Protection of Women from Domestic Violence Act, 2005

How did the act come into force?
In this era of the 21st century, where we see the position of status of women has changed drastically. No more she is confined to the four walls of her household. However there still exist some areas wherein the situation is not like. To overcome these problems we need law. There have been many attempts by the legislature in the past to bring in enactments for the protection of the rights of women. Despite of these legislations there is no legislation which particularly deals with rights of women against domestic violence. But what renders women powerless now is that in the absence of legislation defining a marital household.

So now we should try to understand what exactly domestic violence is and it is a very important question, which needs to be answered in right spirit, where a woman is forced to endure repeated domestic violence so as not to be thrown out of the house. As understood in general sense, domestic violence is violence that occurs within the private sphere, generally between individuals who are related through intimacy, blood or law. Despite the apparent neutrality of the term, domestic violence is nearly always a gender-specific crime, perpetrated by men against women. Thus any domestic violence law should ideally put a stop to violence, give protection against future abuse and use punitive measures to combat continued domestic violence.

In 1992, Lawyers Collectively drafted and circulated a Bill on domestic violence. This was widely circulated amongst women's groups and organisations including the National Commission for Women (NCW). In 1994, NCW came out with its draft Bill on domestic violence, which was vehemently criticized by women's organisations. By this time, most women's groups were united towards the need for a law on domestic violence. And they saw this as a way in which the State would issue a statement, recognizing that half its citizenry faces a peculiar kind of gender-based violence.

In 1999, the Lawyers Collective came out with its draft law on domestic violence after nation-wide consultations with many women's groups. Drafted in accordance with the UN Framework for Model Legislation on Domestic Violence, this bill had the broad support of the women's movement to its major provisions. After much pressure from women's groups, the Government of India introduced a Bill on domestic violence in the Lok Sabha, titled 'The Protection From Domestic Violence Bill 2001'.

By the time various deliberations were going on, great need was felt to such legislation in effect. The above mentioned defects were remedified and thus the act was finally passed. Ministry of Women and Child Development had issued a notification to bring it into force from 26th October, 2006. The Act was passed by the Parliament in August 2005 and assented to by the president on 13th September, 2005. But implementation was pending as detailed consultations were required with the State and other agencies for framing the rules. The Ministry has simultaneously issued another notification laying down the rules framed for the implementation of the Act. These rules may be called "The Protection of Women from Domestic Violence Rules, 2005". These rules provide for, among other things, appointment of protection officers, service providers and counselors. Action can be taken in the event of the respondent breaching the protection order passed by the Magistrate in favour of the aggrieved woman, which is also provided in these rules.

Passing of this enactment pertaining to domestic violence was the first significant attempt to recognize domestic abuse as a punishable offence, to extend its provisions to those in live-in relationships, and to provide for emergency relief for the victims, in addition to legal recourse.

Often, the violence is directed not only against the woman but is intended to cut off all her support structures, deny access to essential services and to withhold a woman's own property or children in an attempt to blackmail. The most obvious way of achieving this aim is to throw the woman out of the household. A household where the aggrieved person lives/lived in a domestic relationship, either singly or along with the respondent is a shared household. Shared household also includes a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or person aggrieved has any right, title or interest in the shared household.

Section 2 of the act defines domestic violence as “any act of physical, mental or sexual violence actually perpetrated or an attempt of such violence as well as the forcible restriction of individual freedom and of privacy, carried out against individuals who have or have had family or kinship ties or cohabit or dwell in the same home”.

Thus this section provides protection against any act /conduct /omission /commission that harms or injures or has the potential to harm or injure, and it will be considered as 'domestic violence'. Under this, the law considers physical, sexual, emotional, verbal, psychological, and economic abuse or threats of the same. Even a single act of commission or omission may constitute domestic violence. Now, women do not have to suffer a prolonged period of abuse before taking recourse to the law. This legislation has widened the scope of domestic violence and now it can be broadly related to human rights. In addition to this, the interpretation of the fact that whether the act would come under the ambit of domestic violence or not is not left solely on the discretion of the judges and the cat itself provides with the criteria’s.

This wide definition of domestic violence - physical, mental, economical and sexual, thus brings under its purview the invisible violence suffered by a large section of women and entitles them to claim protection from the courts.

The law applies to a domestic relationship in a household. The meaning of a shared household has been discussed above so we would look into the aspect of domestic relationship. The law recognizes live-in relationships. Thus, if a woman is living with a man who abuses her, she can take recourse to the provisions of this law even though she is not married to him. Accordingly any relationship between two persons who live, or have at any point of time lived together in the shared household, is considered a 'domestic relationship'. This includes relations of consanguinity, marriage, or through relationships in the nature of marriage, adoption, or joint family thus, 'domestic relationships' are not restricted to the marital context alone. The law also protects women in fraudulent or bigamous marriages, or in marriages deemed invalid in law. It empowers women to file a case against a person with whom she is having a 'domestic relationship' in a 'shared household', and who has subjected her to 'domestic violence'.

S. 4. In cases where data exists showing a “direct and imminent threat” to the life or health of the victim, then an application with the police authorities is filled pursuant to section 76 of the Ministry of Interior Act for emergency protection. This application is then forwarded to the regional Court of place where the victim resides and thus the victim has the right to refer to the court to seek protection. The victim can also ask for medical examination and get a document in writing establishing any traces of violence.

S. 5 of the act deals with the Implementation aspect. In order to stop domestic violence, the victim has various alternatives which can be implemented by an order of the court. These remedies may vary from refraining him from doing. Also an order for removing the respondent from the common dwelling-house for a period specified by the court; or prohibiting the respondent from getting in the vicinity of the home or places of her social recreation can be made. She can even claim for temporarily relocation of the residence along with her child, or any other thing of similar nature. This is a temporary relief which may extend up to a period which may range from 1 month to 1 year as specified by the court. Even fine can be imposed of an amount specified in the act.

Further as per section 7 of the Act, the interim order of any of the above shall be passed if any litigation involving any of them based on a provision of the Family Code or of the Child protection Act is pending, even then they shall be competent to impose a protection measure at any stage of the proceeding. The DVA provides the scope for protective injunctions against violence, dispossession from the matrimonial home and alternate residence. It also provides the scope for claiming economic protection, including maintenance.

Major rights recognised under this law.
One of the most important features of the Act is the woman’s right to secure housing. The Act provides for the woman’s right to reside in the matrimonial or shared household, whether or not she has any title or rights in the household. This right is secured by a residence order, which is passed by a court. These residence orders cannot be passed against anyone who is a woman. Even if she is a victim of domestic violence, she retains right to live in 'shared homes' that is, a home or homes she shares with the abusive partner. The law provides that if an abused woman requires, she has to be provided alternate accommodation and in such situations, the accommodation and her maintenance has to be paid for by her husband or partner. The law, significantly, recognizes the need of the abused woman for emergency relief, which will have to be provided by the husband.

A woman cannot be stopped from making a complaint/application alleging domestic violence. She has the right to the services and assistance of the Protection Officer and Service Providers, arranged under the provisions of the law. A woman who is the victim of domestic violence will have the right to the services of the police, shelter homes and medical establishments. She also has the right to simultaneously file her own complaint under Section 498A of the Indian Penal Code.

Guarantees safety How does the law ensure that a wife who takes legal recourse in the event is not intimidated or harassed?
An important addition is that, law ensures that an aggrieved wife, who takes recourse to the law, cannot be harassed for doing so. Thus, if a husband is accused of any of the above forms of violence, he cannot during the pending disposal of the case prohibit/restrict the wife's continued access to resources/ facilities to which she is entitled by virtue of the domestic relationship, including access to the shared household. In short, a husband cannot take away her jewellery or money, or throw her out of the house while they are having a dispute.

Proceedings to impose protection measures against domestic violence
Section. 8 of the act has widened the scope. It provides for the setting up and function of Protection Officers. These officers, to be appointed by state governments, will be under the jurisdiction and control of the court, and will be responsible to the court for monitoring the cases of domestic abuse. The PO will assist the court in making a Domestic Incident Report or an application for a protection order on behalf of the aggrieved woman and/or child. POs will ensure that aggrieved people are provided legal aid, medical services, safe shelter and other required assistance. POs will ensure that necessary information on service providers is provided to the aggrieved woman, and that orders for monetary relief are complied with. Importantly, the PO can be penalised for failing/refusing to discharge his duty, with the proviso that prior sanction of the state government is required. Service Providers are a vital tool in the implementation of this act. Service Providers, are private organisations recognised under the Companies Act/Societies Registration Act. They will have to register with the state government as a service provider to record the Domestic Incident Report and to get the aggrieved person medically examined.

Also section 8 provides as to who can make an application. Here also a broad view has been taken. This application or compliant can be made not only by the victim but can be made even by sibling or by a person who is a relative to the victim or at the request of the Director of the Social Assistance Directorate, and in such case court shall, ex officio, involve the victim as a party.

But as per section 9 any person doing so i.e. making compliant shall have to provide with the details like; names, the address, and the personal ID number, telephone and fax number a description of the facts and circumstances under which domestic violence occurred; and finally has to sign the document. S. 10 of the Act provides that the application or request shall be filed within one month as from the date on which the act of domestic violence occurred and it is to be filed at the nearest local police department for which no costs shall be charged.

The Service Providers will among other things ensure that the aggrieved person is provided accommodation in a shelter home, if she so requires. A Service Provider is protected for all actions done in good faith, in the exercise of the powers under this Act, towards the prevention of commission of domestic violence they are, thus, protected by law and cannot be sued for the proper exercise of their functions. The new law, thus, recognises the role of voluntary organisations in addressing the issue of domestic violence. NGOs working for women's rights can now register as Service Providers under the Act.

Non-bailable Offence:
The Act provides for breach of protection order or interim protection order by the respondent as a cognizable and non-bailable offence punishable with imprisonment for a term which may extend to one year or with fine which may extend to twenty thousand rupees or with both. Similarly, non-compliance or discharge of duties by the Protection Officer is also sought to be made an offence under the Act with similar punishment.

Comparison of present statute with earlier legislations
Act is significant because for the first time the term ‘domestic violence’ has been widened in meaning and scope from the culture specific restriction of ‘dowry deaths’ and penal provisions to positive civil rights of protection and injunction. The most crucial test, however, lies in implementing the Act. This is yet another, pro-women legislation as many of the previous legislations regarding protection of women like amendments to rape and anti-dowry laws as well as the Family Courts Act have not given their best results as it was expected of.

Under the provisions of the Family Courts Act, the jurisdiction for claiming maintenance was shifted from the Magistrates’ Courts to the Family Courts. It made better sense to club together divorce and maintenance proceedings and locate them under one roof. The woman would be saved the trouble of running from one court to the other to claim her dues and enforce her rights. There were suggestions that even proceedings under Section 498A of the Indian Penal Code (cruelty to wives) should be transferred to the family court. The underlying presumption was that a family court would be better equipped to deal with maintenance claims of a civil nature. But with the DVA there is a reversal of this trend. Under the new Act, the jurisdiction reverts back to the Magistrates’ Court even in places where family courts have been set up. In certain cases essential ceremonies were not performed or that the man or the woman has an earlier subsisting marriage will now be able to seek relief. The invalidity of a marriage can no longer be used as defence by the man to dispossess or deny maintenance to this vulnerable section of women.

Till 2005, remedies available to a victim of domestic violence in the civil courts (divorce) and criminal courts (vide Section 498A of the Indian Penal Code) were limited. There was no emergency relief available to the victim and also relationships outside marriage were not recognized.

DEMERITS
Family is the basic unit of society and as such should be strengthened. It is entitled to receive comprehensive protection and support. In different cultural, political and social systems, various forms of the family exist. The rights, capabilities and responsibilities of family members must be respected. In India this act has been adopted from US Act. In that regards the point that I want to put forth here is that law can be the same but not the situations. In India firstly family is considered to be a sacred institution and same applies for marriage as well. We have seen that lengthy procedure exists in case of divorce where a period of 1 year is given as cooling period. Moreover there is a provision of conciliation as well. But this provision is not here in this act.

There can be arrest on mere compliant by the women and there is no investigation which is conducted prior to that and they do not foresee the after effects of such action like arresting and putting a person in jail, even before trial has begun, amounts to prejudging and punishing the accused without due process. In such situation many of the complaints are made to take revenge or teach a lesson. Abuse of law is done by women, who invoke frivolous proceedings against their husband for the purpose of harassment. The law, which was enacted to protect women from dowry harassment, is being used by thousands of unscrupulous women to legally terrorize the husband and his family for extortion or in other words so to say to legally blackmail innocent husband and in-laws for money. Thus it has victimized countless innocent women related to the husband’s family. Since there are no legal repercussions of filing a false case, more and more women use this law to facilitate divorce and to make the most of a failed marriage.

The fact is that majority of cases on domestic violence are actually not reported. Contrary to this the other fake complaints are made are registered to harass the innocent family members. Moreover there can be some distinction with regard to rural and urban women, but mostly people do have knowledge of their rights and accordingly they use them for their own benefits. Many a times it may also happen that the family members use the provisions for advancing money from the other side. So in this case problem arises as to how would one know which one is a bona fide compliant and which one is not. Although it is not possible to practically eliminate these kinds of problems. However the party who is adversely affected can be given relief if we had a provision of constitution of an agency which would essentially work to check whether the complaints are frivolous or not. There is no provision of penalty or punishment in case of a frivolous compliant, but even the above mentioned point is taken into consideration then even the other party can be given a chance of hearing.

Suggestion: the legislature should instead have made a provision which is gender neutral, meaning thereby the same should be the punishment if a woman tries to harass any of the family members. But such an important point has not been considered by the law makers. Thus the law should be both sided.

It is not always a man's fault when there is a distressed marriage. It is so unfortunate that our laws are always biased to one side. Where are the brilliant people who analyze the consequences and pros and cons of an act before it gets passed. Now in this case if the wife approaches the police referring to the DVA, where she is the problem creator, then how would the police and court and many other great named woman organizations react. Generally everyone will be in favour of the wife and not to the husband. The law is one sided and in the present day urban environment.

Apart from the above mentioned drawbacks, there could also be other problems such as; funding which could be a major drawback for the effective implementation of such pro-women legislations. Thus the authorities should also keep in mind the objectives envisaged by this act as they are entrusted with the job of implementation.

In a country such as ours, with such a huge population and where the systems often do not work, how reasonable would it be to expect such a legislation to work? The bodies of the Executive branch shall select and train the persons in charge of protection and the natural and legal persons registered by virtue of section 18(2) and (3) of the Social Assistance Act shall work jointly to provide protection to the victims of domestic violence and aim to implement the programme as per section.5The government has passed the law; it now needs to put in place the mechanism of implementation. To this end, the government has to provide funding to encourage the registration of Service Providers who will need the protections of this new law. The government will also have to initiate a widespread campaign for public awareness. It will also need to implement training programs to sensitize the police, media and judiciary to the dimensions, scope and functioning of this new law.

There should be more publicity about this Act to increase awareness that it is possible for women to complain not only against physical but also emotional and psychological abuse. A lot of women today are willing to seek help provided they can do it under conditions of dignity and with some assurance that they will get a fair deal and justice in a reasonable period of time. What is needed is more publicity about this Act to increase awareness among women that it is possible to complain not only against physical but also against emotional and psychological abuse, and to make the complaint forms easily available.

Commercial Sex Workers

The commercial sex worker has been a universal being throughout civilization as prostitution is the so-called "oldest profession". The earliest known record of prostitution appears in ancient Mesopotamia. [2] It is interesting to note that licensed brothels were established in Solon,Greece in around 550 B.C. The Indian Vedas, Vishnu Samhita and the Puranas abound in references to prostitution as an organized, established and necessary institution. Vatsyayana's Kamasutra describes in detail various types of prostitutes, rules of conduct and the roles played by the procurer, pimp and brothel-keeper. Similarly, Kautilya in his Arthashastra declares the income of pimps, taxable. In the post-vedic era the custom of Devadasi (servants of God) system came into practice. Today, the word 'devadasi' is a euphemism for referring to a woman prostituting in the name of religious tradition.

After all this history today we get to see the sight of girls with their faces covered with dupattas and which is not uncommon to television viewers. These young women have a very ordinary dream of a peaceful life with two meals a day, sell their bodies and routinely have to face the law in its annoying, unsparing form. Existing laws allow clients caught with sex workers to be let off easily while the women are held guilty of promoting, furthering and committing moral blasphemy.

The law to tackle prostitution i.e., the Immoral Traffic Prevention Act ( ITPA), 1956 is often misused. Today sex worker's unions have been formed. However, little has been and is being done to regulate or prohibit flesh trade, estimated to be a Rs. 2000 crore industry annually. Presently there is this confusion building up as one side reiterates that prostitution should be criminalized on three strands of thought- Morality, Legal Paternalism and Harm to Other. Devlin in his book takes the view that not all-immoral acts calls for criminal sanctions but only those that evoke from people, feelings of intolerance, indignation and disgust. [3] The other side believes in what these unions have been demanding for that to relax laws on loitering and propositioning on streets as well as general soliciting. The Immoral Trafficking (Prevention) Amendment Bill 2005 moved by the Women and Child Department actually included this. The police often use the existing provisions of Section 8 of the ITPA [4], which prohibit seducing or soliciting for purpose of prostitution in public place, to harass streetwalkers. The Bill when passed may amount to legalising prostitution but at least sex workers will not be harassed while soliciting with prospective customers. The question that arises over here is that will the Bill decriminalise the act itself.

Hardly, it is so as the Bill on one hand proposes to ease things out for the sex workers; it also aims towards handing out more stringent and harsher punishment to the clients or customers. For the perpetuation of the oldest profession, it is probably right in putting the onus on clients. The earlier repealed law, Suppression of Immoral Traffic (in women and girls) Act ( SITA) of 1956 allowed prosecution of persons other than women only if they "knowingly" or "willingly" forced women into prostitution. Clients and brothel owners escaped punishment by showing ignorance. We should not go much into the SITA, as it stands repealed with the coming into force of the ITPA. What is more important in the present scenario is the wind of change in which the Bill proposes. Some of the main recommendations that are present in the The Immoral Trafficking (Prevention) Amendment Bill 2005 are:-
# ƒnPermits soliciting by sex workers.
# Punishment to human traffickers enhanced to 10 years' imprisonment and Rs.1 lakh fine.
# ƒnProvides for confiscation of property worth over Rs. 3 lakh, owned by traffickers and agents.
# ƒnDefinition of "trafficking in persons" widened to include clients; they can now be jailed for up to three years.
# ƒnSuggests increased involvement of NGOs in assisting the police.

It is something accepted by all that under the present law, only the women are targeted while the clients go scot free. Many attempts to make some remedies were made but only by the ITPA of 1986 when a maximum punishment of three months for soliciting was introduced for clients. Again, there was another restriction in it that the client could not be punished in the act itself if the girl was an adult. Even though the lawmakers have broadened the circle of persons liable for prosecution the law is still focused on punishing women severely. Under the Immoral Trafficking (Prevention) Act, 2005, the definition of "trafficking in persons" has been proposed to include "recruitment, transportation, transfer, harbouring or receipt by persons" as punishable. The earlier prevalent Section in both SITA and ITPA provided punishment for brothel keeping, pimping, detaining anyone in a brothel, use of premises and procurement, but with the inclusion of the above words, the Act can be used to criminalize receipt and transfer by a client. Clients, after such passing of the Bill, can be fined and jailed for up to three years.

A logic doing its rounds is that, criminalizing the customer and decriminalising the sex worker will be a terrible blow to the sex workers. Police raids will increase and customers will be garrulously harassed. This means fewer clients and a tougher life for sex workers. There even is the possibility that the sex trade will then move underground, which may prove detrimental to the AIDS-control programme in India. We should keep in mind the warning of UN that is clear from the statement:-
One out of every four people infected with HIV (human immunodeficiency virus) in the world last year was Asian. One out of every seven people living with HIV is an Indian. — UNAIDS report on the Global AIDS Epidemic, 2004. [5]

According to epidemiologist Tim Brown of the MAP (Monitoring the AIDS Pandemic) Network, over 60 per cent of all contacts of sex workers in a country must use condoms in order to actually roll back the epidemic. [6]

"HIV infections in the so-called general population will not balloon into huge epidemics. This means our prevention efforts must stay focused on populations where infections are actually occurring," he said. [7]

If the clients are afraid of visiting sex workers, business will suffer. A sex worker will then be under pressure to keep customers and may comply without a condom. This would mean rapid spread of AIDS.

The National Network of Sex Workers, which claims to have over 2, 00,000 members, says it is deeply dejected with the minor changes and that the ITPA should be abolished and the sex trade legitimized. The National Network of Sex Workers have also asked for self-regulatory bodies and boards set up by sex workers' unions to look after the health, hygiene and education in their areas for themselves and more importantly for their children's interest. The Network also requests the Government to look into the violence that is involved in trafficking and prostitution. [8]

It is interesting to note that the changes have come at a time when there is this public debate initiated by the Planning Commission that prostitution be legitimized to control the spread of AIDS. It should always be kept in mind that there are more than 11.2 million HIV-positive cases in India. The spread of AIDS can be checked only through the better education of both sex workers and clients. It is just not responsibility of the State but also the responsibility of us to see to it that we have a brighter future.

Changing Facets Of Sexual Offences

Man has learned and is able to control may of nature's forces, but so long as he is unable to control the forces within himself, there can be no question of real civilization. Human culture has not carried things beyond putting a finer polish on its animal impulses i.e. physically reacting to external stimuli, without emotional bonding and intellectual analysis. The human race may have become more developed materially and technically, but it is not happier. The great mechanical and urban advancement is being achieved to the detriment of the integrity and character of the human being, which values are the barometer of its development level in the real sense.

Taylor Caldwell wrote-
"Man is never victorious, never defeated,
The looters yield their loot to the cheated,
Honesty and folly can never be parted,
The waters return to the hills from where they started."

That is the ultimate Truth, Research may ultimately find that person involved in extramarital affairs get paralytic strokes, as nature reacts violently when disharmony is intentionally/deliberately created for every action has an equal and opposite reaction and whether one likes it or not, all karmas-physical, emotional and intellectual bear their fruits. There is always an ultimate justice.

Man is the first product of evolution who is capable of controlling his evolutionary destiny, Human being is constituted of five sense organs (eyes, ears, nose, tongue and flesh giving him the power of sight, sound, smell, taste and touch) emotions and intellect through which he perceives and analyses the other beings and nature around and express himself. In inter-personal relationships, more particularly when it relates to two different sexes, these five sense organs are used and on some occasions, their (mis) use results into an offence. Use of senses of smell and taste seldom lead to committal of any sexual offence but some movement of the eyes, some words spoken, sounds and noises made can be offensive and touch of flesh by way of bottom pinching, brushing past, embracing, indecent assault or rape would amount to suppression of will of the other by invading the privacy or the personal space which an individual requires for stable progression in life and will constitute sexual offences.

Every act of a human being whether on the physical, mental or intellectual plane of consciousness which leads to inflicting pain or suppression of the will of another being is an offence. All acts in the nature of offence done by a male human being against a female human being can be termed as sexual offence. Women are the victims of almost all sexual offences because the offenders, and they themselves think, they are unable and, therefore, unlikely to retaliate either with physical force or with recourse to law. They become victims and sacrificial lambs on the altar of the fragile male ego. They are the victims of a cozy belief that they go willingly to the slaughter.

As human beings co-exist in the social system, one of the most important aspects of criminal law and human contribution is to effectively and efficiently deal with this aspect of social aberration, and see that no only the offender is convicted, the victim compensated, but this offensive nature is controlled and the thoughts and energies of perpetrator and victim channelised into constructive fields of development. The criminal justice system will also have to be vigilant that in the existing dangerous state of exploitation of every human being by another, either for political or economic gains, false facts are not sought to be established or supposed leading to more evil than reform.

A significant number of writers have explored the psychology behind human behaviour and while Sigmund Freud place emphasis sex-motivated expressions, Karl Marx on the economic motivation, Nietszhe on the power motivation, the Bhagwat Gita rests on theory of functional sense, in the evolution process, the division into two sexes was brought about by nature only for the purpose of procreation of reproductivity of species and must, therefore, should have limited to monogamous relationship behind closed doors. But in the changing social environment it has come out on the roads and places of work and as a result of constant awareness, easy accessibility has resulted in increasing exhibition of sexuality and thereby the commission of sexual offences. Sexual offences are acts or expressions of violence and perversion unleashed on the weakest available female in the safest possible circumstances by the stronger male as a result of feelings of anger, frustration, depression, insecurity, deprivation and hostility and arising out of ignorance of his true nature of sat, chitta and ananda.

Sexual offences are covered under the following Acts of Parliament-
1. Indecent Representation of Women (Prohibition) Act, 1986
2. Indian Penal Code, 1860
3. Suppression of Immoral Traffic in Women and Girls Act, 1956
4. Dowry Prohibition Act, 1961

Sexual offences can broadly be classified into following heads-
1. Obscenity and indecent representation of women
2. Eve-teasing, winking, starting, gesticulating, following, using improper words and language, squeezing, bottom pinching, improper touching and brushing past,
3. Sexual harassment
4. Molestation and indecent assault
5. Immoral Trafficking
6. Rape
7. Dowry deaths and bride burning

Obscenity and indecent representation of women
The sexual representation of women in cross-culture is an issue of grave concern. Obscenity is a threat to the purity of women's sexuality and her modesty. It tends deflect an active involvement and participation so that men cannot be held to be at fault. Blame, however, lies with those who produce these obscene representations including the women who appear in it. Intelligent, well built and groomed, half clad women on the cover page of Cosmopolitan or Sports Illustrated-swimming suit issue all over the world provokes more sexuality than bare adivasi rustic females. Sex and violence in movies and media and erotic lucid details in best sellers or those which sell most is the material available to every citizen from rickshaw-pullers students to CEOs.

Eve-teasing, winking, staring, bottom pinching, improper touching, brushing past etc
These sexual offences are becoming common amongst teenagers with urbanization and are morally committed in crowded places like college campus, public transport, fairs and fetes. These expressions are a result of sadistic tendencies and sick mentality of those human beings who cannot control their urges of indecently act towards fellow female beings in society. The reactions of the female give them the pleasure they had sought by violating the privacy of another individual. The male being feels elated about his superiority; he boasts about his acts amongst his peer group and thinks that he has achieved something great and unusual. Actions like these need immediate reaction from rational people and should be nipped in the nipped. An act which is demonical can never be appreciated and needs emphatic resistance. These cases may not get reported and, therefore, it is for the public and the citizens to be vigilant about them.

Sexual harassment
Sexual harassment contains elements of coercion, threat, and/or unwanted attention in a non-reciprocal relationship. In the University, sexual harassment of women by male faculty members undermines women as students or co-workers. Sexual harassment in this case may, therefore, take the following forms when man in position of control, influence or affect a woman's job, career makes use of his authority and power to coerce the woman into sexual relations or to punish her refusal. In these cases the superior tends to take advantage of his position and the economic pressure leads to silent suffering.
Where in cases of sexual harassment men accused and found guilty of sexual harassment are professors and teachers, it becomes a serious issue and they should be suspended from their jobs or demoted from their posts, as students look up to their teachers as mentors and guides who are pillars of inspiration and place them on a pedestal and believe that they can do no wrong.

Sexual harassment at the workplace may include:
1. Verbal harassment of abuse.
2. Subtle pressure for sexual favors.
3. Sexist comments about the student's clothing, body or sexual activities.
4. Unnecessary patting or pinching.
5. Leering or ogling at a woman's body.
6. Constant brushing against a women's body.
7. Demanding sexual favors accompanied by implied or overt threats concerning one's job, marks, letters of physical assault.

Recently the Hon'ble Supreme Court in the matter of Rupan Deol Bajaj and Anr. Vs. K.P.S. Gill and Anr. 1995 (6) SCC 0194 has given directions to Chief Judicial Magistrate, Chandigarh to take cognizance upon the police report in respect of the offences under Section 354 and 509 IPC and try the case himself in accordance with Law. After a lapse of almost 8 years, a lady IAS Officer was successful in getting a senior police officer no less than D.G. Police, Punjab to the book, for outraging her modesty.

Molestation and indecent assault
Molestation of a female particularly of tender age is a greater evil as her body is immature, her sexual powers are still dormant and she has not developed a sense of awareness of her sexuality. But nevertheless from her very birth she possesses the modesty which is so inherent in her being an individual of the fairer sex which is violated by such acts and leaves deep scars on her memory. These acts are committed by more mature male members or known elders on nubile females who find it difficult to understand the motive behind such acts of violence and are unable to communicate and express their anguish.

Immoral trafficing
The Suppression of Immoral Traffic in Women and Girls Act, 1956 remains practically in suspended animation. There has been an alarming increase in trading of women. A woman can be purchased in the open market for half the price of a buffalo. Ashwini Sarin, an Indian Express Correspondent reported the purchase of Kamla, a mother of six children from the circuit house for two thousand rupees only. A large area of Dholpur provides girls in abundance for sale. The plight of homeless girls in protection homes, which are meant for their rehabilitation but where they are treated inhumanly and as barterable commodities it pitiable.
The birth of a girl child is still regarded as contemptible and some parents do not even hesitate in trading the body of their girl child for a few worthless dimes. Inhuman conditions in Agra Protection Home compelled two eminent law professors Dr. Upendra Baxi and Dr. Lotika Sarkar to move the Supreme Court for redress. It is on the record of the Supreme Court that the inhuman treatment, mental and physical torture, turned 19 of the girls into mental cases. The protection homes set up for proper and adequate care for homeless and handicapped women seem to have been converted into centers of torture frequented by sex hungry law enforcement and other power wielding officials.

Kashmir Marriage Racket of minor Bengali girls revealed the large scale transportation of minor girls for commercial purposes from one corner of the country to the other extreme where they were sold in the marriage market like a cheap commercial commodity. Hundred girls between the ages of 12 and 15 years were sold in Bedgam District of Jammu and Kashmir alone, most of them being "married" to men between the ages of 60 and 75 years. The girls were kidnapped, lured or purchased for a paltry amount of Rupees one hundred and taken to Kashmir by the flesh-traders. This also reveals the large scale violation of women?s rights embodied in the Child Marriage Restraint Act, 1926, Indian Penal Code, 1860 and the Suppression of Immoral Traffic in Women and Girls Act, 1956.

The nefarious practice of flesh-trade and sex-exploitation is not confined within the territorial limits of this country. The case of Tulsa, a minor Nepali girl highlights the planned and well-established practice of importing poor foreign girls into the vice dens of big cities in India where brothels are run on a large scale. She was kidnapped from Thankot, a nature village in Nepal, brought to Bombay and sold to the brokers operating in the red-light area of Bombay. After being brutally used and abused, and becoming afflicted of many venereal diseases, because of the continuous sexual exploitation, when she was seen to be unfit for the brothel, she was kicked out and left on the streets. Fortunately she was admitted to a Government Hospital by a philanthropist, who also informed her family in Nepal about her whereabouts.

Sheela Barse, noted journalist and social worker, on the basis of her intensive study of criminal exploitation of women in India rightly remarks- "Kidnapped children, abducted as teenagers or lured to cities in young adulthood in the hope of employment and the lives of thousands of women are thereafter destined to be circumscribed by the four wall of sleazy brothels. All other deprived sections of society get at least sympathy but for prostitutes there is only ostracisation".

Licentious life is destined for them. The continuous fear of torture by brothel operators looms large over them; their rights get rusted by dilution of enforcement efficiency and apathy. Members of anti-prostitution squads are won over by the flesh traders and made to share the booty of the flesh trade. Instead of discharging their duty by taking prompt action even on the receipt of a complaint, they deliberately remain indifferent and rather shield the anti-social element and thereby allow and encourage the criminal exploitation of the unfortunate and helpless poor women.

The height of the inefficiency in the system is revealed by the nexus between criminal dons and top officials when it is reported that top police and judicial officers of Bombay were present at a lavish party hosted by the under-world Kind in a posh hotel of Bombay. A two hour long video film showed about 15 police officers including the Assistant Commissioner of Police and some high Judicial Officers attending the party and freely mixing around with criminals of the wanted category. When the custodians of law are hand in glove with those who are actually running the whole criminal show what can be the fate of the rights of the weaker sex.

Rape
While all rapes result in total emotional devastation, child rapes particularly inflict gross physical damage on the victim. Rape is the most horrendous of the sexual offences even more disasters than murder for the victim continues to lead a traumatic life. Its gravity is not in the injury to the body, alone but in the injury to self-esteem and self-respect. The physical battling and assault which accompany rape are not only what constitutes rape but it is the injuries added to the insult.
Victims of this sexual assault have survived a horrifying, humiliating, degrading, brutalizing, angering, demeaning and dehumanizing experience. Rape is the most serious violation of a person's body because it deprives the victims of both physical and emotional privacy and autonomy. When the offence of rape occurs, the victim's sense of self as well as her body is abused without consent. She loses her most basic human need right: Control of her physical and emotional of self. The victim's psychological response to rape primarily reflects her reaction to violation of self. Therefore, they deserve to be treated with dignity and compassion and assured that their decision of getting the accused to the book is respected.

The prevailing view, which with great respect needs reconsideration is, that women who cannot be held as chaste or innocent are not raped as their consent is presumed. Rape has nothing to do with innocence and chastity, nor does it require blood to be spilt or minds to be lost. The act of rape is the most violent abuse of a woman's body, privacy, modesty, autonomy and will. It is an act of unrestrained hostility and anger, an assault unique in the degradation it inflicts. The suffering, mental agony and trauma it causes is profound and the scars that are imprinted on the memory of victim never heal completely. The community and the law must be responsible for the scarcely veiled threat "They'll never believe you".

This attitude became only too evident by the various decisions of the Hon'ble Courts as in the case of Raju Vs. State of Karnataka, 1994 (1) SCC 0453 better known as Hassan Case, the Hon'ble Supreme Court, centered its decision on the concept of "victim-precipitated rape", a concept in which the victim is regarded as the cause of the crime often on such flimsy grounds as the alleged provocation of her attire, or past sexual behaviour. The attacker, on the other hand, is treated as James Coleman and others put it-"as a decerebrate organism, unable to quell his lust in the face of such outrageous provocation". And so the punishment of both accused persons, in spite of the offence of rape being proved, was reduced from seven years to three years of rigorous imprisonment.

In Tukaram Vs. State of Maharashtra 1979 (2) SCC 0143 also known as the Mathura Case the Supreme Court overruled Bombay High Court's conviction of two police officers for the rape of Mathura, a sixteen years old girl, in police custody. The court held that though there was sexual intercourse, there was no rape because there was no mark of physical injury and hence no proof that Mathura had physically resisted. The message is that if there is no mark of physical injury then there is lack of resistance from the victim and consequently presumed consent.

In Premchand Vs. State of Haryana 1989 Supp. (1) SCC 0286 the mandatory minimum sentence of10 years, awarded to 2 police officers for raping a women was reduced by Supreme Court to 5 years, only because, the women was of easy virtue and there was no proof of physical resistance.

In State of Rajasthan Vs. Narayan 1992 (3) SCC 615, the Hon'ble Supreme Court however observed that, even if there has been a delay of two to three days in lodging the criminal complaint such delay is usual as in the "Indian Society, being what it is, the victims of such a crime ordinarily consult relatives and are hesitant to approach the police since if involves the question of virtue and chastity of a married woman. A woman and her relatives have to struggle with several situation before a deciding to approach the police, more so when the culprit happens to be relative." The Hon'ble Supreme Court, set-aside the acquittal order passed by the High Court and restored the order of conviction and sentence awarded by the trial court.

Distrust of rape complaints stems from the ease with which rape allegations can be made. There seems to be no reciprocal distrust stemming from the ease with which they can be denied and nearly always are. When a rapist leaves few physical scars on his victim, he usually claims in court that prosecutrix is lying, the allegations are false and that there was consent. The manner in which trials are conducted, gives the accused ample scope for showing that the woman's behaviour was provocative and to cast sufficient doubt on her evidence. The attitude towards women who have been raped undoubtedly deters many victims from reporting their assault. Whether the victim conceals the rape of confronts the community with it, she is affected by the social implications of her involvement in such a sordid.

In a recent judgment i.e. Delhi Domestic Working Women's Union vs. Union of India, 1995 (1) SCC 0014, the Hon'ble Supreme Court has analyzed the defects of the existing system. Firstly, complaints are handled are handled roughly and are not given such attention as is warranted. The victims, more often than not, are humiliated by the police. The victims have invariably found rape trials a traumatic experience. The experience of giving evidence in court has been negative and destructive. The victims often say, they considered the ordeal to be even worse than the rape itself. Undoubtedly the court proceedings added to and prolonged the psychological stress they had to suffer as a result of the rape itself.

The Hon'ble Supreme Court quoted from Modern Legal Studies-Rape and the Legal Process by Jennifer Temkin, 1987 Edition, page 7:
"It would appear that a radical change in the attitude of defense counsel and judges to sexual assault is also required. Continuing education programmes for judges should include re-education about sexual assault. Changes in the substantive law might also be helpful in producing new ways of thinking about this type of crime."

And Shapland:
"The changes in the criminal justice system necessary to approximate more closely to the present expectations of victims are not major or structural. They are primarily attitudinal. They involve training the professional participants in the criminal justice system that the victim is to be treated courteously, kept informed and consulted about all the stages of the process. They involve treating the victim as a more equal partner? This might include a shift in working practices of the professional participants that might initially appear to involve more work, more difficulty and more effort, but paradoxically may result in easier detection, a higher standard of prosecution evidence and fewer cases thrown out of court."

And O' Reilly attitudinal training:
"We are now victim-oriented and have taken an active role in getting the entire helping network-lawyers, doctors, nurses, social workers, rape crises center workers-to talk and to interact together. We are then in a position to concentrate fully on the primary goal that unites us all helping victims of sexual assault to get their lives back together."
And Fox and Scherl, who studied "Patterns of response among victims of rape." In a later study, offered suggestions to help victims through the various stages of reaction. There is a typical emotional response to rape which occurs in three phases:
o acute reaction
o A period of integration and resolution in which the victim comes to terms with feelings of guilt and anger.
o Depression and numbness which the victim feels.
o Some may also need to go through a period of guilt and self-punishment.

The Hon'ble Supreme Court further indicated broad parameters in assisting the victims of rape.
1. The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well-acquainted with the criminal justice system. The role of the victim's advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counseling or medical assistance. It is important to secure the continuity of assistance by ensuring that the same person who looked after the complainant's interest in the police station represents her till the end of the case.

2. Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station. The guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.

3. The police should be under a duty to inform the victim of her right to representation before any questions are asked of her and that the police report should state that the victim was so informed.

4. A list of advocates willing to act in these cases should be kept at the police station for victims who do not have a particular lawyer in mind or whose own layer is unavailable.

5. The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims are questioned without undue delay, advocates should be authorized to act at police station before leave of the court is sought or obtained.

6. In all rape trials anonymity of the victim must be maintained, as far as necessary.

7. It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss and some are too traumatized to continue in employment.

8. Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board. Whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.

Some steps that should be taken while dealing with such sexual offences and some suggestions:
1. The victim of a sexual attack should first and foremost be taken to any institute which is in the form of women's and children hospital, so that the health and safety of the victim which should be the prime concern can be taken care of.
2. Going to a hospital as soon as possible after the assault is extremely important for several reasons :-
a. The victim may need immediate medical attention.
b. Tests for pregnancy, venereal disease and AIDS.
c. recording of medical for prosecution of the offence committed.

1. Preferably, during such a sensitive stage of after-offence care, a female attendant/nurse should be the one who should deal with the victim who has undergone such physical and emotional traumatic experience.

2. When the victim is interviewed by the police, there should always be a female police officer to conduct such interview, considering the emotional and traumatic state of the individual the questions generally asked at this time makes the victim recounting the assault, including what force, threats weapons, the assailant may have used, questions as to what happened before and after the assault may also be asked, which may deem harsh, invasive, insensitive, but which often are necessary for investigating the crime.

3. Lie detector test? A polygraph is a machine that measures bodily functions, such as heart rate, breathing rate blood-pressure. The accused person is asked firstly such questions that have nothing to do with the assault and then ask question concerning specific details of the assault. The changes in the heart-rate, breathing rate, and blood-pressure are used to indicate degree of truthfulness. Though results of polygraph examination are not admissible in the courts, but still can be quite helpful in giving right kind of leads to the police in their investigations.

4. Plea bargaining? The concept of plea-bargaining is new to Indian system, but although not an ideal solution, it may sometimes benefit the victim. In cases where it is difficult to prove all the elements of the higher offence for lack of sufficient evidence then the prosecution may plea-bargain with him to admit his guilt in a lower offence and be liable for a reduced sentence. The victim will not have to endure the trauma of a trial through which they are forced to relieve the trauma once under-gone.

5. Sweeping legal reforms are essential, not small adjustments to the sentencing policy or quibbling over age limits. Reforms must give equal status to the word of the complainant and the accused in court and must put into perspective the crime's sexual element.

6. The corroboration requirement must be dropped as the present practice is grossly offensive to women, and discriminatory. Evidence relating to the sexual reputation of the complainant has to be made inadmissible. Consent should not be assumed on the basis of sexual reputation, sexual behaviour with other persons or lack of physical injuries. The law, as it stands today, does not take into account the mental anguish caused by sexual attack.

7. Public censure? In order to curb these vile urges which overpower men and lead to commission of sexual offences violating the mind, body and soul of the victims? I.e. female, the perpetrators should be publicly censured. The offender's name, place of residence, the particulars of the offence, punishment imposed alongwith his photograph should be published in news papers and other sources of mass medial i.e. T.V. Radio, Local cable operators and even on Internet at the expenses of the offender. Sec. 74 C of the Indian Penal Code (Amendment) Bill, 1978 contemplates public censure; Sec. 375 to 377 must also be included in Sec. 74 C (3) of the 1978 Bill. This kind of adverse publicly of the accused, would deter future offenders to resist from indulging in such shameful crimes and the fear of maligning the name and status to his family may also keep a check on such reckless urges.

8. Gender education is necessary for it will promote understanding between males and females, which will encourage men to identify with women, which will remove the ease with which men can depersonalize women, which will blur the daunting and destructive edges of masculinity and femininity.

Analysis of the offender will provide some clues to deal with him. Researchers have established that majority of sexual offences are committed in cases where the female is known to the male. In these cases girls of tender age and development fall easy prey to elder male members. The other cases are either by way of retribution by a caste against another or by those who have developed a sadistic tendency. An analysis of Delhi police records for the last years shows that 76% of recorded rape cases occurred within the family, 82% rapists were men who knew their victims well and were brothers, cousins, uncles, in-laws, fathers, step fathers, 30% of those raped were little girls between the age of 7 and 10. This is just Delhi, just police records, just this past year?

The punishment factor of a prison sentence for rape is considerably undermined by its erratic application. Only a very small percentage of men who commit rape get punished for it by imprisonment. More than half the cases are not reported. Of the reported half the men do not eventually go to prison for the crime so long as half the men tried, do not deserved prison sentences the notion of rape-being one of the most serious crimes seems farfetched.

Dowry deaths, bride burning
A survey on "Why women burn? conducted by Sunjay Suri and Sevanti Niham, brings forth the oppressive attitude towards women on her giving birth to a female child. The survey published in parts, shows society treats women as a chattel and no effort is made to change the attitude of men towards women.

Of late there has been an alarming increase in cases relating to harassment, torture, abetted suicides and dowry deaths of young innocent brides. This growing cult of violence and exploration of young brides, though keeps on sending shock waves to the civilized society whenever it happens, continues unabated. There is a constant erosion of the basic human values of tolerance and the spirit of "live and let live" lack of education and economic dependence of women have encouraged the greedy perpetrators of the crime.

In the matter of State (Delhi Admn.) Vs. Laxman Kumar 1985 (4) SCC 476 the Hon'ble Supreme Court observed that:-
"Marriage according to the community to which parties belong, is sacramental and is believed to have been ordained in heaven. The religious rites performed at the marriage altar clearly indicate that the man accepts the woman as his better half by assuring her protection as guardian, ensuring food and necessary of life as the provider, guaranteeing companionship as the mate and by resolving that the pleasures and sorrows in the pursuit of life shall be shared with. If this be the concept of marriage, there would be no scope to look for worldly considerations, particularly dowry."

"When a girl is transplanted from her natural setting into an alien family, the care expected is bound to be more than in a case of a plant. Human emotions are unknown to the plant life. In the growing years in the natural setting the girl now a bride- has formed her own aptitude, habits, impressions and got used to a way of life. In the new setting, some of these have to be accepted and some she has to surrender. This process of adaptation cannot be one-sided.

She has to get used to a new set of relationships- one type with the husband, another with parents-in-law, different one with younger ones in the family. The husband has to stand as a mountain of support ready to protect her and espouse her cause where she is on the right and equally be ready to cover her either by pulling her up or taking responsibility onto himself when she is at fault. The process has to be a natural one and there has to be exhibition of co-operation and willingness from every side. Otherwise how would the transplant succeed".

The Dowry Prohibition Act was enacted in 1961 and has been amended from time to time but his piece of social legislation keeping in view the growing menace of the social evil, also does not appear to have served much purpose as dowry seekers are hardly brought to book and convictions recorded are rather few.

Awakening of the collective consciousness is the need of the day. Change of heart and attitude is what is needed. If man were to regain his harmony with others and replace hatred, greed, selfishness and anger by mutual love, trust and understanding and if the woman were to receive education and become economically independent, the possibility of this pernicious social evil dying a natural death will not remain a distant dream only. The legislature, realizing the gravity of the situation has amended the laws and provided for stringent punishment in such cases and even permitted the raising of presumptions against an accused in cases of unnatural deaths of the brides within the first seven years of their marriage.

The role of courts, under the circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural errors or technicalities as then the criminal would receive encouragement and the victims of crime would be totally discouraged if the crime goes unpunished.

The courts are expected to be sensitive in cases involving crime against women. The verdict of acquittal made by the trial court in this case is an apt illustration of the lack of sensitivity on the part of the trial court. It recorded the verdict of acquittal on mere surmises and conjectures and disregarded the evidence of the witnesses for wholly insufficient and insignificant reasons. It ignored the vital factors of the case without even properly discussing the same.

An important aspect of human development or progress is to rise from its mere animalistic physical existence to reach a higher emotional, intellectual and spiritual plane. On the intellectual and spiritual planes of consciousness there is no question of sex discrimination. Sexual offences are also committed on an emotional plane, which will need a deeper look and serious efforts if we have to co-exist and undertake positive development. It is this lower nature with its animal qualities that must be conquered by the spirit within man in order that he may become truly a human being. The control of lower instinct is necessary in order that human being rises higher.

As long as the satisfaction of the appetite and lust of the flesh is included in man's ideals and aims, he can never rise above the plane of animalism. Flesh here refers to man's material nature which violates the spirit. Is opposed to an exclusive of it. Mere animalistic sexual expression has no more places in our civilization than would mud-huts serve as modern houses. But in our pseudo-civilization worse than animalistic sexual misuses are indulged in and condoned. Laws condemning them exist on paper but have no teeth to punish the guilty or warn the like-minded. There can be no question of real civilization until a relentless campaign against the domination of sexual urges is well on its way. A lessening of the overwhelming influence of sex is necessary before the race can claim a semblance of true culture and of becoming spiritualized, where there are no sexual offences.

"Abolish Reservation Because Merit And Efficiency Are In Danger"

India -"Hindustan" literally means the land of Hindus. It is a secular nation since 1950. Officially, there is no place for religious, cultural or caste segregation in the society. However, the framers of the Indian Constitution decided to give special benefits to the backward classes and women by forming a reservation policy that was included in the Constitution itself. This paper tries to look at this policy and how it has progressed in the last 60 years, and analyze its effectiveness and implications.

Reservation is a highly debated topic in India. This system of positive discrimination remains mostly unimplemented in many sectors. Although, it was intended to carry on a democratic revolution in the arenas of education and employment, owing to red tapism, official negligence, and a whole host of other factors, it has not achieved its targeted change. One of the reasons also include the banal idea that the recipients of reservation (which was originally proposed with the idea of amelioration of the depressed classes) are drawn from the "creamy layer" e.g. children of highly educated and well-employed parents belonging to the backward and scheduled castes. We find that another equally important concept used in stopping the effective reach of the reservation policy is the "Merit syndrome", whereby the privileged classes resent and rally on the false premise that reservation policy destroys merit

History:
India was a country with highly rigid caste-based hierarchal structure, with ascending order of privileges and descending order of disabilities, which operated for about 3000 years. There was an overwhelming majority in the nation that was still backward – socially, economically, educationally, and politically. These victims of entrenched backwardness comprise the present scheduled castes (SC), scheduled tribes (ST) and other backward classes (OBC).

In the Indian context, reservations were introduced during the last decades of the 19th century at a time when the subcontinent could be broadly divided according to two main forms of governance – British India and the 600 princely states. Some of these states were progressive and eager to modernize through the promotion of education and industry and by maintaining unity among their own people. Mysore in south India and Baroda and Kolhapur in western India took considerable interest in awakening and advancement of the minorities and deprived sections of the society. It should not surprise us then that the very first records of implementing reservations policies are from these princely states.

Constitutional Provisions:
One of the framer of the constitution of India was Ambedkar and hence he made certain arrangements for the backward classes to allow them to enjoy a humane lifestyle and for their upliftment. The reservations for the backward classes are of three broad categories: political, educational and employment. For the first, the Constitution provides for reservation of seats in proportion to their numbers for the SCs and the STs in the Lok Sabha (The Lower House) in its Article 330, and in the Vidhan Sabha (The Upper House) in Article 332. These provisions do not exist for the OBCs, which indicate that the principal categories for the affirmative action are the SCs and STs according to the Constitutionƒx.

For the second, an implication exists in the constitutional provision - Article 15(4), which allows the state to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the SCs and STs.

For the third, the constitutional provisions as modified and simplified from time to time are the Article 16(4), Article 16(4A), Article 16(4B), Article 335, and Article 320(4). These articles provide explicitly for reservation in educational institutions for the backward classes and the authority of the state to make any required changes with time,as required.

Current Situation:
As of now, the total reservation quota stands at 45% in many states of India and this includes the SCs, STs, and the OBCs. The trend seems to have shifted to reverse discrimination rather than mere affirmative action. Some backward class elites have gained political and/or economic power based on this reservation. However, a majority of the backward classes is not living any differently than before. Their subsistence is meager and rural lifestyles do not provide them with any of the benefits. Thus, a distinct economic class system exists within the backward classes. Since economic status is not a test used, undeserving people gain the advantages and the deserving ones are still without a significant change in their situations

Commissions Established for Detection of Backward Classes
The central government appointed the first backward classes commission headed by Kaka Kalelkar, which submitted its report in 1955. This commission confronted the situation with an excess of bravery: “In the absence of reliable facts and figures, the only course open to us was to rely on the statistics available from various Governments and the previous census reports, and to go by the general impressions of Government officers, leaders of public opinion and social workers”. In certain cases, the commission had no data at all and was compelled to take a decision on “the strength of the name of the community only. On the principle of giving the benefit of doubt”. And though the Kalelkar Commission shared prevalent reservations about utilizing caste and community as markers of social distinctions, it was absolutely clear that it would be “difficult to avoid caste in the present prevailing conditions”. The Kalelkar report was tabled in parliament in 1956 and it was accompanied by a scathing official note from the Government depreciating the use of caste as a category. The Government noted that caste was “the greatest hindrance in the way of our progress towards an egalitarian society” and warned that the recognition of specified castes as backward may serve to maintain and perpetuate the existing distinctions on the basis of caste”. The Government said that the criteria evolved by the Commission, when they were not exclusively dependent on caste, were “obviously vague’

The Mandal Commission was instituted by the Morarji Desai government in 1978 to consider affirmative policies for backward and disadvantaged castes in order to redress caste discrimination. The report submitted in December, 1980 called for reserving 27% of all services of Public Sector under Central Government and 27% of all admissions to institutions of higher education for OBCs, over and above the existing22.5% reservation for SCs and STs. After nine years from giving report in 1990, the Prime Minister V.P. singh decided to implement the Mandal commission recommendations

Reservation & Indian Judiciary:
A writ petition was filled in the Supreme Court against the implementation of the Mandal Report. The Court in its judgment in the case of Indra Sawhney v. Union of Indiaƒx delivered on the November 16, 1992 upheld reservation for OBC subject to the exclusion socially advanced sections (Creamy Layer) from amongst the OBCs. And reservation of posts and appointment must be within reasonable limits, viz. 50% as the maximum.

A major difficulty raised by Art. 15(4) is regarding the determination who are ‘socially and educationally backward classes…’ Art.15(4) lays down no criteria to designate “backward classes”, it leaves the matter to the state to specify backward classes, but the courts can go into the question whether the criteria used by the state for the purpose are relevant or not.ƒx

The question of defining backward classes has been considered by the Supreme Court in a number of cases. On the whole, the protection to one Supreme Court’s approach has been that state resources are limited, group affects the constitutional rights of other citizens to demand equal opportunity, and efficiency and public interest have to be maintained in public services because it is implicit in the very idea of reservation that a less meritorious person is being preferred to a more meritorious person. The court also seeks to guard against the perpetuation of the caste system in India and the inclusion of advance classes within the term backward classes.

From the several judicial pronouncements concerning the definition of backward classes several propositions emerge –
1. The backwardness envisaged by Art. 15(4) means that a class to be identified as backward should be both socially and educationally backward.

In M.R. Balaji v. State of Mysore,ƒx the court observed: “It was realized that in Indian society there were other classes of citizens who were equally or may be somewhat less backward than the SCs and STs and it was thought some special provision ought to be made even for them”.

2. “Caste” may be a relevant factor to define backwardness, but it cannot be the sole criterion. If classification for social backwardness and were to be based solely on caste, then the caste system would be perpetuated in the Indian society.

3. Poverty, occupations, place of habitation, all contribute to backwardness and such factors cannot be ignored.

Backwardness may be defined without any reference to caste. As the Supreme Court has emphasized Art. 15(4) “does not speak of castes, but also speaks of classes” and that ‘caste’ and class are not synonymous. Therefore, exclusion of caste to ascertain backwardness does not vitiate classification if it satisfies other tests.

The Supreme court’s recent judgment dated 19.10.2006 in M. Nagraj v. Union of Indiaƒx should have ideally given the government a cause for celebration. The decision upheld the 77th, 81th, and 85th amendments to the Constitution that inserted articles 16(4A) and 16(4B) into the fundamental rights. Although these articles of the Constitution has nullified the various judgments of the Supreme Court. The Court heldƒx -
“[T]he state is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the state has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside”.

The judiciary’s passing comments on the “creamy layer” have also been highly controversial there have several debates on the real effectiveness of the policy of reservation in light of the ‘creamy layer’ – the forward members of backward classes – cornering most of the reserved quota.ƒx

The “creamy layer” principle entails that the affluent persons among the backward classes must be kept out of the reservation scheme as such persons neither require nor deserve the positive discrimination. For the first time judiciary has categorically stated the power of the state to reserve posts is controlled by the “Principle of creamy layer”

The Supreme Court held in M. Nagraj case that “reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country … if the creamy layer among backward classes were given some benefits as backward classes, it will amount to equals being treated as unequals”. It emphasized that any law that fails to take this principle into account would ho against the fabric of equality of opportunity and would be unconstitutional.

The Supreme Court while holding that the ‘creamy layer’ among the reserved category be kept out of the purview of reservation, which shall not exceed 50%, has cautioned the government than excess quota will result in reverse discrimination. Equality of opportunity has two different and distinct concepts. There is a conceptual distinction between a non-discrimination on principle and affirmative action under which the state is obliged to provide a level playing field to the oppressed classes, said in M. Nagraj case, a five-judge Constitutional Bench headed by Chief Justice Y.K. Sabharwal. . The bench opined that “Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense, otherwise it will perpetuate casteism in the country”. The Judges said: “The equality of opportunity under Art. 16(1) is for each individual citizen, while the special provision under Art. 16(4) is for socially disadvantaged classes. Both should be balanced and neither should be allowed to eclipse the other”ƒx Therefore, if in a given case the court finds excessive reservation under the state enactment, such an enactment is liable to be struck sown since it would amount to derogation of the constitutional requirements.

The Supreme Court in this case has also recognized that equality of opportunity does not mean mere formal equality. What Rawls•calls ‘fair equality’ is termed as ‘egalitarian equality’ or ‘proportional equality’ by the court. But the Rawlsian theories clearly show that even this fair or egalitarian equality that is effectuated through affirmative action programmes like reservation is essential an individual rights. The right is conferred not on a group but on the individuals comprising the group to guarantee each one of them a level playing field.

Therefore only those individuals who have actually been denied an equal start in life and lack the initial social and educational endowments are entitled to preferential treatment and no one else.

Recently number of petitions has been filed in the Supreme Court challenging the validity of government notification of the Central Educational Institutions (Reservation in Admission) Act•providing 27% reservation to OBCs in centrally-run educational institutions of advanced studies. Supreme Court already stayed the operation of the impugent notification on March 2007, in our, two judge bench. Justice Pasayat was the presiding judge. In this two-judge bench case, court has asked the government during the case discussion about the basis of the data for deciding 27% reservation. Actually the judgment stays the implementation of the OBC quota in education primarily due to two reasons:

1. There does not seem to be any basis for the government to declare that 27% is the need for reservation for OBC’s. It seems that the government took the total quota available (50%) reduced the current SC/ST and came up with the figure of 27%. In addition, the only basis for the data right now is the census from 1931 (i.e. a census carried out when the British ruled India (76 years ago) and Pakistan, Bangladesh were part of India. Such old data cannot from the basis of any reservation percentage.

2. The government, inspite of previous indications from the courts, has not implemented the concept of ‘creamy layer’ while doing these reservations.

In these petitions petitioners are opposing the caste-based reservations on the ground that such quota will not only divide the Indian society along caste lines, but will also adversely affect the efficiency of the administration

Hon’ble Chief Justice of India K.G. Balakrishnan has constituted a five-judge constitution bench for hearing the batch of petitions, headed by himself on August 7, 2007. The apex court will first of all hear on August 7, 2007 the application of the central government, seeking vacation of the above interim stay order. The centre is however, of the view that since the OBCs have been oppressed for centuries on the basis of their caste, they have become socially, educationally and economically backward and hence they deserve some concessions in the form of affirmative government action to bring them at par with the better placed sections of the society. Centre also contended that General category students shall not be prejudiced as the government is increasing the seats to implement the policy, and there is no problem so far as quota for SCs and STs is concerned. The central government also argued that the policy of reservation for OBCs in educational institutions is in conformity with the government’s policy of social justice.

The petitioners argued that implementation of the quota law would divide society on caste lines and result in perpetuation of the caste system. It would create entrenched rights which, in turn, would create pressure or opinion groups. Reservation was intended only as a bridge to shorten the gap and it could not be continued in perpetuity. Further as per Supreme Court judgments, the state was bound to review reservation from time to time and what was once a backward class could not be treated as a BC forever. It was argued that failure to exclude the creamy later from the benefits of reservation would render the quota law unconstitutional and void. As the creamy later would be the socially and educationally advanced section of a caste, its inclusion would results not only in unequal being treated as equal but also in the rest of the backward caste losing the benefits of reservation to this advanced section. Although the Supreme Court on Thursday 1Nov. 2007 reserved verdict on the petitions assailing the Central Educational Institutions (Reservation in Admission) Act, 2006 providing for 27% OBC quota, and the 93rd Constitutional Amendment under which the legislation was enacted. Now the central government haven’t any option to protect the legislation from judicial review, because the apex court already ruled in the case of IR Coelho (Dead) by LRs v. State of Tamil Nadu, • a nine Judge bench, that the court can review the laws, has kept in the ninth schedule of the Constitution. Certainly the governments were misusing the provision.

The arguments which May put forward against the reservation policy are:
1. Merit will be compromised :
We begin with the basic assumption that all human beings are born with enormous, if not equal, capacities. There are several studies and research to show that human intelligence is a very dynamic and difficult to measure and near impossible to replicate entity (look at the recent works by Steven Pinker, Roger Penrose). Besides there is no evidence to claim that it is inherited differentially either on the basis of race, gender or class (look at the debate on Bell curve in US). If it is not inherited differentially then why is it that the Brahmans and other upper castes who comprise only 17.58 % of the total population get more than 70-80% of seats in jobs and education, while the remaining 80% manage to get hold of less than 30% of the seats? ( IIT Chennai example can be a case in point). This is a de facto reservation operating in their favor.

And if we assume that it is the “ meritorious” who have occupied the best positions in this country all this while, why is it that India was plagued with mediocrity, incompetence, corruption and inefficiency for last 60 years?. It is wrong to blame the lowers castes for these ills which never got the opportunity to perform.
The definition of ‘merit' which is considered in these institutes of higher learning is very narrow. Besides, the literature in sociology, psychology and linguistics has firmly established that such ‘merit' is ‘acquired', rather than ‘inherited' The kind of ‘merit' that is talked about is determined not only by economic but also by socio-cultural background of the concerned individuals. The contemporary sociological literature talks, in addition to economic capital, about the social capital (social network, family background, education etc.) and cultural capital (for ex. fluency in English and articulation, acquired through family and elite schooling and through social capital) that contributes to the acquisition of this ‘merit'. So the social and cultural deprivation of the backward castes and communities is as important as the economic deprivation. This deprivation has been there due to the historical processes of social, cultural and even political exclusion and oppression. Moreover, in addition to this deprivation many of the lower castes also face caste based ostracism which hinders their acquisition of this ‘merit'. Even today in many Indian villages untouchability is practiced. In many schools Dalit children are not allowed to sit with the upper caste Hindu children, they cannot drink water from the common water-taps.

2. Reservations would create caste based divisions :
We say that the caste based divisions and inequalities are already there. So the reservation policy is not creating them out of nowhere. It is not even enhancing these divisions. Instead reservations are one of the ways in which this division can be leveled.

3. This is a political game plan of the politicians to gain votes : We say this is not supported by facts.

There are a large number of failings in the reasons publicized by the government for implementing this reservation. Firstly, the government has rooted its decision in a survey conducted by the Britishers prior to Independence, on the percentage of the OBCs in the population. The reserved category candidates occupy nearly 52% of the government jobs today. Then what is the immediate need to increase the quotas? Though the government would not agree to it, most people feel that this is just another way of wooing the voters.

Conclusion:
There is not an iota of doubt that Reservation and social justice is the need of the hour but it must be only to the extent that the efficiency of the govt. is not affected. Article 335 states that the claims of the SCs and STs shall be taken into consideration consistently with the maintenance of efficiency of administration in the making of appointments to the services and posts in connection with the affairs of the union and of a state. At the same time, in a campaign to extent of punishing those excluded from the benefit of reservation. We cannot also make to strive to transform hitherto upper classes into the weaker classes. This may lead to utter frustration among the meritorious youth and brain drain. It would in turn be a retrogressive step.

After going through the whole discussion it is quite clear that Reservation is not an atonement of our past sins and should not be used to compensate for the damage inflicted in the past. It is still a bitter fact that certain sections of the society are exploited and deprived of their rights. At the same time we should also have in the mind that despite the provision of reservation being continued for around six decades, the problem of social inequality remains. The solution, therefore, is not in reservations but elsewhere.

In my opinion, this current slogan comes very close to the truth. There are multiple reasons in saying so. For one thing, the current policy fails to achieve its purpose of giving equal opportunity to everyone, because of lack of infrastructure in the rural areas of the country, where the proportion of backward classes is significant. Secondly, it fails to establish a national standard, which causes disequilibria in the status of the states. Thirdly, in real terms, there is no abolishment of caste system. Instead, the disparity increases because of antagonistic attitudes on both sides. The members of lower classes still feel that they do not have sufficient representation and the members of upper classes feel that in spite of their merits, they do not have the same opportunities. Last, but not the least, the other minorities are demanding reserved representation too, which would ultimately lead to a situation where the seats left for the majority would not be proportional with their population. This therefore, becomes a cyclical issue, rather than an equal opportunity issue.

Another problem that arises from the equal opportunity reservation policy is that the merits of the backward classes are never truly recognized. This compromises with the efficiency of the country. The government of India provides tremendous funding for educational institutions. When people who do not utilize them fully use these resources, it leads to a waste. In addition, people on reservation quotas do not get equal treatment in the society once they get qualified because of the stigma associated with reservation. Reserved seats in the Legislature and some educational institutions for women, also leads to a similar problem of unequal treatment in the end. Thus, the whole purpose of providing equal opportunity gets defeated. The caste system and discrimination have persisted in spite of the reservation quotas. Reverse discrimination is widespread and everyone wants to take total disadvantage of the existing system. This leads to corruption, inefficiency, and equal treatment to unequal. This equity issue is the base of many current problems in the Indian society, polity, and economy today.

It would be my sincere request to the policy makers and intellectual person that Merit needs to be the prime yardstick in any selection. This can be surely done only if we discourage caste system by becoming truly secular: by abolishing all references to caste & religion in public life and in gubernatorial affairs. If this is not done, the people who are adversely affected by reservations will breed contempt for India as a State, although they will love India as their country. Frustrated at being constantly deprived, in spite of performing better than those benefited by reservations, such groups may demand a land of their own. It may well be impossible for all judicial, legislative, and even military attempts to thwart such a demand and another partition will not be far if the present policy is continued.. Such a policy of favouring persons on the basis of their birth will surely pave the way for balkanization of India, which we need to avoid.