RIGHTS OF WOMEN AND CHILDREN IN INDIA
Deep-rooted within the culture of India is the fierce egalitarianism that truly wants to come out, yet repetitive disruptive and negative behaviour of our people that stops this form of living to develop and flourish in our society. Women and children undeniably face multiple difficulties that are inherent in our social structure. Some of the complications can be curtailed by legal provisions in favour of the people. Indian law has contributed their share (which still needs to be improved and publicly taught, but giving credit where it is due) in giving provision to people of their rights.
We will be looking at legislations that focus to help primarily children and women.
CHILDREN RIGHTS
1.1 Juvenile Justice Care and Protection of Children Act 2015
The Juvenile Justice Care and Protection Act 2015 was enacted to amend the law related to children found to be in conflict with the law and children in need of care and protection. The key reason behind enactment of this Act was an increased number of crimes, particularly rape, by juveniles between the age of 16-18 years. In the years 2011 to 2014, more than 54% of the rapes were done by juveniles. Hence, a need was felt to revise the existing juvenile laws.
The Act aimed at adopting a child-friendly approach in the adjudication and disposal of matters[1]. It has come into force from January 15, 2016, and repeals the Juvenile Justice (Care and Protection of Children) Act, 2000. Some of the positive changes encompassed in the Act are as follows:
● [Section 12]- When a child is alleged to have committed a bailable or non-bailable offence, he has the right to be released on bail with or without surety or placed under the supervision of a probation officer.
● [Section 14(4)]- The Act has categorised the offences into three categories, namely, petty, serious and heinous offences. The inquiry into petty offences of a juvenile can be terminated if the proceedings are not completed even after six months.
● [Section 21]- No child can be awarded the death penalty or life imprisonment without the possibility of release. However, in case of certain heinous offences, a juvenile can be tried as an adult.
● [Section 3 (iii)]- Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child’s views shall be taken into consideration with due regard to the age and maturity of the child.
● [Section 59]- If the adoption of an orphaned, abandoned or surrendered child did not take place within 60 days of the child being declared legally free for adoption then inter-country adoption is permitted.
● [Section 19(1)(i)]- The right to a fair trial of a child is emphasized in the Act, considering the special needs of the child, the tenets of a fair trial and maintaining a child-friendly atmosphere.
1.2 Protection of Children from Sexual Offences Act, 2012
The Protection of Children from Sexual Offenses Act (POCSO) came into force on November 14, 2012, to protect the children against offences like sexual abuse, sexual harassment, pornography and to facilitate adequate legal machinery by establishing special courts for such matters[2]. The absence of any stringent legislation for effectively tackling heinous crimes such as sexual exploitation and sexual abuse of children birthed the commencement of POCSO Act. The positive changes made by the Act are as follows:
● [Section 24]- The statement of a minor must be recorded at his residence or any other place chosen by him in the presence of a person he trusts. No child can be detained in the police station in the night for any reason.
● [Section 27]- The medical examination of a child should be conducted in the presence of the parent of the child or in any other person in whom the child reposes trust or confidence. In case the victim is a girl child, the examination shall be conducted by a woman doctor.
● [Section 33]- In appropriate cases, along with the punishment to the offender, a child may be awarded compensation for the mental trauma caused to him or for immediate rehabilitation of the child.
● [Section 40]- The family or guardian of the child will be entitled to legal counsel of their choice for any offence under this Act.
● [Section 36]- The Court has to ensure that the child does not come in contact with the accused at the time of recording of evidence.
2. RIGHTS OF WOMEN
2.1 Muslim Women (Protection of Rights on Marriage) Act, 2019
The Muslim Women (Protection of Rights on Marriage) Act, 2019 was notified in the Gazette of India on the 31st of July 2019. It was enacted retrospectively from the 19th of September, 2018. The Hon’ble Supreme Court, in the case of Shayara Bano v. Union of India, declared triple talaq, or talaq-e-biddat[3], to be unconstitutional and therefore, illegal. This judgement and the subsequent legislation is landmark in protecting the rights of Muslim women in the country. By including provisions regarding the entitlement of maintenance or the custody of minor children, this act has immense potential to be beneficial to Muslim women in the country. After the enactment of this act, the Union Minister of Minority Affairs, Mukhtar Abbas Naqvi, said that there had been an 82% decline in the number of triple talaq cases in India.
The main aim of the act is to protect the rights of married Muslim women in the country. A short but comprehensive act, it has proved to be a progressive move that will benefit Muslim women immensely. A few provisions of the act have been detailed below.[4]
● [Section 2(c)] of the Act specifically defines talaq to be talaq-e-biddat. This is important as it helps prevent any sort of misinterpretation.
● [Section 3]: Declares that the pronouncement of talaq by a Muslim husband upon his wife shall be void and illegal. This includes words either spoken or written or in electronic form or in any manner whatsoever.
● [Section 4]: Provides that any Muslim husband who pronounces talaq shall be liable for imprisonment up to 3 years and be liable for a fine.
● [Section 5]: Provides that a married Muslim woman upon whom talaq is pronounced will be entitled to receive subsistence allowance for her and dependent children.
● [Section 6]: The section details that the wife upon whom talaq has been pronounced shall be entitled to custody of minor children.
● [Section 7(c)]: It provides that no person who has been accused of this particular offence would be eligible for bail unless the Magistrate is satisfied that there are reasonable grounds for bail to be granted to that person. The Magistrate would judge upon the matter after the filing of an application by the accuses and after hearing the married Muslim woman upon whom talaq had been pronounced.
2.2 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was published in the Gazette of India on the 22nd of April, 2013. The Supreme Court of India defines ‘sexual harassment as any unwelcome, sexually determined physical, verbal, or non-verbal conduct.’ The Vishaka Guidelines[5], a set of procedural guidelines, are used in cases of sexual harassment against women employees in India.
Data published by the Ministry of Women and Child Development shows the number of reported cases of sexual harassment in the workplace registered in India jumped 54% from 371 cases in 2014 to 570 in 2017. This shows the effect that the act has had. Giving a medium to women being sexually harassed at their workplace to lodge complaints about it is extremely significant.[6]
The protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women. A few significant provisions of this act are:
● [Section 3]: Decrees that women shall not be subject to sexual harassment at their workplace. Provides circumstances which may qualify to be sexual harassment
● [Section 4] – Section 8: Details the constitution and working of the Internal/Local Complaints Committees
● [Section 9]: Lays down that complaints have to be filed within 3 months and in writing
● [Section 9]: Provides that before an inquiry is initiated, steps may be taken to settle the matter between the aggrieved woman and the respondent. This has to be done at the request of the aggrieved woman.
● [Section 19]: Lays down the duties of an employer.
● [Section 26]: The section dictates the penalties that may be charged for non-compliance with the law.
REFERENCES
1.RAI, H., & SINGH, S. (1976). OMBUDSMAN IN INDIA: A NEED FOR ADMINISTRATIVE INTEGRITY AND RESPONSIVENESS. The Indian Journal of Political Science, 37(3), 43-63. Retrieved October 4, 2020, from http://www.jstor.org/stable/41854746
2.https://wcd.nic.in/sites/default/files/POCSO%20Act%2C%202012.pdf
3. https://indiankanoon.org/doc/115701246/
4.http://egazette.nic.in/WriteReadData/2019/209473.pdf
5.http://www.nitc.ac.in/app/webroot/img/upload/546896605.pdf
6. http://legislative.gov.in/sites/default/files/A2013-14.pdf