act, 1993 (with Amendment Act, 2006) and the NHRC (Procedure) Amendment Regulations, 1997 are the major legislations and regulations governing the National Human Rights Commission. The NHRC is responsible for the protection and promotion of human rights, defined by the Act as "rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants.
NHRC to perform the following functions:
- proactively or reactively inquire into violations of human rights or negligence in the prevention of such violation by a public servant
- to intervene in court proceeding relating to human rights
- visit any institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates and make recommendations
- review the safeguards provided by or under the constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation
- review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures
- study treatise and other international instruments on human rights and make recommendations for their effective implementation
- undertake and promote research in the field of human rights
- engage in human rights education among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means
- encourage the efforts of NGOs and institutions working in the field of human rights
- such other function as it may consider it necessary for the protection of human rights
The NHRC has been accredited with "A status" by the ICCNHRI, indicating that it is in conformity with the Paris Principles-1991, and therefore endorsed by the UN General Assembly. The commission is thus entitled to participate in the ICC and in its regional sub-groups and may take part in certain sessions of the UN human rights committees.
The NCHR consist of the following members:
(a) Chairperson (who has been a Chief Justice of the Supreme Court)
(b) Membér (who is or has been, a Judge of the Supreme Court)
(c) Member (who is, or has been the Chief Justice of a High Court)
(d)Two Members (appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights).
(e)The Chair person of the National Commission for Minorities, the National Commission for the Scheduled Castes, the National Commission for the Scheduled Tribes and the National Commission for Women are the ex-officio members of the NRHC
6.2: National Commission for Minorities
The government set up the National Commission for Minorities (NCM) through the passage of the National Commission for Minorities Act, 1992. Five religious communities, namely Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) have been notified as minority communities by the Union Government. The NCM adheres to the UN Declaration of 18 December 1992 which states that States shall protect the existence of the National or Ethnic, Cultural, Religious and Linguistic identity of minorities within their respective territories and encourage conditions for the promotion of that identity.
The Commission has the following functions:
- Evaluate the progress of the development of Minorities under the Union and States.
- Monitor the working of the safeguards provided in the Constitution and in laws enacted by Parliament and the State Legislatures.
- Make recommendations for the effective implementation of safeguards for the protection of the interests of Minorities by the Central Governments or the State Governments.
- Look into specific complaints regarding deprivation of rights and safeguards of the Minorities and take up such matters with the appropriate authorities.
The Commission consists of a Chairperson, a Vice Chairperson and five Members nominated by the Central Government from amongst persons of eminence, ability and integrity. All the Members including the Chairperson are from the Minority communities.
6.3: National Commission for Schedule Castes
National Commission for Scheduled Castes is established with a view to provide safeguards against the exploitation of SCs and to promote and protect their social, educational, economic and cultural interests, special provisions were made in the Constitution.
The following are the functions of the commission:
- To investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under the Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
- To inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes;
- To participate and advise on the planning process of socio-economic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State;
- To present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
- To make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes; and
- To discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by rule specify.
The Commission consists of a Chairperson, a Vice Chairperson and three Members nominated by the Central Government. The Chairperson and the Vice-Chairperson are conferred the status of Cabinet Minister and Minister of State respectively.
6.4: National Commission for Schedule Tribes
The 89th Amendment of the Constitution helped in the creation of the National Commission for Scheduled Tribes. It has been setup under Article 338A on bifurcation of erstwhile National Commission for Scheduled Castes and Scheduled Tribes to oversee the implementation of various safeguards provided to Scheduled Tribes under the Constitution. The following are the functions of the commission:
- To investigate and monitor all matters relating to the safeguards provided for the STs under the Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
- To inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes;
- To participate and advise in the planning process of socio-economic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any State;
- To present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
- To make in such reports, recommendations as to the measures that should be taken by the Union or any State for effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Tribes, and
- To discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify.
The Commission consists of a Chairperson, a Vice Chairperson and three Members nominated by the Central Government.
6.5: National Commission for De‐notified, Nomadic and Semi Nomadic Tribes
The Government of India vide Resolution No. dated 14th march, 2005 Constituted National Commission for De-notified, Nomadic and Semi Nomadic tribes to study various developmental aspects of these Tribes. The commission had following functions:
- To specify the economic interventions required for raising the living standards of Denotified, Nomadic and Semi Nomadic Tribes by asset creation and self-employment opportunities;
- To recommend measures to utilize the existing channeling agencies set up for the economic development of SC/STs and OBCs for extending an economic development package to these groups, keeping in view their specific requirements; and
- To identify programmes required for their education, development and health;
- To make any other connected or incidental recommendation, that the Commission deems necessary.
Currently there are three members in the commission. The chairperson of the commission holds the status of the minister of state.
6.6: National Commission for Women
National Commission for Women is the apex national level organization of India with the mandate of protecting and promoting the interests of women. It was established in 1992. The objective of the NCW is to represent the rights of women in India and to provide a voice for their issues and concerns. The subjects of their campaigns have included issues of dowry harassment, equal representation for women in jobs, and the exploitation of women’s labour, etc. The commission consists of a chairperson and five eminent members (among them one has to be from the SC/ST background).
6.7: National Commission for Protection of Child Rights
The National Commission for Protection of Child Rights (NCPCR) was set up in March 2007 under the Commission for Protection of Child Rights Act, 2005, an Act of Parliament (December 2005). The Commission's Mandate is to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the Constitution of India and also the UN Convention on the Rights of the Child.The Commission, while enquiring into any matter, has all powers of the Civil Court trying a suit under the Code of Civil Procedures, 1908 and in particular, with respect to the following matters:
- Summoning and enforcing the attendance of any person and examining them on oath
- Requiring the discovery and production of any documents
- Receiving evidence on Affidavits
- Requisitioning of any Public Record or copy thereof from any Court of Office
- Issuing commissions for the examination of witnesses or documents
- Forwarding cases to Magistrates who have jurisdiction to try the same
- On completion of inquiry, the Commission has the powers to take the following actions:
- To recommend to concerned Government for initiation of proceedings for prosecution or other suitable action on finding any violation of child rights and provisions of law during the course of an inquiry
- To approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary
- To recommend to concerned Government or authority for grant of such interim relief to the victim or the members of his family as considered necessary
6.8: Role of NGOs in Furthering Human Rights
In the area of Human Rights Promotion and protection, NGOs and Voluntary Organizations have performed and continue to perform a myriad roles and functions .The following are some of their roles or functions in the promotion and protection of Human Rights
- Agenda Setting
- Drafting Legislations
- Fact Finding Mission
- Solidarity with Human Rights Defenders
- Human Rights Education, etc
6.9: Social Work Profession and Human Rights
According to the International Federation Social Workers, meeting human rights needs of people is one of the everyday tasks of social workers whether working with individuals, families or communities, or at the policy levels. The content given below refers to the commitment of social workers towards human rights agenda. The professional task of social workers is to help people achieve change in their lives, and they do this through three phases, namely, helping people undertake a social analysis of where they are now, facilitating in helping people find and achieve change in their lives, and building up trust and the social relationship with the person making that change in their lives. Each member association of IFSW has a Code of Ethics to which individual members of their associations have to adhere and IFSW has an overarching Statement of Ethical Principles covering all members associations. Each Code of Ethics requires members of their association to implement the recognition of Human Rights in social work practice (http://ifsw.org/resources/publications/human-rights/the-centrality-of-human-rights-to-social-work/).
6.10: Contribution of Social Movements towards Human Rights in India
According to britannica.com, social movements refer to “loosely organized but sustained campaign in support of a social goal, typically either the implementation or the prevention of a change in social structure or values. Although social movements differ in size, they are all essentially collective”. The history of human rights is partly the history of various social movements working towards attaining human rights and dignity. The first substantial movement is the anti slavery movement which helped in the establishment of the international anti slavery convention in the 1920s under the aegis of the League of Nations.
The anti colonial movements, especially the Congo Reform Association not only resisted colonialism, but also helped in the consolidation of the human rights in the Africa and Asia.
The Civil Liberties Union formed by Jawaharlal Nehru in the early 1930s with the objective of providing legal aid to nationalists accused of sedition against the colonial authorities was one of the first social movements related to human rights. The triggered a lot of social movements fighting for the rights of traditionally oppressed peoples such as landless labour, marginal and small peasants, the unorganized working class, etc. Notable amongst these were the Association for the Protection of Democratic Rights (APDR) in West Bengal, the Andhra Pradesh Civil Liberties Committee (APCLC) the Association for Democratic Rights (AFDR) in Punjab.
The JP (Jayaprakash Narayan) movement in the 1970s launched a major attack on authoritarianism and a large number of prominent people came together in 1975 to form People's Union for Civil Liberties and Democratic Rights (PUCLDR), the first national human rights organisation in the country. Today, there are wide range of organizations specifically concerned with issues of civil liberties and democratic rights.
There have been five major activities taken up by these organisations: 1) fact-finding missions and investigations, 2) public interest litigation, 3) citizen awareness programmes, 4) campaigns, and 5) the production of supportive literature for movements and organisations.
These groups have successfully raised three kinds of issues: 1) direct or indirect violations by the state, 2) denial in practice of legally stipulated rights as well as the inability of government institutions to perform their functions, and 3) structural constraints which restrict realisation of rights.
Indian Legal System
7.1: Origin of the Legal System in India
Indian scholars and administrators had a good understanding of law even before the age of Chanakya, a scholar at the ancient Takshashila University. But in the 400 BC, Chanakya’s Arthashastra helped in the establishment of an independent school of thought on law and governance. In the 10th century AD, Manu wrote the Manusmriti which also became an influencial treatise along with the Arthashastra. The later Gupta period saw a rise of international trade and commerce, resulting in the enhancement of legal treatise on this subject in India. However, it was only in the Mughal period, many humanitarian and neutral legal conventions were developed.
With the establishment of Mayor’s Courts in 1726, the victory in the Battle of Plassey in 1772, and the First War of Indian Independence, the British broke the established Mughal legal systems and paved a way for the common law system (now practiced in most of the commonwealth countries). The Indian High Courts Act passed by the British parliament in 1862 gave full supremacy to the common law system.
After independence in 1947, the development of the constitution, a framework for all other laws fell in to the able hands of Dr. B.R.Ambedkar. The constitution was accepted by the legislative assembly and India became a republic country on 26th January 1950. Since the last 60 years or so, the constitution is acting as a guiding light in matters of executive, legal and judicial decision making
7.2: Indian Constitution and Judicial System
The Indian Judicial System is inheritance from the British and shares the legacy with the English Legal System. The frame work for the current legal system has been laid down by the Indian Constitution and the judicial system derives its powers from it. The Constitution has provided guidelines for the setting up of a single integrated system of courts to administer both Union and State laws. The Supreme Court is the apex court of India, followed by the various High Courts at the state level which cater to one or more number of states.
Below the High Courts there are subordinate courts comprising of the District Courts at the district level and other lower courts at Tehsil or Block level.
7.3: Hierarchy of Courts
The Supreme Court is the top court of the country. It is followed by the high court and subordinate courts. is the powers and the jurisdiction of the Supreme Court, the High Courts and subordinate courts like the District Courts are discussed below.
Supreme Court of India
One of the most important powers of the Supreme Court of India is that any law declared or order/judgment passed by it is binding on all the courts within the territory of India. The jurisdiction and powers of the Supreme Court (SC) are defined under Articles 131 to 142 of the Indian Constitution. The jurisdiction includes original, writ, and appellate jurisdiction.
Original Jurisdiction refers to the power of the court to hear disputes when they arise for the first time. By exercising its power of original jurisdiction the Supreme Court can hear disputes between:-
- Government of India (GoI) and one or more States, or
- GoI & any State or States on one side and one or more States on the other, or
- Two or more States, if it involves a question - of law or fact - on which depends the existence or extent of a legal right.
The Supreme Court has also been conferred the power to issue directions or order or writs under Article 32 of the Constitution for the enforcement of any of the rights provided under Part III of the Constitution, including the Fundamental Rights. This is referred to as the Writ jurisdiction of the Supreme Court. The writ jurisdiction of the Apex court under Article 32 is part of its original jurisdiction. [For more details on Original jurisdiction kindly refer to Articles 32&131 of the Indian Constitution.]
Appellate jurisdiction refers to the power of the Apex court to hear appeals against any judgment, decree or final order (or sentence) of a High Court in a constitutional, civil or criminal case, where exists a substantial question of interpretation of
- the constitution, or
- a law of general importance in case of a death sentence awarded in criminal matters.
However, an additional requirement is that the concerned High Court (HC) under Article 134A has to certify that the case in question is fit for an appeal to the SC.
The jurisdiction of SC also encompasses matters which fell within the jurisdiction of the Federal Court under any law just before the commencement of the Indian Constitution. The Supreme Court can also grant special leave to appeal against any judgment, decree, determination, sentence or order passed by any court or tribunal in the territory of India in any matter. The exception to this rule is the orders, judgments etc passed by any court or tribunal constituted by or under any law relating to the Armed Forces. [The Appellate jurisdiction of SC can be read in more detail under Articles 132 – 136.]
Apart from the original, appellate and writ jurisdiction, the Supreme Court also has special advisory jurisdiction regarding matters referred to it by the President if India under Article 143 of the Constitution.
The Apex court also has the power and authority to review any order or judgment passed by it as well as transfer cases from one High Court to another or from the District Court of one state to the District Court of another State.
High Courts of India
The High Courts of India are the supreme judicial authority at the State level. There are currently 21 High Courts in the country and of these the oldest High Court of India is the Kolkata High Court, which was established in the year 1862.
Their powers and jurisdiction are similar to that of the Apex court, but with a few differences –
- Any law declared or orders/judgments passed by them are not binding on the other High Courts (HCs) of the country or the subordinate courts which fall under the purview of the other HCs unless the other High Courts choose to follow such law or order or judgment.
- Their territorial jurisdiction is varied.
The High Courts are the appellate authority for a State or group of States and get a lot of matters in appeal from the subordinate courts. They have the power to issue writs, just like the Apex court, under Article 226 of the Constitution, but with one difference. While the Supreme Court has the power to issue writs to enforce only the rights provided under Part III of the Constitution, the High Courts can issue writs for enforcement of the rights under Part III as well as “for any other purpose”.
Just like in the case of the Supreme Court, the writ jurisdiction of the High Court is also part of their Original jurisdiction, since all writ petitions are filed directly before the High Court. Apart from writ petitions, any civil or criminal case which does not fall within the purview or ambit of the subordinate courts of a State, due to lack of pecuniary or territorial jurisdiction, can be heard by the High Court of that State. Also certain other matters or issues may be heard by the High Court as part of its original jurisdiction, if the law laid down by the legislature provides for it. For example, the company law cases fall within the original jurisdiction of the High Court.
Therefore, the High Courts’ work primarily consists of appeals from the lower courts as well as the writ petitions filed before it under Article 226. The territorial jurisdiction of a High Court, as mentioned earlier, is varied. Both the Supreme Court and the High Courts are courts of record and have all the powers associated with such a court including the power to punish for contempt of itself.
The Subordinate Courts
The District Courts are at the top of all the subordinate or lower courts. They are however under the administrative control of the High Court of the State to which the district court belongs to.
Their jurisdiction is confined to the districts they are responsible for, which could be just one or more than one. The original jurisdiction of the District Courts in civil matters is confined by not just the territorial limitations, but by pecuniary limitations as well.
The pecuniary limitations are laid down by the legislature and if the amount in dispute in a matter is way above the pecuniary jurisdiction of the District Court, then the matter will be heard by the concerned High Court of that State. In case of criminal matters, the jurisdiction of the courts is laid down by the legislature. The decisions of the District Courts are of course subject to the appellate jurisdiction of the High Courts.
Apart from these judicial bodies who enforce the laws and rules laid down by the legislature and executive and also interpret them (the Supreme Court & High Courts), there are numerous quasi judicial bodies who are involved in dispute resolutions. These quasi judicial bodies are the Tribunals and Regulators.
Tribunals are constituted as per relevant statutory provisions and are seen as an alternative forum for redressal of grievances and adjudication of disputes other than the Courts. Some of the important tribunals are, Central Administrative Tribunal (CAT), Telecom Disputes Settlement Appellate Tribunal (TDSAT), Competition Appellate Tribunal (COMPAT), Armed Forces Tribunal (AFT), Debt Recovery Tribunal (DRT), etc.
The kind of cases the tribunals hear are limited to their specific area. That is TDSAT can hear only matters related to telecom disputes and not matters of armed forces personnel. So the area of operation of these tribunals are marked out at the beginning itself by the statute under which its constituted. The same hold true for the various Regulators like – TRAI, DERC, etc. They regulate the activities of companies which fall under their purview as per the statute.
7.5: Civil and Criminal Courts
Civil court plays an important role in solving cases related to any kind of property, land, house, marriage, etc. But the sessions court has its own importance as it solves criminal cases. Civil and session courts are present in almost all districts.
The court of the district judges is the highest civil court in a district. The district judge combines in himself the powers of trying both civil as well as criminal cases. Thus he is designated as the District and Sessions Judge. Below the court of the District Judge are the courts of Sub-judge, Additional Sub-Judge and Munsif Courts, which are located in the sub-divisional and district headquarters. Most of the civil cases are filed in the court of the Munsif. A case can be taken in appeal from the court of the Munsif to the court of the sub-Judge or the Additional Sub-Judge. Appeals from the courts of the sub- Judges and Additional sub-Judges shall lie in the District-Court. The Court of the District Judge has both original and appellate jurisdiction. Against the decision of the District judge an appeal-shall lie in the High Court.
As discussed above, the District and Sessions Judge heads the criminal courts also. Under him/her, there are courts of the, Additional Sessions Judges, Assistant Sessions Judge and the courts of the first class magistrates. The District and Sessions judge may pass any legal sentence but a death sentence is subject to confirmation by the High Court.
7.6: Nature and Types of Civil Cases
The law which seeks to solve non-criminal disputes such as disagreements over the meaning of contracts, property ownership, family disputes, etc is called civil law. The major provision for civil litigations rests on the Code of Civil Procedure, 1908.
There are the following types of civil cases such as civil suits (Recovery, Partition, Injunction, Declaration, etc), consumer cases, and cases under Companies, Act, Labor Laws, Personal Laws, etc. The most prominent among the civil cases are the civil suits. Civil suits are of 3 types, namely:
- suits in respect to immovable properties
- suits for torts to person or movable property
- suits of other kinds
A civil suit is a civil action brought in a court law in which a plaintiff, a party who claims to have incurred loss as a result of a defender’s actions, demands a legal remedy. The defended is required to respond to the plaintiff's compliant. If the plaintiff is successful, the judgment is in the plaintiff's favor, and a court may award compensation for damages, or impose a temporary or permanent order to prevent an act or compel an act.
An affidavit is a formal written document setting out a person’s own account of events. The affidavit is to be presented in the court of law as evidence. They are a means of telling the court about the facts (evidence) which support particular issues raised by each party. Affidavits as a form of evidence allow the court to weigh up differing versions of events.
In layman’s language, plaint is the written complaint/allegation. One who files the plaint is the "Plaintiff" and against whom it is filed is known as "Defendant". The plaint has to be filed within the time limit prescribed in the Limitation Act, and should be typed copy, in double line space. Name of the court, nature of complaint, names and address of parties has to be clearly mentioned. Plaint should also contain verification from plaintiff, stating that, contents of the plaint are true and correct. The plaint shall contain the following particulars:—
(a) the name of the Court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and
(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits.
7.7: Nature and Types of Criminal Cases
The major criminal law is the Criminal Procedure Code (CrPC), 1973. There are two major types of criminal cases, namely warrant cases and summon cases. Warrant case means a case punishable with death, imprisonment for life or imprisonment exceeding two years. Summons case has been defined as a case in which the extent of punishment is less than two years.
7.8: Other Courts
The Family Courts Act 1984 is the chief law in family subject. The matters which are dealt in the family court are matrimonial relief (which includes nullity of marriage), judicial separation, divorce, restitution of conjugal rights, declaration as to the validity of marriage and matrimonial status of the person, property of the spouses or any of them and declaration as to the legitimacy of any person, guardianship of a person or custody of any minor, etc.
Consumer Court is the special purpose court that deals with cases regarding consumer disputes and grievances. Consumers can file a case against a seller if they are harassed or exploited by sellers. The court will give positive verdict to the consumers/customers if they have proof such as bills or other documents.
7.9: Structure of Police
The Indian Police Act, 1861 is the basic foundation of the present day Indian Police. The constitution of India placed police in the state list, therefore, police matters fall into the jurisdiction of the respective State governments. Police organizations are therefore identified by the name of the State to which they belong, such as the Tamilnadu Police, Rajasthan Police, Kerala Police, etc. Each state police have their own police manual which contains instructions and guidelines to be followed by all officers of the organization while dealing with various administrative, functional, professional and financial matters. There are two systems of police, one is the district police system and other is the independent commisionarate system (in select cities in India). But the entire police organisation in the state is headed by one Director General of Police. For example in the state of Maharashtra, there are 10 commisionarates and 35 district police units.
In the city based commisionarate system, a police officer/ commissioner of the rank of Inspector General of Police heads the unit. But in the district system, a police office of the rank of Superintendent of Police heads the unit.
In Maharashtra, there are 302 IPS officers, 282 Superintendents of Police, 523 Deputy Superintendents of Police, 3522 Inspectors, 3123 Assistant Police Inspectors, 6230 Sub Inspectors, and 1,80, 550 constables. It is one of the largest police force in India.
7.10: Hierarchy of Prison Administration
Prisons is a state subject and is covered by item 4 under the state list in the 7th Schedule of the Indian Constitution. Therefore, the management and administration of prisons falls on the state governments. The Prisons Act, 1894 and the respective prison manuals of the state provides the rules and regulations for day to day administration of prisoners. In most of the states, an officer of the rank of Inspector General administers the affairs of the prisoners.Prison inmates lodged in Indian jails are categorised as Convicts, Undertrials and Detenues. A convict is a person found guilty of a crime and sentenced by a court or a person serving a sentence in prison. An undertrial is a person who is currently on trial in a court of law. A detenu is any person held in custody.There are 8 categories of jails. They are Central Jails, District Jails, Sub Jails. Women Jails, Borstal Schools, Open Jails and Special Jails.
Prisoners sentenced to imprisonment for a long period (more than 2 years) are confined in the Central Jails. District jail houses the inmates who are sentenced for less than 2 years. Sub Jails usually is a place where under trail prisoners are kept. Women jails are exclusively used for women prisoners. Borstal Schools are juvenile detention centres where minors are kept. Open jails are minimum security prisons. Prisoners with good behaviour satisfying certain norms prescribed in the prison rules are admitted in open prisons. Special jails are high security facilities that have specialized arrangements for keeping offenders and prisoners who are convicted of terrorism, insurgency and violent crimes.
In Maharashtra, prison is headed by an IG (Prisons). Each region is headed by Deputy Inspector General (Prisons). Normally, a central jail is headed by a Superintendent of Prisons. He is assisted by ministerial staff (such as office manager, accountant, etc), executive staff (additional superintendent, jailor, deputy jailor, chief head warders, and warders), medical staff (civil assistant surgeon, staff nurse, pharmacist, etc) and correctional staff (social worker, WO, etc). A district jail is normally headed by an additional superintendent or a senior jailor and sub- jail is headed by jailor or deputy jailor.
Concepts and Procedures in Law Enforcement
8.1: Classification of Criminal Major Laws
The major criminal laws include (a) Indian Penal Code, 1860, (b) Criminal Procedure Code, 1973 and (c) Indian Evidence Act, 1872
Indian Penal Code (IPC)
The Indian Penal Code of 1860 (IPC) is a comprehensive code covering all substantive aspects criminal law. It is sub-divided into twenty three chapters and consists of five hundred and eleven sections.
Criminal Procedure Code
The Code of Criminal Procedure was enacted in 1973. It provides the machinery for the investigation of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and the determination of punishment of the guilty. Additionally, it also deals with public nuisance, prevention of offences and maintenance of spouse, children and parents. The Act has 484 sections, 2 schedules and 56 forms. The sections are divided into 38 chapters.
Evidence Act
The Indian Evidence Act was originally passed by the British parliament in 1872. It contains a set of rules and allied issues governing admissibility of evidence in courts of law. The Indian Evidence Act, 1872, has eleven chapters and 167 sections.
8.2: Classification of Crimes under IPC
Broad classification of crimes under the Indian Penal Code is given below:
- Crimes Against Body: Murder, Its attempt, Culpable Homicide not amounting to Murder, Kidnapping & Abduction, Hurt, Causing Death by Negligence, etc
- Crimes Against Property: Dacoity, its preparation & assembly, Robbery, Burglary, Theft, etc
- Crimes Against Public order : Riots, Arson, etc
- Economic Crimes: Criminal Breach of Trust, Cheating, Counterfeiting, etc
- Crimes Against Women: Rape, Dowry Death, Cruelty by Husband and Relatives, Molestation, Sexual harassment and Importation of Girls, etc
- Crimes Against Children : Child Rape, Kidnapping & Abduction of Children, Procreation of minor girls, Selling/Buying of girls for Prostitution, Abetment to Suicide, Exposure and Abandonment, Infanticide, etc
- Other IPC crimes.
8.4: Other Concepts
First Information Report (FIR)
FIR refers to the information on the commission of an offence given to a police officer by the first informant. In other words, it is basically a complaint document that sets the provisions of the criminal law in motion. As soon as the crime happens, the aggravated person must file the FIR immediately. If given orally, it must be taken down in writing. There should be four copies recorded simultaneously, with carbon sheets in place. It is important that the FIR must be recorded in first person. The complainant has the right to and must get a copy of FIR. He/she is not required to pay for the same.
The complainant must make sure that the following information is there in the FIR:
- Who is the perpetrator of the crime?
- Who has the crime been committed against - victim /complainant?
- When was it committed (time)?
- Where was it committed (specific place /locality/area)?
- Why do you think it was committed?
- Which way (actual process involved) was it committed?
- Were there any witnesses? (Names will be required here.)
- What were the losses? (Money /valuables/ possessions /physical damage etc.)
- What were the traces at the scene of the crime? (Weapons/evidence if any.)
Cognizable Offence
- Cognizable offences are those where a police officer can arrest without warrant.
- And such cases, after arrest has been made, the accused will be produced before a magistrate, and he may require the police officer to investigate the matter.
- After investigation, if the case is made out, i.e. charge sheet filed goes against accused, the magistrate can order for arrest.
- During the pendency of trial, bail application can be moved before the concerned magistrate.
- Cognizable offences are both bailable, and non-bailable.
Examples of cognizable offences are as follows:
- Offences of waging or attempting to wage war, or abetting the waging of war against the government of India.
- Wearing the dress or carrying any token used by a soldier, sailor or airman with intent that it may be believed that he is such a soldier, sailor or airman.
- Rioting armed with deadly weapon.
- Hiring, engaging or employing person to take part in an unlawful assembly or taking part in self.
- Being or expecting to be a public servant, and taking, and taking a gratification other than legal remuneration in respect of an official act.
- Public servant obtaining any valuable thinks, without consideration, from a person concerned in any proceeding or business transacted by such public servant.
- Counterfeiting, or performing any pat of the process of counterfeiting Indian coin.
- Having possession of a counterfeit government stamp.
- Making or selling false weights or measures for fraudulent use.
- Negligently doing any act known to be likely to spread infection of any disease dangerous to life.
- Causing a disturbance to an assembly engaged in religious worships
Non Cognizable Offense
Non cognizable offences are those, where a police officer cannot arrest without a warrant. In such offences for arrest, all the steps have to be followed like
- Filing of complaint/F.I.R.
- Investigation
- Charge sheet,
- Charge sheet to be filed in court
- Trial
- Final order of arrest if case has been made out.
Following are some examples of non-cognizable offences.
- Owner or occupier of land not giving information of riot etc.
- A public servant disobeying a direction of the law with intent to cause injury to any person.
- A public servant unlawfully engaging in trade.
- Bribery during elections.
- Making any false statement in connection with an election.
- Absconding to avoid service of summons or other proceeding from a public servant, like where summons or notice require attendance in person etc, in a court of justice.
- Refusing to take oath when duly required taking oath by a pubic servant.
- Obstructing public servant in discharge of his public functions.
- Giving or fabricating false evidence in a judicial proceeding.
- False claim in a court of justice.
- Fraudulent use of false instrument for weighting.
- Selling any food or drink as food and drink knowing the same to be noxious.
- Offering for sale or issuing from a dispensary any drug or medical preparation known to have been adulterated.
- Voluntarily causing hurt on grave and sudden provocation, not intending to hurt any other than the person, who gave the provocation.
- Buying or disposing of any person as a slave.
- Dishonest misappropriation of movable property, or converting it to one's own use.
Arrest
Arrest means the taking, seizing, or detaining of the person with an intention to take in to custody. According to section 41 (1) of CrPC, a police office can arrest with or without warrant, if he/she suspects the person. Persons arrested must be informed of the full particulars of the offence committed and the grounds for arrest (Sec.50 Cr. P.C. & Art 22 (1) - Constitution of India). All persons arrested must be served a custody memo (as per Supreme Court directions in D.K. Basu Vs State of West Bengal).
Persons arrested cannot be detained for more than 24 hours in Police Custody (Sec.56/57 Cr.P.C. & Art 22 (2) Constitution of India). An Accused person is entitled to a copy, free of cost, of the Police Final Report, First Information Report (FIR), statements of all persons whom prosecution proposes to examine as its witnesses (Sec 207, Sec. 154, Sec. 161 [3]) confessions and statements if any recorded and any other documents, relevant extracts forwarded to the magistrate. The person arrested, has a right to be examined by a registered medical practitioner (Sec.54) to disprove, the commission of Offence or to prove the ill-treatment of the police or any other suitable reason. (S.54 Cr. P.C).In the case of a woman the medical examination has to be made only by a female registered medical practitioner.
Warrant
A warrant of arrest is a written authority given by a competent magistrate for the arrest of a person. It is a more drastic step than the issue of a summons. It is addressed to a person, usually a police officer, to apprehend and produce the offender in front of the court. As per CrPC section 70(1) every warrant of arrest shall be in writing. It must be signed by the presiding officer of the court and must bear the seal of the court.
Bail
In general, an individual accused of a crime must be held in the custody of the court until his or her guilt or innocence is determined. However, the court has the option of releasing the individual before that determination is made, and this option is called bail. In case of bailable offenses, as per section 436 of CrPC, bail has to be granted as a matter of right. But for certain non bailable cases also, the court can grant bail.
Charge Sheet
When the police investigation is complete, the police officer in-charge of the case is required to submit a report under Section 173 of the Cr PC to the Magistrate stating the name of the parties, the nature of crime, other information, etc. This report is known as the charge-sheet.
Police Custody
A Magistrate may order for the remand of the arrested person to police custody u/s 167 (3) of the Cr.P.C. The Magistrate should be fully satisfied that there is good ground to remand the accused to police custody. For example if Mr. Ram is arrested for murder of Mr. Samuel, the police will ask for police custody with the view to have clues of evidence. Police custody cannot be given beyond 15 days. When remand to police custody is granted (subject to Supreme Court orders in D.K. Basu), the accused in police custody can be kept in police lock - up. He/she can be taken to any place for purposes of investigation within this period. He/she can be kept at any place for purposes of investigation within this period. But, there should be an entry in the Daily Diary about when the accused is taken out of police lock-up or readmitted.
If the accused falls ill in police lock-up, he must be given medical aid or treatment admitted for in a hospital. If an accused dies in police custody, officer - in - charge shall immediately inform the nearest Executive Magistrate empowered to hold inquests, for investigation u/s 176 CrPC and intimated to the National Human Rights Commission within 24 hours.
Judicial Custody
Judicial custody means that the accused is in the custody of the magistrate (usually in the prison). Police cannot interrogate the person in judicial custody without the permission of the concerned magistrate/ court.
8.5: Powers of Police
According to Section 41 and 41A of the Code of Criminal Procedure, police have the following powers:
- Arrest a person without warrant (if the crime is done in the presence of a police officer, if there are reasonable suspicion of the person, if the officer suspects anything which the person posses as a stolen thing, if the person obstructs the police officer from performing his/her duty, if the person has past criminal records, etc)
- Issue notice of appearance before a police officer
- If a bond with sufficient sureties is given, the court may direct the police officer to release the accused from custody (Section 71). The Executive magistrate or district superintendent of police or commissioner can alternatively direct a person’s removal in custody to the court (Section 81)
- To maintain public order and tranquillity, a police officer, not below the rank of sub-inspector can command an assembly of five persons or more to disperse (Section 129). The DM or SDM can give conditional order for removal of nuisance (Section 133).
The police are directed by the section 41-B of the Code of Criminal Procedure to bear identification tag while making the arrest. He/ she should prepare memorandum of arrest attested by one witness and counter signed by the person arrested.
8.6: Brief Process of Trail
The police officers make immediate efforts to investigate in case of cognizable cases (Section 154, 156) and if it’s a non cognizable case, the police will not investigate without the order of a magistrate (Section 155). Based on the report of the police to the magistrate (Section 158), he/ she may hold a preliminary inquiry or dispose the case (Section 159).
The public prosecutor opens the case during the initiation of the trail (Section 225, 226). If there is no sufficient ground, the accused is discharged (Section 227). But if there is considerable evidence, the judge shall frae charges against the accused (Section 228).
If the accused pleads guilty, the judge convicts him/her thereon (Section 229). But is the accused refuses, the judge fixes a date of examination of the witnesses (Section 230). On the fixed days prosecution and cross examination is done (Section 231). At this point if the judge considers that there is no evidence, the judge shall order an acquittal (Section 232). But if he/ she is not acquitted, he /she shall be called to enter on his defence (Section 233).
When the examination of witnesses is complete, the prosecutor sums up the argument and the pleader/ accused is also entitled to reply (Section 234). After hearing the arguments, the judge gives his final judgement (Section 235)
8.7: Rights of arrested person according to CrPC
- Right to be informed about the right to have a relative or friend named by him/her to be informed of his arrest (Section 41-B)
- Right to meet an advocate of choice during interrogation, though not throughout the entire interrogation (Section 41-D)
- The police officer is obligated to inform the arrest to the nominated person (Section 50- A)
- The police officer should make arrangements for examination of the arrested person by medical officer (Section 54)
- If a sub-ordinate police officer is sent to make an arrest without the warrant, an order of arrest has to be issued (Section 55). The health of the arrested has to be taken care of (Section 55-A)
8.8: Rights of arrested person according to Justice Basu Judgment
- The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
- That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
- A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock- up, shall be entitled to have one friend or relative or other person know to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
- The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
- The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
- An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next fried of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
- The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
- The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a penal for all tehsils and districts as well.
- Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
- The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
- A police control room could be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours
Legal Aid and Writs
9.1: Concept of Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial. The concept of legal aid is in the form of Article 39A into our constitutional framework. Hence, legal aid is not a charity, but is a constitutional mandate and the right of the citizens.
Since 1952, the Government began addressing the question of legal aid for the poor. In particular, during 1960s, some guidelines were drawn for legal aid schemes. In 1980, a national level committee under the able leadership of Justice P.N.Bhagawati was set-up to oversee and supervise the legal aid programmes. This Committee, known as the Committee for Implementing Legal Aid Schemes started monitoring legal aid activities throughout the country. In 1987, Legal Services Authorities Act was enacted to give a statutory base to legal aid programs throughout the country on a uniform pattern. This act was finally enforced on 9th of November 1995.
Section 12 of the Legal Services Authorities Act, 1987 prescribes the criteria for giving legal services to the eligible persons. Section 12 of the Act reads as under:-
Every person who has to file/defend a case shall be entitled to legal services if that person is –
(a) a member of a Scheduled Caste or Scheduled Tribe;
(b) a victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution;
(c) a woman or a child;
(d) a mentally ill or otherwise disabled person;
(e) a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
(f) an industrial workman; or
(g) in custody, including custody in a protective home within the meaning of clause (g) of section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a juvenile home within the meaning of clause
(j) of section 2 of the Juvenile Justice Act, 1986 (53 of 1986) or in a psychiatric hospital or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health Act, 1987 (14 of 1987); or
(h) in receipt of annual income less than rupees nine thousand or such other higher amount as may be prescribed by the State Govt., if the case is before a court other than the Supreme Court, and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Govt., if the case is before the Supreme Court."
9.2: Need for Legal Aid
There are millions of poor people in India who are not able to access justice. Poverty, illiteracy and other problems leads poor people to languish in the prison without engaging lawyers for their case. State sponsored legal aid is the only possible solution for such people to defend themselves in the court of law. Hence there is a need for free legal aid services across the country.
9.3: Legal Aid Schemes
The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to provide free Legal Services and conceive various legal aid schemes. In every State, State Legal Services Authority has been constituted to give effect to the policies and directions of the NALSA. In every District, District Legal Services Authority has been constituted to implement Legal Services Programmes in the District.
Some of the schemes of NALSA are as follows:
- Para-Legal Volunteers Scheme
The para-legal volunteers’ scheme is aimed at imparting legal awareness to volunteers selected from certain target groups who in turn act as harbingers of legal awareness and legal aid to all sections of people. 100 volunteers are selected from arts and science colleges in the district level and 50 volunteers are selected in each taluk level. They are given training and are given the mandate for creating legal awareness.
- Legal Services to Workers in Unorganised Sector Scheme
Through the legal services to workers in unorganised sector scheme, legal services authorities at appropriate levels can come to the help of the workers in the unorganised sector in the following manner:
- Identifying the unorganised workers within the jurisdiction of each legal services authority
- Conducting legal awareness programmes for the identified groups of unorganised workers
- Persuading and assisting the workers in the unorganised sector to avail of the benefits under the different social welfare legislations, administrative programmes and schemes put in place by the State Governments.
- Reaching out to the unorganised labourers and facilitating their bargaining capacity with the employers and the institutional mechanisms for their welfare.
- Providing legal assistance in appropriate cases.
- Scheme for Mentally Ill
The scheme for mentally ill urges the legal services authorities at appropriate levels to the help the mentally ill in the following manner:
- To work on the right of mentally ill persons to get treatment
- To provide legal services during the proceedings for reception orders
- To provide legal services to the mentally ill persons confined in psychiatric hospitals or psychiatric nursing homes
- To provide legal services in case of forced admission into the psychiatric hospitals or psychiatric nursing homes
- To provide legal services during inquisition proceedings
- To provide legal services when there is attempt to misappropriation of property of mentally ill persons, etc.
- Scheme for Legal Aid Clinics
Legal aid clinic is one of the thrust areas envisioned in the NALSA’s vision & strategy document. NALSA plans to set up legal aid clinics in all villages.
- Scheme for Disaster Victims
Sub clause (e) of Section 12 Legal Services Authorities Act, 1987 makes the victims of disasters who are under circumstances of undeserved want as a result of such disaster eligible for free legal services to file or defend a case. Beyond this, the thrust of the scheme is strengthening the capacity of the victims for managing the disaster at all levels and to coordinate with the Government departments and non-governmental organisations for providing legal aid to the victims.
9.4: Lok Adalat
Lok Adalat is a system of alternative dispute resolution process. India, being an ancient civilisation has had a long history of resolving disputes through the mediation of village elders. The system of lok adalats is an improvisation of this system. A large number of criminal compoundable cases, cheque bounce and bank recovery cases, civil suits, motor accident claims, and family and matrimonial disputes are taken up lok adalats.
Lok adalats usually have retired judicial officers, advocates and social workers on the benches and deal with the cases pending before any court and referred to the them. In this respect, cases can be referred to lok adalat if the parties agree or if one of the parties makes an application to the court.
The award made by lok adalat court shall be final and binding on all the parties to the dispute. The significant feature is that the bench guides the parties in arriving at a compromise or settlement in friendly and harmonious atmosphere. Most importantly, no fee is required to be paid by the parties to settle their cases before the lok adalat court.
In the recent years, lok adalat courts are becoming immensely popular. The national lok adalat held on 23rd November 2013, wiped out a record 28.26 lakh cases pending in various courts. In Maharashtra alone, 4,07,670 cases were resolved and in particular 37,860 cases were solved in Mumbai alone on 23rd November 2013. Thus the lok adalats are able to ensure speedy justice to the litigants
9.5: Public Interest Litigation
Public-Interest Litigation (PIL) is a legal mechanism which connects the public with judiciary. The provisions of PIL allow any person to pray to the Supreme Court by sending a letter or telegram (previously). Only a person having sufficient interest in the case can approach the court. The Supreme Court takes the help of journalists, social workers and judicial officers to ascertain the facts of the PIL. The Husnara Khatoon Vs State of Bihar helped in the establishment of the PIL proceedings. In December 1979, a number of under trail prisoners in Bihar invoked the Supreme Court by filing a single case. The case was placed before a bench headed by Justice P.N Bhagwati. The court in its verdict upheld that the prisoners should get benefit of free legal aid and fast hearing. Because of this case 40,000 prisoners, whose suits were pending in the court, were released from the jail. Later, Justice P.N. Bhagwati and Justice V.K. Krishna Iyer began to admit more cases like this. Thus PIL as a simple legal tool was born. The recent years, the PIL submitted by PUCL is worth mentioning.
“In 2001, during a visit to Jaipur the PUCL functionaries observed that the Food Corporation of India godowns were overflowing and the grains kept outside the godowns were rotting. The PUCL also found out that government had 40 million tonnes above the buffer stock and people were dying of starvation. On this proposition, the PUCL in Rajasthan filed a case, which came to the Supreme Court. The court affirmed the right to food as necessary to uphold Article 21 of the Constitution of India. It decreed that all the PDS shops, if closed, were to be re-opened within one week. The Food Corporation of India (FCI) was ordered to ensure that food grains do not go to waste. The states were given the responsibility over implementation of schemes such as Mid-day Meal Scheme, Annapurna Scheme, and Public Distribution Scheme for BPL & APL families, etc.
Since the inception of the case in 2001, 427 affidavits have been submitted by the petitioner and respondents and 71 IA’s (interlocutory applications) have been filed. 21 important orders are issued so far. In a classic example, the combined action of a people’s campaign and the Courts has resulted in positively impacting millions of poor in India”.
9.6: NGOs in Legal Aid
Involvement of the NGOs in the legal services activities is very much useful and vital for the success of various such schemes evolved by NALSA. Therefore the legal aid services authorities are empowered to accredit NGOs that wish to work with them.
The NGOs can approach the Chairman / Secretary of the District Legal Services Authority concerned and submit the application in the prescribed format along with the required documents seeking accreditation. After perusing the application and documents, the State Legal Services Authority will give accreditation to such NGOs enabling them to coordinate and participate in the legal services activities of the concerned District Legal Services Authority. The NGOs that seeks to involve in the legal services activities should have personnel with legal expertise and should have experience in working with various target groups.
9.7: Utilizing Writs
Article 32 of the Constitution confers original jurisdiction on the Supreme Court to issue directions, orders or writs for the enforcement of fundamental rights. Similar powers are conferred on the High Court under article 226 of the Constitution. The writ jurisdiction of the High court is wider than that of the Supreme Court. The High Court can issue writs for the violation of fundamental rights or for any other purpose. There are five types of Writs- Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto.
Habeas Corpus
"Habeas Corpus" is a Latin term which literally means "you may have the body." The writ is issued to release a person who has been detained unlawfully whether in prison or in private custody. When the writ is issued, the detenue should be produced before the Court and if the detention is found illegal the Court will order that he be immediately released. However in Kanu sanyal Vs District Magistrate, Darjeeling(A.I.R.1974S.C 510) the Supreme Court held that while dealing with the application of writ of habeas corpus, production of the body of the person alleged to be unlawfully detained was not essential.
Mandamus
Mandamus is a Latin word, which means "We Command". Mandamus is an order from the Supreme Court or High Court to a lower court or tribunal or public authority to perform a public or statutory duty.. It is issued to secure the performance of public duties and to enforce private rights with held by the public authorities.
Certiorari
The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal or quasi judicial authority.
There are several conditions necessary for the issue of writ of certiorari (a) There should be court, tribunal or an officer having legal authority to determine the question with a duty to act judicially. (b) Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or officer. (c) The order could also be against the principles of natural justice or (d) it could contain an error of judgment in appreciating the facts of the case.
Prohibition
The Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, or quasi-judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try. After the issue of this writ, proceedings in the lower court etc. come to a stop.
While the writ of prohibition is available at the earlier stage, the writ of certiorari is available on similar grounds at a later stage. It can also be said that the writ of prohibition is available during the pendency of proceedings the writ of certiorari can be resorted to only after the order or decision has been announced.
Quo-Warranto
The word Quo-Warranto literally means "by what warrants?" or "what is your authority"? It is a writ issued with a view to restrain a person from holding a public office which he is not entitled. The writ of quo-warranto is used to prevent illegal assumption of any public office or usurpation of any public office by any body. For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a writ of quo-warranto against the person and declare the office vacant.
(Reference: Prasanna, A. Courts and Procedure, IMG: Kerela)
Para Legal Practice with Prisoners and Families
10.1 Introduction
In India, the prison organization is formally entrusted with the task of reforming and rehabilitating the offenders. For the rehabilitation to be successful, there are several crucial factors which has to be taken care of, namely education, skill development, legal support, mental health, post release employment and intervention with families and communities. According to the NCRB (2011) only a meagre 6.29 % of prisoners are graduates or technical diploma holders. A very large number, namely 93.70 % of prisoners have education till secondary level or lesser than that. In fact, a substantial 44.41 % have education below 10th standard and another 29.60% are illiterate. Thus it is clear that mostly less educated people land up in jail. Hence, it is important to offer formal/ informal education and develop skill development programmes for the inmates.
The legal rights entitled to needy under-trials have been mandated by the Constitution. The state funded legal aid programme is organized under the Legal Aid Services Authorities Act, 1987. Though each person is entitled to free legal aid from the point of arrest, this objective is not achieved many times, due to the lack of awareness on the part of the accused/victim, and the lack of initiative and coordination between the police and the legal aid authorities.
Maintaining good mental health is a crucial for the survival of human being. This is true in the case of prisoners too. According to Mansoor et al (2015), factors in prisons that may adversely affect mental health include overcrowding, dirty and depressing environments, poor food, inadequate health care, and physical or verbal aggression.
The children of women prisoners living with the women prisoners in jails are being deprived of their basic rights, entitlements and amenities for their development. Similarly children living in institution and those left outside face several vulnerable situations. The effects of incarceration can be catastrophic on the families too.
In this context, prisoners find it difficult to maintain relationship with family members. This leads to lack of trust, misconceptions, and even separation. Similarly preparing the community for receiving the ex-prisoner is also vital. This will reduce the guilt and stigma attached towards imprisonment. There has been very few instance of the government or NGOs working on this aspects.
Evidence from studies suggests that ex-prisoners who are employed are less likely to re-offend. Employment facilitates the creation of social links, and provides a sense of stability, and provides income which reduces the likelihood of entering the crime cycle (Healy 2010). On the other hand, most of the released prisoners in India do not get a decent job, thus falling back on criminality.
10.2 Working with Undertrail Prisoners
In 2016, the Constitution Bench of the Supreme Court comprising of Chief Justice of India T.S. Thakur observed that if “life” implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or other basis for holding that denial of “access to justice” will not affect the quality of human life so as to take access to justice out of the purview of right to life guaranteed under Article 21.
They articulated that access to justice is indeed a facet of right to life guaranteed under Article 21. According to the bench, the four main facets that constitute the essence of access to justice are (a) effective adjudicatory mechanism, (b) accessibility in terms of distance, (c) speedy adjudication, and (d) affordable adjudicatory process. Among the four facets, speedy adjudication is one of the most important constituent. If the process of administration of justice is so time consuming, laborious, indolent and frustrating for those who seek justice that it dissuades or deters them from even considering resort to that process.
Let’s us have a look at some of the vital statistics made available by the National Crime Records Bureau Report titled Prison Statistics India 2015 . The total capacity of Jails in the Country is 3,66,781. However, the total number of jail inmates as on 31.12.2015 is 4,19,623. Therefore the occupancy rate at 2015 is as high as 114.4%
Under-trial prisoners constitute a significant majority of the prison population (67.2%). All the 2,82, 086 persons who are within prisons as under-trials are deemed to be innocent in the eyes of the law. However, 64.8% undertrail prisoners were detained for more than 3 month at the end of 2015. A total of 3,599 undertrials were detained in jails for more than 5 years at the end of the year 2015. Interestingly, though the number of undertrial prisoners facing murder charge decreased by 3.2% in 2015 (61,190) over 2014 (63,225), the number of undertrial prisoners just decreased by a megre 0.3% only in 2015 (2,82,076) over 2014 (2,82,879).
Moti Ram and Ors. V. State of Madhya Pradesh (1978) highlighted that the consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life. The jailed defendant loses his job and the burden of his detention frequently falls heavily on the innocent members of his family. Most of the under trail prisoners are youth (48.1% undertrial inmates were in the age group of 18 - 30 years as on 2015) and one fourth of the under trail prisoners are illiterates. (Out of 2,82,076 undertrial inmates, 80,528 were illiterates). This clearly shows the vulnerability of the under trail prisoners in India. The main question here is why there are so many under trial prisoners in the first place? The answer is quite complex.
However, the main reasons include indiscriminate arrests, highly discriminatory bail system, delay in investigation and trial, prolonged detention, and poor performance of legal aid advocates resulting in less acquittals.
The power of the police to arrest people is very wide and they arrest people even when they cooperate with the investigation and are not likely to evade trial. This results in unnecessary detentions. As suggested by the CHRI in cases, where the specified conditions are not met, the police officer may, instead of arresting a person, issue to her/him a notice of appearance. This requires the accused to appear before the police officer when required and to cooperate with the police officer in the investigation of the offence. This provision available in section 41 of the Code of Criminal Procedure (Amendment) Act 2006, if properly implemented, will lead to a vast reduction in the number of persons – accused for offences punishable up to 7 years.
As observed by Justice P.N. Bhagwati, the bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situated would be able to secure their freedom because they can afford to furnish bail. This discrimination arises even if the amount of the bail fixed by the Magistrate is not high, for a large majority of those who are brought before the Courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount. Section 436 Cr.P.C., mandates the police or court to release an indigent person on personal bond without asking for any surety. The section states that the court shall consider any person who is unable to furnish bail within 7 days from the date of her/his arrest as indigent. Therefore, a person accused for a bailable offence can be detained in prison for a maximum period of 7 days. This provision of law is grossly under-applied.
Many prisoners languish in prisons because the police do not finish investigation, and file the charge sheet in time.
Section 167 Cr.P.C. lays down a period of 90 days for offences punishable with death, life imprisonment or imprisonment for a term of not less than ten years, and 60 days for all other offences. Where the investigation has not been completed within the stipulated timeframe, it is mandatory upon the Magistrate to release the accused on bail, if he is ready to furnish bail. Many prisoners are charged with a non-bailable offence which is not very serious and is triable by a Magistrate. Section 437(6) Cr.P.C makes it mandatory for a person to be released on bail where the trial has not concluded within 60 days from the first date fixed for taking evidence. These two provisions, along with the provision under Section 436A Cr.P.C which lays down the right of an undertrial to apply for bail once s/he has served one half of the maximum term of sentence s/he would have served had s/he been convicted have been severely underutilized.
Prison Statistics (2015) shows that out of a total of 12,92,357 undertrials released, only 82,585 undertrails were acquitted. This shows the status of performance of the legal aid advocates. According to our constitution, it is the duty of the State to see that the legal system promotes justice on the basis of equal opportunity for all its citizens. It must therefore arrange to provide free legal aid to those who cannot access justice due to economic and other disabilities. Sec. 304 of Code of Criminal Procedure states that if the accused does not have sufficient means to engage a lawyer the court must provide one for the defense of the accused at the expense of the state. A person entitled to appeal against his/her sentence has the right to ask for a counsel, to prepare and argue the appeal, as revealed in the Madav Hayavadanrao Hoskot Vs. State of Maharastra Case (1978). Low fees prescribed for the legal aid counsels attract very few talented lawyers and as a result Legal Service Authorities failed to execute the concept of "Poverty Jurisprudence". Sincere and honest advocates who are interested in the case and competent to handle should be appointed for legal aid, and not merely on the basis of seniority. To create confidence in the litigant about the system of legal aid, appointment of legal aid counsel plays a vital role.
Main strategies for para legal volunteers to work with under trail prisoners include the following:
- Advocating with the district/ state police for judicious implementation of the Sec 41 of Cr.P.C with regards to arrest.
- Promoting section 436 Cr.P.C., which mandates the police/ court to release an indigent/ poor person on personal bond without asking for any surety
- Utilizing the provision of Section 436A of Cr.P.C to help release the under trail person on bail
According to Section 436 of Code of Criminal Procedure, a person other than a person accused of a non-bailable offence may be released on bail on such terms as may appear reasonable to the police officer or the Court. A person released under this section by the police officer need not approach the Court for a fresh bail as held by the High Court of Rajasthan. But the Allahabad High Court has opined that a person released on bail by the police must seek fresh bail from the Court for the purpose of appearing before the Court. This provision can be used by para legal volunteers.
The right to be released on bail in case of a bailable offence being a legal and constitutional right of the accused person, refusal of this right is a curtailment of the right of personal liberty guaranteed by Article 21 of the Constitution of India and, therefore, there should be no question of discretion in granting bail.
In Rasiklal v. Kishore Khanchand Wadhwani, the accused was released on bail for the offence of defamation which is bailable offence. Held, the Court is not bound to issue notice to the complainant and hear him before allowing the accused his release on bail.
The sub section of this is very useful if the person is under detention. Section 436 A clearly states that if a person has, during the period of investigation, inquiry or trial (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending upto one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.
Based on experiences of Tata Trust supported NGOs (http://tatatrusts.org/upload/pdf/social-work-india-criminal-justice-institutions.pdf ) the role of para legal volunteer in under trail cases includes the following:
- Visit prisons two to three times a week and provide legal guidance and counselling to acquaint undertrial prisoners with relevant provisions of the law and how to fill out applications.
- Finding out if lawyers have been appointed by the State, and whether the case is progressing satisfactorily.
- If a lawyer hasn’t been appointed, taking the matter up with district legal aid cells.
- If a lawyer has been appointed but has not yet met the client, the PLVs gets in touch with the lawyer and ensures that regular meetings take place between both parties.
- PLVs help bring cases to court quickly by gathering relevant information about the undertrial’s family, and procuring documents such as birth certificates and ration cards. Often, social workers are required to travel to the undertrial’s hometown to get hold of the documents.
- They keep in regular touch with lawyers to ensure that the case moves forward. When it is a bailable offence, or a petty case, they write an application for release on personal bond, especially if some time has elapsed after bail has been granted and the prisoner is still in jail because of lack of suitable sureties or inability to pay the bail amount.
10.3 Working with Convict Prisoners
Convict prisoners are behind the bars for years, lamenting for visiting their family. The number of convicted prisoners in jails in Maharashtra was 7891 at the end of 2015. It accounted for 5.88% of the number of convicted prisoners in jails in India at the end of 2015.
India does not have a Uniform Policy for premature release of prisoners. The law provides for executive remissions, which is completely based on discretion. Discretion is based on the basis of guidelines framed at state level. There is no minimum standard that the states have to keep in mind when drafting these schemes.
The release of a prisoner is subjected to executive discretion. There are three kinds of remissions –constitutional, statutory and remissions earned in accordance with jail manuals. Article 72 of the constitution empowers the President of India to grant pardon, reprieve, respite or remission. Section 432 empowers the ‘appropriate government’ to suspend or remit the sentence of a prisoner.
The government is not required to give reasons for its decision. Section 432(2) provides that the government may seek the opinion of the judge who convicted the prisoner. In this connection, para legal volunteers can advocate with the government for premature relase of prisoners with good conduct. In states where such decision were never taken, it is good to consider premature release/ develop such law based on Section 77 of the Kerala Prisons and Correctional Services (Management) Act, 2010 which prematurely releases with the objective of reformation and rehabilitation, either suo motu or on the recommendations of an advisory committee.
Based on experiences of Tata Trust supported NGOs (http://tatatrusts.org/upload/pdf/social-work-india-criminal-justice-institutions.pdf ) the role of para legal volunteer in convict cases also includes proving support to avail parole or furlough.
Under the furlough system, a convicted prisoner is granted release for a short period of time, usually two weeks, to attend to family emergencies. Under the parole programme, a convicted prisoner is granted longer leave —up to two or three months —to address family-related problems. The leave is not considered part of the sentence served. A prerequisite for securing parole or furlough is the submission of positive reports about the applicant by the local police and officials like the district magistrate or tehsildar. Family members have to furnish sureties too. PLVs play an important role in this process. They talk to family members to identify sureties and to ensure that they welcome the convict. They then follow up the processing of positive reports by the police. PLVs contact the sanctioning authorities (regional deputy inspector general of prisons for furlough, and the divisional revenue commissioner for parole) for quick disposal of applications. Finally, it helps family members to furnish sureties at the relevant offices.
10.4 Working with Children of Prisoners
Children of prisoners are the unseen victims of crime. They have done nothing wrong, yet they are the ones who often carry the guilt and shame of what their parent has done. Unless they are already known to statutory children’s services or are assessed as children in need, they are unlikely to receive any specific support to help them cope.
Over the past few decades, numerous books and articles have been written discussing the effects of parental incarceration on young children’s developmental outcomes and addressing the specific issue of the impact of parental incarceration on families of excluded communities.
There are four main stages from arrest to release, each of which can profoundly affect a child:
- Arrest: Police may arrest a parent in front of the child. This causes upset and trauma.
- Court: Is where sentence is decided. It may be the last time a child sees their parent before they go to prison.
- Prison: Mother or father may be taken to prison miles from home. They may be moved around a lot. The child may never gain the opportunity to visit.
- Release: The family might find it difficult to adjust when a parent comes home.
Children of prisoners often experience stress, possibly having witnessed their parent’s arrest, and managing feelings of unresolved loss. Maternal incarceration can be particularly destabilizing for young children when mother is a primary caregiver.
Children may feel abandoned and express anger toward the caregiver, and in turn, caregivers may be angry with the incarcerated parent and/or resent or punish a child who rejects help. Caregivers may lack the skills to provide children with nurturing and stimulating environments, and be overwhelmed by the responsibility of caring for a child who may be struggling at home and in school. Grandparents are the most common kin caregivers; their poor health and social isolation can make it challenging to care for young. Interventions for individuals with incarcerated family members may be most effective if delivered in non-threatening, non-stigmatizing settings that connect caregivers with others in their position.
In this connection, some areas where para legal volunteers can focus includes the following:
- Working in the prions where women prisoners are lodged with their children. Para legal volunteers can monitor whether prison officials are strictly aligning with the Supreme Court guidelines in the RD Upadhyay vs State of AP case to ensure that certain basic standards are observed with regard to children of women prisoners
- Para legal volunteers can interact with child welfare committee regarding the condition of children whose both the parents ar ein prison and make sure to get them admitted in government run child carte institutions
10.5 Working with Released Prisoners
Evidence from studies suggests that ex-prisoners who are employed are less likely to re-offend. Employment facilitates the creation of social links, and provides a sense of stability, and provides income which reduces the likelihood of entering the crime cycle (Healy 2010). On the other hand, most of the released prisoners in India do not get a decent job, thus falling back on criminality. In this connection, para legal volunteers can work on strengthening Prisoners Aid Society which can facilitate in creating livelihood opportunities for the released prisoners
10.6 Conclusion
The best help is self-help. A program to train inmates as paralegals was established at a large state prison in the Midwest. Qualified inmates were randomly assigned to the training or to a control condition. The trainee group showed a significant increase in its amount of legal knowledge after training. Members of the trainee group also reported a significant increase in the number of other inmates requesting aid from them on legal problems. In addition, interviews were conducted with two random samples of the general inmate population, before and after the paralegal training program. These interviews revealed strong support for the training program, and this support increased over the period of the program. An experiment of this sort can be tied in Indian context with a group of prisoners who have shown good conduct. The overall goal is to help prisoners get access to justice and avail their rights at their door steps on time.
Healy, D. (2010). The Dynamics of Desistance: Charting Pathways through Change. Cullompton: Willan
Emshoff, J., Davidson, W., & Conner, R. (1980). Training prison inmates as paralegals: An experimental project. Journal of Criminal Justice, 8 (1), 27-38
http://www.humanrightsinitiative.org/download/1457162682Undertrial%20Prisoners%20and%20the%20Criminal%20Justice%20System.pdf
Report of the Legal Aid Committee appointed by the Government of Gujarat in 1971 (p. 185)
http://www.communitycare.co.uk/2008/10/06/professional-support-for-prisoners-families-and-children
Mansoor, M., Perwez, S., Swamy, T., Ramaseshan. H. (2015). A Critical Review on Role of Prison Environment on Stress and Psychiatric Problems among Prisoners. Mediterranean Journal of Social Sciences, 6 (1), 218-223
Healy, D. (2010). The Dynamics of Desistance: Charting Pathways through Change. Cullompton: Willan
http://www.livelaw.in/access-justice-fundamental-right-guaranteed-article-14-21-constitution-sc-constitution-bench/
Para Legal Practice with Women and Senior Citizens
11.1 Marriage Law
People solemnize marriages in accordance with religious rituals and ceremonies, which are mostly codified by statutory personal laws. Therefore, the matrimonial laws in India, including laws on marriage, divorce and other connected issues, are essentially governed by the personal laws of the parties depending on their religion:
- Hindu: Hindu Marriage Act 1955.
- Muslim: Muslim marriage is a contract under Muslim law.
- Christian: Indian Christian Marriage Act 1872 and the Divorce Act 1869.
- Parsi: Parsi Marriage and Divorce Act 1936.
- Special Marriage Act 1954 applies to all persons of all religions.
(All these laws apply throughout India (except for in Jammu and Kashmir, and Goa).
Personal laws governing marriage contain provisions to ensure the welfare of children born in wedlock. There is a general law, the Guardian and Wards Act 1890, which applies to all communities.
The Guardian and Wards Act 1890 is a complete code defining the rights and liabilities of guardians and wards. It applies to minor children of any caste and creed. However, while approving and declaring a person as a minor's guardian, the court will also consider the minor's personal law. The Guardian and Wards Act 1890 aims to protect the minor child's person and property.
The Family Court Act 1984 provides for the establishment of Family Courts with a view to promote conciliation, and secure speedy settlement of, disputes relating to marriage and family affairs, and for matters connected with them. The Family Courts hear matters relating to marriage, marital breakdown and the welfare of children. These courts are trial courts and are presided over by Additional District Judges which undertake trials and review evidence. The Family Courts follow the Civil Procedure Code.
Marriages in India can also be dissolved by means of annulment. The procedure for annulment is same as that of divorce, except that the grounds for annulment are different from that of divorce. Reasons for annulment are fraud, the pregnancy of wife by a person other than the husband, impotence before the marriage and subsisting even at the time of filing the case. A marriage is automatically void and is automatically annulled when law prohibits it. A voidable marriage is one where an annulment is not automatic and must be sought by one of the parties. Generally, an annulment may be sought by one of the parties to a marriage if the intent to enter into the civil contract of marriage was not present at the time of the marriage, either due to mental illness, intoxication, duress or fraud.
11.2 Divorce Law
Divorce among Hindus, Buddhists, Sikhs and Jains is governed by the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. All civil and inter-community marriages are governed by the Special Marriage Act, 1956. A couple can get a divorce with mutual consent, or either spouse may file for divorce without the consent of the other.
When husband and wife both agree to a divorce, the courts will consider a divorce with mutual consent. For the petition to be accepted, however, the couple should be separated for over a year or two years and be able to prove that they have not been able to live together. Often, even when either husband or wife is reluctant, they still agree to such a divorce because it is relatively inexpensive and not as traumatic as a contested divorce. Matters such as children’s custody, maintenance and property rights could be agreed mutually.
There are three aspects regarding which a husband and wife have to reach a consensus, namely alimony, child custody, and property. As per law, there is no minimum or maximum limit for alimony. The second consideration is custody of the child. Child custody in a mutual consent divorce can also be shared or joint or exclusive depending upon the understanding of the spouses. The third is property. The husband and wife must decide who gets what part of the property. This includes both movable and immovable property. Right down to the bank accounts, everything must be divided.
It is not necessary for it to be fair, so long as it is agreed to by both parties. In case of a contested divorce, there are specific grounds on which the petition can be made, namely cruelty, adultery, desertation, conversion, mental disorder, communicable disease, etc .
11.3 Inheritance Law Related to Hindus, Buddhists, Jains, and Sikhs
The Hindu Succession Act, 1956 is the law that was passed by the parliament of India in 1956 to amend and codify the law relating to intestate or unwilled succession, among Hindus. It applies to all those who practice the Hindu religion as well as those who fall under the term Hindu within the Indian Legal system, including Buddhists, Jains, and Sikhs. It is hailed for its consolidation of Hindu laws on succession into one Act. The Hindu woman's limited estate is abolished by the Act. Any property, possessed by a Hindu female, is to be held by her absolute property and she is given full power to deal with it and dispose of it by will as she likes. The Act was amended in 2005 by Hindu Succession (Amendment) Act, 2005.
A will or testament is a legal declaration expressing the wishes of a person, containing the names of one or more persons who are to manage his estate and provide for the transfer of his property at death. The person who prepares such a will is known as the testator. The distinction exists because if there is no will, or the will is found not to be valid, the property will be divided and transferred as per the rules of intestate succession.
A probate means a copy of the Will, certified under the seal of a competent Court with a grant of administration of the estate to the executor of the testator. It is the official evidence of an executor's authority. After the death of the person concerned, a proceeding may be initiated in court to determine the validity of the will that the testator may have created, known as a probate proceeding, which will satisfy the legal requirements. In most cases, during probate, at least one witness is called upon to testify or sign a "proof of witness" affidavit. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted.
For executing the Will the person must be fully competent. The Will has to be in writing and has to state that the person executing the same is making it out of his own free will and in a sound disposing state of mind. It has to be signed by the executor of the Will and has to be attested by two witnesses. A probate granted by a competent court is proof of the validity of the will, and the right of the executor named in the Will to represent the estate of the deceased.
However, it only establishes the legal character of the Will and the executor and in no way decides upon the manner of distribution of the property, and does not even determine whether the property referred to is in existence.
Law of succession provides for the method of distribution of property (known as devolution) in case the deceased passes away without leaving behind a Will. Dying without leaving behind a will is known as dying intestate.
As a general principle whenever a Hindu died intestate then a legal presumption comes in to force that the property get vested in to legal heir automatically and it belongs to Joint Hindu Family. Hindu Law has four schedule or categories of Legal heirs. First category are direct relatives, second category is second line relative and third category is of agnate that is relatives from father side and forth categories are cognates that is relatives of mother side.
If any Hindu dies intestate and without any relatives as discussed above then the property get vested with the State Government under due procedure of Law.
11.4 Inheritance Law Related to Muslims
There is no concept of ancestral property or rights by birth in Islamic law. Muslim law recognises that persons may leave behind a will, but a will (unless ratified by all the heirs of the person leaving behind the will) is valid only to the extent of one-third of the deceased's property. Insofar as it is valid, it is governed by the regular laws applicable to wills in India.
- A Muslim wife cannot be dispossessed.
- Even though she has to share with other wives if there is more than one wife.
- The widow gets a definite share.
- Mohammedan Law gives the male heirs, the sons, twice the share of the daughters
The residuaries are those who are entitled to the estate, if any, left after the sharers have received their respective shares. Of course, this is only a broad rule and there are several just and equitable exceptions to this rule. Failing any Sharers or Residuaries, the next level of relations who would succeed to the estate of a deceased Muslim male or female, are a class of persons known as Distant Kindred.
11.5 Inheritance Law Related to Christians
Christian Law of Succession is governed by the provisions in the Indian Succession Act, 1925. Section 42 of the Act mandates that if a son dies intestate (without writing a will) and has no lineal descendants (children, grandchildren), his property, excluding his widow’s share, should go entirely to his father. His mother, even if she is alive, will not get a share. The next Section says if the father is already dead at the time of his son’s untimely demise, the assets of the deceased son will not go entirely to his mother. Instead, she would have to share it equally with the dead son’s surviving siblings.
11.6 Laws against Dowry and Domestic Violence
The Indian criminal laws were comprehensively amended to include dowry as a punishable offence. Section 304B was added to the Indian Penal Code, 1860 ("IPC"), which made dowry death a specific offence punishable with a minimum sentence of imprisonment for 7 years and a maximum imprisonment for life.
Dowry is a demand for property of valuable security having an inextricable nexus with the marriage, i.e., it is a consideration from the side of the bride's parents or relatives to the groom or his parents and/or guardian for the agreement to wed the bride-to-be.
Dowry Prohibition Act, 1961 consolidated the anti-dowry laws which had been passed on certain states.This legislation provides for a penalty in section 3 , that if any person gives, takes or abets giving or receiving of dowry, the punishment could be imprisonment for minimum 5 years and a fine more than ₹15,000 or the value of the dowry received, whichever is higher.[
The Act provides the penalty for directly or indirectly demanding dowry and provides for a penalty involving a prison term of not less than 6 months and extendable up to two years along with a fine of ₹10,000. The burden of proving that an offense was not committed is on the persons charged and not on the victim or her family.Under its powers to frame rules for carrying out its objectives under the Act, the government of India has framed the Maintenance of Lists of Presents to the Bride and the Bridegroom Rules, 1985. There are also several state level amendments to the Dowry Prohibition Act.
Protection of Women from Domestic Violence Act, 2005 (D.V Act) was passed in order to provide a civil law remedy for the protection of women from domestic violence in India. The Domestic Violence Act encompasses all forms of physical, verbal, emotional, economic and sexual abuse and forms a subset of the anti-dowry laws to the extent it is one of the reasons for domestic violence. Section 3 of the Domestic Violence Act specifically incorporates all forms of harassment, injury and harms inflicted to coerce a woman to meet an unlawful demand for dowry. Some of the common remedies under the Domestic Violence Act include:
- Protection orders - prohibiting a person from committing domestic violence;
- Residence orders - dispossessing such person from a shared household;
- Custody orders - granting custody of a child; and
- Compensation orders - directing payment of compensation.
11.7 Dealing with Pre-Natal Diagnostics and Termination of Pregnancy
Pre-natal Diagnostic Techniques (PND) are diagnostic or pre-symptomatic tests carried out on a developing fetus. The prenatal diagnostic techniques involve the use of technologies, such as ultrasonography, amniocentesis, chorion villi biopsy, foetoscopy, maternal serum analysis, etc. The law governing the practice of PND in India is provided for in the Pre-Conception and Pre- Natal Diagnostic Techniques Act, 1994 (PC-PNDT Act). The Act was enacted with the intent to prohibit prenatal diagnostic techniques for determination of the sex of the fetus. While it is legally permissible to abort a fetus at risk of serious physical or mental disabilities, as per the Medical Termination of Pregnancy Act, 1971, it is not permissible to select a fetus of a sex which is less likely to suffer from a sex-linked disease. Pre-natal diagnostic techniques can only be used for the detection of the following:
- Genetic abnormalities
- Metabolic disorders
- Chromosomal abnormalities
- Haemoglobinopathies
- Sex-linked disorders.
- Certain other congenital abnormalities and diseases, as may be specified by the Central Supervisory Board
The offences under this Act are cognizable, non-bailable and non-compoundable. The act prohibits the advertisement, including visible representation to that effect, relating to the prenatal determination of sex, in any form, by any person or organization. Contravention of such order, by anyone, shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees. If any qualified person under the Act, who owns or is a part of any Genetic Counselling Centre, or Genetic Clinic, or Genetic Laboratory, contravenes any provision of the Act or rules made thereunder, will face the same penalty as above, and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees.
Any other person who seeks the help/assistance of qualified persons and registered places for the purpose of any procedure prohibited by the Act on any pregnant woman, shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to fifty thousand rupees for the first offence and for any subsequent offence with imprisonment which may extend to five years and with fine which may extend to one lakh rupees. The above penalty does not apply to a pregnant woman who has been compelled to undergo such procedure or selection.
To report an offence under the Act, and file a complaint therewith, one must approach the Appropriate Authority (a District Civil Surgeon/ CMO or Corporation Medical Officer of Health), via a written complaint. The appropriate authority (AA), acknowledges the receipt of the complaint. They are required to take action within 15 days of such complaint and file a complaint to the court of Metropolitan Magistrate or Chief Judicial Magistrate. This can also be done suo moto by the AA.
In certain cases, it can also issue a show-cause notice to the entity against whom the complaint has been made, before filing the complaint in court. Before filing a complaint, the AA should call an Advisory Meeting, and pass a resolution for the filing of case and suspension of registration of centre. They need to ensure all documents are available- statements of accused, visit and inspection report, statement of decoy and witnesses, panchanama of seized material. If the AA takes no action within 15 days, the complainant can go to Court with the acknowledgement receipt.
11. 8 Tackling Sexual Harassment at Workplace
Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013 makes it illegal to sexually harass women in the workplace. It talks about the different ways in which someone can be sexually harassed and how they can complain against this kind of behaviour. The Act defines sexual harassment at the work place and creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.
The Act also covers concepts of 'quid pro quo harassment' and ‘hostile work environment’ as forms of sexual harassment if it occurs in connection with an act or behaviour of sexual harassment. The definition of "aggrieved woman", who will get protection under the Act is extremely wide to cover all women, irrespective of her age or employment status, whether in the organised or unorganised sectors, public or private and covers clients, customers and domestic workers as well.\
Workplace in the Vishaka Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship. However, this Act goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation. Even non-traditional workplaces which involve tele-commuting will get covered under this law.
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: a) Physical contact and advances; b) A demand or request for sexual favours; c) Sexually coloured remarks; d) Showing pornography; e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature. According to this act, every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level. The Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days.
The Complaints Committees have the powers of civil courts for gathering evidence. The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant. The inquiry process under the Act should be confidential and the Act lays down a penalty of Rs 5000 on the person who has breached confidentiality. After inquiry, where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules. The Act requires employers to conduct education and sensitisation programmes and develop policies against sexual harassment, among other obligations. Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to ₹ 50,000.
There are other legal provisions including filing a criminal case under sections of the Indian Penal Code (IPC), the Indecent Representation of Women (Prohibition) Act and/or filing a civil suit. The sections of the Indian Penal Code that can be applicable to sexual harassment (which makes it a criminal case) are as follows:
- Section 234: This clarifies the concept of person causing annoyance as, (a) anybody doing obscene act in any public place, or (b) sings, recites and utters any obscene songs, ballads or words, in or near any public space, etc. A person found guilty of this offense is punished with imprisonment of either description for a term that may extend to three months, or with fine, or with both. This provision is cognisable, bailable and triable by any magistrate.
- Section 354: Whoever assaults or uses criminal force on any woman, intending to outrage her modesty or knowing it likely that he will thereby outrage her modesty, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both.
- Section 509: Whoever, intending to insult the modesty of a woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture is seen by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
Indecent Representation of Women (Prohibition) Act (1987): If an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. containing the “indecent representation of women”, they are liable for a minimum sentence of 2 years. Section 7 (Offenses by Companies) further holds companies where there has been “indecent representation of women” (such as the display of pornography) on the premises, guilty of offenses under this act, with a minimum sentence of 2 years.
A civil suit can be filed for damages under tort laws. That is, the basis for filing the case would be mental anguish, physical harassment, loss of income and employment caused by the sexual harassment.
11. 9 Law Protecting Older Parents
Provisions are mentioned in the Constitution of India for senior citizens of India. Directive principles of state policy talk about these provisions. Article 41 and article 46 are the constitutional provisions for them. Although directive principles are not enforceable under the law, but it creates a positive obligation towards the state while making any law.
Section 20 of the Hindu Adoption and Maintenance Act, 1956, makes it an obligatory provision to maintain an aged parent. Muslim law makes it obligatory for a man to provide maintenance for his father, mother, grandfather and grandmother. There is no personal law for Christian and Parsi for providing maintenance to the aged parents. If the parents want to seek maintenance from their children, they can apply through the Criminal Procedure Code to seek maintenance. Under Section 125 of Criminal Procedure Code, the elder parents can claim maintenance from their children.
A senior citizen including parent who is unable to maintain him/ herself from own earning or out of the property owned by him, is entitled to get relief under Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The Act states that, if the person claiming the maintenance is a parent or grandparent, then he can do so against one or more of his children not being a minor. However if the claimant is a childless senior citizen, then he can do so against his relative. Here ‘relative’ would mean any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death
An application for claiming maintenance can be made before Tribunal. The Tribunal then will issue the notice to the child or relative or other concerned parties. The Tribunal is also empowered to make such interim orders regarding monthly allowances for maintaining the parent or senior citizen, and can ask the child or relative to pay the maintenance amount during the pendency of the original application, as it thinks fit. Also such order has to be made by Tribunal within 90 days from the date of service of the notice. However in exceptional circumstances, the Tribunal may extend such time for a further period of 30 days.
The Tribunal may pass an order directing children or relatives to make a monthly allowance at such monthly rate for the maintenance of such senior citizen or parent, as it thinks fit, to such parent or senior citizen. However, before passing such order the Tribunal has to take care of these points:
- that the children or relatives, as the case may be, have neglected or refused to maintain that parent or the senior citizen concerned.
- that the parent or senior citizen, as the case may be, is unable to maintain himself; and
- that the Tribunal is satisfied with such neglect or refusal by the children or relatives.
The maximum maintenance allowance which may be ordered by such Tribunal should be prescribed by the State Government, but the amount in no case can exceed ten thousand rupees per month. The Tribunal has further been given the power to review its order under Section 10 of the Act. It states that where it is proved that there was any misrepresentation or mistake of fact or a change in the circumstances of any person has to take place, who has been receiving a monthly allowance, then in those situations, the Tribunal is empowered to make such alteration, as it thinks fit, in the allowance for the maintenance. The Tribunal is also empowered to vary or cancel the earlier orders regarding monthly allowances, if the Tribunal considers it fit to do so, in consequences of any decision passed by any competent Civil Courts. In the situations where a senior citizen after the commencement of this Act, has transferred his property( movable or immovable), by way of gift or any such transfer, but the condition that the transferee shall provide him basic amenities and physical needs, is attached with the transfer, and thereafter such transferee refuses or fails to fulfill such condition, such transfer of property shall be deemed to have been made by fraud, coercion or undue influence and the Tribunal can declare such transfer as void.
Before this Act came into existence, the only remedy available to senior citizens in such a cases was to approach the court to ask for the maintenance from the children to whom he had transferred the property but then also such property would be the exclusive property of the transferee and the senior citizen had no right on such property. But by applying the provisions of this Act, a senior citizen can reclaim his property from the transferee.
Laws for Protection of Children
12.1 Introduction
Child protection is the protection of children from violence, exploitation, abuse and neglect. Article 19 of the UN Convention on the Rights of the Child provides for the protection of children in and out of the home. Child protection systems are a set of usually government-run services designed to protect children and young people who are underage and to encourage family stability. UNICEF defines ‘child protection system’ as set of laws, policies, regulations and services needed across all social sectors – especially social welfare, education, health, security and justice – to support prevention and response to protection-related risks.
In India, the National Commission for Protection of Child Rights (NCPCR) is entrusted with the mandate of protection of child rights. It was set up in March 2007 under the Commissions for Protection of Child Rights (CPCR) Act, 2005, an Act of Parliament (December 2005). NCPCR is a statutory body under the CPCR Act,2005 under the administrative control of the Ministry of Women & Child Development ,Government of India. The Commission's Mandate is to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the Constitution of India and also the UN Convention on the Rights of the Child. The Child is defined as a person in the 0 to 18 years age group.
The Commission visualizes a rights-based perspective flowing into National Policies and Programmes, along with nuanced responses at the State, District and Block levels, taking care of specificities and strengths of each region. In order to touch every child, it seeks a deeper penetration to communities and households and expects that the ground experiences gathered at the field are taken into consideration by all the authorities at the higher level. Thus the Commission sees an indispensable role for the State, sound institution-building processes, respect for decentralization at the local bodies and community level and larger societal concern for children and their well-being. Some of the prominents laws regarding child protection includes Protection of Children from Sexual Offences Act 2012, Right of Children to Free and Compulsory Education Act, 2009, Juvenile Justice (Care and Protection of Children) Act, 2000, Child Labour (Prohibition and Regulation) Amendment Act, 2016, etc.
12.2 Defining Vulnerable Children
According to Childline (http://childlineindia.org.in), all children due to their age are considered to be at risk for exploitation, abuse, violence and neglect. Hence along with age, vulnerability is also measured by the child's capability for self-protection. The concept of self-protection is more about the ability of the child to lead a healthy life within a child protection system; the ability to protect themselves or get help from people who can provide protection.
There are two categories of vulnerable children, namely - children in need of care and protection and children in conflict with law.
Children in need of care and protection is defined as a child who comes under the following classification:
- Doesn't have a home or shelter and no means to obtain such an abode
- Resides with a person(s) who has threatened to harm them and is likely to carry out that threat, harmed other children and hence is likely to kill, abuse or neglect the child.
- Is mentally or physically handicapped, or has an illness, terminal or incurable disease and has no one to provide and care for him/her.
- Has a parent or guardian deemed unfit or unable to take care of the child.
- Is an orphan, has no family to take care of him/her, or is a runaway or missing child whose parents cannot be located after a reasonable search period.
- Is being or is likely to be sexual, mentally, emotionally or physically abused, tortured or exploited.
- Is being trafficked or abusing drug substances.
- Is being abused for unthinkable gains or illegal activities.
- Is a victim of arm conflict, civil unrest or a natural disaster
Children in conflict with law are juveniles who have allegedly committed. It refers to any person below the age of 18 who has come in contact with the justice system as a result of committing a crime or being suspected of committing a crime.
In this chapter, we will have discussion on major protection issues which children face today, namely child labour, child marriage, sexual abuse, etc.
12.3 Child Labour
Child labour is an evil socio-economic practice which deprives children of their childhood, and is harmful to their physical and mental development. Poverty, lack of good schools and the growth of the informal economy are considered to be the key causes of child labour in India. Child labour in India is prominent due to cheap wages and accessibility to factories that can produce the maximum amount of goods for the lowest possible price. As per Census 2011, the total child population in India in the age group (5-14) years is 259.6 million. Of these, 10.1 million (3.9% of total child population) are working, either as ‘main worker’ or as ‘marginal worker’. In addition, more than 42.7 million children in India are out of school (http://www.ilo.org/newdelhi/whatwedo/publications/WCMS_557089/lang--en/index.htm).
As per the Child Labour (Prohibition and Regulation) Act, 1986, amended in 2016, a child is defined as any person below the age of 14 and the CLPR Act prohibits employment of a Child in any employment including as a domestic help (except helping own family in non-hazardous occupations). It is a cognizable criminal offence to employ a Child for any work. Children between age of 14 and 18 are defined as "adolescent" and the law allows adolescent to be employed except in the listed hazardous occupation and processes which include mining, inflammable substance and explosives related work and any other hazardous process as per the Factories Act, 1948.
If you have observed that a child labour is employed by someone in your locality, you can file a complaint with the police or the Magistrate. The offence is cognizable, meaning that a police officer can make an arrest or state an investigation without a warrant in case someone is employing a child or adolescent in a hazardous job in violation of the law. Any person who employs a child below 14 or a child between 14 and 18 in a hazardous occupation or process can be punished with jail time of between six months and two years and/or fine between Rs. 20,000 and Rs. 50,000. A person can be punished for all other violations (for example, with respect to maintenance of register, work hours, health and safety conditions) with jail time of up to one month and/ or a fine of up to Rs. 10,000.
12.4 Child Marriage
The definition of child marriage was last updated by India with its Prohibition of Child Marriage Act of 2006, which applies only (a) to Hindus, Christians, Jains, Buddhists and those who are non-Muslims of India, and (b) outside the state of Jammu and Kashmir. For Muslims of India, child marriage definition and regulations based on Sharia and Nikah has been claimed as a personal law subject. For all others, Prohibition of Child Marriage Act of 2006 defines "child marriage" means a marriage, or a marriage about to be solemnized, to which either of the contracting parties is a child; and child for purposes of marriage is defined based on gender of the person - if a male, it is 21 years of age, and if a female, 18 years of age.
Prohibition of Child Marriage Act of 2006, seeks to prevent child marriages by making certain actions punishable and by appointing certain authorities responsible for the prevention and prohibition of child marriages. These persons are responsible for ensuring that the law is implemented. It is also the responsibility of the community to make use of the law. More specifically, under the law solemnisation of child marriages is a cognisable and non-bailable offence. Child Marriage Prohibition Officers (CMPOs) are appointed in some states to prevent child marriages, ensure protection of the victims as well as prosecution of the offenders. The Courts have the power to issue injunction for prohibiting child marriages from taking place.
Prohibition of Child Marriage Act, 2006, under section 11 provides punishment for those who permit and promote child marriages. Hence, it is necessary that every individual who is aware of any child marriage that is going to be conducted or is being conducted or has been conducted, to make sure that he/she does not permit or promote the child marriage by not reporting about it. He/she can be made liable under the present law and also the Indian Penal Code for abetting the offence. Any person can report an incidence of child marriage before or after it has been solemnised. An immediate report needs to be made to: Police, or Child Marriage Prohibition Officer or such persons as may be appointed to assist him/her. A First Class Judicial Magistrate is empowered to take suo moto cognisance of any reliable report of information of child marriage. In case of mass marriages the District Magistrate is also deemed to have the powers of a Child Marriage Prohibition Officer and therefore has the powers to stop or prevent solemnisation of child marriages.
Child marriage is an offence punishable with rigorous imprisonment, which may extend to 2 years, or with fine up to Rs.1 Lakh, or both. Courts can issue injunctions prohibiting solemnisation of child marriages (Section 13, PCMA 2006). The CMPO is empowered to provide support and all possible aid including medical and legal aid to children affected by child marriages (Section 16 (3) (g), PCMA 2006). The adult husband must pay maintenance to the minor girl until her re-marriage. In case the husband is a minor at the time of marriage, his guardian will pay maintenance (Section 4 (1), PCMA 2006). Children born from a child marriage are entitled to custody and maintenance because the law considers such children legitimate for all purposes even after the marriage has been annulled (Sections 5 and 6, PCMA 2006). A District Court is empowered to add to, modify or revoke any order relating to maintenance and custody of children born from a child marriage (Section 7, PCMA 2006).
12.5 Child Sexual Abuse
Sexual abuse is one form of child abuse. It includes a wide range of actions between a child and an adult or older child. Often these involve body contact, but not always. Exposing one's genitals to children or pressuring them for sex is sexual abuse. Using a child for pornography is also sexual abuse. Most sexual abusers know the child they abuse. They may be family friends, neighbors or babysitters. About one-third of abusers are related to the child. Most abusers are men.
If you think a child may have been abused, it's important to report it. Protection of Children from Sexual Offences Act (POCSO Act) 2012 was formulated in order to effectively address sexual abuse and sexual exploitation of children. The act defines a child as any person below eighteen years of age. It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography. It deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority like a family member, police officer, teacher, or doctor.
The Act also casts the police in the role of child protectors during the investigative process. Thus, the police personnel receiving a report of sexual abuse of a child are given the responsibility of making urgent arrangements for the care and protection of the child.
The Act further makes provisions for avoiding the re-victimisation of the child at the hands of the judicial system. It provides for special courts that conduct the trial in-camera and without revealing the identity of the child, in a manner that is as child-friendly as possible. Hence, the child may have a parent or other trusted person present at the time of testifying and can call for assistance from an interpreter, special educator, or other professional while giving evidence. Above all, the Act stipulates that a case of child sexual abuse must be disposed of within one year from the date the offence is reported. The Act also provides for mandatory reporting of sexual offences. This casts a legal duty upon a person who has knowledge that a child has been sexually abused to report the offence; if he fails to do so, he may be punished with six months’ imprisonment and/ or a fine.
12. 6 Children in Conflict with Law
‘Juveniles’ or ‘Children in Conflict with Law’ is a term given to boys or girls who have allegedly committed crimes and are below eighteen years of age. Sec 2 (20) of the new Juvenile Justice Act, 2015 mandates the establishment of Children‘s Court. Sec 2 (26)of the said act also mandates the establishment of the District Child Protection Unit, which is the focal point to ensure the implementation of this Act and other child protection measures in the district. The JJ Act 2015 also mandates the State Government to constitute for every district, one or more Juvenile Justice Boards for exercising the powers and discharging its functions relating to children in conflict with law under this Act.
The JJ Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of First Class not being Chief Metropolitan Magistrate or Chief Judicial Magistrate (hereinafter referred to as Principal Magistrate) with at least three years‘ experience and two social workers selected in such manner as may be prescribed, of whom at least one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class. Where an inquiry has been initiated in respect of any child under this Act, and during the course of such inquiry, the child completes the age of eighteen years, then, the inquiry may be continued by the Board and orders may be passed in respect of such person as if such person had continued to be a child.
The board has to power to direct the Probation Officer, or in case a Probation Officer is not available to the Child Welfare Officer or a social worker, to undertake a social investigation into the case and submit a social investigation report within a period of fifteen days from the date of first production before the Board to ascertain the circumstances in which the alleged offence was committed.
Section 10 (1) of the Act details the process of apprehension of child alleged to be in conflict with law. As soon as a child alleged to be in conflict with law is apprehended by the police, such child shall be placed under the charge of the special juvenile police unit or the designated child welfare police officer, who shall produce the child before the Board without any loss of time but within a period of twenty-four hours of apprehending the child, excluding the time necessary for the journey, from the place where such child was apprehended
Section 12 of the Act talks about bail to a person who is apparently a child alleged to be in conflict with law. When such child is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person, provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person‘s release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision. When such person having been apprehended is not released on bail under Section 12, sub- section (1) by the officer in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board. When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order.
When a child in conflict with law is unable to fulfil the conditions of bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail.
In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub- section (3) of section 18. Board may take the assistance of experienced psychologists or psycho-social workers or other experts. Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973.
Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, the following dispositional orders can be passed:
- Giving the child a firm warning, letting the child go home while simultaneously counselling the parents;
- Ordering the child to attend group counselling sessions;
- Ordering the child to perform supervised community service;
- Ordering the parents or guardians to pay fine.
- Releasing the child on probation. The parents or guardians will have to execute a bond (up to 3 years) which may include surety and be responsible for the child’s behaviour. The responsibility can also be handed over to a ‘fit person’ or ‘fit facility’ which is a recognized person or government organization or NGO which is prepared to accept the child’s responsibility.
- Sending the child to a Special Home for up to three years.
12.7 Right to Education of Children
Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE) is considered a watershed in the history of elementary education (roughly up to 8th standard) in India. The Act incorporates the words ‘free and compulsory’. ‘Free education’ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education. ‘Compulsory education’ casts an obligation on the appropriate Government and local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the 6-14 age group. With this, India has moved forward to a rights based framework that casts a legal obligation on the Central and State Governments to implement this fundamental child right as enshrined in the Article 21A of the Constitution, in accordance with the provisions of the RTE Act.17. Some of the salient features of the act are as follows:
- It makes provisions for a non-admitted child to be admitted to an age appropriate class.
- It specifies the duties and responsibilities of appropriate Governments, local authority and parents in providing free and compulsory education, and sharing of financial and other responsibilities between the Central and State Governments.
- It lays down the norms and standards relating inter alia to pupil teacher ratios (PTRs), buildings and infrastructure, school-working days, teacher-working hours.
- It provides for rational deployment of teachers by ensuring that the specified pupil teacher ratio is maintained for each school, rather than just as an average for the State or District or Block, thus ensuring that there is no urban-rural imbalance in teacher postings. It also provides for prohibition of deployment of teachers for non-educational work, other than decennial census, elections to local authority, state legislatures and parliament, and disaster relief.
- It provides for appointment of appropriately trained teachers, i.e. teachers with the requisite entry and academic qualifications.
- It prohibits (a) physical punishment and mental harassment; (b) screening procedures for admission of children; (c) capitation fee; (d) private tuition by teachers and (e) running of schools without recognition.
- It provides for development of curriculum in consonance with the values enshrined in the Constitution, and which would ensure the all-round development of the child, building on the child’s knowledge, potentiality and talent and making the child free of fear, trauma and anxiety through a system of child friendly and child centered learning.
Children from ‘disadvantaged groups’ and ‘weaker sections’ can get free education in a private school. These terms are explained below. Every private school has to keep 25% of its seats in class 1 for children from ‘disadvantaged groups’ and ‘weaker sections’. The school has to give free education to these children till class 8.
12. 8 Obligation of Police Officers dealing with Child Issues
A Police Officer dealing with Children in Need of Care and Protection should strictly follow the provisions of Juvenile Justice Act, and Rules. He / She should also be conversant with the provisions of Child Labour (Prohibition and Regulation) Act, 1986 and Bonded Labour System (Abolition) Act, 1976, and rules framed under these acts. He / She should also make sincere effort to acquire knowledge of other acts/laws/notifications which recognize and protect rights of children.
A Police Officer while dealing with Children in Need Children in Need of Care and of Care and Protection should always be in plain clothes. All basic amenities and food requirements of child should be taken care of by the police officer during the period child remains in his/her charge. A police officer should be fully aware of the Child Welfare Committee(s), its place and days of sittings as well as of the names, addresses and phone numbers of its individual members.
A list of various governmental and non-governmental organizations (NGO's) working with children in the area should be kept with the SHO and Duty Officer of the concerned police station. The SHO should also have a list of shelter homes/children homes/fit institutions/child helplines, recognized and certified under the JJ Act.
Laws for Protection of Labourers
13. 1 Introduction
Marginalization is the process of pushing a particular group or groups of people to the edge of society by not allowing them an active voice, identity, or place in it. Some individuals identify with multiple marginalized groups, and may experience further marginalization as a result of their intersecting identities. In India poor labourers, dalits and adivasis are the most marginalized sections of the populations. In this chapter we will be discussing about the laws for the protection of such social groups.
13. 2 Labourers
Some of the key laws related to laborers includes the Minimum Wages Act 1948, Industrial Disputes Act, 1947, Workmen's Compensation Act 1923, Unorganised Workers Welfare and Social Security Act 2008, Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, and legal assistance under the NALSA Scheme (Legal Services to the Workers in the Unorganised Sector) Scheme, 2010.
Minimum Wages Act 1948
The Minimum Wages Act, 1948 (the Minimum Wages Act) provides for fixing of minimum rates of wages in certain employments. The minimum wages are prescribed by States through notifications in the State's Gazette under the Minimum Wages Rules of the specific State. In terms of the provisions of the Minimum Wages Act, an employee means (i) any person who is employed for hire or reward to do any work, skilled or unskilled manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed; (ii) an outworker, to whom any articles or materials are given out by another person to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of that other person; and (iii) an employee declared to be an employee by the appropriate Government.
The term "wages" has been defined to mean all remuneration capable of being expressed in terms of money which would, if the terms of the contract of employment express or implied were fulfilled, be payable to a person employed in respect of his employment or work done in such an employment and includes house rent allowance but does not include:
The value of:
- Any house accommodation or supply of light, water and medical attendance; or
- Any other amenity or any service excluded by general or special order of the appropriate Government;
- Any contribution paid by the employer to any personal fund or provident fund or under any scheme of social insurance;
- Any travelling allowance or the value of any travelling concession;
- Any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or
- Any gratuity payable on discharge.
Further, the Minimum Wages Act requires the employer to pay to every employee engaged in schedule employment wages at a rate not less than minimum rates of wages as fixed by a notification without any deduction (other than prescribed deductions, if any).
Automobile engineering units, brick kiln industry, cement working establishments, confectionery and daily products units, food preservation units, construction companies, dal and flour mills, ice factories and cold storage, laundry, cleaning and dyeing plants, oil mills, pottery industries, printing press, stone breaking/stone crushing industry, textile sector, saw mills, private-unrecognised teaching institutions, hospitals & nursing home not carried on by government or local authorities, etc are covered under scheduled employments.
Industrial Disputes Act, 1947
The Industrial Disputes Act, 1947 (the "ID Act") has been enacted for the investigation and settlement of industrial disputes in any industrial establishment.
The Industrial Disputes Act defines "Industrial dispute" as a dispute or difference between workmen and employers or between workmen and workmen, which is connected with employment or non-employment or the terms of employment or with the conditions of labour. Dismissal of an individual workman is deemed to be an industrial dispute.
The ID Act provides for the constitution of the Works Committee, consisting of employers and workmen, to promote measures for securing and preserving amity and good relations between the employer and the workmen and, to that end, endeavours to resolve any material difference of opinion in respect of such matters.
The ID Act provides for the appointment of Conciliation Officers, Board of Conciliation, Courts of Inquiry, Labour Courts, Tribunals, and National Tribunals for settlement of disputes. Another method recognised for settlement of disputes is through arbitration. The Industrial disputes Act provides a legalistic way of settling disputes. The goal of preventive machinery as provided under the Act is to create an environment where the disputes do not arise at all. The ID Act prohibits unfair labour practices which are defined in the Fifth Schedule—strikes and lockouts (except under certain defined conditions and with proper notice). It also provides for penalties for illegal strikes and lockouts and unfair labour practices and provisions regarding lay off and retrenchment as well as compensation payable thereof.
The ID Act provides that an employer who intends to close down an industrial establishment shall obtain prior permission at least ninety days before the date on which he intends to close down the industrial establishment, giving the reasons thereof.
Payment of Bonus Act, 1965
The Payment of Bonus Act, 1965 (the "Bonus Act") provides for the payment of bonus to persons employed in certain establishments in India either on the basis of profits or on the basis of production or productivity and is applicable to every establishment in which 20 or more persons are employed and to all employees drawing a remuneration of less than Rs 10,000. Those employees who have worked for less than thirty days are not eligible to receive bonus under the Bonus Act. The Bonus Act provides for the payment of bonus between 8.33% (minimum) to 20% (maximum). However, for the calculation of bonus, a maximum salary of Rs 3,500 is considered.
Employees Provident Funds and Miscellaneous Provisions Act, 1952
The Employees Provident Funds and Miscellaneous Provisions Act, 1952 (the "EPF Act") provides for the institution of provident funds, pension funds, and deposit-linked insurance funds for employees and applies to all establishments employing 20 or more persons or class of persons. An establishment to which the EPF Act applies shall continue to be governed by this Act, notwithstanding that the number of persons employed therein at any time falls below 20. On account of 2014 Amendment to the said Act, The definition of "excluded employee" has been amended whereby the members drawing wages exceeding Rs 15,000 per month have been excluded from the provisions of the PF Scheme. Accordingly, the wage ceiling for an employee to be eligible for the PF Scheme has been increased from Rs 6,500 per month to Rs 15,000 per month. It further provides that every employee employed in or in connection with the work of a factory or other establishment is required to become a member of the Provident Fund. The 2014 Amendment further lays down the following changes:
- New members (joining on or after 1 September 2014) drawing wages above Rs 15,000 per month shall not be eligible to voluntarily contribute to the Pension Scheme.
- The pensionable salary shall be calculated on the average monthly pay for the contribution period of the last 60 months (earlier 12 months) preceding the date of exit from the membership.
- The monthly pension for any existing or future member shall not be less than Rs 1,000 for the financial year 2014-2015.
- The contribution payable under the Insurance Scheme shall also be calculated on a monthly pay of Rs 15,000, instead of Rs 6,500.
- In the event of death of a member (on or after 1 September 2014), the assurance benefits available under the Insurance Scheme has been increased by twenty percent (20%) in addition to the already admissible benefits.
- Contributions to the Provident Fund are to be made at the rate of 12% of the wages by the employers with the employee contributing an equal amount. The employee may voluntarily contribute a higher amount but the employer is not obliged to contribute more than the prescribed amount. Further, the EPF Act contains provisions for transfer of accumulations in case of change of employment.
Employees' State Insurance Act, 1948
The Employees' State Insurance Act, 1948 (the ESI Act) is a social welfare legislation enacted with the objective of providing certain benefits to employees in case of sickness, maternity and employment injury. In terms of the provisions of the ESI Act, the eligible employees will receive medical relief, cash benefits, maternity benefits, pension to dependants of deceased workers and compensation for fatal or other injuries and diseases. It is applicable to establishments where 10 or more persons are employed. All employees, including casual, temporary or contract employees drawing wages less than Rs 15,000 per month, are covered under the ESI Act. This limit has been increased from Rs 10,000 to Rs 15,000 w.e.f. May 1, 2010. The Government enacted as the Employees' State Insurance (Amendment) Act, 2010 (No.18 of 2010). All the provisions of the ESI (Amendment) Act 2010 (except s 18) have come into effect from June 1, 2010. The salient features of the ESI (Amendment) Act are as under:
- facilitating coverage of smaller factories;
- enhancing age limit of dependent children for eligibility to dependants benefit;
- extending medical benefit to dependant minor brother/sister in case of insured persons not having own family and whose parents are also not alive;
- streamlining the procedure for assessment of dues from defaulting employers;
- providing an Appellate Authority within the ESI Corporation against assessment to avoid unnecessary litigation;
- continuing medical benefit to insured persons retiring under VRS scheme or taking premature retirement;
- treating commuting accidents as employment injury;
- streamlining the procedure for grant of exemptions;
- third party participation in commissioning and running of the hospitals;
- opening of medical/ dental/ paramedical/ nursing colleges to improve quality of medical care;
- making an enabling provision for extending medical care to other beneficiaries against payment of user charges to facilitate providing of medical care from under utilised ESI Hospitals to the BPL families covered under the Rashtriya Swasthaya Bima Yojana introduced by the Ministry of Labour & Employment w.e.f. 1.4.2008;
- reducing duration of notice period for extension of the Act to new classes of establishments from six months to one month;
- empowering State Governments to set up autonomous Corporations for administering medical benefit in the States for bringing autonomy and efficiency in the working.
The employer should get his factory or establishment registered with the Employees' State Insurance Corporation (ESIC) within 15 days after the Act becomes applicable to it, and obtain the employer's code number. The employer is required to contribute at the rate of 4.75% of the wages paid/ payable in respect of every wage period. The employees are also required to contribute at the rate of 1.75% of their wages. It is the responsibility of the employer to deposit such contributions (employer's and employees') in respect of all employees (including the contract labour) into the ESI account.
Payment of Gratuity Act, 1972
The Payment of Gratuity Act, 1972 (the Gratuity Act) applies to (i) every factory, mine, oilfield, plantation, port and railway company; (ii) every shop or establishment within the meaning of any law, for the time being in force, in relation to shops and establishments in a State, in which 10 or more persons are employed or were employed on any day of the preceding twelve months; and (iii) such other establishments or classes of establishments, in which 10 or more persons are employed or were employed on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.
The Gratuity Act provides for a scheme for the payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishments. The Gratuity Act enforces the payment of "gratuity", a reward for long service, as a statutory retiral benefit.
Every employee, who has completed continuous service of five years or more, irrespective of his wages, is entitled to receive gratuity upon termination of his employment, on account of (i) superannuation; or (ii) retirement; or (iii) death or disablement due to accident or disease. However, the completion of continuous service of five years shall not be necessary where the termination of employment of any employee is due to death or disablement.
The gratuity is payable even to an employee who resigns after completing at least five years of service. The gratuity is payable at the rate of fifteen days wages for every year of completed service, subject to an aggregate amount of Rupees ten lacs only.
Factories Act, 1948
The Factories Act, 1948 (the Factories Act) lays down provisions for the health, safety, welfare and service conditions of workmen working in factories. It contains provisions for working hours of adults, employment of young persons, leaves, overtime, etc. It applies to all factories employing more than 10 people and working with the aid of power, or employing 20 people and working without the aid of power. It covers all workers employed in the factory premises or precincts directly or through an agency including a contractor, involved in any manufacture. Some provisions of the Act may vary according to the nature of work of the establishment. Some Major provisions of the Factories Act are explained below:
- Section 11 of the Act provides that every factory shall be kept clean and free from effluvia arising from any drain, privy or other nuisance. Section 13 of the Act focuses on ventilation and temperature maintenance at workplace. Every factory should work on proper arrangements for adequate ventilation and circulation of fresh air.
- Section 18 of the Act specifies regarding arrangements for sufficient and pure drinking water for the workers.
- Section 19 further mentions that in every factory there should be sufficient accommodation for urinals which should be provided at conveniently situated place. It should be kept clean and maintained.
- Section 21 of the Act provides from proper fencing of machinery. And that any moving part of the machinery or machinery that is dangerous in kind should be properly fenced
- Section 45 of the said Act specifies that every factory should have a properly maintained and well equipped first aid box or cupboard with the prescribed contents. For every 150 workers employed at one time, there shall not be less than 1 first aid box in the factory. Also in case where there are more than 500 workers there should be well maintained ambulance room of prescribed size and containing proper facility.
Industrial Employment (Standing Orders) Act, 1946
The Industrial Employment (Standing Orders) Act, 1946 (the IESO Act) is applicable to every industrial establishment wherein 100 or more workmen are employed or were employed on any day of the preceding twelve months. The IESO Act Amis to bring uniform terms and conditions of service in various industrial establishments. The IESO Act requires every employer in an industrial establishment to clearly define and publish standing orders with respect to conditions of employment / service rules and to make them known to the workmen employed by it. The Act further specifies that every employer is required to submit to the Certifying Officer five draft copies of the standing orders which he intends to adopt for his establishment. Further, the IESO Act requires display of standing orders in a prominent place for the knowledge of workers.
Shops and Commercial Establishments Act (of respective States)
The Shops and Commercial Establishments Act(s) of the respective States generally contain provisions relating to registration of an establishment, working hours, overtime, leave, privilege leave, notice pay, working conditions for women employees, etc. The provisions of the Shops and Commercial Establishments Act apply to both white collar and blue-collar employees. IT and IT-enabled services have been given relaxations by various State Governments in respect of the observance of certain provisions of their respective Shops and Commercial Establishments Act.
The Employee's Compensation Act, 1923
The Employee's Compensation Act, 1923 (the EC Act) aims to provide financial protection to workmen and their dependents in case of any accidental injury arising out of or in course of employment and causing either death or disablement of the worker by means of compensation.
This Act applies to factories, mines, docks, construction establishments, plantations, oilfields and other establishments listed in Schedules II and III of the said Act, but excludes establishments covered by the ESI Act.
The Act provides for payment of compensation by the employer to the employees covered under this Act for injury caused by accident. Generally, companies take insurance policies to cover their liability under the EC Act.
Inter-state Migrant Workmen (Regulation of Employment & Conditions of Service) Act, 1979
The Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (the ISMW Act) is an Act to regulate the employment of inter-state migrant workmen and to provide for the conditions of service and for matters connected therewith. The ISMW Act applies to (i) any establishment in which five or more inter-state migrant workmen are employed or who were employed on any day of the preceding twelve months; and (ii) every contractor who employs or who employed five or more inter-state migrant workmen on any day of the preceding twelve months.
For the purpose of the ISMW Act, an inter-state migrant workman means any person who is recruited by or through a contractor in one state under an agreement or other arrangement for employment in an establishment in another state, whether with or without the knowledge of the principal employer in relation to such an establishment.
Maternity Benefit Act, 1961
The Maternity Benefit Act, 1961 (Maternity Benefit Act) regulates the employment of women in certain establishments for a certain period before and after childbirth and provides for maternity benefits and certain other benefits including maternity leave, wages, bonus, nursing breaks, etc, to women employees.
The Maternity Benefit Act, 1961 applies to (a) a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances; (b) every shops or establishments within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed on any day of the preceding 12 months.
Except for s 5A and 5B, the provisions of the Maternity Benefit Act shall not apply to the employees who are covered under the Employees' State Insurance Act, 1948 for certain periods before and after child-birth and for which the ESI Act provides for maternity and other benefits. The coverage under the ESI Act is, however, at present restricted to factories and certain other specified categories of establishments located in specified areas.
The Maternity Benefit Act is, therefore, still applicable to women employees employed in establishments which are not covered by the ESI Act, as also to women employees, employed in establishments covered by the ESI Act, but who are out of its coverage because of the wage-limit.
Under the Maternity Benefit Act, an employer has to give paid leave to a woman worker for six weeks immediately following the day of her delivery or miscarriage and two weeks following a tubectomy operation. The maximum period for which a woman shall be entitled to maternity benefit shall be 12 weeks, of which not more than six weeks shall precede the date of her expected delivery. A pregnant woman is also entitled to request her employer not to give her work of arduous nature or which involves long hours of standing, etc, during the period of one month immediately preceding the date of her expected delivery or any period during the said period of six weeks for which the woman does not avail leave of absence. When a woman absents herself from work in accordance with the provisions of the Maternity Benefit Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence.
Bonded Labour System (Abolition) Act, 1976
The Bonded Labour System (Abolition) Act, 1976 ( Bonded Labour Abolition Act) is a prohibiting legislation which provides for the abolition of the bonded labour system with a view to prevent the economic and physical exploitation of the weaker sections of the society, and matters connected therewith or incidental thereto. The term "bonded labour system" has been defined to mean the system of, forced or partly forced, labour under which a debtor enters or has, or is presumed to have, entered into an agreement with the creditor to the effect that:
- In consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by the document) and in consideration of the interest, if any, due on such advance; or
- In pursuance of any customary or social obligation; or
- In pursuance of any obligation devolving on him by succession; or
- For any economic consideration received by him or by any of his lineal ascendants or descendants; or
- By reason of his birth in any particular caste or community.
The debtor would render, by himself or through any member of his family, or any person dependent on him, labour or service, to the creditor, or for the benefit of the creditor, for a specific period or for an unspecified period, either without wages or for nominal wages.
Section 3 of the Bonded Labour Abolition Act provides that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.
Section 20 of the Bonded Labour Abolition Act provides that whoever abets any offence punishable under this Act shall, whether or not the offence abetted is committed, be punishable with the same punishment as is provided for the offence which has been abetted. For the purpose of this Act, "abetment" has the meaning assigned to it in the Indian Penal Code.
Unorganized Workers Welfare and Social Security Act 2008
This act was enacted to provide for the social security and welfare of the unorganised workers (meaning home-based workers, self-employed workers or daily-wage workers). The act provides for constitution of National Social Security Board at the Central level which shall recommend formulation of social security schemes viz life and disability cover, health and maternity benefits, old age protection and any other benefit as may be determined by the Government for unorganised workers. As a follow up to the implementation of the Act, the National Social Security Board was set up on 18 August 2009
Schemes for Poverty Reduction and Social Development
14. 1 Poverty Alleviation
The poverty alleviation programmes in India can be categorized based on whether it is targeted for rural areas or urban areas. Most of the programmes are designed to target rural poverty as prevalence of poverty is high in rural areas.
Old Age Pension Scheme
The Old Age Pension Scheme came into effect on 15 August 1995. The scheme provides pension to old people who were above the age of 65 (now 60) who could not find for themselves and did not have any means of subsistence. The pension that was given was Rs 200 a month. This pension is given by the central government.. The states contribution may vary depending on the state. The amount of old age pension is Rs. 200 per month for applicants aged 60–79. For applicants aged above 80 years, the amount has been revised to Rs. 500 a month according to the 2011–2012 Budget
National Family Benefit Scheme
The National Family Benefit Scheme is sponsored by the state government. This scheme provides a sum of Rs 20000 to a person of a family who becomes the head of the family after the death of its primary breadwinner. The breadwinner is defined as a person who is above 18 who earns the most for the family and on whose earnings the family survives.
National Maternity Benefit Scheme
National Maternity Benefit Scheme provides a sum of 6000 Rs to a pregnant mother in three installments. The women have to be older than 19 years of age. It is given normally 12–8 weeks before the birth and in case of the death of the child the women can still avail it. The NMBS is implemented by states and union territories with the help of panchayats and municipalities. During 1999–2000 the total allocation of funds for this scheme was 767.05 crores and the amount used was Rs 4444.13 crore. It is for families below the poverty line. The scheme was updated in 2005-06 into Janani Suraksha Yojana with Rs 1400 for every institutional birth.
Annapurna Scheme
Annapurna scheme was started by the government in 1999–2000 to provide food to senior citizens who cannot take care of themselves and are not under the National Old Age Pension Scheme (NOAPS), and who have no one to take care of them in their village. This scheme would provide 10 kg of free food grains a month for the eligible senior citizens. This schemes mostly targets 'poorest of the poor' and 'indigent senior citizens'.
Integrated Rural Development Programme (IRDP)
IRDP in India is among the world's most ambitious programs to alleviate rural poverty by providing income-generated assets to the poorest of the poor. The main objective of IRDP is to raise families of identified target group below poverty line by creation of sustainable opportunities for self-employment in the rural sector. Assistance is given in the form of subsidy by the government and term credit advanced by financial institutions (commercial banks, cooperatives and regional rural banks.) The program is implemented in all blocks of the country as centrally sponsored scheme funded on 50:50 basis by the center and the states.
The target group under IRDP consists of small and marginal farmers, agricultural laborers and rural artisans having annual income below Rs. 11,000 defined as poverty line. In order to ensure that benefits under the program reach the more vulnerable sectors of the society, it is stipulated that at least 50 per cent of assisted families should be from scheduled castes and scheduled tribes.
Furthermore, 40 per cent of the coverage should be of women beneficiaries and 3 per cent of physically challenged persons. At the grassroots level, the block staff is responsible for implementation of the program. The State Level Coordination Committee (SLCC) monitors the program at state level whereas the Ministry of Rural Areas and Employment is responsible for the release of central share of funds, policy formation, overall guidance, monitoring and evaluation of the program
Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA)
This scheme guarantees 100 days now 150 days of paid work to people in the rural areas. The scheme has proved to be a major boost in Indian rural population's income. The objective of the scheme is to augment wage employment opportunities by providing employment on demand and by specific guaranteed wage employment every year to households whose adult members volunteer to do unskilled manual work to thereby extend a security net to the people and simultaneously create durable assets to alleviate some aspects of poverty and address the issue of development in the rural areas.
Ministry of Rural Development is the nodal Ministry for the implementation of MGNREGA. It is responsible for ensuring timely and adequate resource support to the States and to the Central Council. It has to undertake regular review, monitoring and evaluation of processes and outcomes. It is responsible for maintaining and operating the MIS to capture and track data on critical aspects of implementation, and assess the utilization of resources through a set of performance indicators.
Atal Pension Yojana
Atal Pension Yojana is the pension scheme of government. For every contribution made to the pension fund, Central Government would also co-contribute 50% of the total contribution or ₹1,000 per annum, whichever is lower, to each eligible subscriber account, for a period of 5 years. The minimum age of joining APY is 18 years and maximum age is 40 years. The age of exit and start of pension would be 60 years. Therefore, minimum period of contribution by the subscriber under APY would be 20 years or more.
Integrated Child Development Services (ICDS)
ICDS is a government programme in India for children under 6 years of age and their mothers. The following services are sponsored under ICDS to help achieve its objectives:
- Immunization
- Supplementary nutrition
- Health checkup
- Referral services
- Pre-school education
- Nutrition and Health information
For nutritional purposes ICDS provides 500 kilocalories (with 12-15 grams of protein) every day to every child below 6 years of age. For adolescent girls it is up to 500 kilo calories with up to 25 grams of protein every day. The services of immunization, health check-up and referral services are delivered through public health infrastructure.
14.2 Obtaining Documents for Social Development
Caste Certificate
Person who requires Caste Certificate has to fill up the application in the prescribed form available at the Collectors office. Submit the application form along with the required documents.
- Court fee stamp of Rs.5/- is to be affixed on the application.
- School leaving certificate/ extract of birth certificate/ copy of the first page of the service book, if the applicant is a Govt. or semi-Govt. servant.
- Attested copies of the first page and last page of the Ration Card/ extract of the electoral roll/ rent receipt.
In the case of a married woman:
- The married women has to produce school leaving certificate/ extract of her birth certificate/ a copy of the first page of the service book, if the applicant is a Government or semi-Government servant, to prove her caste before marriage.
- Attested copy of the marriage certificate or marriage invitation card.
- Attested copy of the extract of the Govt. Gazette wherein her change of name after marriage is published.
An applicant who has migrated from other States/ Districts has to produce the caste certificate issued to his/her father/ grandfather by the competent authority of that State/District.
Disability Certificate
Disability certificate is necessary to avail benefits related to education, employment or various Government scheme applicable for disable persons. Government is updating its functionality and accuracy in every field; on these lines Government expects that the benefits and rights available for disables should be provisioned to real disables. For this purpose Government has launched ‘(Software for Assessment of Disability, Maharashtra’) SADM certification system and is expected that malpractices will be eliminated by the use of this system.
Conditions that should be satisfied by an individual for a certificate:
- Must be an Indian citizen
- Should possess appropriate medical reports with a detailed explanation of their disability
- The minimum degree of disability should be 40%.
In Mumbai, disability certificates can be obtained at:JJ Hospital, Byculla, for physical and mental disabilities, on Wednesdays (http://www.grantmedicalcollegejjhospital.org/)
The All India Institute for Physical Medicine and Rehabilitation (AIIPMR), Haji Ali, for locomotor or multiple handicaps, on Mondays, Wednesdays, Fridays and Saturdays
(http://www.aiipmr.gov.in/Disability_Certificates.aspx)
Birth Certificate
The birth certificate can be applied by visiting nearest office of Municipal Corporation, which is also the birth certificate issuing authority in Maharashtra. You need to first register the name of child by filling the form that can get from the office by paying Rs 5/-. The cost can range from time to time.
After getting registered, the birth certificate application form can be taken from hospital or from Municipal Corporation office, candidate has to provide all the details regarding name, place where child was born, mother and father name, hospitals name where child was born and residence address. The birth certificate will have a stamp of Municipal officer if applied from such authority or doctor name and hospital stamp if applied through hospital. You need to wait for few days which will informed by the officer to collect the certificate.
Birth Certificate in Mumbai can be applied online by logging into the official website of mcgm.gov.in where you can check whether the name of the ward is registered or not. If the information is correct, then the applicant can fill the application form online. If you are a first time user then register yourself first by entering the following details such as: name, e-mail address and phone number. Then select the state, district, sub-division, taluka, Village/ Town etc. and click on the Registration Button. The Birth Certificate issuance must be reported within 21 days of the event
Income Certificate
To get income certificate, you can approach the concerned Tehsildar office in your area. Your application may be written in plain paper affixing with court fee of 25 paisa. Your form is accepted with
- TC (transfer certificate) from the school or leaving certificate
- Caste certificate copy with attested
- Copy of ration card, electricity bill, water bill, passport for address
- Form 16 of ITR for Govt employees
- Slip for salary for private company employee
- Nagrik Sevak certificate if you belong
Ration Card
An applicant who desires to obtain a ration card has to apply to the Rationing Office of his area in the prescribed form. The Mumbai-Thane Rationing area is controlled by the Controller of the Rationing Office. At the district & Tehsil levels, the District Supply Officer and the Tehsildar respectively are the authorities for the processing of applications.
An application in the prescribed format is to be submitted along with a copy of residential proof such as house rent receipt, bank passbook, electricity/telephone bill, driving licence, identity card, allotment letter towards quarters issued by the Govt. MHADA, CIDCO, and NOC from house owner or a copy of the agreement if the premises is rented. An affidavit that the applicant does not have a ration card, is also required.
In case of transfer of a ration card, the applicant has to produce the certificate of cancellation of the previous ration card from the issuing authority. For the addition of a child's name in the existing ration card, a copy of the birth certificate of the child whose name is being added is required. Similarly, to add spouse's name, the certificate of deletion of the name of the spouse from the previous ration card is required
Aadhar Card
An Aadhaar card is a 12-digit unique number issued by the Government of India. Modelled on similar offerings across other countries, the Aadhaar card is issued to resident Indians. The aim behind the creation of the Aadhaar card is to enable better regulation and distribution of public welfare scheme services. Applying for an Aadhaar card is a simple and seamless process as the government has streamlined the entire procedure.
The very first step in applying for an Aadhar card, assuming that you have all the document you’ll need, will be to book the appointment and then visiting the enrolment centre. You can book an appointment by visiting the official website of UIDAI. Submit the Aadhaar enrolment form along with the identity proof documents (proof of age, proof of address, proof of identity).
The submitted documents will be verified against the information entered in the application form, after which the individual’s biometrics will be taken. The biometric process includes taking an iris scan and all ten fingerprints. This is not done for applicants below the age of 5 years.
An acknowledgement slip will then be generated which will contain the applicant’s Aadhaar enrolment ID. The applicant will receive their Aadhaar card by post at the address mentioned on the application form.
After the procedures at the enrolment centre, applicants will receive an enrolment ID which can be used to check the status of Aadhaar. To check the status, one can follow these steps:
Step 1. Go to the official website UIDAI
Step 2. Click ‘Check Aadhaar status’ and enter the enrolment number
Step 3. The applicants have to submit a security code.
Step 4. Click the ‘check status’ button.
Step 5. The status of the applicant’s Aadhaar card will be shown on the screen.
In case, the applicant has not received his/her Aadhaar card via mail which takes up to 90 days; the UIDAI provides online service to download and print the soft copy of Aadhaar card which is accepted everywhere.
Voter ID-Card
The Chief Electoral Officer in Maharashtra has introduced a process of online applications for registering for a voter’s identity card.
The procedure to apply for one have also been simplified, making it convenient for individuals to apply no matter where they are. This system also helps save time since they do not have to visit the Electoral Office to collect the necessary forms. The online process for applying for a voter ID card in Maharashtra is a simple one, as described below:
- Visit the Chief Electoral Officer of Maharashtra’s website (www.ceo.maharashtra.gov.in) at and select the “Online Voter Registration” option from the tab.
- A page will open up with a list of forms and their descriptions. If you are registering as a new voter, click on Form 6.
- Fill in the details requested in the form that will be displayed.
- Upload the necessary documents (photograph, address proof, identity proof) along with the form and click “submit”. You could also fill in a portion of the form and save it to be completed later.
- If you have filled in all the information as requested, you will receive an application number, which you can use to track the status of your application.
- Once you have submitted the form, the details will be verified by a Booth Level Officer (BLO) who will visit your home.
- On successful verification of the details submitted by you, you will be notified and your voter ID card will be sent to your address by post.
The procedure for applying for a voter ID card offline is mentioned below:
- Visit the nearest Electoral Office to your residence and request for Form 6, which is the form to register a new voter in the electoral rolls.
- Enter all the details and submit the form along with the required supporting documents to the Electoral Office.
- You could also submit the form at the nearest specially designated Voter Help Centres, the list of which is available on the website.
- Once submitted, a Booth Level Officer will make a visit to your home to verify the details and documents submitted by you.
- After successful verification, you will be notified once your application has been processed and will receive your voter ID card through the post at the address mentioned in the application form.
Documents to be Submitted for Voter ID Card Application:
- Recent passport sized photographs
- Proof of age- for applicants between the ages of 18 and 21 years (school certificate/birth certificate/passport/Aadhaar card/PAN card/bank pass book/driving licence etc)
- Proof of residence (passport/driving licence/Aadhaar card/ration card/recent utility bills/bank or post office passbook)
Passport
Applying for a passport entails booking an appointment at the Passport Seva Kendra (PSK) or passport center which is done by logging into the website viz. www.passportindia.gov.in, filling and submitting the application form and paying the passport fee online. Once you schedule, pay and book the passport appointment, you will have to print out the ARN receipt and visit the PSK to process your application.
14.3 Information as Power
Information is data that is accurate and timely, specific and organized for a purpose, presented within a context that gives it meaning and relevance, and can lead to an increase in understanding and decrease in uncertainty. Information is valuable because it can affect behavior, a decision, or an outcome. For example, if a manager is told his/her company's net profit decreased in the past month, he/she may use this information as a reason to cut financial spending for the next month. A piece of information is considered valueless if, after receiving it, things remain unchanged.. (http://www.businessdictionary.com/definition/information.html)
During Lord Curzon’s times, the Indian Official Secrets Act (1904) was enacted mainly to restrict the freedom of the press. This act was replaced with Official Secrets Act, 1923 to govern all matters of secrecy and confidentiality in governance in India.
The tendency of secrecy has been furthered by Civil Service Conduct Rules, 1964, which prohibit the communication of an official document to anyone without authorization. Further, Section 123 of the Indian Evidence Act, 1872 prohibits giving of evidence from unpublished official records without the permission of the Head of the Department, who has abundant discretion in the matter. A major contributor to the secrecy culture in India is the tendency to classify information even where such classification is clearly unwarranted.
Right to Information Act, 2005 is an Act to provide for setting out the practical regime of right to information for citizens and replaces the erstwhile Freedom of information Act, 2002. Under the provisions of the Act, any citizen of India may request information from a "public authority" (a body of Government or "instrumentality of State") which is required to reply expeditiously or within thirty days. The Act also requires every public authority to computerise their records for wide dissemination and to proactively certain categories of information so that the citizens need minimum recourse to request for information formally.
The Act specifies that citizens have a right to
- request any information
- take copies of document
- inspect documents, works and records
- take certified samples of materials of work
- obtain information in form of printouts, diskettes, floppies, tapes, video cassettes 'or in any other electronic mode' or through printouts.
A Public Information Officer (PIO) is the person responsible in a department for receiving RTI applications, and sending responses, or rejecting applications if applicable. PIO is liable for penalty of Rs 250 per day in case of delay beyond 30 days, or even disciplinary action if information is delayed or denied on no just grounds. Constituents of an RTI application includes:
- Name and address of applicant.
- Name and address of PIO
- Particulars of information required
- Postal order, draft, cash etc
How to go about solving a problem using RTI
- State a personal or public problem area which you need to solve.\
- Find the department responsible for that area.
- Find the address of PIO responsible for that area.
- Draft an RTI application addressed to PIO.
- Enclose a postal order (of Rs 10 in most cases) addressed to PIO and send letter by registered or speed post to the PIO. Postal order is most convenient since it can be purchased in bulk at a post office, and then one can file RTIs one by one.
6. Wait for 30 days for response. If response is not received within 30 days or rejected, you can file appeal
Project Work
1. Students should visit nearby police station, court, prison, etc and understand the structure of work from the office in charge.
2. Students also visit law libraries, bar associations and para legegal social workers to understand the work of NGOs and law officers.
3. As a group of students, select a socio-legal issue, and then find important judgements and legal opinion from All India Reporter (AIR) Supreme court cases (SCC) etc. There can also refer Manupatra, or indiacode.nic.in to find all the acts of parliament.
All these three assignments are part of the project work.
About Content Writers
Dr. Ronald Yesudhas is a social work educator. His research and consultation interests are in the field of nonprofit management, social intervention, and social work education.
Dr. Laavanya Vinayagaswami is social work practitioner and researcher. Her expertise is in the field of child and adolescent mental health.
Mr. Ravindra Vaidya is social work practitioner and Director of VARHAD, an NGO working in the CJS. He dedicated his life to work for crime prevention, reformation of the offender (both under trial & convicted) and re-integration of prisoners with the families and community.