Sol Notes Your Laws Your Rights

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SOL Notes Your Laws Your Rights
your law your rights (University of Delhi)
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B.A.(Hons.) Political Science/B.A.(Prog.) Semester-III/V
Skill Enhancement Course (SEC)

Your Laws, Your Rights
Study Material : Unit 1-5
SCHOOL OF OPEN LEARNING

UNIVERSITY OF DELHI
Department of Political Science

Editor : Prof. Tapan Biswal
Dr. Mangal Deo

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Graduate Course
Skill Enhancement Course (SEC)

Your Laws, Your Rights
Contents Pg. No.
Unit-1 : Rule of Law and the Criminal Justice System in India Dr. Karunakar Patra 01
Unit-2 : Laws Related to Criminal Justice Administration Dr. Garima Singh 18
Unit-3 : Equality and Non-Discrimination
(a) : Gender: The Protection of Women against Domestic Violence,
Rape and Sexual Harassment Dr. Smita Agarwal 31
(b) : Caste: Laws Abolishing Untouchability and
Providing Protection against Atrocities Sanjeev Kumar 42
(c) : Class: Laws concerning Minimum Wages Vishal Kumar Gupta 54
(d) : Disability and Equality of Participation
and Opportunity Dr. Minakshi Biswas 63
Unit-4 : Empowerment
(a) : Access to Information Deepak Kumar 73
(b) : Rights of the Customer Deepak Kumar/Komal 84
Unit-5 : Redistribution, Recognition and Livelihood
(a) : Traditional Rights of Forest Dwellers and the Issue
of Women’s Property Rights Ms Rumi Roy 95
(b) : Rural Employment Guarantee Raushan Thakur 108
Note : Unit No. 6 is practical paper, hence will not be printed.
Edited by:
Prof. Tapan Biswal
Dr. Mangal Deo
SCHOOL OF OPEN LEARNING

UNIVERSITY OF DELHI
5, Cavalry Lane, Delhi-110007

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Unit-1
Rule of Law and the Criminal Justice System in India

Dr. Karunakar Patra
1.1 Introduction
The importance of good life is valued in the society. The idea of good life may have plurality
of meaning but at the basic level it means a life worth living. An ordered life is valued for the
fact that it restores peace and stability. Human beings lead peaceful lives in a condition of
stability of some kind of political order. They can live with freedom and equality. These
values are most respected by the individuals to attain the specific goals. In the attainment of
various goals individuals struggle with one another and thus require the highest value of
justice. No society can progress without relying on these values. In modern democratic
societies individuals arrange a system of rule to avoid conflictual life. The requirement of law
in the society is the prime concern of the democratic state. The efficiency argument of law
elaborates on an idea that each of us must bind by law to get rid of conflicts and establish
peaceful life.
Laws reflect the will of the people. No society can exist and sustain without laws which
are not made by the people’s support. Laws are associated with our life. Rights and laws are
linked together. No right can be claimed and exercised without law. The various laws in the
form of Acts address the people’s struggle for their democratic rights.
Rule and laws enshrined in the constitution of India. The fundamental rights and the
directive principles are reservoirs of individuals right in India. The constitution of India is the
highest law of the land. Distribution of powers among the branches of the government is
guaranteed in the constitution of India stabilize the plural values of the people of India. Legal
and juridical principles laid down in penal codes to identify specific crimes of omission and
commission for which punishment is awarded. Neutral and uniform laws treat all individuals
equal citizenship and procedural justice.
All laws in India, including criminal laws “are made by Parliament or the State
Legislatures in accordance with the provisions of the Constitution of India.” To put the
Constitution in the category of criminal laws may not sound well, but it is “the source of all
criminal laws of the country, may be reckoned as the supreme criminal law.” “The
Constitution under articles 17 and 23 declares certain acts as offences punishable in
accordance with law. It deals with many matters which have a direct bearing on the criminal
justice administration, e.g. protection in respect of conviction for offences (Article 20),
protection of life and personal liberty (Article 21), protection against arrest and detention
(Article 22), appeal to Supreme Court in criminal matters (Article 134), and powers of
President and Governor to pardon, suspend, remit sentences (Articles 72 and 161).”

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”The Constitution provides for a federal polity where Parliament as well as the State
Legislatures share the powers to frame laws. Articles 245 to 255 and Seventh Schedule of the
Constitution deal with the distribution of Legislative powers.” The federal structure of the
Indian polity allows the distribution of powers between the central and state governments.
Three lists are designed to allocate powers in the form of the union list, the state list and the
concurrent list. As far as the union list is concerned the central government has the sole
prerogative to make laws subjected to this list. And in the state list, the state governments are
granted the rights to legislate and finally in the concurrent list both central and state
government are subjected to make laws. “However, in case of conflict between the laws made
by Parliament and the State Legislature on any subject under the Concurrent List, the law
made by Parliament shall prevail upon the other.” It is also mentioned that “the Constitution
also empowers the President under article 123, and the Governor under article 213 to
promulgate ordinances in urgent situations, when Parliament or the State Legislative
Assembly, as the case may be, is not in session. However, the ordinance shall have the effect
of law for a limited period of six months only.”
The subjects relating to the criminal justice system as included in the Seventh Schedule
of the Constitution of India are given below:
Union List
i. “Central Bureau of Intelligence and Investigation”
ii. “Preventive detention for reasons connected with Defence, Foreign Affairs, or the
security of India; persons subjected to such detention.”
iii. “Constitution, organization, jurisdiction and powers of the Supreme Court (including
contempt of such Court) and fees taken therein” and “persons entitled to practice
before the Supreme Court.”
iv. “Constitution and organization including vacations of the High Courts except
provisions as to officers and servants of High Courts” and “persons entitled to
practice before the High Courts.”
v. “Extension of the jurisdiction of a High Court to, and exclusion of the jurisdiction of a
High Court from, any Union Territory.”
vi. “Extension of the powers and jurisdiction of members of a police force belonging to
any state to any area outside that state, but not so as to enable the police of one state to
exercise powers and jurisdiction in any area outside that state without the consent of
the government of the state.”
vii. “in which such area is situated; extension of the powers and jurisdiction of members
of a police force belonging to any state to railway areas outside that state.”
viii. “Offences against laws with respect to any of the matters in this List.”

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ix. “Jurisdiction and powers of all courts, except the Supreme Court, with respect to any
of the matters in this list; admiralty jurisdiction.”
State List
i. “Public order but not including the use of any naval, military or air force or any other
armed force of the Union or any other force subject to the control of the Union or any
contingent or unit thereof in aid of the civil power.”
ii. “Police including railway and village police subject to the provisions of entry 2A of
List-I.
iii. Officers and servants of the High Court; procedure in rent and revenue courts; fees
taken in all courts except the Supreme Court.”
iv. “Prisons, reformatories, institutions of a like nature and persons detained therein;
arrangements with other states for the use of prisons and other institutions.”
v. “Offences against laws with respect to any of the matters in this List.”
vi. “Jurisdiction and powers of all courts, except the Supreme Court, with respect to any
of the matters in this List.”
Concurrent List
i. “Criminal law, including all matters included in the Indian Penal Code at the
commencement of this Constitution but excluding offences against laws with respect
to any of the matters specified in List I or List II and excluding the use of naval,
military or air forces or any other armed forces of the Union in aid of the civil power.”
ii. “Criminal procedure, including all matters included in the Code of Criminal
Procedure at the commencement of this Constitution.”
iii. “Preventive detention for reasons connected with the security of a state, the
maintenance of public order, or the maintenance of supplies and services essential to
the community; persons subjected to such detention.”
iv. “Removal from one state to another state of prisoners, accused persons and persons
subjected to preventive detention for reasons specified in entry 3 of this List.”
v. “Administration of justice; constitution and organization of all courts, except the
Supreme Court and the High Courts.”
vi. “Evidence and oaths; recognition of laws, public acts and records, and judicial
proceedings.
vii. Legal, medical and other professions.”
viii. “Jurisdiction and powers of all courts, except the Supreme Court with respect to any
of the matters in this List.”

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The modern sovereign state in India exercises its supremacy by controlling everything that
falls within its boundaries. Indian states usually control and dominate the citizens, groups,
and associations by making laws. The laws are legal documents enshrined in the constitution
as well as in legislative laws. The idea of rule of law is the hallmark of legitimate state
through which states exercise their power of domination and control.
1.2 Rule of Law
Andrew Altman in “Arguing About Law: An Introduction to Legal Philosophy”,
(Wordsworth, Boston, 1996, 3-19) explains about the five important principles of the rule of
law. The idea of the rule of law is emphasized in the context of good democratic polity. It is
valuable for not only the government elected popularly by the people to be ruled by law but
the citizens are also expected to follow the rule of law for their day to day activity. These
principles of rule of law widely lay the pillars of democratic government from ancient times
to the contemporary periods. Let us briefly discuss the five principles discussed by Altman.
1.2.1 Government under Law
The modern democratic government is considered to be legitimate only when it exercises
power without being coercive. Using state power arbitrarily violates the fundamental
principles of rule of law. The government under the rule of law signifies the fact that it
follows the law while making any decision or acting upon any law. On the contrary, the
arbitrary government acts in blatant violation of the rules and laws.
The arbitrary government acts as it pleases. Simply put this fact, it underlines the
characteristics of the government that does not care about people’s interest and welfare.
When it acts it feels that it is above the law. Plenty of examples from ancient Greece to
contemporary periods suggest that arbitrary governments act in whims and fancies without
heeding the law of the land. Even to some extent they try to surpass the highest law of the
land that is the constitutional law.
1.2.2 Government by Rules
The government by rules establishes the civil order and peace. The foundational principle of
forming state and government is to avoid the horrors of state of nature originally advocated
by contractualist thinkers in seventeenth and eighteenth centuries. To avoid chaotic
conditions of society and to establish civil order and peace is the prime responsibility of
government. Government by rules can by virtue of the respect to laws can bring about a
legitimate order and stability in society. Rules pertaining to law and order and stability and
peace do not implicate on few persons or few groups but they are applied to the general
public. The impact of following rules entails the fact that anybody violating rules is morally
subject to punishment whosoever he or she may be. However, if it cannot be proved that a
person has committed some kind of violation of rules, in no circumstances the government by
rules subjects her to any punishment or penalty.

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On the other hand, the arbitrary government does not heed to the authoritative rules in
their efforts to maintain civil order and peace. The arbitrary governments hardly follow
authoritative rule to sanction anybody or any group but if ever they do follow then they
exercise it with a heavy individual decree without showing that any authoritative rule has
been violated. For example, state encounter of criminals, without following rules. It
eliminates criminals or even punishes the people who are considered to be dangerous to
society. With recurring disrespect to rules it takes steps arbitrarily to punish people.
The second principle of rule of law primarily focuses on civil order and peace. It is
maintained by authoritative rule by specifying particular sanctions for singular violation of
law. This provision highlights two outcomes: (i) “No action can be regarded by government
as a crime unless a specific law prohibits the action”, and (ii) “no individuals can be
legitimately punished by the government unless they have committed the crime and the
punishment must be limited to that which is provided for by the law.”
The government under the rule of law not only prohibit criminal behaviours by legal
sanctions but they enact civil orders through such rules also, like civil contracts and property
ownership, etc. There are twin effects of the civil law. One aspect allows the prohibition of
any violation of contractual rights and trespassing, and the other one empowers the rights
holders to furnish goals otherwise would have not been possible. Civil and criminal laws are
equally essential for the protection of law and order in the society.
1.2.3 Formal Features of Legal Rules
The government which follows rules in governing its citizens requires to have some
fundamental principles. These conditions of rule of law broadly consists of: (i) these rules
must be made by the public, (ii) they should be reasonably clear in meaning, (iii) they must
remain in force for a reasonable period of time, (iv) these rules must not be applied
prospectively not retrospectively, (v) they must be applied in an impartial manner in a way
consistent with their meaning, (vi) they should be capable of being complied with, and (vii)
they must be enacted in accordance with preexisting legal rules. The point here is that: why
should we consider these features of legal rules as “formal”? This is because they do not
prescribe any “specific content that legal rules must have”. The formal features of legal rules
“does not indicate what behavioral rules must regulate, or whether the rules should permit,
prohibit, or empower individuals to perform specific kinds of action.”
1.2.4 Due Process
The government which is arbitrary applies dichotomous ways to deal with the individuals
who violate rules or laws. The arbitrary governments demonstrate in such a way in which it
accuses an individual of violating the authoritative rules but at the same times does not
provide opportunities to prove her innocence through “due process of law”. The innocence of
the accused should be given a chance to prove for the right reasons of the due process of law.

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The notion of due process of law is also termed as “principles of legality”. It is defined that a
“government is abided by the requirements of law or legality.” A government that follows the
requirement of legality is known as a “constitutional government.”
1.2.5 The Power of the People
The power of the people invokes a different dimension of rule of law. By now we have
studied that the above four important conditions of rule of law suggest the way in which “rule
of law seeks to restrain and regulate the power of the government” and any other dominating
agencies that rule over the individuals. The power of the people demonstrates the fact that
“people are sovereign” in a manner that “it is in the hands of the people that ultimate political
authority rests.” The social contract thesis of John Locke advocates the view that “the
legitimacy of any government is based on the consent of the people.” In contrast to Thomas
Hobbes’ contractual principle, which submits that it is to avoid the horrors of the state of
nature all individuals have to give their consent “once and for all times” to form a sovereign
state for the well-being of the commonwealth. He never foresaw the idea that if the
government which is made out of people’s consent would not be protecting the well-being of
the people then the same people can do nothing to reconstruct the contract. But Locke
foresaw this problem of Hobbes as one-time consent only to make the contract but not break
or even remake the contract. Locke thus recommended that if the government made out of
people’s consent “violates the trust of the people” it looses the legitimacy and allows people
to reconstruct the government.
The important question about the rule of law is that it not only place limits on arbitrary
governments but also on “people”. It reflects on the fact that people as private individuals do
not fall in this category but if “people as a collective group identity as holders of political
authority” succumb to arbitrary will empowered by ideology to dominate others.
The point to highlight in this context regarding the rule of law is to show that the
centrality of it is to put limit on arbitrary power of state and private persons. The “regulation
and restriction” on the private and governmental powers is the central motto of rule of law.
The government’s power to legitimately coerce people is part of the original agreement in
case of violation of laws and rules as part of society’s institutional and political goal. But if
that political power is exercised by a group of people as part of the will of the government in
pursuit of sinister and sectorial interest against the trends of rule of law then that becomes
illegitimate. The people cannot be above the law even though they do express the
government’s will.
1.3 Civil and Political Rights in India
The evolution of civil and political rights in India has a long history from ancient times to the
contemporary era of constitutionalism. These rights constitute the core of citizenship in India.
The part three of the constitution elaborates on fundamental rights which broadly contain
these rights. The fundamental rights are most sacred rights guaranteed to the people of India.
The Supreme Court is considered to be the guardian of the constitution and the protector of
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fundamental rights. The responsibility of the Supreme Court to uphold the civil and political
rights becomes enacted by people’s invocation of constitutional remedies through writ
petitions.
The important rights enshrined in the constitution of India encompasses the criminal
justice and human rights included in the following provisions:
1.3.1 Right to Equality [Article 14]
The right to equality contains two most important clauses: equality before law and equal
protection of laws. The equality before law ensures that every citizen of India irrespective of
ascriptive characteristics must be treated equal before the law. This provision does not
discriminate anybody merely based on status, position, and rank, and whosoever commits any
crime is liable of punishment irrespective of status, positions, and rank etc. The equal
protection of laws suggests that “every person enjoys the protection of laws without adverse
discrimination or special treatment.” In other words, it views that all persons are not affected
equally by laws in the same ways. Law will follow its course for similar people in similar
circumstances.
1.3.2 Right to Freedom [Article 19 (1)]
The most important rights of individual freedom. Article 19 (1) provides fundamental rights
to people of to freedom of speech, expression, assembly, association, movement, residence,
and profession. These rights are considered to be the basic rights ensured to citizens as part of
the natural rights. It is these rights which lay the foundation of rights inherent in natural rights
tradition by emphasizing on the fact that these rights are entitled to individuals by virtue of
being human beings. These rights are inalienable and inseparable rights of the individuals
gifted by nature and should be considered sacrosanct.
In general, these rights are taken to be very important but they are not absolute rights.
For that matter no right is absolute. The subclauses (2) and (6) of Article 19 restrain these
rights by laws. This is called “reasonable restrictions” put on individual rights for the
interests of the general public, security of state, and public order. The idea of reasonable
restrictions is not defined by the constitution but the Supreme Court has viewed that “the
reasonableness of a restriction should be determined by the courts and not by the legislatures,
on a case by case basis, and the restrictions should not be arbitrary or of an excessive nature
beyond what is required in the interests of the public.”
1.3.3 Protection in Respect of Conviction for Offences [Article 20]
This provision of the constitution ensures some protection against conviction for offences.
According to this provision a person is convicted of an offence only when the act charged
against him or her was considered as an offence under law on the date of the commission of
the act [Article 20(1)]. This is called as the protection against ex post facto laws. Article 20(2)
guarantees that no person should be prosecuted and punished twice for the breach of same
crime. This is a protection against “double jeopardy.” Article 20(3) safeguards the protection

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against self-incrimination, protecting an accused person from being compelled to be a witness

against himself.
1.3.4 Protection of Life and Personal Liberty [Article 21]
The protection of life and personal liberty are very powerful rights given to all individuals.
Pertaining to its wider scope the Supreme Court of India points out that this article extends to
the rights of prisoners, the right to legal aid, the right to speedy trial, and the right to claim
compensation for the violation of the rights in Article 21. The provision of “procedure
established by law” declares that there must be valid laws justifying an interference with a
person’s life or personal liberty and the procedure provided by law must be strictly followed
(A. K. Gopalan v. State of Madras, AIR 1950 Sc 27).
1.3.5 Protection Against Arrest and Detention in Certain Cases [Article 22]
Article 22 of the constitution empowers individuals against unlawful arrest and detention by
the state. The simple fact regarding arrest of a person is guided by certain measure in which
as soon as possible the arrest of the person be informed to his or her relative or family
member, be disclosed the charges under which the arrest is made, and can have right to obtain
counsel. Every arrested person should be produced in the nearby magistrate within 24 hours
of arrest and the right not to be detained in the custody beyond that period unless the court
sanctions it.
1.3.6 Prohibition of Traffic in Human Beings and Forced Labour [Article 23]
Article 23 ensures the rights of individual citizens not only against the state but also against
the private citizens. The provisions in this Article prohibits forced labour, beggar, and
trafficking.
1.3.7 Right to Constitutional Remedies [Article 32]
Article 32 empowers citizens to invoke writs to protect their constitutional rights. The
Supreme Court of India by virtue of it being the guardian of the constitution and the
fundamental rights of the citizens steps up to protect the rights by orders of writ of habeas
corpus.
1.3.8 Fundamental Duties [Article 51A]
The fundamental duties enlisted in the constitution of India are not punishable for its
violations except in some extraordinary situations. Keeping fundamental rights and duties
together is reflection of constitutional harmony for the well-being of the people and the
society.
1.4 Police Organization
The federal character of Indian state allows the “distribution of powers between the centre
and the states.” According to this provision “the maintenance of law and order is the
responsibility of the states in India.” To deal with law and order problems the states take sole
responsibility and they do it procedurally through police and court systems. In the procedural
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democracy we need to follow the law of the land whether constitutional laws or legislative
laws. The legitimacy of the government is maintained when it follows the rule of law. In this
direction the state’s prime duty is to arrange the police structure in a hierarchical way to deal
with basic “law and order situation at the ground level.”
The colonial past of India bears the significant display of the British administrative
system that we follow today. The bright example is The Police Act of 1861. The preamble of
this act emphasizes boldly on its merit as “efficient instrument for the prevention and
detection of crime”. Section 2 of Police Act allows each state in India to establish its own
police force. The Police Act apart from its own provisions is also regulated by Criminal
Procedure (CrPC).
In the hierarchy of police system in the state, the Director of General of Police (DGI)
stands at the top, who bears all responsibility regarding the overall administration of the
police. Below the rank of DGI each district of the state is headed by Superintendent of Police
(SP) who handles the law and order situation in the district under the supervision of the
District Magistrate (DM). In cities, the Commissioner of Police heads the Police system with
Deputy Commissioner of Police (DCP) in the district level.
Below the district level in the police organization each police station is headed by Station
House Officer (SHO) under whose supervision the ground level law and order situation is
maintained for the entire area being fixed by system. The SHO takes responsibility to
supervise various works for subordinate officers in the station relating to the detection,
investigation, and prevention of crimes. There can also be a higher rank police officer than
SHO with equal power to SHO appointed in the same area. The police station is the primary
unit of the police organization where complaints are registered. The SHO is the head of the
police station and enjoys supreme power compared to other police officers in the same police
station. The SHO exercises power to make arrest and conduct searches according to the
CrPC.
In a democratic country like India the prevalence of rule of law corroborates all areas of
life. Following this police also acts accordingly the provisions of Police Act and CrPC. And
violation of these rules by police leads to liable of punishment under law. No body is above
law is the absolute meaning of rule of law. According to the Police Act 1861, the police
officer found breaching of his duties is liable to a fine up to three months of pay or
imprisonment up to three months or both (Sec. 29 Police Act, 1861).
To make the police system operate smoothly and efficiently there have been continuous
reform proposals undertaken in good spirit. To become more accountable and responsible the
police reform has undergone some changes. In this direction of reforms various commissions
are constituted to deliberate and recommend on various aspects of police reforms. One of the
powerful recommendations given is to treat the threat of transfer of police officers who do
not respond to political pressure. The minimization of political pressure is considered as one
of the required measures to ease the smooth functioning of the rule of law. Another

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recommendation is the setting up of a State Security Commission. Its tasks are broadly fixed
to lay “guidelines and directions for the performance of preventive tasks and service-oriented
functions of the police.”
For Police reform again, a retired police officer Mr. Prakash Singh in alliance with others
petitioned the Supreme Court in 1996 under Article 32 requiring the Government of India to
bring in a new Police Act on the lines of model Act drafted by the Commission in order “to
ensure that the police is made accountable essentially and primarily to the law of the land and
the people” (Prakash Singh V. Union of India W.P (Civil) 310 of 1996). Furthering the cause
of police reform, the Supreme Court pointed out few measures:
1. That a “State Security Commission at State Level” should be established.
2. That “transparent procedure for the appointment of Police Chief and the desirability
of giving him a minimum fixed tenure” is required.
3. That the “separation of investigation work from law and order” is highly required, and
4. That “a new Police Act which should reflect the democratic aspirations of the people”
must be formulated.
The Supreme Court realized sooner to recommend the importance of reform and directed the
State Governments a State Security Commission and a Police Establishment Board to
determine most important tasks like transfers, postings, and promotions. The Court also
outlined the procedure of the appointment of the Director General of Police and fixed a
minimum of a Two-year tenure for police officers and directed the police departments to
separate law and order function from the investigation function (emphasis added). The
creation of a district and state level “Police Complaints Authority” was ordered by the
Supreme Court to deal with the complaints against police (emphasis added).
1.5 The Courts
The structure of judiciary in India functions in a hierarchical way. The Supreme Court stands
at top and considered to be the highest court of law. Its decisions are ultimate. It can review
its own decisions and judgements if it feels so. No one can challenge its decisions except for
a review petition. The Supreme Court of India is the custodian of the constitution and the
arbiter of fundamental rights of all citizens of India. High Courts operate at the top in the
court system in states. Below High Courts we have lower courts such as district level called
Magistrate Courts, middle courts at a session level called Session Courts.
Most of the people deal with lower courts such as Magistrate courts and other
subordinate courts. The Magistrate Courts are the primary level courts who deal with the
first-hand crimes of individuals. The Magistrate Court contains magistrates of different ranks.
They are classified as Judicial Magistrates or Executive Magistrates. In rural areas the
Executive Magistrates are called as Munsifs. Magistrates who operate in metropolitan cities
are known as Metropolitan Magistrates.
The Judicial Magistrates are hierarchically ranked and classified as Chief Judicial
Magistrates, Additional Judicial Magistrates, and Sub-Divisional Magistrates. And all of
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these Magistrates are appointed by the High Court (Sec. 12, CrPC). The Chief Judicial
Magistrate enjoys supreme power in the hierarchy of District level court. The Chief Judicial
Magistrate exercises powers to guide, supervise and control all other Judicial Magistrates in
the District [Sec. 15 and 19, CrPC]. In consonance with the High Court the state government
decides on the matter of the establishment of the Judicial Magistrates Courts.
The Code of Criminal Procedure has empowered the Judicial Magistrates with certain
powers. The Chief Judicial Magistrates and Chief Metropolitan Magistrates can pass
judgements not exceeding more than seven years [Sec. 29 (1) (4) CrPC]. Judicial Magistrates
of the First Class and Metropolitan Magistrates can pass judgements relating to imprisonment
not more than three years and fines not exceeding five thousand rupees [Sec. 29 (2) (4),
CrPC]. Judicial Magistrates of second class can declare judgements not exceeding one year
and/or fines not more than one thousand rupees [Sec. 29 (3) (4), CrPC].
Apart from the above said courts and magistrates that each state of India is empowered to
establish at least one session division, for which the State must establish a Court of Sessions,
to be presided over by a judge appointed by High court. The High Court also appoints
Additional Sessions Judge and Assistant Sessions Judge. The purpose of establishing Session
Courts depends on the nature of crime in which persons are involved and tried for sentences.
The Sessions Judge or Additional Sessions Judge hold the power to give verdicts on all kinds
of criminal offence. They can also give death sentences to criminals “subject to confirmation
of the High Court.” In case of Assistant Sessions Judge they are not entitled to pass
judgements on death sentence, life imprisonment or imprisonment for a more than ten years.
1.6 Criminal Justice System in India
The criminal justice system in India is lying with many establishments. The Indian Penal
Code (IPC) 1860, the Dowry Prohibition Act, 1961, the Protection of Civil Rights Act, 1955,
the Prevention of Food Adulteration Act,1954, the Scheduled Castes and Scheduled Tribes
(Prevention of atrocities Act, 1989, The Indian Evidence Act, and the Code of Criminal
Procedure, 1973. Most importantly the Code of Criminal Procedure (CrPC) deals with the
criminal laws, providing rules for criminal courts, police investigation, arrest, and the
procedure for holding trials and inquiries.
Highlighting the role of public prosecution, the Law Commission of India from time to
time gives impression about the effectiveness of the agency of public prosecution. “Public
prosecution is most vibrant aspect of criminal justice administration in India. The role of
public prosecutor is important to provide criminal justice. Public Prosecutor or Assistant
Public Prosecutor conducts prosecution in the criminal trial on behalf of the state. The role of
Public Prosecutors plays a pivotal role in the administration of justice.” The Law
Commission of India in its 14 Report described the role of Prosecutor as:
”The purpose of criminal trial being to determine the guilt or innocence of the accused
person, the duty of the public prosecutor is not to represent any particular party, but the state.
The prosecution of the accused persons has to be conducted with utmost fairness. His duty
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should consist only in placing all the available evidence irrespective of the fact whether it
goes against the accused or helps him, before the court, in order to aid the court in
discovering the truth. It would thus be seen, that in the machinery of justice; a public
prosecutor has to play a very responsible role: the impartiality of his conduct is as vital as the
impartiality of the court itself (Law Commission of India, 14th Report on Reform of Judicial
Administration, 1958, cited in http://www/unafei.or.jp).”
The Code of Criminal Procedure Amendment Act 2005 “provides for the establishment
of a Directorate of Prosecution comprising of a Director of Prosecution and Deputy Directors
of Prosecution appointed by the State Government.” “The Director of Prosecution will be
working under the administrative control of the Head of the Home Department in the State
[Section 25 A (3) CrPC].”
”Public prosecution is an important component of the public justice system. Prosecution
of an offender is the duty of the executive which is carried out through the institution of the
Public Prosecutor.” “The public prosecutor is appointed by the State, and he conducts
prosecution on behalf of the State. While it is the responsibility of the public prosecutor to
see that the trial results in conviction, he need not be overwhelmingly concerned with the
outcome of the trial.” “He is an officer of the court and is required to present a truthful
picture before the court. Even though he appears on behalf of the State, it is equally his duty
to see that the accused does not suffer in an unfair and unethical manner.” The public
prosecutor, “though an executive officer, is an officer of the court and is duty bound to render
assistance to the court. The public prosecutor represents the State and the State is committed
to the administration of justice as against advancing the interest of one party at the cost of the
other.” “He has to be truthful and impartial so that even the accused persons receive justice.
The public prosecutor plays a dominant role in the withdrawal of a case from prosecution. He
should withdraw from prosecution in rare cases lest the confidence of public in the efficacy
of the administration of justice be shaken.”
The Supreme Court of India has defined the role and functions of a public prosecutor in Shiv
Nandan Paswan vs. State of Bihar & Others (AIR 1983 SC 1994) as follows:
a) “The Prosecution of an offender is the duty of the executive which is carried out
through the institution of the Public Prosecutor.”
b) “Withdrawal from prosecution is an executive function of the Public Prosecutor.”
c) “Discretion to withdraw from prosecution is that of the Public Prosecutor and that of
none else and he cannot surrender this discretion to anyone.”
d) “The Government may suggest to the Public Prosecutor to withdraw a case, but it
cannot compel him and ultimately the discretion and judgement of the Public
Prosecutor would prevail.”
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e) “The Public Prosecutor may withdraw from prosecution not only on the ground of
paucity of evidence but also on other relevant grounds in order to further the broad ends
of public justice, public order and peace.”
f) “The Public Prosecutor is an officer of the Court and is responsible to it.”
”After the completion of investigation, if the investigating agency comes to the conclusion
that there is a prima facie case against the accused, the charge-sheet is filed in the court
through the public prosecutor. It is to be noted that the opinion of the public prosecutor is
taken by the police before deciding whether a prima facie case is made out or not.” Following
the process “the suggestions of the public prosecutor are also solicited to improve the quality
of investigation and his suggestions are generally acted upon.” However, “the ultimate
decision of whether to send up a case for trial or not lies with the police authorities. In case
there is a difference of opinion between the investigating officer and the public prosecutor as
to the viability of the prosecution, the decision of the District Superintendent of Police is
final.”
1.6.1 Features of Criminal Procedure
The Code of Criminal Procedure, 1973, “is today the main law of criminal procedure in
India.” It is consisted of altogether 37 Chapters and 484 sections. “It includes two Schedules,
first, classifying the offences under the I.P.C. and against other laws, and the second,
containing forms have also been appended to it.” “The Code of Criminal Procedure inter alia
deals with the constitution of courts, powers of courts, various processes to compel
appearance of persons and production of things, powers of police.”
The criminal procedure law sets out standards for pre-trial processes such as receiving
information about crime, interrogation, arrest, remand, bail, recording of vital evidence
during investigation and charge-sheet and trials processes, such as taking cognizance by
courts, framing of charges, summoning witnesses, recording evidence, hearing arguments,
judgement, pre-sentence hearing, and passing of sentence.
The Code of Criminal Procedure was enacted with three most important objectives: due
process consideration, speedy disposal consideration, and fair deal to poorer sections’
consideration. Here we can put some of the very significant stages through which criminal
cases are described. These stages are: stage of investigation, stage of trial, stage of
sentencing, and stage of prisonization.
1.6.1.1 Stage of Investigation
The first thing in the process of criminal procedure begins with the registration of complaints
by the aggrieved party in the police station. After having the information, the investigating
officer investigates both cognizable and noncognizable offences (under Sections 154 and
155). The crime can also be investigated if Police know about it from its own source (Section
157). The CrPC empowers police officer to investigate directly the cognizable offences and
in case of noncognizable offence he seeks the direction of the Magistrate. The task of the
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police officers during the period of investigation is to examine the witnesses and statements
from them. However, it is not obligatory on the part of the person to answer questions that
can trouble him and exposes criminal charge and subject to penalty. No statement made to the
police can be signed by the person or be used in any other way for trial stage. The only
evidence recorded in the investigation stage go to the trial stage if the confession or
statements recorded in terms of Section 164.
In case of the investigation not completed within 24 hours of arrest, according to Section
167 of CrPC that the person can be remanded to judicial custody, usually for 15 days.
Following the remand period provided the investigation is complete the police can file a
charge-sheet according to Section 173, CrPC. The process of investigation is legally
considered the autonomy of the investigating agency which usually prohibits interference
from outside to lead smooth and effective conduct of investigation. The investigation stage
includes three important components discussed below.
1.6.1.1.1 The Power to Search, Seize, and Arrest
The law entitles the investigating officer the power to “search premises, search incriminating
material and to interrogate and arrest suspected offenders.” “If an accused is not traceable, he
initiates proceedings in the court for getting him declared a proclaimed offender” (Section
82) and, thereafter, “for the confiscation of his movable and immovable assets” (section 83).
“He records his advice in the police file regarding the viability/advisability of prosecution.”
The absolute power to arrest in case of cognizable offence has been misused by police in
lot of cases. The Supreme Court of India has given its opinion that every incident of arrest
may involve justified and unjustified interference of individual’s liberty and therefore some
safeguards must be taken to ensure the rights of the person. The arrested person is entitled to
be informed about the grounds of his arrest, the relatives or family members must be
communicated about the arrest and the place of detention. Other details like details of arrest
mist be written in police diary.
1.6.1.1.2 Anticipatory Bail and Bail after Arrest
Once a person is arrested by police the first thing that the police officer should do is to inform
the grounds of arrest and to produce before the senior officer or a Magistrate withing 24
hours (Sections 56 and 57, CrPC). The person has a right to be medically examined in this
process (Section 54, CrPC).
Bail is a right of a person during the pending trial. Bails are available both in cognizable
and noncognizable cases. In case of bailable offence bail is taken as a matter of right (Section
436). The bail can be sought either by the person or his relatives before the appropriate court.
However, in case of non-bailable offence (Section 437) bail is not considered as part of rights
but as part of discretionary power of the Magistrate. The anticipatory bail is provided by laws
to a person before an arrest is made. If a person feels that a possibility is arising imminently
of arrest because some other individuals have been arrested in the same case then person can
apply for anticipatory bail. Section 438, CrPC has provisions to grant anticipatory bail as a
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part of right of individual to escape the political vendetta targeted against him. But, to control
crime and protect from interference of investigation, states in India have suspended the
application of such provision in their jurisdiction.
1.6.1.1.3 Release on Remand and Limitation of Pre-trial Detention
The accused person after his arrest is produced before the Magistrate withing 24 hours and
Section 167(1) empowers in this case to remand the accused for further investigation. The
power to remand satisfies two things, first, it enables the police officer to get the accused by
his physical presence before the magistrate, and second, fixing the remand period for 60 and
90 days for minor and major offences. The law allows the person to get bail within the
pending period of investigation.
1.6.1.2 The Stage of Trial
After the investigation is completed the police officer in charge files the charge-sheet and the
case is moved further to trial stage. In trial stage the task before the Magistrate is to determine
the guilty or conviction of the person. The Code of Criminal Procedure has classified the trial
based on offences into summon case and warrant case. In warrant case the person is tried for
cognizable offence of death, imprisonment of life or even a term exceeding of two years. It is
equally important as far as the hierarchy of the court is concerned. The Section 6 of CrPC
guides each state to establish courts in a hierarchical order: Court of Sessions, Judicial
Magistrates of the First Class or Metropolitan Magistrates, Judicial Magistrate of Second
Class, and Executive Magistrates. These courts operate differently according their
jurisdictions. The powers and jurisdictions of these courts and magistrates are already
discussed above.
The criminal proceedings in each case needs to be initiated by the court of Magistrate of
First Class even though the original jurisdiction lies with the Court of Session. In case it is
felt by the Magistrate that there is sufficient ground to begin the trial he begins the process by
summons or warrants to the accused to appropriate court. The criminal cases can be either of
the four types of trials: session trial, warrant case (trial by Magistrate), summon case (trial by
Magistrate), and summary trial. In this stage of trial two rights are crucial for the accused
person.
1.6.1.2.1 Right Against Double Jeopardy
According to the Section 300 of the CrPC, “once a person is tried by a competent court for an
offence or convicted or acquitted of such offence shall, while such conviction or acquittal
remains in force, not to liable to be tried again for the same offence nor on the same fact for
another offence for which charge could have been framed at the time of first prosecution.” In
the constitution of India, Article 20(2) guarantees that “No person shall be prosecuted and
punished for the same offence for more than once.” The objective of this provision is to
ensure the rights of an accused from harassment.
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1.6.1.2.2 Right to Legal Aid

The Sections 303 and 304 of the CrPC provide the right of an accused to defend his case by
appointing a legal consultant for safety and wellbeing. It also emphasizes on the fact that if
the accused is unable to pay the fees of the legal practitioner, he has every right to plead
before the state to provide him with free legal aid on behalf of state. Article 22(1) of the
constitution ensures “an accused person to consult and be defended by a legal practitioner of
his choice.” The right to legal aid is further strengthened by an amendment in 1976 by adding
Article 39A binding the “state to secure equal justice to all and provide free legal aid” to the
accused by suitable legislations and schemes. Under Article 21 of the constitution the
Supreme Court of India has made it obligatory on the part of the state to provide all kinds of
legal aid to the poor for protecting personal liberty.
1.6.1.3 The Stage of Sentencing
The third stage of the criminal procedure is the sentencing. Giving judgement or sentencing
an accused followed two stages of investigation and trial. Sentencing to an accused is
interpreted as a judicial process in which the Magistrate takes into account many reasonable
facts such as “community views, interest of the victim, and the possibilities of the socializing
impact of the accused.” The CrPC has fixed substantive punishment for each kind of offence
and the task of the Magistrate to declare sentence to an accused is a reflection of the
provision of the law in which court follows reformative sentencing. The two issues
mentioned below are important in this stage.
1.6.1.3.1 Right to Pre-sentence Hearing
The sections 235(2) and 248(2) of CrPC has granted statutory recognition to the accused to
be heard in the matter of sentence. Under Article 21 of the Constitution of India has provided
the accused person, which the Supreme Court has asserted, the right to life and personal
liberty. Such a provision ensures the right of the accused to say in the matter of sentence and
discloses personal facts as necessary part of individualization of punishment.
1.6.1.3.2 Pardon, Commutation, and Remission of Sentences
Democratic countries all over the world are fascinated by the human rights of the individuals.
The rights of the individuals even if they are accused of some offences still have rights to
defend themselves. The criminal justice system of every country including India has laid
down procedures to handle the criminal behaviour of the people. To give pardon to an
accused person is purely a matter of political discretion. The heads of the state like the
Governor and the President possess the right to pardon the accused in their respective
domains. Articles 72 and 161 respectively for the President of India and the Governor of
State exercise the power of pardon in case of cabinet recommendations. This is a matter of
subjective preference. The act of the executive to recommend the right to pardon has to go
through the judicial discretion of the courts. The power of the court in Judicial review cases
undermines the act as void provided it has infringed the provisions of the constitution of
India. In addition to this the state governments also exercise the powers to remit, suspend
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sentence, and commute sentence. However, the powers of the state governments are limited
by Section 433A of CrPC, that grants a fixed minimum of 14 years of life imprisonment in
case of death penalty. The Supreme Court of India has upheld this right as constitutionally
valid.
1.6.1.4 The Post-Sentence or Prisonization Stage
The last stage of criminal justice administration is to put the convict into the prison as part of
the punishment. Prison satisfies both non-custodial and custodial measures. The most
commonly followed the non-custodial measure is “probation release” under Sections 4 of the
Probation of Offences Act, 1958. The custodial sentences, on the other hand, are carried on in
prisons constituted according to the national prison laws and state prison acts and manuals.
The idea of prison and sentencing into prison an accused put the fact that it is a safe custody
and reformative custody not only for convict prisoners, but also under trial prisoners and
detenues who are remanded to judicial custody.
These stages are procedurally considered as features of criminal justice administration in
India. With proper investigation of the crime after being reported by the aggrieved party or
personal information of the investigating officer a charge-sheet is filed. Followed by
investigation and charge-sheet, the trial begins in the court of law by Magistrates to
determine the guilty and conviction of the accused.
The idea of rule of law and criminal justice system in India are incompatible with one
another because one without the other is not imaginable or practicable. The rights of the
individuals in India are guaranteed by the constitution of India. It is the source of all laws.
People always stick to the constitution whenever they feel that their rights are violated.
1.7 Further Readings
A. Andrew (1996) Arbitrary Government and the Rule of Law, in Arguing About the Law,
An Introduction to Legal Philosophy, Wordsworth, Boston.
K. Sankaran and U. Singh (2008) Introduction, in Towards Legal Literacy, New Delhi,
Oxford University Press.
B. Pandey (2008) Laws Relating to Criminal Justice: Challenges and Prospects, in Sankaran
and Singh, Towards a Legal Literacy, New Delhi, Oxford University Press.
SAHRDC, (2006) Criminal Procedure and Human Rights in India, in Oxford Handbook of
Human Rights and Criminal Justice in India: The System and Procedure, New Delhi, Oxford
University Press.
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Unit-2
Laws Related to Criminal Justice Administration

Dr. Garima Singh
Structure
2.1 Introduction
2.2 Aim and Objectives
2.3 Types of Criminal Offences
2.3.1 Cognizable and Non-cognizable
2.3.2 Bailable/ Non-Bailable
2.3.3 Compoundable and Non-Compoundable
2.4 First Information Report (FIR)
2.4.1 Who can file an FIR?
2.4.2 Procedure of filing an FIR
2.4.3 Content and Importance of FIR
2.4.4 In case of refusal to file FIR by Police
2.5 Complaint
2.6 Arrest and Detention
2.6.1 Arrest - Who can Arrest?
2.6.2 Procedure of Arrest
2.6.3 Rights of Arrested Person
2.6.4 Specific Rights of Women and Children
2.6.5 Detention of Arrested Person
2.7 Bail
2.7.1 Types of Bail
2.7.2 Conditions for Bail
2.7.3 Cancellation of Bail
2.8 Summary Points
2.9 Terminal Questions
2.10 Suggested Readings
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2.1 Introduction
In every civilized society, Criminal Justice system is composed of the laws that relates to the
societies response to the crimes and the procedure of the administration. The main objective
of criminal laws is to protect the society against the wrong doers and the law breakers. For
the purpose of maintaining law and order in a society, law holds threat of punishment to
prospective criminals and makes attempt to punish such offenders for the crimes committed.
Therefore criminal law consists of both; the substantive law which defines offences and set
down the punishments for the crimes, and the Procedural law which administer the
substantive law.
In India, the Procedural law or law of procedure has been laid down in Criminal
Procedure Code, 1973(CrPC). This branch of law administers the substantive law and
therefore lays down the procedure of the criminal justice administration. The CrPC applies to
crimes under Indian Penal Code, and offences under Centre Act and State Act. It is called as
law of procedure as it insists on a proper procedure to be followed while administering the
criminal Justice. The role of Criminal Procedure Code is to regulate and provide a
mechanism related to the procedure to be followed in any investigation, inquiry and trial. The
objective of the Procedural Law is to provide a method by which the administration of the
criminal justice can be rendered fairly and in accordance with the laid procedures. Therefore
procedures related to detection of crime, arrest, determination of guilt, rights of suspected
criminals are all a part of the procedural law. The main objective of this law is to let the
criminal administration system follow a procedure that ensure fair trial in which none of the
rights of the accused are neither compromised or unduly favoured.
Unfortunately, People in India have little knowledge of the procedure of the criminal
justice administration and often do not know about their legitimate rights in such cases. Such
ignorance of the procedure also leads to authorities like Police abusing powers in many cases.
It is therefore important for citizens to be aware of their legal rights and obligation in order to
have access to just procedure.
The Unit therefore will discuss the procedure of criminal justice administration i.e. FIR,
Arrest, Detention and Bail. Such basic information is important for people to know about
their rights and duties in relation to criminal offences.
2.2 Aims and Objective
 The primary aim of this Unit is to provide an understanding of the legal procedure of
the Criminal Justice system and how it works.
 It tries to acquaint the students with an understanding of legal procedures involved in
Complaint, FIR, Arrest, Detention and Bail.
 It intends to provide an understanding about the right of the person as a victim or an
accused and the procedure thereof.
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Once you go through the Unit you will be able to know:

 About the types of offences.
 Legal procedure of FIR and also the difference between a complaint and FIR.
 About procedure of Arrest and Detention and the right of the arrested person
 About the special right of arrested person like women and children
 About Bail in criminal offences and the procedure thereof.
2.3 Types of Criminal Offences
There are three types of offences:
2.3.1 Cognizable and Non-cognizable
Cognizable offences are those offences in which police have authority to arrest the person(s)
accused of committing crime without a warrant. The police after such an arrest can also carry
out investigation process without the orders of the magistrate / court. Cognizable offences are
crimes which can be categorised as heinous crimes and are thereby serious in nature.
Examples of such offences are kidnapping, rape, death on account of dowry, murder, theft
etc.
The Non-cognizable offences on the other hand, are those offences which are not of
serious nature like cognizable offences and in the case of Non-cognizable offences, as
pointed in Section 155(2) CrPC, the police department cannot arrest a person(s) without the
prior approval of the court/ Magistrate. Also, in cases of Non-Cognizable offences, the police
can neither register an FIR, nor conduct investigations without the permission of the court.
Crimes such as causing public nuisance, forgery, cheating etc falls under this category.
2.3.2 Bailable/Non-Bailable
Bailable offences are offences which are listed in Section 2 (a) of Code of Criminal
Procedure 1973 (CrPC). They are offences that are less serious in nature than Non-bailable
offences and the accused can claim bail as a matter of right. In case of bailable offences if the
accused produces surety and fulfil conditions, it becomes binding on the investigating officer
to grant bail.
The Non-bailable offences are offences which are serious and grave in nature. Under
such offences, it is mandatory to present the accused before the magistrate/ Judge within 24
hours of arrest. Granting bail in such offences is left to the discretion of the court which can
decide on the basis of the facts and circumstances of the crime committed.
2.3.3 Compoundable and Non-Compoundable
Compoundable offences are those offences which can be compromised by the parties i.e. the
victim and the offender. The parties can arrive at mutual compromise and drop charges
against the offender even without the permission of the court or any trial. These offences are
classified in Section 320 of Code of Criminal Procedure.
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The non-compoundable offences are offences which are serious in nature and hence not
compoundable. Any settlement between the parties in such cases is not authorized. The
accused in such cases cannot be set free of charges by any settlement between private
individuals as often these offences are filed by the police or the ‘state’. They are decided for
the acquittal or conviction of the offender only after the conclusion of the trial.
2.4 First Information Report (FIR)
First Information Report (FIR) is a document that is prepared by the police on receipt of
information about commission or occurrence of an offence. It can be filed in the cases of
cognizable offences only. FIR plays a very vital role and acts as the base on which Police
further initiates the process of investigation. Many a times, people confuse FIR with
Complaint. But, there lies difference between them.
The term “Complaint” is defined under Section 2(d) of CrPC as “Any allegation made
orally or in writing to a Magistrate, with a view to his taking action under CrPC that some
person, whether known or unknown, has committed an offence, but does include a report.” It
means that complaint refers to a statement of allegations of an offence reported by a person
against some person/offender directly to a competent Magistrate for the initiation of legal
action. Whereas, FIR is a report of cognizable offence reported by any person against the
offender to the office in charge of a police station.
Thus, we can note that under FIR, person can report only cognizable offence to the
police, whereas under a ‘Complaint’ a person may report either a cognizable or a non
cognizable offence to the competent Magistrate. In a complaint a police officer do not start
any investigation and may begin with the investigation only after receiving an order from the
competent magistrate.
2.4.1 Who can file an FIR?
FIR can be lodged by a victim or the witness(s) or any other person having due knowledge of
the commission of the cognizable offence. It is not necessary that only a victim against whom
the crime is committed should file an FIR. Even a Police officer can file an FIR if he knows
about the commission of the crime committed.
2.4.2 Procedure of filing an FIR?
The procedure of lodging a FIR can be referred in Section 154 of CrPC. The FIR can be filed
in writing or verbally by the victim or the witness(s) or any other person having knowledge of
the crime. It is like a narration of the story of the crime committed to the office in charge of
the Police Station in written or in oral. If the information of the commission of the cognizable
crime has been rendered orally, the information shall be reduced to writing in form of a report
by the Police. Such a report, either given in written or reduced to writing shall be read over
by the police to the complainant and shall be duly signed by the complainant providing such
information.
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It is to be noted here that it is the right of the person filing an FIR to know the details of
the information received and recorded by the Police. In order to ensure the same, it is
important that the information should be clearly read out by the police for verification of
details and signatures of the person filing the FIR should also be obtained for the registration
of FIR. Further, the substance of the FIR must also be entered in the Station House Register
or Station Dairy to keep a clear record of the FIR, and the copy of FIR so registered shall be
also provided to complainant free of cost.
Also, for filing of an FIR, area of jurisdiction is also important and it should be best
lodged in the police station of the area under whose jurisdiction the offence has taken place.
However, there is also a provision of Zero FIR; the difference between the two is that FIR is
filed with the police station under whose jurisdiction the offence has taken place, whereas
Zero FIR can be filed with any police station irrespective of the jurisdiction of the crime
committed. However, the main investigation in Zero FIR only starts after the case is duly
transferred to the police station under whose jurisdictions the area of offence falls.
It is also important to note again that information so provided by the complainant to the
incharge of the police station must be of commission of cognizable offence. If the
information so given is not of commission of cognizable offence the Police need not initiate
investigation on such FIR.
2.4.3 Content and Importance of FIR
FIR is the First Information Report of the commission of the offence and therefore is the first
step for the Police to start the further investigation and initiate criminal proceedings. It
thereby holds a great relevance of being a valuable document. The Content of the FIR should
be very clear regarding the commission of a cognizable offence and must not be vague. FIR
must include the following information:-
1. It should include the Name, address and the phone No. of the complainant and the
accused in case the accused is known.
2. It should include the date, time and place of the offence so committed.
3. It should include the details of the commission of the cognizable offence, including
the details of the circumstances in which the crime took place.
4. It should also include any third person(s) details who have been a witness to the
commission of the offence.
5. It should also detail about the method in which the offence took place, weapons used
and details related to injuries caused therefore.
6. Further, all such details that are important for the Information to be complete and
competent for it to be called a cognizable offence should be clearly provided.
The FIR is therefore a valuable document and its importance lies in it being apt and clear
with all the details that help the Police move criminal proceedings. The information on which
the police is expected to investigate should be authentic and true. The FIR should not be
lodged with malafide intentions by giving false statement to the police. If a person provides
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false statement to the police, the person is then liable to punishment under Section 182 and
211 of the Indian Penal Code.
2.4.4 In case of refusal to file FIR by Police
In case of Refusal by the officer in charge of the Police Station to file a First Information
Report, the Section 154 (3) provides for the remedy which states that in such case, the
aggrieved person may send the information in writing by post to the Superintendent of the
Police regarding the commission of a cognizable offence. If the Superintendent of the police
is so satisfied that the commission of the offence is a cognizable in nature and needs
investigation, he/ she may investigate the case directly or direct the investigation to a
subordinate police officer in the manner provided by CrPC. Further the Sub-Section (3) of the
section 154 also provides that the officer so authorized by the superintendent of the police
shall therefore have all the powers of an officer in charge of a police station in relation to that
offence.
Also, if the police refuses registration of FIR for offence which is cognizable in nature,
the aggrieved can also file an application to the Magistrate under section 156(3) of CrPC who
can direct the Police to lodge an FIR and carry the investigation.
2.5 Complaint
As discussed earlier that often the term Complaint is misunderstood as FIR, The ‘Complaint’
as defined under Section 2(d) of CrPC are the allegations by the aggrieved against the
offender, known or unknown, in a form of complaint made to the magistrate that the crime
has been committed. The complaint as stated earlier can be filed for both types of offences
Cognizable and non-cognizable. A complaint does not set the criminal law in motion and the
police may not investigate the matter unless directed by the court to do so.
2.6 Arrest and Detention
Arrest and detention are important tools for the investigation of an offence. For effective
investigation and for the maintenance of law and order, it is important to arrest the person(s)
accused of committing the offence. In general terms, Arrest means an act of apprehending or
restraining a person’s liberty by taking a person accused of committing offence under the
legal control. Every act of restraining a person and forbidding the person to enjoy liberty is
not arrest. It should clearly be made by a legal authority in a competent and prescribed
manner. The provisions of arrest of person are highlighted in Sec 41-60 of the CrPC, 1973.
After the person is arrested, the person remains under the custody of an authorized authority.
It is also to be noted here that there is a difference between custody and Arrest. So an arrest
means taking a person under the custody and restraining them from exercising personal
liberty as they have been accused of committing a crime. But custody according to the Indian
Evidence Act, 1872, means an act of movement on the person concerned for the purpose of
making a formal arrest or even for the purpose of guarding and taking care of a person. So we
can decipher that all arrest require custody, but all custody does not account to Arrest.
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2.6.1 Arrest – Who can Arrest?

In criminal Procedure code, Arrest is an important tool for bringing the person who has been
accused of committing an offence before the court and therefore preventing the person from
eloping for the process of trial. Thus, when a person is arrested the arrestee takes over the
liberty of the person in their control for further procedure to follow.
According to the Criminal Procedure code, Arrest can be made by Police, Magistrate or a
private person.
 Arrest can be made by the Police in both, i.e. Cognizable and non-cognizable
offences. But, as discussed earlier, and as defined in Sec 155 of CrPC, while the
police require warrant for arrest in case of non-cognizable offences from the
competent Magistrate, they may arrest a person(s) without warrant from a magistrate
in cases on cognizable offence committed. The Sec 45 of CrPC exempts the members
of Armed forces from being arrested for anything done by them in discharge of their
official duties except after obtaining the consent of the government.
 Arrest can also be made by a private person under Section 43 of CrPC, if any person
in the presence of the private person commits a Non-bailable and cognizable offence
or is a proclaimed offender. The private person can take such a person and hand over
its custody to the nearest police station.
 Under Section 44 of CrPC, Arrest can also be made by the Magistrate if the offence
has been committed before the magistrate, whether Executive or Judicial, within his
local jurisdiction. The magistrate exercises the right to arrest the offender without a
warrant.
2.6.2 Procedure of Arrest
 The CrPC lays down the procedure for arrest or how arrest can be made. According to
Sec 46(1) of CrPC, in making an arrest the police officer or other person making the
arrest shall actually touch or confine the body of the person to be arrested, unless
there is a submission to the custody by word or action.
 A person can also be arrested forcibly if the person resists or attempts to evade arrest.
The Police is authorized to use necessary means to give effect to such arrest. However
that does not give right to cause death of a person who is not accused of an offence
punishable by death sentence or life imprisonment.
2.6.3 Rights of the Arrested Person
The Indian Constitution, the Code of Criminal Procedure, judgments of the Supreme Court of
India and other Human Rights Covenants and Conventions has set several standard
procedures as to the rights of arrested person. The rights can be assessed by the person at
various stages of the process of the arrest.
 Right to be informed regarding the grounds of arrest - In case of arrest with or without
any warrant, the person accused of committing a crime has a right to be informed of the
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grounds on which the arrest is made. According to Sec 50(1) of CrPC and Article 22(1)
of the constitution, no person shall be arrested or detained in custody unless the
information about the reason of the Arrest is made available to the person concerned.
Such knowledge is also important in order to allow a person to apply for Bail or consult
and get defended by the legal practitioner of choice which further is also a right of the
arrested person. Also it is mandatory for the police to inform relatives or friend or any
nominated person by the arrested person of the arrest made. The details about the arrest
are also maintained by the police in their register.
 Right to apply for Bail – The person arrested by the police has to be informed regarding
their right to apply for bail. In case of Bailable offence the person should be informed
about their right to be released on bail after fulfilling the sureties as it may require. In
case of Non-Bailable offence, bail is not a right and can be applied only before the court.
 Right to be presented before the magistrate within 24 hours of arrest - The Article 22
(2) of the Constitution prescribes that a person who has been arrested and detained in
custody for the commission of a crime should be produced before the nearest Magistrate
within a period of 24 hours of arrest which is exclusive of the time necessary for the
journey from the place of arrest to the nearest Magistrate’s Court. It ensures safeguard
against any illegal detention of the arrested person.
 Right to get Free legal Aid – the system ensures that the justice can be rendered to even
those who are poor to access any paid legal services. Under article 39 A, free legal aid is
a right of the accused who cannot afford legal services for their defense.
 Right to be examined by Medical Practitioner – Under Section 54 of CrPC, the person
arrested have a right to get seek medical examination for the purpose of getting evidence
which could prove his/her innocence in the crime in which he is accused. The magistrate
can approve of medical examination of such person by a registered medical practitioner.
2.6.4 Specific Rights of Women and Children
 It is important to note that a male police officer has no right to touch a women’s body,
even for the purpose of arrest. Also, arrest of a female between sunset and sunrise
should be avoided, if required can be made by the permission of the magistrate in
presence of lady police.
 According to Sec 51(2) of CrPC, whenever it is necessary to cause a female to be
searched, the search shall be made by another female with strict regard to decency.
 For the purpose of examination of the arrested female, the examination of the body
shall be made only by or under the supervision of the female medical officer or
female registered medical practitioner.
 If the woman is detained in the police custody, she must be guarded by the female
police officer.
 Women has right to get free legal aid and even can be granted bail in non-bailable
offences.
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 Police must avoid arresting a pregnant woman and if arrested, the female should be
provided with pre and post natal care.
 When a juvenile or a child or person below the age 18 years is arrested, juvenile
should be placed under the charge of the special juvenile unit or the designated police
officer and such matters should be immediately reported to Juvenile Justice Board.
 When a juvenile is arrested and brought before an officer in charge of a police station
the parents/ guardians should be immediately informed of such arrest.
 If the juvenile is accused of a bailable or non-bailable offence and is arrested, He/she
must be released on bail with or without surety. If not released on bail for some
reasons then such Juvenile should be sent to observation home till bought before a
Board.
 A juvenile accused of a crime cannot be tried together with adults and should be
separated even if involved in the similar or same crime.
 The trial of the juvenile must be done under the Juvenile Justice (Care and Protection
of Children) 2015 Act.
2.6.5 Detention of Arrested Person
The Constitution of India and the CrPC consider certain procedural requirements post arrest
for the detention of an individual who has been arrested. The Article 22 (2) of the
Constitution prescribes that a person who has been arrested and detained in custody for the
commission of a crime should be produced before the nearest Magistrate within a period of
24 hours of arrest which is exclusive of the time necessary for the journey from the place of
arrest to the nearest Magistrate’s Court.
It is therefore mandatory to produce such an arrested person before the Magistrate within
24 hours of arrest, any violation of the right of the individual in this regard, shall be
considered as an infringement of constitutional right and such detention shall be considered
unlawful. Further, any authorization of further detention for facilitating investigation process
beyond 24 hours can only be considered by the Magistrate under the Sec 167 of CrPC.
In case that it appears to the investigating officer that the investigation cannot be
completed within 24 hours of the arrest of the accused, the office in charge of the Police
station can seek extension of the period and shall transmit the copies of the entries in the
diary related to the case to the magistrate along with the person detained. The magistrate
therefore under the Section 167 of Cr.PC can authorize further detention as they think fit for a
period not exceeding 15 days. In instances where the magistrate exercises jurisdiction over
the case of such arrest and he/she thinks fits that the detention of the accused is desirable for
further investigation, the period of detention can be for 60 days. Further, if Magistrate thinks
fit and the case so satisfies that the investigation is related to offences punishable with death
or life imprisonment, the period can be extended to 90 days. No Further detention beyond this
period can be authorized.
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2.7 Bail
Bail means a provisional release of an arrested person from legal custody until the trial. The
release of the accused is conditional and is on the basis of the security or bail bond that the
accused person deposits in order to be released from the custody before the court arrives at
the final judgment. The objective of the bail is to ensure that the accused appears timely
before the court for the trial. The Bail process is also important in criminal justice system as it
allows the accused to remain in the community and have a better chance to present their case.
The accused also gets freedom to defend their case in a way of seeking advice from friends,
legal practitioners, tracing witnesses and may even continue with the job.
We have already discussed about the provisions of bail with regards to Bailable offence
and Non-Bailable offence. In the case of Bailable offence, getting bail is a right of a person
and it is mandatory for the police to grant bail with or without sureties to a person in
commission of Bailable offence, whereas in Non-Bailable offence, Bail is discretion of the
court depending on the nature and facts of the crime committed.
2.7.1 Types of Bail
The types of the Bail can be classified in three categories. The claim to the type of the Bail
depends on the stage of the criminal matter
1. Regular Bail – Regular Bail can be granted to the person who is already in the custody
after the arrest for commission of non-Bailable offences under section 437 and 439 of
Criminal Procedure code.
2. Interim Bail – It is a temporary Bail which is granted for a short period of time or for
period till person applies regular or Anticipatory Bail.
3. Anticipatory Bail – It is a Bail which is like a pre-preparation by the person who
deciphers that he/she can be arrested under a non-bailable offence. The person can
apply for a bail to the sessions court or High court seeking a direction that in case of
his arrest, he may be released on Bail.
2.7.2 Conditions for Bail
The Bail can be granted by the Magistrate the accused under these conditions:
 Is subject to some special conditions
 Is subject to bond with or without sureties
In case of Special conditions for granting of the Bail, it is usually a condition that the accused
must comply with in order to remain outside of the custody. These conditions can be that the
accused person must report to the police station at specified time or surrender his passport
etc. in order to ensure that the person remains available and does not escape before the trial
ends. It is important to comply with bail condition as failure to do can result in arrest of the
person.
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The special conditions should also be reasonable and if the person so feels that they are
unreasonable, such conditions can also be challenge in a Court as unreasonable conditions
and the person may not accept them. But in such condition the accused will not be free from
custody till the accused either fulfils the special condition or either challenges the conditions
in further appeal for his/her favour. Bail can also be granted on the basis of bond like even
the personal bond can be the basis of bail, where a person agrees to be available till the trial
ends or bail can also involve such sum of money as the police officer or court thinks
sufficient for surety that accused will attend of the time and place mentioned in the bond.
These conditions are not mutually exclusive and both the conditions can be applied at the
same time for bail.
Further, if application for bail is rejected by the Magistrate, the accused person can
appeal to a next court in hierarchy. In such cases the accused can incorporate objections
raised by the police or the court in granting bail in the next application for bail. If again the
bail gets rejected, the person can also try in the next Court appearance for the same.
2.7.3 Cancellation of Bail
The discussion regarding the law relating cancellation of bail in India can be found contained
in Section 439(2). It provides that Bail of the accused can be cancelled and a High Court or
the court of the sessions can exercise discretion on cancellation and such person earlier
released on bail can be taken back in the custody.
2.8 Summary Points
 In every civilized society, Criminal Justice system is composed of the laws that relates to
the societies response to the crimes and the procedure of the administration.
 In India, the Procedural law or law of procedure has been laid down in Criminal
Procedure Code, 1973(CrPC). This branch of law administers the substantive law and
therefore lays down the procedure of the criminal justice administration.
 Therefore procedures related to detection of crime, arrest, determination of guilt, rights of
suspected criminals are all a part of the procedural law.
 There are three types of crimes: Cognizable and Non-Cognizable, Bailable/Non-Bailable
and Compoundable and Non-Compoundable.
 Cognizable offences are those offences in which police have authority to arrest the
person(s) accused of committing crime without a warrant. The Non-cognizable offences
are those offences which are not of serious nature and the police cannot arrest a person(s)
without the prior approval of the court/ Magistrate.
 Bailable offences are offences in which the accused can claim bail as a matter of right.
The Non-bailable offences are offences in which it is mandatory to present the accused
before the magistrate/ Judge within 24 hours of arrest.
 Compoundable offences are those offences which can be compromised by the parties.
The non-compoundable offences are offences which are serious in nature and hence not
compoundable. Any settlement between the parties in such cases is not authorized.
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 First Information Report (FIR) is a document that is prepared by the police on receipt of
information about commission or occurrence of an offence. It can be filed in the cases of
cognizable offences only.
 Complaint refers to a statement of allegations of an offence reported by a person against
some person/offender directly to a competent Magistrate for the initiation of legal action.
 FIR can be lodged by a victim or the witness(s) or any other person having due
knowledge of the commission of the cognizable offence.
 The FIR can be filed in writing or verbally by the victim or the witness(s) or any other
person having knowledge of the crime.
 In case of Refusal by the officer in charge of the Police Station to file a First Information
Report, the Section 154 (3) and 156(3) provides for the remedy.
 Arrest means an act of apprehending or restraining a person’s liberty by taking a person
accused of committing offence under the legal control.
 According to the Criminal Procedure code, Arrest can be made by Police, Magistrate or a
private person.
 The Indian Constitution, the Code of Criminal Procedure, judgments of the Supreme
Court of India and other Human Rights Covenants and Conventions has set several
standard procedures as to the rights of arrested person.
 There are specific Rights of arrested person in case of women and children.
 The Article 22 (2) of the Constitution prescribes that a person who has been arrested and
detained in custody for the commission of a crime should be produced before the nearest
Magistrate within a period of 24 hours of arrest which is exclusive of the time necessary
for the journey from the place of arrest to the nearest Magistrate’s Court.
 Bail means a provisional release of an arrested person from legal custody until the trial.
 The types of the Bail can be classified in three categories; Regular Bail, Interim Bail and
Anticipatory Bail. The claim to the type of the Bail depends on the stage of the criminal
matter
 Bail of the accused can be cancelled and a High Court or the court of the sessions can
exercise discretion on cancellation and such person earlier released on bail can be taken
back in the custody.
2.9 Terminal Questions
Q1. What are the types of offences?
Q2. What is an FIR? What is the difference between an FIR and a Complaint?
Q3. What is the relevance of FIR and what all should be included in FIR?
Q4. What is arrest and how is arrest made?
Q5. What are the rights of the arrested person?
Q6. What are the special rights of the arrested person?
Q7. What is Bail and what is the condition of Bail?
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2.10 References and Suggested Readings

 RATANLAL RANCHHODDAS, THAKORE, D. K., & MANOHAR, V. R.
(2013). Ratanlal & Dhirajlal’s the Code of Criminal Procedure. Gurgaon, India,
LexisNexis Butterworths Wadhwa Nagpur.
 BASU, D. D. (2005). Introduction to the Constitution of India. New Delhi, Wadhwa and
Company.
 KELKAR, R. (2000). Criminal Procedure. Eastern Book Company
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Unit 3: Equality and Non-Discrimination
(a) Gender: The Protection of Women against Domestic Violence,

Rape and Sexual Harassment
Dr. Smita Agarwal
Women in India have always been subject to state’s protection right from advent of British
rule. This had led to spate of legislations and reform movements to improve their condition.
This effort continued even after Independence when the new government tried to improve
their condition by guaranteeing those rights through ‘Hindu Code bill’. Despite the
constitution guaranteeing, equal rights to them women constantly faced violence that
continues until date. This was the reason that made United Nations Human Rights
Commission comment that violence against women occur still today all around the world. In
some places, this violence starts from the womb and continues until they die. Broadly,
various studies and researches on violence against women in India have shown that it is the
reflection of the structural and institutional inequality prevailing in the society. “Many
victims live in family settings that are rooted in deeply entrenched patriarchal and customary
practices that are sometimes harmful to women”. The widespread socio economic
dependency of women, subordinates them to their husbands and other family members. “The
fear of social exclusion and marginalization, and the lack of effective responses towards
violence, keeps them in a context of continuous violence and intimidation.” It also reflects the
historical unequal power relations that are shared between men and women. It translates into
women being dominated and discriminated. [UNHRC 2014]. Researches have also shown
that women in India face different kinds of violence. This chapter will solely focus on
domestic violence, rape and sexual harassment at work places that has become the most
intriguing violence faced against them.
Domestic Violence against Women
Hindu scriptures point to the fact that women and men hold complimentary relations in a
family setup. This was largely based on each one doing their share of work to uphold family
and society. However, this relationship was transferred to a hierarchical relationship due to
the nature of work women performed. As a result, they came to occupy subordinate position
that led to a system of violence coming into place. This was further perpetuated by various
social and institutional practices that made women subservient to man. In fact they were only
allowed to live beneath the shoes of their husbands and fathers. The institution of marriage is
sacred and binding for generations in India. Domestic violence is very well known and most
frequent form of violence practiced against women in India.
Domestic violence against women is understood as a situation where home and its
support structures perpetuate violence of different kinds like physical, psychological and
emotional thereby taking away their dignified lives. In fact in some cases this violence
becomes so harsh that it can lead to deaths of the victims. This is largely the result of
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gendered norms and values that place women in a subordinate position in relation to men.
seeing a rising trend of violence against women and an effective women’s movement at the
ground level made the Government of India enact a special legislation known as Prevention
of Domestic Violence Act, (PDVA) (2005) to counter this menace. It is not that there were no
laws earlier that could combat this problem. Article 498 A of IPC specifically deals with
offence committed against the wife by her husband and relatives that could lead to
punishment. However, PDVA was enacted to cater to different kinds of violence faced by
women in their homes. Some of the key provisions of this Act are as follows
a) This Act has come to include physical, sexual, verbal and psychological violence that
is constantly perpetuated against women in the domestic sphere by either use of
physical force or verbal abuse.
b) This Act has widened the ambit of who all can file the complaint against violence in
the domestic sphere by including mother, sister, wife, widow or partners living in a
shared household.
c) The complaint can be filed not just against husband only but also against any other
male and female members living in the domestic space.
d) This act has therefore increased the ambit of domestic by including those who had
shared their household at some point of time and that necessarily does not include
having marital relationship. this act therefore brought live in relationship within the
ambit and thereby providing live-in partners with legal remedy.
e) The complaint can be filed by aggrieved person or protection officers or relatives.
f) This act also has provision for providing the aggrieved party with medical aid and
alternate shelter homes if the situation is grim.
g) The cases when goes for hearing can have directions ranging from counselling to
stopping forced evictions of women to jails and punishments.
Despite the act been very holistic that tries to cater to this problem in an institutional
and structural manner researches and studies, show that the Act has not be fully
utilized to achieve its ends. It has been throttled by institutional machinery like police
and society behavioural that has left the guilty unpunished. This can be seen from the
data of National crime records bureau where the number of cases registered
under section 498 A of IPC that deals with cruelty perpetuated by husband or relatives
has seen an increase of 21.3% in 2019 compared with 2018. On the other hand, the
number of cases registered under the Protection of Women from Domestic Violence act
2005 saw a decline of 4.5% in 2019 over 2018. The number of cases registered under
Section 498A was 1,04,551 in 2017; 1,03,272 in 2018 and 1,25,298 in 2019 while the
number of cases registered under the domestic violence Act was 616 in 2017, 579 in
2018 and 553 in 2019. (NCRB report 2018) This kind of anomalies in reporting has
largely been due to the following reasons.
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Socialization process: Marriage as an institution in India is considered very sacrosanct. This

is further accentuated by the structural dependency of women on men. This is largely the
result of women in need of protection whereby men in various relations come forward. In
Indian society there is an operation of protection racket. This racket works on creating a
dichotomy between women - feminine, dependent, weak, vulnerable, who needs to be
protected and on the other hand Men- masculine, chauvinist, protector, controller of forces of
production and reproduction. This dichotomy causes pastoral power where women willingly
accept subordinate status as they have internalized these beliefs and practices. Women in
exchange of security provided to them by men give their obedience and loyalty. This makes
them accept men’s unquestionable authority and therefore violence. Most of the times,
domestic violence cases go un-reported in the police stations which have lead to their deaths.
This is largely due to this socialisation process whereby they internalise the beatings and
violence faced by them as their destiny. Women are either not supported by their kin to bring
perpetrators of violence to punishment by trying to save ‘ghar ki izzat’ or institutional
machinery will not investigate or report these cases saying it as “it is an internal affair solve it
amongst yourself”. One research narrative told her agony when she said, “I do not have a
single soul in this world to which I could show the wounds of my heart.”
Domestic violence is considered normal: various studies and research articles by
practitioners and activist have pointed to the fact that socialization process in India has made
women accept violence as normal. Right from their childhood until their formative years the
structural inequality faced by girls and feeling of having power over girls being developed in
boys have made both the parties realize domestic violence as normal. As a result the language
is cloaked as these small abuses, beatings is not so great to make a mountain out of a mole.
Thereby most of the times domestic violence is shielded under silence.
Lack of awareness of these laws: studies have pointed to the fact that patriarchal value
system of the society has hidden such kind of progressive laws by not imparting information
or making women aware of the prevalence of this act. As a result, many victims are not able
to utilize it for their rights.
Lack of institutional apathy: Various researches have pointed at the insensitive nature of
police and its ancillary agencies towards domestic violence. It has been seen most of the
times victims after gathering courage to go and report the case , the police officer either does
not write the report or rebukes the victim and says to go back home saying that it is ‘Ghar ka
mamla’( internal problem of your house) solve it yourself. Even when cases are reported, the
investigations are not carried out properly leading to dismissals of cases as being false. Many
a times the magistrates while hearing the cases rather than recommending punishment would
suggest counselling and trying to patch up. This apathy is largely due to patriarchal mindset
whereby violence is normal in every household so why make a fuss. Secondly, this mindset is
still not ready to accept the fact that women can have ‘independent’ rights.
The Protection of Women from Domestic Violence Act grants Indian women more rights
and protections than have ever been granted to them in the past. Unlike previous domestic
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violence laws, which provided protection only in cases of dowry deaths and extreme cruelty,
the Act defines domestic violence broadly to include everything from physical violence to
emotional injuries to economic threats. Furthermore, the Act provides civil remedies to fill
the gap between the restrictive criminal laws and the extreme civil remedy of divorce. Most
importantly, for the purposes of the women's rights movement in India, the Act grants a
specific right to women, the right to reside in the shared household. The language of the Act
is exceptional, and the Act, if implemented properly, has great potential to make a difference
in the lives of women victimized by domestic violence. However, various characteristics of
Indian culture threaten the Act's effectiveness. The main barrier to successful implementation
is the deeply ingrained patriarchal mindset of Indian society. Among all classes and levels of
society, women are viewed as subordinate to men. The patriarchal mindset does not affect
just the general public but it also affects the very people who are supposed to protect women
from domestic violence. Therefore, many steps must be taken to promote the effective
implementation of the Act.
Recommendations for making this Act effective
The Act will not be effective in reducing overall levels of violence unless the patriarchal
mindset of Indian society is dismantled. Indian women are empowered to recognize that
violence is unacceptable. NGOs and the government must take additional steps to ensure the
Act is effective in protecting women.
Various studies have recommended the following to make it more widespread
 Socialization process should be initiated in the schools by making it part of the
curriculum.
 This Act should be publicized through various social media platforms so that it
reaches the wider audience.
 Performing gender sensitization training of all protection officers, police, lawyers,
magistrate judges, and all other parties involved in the implementation of the Act.
 Number of attorneys available to provide legal representation to victims of domestic
violence should be increased by the state so that women do not have to struggle with
respect to finding good lawyers or paying huge fees to them.
 Number of shelters home for women should be increased that can provide them with
basic minimum standard of living to them and their children. These shelter homes
should also provide them with basic skills that can help them attain some employment
to support their children.
Although the Act is a great achievement for Indian women, NGOs and the government must
carefully monitor the enforcement of the Act and work together to dismantle the patriarchal
mindset that threatens to make the Act ineffective. It is the fundamental right of all Indian
citizens to enjoy life and liberty and it is the duty of the state to ensure that they can do so
within the framework provided by the Constitution of India and the international obligations
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such as ( Committee on elimination of Discrimination Against women) CEDAW, which

India has accepted. Law does not operate in a vacuum and must take into consideration
social, economic and cultural factors. Fairness must be the central concern for women even
when they are dealing with abusers. A multi pronged approach to violence against women
will result in far reaching changes, transforming attitudes and practices so that women and
men can live a life of equality and dignity. Most importantly, women have to take step firstly
to protect themselves from this kind of evil.
Rape
Rape has been rampant in the Indian society. This is largely the result of patriarchal mindset,
which objectifies women body, and therefore sees it as a commodity to satisfy men’s lust. As
a result, men have found it easy to breach the modesty of women without their consent. As
per Indian penal code of Article 375 rape is defined as a sexual intercourse without the
consent of the victim either forcefully or deceiving her by intoxicating her.
As per National Crime Records Bureau Data 2018, number of rape cases registered all
over India below 18 years in 9433, while rape cases registered above 18 years for 2018 is
24554 cases. Out of these rape cases carried out, 93.3 % of offenders were acquaintances to
rape victims. Only in 50% of cases was investigation carried out by the police and disposed
of by the courts. With such a slow rate of conviction for registered cases definitely, there is
general insensitivity towards the crime that it persists and is increasing even after so many
years of Independence.
This insensitivity was glaring unfolded by women’s movement in 1970’s when women
activist and lawyers came out against the judgment in Tukaram vs The State of Maharashtra,
popularly known as the “Mathura Case”. Mathura was a young tribal girl between 14 and 16
years of age - according to the medical opinion. She was called to the police station and
detained - an act violative of criminal procedure itself. This was because it required the
presence of women officer and no female could be called to police station late at night. The
police personnel present in the police station while in custody then raped her. The Session
Judge disbelieved the medical opinion and held that there was no satisfactory evidence that
she was below 16 years - legally accepted as the “age of consent” for sexual intercourse. He
rejected her statements of rape by holding her to be a ‘shocking liar’ and said that mathura
had willing conceded to the sexual intercourse. This case then went to High court where the
police officers who were acquitted by the Sessions court were convicted by the High Court
on appeal. They then appealed to the Supreme Court, which reversed the conviction, and
acquitted the constables.
What could be seen through a misogynist lens were Supreme court’s verdicts that had
nullified all evidences presented by Mathura in her defence by stating that there were no
marks of injury and “their absence goes a long way to indicate that the alleged intercourse
was peaceful”. This therefore made the police officers free. This scenario was common
whereby rapist of young girls were never punished. This highlighted the patriarchal lenses
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that operated in the Judiciary. What was shocking was that the upholders of law that is the
police officers were the ones who were violating the laws. Because of this breach, four law
teachers wrote an Open Letter to the Chief Justice regretting that this was “an extraordinary
decision sacrificing human rights of women under the law and Constitution”. They
categorically highlighted the point that justice is a delusion for poor people that points at the
socio-economic background of Mathura, a young tribal girl. They categorically highlighted at
the vicious circle where by lack of knowledge of legal rights works in tandem with lack of
access to legal services that denies victims justice. The law teachers requested the Court to
hear the case by a larger Bench by having a sensitive eye towards facts that was being said by
the victim. This open letter was followed by demonstrations, demands, movements that
compelled the Government to move for amendment of the law of rape that was of 19th
century times. That law put the onus on the victims to prove that they were raped , which
always resulted in insensitive trials and cross questioning of the victims that made them feel
dejected towards justice system. The law teacher’s demonstrations and demand categorically
pointed at the patriarchal laws and mode of investigation and trials that made the victims go
through the ordeal of narrating rape events repeatedly that was in itself humiliating. Due to
this plea, the government then set up a law commission that categorically looked at the
concerns raised by the law teachers. After detailed discussions by various groups and
organizations , law commission did accept the fact and incorporated their suggestions that
trials and investigations of rape has be too sensitive and should be speedy so that police
would be compelled to discharge their duties efficiently and promptly.
This led to a drastic amendment of law. The recommendations categorically stated that
the concept of custodial rape as a crime was more heinous than ordinary rape. This would not
be acceptable as protectors of law become violators than definitely justice system will
collapse. The insertion of this clause would ensure that sexual abuse of women in custody,
care or control, by various categories of persons would be prevented. Clause of ‘consent’ in
rape cases that led to offenders being discharged. The new law specifically stated that
statement by the victims in all types of rapes; be it gang rape, rape of pregnant women or
custodial rape would solely be admissible on the statement made by the victim. However,
marital rape was still not included. In fact after Nirbhaya rape case when again a law
commission was constituted to decide about punishment of offenders who were not adults
under Justice Verma even then marital rape was not included as a category of rape. This was
largely due to other anomalies in the laws that had risen minimum age of marriage for girls to
18 years by amending the Child Marriage Restraint Act, whereas the age of consent for
sexual intercourse under rape law has remained fixed at 16 and in case of wives 15 years.
Thus, there can be no charge of rape against a husband who forces sexual intercourse on his
wife, if her age is 15 plus. This contradictory position has not been corrected by the
legislators till date. The current demand of women’s organizations is that this provision
should be deleted and forcible rape with a wife whether she is below 18 years of age or above
should be considered rape. The expectation of the Law Commission (though the Government
did not accept many of their very admirable recommendations) or of the women’s
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organizations that the amended law, with all its publicity would drastically reduce the crimes
of molestation and rape were believed.
Despite the law being amended, the results with regard to convictions in rape case are
still very low. In most of the circumstances, cases of sexual harassment are not registered.
Even if they are, the lack of sensitivity has led to failure of the system. Various studies and
researches have pointed to the fact that despite the change in law; police officers at the lower
rung still operate with a patriarchal mindset. For them rape means, victim is at the fault. In
the police station, there is always a reluctance to register the cases. They will try to deter the
victims by telling them about procedure that involves medical examinations, narrating the
episode etc. the cross-question and suspicious gaze many a times leads to victims becoming
reluctant to register the case. Even if the case is registered, the investigations are slow and
evidences are manipulated that has created an adverse environment for the women. This was
even observed by session court judges whereby they pointed at the failure of police to carry
out proper investigations that had made criminals free. Very categorically, the judges said
that unless the investigating officers and station house officers are made accountable to
produce the victims, justice would be an illusion for rape victims
In one case, a young woman was gang raped by four police officers while she was in
their custody, after her husband had been beaten up. The police did not even bother to register
the case on the plea that she had made different statements to the legal aid cell and to the
police verbally. She had as she said, given a written complaint to the police. If cases like this
could happen in the capital city, one wonders what happens to hundreds of Mathuras who are
raped and still await justice. These case glaring points to the fact that preventing reporting of
cases by twisting the statements kills all hopes for justice.
In some cases extreme sensitivity was shown for example in Bharwada Bhoginbhai
Hirajibhai v State of Gujarat case where the Court acted on the statement of the victim and
clearly denied that further evidence is required to prove her injury. As a result, the offender
was punished. In this case, the father of a young girl misused his position with two of his
daughter’s friends, tricked them into entering the house when his daughter was not there and
subjected them to sexual harassment. The court declared this act as breach of trust and said
that it is a very serious crime especially when protectors of society that is fathers become
violators of their modesty. However, despite the intensity of the case, the sentence that was
pronounced by the court was very miniscule. The Court gave a ridiculous punishment of 15
months for one of the most heinous offences.
In another case a young teenage girl from an orthodox Muslim family who had eloped
and been disowned by her parents was arrested by the police. She was forcefully taken away
from her husband and was raped by the police officer in the hotel in which they were hiding.
The rapist was a police officer. When the husband returned, they lodged a complaint. Even
though the trial court held the police officer guilty of rape, on his appeal the High Court
acquitted him. The High Court judgment brings back memories of the Mathura case, as the
High Court observed that the girl “is not only prone to make improvements and
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exaggerations, but is also a liar disclosing a new story altogether to serve her interest”. These
kinds of judgments lack a sense of impartiality that is the cornerstone for justice to be
attained. It still works on the patriarchal mindset that women are mere objects and their
bodies are available. These kinds of judgments have made women be seen as using this tool
to levy false cases.
Recommendations for Improving the Conviction Rates
A close look at the cases above and various researches categorically point at the fact that
stringent punishment is not what is required, rather sensitive and speedy investigation holds
the key to deterring such crimes. This requires the following:
a) There is an urgent need to train police officials to be sensitive to the plight of the
victim who comes to the police station to lodge a complaint for rape. This has become
all the more important when India is seeing an alarming rise in child rapes which are
taking place all over the country.
b) Amendment to the law so that victim’s statement is seen as evidences and no further
cross-questioning should be entertained. This is because victims go through the ordeal
of rapes through cross- questioning in the courts that lead to them becoming more
vulnerable.
c) Marital rape should also be included in rape category thereby freeing the women who
is seen as a property of her husband.
d) The rise in rape against children requires another set of institutional practices that
should take care of the psychology of the child.
e) Courts should resist from giving judgments that say to the victims that marry the
offenders. This is because it takes away the victims dignified life. A person who has
raped her will never respect her but will torture her more as now he gets society’s and
laws mandates.
f) Speedy trials and women investigating officers can further build confidence and make
the victims have faith in the system
Women Rights at Workplace: A Case of Sexual Harassment
Women in India have occupied a sizeable space in the workplace. However, their experiences
in the work sphere have not always been safe. This is largely due the construction of public /
private dichotomy where women’s place is considered to be at home that is private sphere
while men occupy the outside world that is public sphere. As a result, women who work
outside were seen as outsiders. They were never acceptable to men who used many tactics to
resist their stay. This culminated into conduct of various kinds of harassment that women
faced. These cases of sexual harassment were largely unreported, as victims feared the
society reactions who would blame them for such acts. The victims would be seen as
instigators of these actions. These actions included passing lewd comments, asking for sexual
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favours in return of promotions, following them. This kind of atmosphere intimidated women
who were in a fix as they could neither share their ordeal with the family nor report it fearing
the society who would see these women as having low moral character.
Sexual harassment does not necessarily include rapes but it is making the environment
hostile for women at work. It is a violation of women's rights to equality, life and liberty. It
creates an insecure and hostile work environment, which discourages women's participation
in work. This kind of practice has a direct affect on women’s inclusive growth, thereby
deeply affecting her social and economic empowerment.
Faced with constant cases that could not be addressed in the existing laws, sensitive
judges in the famous Vishaka vs state of Rajasthan known as Vishaka Judgement case
directed the government to enact a law to specifically deal with such problems. As result
Sexual Harassment at workplaces (Prevention, Prohibition and Redressal) Act, 2013 was
enacted.
Main tenets of the Sexual Harassment at workplaces (prevention, Prohibition and
Redressal) Act, 2013:
a) The Act defines sexual harassment as unwelcome acts and behaviour that does not
necessarily include physical contacts but are sexually coloured like commenting,
asking for sexual favours at the cost of career advancement of women, sending
pornographic clips or messages.
b) These kinds of acts make the workplace unsafe for women thereby denying them
dignified life.
c) This act specifically talks about setting up of Internal Complaints Committee (ICC)
who will entertain such complaints, investigate by hearing both the cases and
pronounce judgments.
d) These judgments could lead to the suspension of the guilty.
Despite this Act coming into being this act is the most underutilized act. This is largely due to
the lack of gender parity in employment opportunities for women. Various researchers have
found out that women resist from filing a complaint due to the fear of losing their job. This is
also due to the gendered construction of society that would always blame a woman for
making sexual advances for gaining favours. This actually goes deeper whereby women are
not considered as efficient as men so their rising high up in their careers is largely dependent
upon how much ‘available’ they are for men. In fact rarely is women credited for reaching
the top due to her potentials. She is always seen to have given that extra bit (made herself
sexually available) to reach the top. This is seen in a research where a 25-year-old female,
working in a private sector, narrates her experience “I cannot think of even filing a case when
I am fully aware that I am so young, and has just joined this job, the risk is always there”. It
turns out that the only, thing that is stopping the women to file the complaint is the loss of
reputation, stigma, and blame that is always put on women for playing a ‘victim card’.
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A study on the internal complaints committee in 15 government offices in Kerala was

conducted whereby it was found out that neither woman knew about the Act, nor they were
aware that they are members of ICC that investigates such allegations.
Rarely have judgments come that punish the guilty, the bias is so much prevalent that it
is often the victims who is punished. For example in Anita Suresh vs Union of India and Ors
(2019), the case turned out to be false. Court ordered a fine of Rs 50,000 on a woman for
filling a “false” complaint of sexual harassment at her workplace.
Another area where sexual harassment is quiet rampant is found in educational
institutions. Various case studies were unearthed during the “# me too movement” had begun
in India but despite the victims coming out and opening taking the names nothing was done.
This was reiterated in an article by Anju Thomas who had said that educational institutions is
where victims face sexual harassment by denying them completion of their doctoral thesis, or
employment opportunities due to them not responding to sexual favours.
One of the biggest problems of this act is that it is available to organized sector
workforce. In the present scenario where more than 95% of workforce is employed in
unorganized sector, they are denied the benefits of this act. This is further compounded with
the lack of job security and stigma associated with investigations that makes this act
toothless. A Delhi based lawyer Rebecca John had identified factory workers, construction
workers and domestic workers who need this act the most but lack of institutional structures
denies them to take the benefits of this act.
This can be seen when on February 17, a Delhi court acquitted journalist Priya Ramani
in a defamation lawsuit filed by former editor and sitting Member of Parliament M.J. Akbar
for accusing him of sexual harassment in 1993. The judge categorically stated that women
could put her grievance on any platform of her choice. Such encouraging statements can push
more women to come out and report sexual harassment.
Various researches have pointed to the fact that silence clouding sexual harassment is so
huge that many women prefer to leave their jobs. However, the exact figures cannot be stated
due to the silence that prevails. A Study by Martha Farrell foundation and Society for
participatory Research in Asia based on data collected under Right to Information Act in 655
districts of the society found that many districts had failed to establish the committee or
constitute them in line with the legal provisions.
Conclusion
A close look at the above cases points out to the fact that despite India making gender
friendly laws they are still out of reach for many women. As a result, true equality and
freedom of women have not been realized till date. This can be seen when an international
report list Delhi as the most unsafe place for women around the world. In fact, this condition
is further accelerated due to the prevalence of gender biased socialization process that prefers
son to girls and mistreats them. A culture that is imbibed is carried forward that translates
into disrespect of women both inside and outside their homes. For a safe environment apart
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from strict laws, a proper gender sensitive institutional mechanism is required to make the
world a better place to live.
Bibliography
Karlekar, Malavika, (1998), Domestic Violence. Economic and Political Weekly Vol. 33, No.
27 (Jul. 4-10, 1998), pp. 1741-1751 (11 pages) published By Economic and Political Weekly.
https://www.jstor.org/stable/4406963
KAPUR, N. (2013). Workplace Sexual Harassment: The Way Things Are. Economic and
Political Weekly, 48(24), 27-29. Retrieved March 31, 2021, from http://www.jstor.org/
stable/23527387
Sarkar, Lotika women’s legal movement occasional papers no 24
https://www.cwds.ac.in/wp-content/uploads/2016/09/WomensMovement.pdf
https://www.epw.in/engage/article/sexual-harassment-workplace-false-complaints-
stereotypes-posh-act
https://www.epw.in/engage/article/why-laws-are-not-enough-deal-sexual-harassment
https://www.epw.in/engage/article/sexual-harassment-workplace-what-kind-change-do
https://www.epw.in/engage/article/sexual-harassment-workplace-false-complaints-
stereotypes-posh-act
National Crime records bureau report 2020 https://ncrb.gov.in/en/crime-against-women-
statesuts
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(b) Caste: Laws Abolishing Untouchability and Providing

Protection against Atrocities
Sanjeev Kumar
The Varnashramdharma is considered to be the most authoritative conceptual ground to

establish the caste system in India. However, various perspectives elaborate on the origin,
development, and mechanism of the caste system in India. Among them, the ethnologists
highlight that India is a mixture of Aryans, Dravidians, Mongolians, and Scythians. All these
stocks of people coming from different directions settled in India long back in the historical
time, and ‘through a constant contact and intercourse evolved a common culture that
superseded their distinctive cultures’ (Ambedkar, Vol 1: 2014, p. 6). Ambedkar further
highlights that the amalgamation of the various cultures did not merely form a federation of
cultures. It provided the space to inject the practice of the endogamous marriage system
(caste-based marriage) that turned into the genesis of the caste system as well as formed the
basis of its development. Jotirao Phule has also embarked on defining the caste system in
India. He says that Brahmans (also known as Aryans) came from Iran and settled in the
northern area of India around the bank of the Sindhu river (Kumar: 2014, p. 151). Phule
highlights that Aryans came as conquerors and defeated the local people and created a system
of priesthood, and awarded themselves all the rights at the expense of Atishudras or the
people who did not accept the Brahmanical social orders. However, the dominant
understanding of the caste system that comes from Brahmanical thinkers justifies the caste
system as it was a mechanism to divide the labor. In any case, the untouchables or Atishudras
(earlier termed as Depressed Classes by Ambekdar, constitutionally defined as Scheduled
Castes and also known as Dalits in Independent India) have always remained as the most
victimized and humiliated people in India due to the Varna induced caste system.
The nature of caste-based victimization in colonial India was very crude. Ambedkar in
‘Annihilation of caste’ cites a newspaper reporting (The Times of India, 1928). He writes that
“The correspondent of the Times of India reported that high caste Hindus, viz. Kalotas,
Rajputs, and Brahmins including the Patels and Patwaris of villages of Kanaria, Bicholi-
Hafsi, Bicholi-Mardana and of about 15 other villages in the Indore district (of the Indore
State) informed the Balais of their respective villages that if they wished to live among them
they must conform to the following rules: Firstly, Balais must not wear gold-lace-bordered
pugrees. Secondly, they must not wear dhotis with colored or fancy borders. Thirdly, they
must convey intimation of the death of any Hindu to relatives of the deceased—no matter
how far away these relatives may be living. Fourthly, in all Hindu marriages, Balais must
play music before the processions and during the marriage. Fifthly, Balai women must not
wear gold or silver ornaments; they must not wear fancy gowns or jackets. Sixthly, Balai
women must attend all cases of confinement of Hindu women. Seventhly, Balais must render
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services without demanding remuneration and must accept whatever a Hindu is pleased to
give. (Ambedkar: 2014, p.40)
Furthermore, Ambedkar argues that when the Balais did not agree to follow the above
rules, then they were supposed to suffer an extreme form of ex-communication. They were
prevented to access the water sources, public roads, could not cross the lands of the other
caste, not allowed to let their cattle graze in their lands. In such a situation, the Balais
community submitted a petition to the government to redress the issue. However, nothing
could help them. Consequently, various families from the Indore state had to leave their
houses due to such ex-communication. (Ambedkar: 2014, p. 40).
In 1936, Ambedkar elaborated on another case of caste-based violence in his undelivered
speech i.e. ‘Annihilation of Caste’. He discussed that an untouchable person from Chakwara
village, Jaipur, had offered a feast to his fellow people after returning from the pilgrimage,
then what had happened with him. Ambedkar exposed that, “an untouchable of Chakwara
who had returned from a pilgrimage had arranged to give a dinner to his fellow untouchables
of the village as an act of religious piety. The host desired to treat the guests to a sumptuous
meal, and the items served included ghee (butter) also. But while the assembly of
untouchables was engaged in partaking of the food, the Hindus in their hundred, armed with
lathis, rushed to the scene, despoiled the food, and belabored the untouchables who left the
food they were served with and ran away for their lives. And why was this murderous assault
committed on defenseless untouchables? The reason given is that the untouchable host was
impudent enough to serve ghee and his untouchable guests were foolish enough to taste it.
Ghee is undoubtedly a luxury for the rich. But no one would think that consumption of ghee
was a mark of high social status. The Hindus of Chakwara thought otherwise and in righteous
indignation avenged themselves for the wrong done to them by the untouchables, who
insulted them by treating ghee as an item of their food which they ought to have known could
not be theirs, consistently with the dignity of the Hindus. It means that an untouchable must
not use ghee even if he can afford to buy it since it is an act of arrogance towards the Hindus.
It had happened on or about the 1st of April 1936.” (Ambedkar: 2014, p. 41)
In a nutshell, the late 19th and mid-20th century India has witnessed caste-based
brutality that had reached its height, and various Dalit-Bahujan thinkers and leaders were
opposing such atrocities. Putting a lot of struggle to end caste-based discrimination, violence,
and exploitation and due to the sheer labor of Ambedkar Untouchability was banned and
caste-based discrimination became unconstitutional in independent India. However, in post-
independent India, despite having constitutional laws dealing with various forms of
untouchability and caste-based discrimination remained frequent all over the country.
However, under pressure from different corners, several laws have been enacted in the
country to prevent caste-based violence or atrocity in the country.
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Understanding Caste-based Violence: Atrocity

Caste-based discrimination and violence against Dalits (former untouchables) is the ongoing
reality in contemporary India. In the rural areas where different castes live in close proximity
witness frequent incidence of violence. Caste-based violence or atrocity includes physical
assault, murder, rape, carnage, etc. The nature and forms of violence depend on the time and
context. The caste-based violence does not only take place at one time, has multiple spheres
wherein a victim has to suffer multiple times that begin from the occurrence of the incident to
the justice delivery procedures. Despite various legislations to prevent the incidence of caste-
based violence, and punish the perpetrators, the incidence of caste-based violence has not
decreased. This has led to an understanding of caste-based violence from a different
perspective.
The incidence of atrocity foregrounds its discourse in the relational aspect of power and
violence. The historical subject of violence when got constitutional safeguards then it
troubled the perpetrators and led to various other forms of caste-based violence. The forms
and uses of power are context and issue dependent apart from a universal understanding of
the idea of power.
In order to safeguard the Dalits, Fundamental Rights specifically articles. 17, 19, and 20
etc; and IPC 294, 323, 324, 325, 326, 342, 352, 354, 363, 365, 366, 372, 373, 374, 375, 376
etc; have come up. Similarly, violence against Dalit Women has also become a great threat to
the constitutional value that guarantees protection to both women and Dalits. According to
India’s National Commission for Women (NCW), “In the commission of offenses against…
[Dalit] women the [dominant caste], offenders try to establish their authority and humiliate
the community by subjecting their women to indecent and inhuman treatment.” (Irudayam,
Mangubhai & Lee, 2006. P. 2). Further, when they transgress caste-norms such as those
prescribing caste endogamy or untouchability practices or assert their rights over resources or
public spaces, violence is unleashed on them. The UN Special Rapporteur on Violence
against Women has noted that Dalit women “face targeted violence, even rape, and death
from state actors and powerful members of dominant castes used to inflict political lessons
and crush dissent within the community...” (UN Special Rapporteur. 2002). It has been also
reflected in the report that there are various forms of violence against Dalit women such as
physical assault, verbal abuse, sexual harassment, assault, rape, sexual exploitation, forced
prostitution, kidnapping, abduction, gang rape, etc.
Legal Enactments: Pre-Independent India
The caste-based violence was frequently brutal in the colonial period as it is highlighted in
the writings of Ambedkar as mentioned in the previous section. The colonial Indian
government had adopted a policy of non-interference in social and religious matters.
Moreover, to appease the high castes, due to their support in the administration, the colonial
government supported caste-based discrimination. In various cases, compensations were
given to higher castes such as Andrav Bhikaji Phadke vs. Shakar Dajicharya (1883). In this
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case, compensation was given to the high caste to perform a purification ceremony in the
incident of a lower caste had polluted his property. The judicial system of the British Indian
government was very sensitive to religious matters. In all cases about religion, the highest
authority was the verdict of Hindu religious texts or verbal evidence produced by the
Brahmans or priests. On the other hand, any ceremony of Hindu religion was the exclusive
right of the higher castes. The punishment was legal in the eyes of society as well as the
judicial system wherever any lower caste commits polluting the spaces of higher castes.
However, a slight change can be witnessed in the post-1909, when the demand for
‘special representation’ for the untouchables started accelerating. In 1917, the Indian National
Congress (INC), though hesitantly but passed an anti-disability resolution. The resolution
reads, “the Congress urges upon the people of India the necessity, Justice, and righteousness
of removing all disabilities imposed by custom on the depressed classes; the disabilities being
of a most vexatious and oppressive character subjecting those classes to considerable
hardship and inconvenience” (Ambedkar: 2009, p.1).
However, Ambedkar produced ‘Evidence before the Southborough Committee’ to
oppose untouchability and demanded ‘special’ protection for the untouchables. Then
onwards, untouchability became one of the agendas and started being discussed publicly.
Bombay Legislative Assembly passed the ‘Anti-Disability Bill’, and the Central Legislative
Assembly passed the same in 1932-33. Madras Legislative Assembly also passed a similar
bill in 1938, and the ‘Madras Temple Entry Authorization Act’ was passed in 1947.
Nonetheless, these enactments guarantying untouchables accessing temples and preventing
any disability caused by religion or rituals could not do much to prevent violence against
untouchables or depressed classes. It was only in Independent India laws were enacted to
decelerate caste-based violence.
Constitutional Provisions
The efforts of Ambedkar and Gandhi had set the momentum to oppose untouchability at the
forefront of the Constituent Assembly of India. The Constitution of India contains provisions
that ensure equality, freedom, rights against discrimination, and the abolition of
untouchability. Part III of the Constitution, from Article 14 to 35, covers a canvas that not
only ensures all kinds of fundamental rights of the people of India but also ensures protection
of the untouchables. Article 14 (Equality before Law), Article 15 (Prohibition against
Discrimination), Article 16 (Equality of Opportunity), and Article 17 (Abolition of
Untouchability), and Article 21 (Right to Life) are very important to safeguards the
untouchables.
Article 14 provides Equality before Law and Equal Protection of Law to all its citizens.
It states that “The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India” (Government of India: 2020, p. 25)
Article 15 states that “The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them.
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No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or condition with regard to:
(i) access to shops, public restaurants, hotels, and places of public entertainment; or
(ii) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or
partly out of State funds or dedicated to the use of the general public.
(iii) Nothing in this article shall prevent the State from making any special provision for
women and children.
(iv) Nothing shall prevent the State from making any special provision for the advancement
of any socially and educationally backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes. (Government of India: 2020, p. 25)
(4)A of Article 16 provides that, “There shall be equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in
regard to a class or classes of employment or appointment to an office [under the
Government of, or any local or other authority within, a State or Union territory, any
requirement as to residence within that State or Union territory] prior to such employment or
appointment.
(4) Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any backward class of citizens which, in the
opinion of the State, is not adequately represented in the services under the State.
[(4A) Nothing in this article shall prevent the State from making any provision for reservation
[in matters of promotion, with consequential seniority, to any class] or classes of posts in the
services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in
the opinion of the State, are not adequately represented in the services under the State.]
[(4B) of Article 16 Nothing in this article shall prevent the State from considering any
unfilled vacancies of a year which are reserved for being filled up in that year in accordance
with any provision for reservation made under clause (4) or clause (4A) as a separate class of
vacancies to be filled up in any succeeding year or years and such class of vacancies shall not
be considered together with the vacancies of the year in which they are being filled up for
determining the ceiling of fifty percent. reservation on a total number of vacancies of that
year.]
(5) of Article 16 Nothing in this article shall affect the operation of any law which provides
that the incumbent of an office in connection with the affairs of any religious or
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denominational institution or any member of the governing body thereof shall be a person
professing a particular religion or belonging to a particular denomination.
[(6) of Article 16 Nothing in this article shall prevent the State from making any provision for
the reservation of appointments or posts in favour of any economically weaker sections of
citizens other than the classes mentioned in clause (4), in addition to the existing reservation
and subject to a maximum of ten percent. of the posts in each category.]” (Government of
India: 2020, p. 26-27)
Article 17 provides that “Untouchability’’ is abolished and its practice in any form is
forbidden. The enforcement of any disability arising out of “Untouchability’’ shall be an
offense punishable in accordance with the law.” (Government of India: 2020, p. 27)
Article 21 provides, “No person shall be deprived of his life or personal liberty except
according to procedure established by law.” (Government of India: 2020, p. 26-27)
Part IV of the constitution provides measures to be taken by the states to protect the
rights of the people and ensure proper justice for all. Part XVI of the Indian Constitution
Article 330 to 342 provides special provisions for various classes. According to Kumar,”
Article 330 deals with reservation of seats for Scheduled Castes and Scheduled Tribes in the
House of the People; Article 331 deals with the representation of the Anglo-Indian
community in the House of the People’; Article 332 deals with reservation of seats for
Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States; Article
334. Reservation of seats and ‘special representation’ to cease after sixty years; Article 335
deals with the claims of Scheduled Castes and Scheduled Tribes to services and posts; Article
338 recommends setting up the National Commission for Scheduled Castes; Article 338
recommends setting up the National Commission for Scheduled Tribes; Article 339 permits
for control of the Union over the Administration of Scheduled Areas and the welfare of
Scheduled Tribes; Article 340 provides for the appointment of a Commission to investigate
the conditions of backward classes; Article 341 grants the same for Scheduled Castes; and
Article 342 provide same for the Scheduled Tribes” (Kumar: 2014: pp. 153-155)
Legal Enactments: Independent India
The Government of India has taken several legal, administrative, and developmental
measures to safeguard the human rights of Dalits and to improve their socio-economic
conditions. The Protection of Civil Rights Act 1955, and the Prevention of Atrocities Act
1989 were enacted to protect Dalits and ensure justice to the victims of caste-based violence
or atrocity. Furthermore, the Prevention of Atrocity act was revised in 1995 and 2016. The
details of these laws are provided below.
Untouchability (Offences) Act of 1955
Soon after the independence, it was realized that the constitutional safeguards were not
enough to protect the rights and lives of the scheduled castes. Then in 1955, Untouchability
(Offence) Act 1955 was enacted so that speedy redressal of atrocity cases could be ensured.
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Furthermore, Protection of Civil Rights Act, 1976 was also enacted. The Untouchability
(Offence) Act declared that certain acts if done on the ground of untouchability then could be
considered a crime under the said act. Firstly, not allowing any person to enter public
institutions; secondly, preventing anyone to worship in the public temple; and thirdly,
disabling anyone to access the shop, sources of water and public spaces and services;
fourthly, molesting, annoying, boycotting, ex-communicating based on caste ground can be
punishable under the act. The act ensured that the burden of proof of not committing a crime
would rest with the perpetrator or accused.
However, as per the first and second reports of the National Commission for Scheduled
Castes, more than 50 percent of the cases were of acquittal. However, it had partial success
but could not serve to increase conviction in the cases of atrocity or caste-based violence
(NCSCs: 1957). On the other hand, the Commission also recorded an increase in the number
of cases against Dalits. The Elayaperumal Committee was set up to examine the status of the
Act and incidents of cases and submitted its report in 1969. The committed highlighted
various shortcomings in the Untouchability (Offence) Act 1955. Firstly, it found that the term
‘untouchability’ was not defined in clear terms and many of the cases were not be considered
as violating the 1955 Act. Secondly, the Act was insufficient in determining the scope of the
‘public’. Thus, the committee suggested amending the 1955 Act.
Protection of Civil Rights Act 1976
As per the recommendation of the Elayaperumal Committee the Untouchability (Offenses)
Act 1955 was amended and the ‘Protection of Civil Rights Act’ came into force in 1976. This
Act had more clarity in terms of defining Untouchability and the terms such as ‘public’
including several other provisions in terms of providing severe punishment to the convicted.
It provided that any person if found guilty under the act shall not get less than 2 years of
punishment including fine. Apart from imprisonment, if any licensee or official commits a
crime under the act then his/her license could be canceled or he/she shall be suspended from
the office.
However, despite the severity of the Act, the highest number of cases reported in the
1980s. The NCSCs in its 1990 report highlighted that the major reason behind caste-based
violence lied with economic and political conflict. This indicates that the modality and causes
of caste-based violence or atrocity transformed from social or cultural to economic and
political rivalries. Herein the power contestation became very visible.
Thus, again it was found that the existing Act was not sufficient to prevent the cases
rather the reason for the conflict was getting changed. Thus, further, the amendment was
done in the act, and the Prevention of Atrocity Act was brought in 1989.
Prevention of Atrocities (PoA) Act 1989)
The enactment of the PoA Act 1989 identified various caste-based behaviors as a punishable
crime under the Act I also provided that any caste-based act reported under this act shall not
consider anticipatory bail for the offender. This Act defines atrocity as forcing a member of
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Scheduled Castes and Scheduled Tribes to act without his/her consent or forcing to drink or
eat inedible substance or causing injury, insult through various mediums. Various provisions
of this Act can be observed from below.
Section 3 of Chapter II of the PoA Act, 1989 has been summarized by Indian kanoon. It
highlights the list of offenses that are called atrocity and punishable under the Act:
“[(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, (a) puts any
inedible
(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,
(i) forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any
inedible or obnoxious substance;
(ii) acts with intent to cause injury, insult, or annoyance to any member of a Scheduled
Caste or a Scheduled Tribe by dumping excreta, waste matter, carcasses, or any other
obnoxious substance in his premises or neighborhood;
(iii) forcibly removes clothes from the person of a member of a Scheduled Caste or a
Scheduled Tribe or parades him naked or with painted face or body or commits any
similar act which is derogatory to human dignity;
(iv) wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any
competent authority to be allotted to, a member of a Scheduled Caste or a Scheduled
Tribe or gets the land allotted to him transferred;
(v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from
his land or premises or interferes with the enjoyment of his rights over any land,
premises or water;
(vi) compels or entices a member of a Scheduled Caste or a Scheduled Tribe to do ‘begar’
or other similar forms of forced or bonded labor other than any compulsory service
for public purposes imposed by Government;
(vii) forces or intimidates a member of a Scheduled Caste or a Scheduled Tribe not to vote
or to vote to a particular candidate or to vote in a manner other than that provided by
law;
(viii) institutes false, malicious or vexatious suit or criminal or other legal proceedings
against a member of a Scheduled Caste or a Scheduled Tribe;
(ix) gives, any false or frivolous information to any public servant and thereby causes such
public servant to use his lawful power to the injury or annoyance of a member of a
Scheduled Caste or a Scheduled Tribe;
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled
Caste or a Scheduled Tribe in any place within public view;
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(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled
Tribe with intent to dishonor or outrage her modesty;
(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or
a Scheduled Tribe and uses that position to exploit her sexually to which she would
not have otherwise agreed;
(xiii) corrupts or fouls the water of any spring, reservoir or any other source ordinarily used
by members of the Scheduled Castes or the Scheduled Tribes to render it less fit for
the purpose for which it is ordinarily used;
(xiv) denies a member of a Scheduled Caste or a Scheduled Tribe any customary right of
passage to a place of public resort or obstructs such member to prevent him from
using or having access to a place of public resort to which other members of public or
any section thereof have a right to use or access to;
(xv) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his
house, village or another place of residence, shall be punishable with imprisonment
for a term which shall not be less than six months but which may extend to five years
and with fine.
(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,
(i) gives or fabricates false evidence intending thereby to cause, or knowing it to be
likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled
Tribe to be convicted of an offense which is capital by the law for the time being in
force shall be punished with imprisonment for life and with fine; and if an innocent
member of a Scheduled Caste or a Scheduled Tribe be convicted and executed in
consequence of such false or fabricated evidence, the person who gives or fabricates
such false evidence shall be punished with death;
(ii) gives or fabricates false evidence intending thereby to cause, or knowing it to be
likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled
Tribe to be convicted of an offense which is not capital but punishable with
imprisonment for a term of seven years or upwards, shall be punishable with
imprisonment for a term which shall not be less than six months but which may
extend to seven years or upwards and with fine;
(iii) commits mischief by fire or any explosive substance intending to cause or knowing it
to be likely that he will thereby cause damage to any property belonging to a member
of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for
a term which shall not be less than six months but which may extend to seven years
and with fine;
(iv) commits mischief by fire or any explosive substance intending to cause or knowing it
to be likely that he will thereby destroy any building which is ordinarily used as a
place of worship or as a place for human dwelling or as a place for the custody of the
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property by a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable

with imprisonment for life and with fine;
(v) commits any offense under the Indian Penal Code (45 of 1860) punishable with
imprisonment for a term of ten years or more against a person or property on the
ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or
such property belongs to such member, shall be punishable with imprisonment for life
and with fine;
(vi) knowingly or having reason to believe that an offense has been committed under this
Chapter, causes any evidence of the commission of that offense to disappear to screen
the offender from legal punishment, or with that intention gives any information
respecting the offense which he knows or believes to be false, shall be punishable
with the punishment provided for that offense; or
(vii) being a public servant, commits any offense under this section, shall be punishable
with imprisonment for a term which shall not be less than one year but which may
extend to the punishment provided for that offense.” (indiankanoon.org)
The above provisions were very significant to cover various acts under the atrocity act.
This act has identified 15 kinds of atrocities in which not less than 6 months of imprisonment
and can be extended to 5 years. Naval also highlights that, if a person produces false evidence
that leads to an innocent SC/ST to suffer death or life imprisonment then s/he can also be
punished with the death penalty (Naval: 2001, p. 113-124). Moreover, if a person puts
explosives or puts fire to damage the property of SC/ST then s/he can be punished with a
minimum of 6 months up to 7 years of imprisonment with a fine. And if the property is a
place of worship then it would cause life imprisonment of the offender.
On the other hand, this act also incorporates punishment to the public officials who
neglect to pursue his/her duty pertaining to atrocity cases. In such cases, the official can be
granted a minimum of 6 months of imprisonment which may extend to life imprisonment in
some cases.
In 1995 certain amendments were brought in the PoA, Act 1989 concerning sub-section
(i) of Section 23 of the Act. The amendment of 1995 brought both precautionary and
preventive mechanisms in which state government can issue an order to the district
magistrate and superintendent of Police to inquire about any place and issue which might lead
to the case of atrocity. It also required that the administration should also take steps to seize
firearms, setting up of SC/ST protection Cell, and appoint special officers and special courts
for the speedy redressal of the cases of atrocities. It also made it mandatory that, investigation
of any atrocity case should not be done by the officer below the rank of DSP.
Furthermore, the PoA Act 1989 and amendments brought in 1995 were brought fresh in
the form of an ordinance in 2014 by the UPA government which was later notified as
“Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Rules,
2016”. The PoA Act of 2016 brought some significant changes. Firstly, it revised the relief
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amount for various offenses of atrocity. Secondly, it ensured that the relief amount should be
different from the amount spent on the treatment of the victims. Thirdly, if provided that
relief amount be paid in the cases of rape and gang rape. Fourthly, apart from the revision in
the amount of relief, some significant offenses were added to the list of atrocity cases such as
tonsuring of the head, mustache, garlanding chappals, dedicating an SC/ST woman as a
devadasi, hurting SC/ST woman by removing her clothes, blaming of witchcraft, etc.
Finally, the caste system which had initiated in the long historical time, structuralized by
manusmriti and reinvented in colonial India has transformed from brutal form of physical and
psychological violence to the visible physical, psychological as well as symbolic forms of
violence i.e. atrocity. The struggle of colonial leaders to identify untouchability and
concerning practices as unconstitutional, illegal, and immoral has still not been able to stop
the incidences of caste-based violence. Since independence, various laws have been enacted
and time to time revised based on the need and types of incidences, still many parts of the
country have been witnessing all forms of caste-based violence or atrocity. In all the cases the
violence against Dalit-woman has been very serious as they are forced to suffer double
victimization of patriarchy as well as caste violence.
References
 Ambedkar, B. R. (2009). What Congress and Gandhi Have Done to the Untouchables.
New Delhi: Gautam Book Centre.
 Ambedkar, B. R. (2014). Annihilation of Caste, Ambedkar’s Writings and Speeches, Vol-
1, Dr. B. R. Ambedkar Foundation, Ministry of Social Justice and Empowerment.
 Chaturvedi K. N. (2007). The Constitution of India. New Delhi: Government of India
Ministry of Law and Justice.
 Government of India. (2020). Constitution of India. Ministry of Law and Justice. New
Delhi: Legislative Department.
 Indiankanoon.org. (2020). Section 3 in The Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989. Accessed from
th
https://indiankanoon.org/doc/157412304/, on 27 October, 2020 at 15:31.
 Irudayam, A., Mangubhai, J.P. and Lee, J., (2006). Dalit Women Speak Out: Violence
against Dalit Women in India. Chennai: National Campaign on Dalit Human Rights,
National Federation of Dalit Women, and Institute of Development Education, Action
and Studies.
 Kumar, Sanjeev. (2014). Violence against Dalit Woman and Constitutional Protection:
An analysis. Asian Journal of Multidisciplinary Studies. Volume 2, Issue 1.
 NCSCs. 2020. National Commission for Scheduled Castes’ Report 1957. Accessed from
http://ncsc.nic.in/ on 12th October, 2020.
 National Commission for Women. (1957). Report of National Commission for the
Scheduled Castes for the year 1956-57. New Delhi: National Commission for Women.
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 National Commission for Women. (1996). Women of Weaker Sections: Socio-Economic

Development of Scheduled Caste Women. New Delhi: National Commission for Women.
 National Crimes Record Bureau, (2006). Crimes in India 2006. New Delhi: National
Crimes Record Bureau.
 Naval, T.R. 2001. Law of Prevention of Atrocities on the SCs and STs. New Delhi:
Concept Publishing Co.
 UN Special Rapporteur on Violence against Women. (2002). Cultural Practices in the
Family that are Violent towards Women. UN Doc. E/CN.4/2002/83.
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(c) Class: Laws concerning Minimum Wages

Vishal Kumar Gupta
Structure
 Introduction
 Minimum Wage in India: Brief History
 Minimum Wages Act, 1948
 The Code on Wages, 2019
 Conclusion
 References
Introduction
Class is based on earned status. Mainly it is based on economic, man can raise his status in
the class by his ability, skill, education etc. Class is a very important and comprehensive
dimension of social stratification. One of the fundamental characteristics of capitalist society
is 'Class'. According to Marx discussed this through his 'Class-struggle theory'. According to
Marx, ownership the means of production gives rise to class. When the minority people
(Capitalists) take over the means of production, through the productive forces, they give rise
to such a superstructure in which their exploitation goes on continuously and as a result the
society has divided into two parts; first class has ownership of the means of production and
the other class has no ownership of the means of production. Marx has the opinion that these
conflicting classes have always conflicted with each other. That is why Marx has clearly
written in the beginning of the Communist Manifesto, “The history of all hitherto existing
society is the history of class struggles.” Except for Marx's two stages (the early primitive
communist stage and the final communist system), in the remaining three stages there has
been class, there has been exploitation and hence there has been class struggle. In the Slave
system, there has been a struggle between the master and the slave, in the Feudal system
between the Feudal (land-owner) and the ardea-slave (landless) and in the capitalist system
between the bourgeoisie and the proletariat. Therefore, it can be said through this way human
history is nothing but a story of Class struggles.
Marx has presented the ‘Theory of Surplus Value’ in this context. He studied the theories
of the economists like Adam Smith, Ricardo, John Locke etc. and was influenced by them.
Marx also accepted Ricardo’s belief that “The value of a thing is created by Labour”. Labour
has a role in the manufacture of everything. But Marx is tormented because the Labourer
creates the commodity with his Labour but the capitalist himself grabs the surplus value from
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his Labour and thus exploits it. This surplus value, which the capitalist keeps without paying
compensation, is what makes him capital. Therefore, according to Marx, it is immoral and a
symbol of exploitation of labour. Undoubtedly, Marx’s analysis of the interrelationship
between a capitalist and working class continues to be relevant today and plays an important
role as a decisive factor in the wage determination process.
In this era of globalization, wage and employment policies related to workers and
especially ‘Minimum wages’ paid to them have been the subject of much discussion among
the ruling party leaders and Labour experts. Wage law is an important part of Labour laws. If
we look in the context of India, the evaluation of wage laws here does not create as much
controversy as in industrial relations, yet it is important to examine whether in their structure
and implementation, the employers and employees A balance is maintained between the
interests of In a globalized world, a country is likely to lag its peers in development if its
Labour laws are at varient with international norms and out of step with the practices
prevalent in comparable countries. In a country with a fragile environment of investment in
manufacturing, it is necessary to ensure that Labour laws, including laws in the wage clause,
do not worsen the situation in which workers are forced to live a miserable life. In this
chapter, we will discuss about the system of minimum wages in India and the controversies
and possibilities have been discussed.
Minimum Wage in India: Brief History
India was one of the first developing countries to introduced a minimum wage policy under
its Minimum Wages Act, 1948, which is one of the most important laws in this context. Its
foundation is rooted in the Directive Principles of the Constitution of India which, “for all
workers, whether agricultural labourers, industrial Labourers or other living wages, of
attainment of good working conditions and a moral standard of living, of leisure. We should
try to make the most of our time and ensure social and cultural opportunities.” Besides this
Act, several committees, commissions and expert groups have been made up at various times
to give shape to minimum wages policies in India, and to determine the basic value of
minimum wages and its changing process.
The Indian economy is characterized by a dualism, i.e., the existence of a relatively well-
organized sector with decentralized sectors with large self-employed populations. As per
reports, out of the total 457.5 million employees, 422.6 (94%) million employees belongs to
the unorganized/informal (small unregistered or unincorporated enterprises) sector in India.
These workers are contributing over 60 percent in India’s GDP growth.
The Constitution of India envisages a humane society and places the concept of living
wage in the chapter on Directive Principles of State Policy. The ‘Minimum Wages Act’, 1948
is based on Article 43 of the Constitution of India which states that “The State shall
endeavour to secure by suitable legislation or economic organisation or in any other way to
all workers, agricultural, industrial or otherwise, work, a living wage (emphasis added)
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conditions of work ensuring a decent standard of life and full enjoyment of leisure and social
and cultural opportunities.”
The term ‘Labour’ is included in the ‘concurrent list’ of the constitution, which
provides for Labour legislation by both the central and state governments. These Labour laws
for the most workers in the informal sector are enforced by the state governments, while
those for contractors and casual workers in establishments are regulated by the central
government. All Labour laws enacted by the central government directly or indirectly
affected the level of wages and the structure of wages in the informal sector.
Labour laws relating to the welfare of workers in India
Central Laws for Workers in the Unorganized Sector
Common Legislation
 Minimum Wages Act, 1948
 The Equal Remuneration Act, 1976
 The Bonded Labour System (Abolition) Act, 1976
 Child Labour (Prohibition and Regulation) Act, 1986
 The Contract Labour Act, 1970
 The Inter-State Migrant Workmen (Regulation of Employment and Conditions of
Service) Act, 1979
 The Trade Union Act, 1926
 National Rural Employment Guarantee Act, 2005
Sectoral or Occupation-Specific Legislations:
 The Motor Transport Workers (Conditions of Employment) Act, 1966
 The Beedi and Cigar Workers (Conditions of Employment) Act, 1966
 Sales Promotion Employees (Conditions of Service) Act, 1976
 The Building and Other Construction Workers (Regulation of Employment and
Conditions of Service) Act, 1996
 The Employment of Manual Scavengers and Construction of Dry Latrines
(Prohibition) Act, 1993
 The Plantations Labour Act, 1951
Legislations that can be applicable to the both Organized and Unorganised sectors:
 The Payment of Wages Act, 1936
 The Contract Labour (Regulation and Abolition) Act, 1970
 The Maternity Benefit Act, 1961
 The Workmen’s Compensation Act, 1923
 The Weekly Holidays Act, 1942
 The Code on Wages Act, 2019
The Minimum Wages Act is the fundamental labour law for workers in the unorganized
sector. Wages in the organized sector are determined through negotiation and agreement
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between the employer and the employees. In the unorganized sector, where workers suffered
from exploitation because of illiteracy and lack of effective bargaining power, government
intervention becomes necessary.
Minimum Wages Act, 1948
The International Labour Organization adopted Convention No. 26 and Recommendation No.
30 in 1928 on the minimum wage-fixing method in trades or part of trades. The Royal
Commission on Labour (1931), appointed in this context, examined the provisions of the
International Labour Organisation, 1928 in the Indian context and accepted that minimum
rates of wages should be fixed for employed workers in occupations where wages are
collective through bargaining. No system existed for effective regulation of the Labour force
and where wages were very low. The commission recommended that an inquiry be set up as
to which are the unorganized industries where such minimum wages should be fixed.
Labour inquiry committees were appointed in the provinces, and later in 1943, a Labour
investigation committee was appointed to investigate few questions related to wages and
other matters such as housing, social conditions and employment. The Eighth Meeting
(March 1946) of the Standing Labour Committee recommended that a separate legislation be
enacted for the unorganized sector covering issues such as working hours, minimum wages,
working conditions etc. Eventually, the Minimum Wages Bill was introduced. A Bill in this
regard was passed in the Central Legislative Council to fix the minimum wages in certain
industries and came into force on 15 March 1948. This Act extends to the whole of India and
provides for fixation of minimum wages for scheduled/listed employment. The appropriate
government has the prerogative to notify all suitable employments that require the protection
Act. Here the fact should be kept in mind that the minimum wage is fixed only for scheduled
employment, on the other hand a large population working in non-scheduled industries or
occupations is out of this minimum wage i.e. still less wages are paid to them can be
continued.
A Central Advisory Council was appointed by the Government of India in December
1947 to advise on the context of fair wages for workers. This council appointed a high-
powered tripartite committee called the Committee for Fair Wages. It was to set the
principles on which fair wages should be based and to determine how these principles were to
be applied. The report submitted by the committee in 1948 distinguished between ‘Minimum
wage’, ‘Fair wage’ and ‘Living wage’, which were described as follows.
 Living Wage: The Living wage should enable the wage earner to provide for himself
and his family not merely the bare necessities of food, clothing and shelter but also
cater to the education of his children, protection against ill health, requirements of
social needs, and insurance against the more important contingencies like old age.
 Minimum Wage: Minimum wage should be paid for maintaining the competence of
the worker and for his other (current) basic needs like education, medical needs and
maintenance of amenities.
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 Fair Wage: While the minimum limit of fair wage is inherently the minimum wage,
the upper limit is also fixed in the same way which can be broadly called the ability of
the industry to pay.
In the 15th session of the Indian Labour Conference in 1957, the view was expressed that
minimum wages should be need based, to ensure that the minimum human needs of the
industrial workers have to be fulfilled. The following five norms or standards were
recommended by the Indian Labour Conference, which till date have been the basis for
determining the minimum rate of wages.
1. Three consumption units for one earner;
2. Minimum food requirement of 2700 calories per average Indian adult;
3. 18 yards of cloth for consumption per person for four members, i.e. 72 yards of cloth
per family per year;
4. Rent corresponding to the minimum area provided for under government’s Industrial
Housing Scheme, and
5. Fuel, lighting and other ‘miscellaneous’ items of expenditure to constitute 20 percent
of the total minimum wages.
In the unorganized sector, where labour is vulnerable to exploitation and has no effective
bargaining power theories, minimum rates of wages are fixed by both central and state
governments in the scheduled employments falling within their respective jurisdictions under
the Minimum Wages Act, 1948. The Act binds the employers to pay to the workers the
minimum wages, so fixed it from time to time.
The Supreme Court of India in 1992 in the case of Reptakos Brett and Co. v Its Workmen
noted that, apart from the ILC norms, the other things to be taken account of are: (1)
Children’s education, (2) Medical needs, (3) Minimum entertainment including
festivals/functions, (5) Provision for marriage and senior citizens, etc., should be 25 percent
of the total minimum wage and it was said to be used of Guidelines should be followed in
fixation of minimum wages.
Section 3 of the Minimum Wages Act deals with the method of determination and
revision of minimum wages. Under this, the administration has been empowered so that
minimum wage rates can be fixed in scheduled employments. The minimum rates are revised
at suitable intervals and this interval does not exceed than five years. In Section 5, two
methods have been provided for fixation or revision of minimum wages. Section 8, A
‘Central Advisory Board’ to advise the Central and State Governments on the matters of
fixing and revising the minimum rates of wages under this Act and on other matters and to
coordinating the work of the Advisory Boards. The government will be appointing it.
Section 17, the minimum rates of wages for both time-rated and piece-rated work may be
prescribed for overtime work. When the person is employed for the minimum time rate
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prescribed under the Act for piece work rate; So, the worker will be entitled to the wages
fixed for the fixed time rate.
The minimum rates of wages have also been fixed differently for skilled, semi-skilled
and unskilled workers. Minimum rates of wages are set on an hourly, day, week or monthly
basis, or for any other large wage period, where the method of calculation of wages for the
month or day may be specified. Under this Act, the determination of wages based on working
hours, payment of wages for overtime, as well as provision of punishments for offenses have
also been given.
Under the National Rural Employment Guarantee Act, 2005, the state government has
been permitted to notify wage rates different from those notified under the Minimum Wages
Act, 1948. Provided that such wages shall not be less than rupees sixty per day. The courts, in
some PILs, have directed the government to tighten the oversight mechanism to ensure that
detailed inspections are carried out by very senior inspection staff to ensure about the proper
implementation of Labour laws. Any employer who contravenes any of the provisions of this
Act shall be punished with imprisonment of either description for a term which may extend to
six months, or with fine which may extend to 500 rupees, or with both.
Scholars are of the opinion that, despite the large population of workers seeking
protection in this Act, implementing the Act in the entire country is chaotic and ineffective.
The wages prescribed under the Act are low and vary in different sectors and industries. Only
those jobs which are scheduled can demand the prescribed minimum wages. If the occupation
is not a scheduled under employment, such as domestic work, security, etc., it cannot be
protected by the Act. It is therefore imperative that the existing law be amended by the
National Minimum Wage Policy for all occupations, so that it can be implemented more
effectively and is more compliant.
The Code on Wages, 2019
The Code on Wages, 2019 This act to guarantee minimum wages to all are part of Labour
reforms and in this direction, it is the first law under the efforts taken by the present central
government. Union Labour Minister Santosh Gangwar introduced the Code on Wages Bill in
the Lok Sabha on July 23, 2019. After this it was passed by Lok Sabha on 30 July and Rajya
Sabha on 2 August. On August 8, 2019, after the assent of the President, this bill became an
Act. recently after the notification was issued by the government, it became applicable to
across the country. It is estimated that the Code on Wage Act, 2019 will provide a mandatory
minimum wage guarantee to 50 crore workers at the national level. The primary goal of this
act is to raise the standard of living of all the workers of the country by improving the Labour
laws. This act will help the government to implement the minimum wage for the workers.
Also, the Wages, Bonus and matters related there to have been amended and integrated in the
Code on Wages, 2019. It’s also provides for the prevention of discrimination based on gender
against women in the matter of employment.
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The Code on Wages, 2019 seeks to merge and simplify four Labour Acts, which include:
 Payment of Wages Act, 1936
 Minimum Wages Act, 1948
 Payment of Bonus Act, 1965
 Equal Remuneration Act, 1976
A provision has been made in the Wage Code Act, 2019 to work for eight hours, but there is
a possibility that in some states during the ‘Lockdown’, the working hours may be increased
to compensate for the loss in production. Provision has been made in the Act to pay uniform
salary and timely payment to all employees throughout the country. The Code includes a
provision for the calculation of minimum wages which is based on minimum living
conditions.
 Standard working family class, which includes the worker besides his wife or husband
and two children.
 Minimum food requirement of 2700 calories per unit of consumption per day.
 Consumption of 66 meters of cloth per year by the standard working family class.
 Housing rent expenditure which will be 10 percent of food and clothing expenses.
 Fuel, electricity and other miscellaneous items of expenditure which will be 20
percent of the minimum wage.
 Expenditure on children’s education, medical needs, entertainment and other
contingencies which shall be 25 percent of the minimum wage.
It can be said that this Act has tried to simplify the various Labour laws, which increases the
chances that it will help to reducing and resolving legal disputes and in addition compliance
cost for the employers will be less.
Just as every act it has some positive sides and some negative also, similarly there are
some negative and weak sides in this act, some politicians and social workers are
emphasizing the demand of amendment in it. Critics have expressed their views against the
Act at the following grounds:
 At present, different Labour laws have been defined differently in the context of
wages, as a result of which there is a possibility of increment in legal disputes with
huge difficulty in their implementation.
 There is a still ambiguity in the definition of minimum wages in the Act. Even after a
long process of this Act, it has not been implemented yet after it was passed by the
Parliament in 2019. Due to which there has been delay in getting its benefits to the
workers at the right time.
 In this act, in 1957, the accepted calorie intake (2700 calories) prescribed in the
‘Indian Labour Conference’ has been re-proposed as its standard. In such a situation,
there is a need to change its standard set about 64 years ago.
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 Due to legal complexities in the Act and lack of awareness, it is not easy for a worker
to fight a legal battle against the employer.
 Still a large part of the workers in the country belong to the unorganized sector, so it
is quite a big challenge to implement Labour laws in these parts.
 Critics have the view that barring a few new concepts, almost all the provisions in the
new Act have been retained. All four repealed laws were implemented historically at
different points and to deal with different situations. The combining laws of different
nature into a single code is not an easy task and will only lead to new problems.
 The minimum wages fixed by the state governments for agricultural Labourers is also
a controversial subject. With regard to minimum wages, this Act will have a greater
impact on the provisions of the Mahatma Gandhi National Rural Employment
Guarantee Act (MGNREGA) 2005.
Conclusion
Wage policy and minimum wages have been a highly controversial topic in India. Poor
working conditions, low wages and delay in payment of wages in many industries attracted
the attention of the government. Various committees and commissions were appointed to
better understand the conditions of workers and to plan wage policy for low-wage work. The
Payment of Wages Act, 1936 and the Minimum Wages Act, 1948 attempted to protect low-
wage workers and to ensure better working conditions. The Fair Wages Committee defined
minimum wages should not only provide for the sustenance of life, but in some measure, for
necessities like education, medical and other amenities, and to plan for the efficiency of the
workers. Attention should also be paid to the issue of maintaining and at the same time the
foundation of wage policy was also laid.
Undoubtedly, the Minimum Wages Act, 1948, was one of the positive initiatives taken
by the government for the welfare of workers, but its scope was very limited and its benefits
were limited to a small section of workers in the unorganized sector. Hence the Code on
Wages, 2019 came into existence through the need's in context of new laws for the changing
in globalized era. In this act, the emphasis has been laid on simplification of various Labour
laws, so that the economy can be given impetus while protecting the interests of more and
more workers.
Code on Wage makes the minimum wage and timely payment of wages universal for all
employees. The Act will ensure the right to maintenance for every employee, as well as
encourage legislative protection of minimum wages by the existing 40 to 100% workforce.
The Act envisages payment of salaries to the employees by the states through digital means,
which can prove to be a revolutionary step. In short, despite some shortcomings, the Code on
Wages, 2019 fulfills the demand of the present times.
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References
 K. Sankaran, (2008) ‘Labour Laws and the World of Work’, in K, Sankaran and U.
Singh (eds.) Towards Legal Literacy, New Delhi: Oxford University Press, Pp.119-
131.
 Report of the Second National Commission on Labour-Part II, (2002). Government of
India.
 Conditions of Work and Promotion of Livelihoods, (2007). Report of the National
Commission on Enterprises in the Unorganised Sector, Government of India.
 Report on Social Security, (2006). Report of the National Commission for Enterprises
in the Unorganised Sector.
 The Minimum Wages Act, 1948, [Online] Available from https://legislative.gov.in/
sites/default/files/H194811.pdf [Accessed on 27/6/2021].
 The Code On Wages Act, 2019, [Online] Available from https://egazette.nic.in/
WriteReadData/2019/210356.pdf, [Accessed on 27/6/2021]
 K. Chandru, (2020, Septmber 22). ‘A wage code that is a hasty composition’, The
Hindu: [Online] Available from https://www.thehindu.com/opinion/lead/a-wage-
code-that-is-a-hasty-composition/article32726499.ece [Accessed on 28/6/2021]
 ‘Parliament passes labour Bills amid boycott’, The Hindu, (2020, October 01).
[Online] Available from https://www.thehindu.com/news/national/parliament-passes-
three-key-labour-reform-bills/article32675729.ece [Accessed on 28/6/2021]
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(d) Disability and Equality of Participation and Opportunity

Dr. Minakshi Biswas
Introduction
There are certain features which differentiate a person who is capable to perform his regular
day to day activities as well as specialized work from someone who finds it difficult to carry
out his routine task as well as those that involve more capacities. It is due to certain
disabilities that an individual may face difficulty in conducting his daily work and activities
and may require assistance and support for the same. What are the disabilities that do not
allow one to be identified in similar lines with those who do not suffer from such problems?
This is an important question that needs to be asked here. In fact, it is important to find out
and understand what are the different problems that are faced by those who are not capable
sufficiently and it is hence more relevant to know that these people require some form of
assistance by means of special rights and policies.
As is well known, there are different kinds of problems and issues physical as well as
intellectual that makes one less capable in many ways. These problems are regarded as
different kinds of disabilities either physical or intellectual disability. Both these form of
disabilities can be further sub-divided into many different segments which talk of disabilities
of many other different kinds. For instance, while there are various forms of physical
disabilities that an individual can suffer from, there are many kinds of intellectual disabilities
that too of different degrees and types.
This chapter is divided into five major sections. In the first section it will make an
attempt to draw out the different forms of disabilities, its associated nature and their meaning
which confront individuals. It will outline why it is important for those suffering from
different kinds of disabilities to be served by the state and society. It will inform why the
disabled individuals should be provided protection, security and special rights. The chapter
will then subsequently trace the evolution of movements around the disability issues in India.
The chapter will then look into the legal provisions and the disability rights Act that aim to
ensure protection to those who suffer from different kinds of disabilities. The segment on
protective measures for the disabled will be followed by an understanding on the need for
providing the disabled section of population with equal freedom and opportunity. It will also
lay out that certain issues with respect to matters of the persons with disabilities still lack
attention.
Disabilities: Meaning and Nature
The United Nations Organisation in its Convention on Rights of Persons with Disabilities
views that person with disabilities should include those who have impairment that are long
term with respect to physical, mental, intellectual and sensory conditions.
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The Person with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 in India recognised only seven kinds of disabilities. These seven
kinds of disabilities included blindness, low vision, leprosy-cured, hearing impairment, loco
motor disability, mental retardation and mental illness. However, it had been noted that the
types of disabilities that were acknowledged within this act served to be very limited since it
failed to include various other kinds of disabilities that are suffered within this community of
individuals.
The Rights of Person with Disabilities Act went on to replace the Persons with
Disabilities Act of 1995 in the year 2016. The present Act of 2016 on disabilities has
increased the number of disabilities from seven to twenty-one in the new provision. It has
recognized five major kinds of disabilities which includes physical disabilities, intellectual
disabilities, mental disorders, disabilities caused due to both neurological as well as blood
disorders and multiple disabilities. The physical disabilities have been further classified into
loco motor disability (includes leprosy cured, cerebral palsy, dwarfism, muscular dystrophy
and acid attack victims), visual impairment (both blindness and low vision), hearing
disabilities (deaf and hard of hearing) and speech and language disorders. The intellectual
disabilities mentioned in the act include specific learning disabilities and autism related
disorders. Mental behaviour within this act includes mental illness as a disability. However, it
does not define which kinds of mental illnesses get to be recognized as disabilities. The
disorder caused due to neurological problems like multiple sclerosis and Parkinson’s disease
have been recognized as disabilities. Disease caused due to blood disorders like the
Hemophilia, Thalassemia and sickle cell disease too have been recognized as disabilities.
Within multiple disabilities, people with ‘benchmark disabilities’ those with above
disabilities that is not less than 40% have been recognized.
The issues pertaining to rights of the disabled community and the existing provisions in
order to promote and empower the persons with disabilities have been taken up for discussion
in detail in the subsequent sections of this chapter.
Evolution of Disability Rights Movements and Issues
The post Second World War period was marked by the growth of different kinds of
movements and the rights-based demands found its significance during this time. Movements
around issues of civil liberties, anti-racism and feminism gained grounds during this period.
The picture of social reality witnessed a huge change in this phase. Gradually in the following
next few decades there were issues of unsatisfactory development and growing inequalities in
the economic sphere that began to be realized. The movements around issues of disability,
however, emerged only in the decade of 1990’s. The disabled community has largely been
viewed as a homogenous community. However, it serves to be a complex heterogeneous
category of population that has different and distinct needs and requirement in order to meet
their objective of survival and well-being. Also, large section of this section of population
still resides in rural India and the data and records with respect to numbers of the disabled
community have been limited. This section of population particularly before 1990’s and even
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today continues to be regarded as an unproductive community who depend upon others for
providing them financial assistance. This view was mainly prevalent when the disabled were
confined within their homes with no opportunities to exercise and explore means of education
and employment. This continues to be the case for large number of disabled people even
today in many parts of India. Much like the women folk whose unpaid labour in her
performance of domestic chores does not get counted as productive or serving economic
benefits, the disabled population too has been viewed as a category that does not and cannot
contribute to economic activities.
Issues of disability concerns in the decade of 1960-70’s did not gather much attention
due to its fragmented nature. The movement could not be consolidated since this section of
population represents a wide-ranging category and issues of their upliftment and well-being
could not be organized in a single umbrella until then. In the 1980-1990’s the movement
around issues for the disabled community gained some form of attention. The struggle for the
disabled section during this phase was mainly about having favourable atmosphere for them
and bringing their concerns into notice. In South Asia and in India in particular the disabled
person traditionally has been looked after by the family, whether as an infant, in adolescence
or as an ageing individual. The people belonging to the disabled community have faced
problems and challenges with respect to many issues like pursuing education, gaining an
employment for themselves in particular and issues of leading a proper life and in terms of
experiencing well-being in general. Two issues that have dominated with respect to matters
of the disabled are concentrated upon its prevention and rehabilitation of various kinds.
One can find that during the British rule in India, various missionaries had come to India
who mainly took up the task of spreading English education. These associations also took
interest in charity-based work for the poor and serving of the disabled by sympathetic modes
of care. During this period and even later until the decade of 1980’s disability has been
viewed mainly as a medical ailment which needs medical attention alone. Due to it being
regarded as a medical condition it was relegated to the sphere of medicine and to be treated
and cared through physicians, physiotherapist and the likes. Social workers and charity-based
organization were regarded as those sections that could provide some form of additional
supportive care to the disabled.
A shift in policy framework and perception on issues of the disabled only appeared
1980’s onwards. Concerns for the development and advancement of the disabled took some
of precedence rather than just concentrating upon their well-being and survival issues alone.
The subsequent years saw an attention to the matters of the disabled community. This decade
also witnessed the growth of organizations primarily focused on the issues of the disabled
section of population. Various NGO’s came up and started working in co-ordination with
international organizations focused on the disabled community.
There are different important factors that led to the rights-based movements and focusing
upon concerns of the disabled community. The Indian state’s considerations of looking into
matters of the disabled, the parallel movements like the women’s movements and the push
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directed by the international agencies as well as mobilizations by political groups led the state
to concentrate upon issues of the disabled population. The passing of the Persons with
Disabilities (Equal Opportunities and Protection of Rights and full Participation) Act of 1995
mainly resulted out of pressures put forth by international agencies. This phase was identified
with several groups and activists struggling to create conducive environment for the disabled
by practicing modes of rights-based frames. The force of globalization which mainly saw its
rise in the 1990’s in the Indian context also was accompanied by several other things in form
of international pressure to put forward demands of the disabled, growth of NGO around the
issues of the disabled in local settings and helped establish greater linkages between
international, national and local organizations working on the rights of the disabled. In the
year 1993 all this led the Indian government to organise a national seminar with regard to
issues concerning the disabled which provided a huge push for the movement around issues
of disability rights. All these events resulted in the passage of the Persons with Disabilities
Act which mainly intended to provide equal opportunities, participatory freedom and
protective rights for the disabled in various sectors to lead their lives better. Up till the decade
of 1990’s it is mainly the section with physical disabilities that were part of disability rights
movements and issues of intellectual disabilities were viewed within in the dimension of
medicine alone as a medical condition. However, the National Trust for Welfare of Persons
with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act was passed in
the year 1999.
The several issues which resulted in mobilization in India on issues of the disabled can
be mentioned as the demands put forth by groups across different kinds of disabilities, the
adoption of rights-based framework, claims around better services, facilities and resources for
the disabled community. The movement around the rights of the disabled needs to be
understood as claims put forward by different strands and groups that highlight different
issues of the disabled like the feminists groups and strands that demand different set of
entitlements based on their own understanding and context. These groups that work around
issues of the disabled can be understood in different categories. They primarily operate in
three different categories, namely, individual based groups of disabled urban professionals
who are educated, the second category works in form of advocacy groups, NGOs that are
facilitated by both disabled and non-disabled people to work along the lines of the
community and third section operates researchers and scholars who mainly tend to produce
knowledge around issues of the disabled community.
The operation and proliferation of groups and activists who work around issues of
disabilities bring into the fore discussion of matters of the disability in public sphere and aim
towards influencing policy outcomes. With the passage of Persons with Disabilities Act of
1995 many NGO’s have come up that work both in rural and urban settings and promote
welfare of the disabled community. However, it needs to be understood that these groups and
individual led organizations that claim to work towards the benefit of the disabled community
as a whole in reality, many a times represents the interests of only a few. It has been viewed
that these organizations are dominated by the interests of the middle-class men belonging to
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the disabled community. The issues of the others of the disabled community do not find much
reflection and get ignored in many cases. Only the privileged among the disabled find some
kind of benefit while others continue to be deprived. The marginalized disabled face further
marginalization due to other kinds of identities like gender, caste, class, rural-urban divide in
backgrounds and so on. The disabled female community is more vulnerable on several
accounts given the patriarchal nature of the society and state. The rights of the female
disabled population get representation through advocates of women’s movement and not
much of their interests are reflected within disability rights movements. The symbol of
wheelchair has a marked presence in any issues put forward by the disability activists and
groups. Apart from this the blind population also finds a significant proportion in demands
put forward by disability rights groups.
The NGO’s that work around promoting issues of the disabled largely engage in
rehabilitating the disabled section of population at the level of the community. They are
supported by various national and international organizations towards securing the needs of
the disabled population. However, the community-based programmes of rehabilitation for the
disabled have not contributed sufficiently in rural India. Disability continues to remain a
matter of stigma in rural India due to widespread lack of awareness, education and
sensitization. This also results in the illiteracy and unemployment of the disabled population
who on given an opportunity could serve to lead better lives by pursuing education and
gaining an employment depending upon their abilities.
When one tries to understand the discussion on rights of the disabled within the
academic field one finds that it has largely been limited to fields of medical science and in the
context of social science it has been understood and explored within psychology and social
work. It had not been taken up by other disciplines of social science like sociology,
anthropology, history and political science until recently. There is lack of knowledge base
and research on matters of the disabled and disability issues apart from the field of medical
science. The literature that comes out with regard to the disability issues is mainly in form of
newspaper articles and stories and some records acquired through different kinds of
government data. There have been surveys conducted by international and local NGO’s too in
this regard. However, there has been dearth of studies in this field.
Recently, in the last few decades there have been some attempts to study issues of
disability by economists who have mainly confined themselves to understanding the numbers
of the disabled. Some studies in the field of political science and law too have been emerging
with respect to issues persons with disabilities on matters of entitlement and as citizens in the
democratic set-up of India. There are ethnographic accounts of the disabled too being covered
by those in the field of anthropology. The women studies centres and departments too have
started taking interest in covering matters of the female disability and issues around it. The
female disabled undergoes and experiences multiple vulnerabilities operating in society due
to biased and demeaning notions associated with gender, caste, class, religion, rural/urban
divide and so on. As the movements around issues of women and advocacy and lobbying in
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this field have led to significance on women’s issues and establishment of women’s studies
departments within the university system there are attempts being made by academicians and
researchers to introduce and include department of disability studies. There is also a need that
is being felt by academicians in the field of social science to incorporate disability studies
within their curriculum and they consider that research on it should not be restricted within
medical science.
The disabled section of population have been referred to by different terms like
‘handicapped’, ‘physically-challenged’, ‘differently-abled’ and ‘disabled’. Many among this
section of population find it derogatory and demeaning to be termed as any of these. Activists
working around promoting the rights of the disabled find it unacceptable to use term as
‘differently-abled’ since it calls into question the ability of a person. Many educated among
this section of population have accepted the term disabled due to their awareness on rights-
based issues and concerns. However, this section continues to live inactive life on various
accounts in several cases and many of them depend upon others to fulfill their needs. Family
continues to be the primary support base for the disabled section of population. Also marriage
to some extent acts as the support structure in case of disabled men and women. In the
absence of the family support and lack of assistance within the institution of marriage the
disabled are rendered vulnerable and look up to other alternative bases of supportive
structures. Another issue that is brought forward by various groups and activists who work
around disability rights is that many among the disabled population are viewed as infantile
and asexual. The institution of marriage in cases of such female disabled individuals is
regarded as far from reality and motherhood a distant possibility.
It is been viewed that issues with respect to the disability can gain grounds in the public
sphere with the involvement of media and awareness generated through it. Also, regarding
issues of the disabled the politics of the nation and working towards their benefit by political
leaders and government can prove to be very beneficial step for this section of population.
Provisions for Ensuring Disability Rights in India
Having discussed the evolution and growth of movements and concerns around the issues of
disability, it becomes important to outline the different provisions that have been introduced
in the Indian context in order to promote and protect the disabled section of population. This
section will make an attempt to draw the policy framework for the disabled in India. As
mentioned earlier the Persons with Disabilities had been passed in the year 1995 which has
been revised in the year 2016. Both these Acts will be taken up for discussion here.
Under the Persons with Disabilities Act 1995, a person who meets the criterion of being
forty percent disabled and is certified medically so is regarded as a person who is disabled.
This Act that caters to issues of the disabled was passed by the Lok Sabha on December 12,
1995 and came into effect in February 7, 1996. This Act mainly focused on the protection of
the disabled community and aimed towards providing equal opportunities for them. The Act
outlines that both Centre and State level authorities would be responsible for protecting the
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disabled community and the municipalities and local administrative bodies would be securing
the rights and entitlements of the disabled population. The objective of the Act was primarily
to help the members of the disabled community become productive citizens and individuals.
The Act clearly spelt out the main objectives that it sought to promote with respect to the
disabled community. It stressed upon the need for preventing disability, to ensure protection
in form of rights, provide medical care and also to educate, train as well as secure
employment of persons who have disabilities of various kinds. The Act also aimed towards
creating free and supportive environment and to counter any form of abuse and exploitation
against the persons with disabilities. It also aimed at working in favour of bringing the
disabled persons into the mainstream of society.
Hence the major provisions within the Act can be summarized as aiming towards
prevention of disabilities as well as early diagnosis of disabilities; education of the members
of the disabled community; providing employment facilities to them; creating an environment
of non-discrimination; promote research on issues of disability and train individuals to work
towards empowering the disabilities in other words create manpower and trained
professionals within the field; make room for affirmative policies and measures to ensure
security of the community. Within the above mentioned design to promote and empower the
disabled community many measures and steps were proposed. Apart from these other
mechanisms were set to be implemented to allow better transport facilities to disabled
children so that they may be able to freely get to their schools to pursue education; making
architectural modification in educational institutions to make them disabled-friendly and
provide them enrollment in professional course as well; provide them scholarships, make
necessary changes and adjustments in the curriculum and examination system depending
upon their abilities and so on. Thus the Persons with Disabilities Act, as stated, mainly aimed
towards securing the disabled community in many ways.
However, this provision, namely, the Persons with Disabilities Act 1995 failed in its
attempt towards promoting and empowering the disabled on various accounts. It lacked
measures of proper implementation. More efforts were required to create awareness and
sensitization on issues of the disabled. Even the policy document suffers from various kinds
of limitations. For instance although mental disabilities have been taken into account in this
act as one of the seven kinds of disabilities that have been recognized here, it does not clearly
define the categories of mental illness that will be counted as disabilities. More clarity is
sought with respect to the definitional aspect in various cases of the act and it was believed
that only a revised version of it could solve such problems. Due to these problems of the
nature of the policy document and need for proper implementation of measures with respect
to the seven mentioned disabilities as well as recognizing other kinds of disabilities a great
need was felt to revise and amend the existing framework.
The Rights of Persons with Disabilities Act 2016 replaced the Persons with Disabilities
Act of 1995. The 2016 Act of Disabilities mainly intended to fulfill its obligation as a
member signatory to the United Nations Convention on Rights of Persons with disabilities.
The present Act on Rights of Persons with Disabilities was passed by the Indian Government
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on December 28, 2016 and it came into force on the April 19, 2017. Disabilities within this
Act have been viewed as dynamic in nature as well as an evolving concept. The number of
disabilities that had been recognized in the Persons with Disabilities Act 1995 was only
seven; while the present Act of 2016 went on to include as many as twenty-one kinds of
disabilities within it. It was also regarded that the Government at the centre would be
provided the authority to add and recognized more forms of disabilities as and when required.
There are five major kinds of disabilities that have been acknowledged in this Act, namely,
physical disabilities (locomotor disability, hearing impairment, visual impairment and speech
and language disability), intellectual disability, mental illness, disabilities caused due to
neurological and blood disorders and multiple disabilities.
The governmental structures at various levels have been provided the task of bringing in
steps effectively to promote and ensure betterment of the disabled people. This Act called for
affirmative action policies for the disabled section in higher education of not less than 5%,
government jobs of not less than 4% as well as reservation in land allocation and poverty
alleviation programmes and so on. Children with disabilities of 40% would have the right to
free and fair education within the age group of 6-18 years. Both institutions under the
government as well as those recognized by the state should provide inclusive education. Also
in order to make the environment barrier free for the disabled the government has ordered to
bring in measures to make buildings open for public both under the government as well as
private sector to be made disabled-friendly.
This Act called up for the establishment of Central and State level boards that would be
responsible for framing policies. The Office of Chief Commissioner was to be provided
strength in operation with the assistance of two other commissioners as well as an advisory
committee comprising eleven members who were to be experts from different fields. The Act
also called for the strengthening of the office of the state commissioners which were to be
assisted and advised by committee of five members who are experts in different kinds of
disabilities. Both the Chief Commissioner on disabilities and the state commission has been
provided the task of monitoring the implementation of the act, act as regulatory bodies as
well as agencies of grievance redressal for the members of the disabled community. The
governments at the level of the state were given the task of drawing up committees at the
district level that would meet the demands of the disabled community at the local setting. The
powers, functions and nature of operation also needed to be specified by the State
governments as per the Rights of Persons with Disabilities Act of 2016. Also, provisions for
creating national and state level funding required for the disabled community was envisioned
within this Act and it was decided that the existing funds would be subsumed within the new
ones.
The Act laid out the different kinds of penalties that would be levied against those who
commit exploitation and abuse against the persons with disabilities as well as those who
violate these measures outlined in this provision. For those who violate any of its provisions
they could be imprisoned for a period of six months or asked to be paid a fine of Rs. 10,000
or could be charged for both. In case of further violations the guilty could be imprisoned for a
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period of two years or be asked for a fine of Rs. 50,000 to 1 lakh or could be punished
through both the measures together. In cases of insulting a person with disabilities and sexual
exploitation of children or persons with disabilities one would be imprisoned for a period of
six months to five years and a fine depending on the nature of crime. The Act was
provisioned for constitution of special courts in every district in order to deal with issues of
the rights of persons with disabilities.
Need for Equal Participation and Opportunity of the Disabled
The people belonging to the disabled community need to be provided rights, reservations and
special entitlements in order to be treated similarly with other members of the society. It is
important to note that the persons with disabilities suffer from different kinds of challenges in
order to meet their basic needs and struggle for their survival due to medical condition of
various kinds. These medical conditions associated with physical disorders, intellectual
disorders, neurological conditions, blood disorders and many other kinds of impairment. The
focus as mentioned earlier in provisions on persons with disabilities has been to prevent and
make room for early diagnosis of the disabilities so that necessary steps can be taken.
However, it needs to be understood that huge section of the population suffer from many of
the disabilities mentioned above and it is the responsibility of the state, the associated
administrative bodies to provide them with a favourable environment where they can pursue
education and gain employment like others in the community. As individuals and citizens in a
country marked by democracy, the state must take steps to implement the policies laid down
in the Rights of Persons with Disabilities Act of 2016. With proper co-ordination among the
ministries, departments and levels of organization in charge of duties to provide for the rights
of the persons with disabilities; government investment to train and engage more manpower
to enable and assist the disabled it can serve to be ensure safe, barrier-free, environment to
the them for the well-being as well as development of the disabled.
The members of the disabled community should not be kept away from exercising their
rights due to the impairment they suffer from. Instead they require special measures in order
to be provided with a equal footing along with others who are better equipped in society.
Also recognizing multiple problems associated with disabilities which get increased multifold
due to their belongingness to a particular, gender, caste, class identifies need to be
understood. For instance a rural dalit woman with physical disabilities will experience
marginalization due to the multiple marginalized identity that she wears as a woman, then as
a dalit in a rural setting and then as a person with disability. Hence more research and more
provisions are required for people who face marginalization due to the multiple oppressed
identities that cuts across gender, caste, class, religion, rural/urban divide along with being a
person who happens to be disabled.
Conclusion
The present chapter mainly attempted to introduce what is understood by disabilities and the
issues that serve to be important to persons with disabilities. It served to trace the different
meaning of disabilities presented within the provisions of UNO and the laws that are present
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for persons with disabilities in India. The chapter also broadly discussed the evolution of
movements around the issues of persons with disability in India. It stressed that international
pressures have had a huge impact and it played a major role in the passage of the Persons
with Disabilities Act of 1995 in India. It has also been mentioned that there are multiple
NGO’s that are operating with respect to serving the needs of the disabled both
internationally and in association with local level NGO’s at the grassroots. The knowledge on
disabilities had been largely confined within the discipline of medical science until recently.
At present there are disciplines with social science too where subjects and issues of persons
with disabilities are being discussed. The chapter also noted that disability should not be
viewed as a medical condition alone. The lives of persons with disabilities are further
marginalized on the basis of their social identities like gender, class, caste, religion and local
setting as well.
The chapter discussed in details both the Persons with Disabilities Act of 1995 and the
Rights of Persons with Disabilities Act of 2016 which replaced the previous existing act in
place. It can hence be concluded that there is great need for proper implementation of the
existing provisions for the disabled in India. Apart from the measures that have been already
laid out in the Rights of Persons with Disabilities Act of 2016, there also needs to be further
realization on issues that confront the disabled and serve as barriers in their path struggle for
survival, well-being, education, employment and development.
References
1. The Rights of Persons with Disabilities Act, 2016, Gazette of India (Extra-Ordinary);
28 December. 2016. (Last accessed on 2020 Sep 27). Available
from: http://www.disabilityaffairs.gov.in/uploaad/uploadfiles/files/RPWD/ACT/2016.
pdf
2. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act. 1995. (Last accessed on 2020 Oct 20). Available
from: http://www.disabilityaffairs.gov.in/upload/uploadfiles/files/PWD_Act.pdf
3. Laboris, Ius. Rights of Persons with Disabilities in India and other Jurisdictions,
Lexology.com. (Accessed on 2020 October 18). Available from: https://www.
lexology.com/library/detail.aspx?g=c606f652-6bf9-42d7-ab1d-a764c3215e0e
4. Jha, Markand. The History of India’s Disability Rights Movement, The Diplomat,
December 21, 2016. (Accessed on 2020 October 19) Available from:
https://thediplomat.com/2016/12/the-history-of-indias-disability-rights-movement/
5. Disability Rights Movements in India, Asha Bhavan Centre, October 16, 2017.
(Accessed on 2020 October 19) Available from: https://medium.com/
@ashabhavancentre/disability-rights-movements-history-in-india-7fb1f7399517
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Unit-4 : Empowerment
(a) Access to Information

Deepak Kumar1
Introduction
In a democratic country, citizens have the right to ask questions or interrogations from their
government regarding their functions and outcomes of the existing policies. Information is
necessary for the functioning of democracy in the true and right way. Citizens need to be
informed about the different domains of affairs and issues such as social, political, and
economic. Information is very much significant for the development of any country. It is the
carrier of socio-cultural and economic transformation and exchange of ideas.
For a democratic country, information is one of the sources which empowers citizens and
enables them to become part of the political system. In other words, information is having the
power to contribute to knowledge making and producing exercise. With the increase of
information and technology, access to information becomes a primary right, and it is
important in the contested democratic countries.
In the present scenario where technology plays a major role in transferring the
‘information’ from one place to another place swiftly without any modification. Therefore,
the role of state intervention becomes important to authenticate the information though there
are sectors, which are out of reach of such rights. Because providing information about the
development or work progress in the required field to the citizens of the country is not an
easy task for them.
The word ‘information’ apparently originated from the Latin word ‘formation’ and
‘forma’. The meaning of information is sharing the idea or knowledge in society. It helps in
the formation of something new which will be played a major role in the development of
society as well as the country. Information also helps in the eradication of vague ideas.
Transferring or sharing information is important for the functioning of a true democracy
smoothly. The democratic country has to share information regarding current affairs and
broad issues like political, social, and economic. The citizens who are part of any society or
territory should have the accessibility of information about their working procedure and
outcomes. Yachine Ait Kaci argued that “Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and regardless of frontiers
(Yacine Ait Kaci (YAK), 2015)”. Access of information for the citizen makes the leader of
the state more transparent and effective. As Abid Hussain said that “freedom will be bereft of
all effectiveness if the people have no access to information. Access to information is basic to
the democratic way of life. The tendency to withhold information from the people at large is
1
Deepak Kumar is a Research Scholar (PhD) in the Department of Political Science, Univesity of Delhi.
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therefore to be strongly checked” (O'Mara Shimek, 2020). It’s the right of the citizens to
know the functions or work progress from the different authorities of the state mechanism
and government. This chapter deals with a brief account of the history of the RTI Act, the
RTI movement, and its significance in India, following the discussion on the RTI act, process
of obtaining information, and role of government.
Meaning of the Right to Information
According to the Right to Information Act 2005, any material such as documents, memos,
including records, email, opinions, circular, notice, advice, press release, order, contracts,
logbooks, sample, papers, data resources in electronic form as well as “information related
with any private body which can be accessed by a public authority under any other law for
the time being in force” (Viswanathan, 2005). According to this “Right to Information Act”,
that information is also accessible for citizens who are under the control of public authority or
held by public authority. These rights are “inspection of work, documents, records, taking
notes, extracts or certified copies of documents or records” (Viswanathan, 2005). Other
information is also accessible for the citizens such as “taking certified samples of material,
obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other
electronic mode or through printouts where such information is stored in a computer or any
other device” (Viswanathan, 2005).
A Brief Account of the History of RTI
The RTI Act 2005, came into existence after a long journey of wrestle completion. the idea of
the Right to Information act came when the world’s first “Freedom of information Act” has
established in Stockholm (Sweden) on 2nd December 1776 (Aastha, 2018). Through this Act,
the freedom of the press was already established and it started working as the fourth piler
along with the legislature, judiciary, and parliament. The provision of the freedom of the
press was the beginning step towards for transparent form of government. Later “freedom of
speech and expression” consider and encompassed as a “fundamental right” in the
constitution of many countries such as the United Kingdom and India etc. Similarly, the
French constitution declared a “Declaration of the Right of Man and the Citizen” (UNHCR,
1789). According to article 14 of this declaration, “all citizens have the right to ascertain, by
themselves, or through their representatives, the need for a public tax, to consent to it freely,
to watch over its use, and to determine its proportion, basis, collection and duration”
(UNHCR, 1789). In the year 1946, United Nations General Assembly passed a resolution
saying that
freedom of information is a fundamental human right and is the touchstone of all the
freedom to which the United Nations consecrated; freedom of information implies the
right to gather, transmit and publish news anywhere without fetters. As such it is an
essential factor in any serious effort to promote the peace and progress of the world.
In the process of establishing the RTI Act 2005 in India, the Universal Declaration of Human
Rights (UDHR) has played a most important role. According to article 19 of the UDHR
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“Everyone has the right to freedom of opinion and expression; this right includes freedom to
hold opinions without interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers” (Kaci, 1948). This declaration helped most of
the country become truly democratic in nature. After this declaration, the United States of
America has enacted and established the “Freedom of Information Act” (5 U.S.C, section
552) as a “Federal Law” in 1966. According to this federal law, “‘any person’, including U.S.
citizens, foreign nationals, organizations, associations, and universities has right to obtain
information from a Federal Government Agency” (CMS, 2020) and “mentioned that each
agency shall make available to the public information” (National Government Act, 2007).
The first time the British government enacted an act with the name of “the Official
Secret Act 1923”. According to this Act, the government had the right to keep secret any
information from their citizens or the public. Even after independence when the Indian
Constitutions has enacted on 26th January 1950, there was no attempt made by the
constitutional assembly to or provision for access information from the government
authorities. It is important for any democratic country to share the information or make it
accessible to the citizens concerning the government activities which makes them a true
democratic in nature. Though in a democratic country, power lies to the people, there was no
law that can bridge the gap between the citizens and government bodies regarding the
information. Awareness regarding the Right to Information came into India during the “State
of Uttar Pradesh vs. Raj Narain case” in 1975 (Supreme Court of India, 1975). This case
became a milestone in the way of RTI, in which the Supreme Court of India directed “the
public authority to make available all the necessary information for the citizens” (Supreme
Court of India, 1975). After this verdict, the Right to Information has become fundamental
rights a part of article 19 (A) of the Indian Constitutions along with the right to freedom and
expression. However, later second press commission in 1982 recommended that section 5 of
the Office Secrets Act 1923 should be repealed. Since, this act was ambiguous between secret
and non-secret documents (Government of India, 1982). Second Administrative Reform
Commission 2005 also mentioned that Office Secrets Act 1923 already “recommended for
repealed in the context of the Right to Information” (Moily, 2007).
RTI Movement in India and its Significance
The demand for the Right to Information started from Rajasthan in the year 1990. Aruna
Roy-led organisation Mazdoor Kisan Shakti Sangathan (MKSS) started the mass movement
and public hearing for Right to Information for the purpose to end corruption (Roy, 1990).
Then the prime minister Vishwanath Pratap Singh had made a promise to his government
work and bring it as an Act. But it was not coming into as an act. Later, to make the
government transparent and accountable a committee was formed under the chairmanship of
Hari Dev Shourie and he submitted the “Freedom of Information Bill” report in 1997. But the
contemporary government had not taken any action according to that report (Shourie, 1997).
Nevertheless, in the year 2001 parliamentary standing committee approved the freedom for
information bill and in December 2002, parliament passed the bill. This bill got approval by
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the president in January 2003 and on 6th January 2003 notified as an act no. 5/2003. But
again, it was not implemented with this name. Thereafter, in May 2004, National Advisory
Council was set up by the United Progressive Government (UPA) for the implementation of
the common minimum program. This council submitted a report for the enactment of the
“Right to Information” Act. After that, this report was presented in the parliament and finally,
it was passed in the Lok Sabha with the 144 amendments on May 11, 2005. It was also
passed in Rajya Sabha on May 12, 2005, and one month later, on June 12, 2005, president Dr.
A. P. J. Abdul Kalam approved this Act. Consequently, it came into existence as a Right of
Information Act 2005 and implemented pan India level, apart from Jammu and Kashmir.
Importance of Right to Information Act
After the establishment of this Act, every citizen of India has the right to know about the
policies, working process, and outcomes, enacted by the government authorities. This Act
allows each and every citizen to ask (through proper channel as prescribed in the RTI, 2005)
any information to the government and its authority, review or scrutinize any government
documents and seek certified photocopies from them. Apart from this provision about the
Right to Information, citizens are also permitted to review or scrutinize any work done by the
government. Abraham Lincoln wrote in 1863 that “the governments are by the people, of the
people and for the people” (Lincoln, 1863). This statement has reflected that people have the
right to scrutinize the government’s policies and its outcomes. Because financially
government is running through their citizen’s taxes which are collected by the government.
Therefore, citizens have the “right to know” that how they are ruled by the democratic
government and where and how public money is assigned for the development work. In
recent years, people are more concerned about the transparency in the government policies
towards society and making administration more responsive and accountable. Because
transparency in the government work and responsiveness and accountability in the
administration filed to make them work through the principle of fairness and equity. It is true
that earlier information regarding governed policies and inquiries about any report were not
available to the citizens. The preamble of the “Right to Information Act” (Viswanathan,
2005) mentioned the significance of such an Act. According to the preamble of the Right to
Information Act:
“Whereas the Constitution of India has established the Democratic Republic;
And whereas democracy requires an informed citizenry and transparency of
information which are vital to its functioning and also to contain corruption and to hold
governments and their instrumentalities accountable to the governed;
And whereas revelation of information in actual practice is likely to conflict with other
public interests including efficient operations of the governments, optimum use of
limited fiscal resources, and the preservation of confidentiality of sensitive information;
And whereas it is necessary to harmonize these conflicting interests while preserving
the paramountcy of the democratic ideal;
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Now, therefore, it is expedient to provide for furnishing certain information to citizens

who desire to have it.”
Therefore, it is more important for the citizens from which they are able to ask the
information or inquiries regarding the government’s policies implementations, processes, and
their workshop (Viswanathan, 2005).
Structure of Right to Information Act 2005
The RTI Act was implemented after a long agitation in India. The purpose of the
implementation of this act is to make the government more transparent, accountable,
corruption-free and it helps to make democracy true and participatory.
According to the Second Administrative Reform Commission 2005 (ARC)
The Right to Information Act, which has recently been enacted, is path-breaking
legislation, which signals the march from the darkness of secrecy to the dawn of
transparency. The Right to Information Act will be a powerful means for fighting
corruption. It will increase the flow of official information to members of the public,
and in that sense, supplement the process of effective overseeing of governmental
processes by civil society (Moily, 2007).
The RTI Act has divided into VI chapters. The very first chapter is called Preliminary in
which all the related concepts have been defined. According to Section 2 (a) “‘appropriate
Government’ means in relation to a public authority which is established, constituted, owned,
controlled or substantially financed by funds provided directly or indirectly—by the Central
Government or the Union territory administration, the Central Government and by the State
Government, the State Government” (Viswanathan, 2005).
And section (b) is a very important part of this act because it has defined the “Central
Information Commission (CIC)”. But chapter III is all about CIC, which mentioned that who
is the part of this CIC. This part is also known as the constitution of CIC, according to this
section According to section 12(2) In the Central Information Commission (CIC), there is a
“Chief Information Commissioner and the maximum number of the Chief Information
Commissioner will be ten as may be deemed necessary” (Viswanathan, 2005).
This section also has an explanation “that where the Leader of Opposition in the House
of the People has not been recognised as such, the Leader of the single largest group in
opposition of the Government in the House of the People shall be deemed to be the Leader of
Opposition” (Viswanathan, 2005). Section 1(c) is about the “Central Public Information
Officer (CPIO)” but subsection (1) of section 5 about the designation of CPIO (Viswanathan,
2005). According to this section
Every public authority shall, within one hundred days of the enactment of this Act,
designate as many officers as the Central Public Information Officers or State Public
Information Officers, as the case may be, in all administrative units or offices under it
as may be necessary to provide information to persons requesting for the information
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under this Act (Viswanathan, 2005). And the subsection of section 5 is about the
Central Assistant Public Information Officer or a State Assistant Public Information
Office.
The Chief Information Commissioner (CIC) and Information Commissioner (Sec. 2(d)) has
been appointed on the recommendation of the constituent committee by the president. The
Prime Minister (Chairperson), a Union Cabinet Minister (Nominated by the Prime Minister),
and the Leader of the opposition of the Lok Sabha are the member of the Constituent
Committee (Sec. 12(3)).
According to Section 1(h) “public authority” means “any authority or body or institution
of self-government established or constituted by or under the Constitution, the law made by
Parliament or State Legislature, a notification issued or order made by the appropriate
Government, and includes any body owned, controlled or substantially financed, NGO’s
substantially financed, directly or indirectly by funds provided by the appropriate
Government” (Viswanathan, 2005).
Subsection (k), (l), and (m) of section 2 talked about the “State Information
Commission,” “State Chief Information Commissioner” and “State Public Information
Officer” respectively. About these authorities of the RTI Act has mentioned under the section
of 15 (1), 15 (3) and 5 (2) respectively. According to Section 15 (1), All the State
Government have to constitute a body after getting a notification in the Official Gazette
known as the (name of the State) Information Commission to exercise the power deliberated
on and to accomplish the roles assigned to them as per the Act. Whereas, there is a provision
in section 15 (2) about the formation of the State Information Commission (SIC), in this
commission there is a provision of the “‘State Chief Information Commissioner (SCIC)’, and
the maximum number of State Information Commissioners will be ten, as may be deemed
necessary” (Viswanathan, 2005). There is a provision about the appointment of the SCIC and
SIC in section 15 (3) of this Act. They are appointed on the basis of constituent committee
recommendations by the Governor. This committee consists of “(i) the Chief Minister, who
shall be the Chairperson of the committee; (ii) the Leader of Opposition in the Legislative
Assembly; and (iii) a Cabinet Minister to be nominated by the Chief Minister Term of office
and conditions of service” (Viswanathan, 2005).
Every public authority needs to appoint an officer at each sub-divisional level or other
sub-district level as a Central Assistant Public Information Officer (CAPIO) or State
Assistant Public Information Officer (SAPIO) as mentioned in section 5 (2). According to
this section if the competent authority “receive the applications for information or appeals
under this Act for forwarding the same forthwith to CPIO or the SPIO or senior officer
specified under sub-section (1) of section 19” (Viswanathan, 2005). Many terms or keywords
are there in the act, which need to be understood. However, some keywords are already
explained in the above section such as information or RTI. Other keywords are explained in
the following section:
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Any kind of “documents, files, manuscript, microfilm, microfiche, facsimile copy of

documents, reproduction of images or embodied images in microfilm and any other
substances produced by a computer or any other device considered as a ‘Record’ as per the
section 2(i)” (Viswanathan, 2005). Appellate Authority is a post of the officer which is
immediate senior in the rank and this authority appointed by the concerned public authority.
It is important to know about the Appellate Authority in the different ministries or
departments or governmental institutions. Such as the speaker of the assembly appointed as
an Appellate authority in the context of “House of the People or the Legislative Assembly of
a State or a Union territory having such Assembly” (Viswanathan, 2005). Likewise, “the
Chairman will be an Appellate Authority in the case of the Council of States or Legislative
Council of a State” (Viswanathan, 2005). Whereas, the “Chief Justice of India in the context
of the Supreme Court and the Chief Justice of the High Court in the context of a High Court
considered as an Appellate Authority” (Viswanathan, 2005). According to the RTI act
“President or the Governor, as the case may be, in the case of other authorities established or
constituted by or under the Constitution; the administrator appointed under article 239 of the
Constitution” (Viswanathan, 2005). This act also explained the Third Party that “a person
other than the citizen making a request for information and includes a public authority”
(Viswanathan, 2005).
Role of Government in RTI
This Act made the Central and State Government responsible or accountable to provide
information to the citizens. Therefore, the role of government (Central or State) is very much
important in the process of obtaining information. As per “section 26 (1) the appropriate
Government may, to the extent of availability of financial and other resources” (Viswanathan,
2005). This section mentioned that “develop and organise educational programmes to
advance the understanding of the public, in particular of disadvantaged communities as to
how to exercise the rights contemplated under this Act” (Viswanathan, 2005). As per this
section “encourage public authorities to participate in the development and organisation of
programmes referred to in clause (a) and to undertake such programmes themselves”
(Viswanathan, 2005). This act also directed to the governments that “promote timely and
effective dissemination of accurate information by public authorities about their activities”
(Viswanathan, 2005). Along with these provisions, the government has the responsibility to
“train Central Public Information Officers or State Public Information Officers, as the case
may be, of public authorities and produce relevant training materials for use by the public
authorities themselves” (Viswanathan, 2005).
It is mentioned in the act about the “power to make rules by appropriate Government
(sec. 27)” and “power to make rules by the competent authority (sec. 28)”. It is also
mentioned in this act (section 30) that if there are any difficulties in the act, “Central
government may, by order published in the Official Gazette, make such provisions not
inconsistent with the provisions of this Act as appear to it to be necessary or expedient for
removal of the difficulty” (Viswanathan, 2005). As RTI described that “no such order shall
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be made after the expiry of a period of two years from the date of the commencement of this
Act” (Viswanathan, 2005).
Process for Procurement of Information
The RTI Act also mentioned the procedure for obtaining information those person who want
to access information through this act, have to request an official language or Hindi or
English in the form of writing or electronic means of communication. The application should
include the fee as prescribed in the RTI Act 2005, to the CPIO or SPIO of the concerned
public authority. As RTI mentioned, “the Central Assistant Public Information Officer or
State Assistant Public Information Officer, as the case may be, specifying the particulars of
the information sought by him or her” (Viswanathan, 2005). RTI act prescribed that
“provided that where such request cannot be made in writing, the CPIO or SPIO, as the case
may be, shall render all reasonable assistance to the person making the request orally to
reduce the same in writing” (Viswanathan, 2005). The applicant is not necessarily giving or
disclose the reason for asking for the information.
The Public Information Officer (PIO) needs to make available the information to the
claimant within 30 days after receiving the application from them. In the process of getting
information, if the applicant asked from the APIO then it will take 5 more days to provide the
information to them. However, if it is the case where life and freedom or liberty are involved
then information needs to be provided within 48 hours. If the applicant is the third party then
it will take 40 days i.e. 30 days and 10 days.
As per section 8 and 9 of this Act, authorities are also having the power to disapprove the
information if the asked information comes under the category of Information not to disclose
or invades the copyright of anybody then the state. In case Public Information Officer (PIO)
unable to provide or deliver the information as per the mentioned time period in the Act i.e.
30 days then the applicant needs to send another application to the Appellate Authority or
Information Commission. There is a provision of a fine, if the authority is not able to provide
the information in given time frame then they will be penalized with 250 rupees per day and a
maximum of 25,000 will be charged for the same.
Those citizens who want to obtain information from any public authority need to send a
demand draft or an India Postal Order (IPO) of 10 rupees along with the application to the
concerned authority i.e. with the name of Accounts Officer. The applicant can submit this
amount through cash to the public authority or Assistant Public Information Officer (APIO),
against this payment, the applicant can get a proper receipt. According to the RTI act 2005, if
applicants seeking information from 8 ministries or departments then they can make payment
through online internet banking or using Visa/Master/Debit/Credit cards (Government of
India, 2013). However, for Below Poverty Line (BPL) cardholder, the application fee is
waived off by the government.
Apart from the above-mentioned fee, the applicant needs to pay an additional fee against
the cost of providing that information. The details of which shall be intimated to the applicant
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by the Public Information Officer (PIO) as mentioned by the RTI Rules, 2012. According to
this rule, the applicants have to bear the following fee:
(a) Two rupees per page.
(b) Actual cost of Photocopy of the document if it is larger in the size.
(c) Actual price for models or samples.
(d) Fifty rupees need to pay for per diskette or floppy.
(e) If it is a case of publication then the applicant has to pay a fixed price or for
photocopy need to pay two rupees for each page for extracts from the publication.
(f) Applicant has to pay a postal charge if it is exceeding fifty rupees (Government of
India, 2013).
The Act has also mentioned the discloser, under this some specific information not provide to
the citizens:
(a) That “information, which would prejudicially affect the integrity and sovereignty of
India and the strategic, security, scientific or economic interests of the State, and
relation with foreign State or lead to provocation of an offense will not be provided to
the citizens” (Viswanathan, 2005).
(b) That information is also not provided to the citizens “which has been particularly
prohibited to be published by any court of law or tribunal or the disclosure of which
may constitute contempt of court” (Viswanathan, 2005).
(c) That “information, which would cause a breach of privilege of Parliament or the State
Legislature will be not available for the citizens” (Viswanathan, 2005).
(d) Information “which will harm the competitive position of the third party has restricted
to share with citizens. For example, trade secrets or intellectual property and
commercial confidence are not too accessible for citizens” (Viswanathan, 2005).
(e) If the competent authority will be satisfied and asked information regarding the
person in his fiduciary relationship, which is related to larger public interest will be
accessible for the citizens.
(f) That information received from foreign Government in confidence is not accessible
for citizens.
(g) That “information is not sharable which is related to the physical safety or endanger
of life of any person or citizens. The source of information or assistance given in
confidence for law enforcement or security purposes is also not accessible to the
citizens” (Viswanathan, 2005).
(h) That “information which would hamper the process of investigation or apprehension
or prosecution of offenders is not accessible for citizens” (Viswanathan, 2005).
(i) Information related to “cabinet papers including records of discussion, debate or
deliberations of the Council of Ministers, Secretaries and other officers”
(Viswanathan, 2005):
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Provided that the decisions of Council of Ministers, the reasons thereof, and
the material on the basis of which the decisions were taken shall be made
public after the decision has been taken, and the matter is complete, or over
(Viswanathan, 2005).
“Provided further that those matters which come under the exemptions
specified in this section shall not be disclosed” (Viswanathan, 2005).
(j) Those “information which are related to personal information and not related with the
public activity or interest or which would cause unnecessary incursion of the privacy
of the individual will be not provided to the citizens” (Viswanathan, 2005).
Conclusion
The RTI Act 2005 is the cornerstone which makes government and their authoritative
branches transparent, accountable, and also in the establishment of true democracy if it will
be implemented truly. Nevertheless, there is no culture to share secrecy of government and
also the authority or government are not willing to disclose their secrecy because it will make
them more sensitive towards transparency and accountability. Also till now people are not
aware of the RTI, if they know or heard about it but do not know the procedure of obtaining
information. It is also notified that after RTI 2005, the government has instructed all the
members of government institutions to disclose their movable and immovable property. Not
only government servant but also applied to a member of parliament.
The government of India needs to work on it properly and in the era of technology, they
have to upload most of the information online so that it will be available and accessible for
the people easily. It is not benefiting the citizen of this country but also makes government
work easier. Through online information, government work is much more transparent and
accountable for the establishment of true and participatory democracy.
References
Aastha, S. (2018). Evolution and Development of the Right to Information Act in India.
Retrieved October 02, 2020, from http://www.legalserviceindia.com/legal/article-323-
evolution-and-development-of-the-right-to-information-act-in-india.html
Centers for Medicare & Medicaid Services (CMS). (2020). The Freedom of Information Act:
An Informational Overview. Retrieved October 11, 2020, from https://www.cms.gov/
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4, 2020, from https://rti.gov.in/rti-act.pdf
Yacine Ait Kaci (YAK). (2015). Universal Declaration of Human Rights (UDHR). Retrieved
October 10, 2020, from https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf?
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(b) Rights of the Customer

Deepak Kumar/Komal1
Introduction
Every species consumes something for their survival in this world along with human beings
but only humans have the quality and capacity for transaction or exchange for goods. Quality
of exchange of goods with each other is not a new phenomenon in the history of human lives.
But in the changing scenario, exchange or transaction of goods becomes a part of the market.
The market system has converted an individual into a consumer as s/he has the capacity to
buy goods and services. In the market, an individual can buy or sell their goods or services
for their own use or benefits. In this process, it is the right of the consumer to get a good
commodity for their use, which will not harm or affect their health negatively. The useful
goods are most important and it is the fundamental right of human beings. Therefore, the
government of India brought an act called the “Consumer Protection Act” in the year 1986,
which protects the “consumer rights” of the citizens.
Industrial Revolution has segregated the space between urban and rural as, after the
coming up of the Industrial Revolution, many people shifted from rural areas to towns. And
urban cities became the hub of consumption. There is a lot of anonymity in the urban cities as
people from different regions have migrated here. So, now in this anonymous urban life, the
scope for large-scale unfair trade practices by traders and manufacturers increased. Earlier
when the communities were small and the barter system was prevalent, at that time, one
could not cheat another in the market place as people knew each other very well but now this
is not the case in the present globalised market, as we have now entered into a digital era
where E-commerce has become very significant where anonymity is even more than earlier.
So, in the competitive market, the reliability aspects favour the producer and seller and not
the consumer. Thus, in the digital and globalised era, we as consumers need to know our
rights and as an aware consumer, while buying goods or services, we should act rationally by
seeing the ingredient list of the product, checking the quality of the product. We should also
be concerned about our environment while buying the goods.
The chapter is divided into four sections, the first section denotes the historical aspect,
the second section discusses the legal and procedural framework. The third section addresses
the recent development in the consumer protection act and the last section deals with the
critical analysis of the rights of the consumer.
Definition of Consumer
Section 2(1)(b)(i) of the Consumer Protection Act 1984 recognizes an individual consumer as
a complainant. As per section 2(1)(d) of this act, a “Consumer is who - (1) purchases goods
1
Komal is an independent researcher
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for their own use”, but those people who procure such goods to sale again or for any
commercial reason or (2) employ or takes any service are not included in this act (S. Sandhu
& Kaur, 1996). Thus, the above definition of the consumer makes it clear that a person is a
consumer in his capacity as a buyer of a commodity or service (Saxena, 1998). However, the
definition excludes those who purchase goods to sell them or for any commercial reason
(Saraf, 1992).
Historicizing Consumer Protection in India
In India, consumerism developed in the 1960s and 1970s. In the 1980s, the ‘middle class’ got
affected by consumerism. “In the real sense, the process of consumer protection started in
1986 when the Consumer Protection Act 1986 was enacted. It was enacted for greater
preservation of consumers’ interests and for their grievances. In fact, this law meets the
necessity of safeguarding the buyers from such injustices for which the remedy under
ordinary law became misleading” (S. Sandhu and Kaur, 1996). This Act provides the
consumer a very cheap remedy through informal and speedy protection because there is no
court fee need to be paid. Consumers do not have “to engage lawyers, as they can present
their case on their own or through any representative. A consumer can file a complaint
through recognized consumer association” (S. Sandhu & Kaur, 1996).
According to A. Rajendra Prasad, “the consumer protection act 1986 has received wide
recognition in India as poor man’s legislation as it ensures an easy access to justice” (Prasad,
2020). It has infused, according to Dr. A. Rajendra Prasad, “confidence among the teeming
millions of impoverished litigants”. The newness of this act is that it has included both goods
and services within its ambit. If there is “any deficiency in all services, even by the
government or private companies, then that also can be questioned under this act” (Prasad,
2020). So, the year 1986 will remain noteworthy in the legislative history of India as it has
extended the principle of locus standi by giving permission to registered voluntary consumer
organizations to bring an action under this Act (Sandhu and Kaur, 1996).
Rights of Consumers under Consumer Protection Act 1986
Tavishi Dogra (2019), tells that the Consumer Protection Act, 1986, provides us six basic
rights that every consumer must be aware of. These rights are “right to consumer education,
right to security, right to redressal, right to information, right to select and right to be heard”.
Right to have “Consumer Education”, guarantees the buyer to have an effortless reach to the
informational programmes and articles which can assist them to take good decision while
availing any services. “Formal education system like educational institutions or awareness
campaigns which government body or NGOs organizes can provide such information to
consumers” (Dogra, 2019). Right to Security provides ‘consumers’, a “right to be protected
against the marketing of goods and services which are dangerous for their life and property”
(ibid). This right applies primarily to pharmaceuticals, healthcare, and food processing
sectors. It applies to those sectors also which impact our health indirectly such as housing,
house equipment, automobiles, and tourism. According to the provision of Right to
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Redressal, a consumer has “the right to demand redressal against unjust trade practices or
unethical consumer’s exploitation” (Dogra 2019). By the Consumer Protection Act, consumer
courts are assimilated so that such unjust trade practices and consumer exploitation can be
deterred. This act establishes these courts at three levels i.e. “District Consumer Disputes
Redressal Forums at the district level, State Consumer Disputes Redressal Commissions at
the state level, and National Consumer Disputes Redressal Commissions at the national
level”. Furthermore, a consumer has “the right to be heard”. The act guarantees the
consumers that their interests will get proper attention at the forums made for this purpose.
This right also makes sure that the consumers will file the complaint against any flawed
products and services without fear. Even websites are made on which consumers can upload
their complaints which are then inquired and sent to the consumer courts for resolution.
“Right to Choose” implies, that “a consumer has the right to have an access to diverse kind of
commodities at competitive prices” (Dogra, 2019). It even provides the buyer the right to
bargain on Maximum Retail Price also, as the government has not fixed it and the real selling
rate of a good can be lower depending on the taxes. “Right to Information”, is a very
important right provided by the act. This act provides the consumer with “a right to have
information about the standard, amount, strength, purity, quality and cost of the
commodities” so that a buyer can be safeguarded against unjust trade practices. For example,
buyers should be informed about the expense of taking a loan, or pharmaceuticals have to
reveal the probable reaction of medicine. (Dogra, 2019)
Consumer Protection Council under the Consumer Protection Act 1986
This Act establishes the Central Consumer Protection Council at central, State Consumer
Protection Council at the state, and District Consumer Protection Council at the district level.
These councils are set up to protect the consumers’ interests.
District Consumer Protection Council: State Government through a notification establishes
a council for each district. It consists of a Chairman (Collector of the District) and other
officials and non-official members which the state Government determines. The aim of every
District Council is to promote and protect the Consumers’ rights within State (Roy, 2017).
State Consumer Protection Council: It is established by the State Government by
notification. It consists of the following members, 1) “Minister-in-charge of Consumer
Affairs”, (he will be its Chairman) and 2) “Other officials or non-official members” not more
than ten (nominated by the Central Government). These officials represent those interests that
the State Government has determined. Every State Council has an aim to strengthen and
safeguard consumers’ rights within the State as per Section 6 of CPA.
The Central Consumer Protection Council: This council is established by Central
Government through a notification in the Official Gazette. It is a supreme body dealing with
consumer affairs. It is composed of 150 members which include – 1) “The Minister-in-charge
of the Consumer Affairs” (he is the Chairman of it). 2) “Other official or non-official
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members”. Who represents prescribed interests? The term of council’s office is 3 years.
Many working groups are also created by the council who suggests amendments to the Act.
This Council aims to protect and strengthen the following rights of buyers – 1) Right to
safeguard them against trading of those commodities and services which are dangerous for
their property and life. 2) Right to be informed about the quantity, features, strength, purity,
standard and cost of commodities or services so that buyer can be protected against unjust
market practices. 3) Right to have access to various commodities and services at fair prices.
4) Right to be assured that consumers’ interests will get due attention at the suitable Forums.
5) Right to demand remediation against unjust market practices. 6) Right to have consumer
education (ibid).
Redressal Agencies under the “Consumer Protection Act, 1986”
Provisions to establish three-tier consumer dispute redressal agencies have been made under
the “Consumer Protection Act (thereafter CPA), 1986”. These agencies are as follows:–
1) District forum at district level 2) State Commission at the state level and 3) National
Commission at the central level. These three are quasi-judicial bodies, having unique features
both in respect of their constitution and methods of operation.
Structure of the District Forum, State Commission and National Commission
The District Forum: State government would set up this forum in every district to bring
justice near the homes of consumers. “If the State Government feels necessary then it has the
power to set up more than one District Forum in a district”. This is only an advisory body.
Its Composition: The District forum is made up of “a person who is its President and is
qualified to be District Judge” and “two other members, one of whom should be a woman”.
Eligibility to become its member are as follows- s/he should be of 35 years of age or above
and to be a graduate from an accredited University. Also, “Should be an honest person,
should have the ability and appropriate knowledge and experience of at least ten years in
dealing with problems relating to law, economics, accountancy, commerce industry, public
affairs or administration”.
Appointment of the Members: Members of the forum are appointed on basis of the
recommendations of a selection committee. They are appointment under the President’s
chairmanship of the State Commission, Secretary of Law Department of State, and Secretary
in-charge of Department who deals with consumer affairs in State as its member. Its members
have a tenure of 5 years or up to 65 years of age, whichever is earlier. A member can be
reappointed for 5 years tenure or up to the age of 65 (whichever is earlier), provided he
fulfills necessary qualifications and other conditions for appointment. (ibid.)
Its Jurisdiction: District forums have original jurisdiction (Saraf, 1992). “A written
complaint can be filed before this forum if the cost of commodities or services plus the
compensation claimed is below Rs 20 lakhs”. It can be filed by “consumer himself who
bought the goods, by any recognized consumer associations even if the consumer who bought
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goods or took services is not a member of that association if there is a group of buyers then
by one or more of them”. State or Central Government either as a representative consumers’
interests in general or in its individual capacity can also file a complaint.
Appeal: If the afflicted party is dissatisfied with District Forum’s judgement, then that party
can file an appeal against the order of Forum before the State Commission within 30 days of
the passing District Forum’s order and by prepaying twenty-five thousand or 50% of the
penalty whichever is less.
State Commission: It is established by the government of the State and its jurisdiction is
confined to the boundaries of the concerned State. High Court’s judge (who is its President)
and 2 other members, which includes a woman are its members. To become its member, they
should be 35 years old or more and have done graduation from an accredited University. S/he
should be an honest person, should have an ability and appropriate knowledge and experience
of at least 10 years “in dealing with problems relating to economies, accountancy, law,
commerce, public affairs, industry or administration”, provided that Maximum 50% of the
members should be from those who have a judicial background.
Appointment of the Members of state commission: Its members are appointed on the basis
of the recommendations of a selection committee. Their appointments are done under the
President’s chairmanship of the State Commission. “In the case when State Commission’s
president is absent then the State Government can refer this matter to the Chief Justice of the
High Court to act as the Chairman”. Its members have a tenure of 5 years or till 67 years of
age, whichever is earlier. A member can be appointed again for another 5 years tenure or the
age of 67 years of age (whichever is earlier), “provided s/he fulfills all essential qualifications
and other conditions to be appointed”. (ibid.)
Jurisdiction: It has been vested with original, appellate, and revisional jurisdiction. (Saraf,
1992). If the cost of commodities or services and compensation claimed is above 20 lakh
rupees but less than 1 crore rupees then a written complaint can be filed before the State
Commission. The appeals against any District Forum’s orders which lies in that State, then,
can also be filed before State Commission. “The State Commission, after receiving the
grievance needs to refer the complaint to the party against whom the complaint is filed” (Roy,
2017).
Appeal: “If the afflicted party find the judgement given by the State Commission
dissatisfactory, then that party can file an appeal against such order before the National
Commission within a period of 30 days of the passing of the order and by depositing thirty-
five thousand rupees or 50% of penalty amount whichever is less”. A late appeal can also be
allowed if the Commission feels that there was an adequate reason for not filing an appeal
within the stipulated period. (ibid.)
National Commission: It is set up by the Government of India in 1988. It is a supreme body
in the three-tier judicial machinery for redressal of complaints of the consumers. It follows
the method prescribed by the Central Government. “It also shares the same powers of a Civil
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Court while dealing with cases”. A retired judge of the Supreme Court is head of this
commission. The Central government appoints a President, who is Supreme Court’s judge.
He is appointed after consulting with “Chief Justice of India” and also Central government
appoints other four members also, including a woman. Qualification to become a member of
this commission is that a person needs to have completed 35 years of age and have done
graduation from an authorized University.“S/he should be an honest person, and should have
an ability and standing and have appropriate knowledge and experience of at least 10 years in
dealing with problems relating to commerce, law, accountancy, economics, public affairs or
administration”. Maximum 50% of the members can be from amongst persons who have a
judicial background and not more than that.
Their Appointment: Members of the commission are appointed on the basis of a selection
committee’s recommendation. “They are appointment under the Chairmanship of the
Supreme Court judge and the Secretary in the Department of Legal Affairs in the central
government and Secretary of the Department who deals with buyers, are its member”. Its
members have a tenure of 5 years or till 70 years of age whichever is earlier. If a member
fulfills the essential qualifications and other conditions for an appointment then he can be
appointed again for another tenure of 5 years or till 70 years of age whichever is earlier.
Jurisdiction: This commission is vested with original, appellate, and revisional jurisdictions
(Saraf, 1992). If the cost of commodities and services and the compensation claimed is more
than Rs 1 crores then a complaint can be filed before it. The appeals against a State
Commission’s orders can also be filed before it. “When the complaint is acknowledged, then
this Commission should refer the complaint to the party against whom the complaint is filed.
If this Commission feels the need then it can also send the commodities or samples of it in a
laboratory so that it can be tested. The Commission, after considering the test report, should
pass an order for recall of defective goods for replacement, removal of deficiency in service”.
It can also make the producer pay compensation for loss or injury caused and abide by safety
provisions (Roy, 2017).
Appeal: If the afflicted party find the judgement given by the National Commission
dissatisfactory, then that party can file an appeal against such order before the Supreme Court
of India within 30 days, by depositing fifty thousand rupees or 50 percent of the penalty
amount. It may be noted that the National Commission is entrusted with administrative
control over all the State Commission so as to attain the aims of “Consumer Protection Act,
1986” (ibid.).
Critical Engagement with the Consumer Protection Act 1986
There are many loopholes found in the “Consumer Protection Act 1986” on the basis of
which this act has been criticized by various scholars. One such criticism is given by G.I.S.
Sandhu and Arvind Kaur in their article “Consumer Protection in India: Some areas of
illusion” (1996), since a person who procures commodities to resale or for any commercial
purpose are specifically excluded from the definition of a consumer, so he is unable to get
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any protection by this act. Sandhu and Kaur criticize this act on the basis of this exemption.
They argue that there appears no reasonable justification for excluding the persons who
procure goods for any commercial purpose. In any event, if the interests of such buyers are
not protected, it will recoil ultimately on consumers who purchase the goods for their own
purposes as the persons purchasing the goods for commercial purposes will take into account
the defective goods in calculating the cost of production of the ultimate goods.
Sandhu and Kaur (1996), further says that in fact, no such distinction has been made
between these two types of consumers (the one who buy for themselves and the another who
buy to resell) in respect of hiring of services under section 2(1)(d)(ii) of the Act. This
provision debars a large chunk of consumers from the operation of provisions of the Act. This
exclusion is all redundant and defeats the purpose of the very consumerism. Sandhu and Kaur
(1996) suggest that the meaning of consumer should be broad-based so as to include anyone
who consumes goods or services irrespective of the purpose or scale. The Act should serve all
consumers and all the confusion should be removed from it.
Sandhu and Kaur (1996) also criticize this act, on the basis of the fact that the words
“Free of Charge” mentioned in section 2(1)(o) “free hospital services” is not being treated to
come within the ambit of the definition of the ‘service’. Sandhu and Kaur (1996) say that it
should also be borne in mind that patients with insufficient means to avail of the paid medical
service are also unable to bear the expenses of the litigation under ordinary law. Thus, it
would be in the betterment of medical service at government and charitable hospitals if these
are also brought under the purview of the act. Only then can it be said that “the right to
inexpensive medical care is included in the right to life guaranteed by article 21 of the
Constitution”.
Consumer Protection Act, 2019
The Consumer Protection Act, 2019 (thereafter CPA 2019) came into force from 20 July
2020 (Jagannath, 2020). This act replaces the three-decades-old Consumer Protection Act of
1986. “The 1986 Act had some enormous legal shortcomings which the 2019 Act proposes to
resolve” (Raju and Sharma, 2020). Also, we are now living in a digital age that has brought in
new challenges related to consumer protection with which the three-decade-old 1986 law was
unable to deal. So, to address this new set of challenges the new consumer protection act
2019 was needed (Raju and Sharma, 2020).
The CPA 2019, makes rules to prevent unjust trade practices by “e-commerce
platforms”, as the definition of “consumer” under the 2019 Act now includes those
consumers also who shop on online platforms, unlike the 1986 Act which did not include
those buyers who shop through e-commerce platforms. The 2019 act fills this lacuna. (Raju
and Sharma).
Under the Consumer Protection Act 2019 “Central Consumer Protection Authority
(CCPA)” will be established to promote, safeguard and enforce consumers’ rights. “Matters
which are related to violation of consumer rights, unfair trade practices, and misleading
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advertisements will be regulated by CCPA”. This Authority will have a wing that will do an
investigation. There will be a Director-General who will be heading this wing, which may
investigate or carry out an inquiry into such violations (The Consumer Protection Bill 2019,
2019).
Central Consumer Protection Authority will perform the following functions: 1) It will
inquire into violations of consumer rights 2). It will investigate and launch prosecution at the
appropriate forum 3) It will issue directions to the concerned manufacturer/tradesman/
advertiser/endorser/publisher to either stop an untrue or fallacious advertisement, or alter it
4) It will pass orders to call off commodities or withdraw services that are dangerous,
reimbursement of the price paid, and discontinuation of the unjust market practices, as
defined in the Bill (5) It can impose penalties, and; (6) It can issue safety notices to buyers
against those commodities and services which are not safe. (ibid.)
This authority can also disallow a misleading advertisement’s endorser from endorsing
that particular good or service for a period of up to 1 year. “For every subsequent offense,
this period of disallowance can be extended to 3 years. Though, there are certain exceptions
when an endorser will not be held liable for such a penalty” (The consumer protection Bill,
2019). This authority can impose a penalty on an endorser or a manufacturer of up to 10 lakh
rupees and imprisonment for up to 2 years for an untrue or fallacious advertisement. If there
is a case of a subsequent offense, then the fine can be increased up to Rupees 50 lakhs and
imprisonment of up to 5 years. (ibid.)
Under the new act, no fee will be charged for filing cases up to rupees 5 lakhs. Also,
under the new act pecuniary jurisdiction of Consumer Disputes Redressal Commissions
(CDRCs) has changed. Now the “District CDRC will entertain complaints where the cost of
commodities and services is up to rupees 1 crore” (earlier up to 20 lakhs), “The State CDRC
will entertain the complaints if the cost is more than Rupees 1 crore but less than Rupees 10
crores” (earlier 20 lakhs to 1 crore). “If the cost of commodities and services is above Rupees
10 crores then the complaints will be filed before the National CDRC” (earlier above 1 crore)
(ibid). Under the 2019 act, a consumer can now file complaints electronically (Jagannath,
2020).
Access to consumer dispute redressal commissions provided in the Act has helped the
patient to litigate easily. Under the present “Consumer Protection Act” now no fee is charged
for the value of goods or services up to Rupees 5 lakhs. Therefore, “now most of the medical
services which cost up to 5 lakhs of rupees can be litigated against without any fees”
(Rajendran, 2020).
The new Act has added ‘telecom’ to the definition of ‘services’ so that the telecom
services can be brought under the ambit of the 2019 Act (Raju and Sharma, 2020). 2019 Act
makes the product Manufacturer, product seller, and Service Provider liable “if their products
cause any kind of harm which results in any injury or death of the consumer” (The consumer
protection bill 2019, 2019). However, the manufacturer will have to bear more liability in
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comparison to the product seller and the service provided. This will also apply to e-commerce
platforms (Raju and Sharma, 2020).
“The 2019 Act also includes the definition of ‘food’ as defined under the Food and
Standards Act, 2006, which has replaced the definition of ‘goods’ provided under the 1986
Act” (The consumer protection bill 2019, 2019). With the aid of this step now, various food
delivery platforms are also brought under the sphere of consumer protection. Under the new
Act, “the buyer himself or the parents or legal guardian of the consumer” can file the
complaint. This new Act also “allows the buyer to file a complaint at the place where one
resides or at the place s/he works” (The consumer protection Bill 2019, 2019). The complaint
can be filed electronically also by the consumer and now the complaint can also be heard via
video conferencing in certain circumstances.
The new act provides an Alternate Dispute Resolution mechanism of Mediation, which
will make the adjudication process simpler. A Consumer Commission will refer to a
complaint about negotiation, “if the scope for early settlement exists and parties agree for it”.
Negotiation will be held in the Mediation Cells. “These mediation cells will be established
under the aegis of the Consumer Commissions. There will be no appeal against such
settlement which are done through negotiation” (Jagannath, 2020).
Critical Analysis of the Consumer Protection Act 2019
As said earlier “The Consumer Protection Act 2019” was a much-needed step in this era of
digitalization. It has tried to settle in the flaws of the 1986 Act. But some issues are still
unaddressed on the basis of which this new act can be criticized. One such flaw is the
“definition of the consumer”, given in the new act. The new act defines a consumer “as a
person who purchases any commodity or avails any service for themselves” (The consumer
protection bill 2019, 2019). Those persons who procure a commodity or service for resale or
commercial purposes are not included in the new act (like the 1986 Act as it also did not
include this category in consumers’ definition). It means a reseller is still not protected under
this new act which will have a spill-over effect on the consumers as the resellers will take
into account the defective goods in calculating the cost of production of the ultimate goods
(Sandhu and Kaur, 1996).
Another point of criticism is that “this new law also continues to apply to all medical
services, which are ‘bought’ for consideration that is if the patient is paying for receiving the
medical services, (at concessional rates even) then only he will come under the bounds of
Consumer Protection Act otherwise not” (Rajendran, 2020). It means that those medical
services which are provided for free or provided as a charity, then they will not be covered
under this act. These principles apply to both Government and corporate hospitals. “If a
Government hospital charges a fee, then its service will be covered under Consumer
Protection Act, while a private hospital which provides its services as the charity will not be
covered under the act” (Rajendran,2020). This approach is based on the decision taken by the
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Supreme Court in “V P Shanta's case” in 1985. Thus, the “same even continuing now” under
the Consumer Protection Act 2019. (Rajendran, 2020).
The new Act can be criticized on the grounds that, while it establishes a Central
Consumer Protection Authority (CCPA) which is a commendable initiative but how this
authority will function is still not clear. Some functions which are related to investigations
and interrogations of the authority are also unclear. “There is also an overlap between the
director General’s functions while considering the investigative wing and search and seizure
functions” (Raju and Sharma, 2020). Central Consumer Protection Authority is provided with
the power to call off the goods, punish manufacturers or endorsers and return price, and issue
directions. But the issue is that the “appeal against such orders can only be filed before the
National Commission” (Raju and Sharma, 2020). It is still not clear that the National
Commission should entertain such cases under which circumstances or the criteria. Though
still there are some flaws in the new act, we also cannot deny the fact that it did try to
overcome many defects of the 1986 act which was of no use in this new era of e-commerce.
Conclusion
Drastic changes have occurred now in the way the market functions. Now international trade
is growing, the rise is also seen in global supply chains and e-commerce is also developing
rapidly. Also, a lot of pending cases are there in the consumer courts of India. The number of
misleading advertisements in the new market set up is increasing. So, “a special check on
direct selling and multi-level marketing became a necessity” (Raju and Sharma, 2020). Thus,
the new act was very much needed to tackle all these problems. Therefore, it can be said that
the “decision to implement this new act is one of the sincere steps which the government has
taken” (Raju and Sharma, 2020). This new act enhances consumer rights and speedy delivery
of justice. This new law rather than dispute redressal alone aims for consumer welfare
(Rajendran, 2020). In the recent Act, at various levels, the ceiling and the compensation to
consumers have been increased. The 2019 act provides for CCPA which will benefit those
consumers who are unaware of their rights and are deceived (Rajendran, 2020). The world
was unaware in 1986 of many aspects such as E-commerce and mediation on which the 2019
Act focuses. So, “in the era in which the way we shop has shifted from offline to online and
digitalization has changed the way a buyer conducts online transaction”, it became a
necessity to amend the act. Thus, it is true that the “2019 Act is a positive step towards
advancement, improvement and enhancing consumer rights” (Raju and Sharma, 2020).
Therefore, we can say that the “new act is a step taken in the right direction for the
consumers”.
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Saxena., I.C. (1988). The Consumer Protection Act 1986: A viewpoint. Jstor, volume.30,
pp.321-331. Retrieved from https://www.jstor.org/stable/43951181
The Consumer Protection Bill, 2019. (2019). Retrieved fromhttps://www.prsindia.org/
billtrack/consumer-protection-bill-2019
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Unit-5 : Redistribution, Recognition and Livelihood
(a) Traditional Rights of Forest Dwellers and the Issue

of Women’s Property Rights
Ms Rumi Roy
Structure
1.1 Introduction
1.2 Objectives
1.3 Historical Background of the Act
1.3.1 The National Forest Policy (1988)
1.3.2 Panchayats (Extension to the Scheduled Areas) Act 1996 (’PESA’)
1.3.3 Tribes (Recognition of Forest Rights) Bill, 2005
1.4 Forest Rights Act, 2006
1.4.1 Who is a “traditional forest dweller” under FRA 2006?
1.4.2 What kind of rights do forest dwellers get under this Act?
1.4.3 Status of Implementation of the Act
1.4.4 Challenges faced in implementation of the Act
1.5 Women’s Property Rights and FRA
1.5.1 Importance of Women’s Right to Property under FRA
1.5.2 Status of Women’s Right to Property Under the FRA
1.5.3 Women’s right to property under FRA and actual practice
1.5.4 Way forward
1.6 Summary
1.7 Glossary of the terms under the Act
1.8 Check your Progress
1.1 Introduction
Forests are of great significance and importance for the prosperity and sustainability of
humankind as it brings multiple benefits to society. Forests form an essential part of the
global environment. There is an estimation that around 1.6 billion people across the world are
dependent on forests for their livelihoods.
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In India, nearly 23 percent of the landscape is covered by the forest area. Approximately
“200 million people” in the country are dependent on the forests as these form the major
source of livelihood. In 2006, the Government of India enacted the “Scheduled Tribes (STs)
and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006 or FRA 2006” to provide
formal recognition and ownership to traditional forest dwellers. The Act was promulgated for
the forest dwellers to assert their rights and concerns over the forest lands which they were
traditionally dependent on for their livelihood.
In this unit we will learn how this Act came into being, what are its detailed provisions
and the key features which renders it crucial for understanding the rights of the traditional
forest dwellers and traditional/tribal women’s accession to forestland and safeguarding their
rights within the vicinity of the forests and their inclusion/exclusion.
1.2 Objectives
In this unit, we would be discussing the rights of the traditional rights of forest dwellers and
the issue of women’s property rights.
After going through the unit you should be able to:
i. Understand and analyse the impact and implementation of FRA, 2006.
ii. Analyse the process of claiming rights by the traditional forest dwellers prescribed
under the FRA
iii. Examine the possible hindrances related to access to the entitlements of the Forest
Rights Act by the traditional forest/tribal women.
1.3 Historical Background of the Act
The survival and sustainability of the ecosystem in Indian forests are characterised by the co-
existence of the forest dwellers who form an integral part of the system. However, although
the forest dwellers have been part of the forestlands for generations, they have not been
granted any legal rights. The colonial administration viewed the forests as a source of
revenue and themselves competed with the indigenous local forest dwellers and reserved it
for their own vested interests depriving the traditional forest dwellers of their rightful claims.
Independence did not alter the scenario much for these forest dwellers causing further
alienation of the communities from their ancestral forest lands. In the post-independent era in
absence of any legal rights of the tribal communities the forests were brought under the
control of the institutional machinery of the state leading to a denial of use of the forests for
their sustainability. Also, the mobility of these forest dwellers complicated their rightful
claims. Forest conservation measures were undertaken by the government ignoring the needs
of the forest dwellers who depended on the forestlands for generations for their livelihood.
There is no official record stating as to who are the inhabitants in the areas often declared as
“government forests” under the Indian Forest Act or what kind of forest resources are these
forest dwellers using.
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Several other legislative measures were introduced in post-independence to identify and

recognise the rights of the forest dwellers or tribal communities. However, these legislative
measures could not mitigate the historical injustices and meet the needs of these
communities. The perceived feeling of insecurity and threat of eviction due to
“unconstitutional and illegal land acquisition programs” undertaken in the name of forest
conservation often made them vulnerable and marginalised.
It is pertinent to examine the existing forest laws in India before the enactment of the
Forest Rights Act, 2006 to protect the rights of the marginalised communities and balance
their rights to forestlands and their livelihoods.
1.3.1 The National Forest Policy (1988)
Post-independence, Indian forests were governed by the “Indian Forest Act, 1927” and “the
Wild Life (Protection) Act, 1972”, the “Forest Conservation Act 1980 (FCA)”. The
provisions under these acts could not give due recognition and access to the forestland of the
forest dwellers. Many times this process had fault lines making them susceptible to eviction
and insecurity. The settlement of these rights was left to the discretion of a forest officer. It
also resulted in gendered discrimination in the potential of inheritance laws of women.
The “National Forest Policy (1988)” is a significant legislative measure because for the
first time it highlighted the ecological and access of the tribal communities in conserving and
managing the forest lands. As per the provisions of the Act, the “Ministry of Environment
and Forests (’MoEF’)” released a set of six circulars on September 18th, 1990. It laid down
the eligibility provisions for the regularisation of the rights of the forest people. However, the
local needs of the people were not implemented wholeheartedly by the state government.
1.3.2 Panchayats (Extension to the Scheduled Areas) Act 1996 (’PESA’)
In 1996, the Parliament passed the “Panchayats (Extension to the Scheduled Areas) Act (the
‘PESA’)”, in response to the unrest and agitation for extending the provisions mentioned in
“Part IXA of the Constitution of India (’Panchayats’) to Scheduled Areas (which are
primarily tribal areas identified for special protection in the Fifth Schedule of the
Constitution.” The PESA empowered the Gram Sabha or the Panchayats to safeguard and
protect the customary traditions and promote the cultural identity and heritage of the forest
dwellers by making mandatory provisions related to land acquisition, rehabilitate the
displaced, and their resettlement. The PESA sought to work for the betterment of the tribal
people to prevent further alienation and utilisation of resources. Despite the development
measures undertaken by PESA it failed to provide satisfactory results in conceding rights to
the forest dwellers.
1.3.3 Tribes (Recognition of Forest Rights) Bill, 2005
Although forest lands were recognised in India and forest officials acting as the governing
authority of the settlement rights of the forest dwellers, no legal discussions or process was
initiated to recognise the rights of these people under the existing laws. In absence of any
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formal recognition to deal with the constitutional provisions and the interim order by the
Supreme Court causing eviction drives under the pretext of driving the illegal encroachers
were untaken by the forests departments across the states and union territories in India. This
impacted the source of livelihoods of the forest dependents causing unrest and inciting mass
protests by the tribal communities after the general elections of 2004. The “United
Progressive Alliance (UPA)” under their commitments to the “Common Minimum Program”
assigned the responsibility to draft the “Scheduled Tribes (Recognition of Forest Rights) Bill,
2005”. The bill met with severe criticism and opposition regarding its implementation in the
context of consolidation rights of the forest dwellers over the forest lands putting a stay in the
regularisation and de-reservations of forest lands.
To reach a consensus mitigating the differences, the bill was referred to the “Joint
Parliamentary Committee (the ‘JPC’). Following the recommendations of both the houses of
the Parliament and contests over the relationship of the forest people, state, and the
recognition of the legal rights to assert control over forests. The opposition against the bill
built up and it took the form of the “Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Bill, 2006” to arrive at a consensus to harmonise and
streamline the rights of the forest dwellers. After receiving the assent of the President of India
on December 29th, 2006, it came into force on December 31st, 2007.
1.4 Forest Rights Act, 2006
The “Scheduled Tribes and Forest Dwellers (Recognition of Forest Rights) Act” or simply
the Forest Rights Act 2006 grants legal recognition to the traditional forest dwellers for
undoing the injustice related to possession of land and ownership in the forest areas post-
independence. The purpose of the act “was to recognise the rights of the forest dwellers in
conservation and protection of forests and wildlife”. The act recognises and ensures forest
rights to the “Scheduled Tribes and Forest Dwellers” to provide them food security and
livelihood thereby “establishing the responsibilities and authority for sustainable use,
conservation of biodiversity and maintenance of ecological balance.” It is a national
legislation to benefit the potential forest dwellers who lacked documentary evidence but have
been cultivating the land for generations for livelihood. Under this act, committees were
formed with multi-stakeholders (from the panchayats, tribal men and women, forest
department, revenue department) to deliberate and decide over the claims made over forest
lands.
1.4.1 Who is a “traditional forest dweller” under FRA 2006?
As per the definitions “the other traditional forest dwellers” under the FRA must fulfill two
essential conditions:
i) they must be primarily residing in the forest lands belonging to the Scheduled tribe
communities.
ii) they have been inhabiting the lands for “at least three generations (75 years) prior to
December 13th, 2005 as bonafides for their livelihood needs.”
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What does the Forest Rights Act do?

Grants legal recognition to the rights of traditional forest-dwelling communities, partially
correcting the injustice caused by the forest laws.
The FRA shifts legal authority over community forest resources from state and national
government agencies to local communities by vesting statutory forest rights with
traditional forest-dwelling communities
1.4.2 What kind of rights do forest dwellers get under this Act?
The Act recognises the following rights:
i) Title rights: The rights granted under title rights include right to ownership over the
cultivable lands in the forests by members of a “forest-dwelling Scheduled Tribe or
other traditional forest dwellers.” Such land shall be “under the occupation of an
individual or family or community from the date of commencement of this Act and
shall be restricted to the area under actual occupation and shall in no case exceed an
area of four hectares”. No right of ownership is granted to lands in which the family has
not been cultivating or inhabiting prior to December 13th, 2005 (Section 4(3)). Claims
to the land which was procured by the Forest department illegally or falls into the
category of disputed land between Forest and Revenue Departments can be made under
Section 3(1)(f) and (g) of the Act. No lands can be transferred, alienated, or sold to
anyone except by inheritance as mentioned in Section 4(4).
ii) Title to Community Forest Rights (CFR): These rights include the “right of ownership
and access to collect, use and dispose of minor forest produce (which includes all non-
timber forest produce of plant origin), grazing ground, water bodies, which has been
traditionally within or outside village boundaries, even in protected areas.” To facilitate
the implementation of the Act the traditional forest dwellers were granted access to
“forest produce things like tendu patta, herbs, medicinal plants, etc “that has been
traditionally collected under section 3(1)(c).” The traditional forest dwellers were
granted access to “the intellectual property rights related to the cultural and
biodiversity”. However, the Act forbids “traditional right of hunting or trapping or
extracting a part of the body of any species of wild animals and any form of destructive
practices affecting their cultural and natural heritage”.
iii) Forest management rights: The ambiguity related to forest resources within reserved
forests and government-owned forests as Sanctuaries and National Parks to which the
traditional dwellers had access to was enhanced to for its conservation for sustainable
use. Earlier, only the Forest Department had the right to protect it. The Act extended its
jurisdiction “to protect and manage the forest resources and wildlife etc. against the
forest mafias, land grabbers by the community.”
The provision for granting and recognising the above-mentioned rights under the FRA 2006
has been vested to the “Gram Sabha under section 6 of the Act.” For the first time, a
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decentralised body was created. The Gram Sabha under the FRA is vested with the sole
responsibility and authority to settle the forest rights and other traditional forest dwellers
within its localised jurisdiction as laid down by the Act.
The holders of forest rights, Gram Sabha, and village level institutions under the FRA
are empowered to:
i. Protect the wildlife, forest and biodiversity;
ii. Ensure those adjoining catchment areas, water sources and other ecologically
sensitive areas are adequately protected;
iii. Ensure that the habitat of forest-dwelling scheduled tribes and other traditional
forest dwellers is preserved from any form of destructive practices affecting their
cultural and natural heritage;
iv. Ensure that the decisions are taken in the Gram Sabha to regulate access to
community forest resources and stop any activity which adversely affects the wild
animals, forest, and the biodiversity are complied with
1.4.3 Status of Implementation of the Act

The Ministry of Tribal Welfare has laid down the status of implementation of the FRA on
April 31, 2018. Some of the significant points are as follows:
i. After the implementation of the Act, around 4.22 million applications were made out
of which only 1.94 million have been rejected. The majority of the claims made were
at an individual level.
ii. Individual titles were distributed in some of the important states like Maharashtra,
Madhya Pradesh, Chhattisgarh and Odisha, Tripura. Around 37,000 individual titles
were distributed in Kerala.
iii. The Act has expanded the mandate of the “Fifth and the Sixth Schedules of the
Constitution that protect the claims of indigenous communities over tracts of land or
forests they inhabit.”
iv. The Act has tried to prevent alienation and facilitated the inclusion of tribes of
Chhattisgarh, Odisha and Jharkhand.
The implementation of the FRA has granted the right of settlement in forest areas to the tribal
communities who were earlier considered as “encroachers.” It has paved the way for the state
governments to submit a report on the action made by the claimants whose claims had been
previously rejected.
1.4.4 Challenges Faced in the Implementation of the Act
The implementation of the FRA had a reverberating effect on eight percent of people of the
total population of the country, whose home is the country’s forests. There were unrest and
turmoil among the forest dwellers against the manner in which the FRA was implemented. A
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sense of betrayal pervaded their minds in absence of any significant provisions elaborating
their protection under the FRA. It led to the outburst of protests. Petitions were filed to strike
down the Act declaring it unconstitutional.
Following are some of the challenges faced in the implementation of the Act and major
lacunas of the Act:
i. The right of inclusion for the traditional forest dwellers in matters related to
rehabilitation who were earlier evicted or displaced from their area of habitation prior
to December 13th, 2005, is laudable from the perspectives of displaced caused either
due to “natural disasters or development projects or failure of the institutional
machinery” making them vulnerable at the hands of the land mafia and local elites.
Such restrictive rights deprive the nomadic tribes particularly the non-Scheduled
tribes of their rightful claims who were dependent on other sources of livelihood.
ii. The Act empowers the Gram Sabha to ensure conservation and biodiversity and
preserve and protect their natural habitat and cultural heritage of the right holders
against destructive practices and penalise the offenders. However, it has not specified
any legal provisions or penalty for the Sabha in case it fails in its responsibility and
duties. It is also silent on the means of legal empowerment of the Sabha.
iii. The provisions of the Act is overlapping with other existing laws that are in force.
Although the act is not in derogation of the other existing laws yet, while extending its
jurisdiction it might be problematic due to overlapping laws.
iv. The Act has not specified any provision related to the dispute redressal in case of
conflict between two or more Gram Sabhas over shared forest lands and resources.
The power to override other legal bodies concerning the areas over which they have
the authority to exercise legal rights is silent in the provisions of the Act.
v. The hierarchical structure of the committees under the Gram Sabhas may cause delay
and lack transparency in speedy redressal of the decisions taken. The failure to
provide specified time limits to address the petitions filed for grant of forest rights
defeats the very purpose and aim of the Act.
vi. The institutional structure and procedure for giving due recognition of forest rights
precluded participation of the people’s representatives. However, although the Act
provided that “the committees shall consist of officers of the Department of Revenue,
Forest and Tribal Affairs of the State Government and three members of the
Panchayati Raj Institutions at the appropriate level, of whom two shall be the ST
members and at least one shall be a woman” a move towards decentralisation in the
decision-making process has been belied with no provision for representation of
NGOs working for relevant social action and protection and preservation of ecology
who can act as a mediator to resolve the ideological differences between the officials
of the forest department and local people.
vii. There is greater resentment among the tribal people against the forest officials in
matters related to the transfer of rights to the communities as per the provisions laid
down by the Act.
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viii. Lack of technical know-how and educational incapacity of the members of the Gram
Sabha and intensive documentation process for making community and individual
claims is a cumbersome and tedious affair for the illiterate forest dwellers.
1.5 Women’s Property Rights and FRA
The FRA was implemented to rectify the injustices meted out to the forest dwellers in the
past. The FRA facilitates the recognition of community and individual forest rights and their
access to forest resources and livelihood. From the colonial past, India’s rich culture and
biodiversity with diverse customary laws with forest reform tenures is overlapping. With
private property falling under the domain of formal law have, access to property entitlements
has been a challenging issue for the tribal women when it comes to strengthening their land
and resource rights. This has resulted in marginalisation and gendered discrimination of tribal
women.
The lack of access to forest lands and resources by tribal women is primarily because
property laws in South Asia have been a gendered issue. Women belonging to the indigenous
communities may be deprived of the resources and recognition of their property rights due to
the existing customary laws. Many progressive laws and policies have been framed by the
institutional machinery to grant private property rights to women. The inheritance rights
granted by the government of India range from entitlement to shares in the ancestral property.
allocation of land and joint housing scheme or exclusive rights of women over the house.
However, the lacuna in legal intervention to protect the rights of women over land and forest
resources has deprived women access to livelihood in the forest lands with land distribution
measures often stemming from carving a portion of land from the common land. The denial
of the rights has rendered them into a minority and subjected them to multiple risks of
domestic violence and survival livelihood needs. This impinges upon the entitlements and
sustainability of their future lives emboldened in the forest resources which forms their
source of food and livelihood.The FRA attempted to provide equal rights to women over
forest lands and resources thereby providing opportunities to women in the decision-making
and implementation process. In India, women’s right to ownership and property and access to
forest land and resources is patrilineal often deriving from the husband. Various studies have
revealed that the ability of the women to have access to forest lands varies from individual to
individual and households depending upon the rights and privileges and position they are
entitled to within the household and community.
The pertinent question in matter relates as to how far women’s participation and access
to forest rights under the decentralised FRA have served to facilitate redressal of gender
priorities in relation to rights and claims over forests.
1.5.1 Importance of Women’s Right to Property under FRA
Under the FRA, several field studies conducted to examine women’s involvement and
participation in forest lands indicated active involvement by women in regenerating forest
diversity and preserving the cultural heritage of the communities to which they belong. They
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have been playing a significant role in preventing the officials of the forest department from
exploiting the forest reserves for revenue generation. They have been actively involved in
cultivation of the forest lands thereby gaining access to private property rights over the
cultivable forest lands.
Significant rights to property claims under the FRA are as follows:
i. Household rights of women have been recognised leading to an increased in the
productivity of their labour over the forest lands.
ii. The forest land occupied by the household can now bear the joint names of the
spouses holding the property or the individual of either gender.
iii. In the management of customary community forest resources and reserves, women
were granted equal access and rights to participation.
iv. In the composition of the forest committees as laid down by the FRA, women must
form at least one-third of the members elected by the village councils to deliberate on
the claims and for further processing those claims.
v. For attending the village council meetings to approve the claims, one-third of the
members must be women.
vi. For better representation in higher decision-making authorities, at least one of the
three elected representatives has to be a woman.
1.5.2 Status of Women’s Right to Property under the FRA
In India, women became conscious of their rights when their existence was threatened, their
lands were stolen and they were labelled as encroachers and they prevented them from
cutting the trees and gather firewood on the forest lands and mountains by people who
addressed themselves as “Sakar”. They were forbidden to enter those terrains which gave life
to them and were essential for their sustenance. The threat of eviction and displacement
compelled women to be conscious of their rights. The FRA has been able to instil a sense of
security and ownership over the rights to forest lands and property. The FRA acknowledged
women’s accession to property rights as paramount for the successful conservation of the
forests and biodiversity.
Studies have found that women’s participation in Gram Sabha meetings have exposed
them to the available schemes making them aware of to reflect on their position in the
community and matters related to property claims. The FRA has facilitated them to be aware
of their rights and break free from the patriarchal subjugation which they have been
historically trapped in. The enactment of the Act also ensured inclusion of the indigenous
tribal women to make rightful claims over the forest lands that have been in possession for
generations and is considered a source of their livelihood
In a study conducted to examine the impact of the FRA among the Bhil tribal women, it
was found that these women were denied the collection of Jatropha seeds and bamboo as
these fall under the category of non- timber forest products as laid down by the provision of
the FRA. Their participation and representation in village council meetings facilitated them to
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collect the seeds by the FRA committee. As a result of this, a self-help group was formed by
the Bhil women to collect the Jatropha seeds during the drought period. However, in matters
related to property rights of the Bhil women, the FRA committee was against granting
property rights as they often elope with other Bhil men. In such a case controlling the forest
lands would be a difficult matter for the men. Also in the decision making process men
formed a formidable majority and women’s representation is limited. However, with the
implementation of the FRA, the gender identity of the Bhil women gained significant
importance in property-related matters and their inclusion and exclusion in the village
meetings and composition of the FRA committees at the institutional level.
1.5.3 Women’s Right to Property under FRA and Actual Practice
In matters to recognition of individual property rights of women a major contradiction
surfacing the FRA’s implementation is the lack of knowledge catering to traditional
communal territories particularly among the vulnerable and marginalised tribal women. In
India, knowledge of the formal law protecting women’s right to own and inherit property
have been specified, however, the legal framework for women’s right to forest lands have not
been explicitly specified and traditional forest-dwelling women still lack access to collective
rights. The legal claims mostly remained in the paper. They were not aware of the benefits
they are entitled to them particularly the Adivasi women. They remain largely ignorant of her
status and confined to the gendered space i.e. household chores, child bearing and cultivation
or gathering forest produce. Despite the FRA, the concept of property ownership was alien to
the female vocabulary keeping them confined in the dark space working at home and in fields
due to wide-scale illiteracy among them. The participation and access to property rights of
women under the FRA remains limited due to the historically established gendered roles
debarring them to participate in “outsiders business” which remains the domain of the male.
In Jharkhand only two percent of the tribal women are literate.This formed a major hindrance
to their participation in public life and committee meetings. The vulnerability of tribal women
made them victims of witchcraft, trafficking, and guerrillas for the Naxalite movement.
One of the major findings revealed that legal provisions under the FRA are flawed when
it comes to providing issuance of property ownership, the provisions provide for joint
ownership particularly in context of granting property rights to single women, the widowed,
and the deserted. The concerns of single women remained silent. The power structures at the
households and the concept of gender neutrality in legal interventions in property matters
have also hampered women’s access to the property in the forest lands. Although due to
political compulsions land “pattas” mostly the “podupatta” are issued on the name of the
women claimants, very often they are not aware of the clauses and entitlements prescribed
under the law due to their limited involvement and interactions with the government officials.
Those who are aware of them have reported delays and reduction of the basic issuance of
“pattas”. Women remain largely unaware of the Gram Sabha committees processing their
claims over ownership of land rights. There is a lack of favourable and institutional
arrangements for their involvement in the mechanism particularly in matters related to
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property ownership. There is a lack of effective and accessible awareness campaigns. Gender
bias among the officials also forbade women to make claims for forest lands making them
secondary claimants by reinforcing the dominant Hindu pattern of gender relations. The male
bias stemming from the mainstream patriarchal property rights in granting individual
property claims over forest lands have left the women disempowered and vulnerable at the
hands of the male counterparts of the households.
The FRA has laid down numbers of provisions to provide for gender progressive rules to
grant women the right to property ownership and membership by laying that Gram Sabha
meeting would be convened only if women constitute at least one-third of the committee
members with fifty percent presence of the village adults. However, on practical grounds
studies have discovered that women suffered from exclusion from the meeting due to
bureaucrats and gram panchayat functionaries. Under the pretext of the reservation quota
women are forbidden for forming a majority in the meetings. Denying them political
representation and involvement in the decision making have led to failure to integrate the
rights of the women.
1.5.4 Way Forward
An inclusive approach to streamline the empowering women rather than granting token of
representational quotas in Gram Sabha committees will facilitate the recognition of the rights
of women under the FRA. While delineating the legal framework amidst the existing
diversity and granting of ownership rights gender asymmetries vis-a-vis Hindu mainstream
gender relations and traditional tribal cultural diversity need to be taken into account. There is
a clear need for government intervention for official implementation of the rights of women.
This can be done by establishing stronger links with women’s organisations and groups and
promoting gender-sensitive decentralised policy at all levels of the government. Such
measures can mobilise women to be politically empowered. A need to create a separate space
for women while framing the laws related to inheritance and property over the forest lands
will step up the process to make claims which rightfully and equally belong to women. From
the gender perspective, the FRA lacks to ignore women’s rightful claims to the property.
There is an urgent need to independently recognise their claims and grant them equal
representation in decisions related to forest conservation and management under the FRA. In-
depth research on the implications of FRA on forms of identity, knowledge and social
relations with men from a gendered perspective will facilitate understanding the mechanism
related to women’s right to property and ownership. This will enable women to understand
what kind of rights are necessary for empowering them and what it would take for them to
improve their access to rights over forest lands.
1.6 Summary
In this unit, we have discussed the provisions laid down which has been heralded as landmark
legislation to address the prolonged struggle of the traditional forest dwellers over forest
rights.
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We have studied the detailed features of the Act and the adverse impact and challenges
in the implementation of the Act on matters related to biodiversity and forest conservation.
We have found why forest rights are necessary and whose rights are recognised and how
forest management and governance need to be oriented to maintain ecological balance and
regulate the exploitation of forest resources by forest officials.
We have learned that despite the shortcomings of the Act, the attempts to correct the
injustice done in the past by protecting forest rights which are essential for the livelihood and
sustenance of the forest dwellers are praiseworthy.
We have learned about the intersection of gender relations and tribal women
supplemented by the implications of the gender spaces in matters related to awareness and
participation of women in forest lands under the Act.
We have examined the possible hindrances in gaining access to entitlement rights over
forest lands and how the Act has brought a wave of change in the institutional and social
rubric of the tribal women by politically empowering them.
We have learned that to bring about fundamental changes to improve the conditions of
the marginalised forest dwellers, there is a need for concerted efforts by the political
machinery and greater institutional reforms.
1.7 Glossary of Terms under the Act
Forest-dwelling Scheduled Tribes: They are the members or community of the Scheduled
Tribes who primarily reside in and who depend on the forests and forest lands for bonafide
livelihood needs and include the Scheduled Tribe pastoralist communities.
Forest land: land of any description falling within any forest area and includes unclassified
forests, non-demarcated forests, existing or deemed forests, protected forests, reserved
forests, Sanctuaries and National parks.
Gram Sabha: A village assembly, which shall consist of all adult members of a village and
in case of States having no Panchayats, Padas, Tolas and other traditional village institutions
and elected village committees, with full and unrestricted participation of women.
Habitat: It includes the area comprising the customary habitat and such other habitats in
reserved forests and protected forests of Primitive Tribal Groups and pre-agricultural
communities and other forest-dwelling Scheduled Tribes.
Scheduled Areas: The Scheduled Areas referred to in clause (1) of Article 244 of the
Constitution.
Wild animal: Any species of animal specified in Schedules I to IV of the Wildlife
(Protection) Act, 1972.
1.8 Check Your Progress
1) Who is a forest dweller under this law, and who gets rights?
2) What kind of rights do forest dwellers get under this Act?
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3) What are the major obstacles faced by women in gaining access to property rights
under the FRA?
The Scheduled Tribes (Recognition of Forest Rights) Bill 2005, as presented in the
parliament (accessed on 7/10/2020 at
http://www.downtoearth.org.in/images/20060615/jpc.pdf)
Krishnadas Rajagopal, ‘What is Forest Rights Act?, The Hindu, March,02, 2019 (accessed on
10/10/2020)
P. Bose, ‘Forest tenure reform: exclusion of tribal women’s rights in semi-arid Rajasthan,
India’, The International Forestry Review, Vol. 13, No. 2,2011.
S. Singh, ‘The Forest Rights Act 2006: implications for forest dwellers and protected areas,’
International Forestry Review, Vol.10(2), 2008.
Sujeet Kumar, ‘Forest Rights Act Enables State Control of Land and Denies Most Adivasis
and Forest Dwellers Land Rights,’ Economic and Political Weekly,Vol 55, Issue No. 6, 08
Feb, 2020.
Sagari R Ramdas, ‘Women, Forest spaces and the Law: Transgressing the Boundaries,’
Economic and Political Weekly, Vol. 44, Issue No. 44, 31 Oct, 2009
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(b) Rural Employment Guarantee

Raushan Thakur
Structure
2.1 Introduction
2.2 Right to Employment, work and MGNREGA
2.3 MGNREGA: An Overview
2.4 Significance, Goals and Salient features of MGNREGA
2.5 MGNREGA and its Implementation
2.6 Challenges, Assessment and Road Ahead
2.7 Summary
2.1 Introduction
Right to work enshrined in the Universal Declaration of Human Rights of the United Nations
is a basic human right which is laid on the foundation of economic, social and cultural
development whereas Right to Work in Indian Constitution comes under Directive Principles
of State Policy. Article 39 of the Constitution ensures that the citizens should have the equal
rights for the adequate means to livelihood and there shall be equal pay for equal work for
men and women. India is a home to approximately 1.33 billion people out of which over two-
third population lives in rural areas. Undoubtedly, the country has witnessed high rates of
economic growth since 1990s; but the fruits of economic growth have not been tested by all.
Rural poverty continues to be matter of concern for the policy makers till date1. According to
the Brookings Report, 73 million people, that is, 6.5% of the total population of India lives in
extreme poverty conditions. Employment status, land ownership, caste and gender –develop
the risks of rural poverty. Among others, the Scheduled Castes and Scheduled Tribes are
more susceptible to rural poverty. Both the category together constitutes 33% of the
population and accounts for 80% of the rural poor2. Apart from the SCs and the STs, the
women constitute the next highly vulnerable group suffering from rural poverty. They
constitute an unequal number of minimal agricultural jobs and are generally low wage

Raushan Thakur is a Research Scholar in the Department of Political Science, University of Delhi.
1
IFAD (2015) ‘Rural Poverty Portal’, http://www.ruralpovertyportal.org/country/ home/tags/india (accessed
1 December 2015).
2
Raghu, P.; Swallow, B.; Manaloor, V.; Kalaiselvan, N.N.; Mahana, R.; Arunraj, R.; Gurumoorthy, V.;
Tigga, S.; Misra, C.; Siddick, A.; Nambi, V.; King, E.D.; Gopi, G. and Ndlovu, P. (2013). Alleviating
Poverty and Malnutrition in Agrobiodiversity Hotspots: Baseline Report. Chennai: MSSRF. April 2, 2013.
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earners1. Although, there have been significant growth in agriculture, yet the landless rural
citizens and borderline farmers and continue face severe economic crisis.
From time-to-time, the Government of India (GOI) has been taking several initiatives for
dealing with the problem of poverty. These initiatives have either been in the form of the
Public Distribution System (PDS), or wage employment programs or in the form of rural
housing schemes. Some of these initiatives had been successful; while others had failed to
achieve the desired results. Of the numerous employment generation initiatives, some
prominent examples of national level rural employment generation initiatives are: “National
Rural Employment Programme (NREP) 1980-89; Rural Landless Employment Guarantee
Programme (RLEGP) 1983-89; Jawahar Rozgar Yojana (JRY) 1989-99; Employment
Assurance Scheme (EAS) 1993-99; Jawahar Gram Samridhi Yojana (JGSY) 1999-2002;
Sampoorna Grameen Rozgar Yojana (SGRY) since September 2001; National Food for
Work Programme (NFFWP) since November 14, 2004 (Now the SGRY and NFFWP are
combined with NREGS 2005)”. However, these schemes could not produce the desired
results of ensuring social security to the rural poor2.
Of all the initiatives undertaken by the Government of India to deal with poverty, the
“Mahatma Gandhi National Rural Employment Guarantee Act (or the MGNREGA)” is the
most significant one and is one of a kind. Enacted in 2005, the MGNREGA is the largest
work guarantee programme in the world, which offers a right based guarantee of employment
and aims at reducing income and food insecurity in the rural areas. The Act guarantees 100
days of wage employment in a financial year to every rural household, whose adult members
are willing to do unskilled manual work. The Act is thus, a guarantee to the Right to Work.
Launched by the Central Government on February 2, 2006, NREGA is internationally a law
of a kind that guarantees wage employment on an unmatched scale. It aims primarily at
strengthening natural resource management, by addressing the reasons of persistent poverty,
for example soil erosion, drought and deforestation, and in turn helps promote sustainable
development. The Act, unlike other employment guarantee schemes, provides the adult
members of rural households, a legal right to employment3.
As an initiative towards the loss brought by the outbreak of Covid-19, Finance Minister,
Nirmala Sitharaman on 26th March, 2020, announced a hike of Rs. 2000 each on an average
for the workers under the MGNREGA; and a one-time additional amount of Rs. 1,000 to be
provided in two installments through “Direct Benefit Transfer” over three months especially
1
IFAD (2015) ‘Rural Poverty Portal’, http://www.ruralpovertyportal.org/country/ home/tags/india (accessed
1 December 2015).
2
Mallikarjuna, K. (2013) November Performance of Mahatma Gandhi National Rural Employment
Guarantee Act (Mgnrega) IRMJCR Online: ISSN 2320-3145, Print: ISSN; 76(3):2319-5789
www.scholarsworld.net
3
De Neve, G. and Carswell, G. (2011) ‘MGNREGA and the Return of Identity Politics in Western Tamil
Nadu’, Forum for Development Studies 38: 205–10.
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to three crore senior citizens, persons with disabilities, and widows. Apart from this, funds
worth Rs. 31,000 crores were also provided for augmenting screening and medical testing,
and for providing better healthcare facilities to the ones financially affected due to the Covid-
19 outbreak1.
Thus, this chapter sets out to introduce MGNREGA, the largest work guarantee
programme in the world. It also aims at discussing the various goals of the Act, its salient
features, its implementation, the various challenges on its way along with certain
recommendations for its improvement. The article also attempts at discussing the current
status of MGNREGA.
2.2 Right to Employment, Work and MGNREGA
The 1991 Narasimha Rao government introduced a tentative scheme named the ‘Employment
Assurance Scheme’ for generating employment in the rural areas. The scheme aimed at:
developing infrastructure, enhancing food security, and generating employment for
agricultural labors during the lean season. However, during the early 2000s, the Employment
Assurance Scheme was merged with the Food for Work Programme to form the MGNREGA
(or, NREGA No 42, later renamed as the “Mahatma Gandhi National Rural Employment
Guarantee Act” or MGNREGA).
The Mahatma Gandhi Employment Guarantee Act 2005 or MGNREGA 2005 is a social
security measure and an India labour law, passed in September 2005, during the UPA rule,
under the prime ministership of Dr. Manmohan Singh.
MGNREGA 2005 aims at guaranteeing the ‘Right to Work’ to the rural people. It aims at
adhering to Article 41 of the Directive Principles of State Policy (DPSP) enunciated in Part
IV of the Constitution of India, which provides all citizens the Right to Work. The Act is
consistent with the Fundamental Right under Article 16 of the Indian Constitution that
guarantees “equality of opportunity in matters of public employment and prevents the State
from discriminating against anyone in matters of employment on the grounds only of caste,
race, religion, sex, place of residence, place of birth, descent, or any of them”. The Act aims
at imparting dignity to the rural people by assuring security of livelihood to them and is thus,
consistent with Article 21 of the Constitution of India, which guarantees the ‘Right to Life’
with dignity to every citizen of India. In addition to these, the Act also adheres to Article 46
of the Constitution of India, that directs the State to promote the interests of the SCs & STs,
protect them from discrimination and exploitation, and work for their economic uplift.
Article 40 of the Constitution of India makes it mandatory for the State to organise
village panchayats and endow them with such powers and authority as may be necessary to
1
Jha, R.; Bhattacharya, S.; Gaiha, R. and Shankar, S. (2009) ‘“Capture” of antipoverty programs: An
analysis of the National Rural Employment Guarantee Program in India’, Journal of Asian Economics
20(4): 456–64.
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enable them to function as units of self-government. The Act adheres to this Article by
endowing the Gram Panchayats with the responsibility of implementing the Act.
MGNREGA has given numerous rights to workers1. The adult members of every rural
household – willing to do casual manual work at the statutory minimum wage – may apply to
the Gram Panchayat for registration. The registration is valid for a period of not less than five
years and can be renewed. Employment shall be provided to every registered person within a
period of 15 days of receipt of an application, failing which an unemployment allowance
must be provided. The applications should be for at least 14 days of regular work. The “Gram
Panchayat” is to accept valid applications and issue a dated receipt to the applicant. The
applicant who is provided with work should be notified in writing. The employment is to be
provided within a radius of 5 km, and in case work is provided beyond 5 km, it should be
provided within the block, and the labourer should be paid an extra 10% of the daily
minimum wage.
2.3 Overview of MGNREGA
The “Government of India” describes MGNREGA as a rights-based, bottom-up, demand-
driven, and a self-selecting scheme2. The MGNREGA constitutes the world’s largest rural
employment scheme. Apart from providing employment opportunities to the rural
households, MGNREGA also seeks to strengthen civic participation; facilitate and encourage
women empowerment, through their financial inclusion and independence; and to improve
the rural scenario as well3.
Goals of MGNREGA
The MGNREGA has been the result of the failure of several government sponsored
employment generation programmes and the resultant existence of inequality and poverty
afflicting the rural India. In this regard, the understanding of the goals of MGNREGA
becomes quite important. The aims, objectives or goals of MGNREGA are:
1. “To empower the rural poor through the processes of a rights-based
law.
2. To create new ways of doing business and act as a model of
governance-reform based on the principles of grassroots democracy
and transparency.
3. Act as a strong social safety net for the vulnerable groups by providing
them a supplementary employment source, when other employment
alternatives are either scarce or inadequate.
1
Mahatma Gandhi National Rural Employment Guarantee Act, ministry of rural development government
of India, 2005, 5. http://socialissuesindia.wordpress.com/
2
Mukundan, N. (2009) Rural Development and Poverty Eradication in India. New Delhi: New Century
Publications.
3
Planning Commission (2011) Midterm Appraisal: Eleventh Five Year Plan (2007– 2012). New Delhi:
Oxford University Press.
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4. To act as a growth engine of an agricultural economy for sustainable

development. By making provision of employment on works that
address causes of chronic poverty such as drought, deforestation and
soil erosion, the Act aims at creating lasting assets in rural areas and
strengthening the natural resource base of rural livelihood. If
implemented effectively, NREGA has the calibre of transforming the
scenario of poverty.” NREGA thus, creates conditions of inclusive
growth, which ranges from the provision of basic wage security, to
reviving the rural economy for a transformative empowerment process
of democracy1.”
2.4 Salient Feature of MGNREGA
The salient features of MGNREGA are as follows:
1. “Any adult member of a rural household, willing to do unskilled
manual work, may apply for registration, either written or orally, to
the local Gram Panchayat.
2. After due verification is done by the Gram Panchayat, a ‘Job Card’
bearing the photograph of all adult members of the household willing
to work under NREGA, is issued to the applicants, free of cost.
3. The Job Card must be issued within 15 days of filing the application.
4. A Job Card holder has a choice of submitting a written application to
the Gram Panchayat, stating the time and duration of work he/she has
sought for. However, the minimum days of employment needs to be
fifteen.
5. The Gram Panchayat issues a dated receipt for the written application
for employment. It is against this receipt that the guarantee of
providing employment within 15 days operates.
6. Employment is to be provided within 15 days of application for work.
In case of failure in doing so, daily unemployment allowance, as per
the Act, is to be paid. The liability of paying the unemployment
allowance is vested on the States.
7. Normally, the work should be provided within 5 km radius of the
village. However, in case the work is provided beyond 5 km, extra
wages of 10% to meet additional transportation and living expenses
are paid.
8. There wages for both men and women are equal. Moreover, the wages
are paid in accordance to the Minimum Wages Act 1948 for
1
Mahatma Gandhi National Rural Employment Guarantee Act, ministry of rural development government of
India. 2005, 3. http://socialissuesindia.wordpress.com/
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agricultural labourers in the State, unless the Centre notifies a wage

rate. This wage rate should not be less than Rs. 60/ per day.
9. Wages are paid according to daily rate or piece rate and disbursement
of wages has to be done on a weekly basis and should not exceed a
fortnight in any case.
10. The Panchayat Raj Institutions (PRIs) play a key role in planning and
implementation of MGNREGA.
11. At least 1/3rd of the beneficiaries who have registered and requested
work under the scheme should be women.
12. And last but not the least, every district has to prepare a shelf of
projects and the works for which employment is to be provided are
needed to be selected from the list of permissible works1.”
Activities Covered under MGNREGA
The works covered by MGNREGA must belong to the list of ‘Permissible works’. List of the
works that are categorized as Permissible works are:
1. “Land development;
2. Provision of irrigation facility, horticulture, plantation, land
development of the land owned by the SCs and the STs, or to land of
the beneficiary of IAY/BPL families, or to the land of beneficiaries
of land reforms;
3. Irrigation canal, including micro and minor irrigation works;
4. Water conservation and water harvesting;
5. Drought proofing (including afforestation and tree plantation);
6. Rural connectivity to provide all weather access;
7. Renovation of traditional water bodies including desilting of tanks;
8. Flood control and protection works including drainage in
waterlogged areas;
9. Construction of Bharat Nirman Rajiv Gandhi Sewa Kendra and
Gram Panchayat Bhawan; and
10. Any other work which may be notified by the Central Government
in consultation with the State Government2.”
2.5 MGNREGA and its Implementation
The implementation of MGNREGA requires the following basic principles to be followed:
1. “Participation of Community: The Gram Sabha is the legally
mandated institution for community participation. However, apart from
1
Mahatma Gandhi National Rural Employment Guarantee Act, ministry of rural development government of
India, 2005, 5. http://socialissuesindia.wordpress.com/
2
Ibid.
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the Gram Sabha, other methods of community participation can be:

worker’s association, self-help groups, local Vigilance and Monitoring
Committees, user groups, local beneficiary committees and other grass-
roots structures. Active participation on the part of the community is
very essential for ensuring public accountability and transparency.
2. District Programme Coordinator and Programme Officer: It is the
District Programme Coordinator (DPC) at the District level, and the
Programme Officer (PO) at the Block level who are responsible for
ensuring the proper implementation of the Act.
3. Collaborative Partnership and Public Accountability: A
collaborative partnership between the Central Government, the State
Governments, the Panchayats and the local community is needed for the
implementation of the act. The village and the block levels are mainly
concerned with the implementation activities, while the Block and
District levels are mainly concerned with the coordination activities.
Concerned authorities at village, block, district and state level are
associated with the planning, supervision and monitoring of the act.
4. Resource Support: For the proper implementation of the Act, timely
and adequate resource support from both the Central and the State
Governments is a necessary aspect
5. Role of Panchayats: According to NREGA, Section 13(1), “the
Panchayats are the principal authorities for planning and implementation
of the Act, at each level.” In case where Part IX of the constitution does
not apply, the local council/authority will be invested with the
corresponding responsibilities as mandated by the State concerned.
6. Coordination among Agencies: Effective implementation of the Act
requires proper coordination of the Panchayats at different levels.
Similarly, the District/Block administration and Panchayats also need to
work together for the proper implementation of the Act. Each REGS
must clearly specify the institutional mechanisms for effective
coordination”.
If we ponder upon the current implementation status of MNREGA, it has been reported that
as more and more people have migrated to rural areas during the lockdown period and sought
work under the rural employment guarantee scheme, the demand for work under MGNREGA
has raised by 38.79% in the current fiscal year. As stated by Rural Development Minister
Narendra Singh Tomar, a total of 22.49 crore people sought work under the scheme in the
current financial year until September 12, 2020, as compared to 16.2 crore during the
corresponding period last year, which means there has been a jump of 38.79%. According to
the statement, the number of beneficiaries provided employment under MGNREGA so far in
2020-21 stood at 8.29 crore. However, in a separate reply, Mr. Tomar said that the number of
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households demanding work under the scheme went up by 38.73% in the April-July period at
12.47 crore compared to 8.99 crore in the same period in 2019-20.
However, the Government this year, in July, has enhanced the list of permissible works
under the scheme by adding to it 262 numbers of unskilled wage component of 230 person
days for construction of community sanitary complexes in association with the Swachh
Bharat Mission (Grameen).
Every rural household is assured up to 100 days of wage employment in a financial year
whose adult member volunteers to do unskilled manual work. The beneficiaries are entitled
for unemployment allowance from the concerned state, conditioned if they are not provided
employment within stipulated time of 15 days of receipt of their application seeking
employment or from the date on which employment has been sought in case of an advance
application, whichever is later.
2.6 Assessment of Challenges in MGNREGA and Road Ahead
As a key programme of the Government of India for reducing unemployment and poverty,
MGNREGA has been successful in drawing the attention of the politicians, policy makers as
well as the scholars. The studies on MGNREGA generally centre round larger-scale
evaluations using administrative data to MGNREGA and rural poverty in India. The
Development Policy Review 35 (3) attempted at understanding execution of the programme
in several states. These studies give us an insight into certain important findings of
MGNREGA in terms of challenges and successes with respect to various aspects like,
household income, employment, impacts, implementation costs etc. Collectively, several
main themes are apparent across the literature.
At first, a significant amount of variation is observed in the implementation and
awareness of MGNREGA across various states. Availability of work is the key to
implementation but it has been observed that the number of days for guaranteed work was
lower in most of the states on an average. The availability of employment only for 17 days on
average per rural household in 200 districts in which MGNREGA was enacted in 2006–20071
which was found to raise up to 54 days in 2006–2007 indicating a raise but it is much below
the limit set by the policy of 100 days per year per household2.
One can find significant contrast in the distribution of resources for MGNREGA across
states. 67.5% of MGNREGA funds were spent on wages but with notable variation in
different states like 98%, 88%, 60% funds were spent on wages in Tamil Nadu, Kerala,
Odisha respectively. But it is interesting to note that, the expenditures for administrative costs
1
Dreze, J. (2010) ‘Employment Guarantee and the Right to Work’, in N.G. Jayal and P. Mehta (eds), The
Oxford Companion to Politics in India. Oxford: New Delhi.
2
Stahlberg, S. (2012) ‘India’s Latest and Largest Workfare Program: Evaluation and Recommendations’.
Unpublished. Stanford: Center on Democracy, Development, and the Rule of Law. Available at
http://cddrl.stanford.edu/publications/indias_latest_and_largest_workfare_program_evaluation_and_
recommendation.
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is 2%, 5% and just under 40% in Tamil Nadu, Kerala and Odisha, respectively1. According to
the Act, 60% of the expenditures should be spent on salary, while the remaining 40% should
be spent on materials. Although the causes behind such notable variability of administrative
costs are not known, many point out towards ‘leakage’ as a prime cause for high
administrative costs2. The spending most part of the budget on wages may appear to be an
ideal step, but this may also mean that the states are not making capital investments in
improving the infrastructure projects and the quality of the jobs3.
Few studies revealed that MGNREGA had reduced migration in some states4, while
there are some other studies which reveal that MGNREGA had the least impact on
migration5. In a study it was revealed that 93% of MGNREGA participants involved the
study, would not go elsewhere for work, even if there were no employment opportunities
available under MGNREGA6.
Apart from that, there are evidences that show that there is meagre awareness of
MGNREGA among the rural citizens. This has reduced the probability of participation by the
poorest households. Limited or no access to television or cell phones or limited public
engagement has been seen as causes behind such lack of awareness. Availability of
information, has however been considered as influential in increasing the uptake by more
affluent rural citizens7. Moreover, there are certain evidences that reveal that there are certain
areas in MGNREGA that are reserved for the middle class8. This has also weakened the
positive impacts for the poorest9. One of the studies reveal that, although at the national level
MGNREGA has been used by the poorest, but in some state, it was used by members of
comparatively well-off community10.
1
Ibid.
2
Ibid.
3
Bhupal, D.S. (2012) ‘Indian Experience of Sustainable and Inclusive Economic Growth: An evaluation of
Mahatma Gandhi National Rural Employment Guarantee Scheme’, Review of Applied Socio-Economic
Research 3(1): 22–34.
4
Liu, Y. and Barrett, C. B. (2012) ‘Heterogeneous Pro-Poor Targeting in India’s National Rural Employment
Guarantee Scheme’, Economic and Political Weekly 48(10): 46–53.
5
Novotny, J., Kubelkova, J. and Joseph, V. (2013) ‘A Multi-dimensional Analysis of the Impacts of the
Mahatma Gandhi National Rural Employment Guarantee Scheme: A tale from Tamil Nadu’, Singapore
Journal of Tropical Geography 34 (3): 322–41
6
Ibid.
7
Shankar, S., Gaiha, R. and Jha, R. (2011) ‘Information, Access and Targeting: The National Rural
Employment Guarantee Scheme in India’, Oxford Development Studies 39(1): 69–95
8
Liu, Y. and Barrett, C. B. (2012) ‘Heterogeneous Pro-Poor Targeting in India’s National Rural
Employment Guarantee Scheme’, Economic and Political Weekly 48(10): 46–53.
9
Niehaus, P. and Sukhtankar, S. (2013) ‘The Marginal Rate of Corruption in Public Programs: Evidence
from India’, Journal of Public Economics 104: 52–64
10
Kapur, D. (2010) ‘Political Economy of the State’, in N.G. Jayal and P.B. Mehta (eds), The Oxford
Companion to Politics in India. Oxford: New Delhi. and Liu, Y. and Barrett, C. B. (2012) ‘Heterogeneous
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Furthermore, there are evidences of assimilation of the scheme by the targeted audience,
especially, ST and SC and women. Stahlberg (2012) reported that in 2009-10, “the average
number of days of participation in MGNREGA was 48, 21, 31 days for women, ST and SC
respectively while another finding reveals that approximately 70% of the women kept their
wages”1. However, there is a vast difference in participation of women in MGNREGA from
state-to-state. In a study by Khera and Nayak (2009), “the proportion of women among the
MGNREGA workers ranged from 5% to 71% in districts of UP and Rajasthan, respectively”.
Similarly, Reddy and Upendranadh (2010) reported that “a higher rate of participation of SC,
ST and women were observed which is suggestive of the fact that the programme is
successful in meeting its goal of targeting the oppressed groups”. However, this participation
was not constant amongst the states and existed significant variation like Kerala and Tamil
Nadu had the highest rates of women participants, with over 85% and 80% respectively2
while in Jammu & Kashmir and Odisha only 6% and 38% female participation were
witnessed respectively. According to Sudarshan et al., 2010, “the uptake the women is not a
surprising development, since women tend to receive lower wages and probably earn better
wages from MGNREGA than the market”. To illustrate this, Sudarshan et al. 2010 in their
study found that wages for agricultural work in the private sector is approximately 70–80 %;
while it is 125 in MGNREGA. Some researchers are of the view that, MGNREGA has
enlarged the options of consumption for women, and enhanced their economic independence,
by improving their wages3. However, critics point out that due to the unskilled work offered
by it, coupled with low wages; MGNREGA in reality merely contributes to the feminization
of poverty4. Sudarshan et al. (2010) while studying the participation of women in
MGNREGA, found that MGNREGA has failed to understand the real-life problems of
women especially of mothers and older women but in some states, it has been observed that
the condition of women is being improved by MGNREGA5. On a similar note, the
participation rate for SC and ST in MGNREGA was higher as compared to other categories.
For instance, approximately 60% of the participation in MGNREGA programme in Tamil
Nadu and Odisha and Kerala was by SCs6.
Pro-Poor Targeting in India’s National Rural Employment Guarantee Scheme’, Economic and Political
Weekly 48(10): 46–53.
1
Dreze, J. and Khera, R. (2009) ‘The Battle for Employment Guarantee’, Frontline 26 (1): 3–16.
2
Reddy, D.; Tankha, R.; Upendranadh, C. and Sharma, A. (2010) ‘National Rural Employment Guarantee as
Social Protection’, IDS Bulletin 41(4): 63–76
3
Pankaj, A. and Tankha, R. (2010) ‘Empowerment Effects of the MGNREGAS on Women Workers: A
study in four states’, Economic and Political Weekly 45: 45–55.
4
Ghosh, J. (1998) Assessing Poverty Alleviation Strategies for their Impact on Poor Women: A study with
special reference to India. Geneva: United Nations Research Institute for Social Development
5
Carswell, G. and De Neve, G. (2014) ‘MGNREGA in Tamil Nadu: A story of success and transformation?’,
Journal of Agrarian Change 14(4): 564–85.
6
Reddy, D.; Tankha, R.; Upendranadh, C. and Sharma, A. (2010) ‘National Rural Employment Guarantee as
Social Protection’, IDS Bulletin 41(4): 63–76
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Moreover some researchers have suggested the importance of MGNREGA in providing

labours with additional providing power of negotiating which in turn enhances the improved
labour leverage because in many parts of the country MGNREGA provides higher wages as
compared to private employment thus making it essential for the landowners to enhance their
offerings to the framers or labours in agricultural field so that they prefer their work over in1.
However, researchers have proven that this notion has harmful impact on local agriculture2.
Apart from this, due to the above-mentioned conditions successful implementation of
MGNREGA always lead to an increase in social tension3.
Last but the most cited problem in the implementation of MGNREGA is corruption
which is marked to be widely associated many underlying issues wage skimming by
administrators leading to underpayment, over reporting etc.4 The over reporting of waves to
fulfil and the accurate worker requirements for financial allocation is one of the commonest
issues in these regards5. Other than that, village post offices which are the outlet of wages are
also seen to pay a detrimental role by tampering with payments or by seeking unauthorised
transaction charges. Systemic corruption is not just limited to these, unaccounted financial
leakage brought by tampering of funds for materials one of the major challenges which leads
to failure of implementation especially in local sites6.
Looking at the challenges above, the findings makes it necessary to raise questions
regarding the basic assumptions of the programme. It has been seen that the lacunas in the
implementation process attributes to decline in employment outcomes making the programme
insufficient in successfully alleviating poverty. The major obstacle in this path is the gradual
closing of programme’s values leading to decrease in supply of work. Apart from this above
stated assessment also indicates a comprehensive view of state capacity, the underlying
commitments, and dynamics of stakeholder which has led to a negative outcome in provision
of employment under this programme. Therefore, to ensure proper implementation of this
1
Carswell, G. and De Neve, G. (2014) ‘MGNREGA in Tamil Nadu: A story of success and transformation?’,
Journal of Agrarian Change 14(4): 564–85. and Dreze, J. (2010) ‘Employment Guarantee and the Right to
Work’, in N.G. Jayal and P. Mehta (eds), The Oxford Companion to Politics in India. Oxford: New Delhi.
2
Novotny, J., Kubelkova, J. and Joseph, V. (2013) ‘A Multi-dimensional Analysis of the Impacts of the
Mahatma Gandhi National Rural Employment Guarantee Scheme: A tale from Tamil Nadu’, Singapore
Journal of Tropical Geography 34 (3): 322–41
3
Dev, M. (2011) MGNREGA and Child Well-being. Working Paper 2011-004. Mumbai: Indira Gandhi
Institute of Development Research.
4
Companion to Politics in India. Oxford: New Delhi. and Niehaus, P. and Sukhtankar, S. (2013) ‘The
Marginal Rate of Corruption in Public Programs: Evidence from India’, Journal of Public Economics 104:
52–64
5
Niehaus, P. and Sukhtankar, S. (2013) ‘The Marginal Rate of Corruption in Public Programs: Evidence
from India’, Journal of Public Economics 104: 52–64
6
Companion to Politics in India. Oxford: New Delhi.
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programme, those involved in implementation process need to understand the multifaceted

issues that come along the implementation of MGNREGA. It is a high time now that the
demand-side nature of MGNREGA is strengthened which includes making the supply open
ended as the many times MGNREGA implementation has been influenced by limited
stakeholders who actively block and deviate the supply of work. Apart from this, as it is
known fact that public tracking of MGNREGA projects is only done up to Gram Panchayat
level which makes it impossible to assess whether the fair share of work is being actually
reaching the rural households. Therefore, there is a need to improve the transparency of the
entire process which could be done by making Sarpanchs accountable for tracking the flow of
MGNREGA in the village level. This will also help in calculation of demand at village level
in order to ensure the nature and quantity of work that is being provided under the
programme. Even though the decision Government of India to hand out funds directly to
Gram Panchayats through the electronic fund management system (EFMS) instead of district
or block level due to corruption at the district level is quite justifiable but there must be strict
surveillance at the Gram Panchayat level as well. Many socialists in past have thus
emphasised the need of ensuring that the projects are demand-based and must be strictly
channelized and monitored for its down flow of work and wages to the workers by the
Panchayati Raj institutions. Another recommendation that would help in providing federal
support apart from the guaranteed financial support for implementation of the MGNREGA
projects is allowing for flexibility within limits. This will help in improvement of states’
commitment towards the programme. The improvement in the degree of flexibility in
implementation of MGNREGA is thus needed. Therefore, with little modification in the
system, MGNREGA can perform even better for providing employment to the needy.
2.7 Conclusion
From the time of Independence, The Indian government is always keen in taking various
steps to eradication of poverty from the country. This could be seen in the form of various
poverty alleviation programmes such as initiation of public distribution system, wage
employment programmes, rural housing schemes etc but in due course some programmes
were partially successful while some failed completely in addressing poverty related concerns
in the country due to various flaws in their implementation process. The enactments of
employment guarantee act and right to work act are indeed significant achievements.
However, these acts and programmes have time to time given a wide spectrum of basic rights
to people in the country so that they can shape their society and polity by their own but
unfortunately the lack of adequate awareness about these programmes in the general public
especially the lower sections of the society who are in actual need of these programme has
led to low participation of this class in social, political or economic development of the nation
through these acts which calls for a the need of liberal provisions in such schemes.
MGNREGA is one of those programmes. It has come out a social safety net, a wonderful
primer to right to work which preventing migration workers and related perils of workers
thus, enhancing the economies of the local market. As in September 2000, India has signed
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the Millennium Declaration that is a meant for “the eradication of extreme poverty and
hunger by halving the number of poor people living on less than a dollar a day and those who
suffer from hunger”, MGNREGA is the best alternative to achieve this. Taking the goals of
MGNREGA as a legitimate policy commitment, Government of India has headed forward in
a right direction with introduction of this scheme. Furthermore, improvement of the poverty
situation in every state is an important commitment brought out by Common Minimum
Program of the United Progressive Alliance government which was recognized by the
Planning Commission as a national common minimum program to mobilize resources for
their implementation. Apart from this, the formulation of citizens’ charter by civil society
activists had also seen as the impetus for the MGNREGA. Thus, it could be stated that the
motivation for MGNREGA came from two sources, the former one includes social
movements like “Right to Food” which was initiated in order to hunger guarantees
employment to the poor so that they don’t remain hungry and the later one was the worldwide
wave of poverty elevation that was at peak all across the globe. Even though the concept and
goals of MGNREGA and its benefits is inclined towards providing economic security in rural
areas along with generation of rural assets but some challenges are still lying in its path that
has deviated the vast potential of MGNREGA. Even though the progress may be slow but
providing legal solutions to deal with the lacunas in the system by making appropriate
changes to the norms, behaviours and approaches would open up more space for social
inclusion and would help MGNREGA be a successful programme by provision of additional
opportunities especially in the local sites.
ESID Working Paper 15: The political economy of implementing the National Rural
Employment Guarantee Scheme in India, by Abhiroop Mukhopadhyay.
NREGA (Operational Guidelines 2005)” Ministry of Rural Development, Department of
Rural Development Government of India New Delhi. 2005-3/4.
Know Your Rights Series RIGHT TO WORK National Human Rights Commission Faridkot
House, Copernicus Marg New Delhi-110001 www.nhrc.nic.in
Mahatma Gandhi National Rural Employment Guarantee Act, ministry of rural development
government of India. 2005, 5.http://socialissuesindia.wordpress.com/
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SOL Notes Your Laws Your Rights

your law your rights (University of Delhi)

Studocu is not sponsored or endorsed by any college or university

B.A.(Hons.) Political Science/B.A.(Prog.) Semester-III/V

Skill Enhancement Course (SEC)

SCHOOL OF OPEN LEARNING

Department of Political Science

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Skill Enhancement Course (SEC)

SCHOOL OF OPEN LEARNING

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Rule of Law and the Criminal Justice System in India

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against self-incrimination, protecting an accused person from being compelled to be a witness

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1.6.1.2.2 Right to Legal Aid

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Laws Related to Criminal Justice Administration

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Once you go through the Unit you will be able to know:

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2.6.1 Arrest – Who can Arrest?

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2.10 References and Suggested Readings

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Unit 3: Equality and Non-Discrimination

(a) Gender: The Protection of Women against Domestic Violence,

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Socialization process: Marriage as an institution in India is considered very sacrosanct. This

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such as ( Committee on elimination of Discrimination Against women) CEDAW, which

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A study on the internal complaints committee in 15 government offices in Kerala was