CAN THERE BE A COMPLAINT AGAINST FEMALES UNDER Domestic Violence Act ?

The Protection of Women from Domestic Violence
Act, 2005 (DV Act, 2005) came into force on 26/10/2006. The Statement of the
objects and reasons of the Act states that the Act was legislated on the basis
of the recommendation of The United Nations Committee on Convention on
Elimination of All Forms of Discrimination against Women (CEDAW). The Statute is
a benevolent piece of legislation aimed to provide for more effective protection
of rights of women guaranteed under the constitution who are victims of violence
of any kind occurring within the family and for matters connected therewith or
incidental thereto. The act inter-alia provides for various reliefs to the aggrieved person against the respondent like protection
order, residence orders, and custody orders. Both the terms aggrieved person
and respondent have been defined under the definition clause of the DV Act,
2005. As far as the definition of aggrieved person as defined under Section 2
(a) of DV Act, 2005 is concerned; there is no controversy. However, same is not
true when we visit the definition of respondent as defined under Section 2 (q)
of DV Act, 2005 which defines the same in following words:-

2(q) respondentmeans any
adult male person who is, or has been, in a domestic relationship with the
aggrieved person and against whom the aggrieved person has sought any relief
under this Act:

Provided that an aggrieved wife or female
living in a relationship in the nature of a marriage may also file a complaint
against a relative of the husband or the male partner.

The inherent ambiguity in the aforesaid
definition clause, is very much apparent from the reading of the main enacting
part in which it defines respondent as any adult male person in a domestic
relationship with the aggrieved person, at the same time the proviso of the same
definition clause says that an aggrieved wife or female living in a relationship
in the nature of a marriage may also file a complaint against a relative of the
husband (read without any gender bias) or the male partner. A controversy that
arose from the aforesaid ambiguity is whether respondent as defined under
Section 2(q) includes a female person or not under the scheme of DV Act,
2005.

The ambiguity with respect to the correct
interpretation and scope of the term respondent first came up in the case of
Ajay Kant and Ors. v. Smt. Alka Sharma reported in 2008 (2) Crimes 235
(M.P.) in which the Honble Madhya Pradesh High Court dealt with the
notice issued by the Magistrate to the petitioners on an application filed under
Section 12 of the Act. Learned single Judge after referring to the definition of
respondent in Section 2(q) and Statement of Objects and Reasons for enacting the
Act held that for obtaining any relief under the Act, an application can be
initiated against only adult male person and on such application or under such
proceeding, protection order can be passed; those orders will also be passed
only against the adult male person and as provided under Section 31 of the Act,
non compliance of a protection order or an interim protection order has been
made punishable and as such it can be said that the complaint for this offence
can only be filed against such adult male person/respondent who has not complied
with the protection order, and it is clear that the application under Section 12
of the Act which has been filed by the respondent against petitioners No. 3 and
4 who are not adult male persons is not maintainable and accordingly quashed the
proceedings against petitioners 3 and 4 therein.

The aforesaid judgment of the Ajay Kant
(supra) was followed by the Honble Madras High Court in the case of
Uma Narayanan Vs. Priya Krishna Prasad (2008) 3 MLJ 756 (Mad)
in which the Honble Madras High Court held that term respondent would mean only
an adult male person thus, an application under Section 12 of the DV Act, 2005
is not maintainable as against a Women.

However, the subsequent decisions of Honble
Rajasthan High Court differed from the view taken by the Honble MP High Court
and the Madras High Court.

The Honble High Court of Rajasthan in
Sarita vs Smt. Umrao, cited as 2008 (1) WLN 359 has
categorically held that From a plain reading of the proviso to Section 2(q)
of the Act of 2005 it is a apparent that a complaint by a wife or a female
living in relationship in the nature of marriage may also file a complaint
against a relative of the husband. The term relative is quite broad and it
includes all relations of the husband irrespective gender or sex. The High
Court of Rajasthan in another case Nand Kishore and Ors. Vs State of
Rajasthan and Anr. cited as RLW2008 ( 4 ) Raj 3432 has interpreted
the S. 2(q) of the Act and its proviso, if read together nowhere suggest that
the relative of the husband or the male partner has to be a male. In proviso to
section 2(q) of the Act the word is relative and not male relative. It further
held that a female relative is not excluded from the definition of respondent
contained in section 2(q) of the Act.

However, with due respect to the Honble MP High
Court and Madras High Court, the author is of the view that the judgment of the
Honble MP High Court is based on erroneous interpretation of Section 2(q) of
the DV Act, 2005 which purportedly rules out the Woman as Respondent under the
scheme of DV Act, 2005. The Director of Southern Institute for Social Science
Research, Dr. SS.Jagnayak in his report has described the ambiguity in Section 2
(q) as Loopholes to Escape the Respondents from the Cult of this Law and
opined in the following words:-

As per Section 2 Clause (q) the Respondent
means any adult male person who is or has been in a domestic relationship.
Hence, a plain reading of the Act would show that an application will not lie
under the provisions of this Act against a female. But, when Section 19 (1)
proviso is perused, it can be seen that the petition is maintainable, even
against a lady. Often this has taken as a contention, when ladies are arrayed as
Respondents and it is contented that petition against female Respondents are not
maintainable. This is a loophole which should be plugged.

The loophole with respect to the inherent
ambiguity in Section 2 (q) which Dr. SS Jagnayak suggests to be plugged can be
done with correct interpretation of main enactment of Section 2 (q) if read
together with proviso to Section 2 (q) DV Act in the context of the scheme
underlying the other provisions of the Act as well as in tune with the object
set out in the statement of objects and reasons. Now, lets see the
interpretation and scope of Section 2 (q) DV Act in accordance with the accepted
principles of interpretation of statutes.

If we look at the definition of Respondent as
defined under Section 2 (q) of DV Act, 2005, the definition can be segregated
into two parts:

(a) Main enacting part which deals with
aggrieved person in domestic relationship;

It carves out a situation in which the respondent
can only be a male person in domestic relationship with an aggrieved person against whom the aggrieved
person has sought any relief. Thus, the generality of main
enactment relates to aggrieved person.

(b) Proviso; (providing for an exception to
main enacting part) when the aggrieved person is wife or female living in a
relationship in the nature of a marriage.

It carves out an exception to the generality of
the main enactment, which in clear terms says that in case an aggrieved person
is a wife or female living in a relationship in the nature of a marriage, she
may also file a complaint against a relative of the husband or the male
partner.

If we look into the definition of the term Aggrieved Person as defined under Section 2 (a) DV Act, 2005 which mean any
woman who is, or has been, in a domestic relationship with the respondent and
who alleges to have been subjected to any act of domestic violence by the
respondent. The definition of aggrieved person in domestic relationship is
wide enough to cover sister, mother, daughter and sister-in-law including the
wife or any female living in the nature of marriage. Thus, every relation in the
nature of marriage necessarily will be domestic relationship but the same is
not true the vice versa.

Thus, the proviso to Section 2 (q) carves out a
special situation for an aggrieved person who is wife; the respondent may be a
female relative of the husband or male partner. In other cases where the
aggrieved person is any woman in domestic relationship say sister, mother etc.
except wife or female in a relationship in the nature of marriage, the
complainant shall be necessarily be a woman and the respondent also shall
necessarily be a male as provided in the main enacting part of Section 2
(q).

It is the accepted rule of interpretation with
respect to Proviso as an internal aid to interpretation as enunciated in the
Judgment of Honble Apex Court in J.K. Industries Ltd. and Ors. Vs.
Chief Inspector of Factories and Boilers and Ors. 1996 VII AD (SC) 125
that proviso qualifies the generality of the main enactment by providing an
exception and taking out from the main provision, a portion, which, but for the
proviso would be part of the main provision. As a general rule, in construing an
enactment containing a proviso, it is proper to construe the provisions together
without making either of them redundant or otiose. Even where the enacting part
is clear, it is desirable to make an effort to give meaning to the proviso with
a view to justifying its necessity. It is not a proper rule of interpretation of
a proviso that the enacting part or the main part of the section be construed
first without the proviso and if the same is found to be ambiguous only then
recourse may be had to examine the proviso. On the other hand, an accepted rule
of interpretation is that a section and the proviso thereto must be construed as
a whole; each portion throwing light, if need be, on the rest. A proviso is
normally used to remove special cases from the general enactment and provide for
them specially.

Therefore, applying the ratio stated in J.K.
Industries Ltd.,(supra) the proviso of Section 2(q) should be read together with
the main enacting part to give meaning to the proviso with a view to justifying
its necessity and both should be read together without making either of them
redundant or otiose.

The proviso to Section 2 (q) deals with complaint
against two categories of persons i.e., (1) a relative of the husband or (2) the
male partner. By construing the main enactment part of Section 2 (q) without
taking into consideration the proviso, the meaning of Respondent is restricted
only to the male persons, which makes the expression a relative of the husband
redundant as used in proviso to Section 2 (q) which is not contemplated under
the scheme of DV Act, if read with Section 19 and Section 21 of the DV Act. The
wordings of Section 19 of the DV Act makes it clear that the section provides
for disposal of applications made under Sub-section (1) of Section 12 by the
Magistrate. Under Sub-section (1) of Section 19, the Magistrate can pass any
order against a female person other than the orders under Clause (b). Whereas
proviso to Sub-section (1) of Section 19 puts a bar on the power of the
Magistrate for passing an order against any person who is a woman under Section
19(1)(b).

In other words, except residence order under
Section 19(1) (b), it is competent for the Magistrate to pass orders against the
relatives of the husband including a female person under Section 19(1)(c) i.e.,
restraining the respondent or any of his relatives from entering any portion of
the shared household in which the aggrieved person resides. For example, if the
aggrieved person along with her husband resides in a house owned by joint family
including the presents of the respondent, his brothers and sisters, if any,
whether or not the respondent has no legal or equitable interest or title in the
shared household, he can be restrained from dispossessing the aggrieved
person.

Further under Sub-section (8) of Section 19, if
an aggrieved person was provided with residential house towards her Stridhan,
which is in occupation of the relatives of the husband, the Magistrate can
direct the respondent including the female relative of the husband for return of
the possession of Stridhan property or valuable security, namely, gold jewellery
etc., which was in possession of the female member of the husband.

Further, Section 21 of the Act deals with grant
of temporary custody of any child or children to the aggrieved person or the
person making an application on her behalf and specifies necessary arrangements
for visit of such child or children by the respondent. For
instance, if the children are under the custody of mother-in-law of an aggrieved
person, if we give a restricted meaning to Section 2(q), no such order can be
passed for giving temporary custody of the child against a female relative of
the husband i.e., father, mother who are residing jointly.

It is it is a well settled principle of law that
for the interpretation of statute, attempt must be made to give effect to all
the provisions and the all the provisions should be read together. No provision
should be considered as surplus
age or redundant which is clear from the pronouncement of the
Honble Apex Court in Bhavnagar University v. Palitana Sugar Mill Pvt.
Ltd. and Ors. (AIR 2003 SC 511) . Thus, it is well settled that the
Legislature does not use any word unnecessarily. Every word, expression used in
a statute has a meaning, a reason and it cannot be devoid from its reason. If we
construe a statute without the reason underlying it, it would be like body
without a soul. The statute should be construed with reference to its reason as
observed, in paragraph 9 of the judgment of the Apex Court in Utkal Contractors
& Joinery Pvt. Ltd. (supra)

A statute is best understood if we know the
reason for it. The reason for a statute is the safest guide to its
interpretation. The words of a statute take their colour from the reason for
it.

The provisions of DV Act i.e. the definition
clauses, provisions of DV Act, if read together with the Statement of objects
and reasons under Bill No. 116 of 2005 for passing the DV Act makes it clear
that the complainant shall be necessarily be a woman and the respondent also
shall necessarily be a male except in cases where the complainant is a wife, the
respondent may be a female relative of the husband or male partner. The Bill
under Clause 4(i) of the Statement of Objects and Reasons seeks to cover those
women who are or have been in a relationship with the abuser where both parties
have lived together in a shred household and are related by consanguinity
marriage or through a relationship in the nature of marriage or adoption. In
addition, relationships with family members living together as a joint family
are also included. The Bill enables the wife or the female living in a
relationship in the nature of marriage to file a complaint under the proposed
enactment against any relative of the husband or the male partner; it does not
enable any female relative of the husband or the male partner to file a
complaint against the wife or the female partner. It would be pertinent to
mention here that the judgment of the MP High Court in Ajay Kant discussed supra
though discussed the Statement of Objects and Reasons of DV Act, 2005 has
refrained from discussing the aforesaid Clause 4(i) of the Statement of Objects
and Reasons which could have thrown some light on intention of the legislature
and would have guided the judicial wisdom to interpret the provision of Statute
in accordance with the legislative intent.

With due respect to the Honble MP High Court, it
is the view of this author that in the said judgment though resort to the
Statement of object and reasons was made to but its aid was not taken to
understand the true legislative intent. More so, it could not have been done, as
the said judgment omitted the vital Clause 4(i) of the Statement of Objects and
Reasons.

It is fairly well settled from a series of
various judicial pronouncement that reference to the Statement of Objects and
Reasons is permissible for understanding the background, the antecedent state
of affairs, the surrounding circumstances in relation to the statute and the
evil, which the statute was sought to remedy. Justice G.P. Singh in his
scholarly book Principles of Statutory Interpretation 8th Edn.,
2001 has observed:

Reference to the Statement of Objects and
Reasons is permissible for understanding the background, the antecedent state of
affairs, the surrounding circumstances in relation to the statute, and the evil
which the statute sought to remedy. Further, there are various judicial
pronouncements in which the Honble Apex Court used the external aid i.e. Statement of Objects and Reasons to find out the true legislative intent. See
Central Bank of India v. Workmen: [1960]1SCR200 , B.
Banerjee v. Smt. Anita Pan: [1975]2SCR774,
Chern Taong Shang v. S. D. Baijal, AIR1988SC603

The aforesaid view of the author finds support in
the recent speaking judgment of the Honble Andhra Pradesh High Court in
Afzalunnisa Begum & Ors Vs. The State of A.P. & ors Criminal
Petition No. 7160 and 8495 of 2008 pronounced on 02/06/2009 in which
the Honble High Court after making detailed analysis of Section 2 (q) read with
various provisions of DV Act, 2005 particularly Section 19, 21 together with
Statement of Objects and Reasons under Bill No. 116 of 2005 for passing the DV
Act has in clear term laid down that the respondent as defined under
Section 2(q) of the Act includes a female relative of the husband. The
judicial pronouncement of the Honble Andhra High Court makes sense as it has
applied the sound principles of interpretation of statutes as discussed by the
author in arriving at the aforesaid ratio. The ascertainment of legislative
intent is basic rule of statutory construction. A rule of construction should be
preferred which advances the purpose and object of legislation. Though a
construction according to plain language, which ordinarily be adopted, such a
construction should not be adopted where it leads to anomalies, injustice and or
absurdities. Having ascertained the intention, the Honble Andhra High Court
strived to so interpret the statute as to promote or advance the object and
purpose of enactment. The judgment makes sense out of ambiguous & unhappily
worded definition of Respondent where the purpose of statute is apparent to
the judicial eye from the Clause 4 (i) Statement of Objects and Reasons under
Bill No. 116 of 2005 for passing the Act.

However, there is no final word from the Honble
Apex Court with respect to the correct interpretation and scope of the
definition of Section 2 (k) defining the term Respondent, and it would be
interesting to view the stand of the Honble Apex Court when this vexed question
of law comes before it.

CAN THERE BE A COMPLAINT AGAINST FEMALES UNDER Domestic Violence Act ?

The Protection of Women from Domestic Violence
Act, 2005 (DV Act, 2005) came into force on 26/10/2006. The Statement of the
objects and reasons of the Act states that the Act was legislated on the basis
of the recommendation of The United Nations Committee on Convention on
Elimination of All Forms of Discrimination against Women (CEDAW). The Statute is
a benevolent piece of legislation aimed to provide for more effective protection
of rights of women guaranteed under the constitution who are victims of violence
of any kind occurring within the family and for matters connected therewith or
incidental thereto. The act inter-alia provides for various reliefs to the aggrieved person against the respondent like protection
order, residence orders, and custody orders. Both the terms aggrieved person
and respondent have been defined under the definition clause of the DV Act,
2005. As far as the definition of aggrieved person as defined under Section 2
(a) of DV Act, 2005 is concerned; there is no controversy. However, same is not
true when we visit the definition of respondent as defined under Section 2 (q)
of DV Act, 2005 which defines the same in following words:-

2(q) respondentmeans any
adult male person who is, or has been, in a domestic relationship with the
aggrieved person and against whom the aggrieved person has sought any relief
under this Act:

Provided that an aggrieved wife or female
living in a relationship in the nature of a marriage may also file a complaint
against a relative of the husband or the male partner.

The inherent ambiguity in the aforesaid
definition clause, is very much apparent from the reading of the main enacting
part in which it defines respondent as any adult male person in a domestic
relationship with the aggrieved person, at the same time the proviso of the same
definition clause says that an aggrieved wife or female living in a relationship
in the nature of a marriage may also file a complaint against a relative of the
husband (read without any gender bias) or the male partner. A controversy that
arose from the aforesaid ambiguity is whether respondent as defined under
Section 2(q) includes a female person or not under the scheme of DV Act,
2005.

The ambiguity with respect to the correct
interpretation and scope of the term respondent first came up in the case of
Ajay Kant and Ors. v. Smt. Alka Sharma reported in 2008 (2) Crimes 235
(M.P.) in which the Honble Madhya Pradesh High Court dealt with the
notice issued by the Magistrate to the petitioners on an application filed under
Section 12 of the Act. Learned single Judge after referring to the definition of
respondent in Section 2(q) and Statement of Objects and Reasons for enacting the
Act held that for obtaining any relief under the Act, an application can be
initiated against only adult male person and on such application or under such
proceeding, protection order can be passed; those orders will also be passed
only against the adult male person and as provided under Section 31 of the Act,
non compliance of a protection order or an interim protection order has been
made punishable and as such it can be said that the complaint for this offence
can only be filed against such adult male person/respondent who has not complied
with the protection order, and it is clear that the application under Section 12
of the Act which has been filed by the respondent against petitioners No. 3 and
4 who are not adult male persons is not maintainable and accordingly quashed the
proceedings against petitioners 3 and 4 therein.

The aforesaid judgment of the Ajay Kant
(supra) was followed by the Honble Madras High Court in the case of
Uma Narayanan Vs. Priya Krishna Prasad (2008) 3 MLJ 756 (Mad)
in which the Honble Madras High Court held that term respondent would mean only
an adult male person thus, an application under Section 12 of the DV Act, 2005
is not maintainable as against a Women.

However, the subsequent decisions of Honble
Rajasthan High Court differed from the view taken by the Honble MP High Court
and the Madras High Court.

The Honble High Court of Rajasthan in
Sarita vs Smt. Umrao, cited as 2008 (1) WLN 359 has
categorically held that From a plain reading of the proviso to Section 2(q)
of the Act of 2005 it is a apparent that a complaint by a wife or a female
living in relationship in the nature of marriage may also file a complaint
against a relative of the husband. The term relative is quite broad and it
includes all relations of the husband irrespective gender or sex. The High
Court of Rajasthan in another case Nand Kishore and Ors. Vs State of
Rajasthan and Anr. cited as RLW2008 ( 4 ) Raj 3432 has interpreted
the S. 2(q) of the Act and its proviso, if read together nowhere suggest that
the relative of the husband or the male partner has to be a male. In proviso to
section 2(q) of the Act the word is relative and not male relative. It further
held that a female relative is not excluded from the definition of respondent
contained in section 2(q) of the Act.

However, with due respect to the Honble MP High
Court and Madras High Court, the author is of the view that the judgment of the
Honble MP High Court is based on erroneous interpretation of Section 2(q) of
the DV Act, 2005 which purportedly rules out the Woman as Respondent under the
scheme of DV Act, 2005. The Director of Southern Institute for Social Science
Research, Dr. SS.Jagnayak in his report has described the ambiguity in Section 2
(q) as Loopholes to Escape the Respondents from the Cult of this Law and
opined in the following words:-

As per Section 2 Clause (q) the Respondent
means any adult male person who is or has been in a domestic relationship.
Hence, a plain reading of the Act would show that an application will not lie
under the provisions of this Act against a female. But, when Section 19 (1)
proviso is perused, it can be seen that the petition is maintainable, even
against a lady. Often this has taken as a contention, when ladies are arrayed as
Respondents and it is contented that petition against female Respondents are not
maintainable. This is a loophole which should be plugged.

The loophole with respect to the inherent
ambiguity in Section 2 (q) which Dr. SS Jagnayak suggests to be plugged can be
done with correct interpretation of main enactment of Section 2 (q) if read
together with proviso to Section 2 (q) DV Act in the context of the scheme
underlying the other provisions of the Act as well as in tune with the object
set out in the statement of objects and reasons. Now, lets see the
interpretation and scope of Section 2 (q) DV Act in accordance with the accepted
principles of interpretation of statutes.

If we look at the definition of Respondent as
defined under Section 2 (q) of DV Act, 2005, the definition can be segregated
into two parts:

(a) Main enacting part which deals with
aggrieved person in domestic relationship;

It carves out a situation in which the respondent
can only be a male person in domestic relationship with an aggrieved person against whom the aggrieved
person has sought any relief. Thus, the generality of main
enactment relates to aggrieved person.

(b) Proviso; (providing for an exception to
main enacting part) when the aggrieved person is wife or female living in a
relationship in the nature of a marriage.

It carves out an exception to the generality of
the main enactment, which in clear terms says that in case an aggrieved person
is a wife or female living in a relationship in the nature of a marriage, she
may also file a complaint against a relative of the husband or the male
partner.

If we look into the definition of the term Aggrieved Person as defined under Section 2 (a) DV Act, 2005 which mean any
woman who is, or has been, in a domestic relationship with the respondent and
who alleges to have been subjected to any act of domestic violence by the
respondent. The definition of aggrieved person in domestic relationship is
wide enough to cover sister, mother, daughter and sister-in-law including the
wife or any female living in the nature of marriage. Thus, every relation in the
nature of marriage necessarily will be domestic relationship but the same is
not true the vice versa.

Thus, the proviso to Section 2 (q) carves out a
special situation for an aggrieved person who is wife; the respondent may be a
female relative of the husband or male partner. In other cases where the
aggrieved person is any woman in domestic relationship say sister, mother etc.
except wife or female in a relationship in the nature of marriage, the
complainant shall be necessarily be a woman and the respondent also shall
necessarily be a male as provided in the main enacting part of Section 2
(q).

It is the accepted rule of interpretation with
respect to Proviso as an internal aid to interpretation as enunciated in the
Judgment of Honble Apex Court in J.K. Industries Ltd. and Ors. Vs.
Chief Inspector of Factories and Boilers and Ors. 1996 VII AD (SC) 125
that proviso qualifies the generality of the main enactment by providing an
exception and taking out from the main provision, a portion, which, but for the
proviso would be part of the main provision. As a general rule, in construing an
enactment containing a proviso, it is proper to construe the provisions together
without making either of them redundant or otiose. Even where the enacting part
is clear, it is desirable to make an effort to give meaning to the proviso with
a view to justifying its necessity. It is not a proper rule of interpretation of
a proviso that the enacting part or the main part of the section be construed
first without the proviso and if the same is found to be ambiguous only then
recourse may be had to examine the proviso. On the other hand, an accepted rule
of interpretation is that a section and the proviso thereto must be construed as
a whole; each portion throwing light, if need be, on the rest. A proviso is
normally used to remove special cases from the general enactment and provide for
them specially.

Therefore, applying the ratio stated in J.K.
Industries Ltd.,(supra) the proviso of Section 2(q) should be read together with
the main enacting part to give meaning to the proviso with a view to justifying
its necessity and both should be read together without making either of them
redundant or otiose.

The proviso to Section 2 (q) deals with complaint
against two categories of persons i.e., (1) a relative of the husband or (2) the
male partner. By construing the main enactment part of Section 2 (q) without
taking into consideration the proviso, the meaning of Respondent is restricted
only to the male persons, which makes the expression a relative of the husband
redundant as used in proviso to Section 2 (q) which is not contemplated under
the scheme of DV Act, if read with Section 19 and Section 21 of the DV Act. The
wordings of Section 19 of the DV Act makes it clear that the section provides
for disposal of applications made under Sub-section (1) of Section 12 by the
Magistrate. Under Sub-section (1) of Section 19, the Magistrate can pass any
order against a female person other than the orders under Clause (b). Whereas
proviso to Sub-section (1) of Section 19 puts a bar on the power of the
Magistrate for passing an order against any person who is a woman under Section
19(1)(b).

In other words, except residence order under
Section 19(1) (b), it is competent for the Magistrate to pass orders against the
relatives of the husband including a female person under Section 19(1)(c) i.e.,
restraining the respondent or any of his relatives from entering any portion of
the shared household in which the aggrieved person resides. For example, if the
aggrieved person along with her husband resides in a house owned by joint family
including the presents of the respondent, his brothers and sisters, if any,
whether or not the respondent has no legal or equitable interest or title in the
shared household, he can be restrained from dispossessing the aggrieved
person.

Further under Sub-section (8) of Section 19, if
an aggrieved person was provided with residential house towards her Stridhan,
which is in occupation of the relatives of the husband, the Magistrate can
direct the respondent including the female relative of the husband for return of
the possession of Stridhan property or valuable security, namely, gold jewellery
etc., which was in possession of the female member of the husband.

Further, Section 21 of the Act deals with grant
of temporary custody of any child or children to the aggrieved person or the
person making an application on her behalf and specifies necessary arrangements
for visit of such child or children by the respondent. For
instance, if the children are under the custody of mother-in-law of an aggrieved
person, if we give a restricted meaning to Section 2(q), no such order can be
passed for giving temporary custody of the child against a female relative of
the husband i.e., father, mother who are residing jointly.

It is it is a well settled principle of law that
for the interpretation of statute, attempt must be made to give effect to all
the provisions and the all the provisions should be read together. No provision
should be considered as surplus
age or redundant which is clear from the pronouncement of the
Honble Apex Court in Bhavnagar University v. Palitana Sugar Mill Pvt.
Ltd. and Ors. (AIR 2003 SC 511) . Thus, it is well settled that the
Legislature does not use any word unnecessarily. Every word, expression used in
a statute has a meaning, a reason and it cannot be devoid from its reason. If we
construe a statute without the reason underlying it, it would be like body
without a soul. The statute should be construed with reference to its reason as
observed, in paragraph 9 of the judgment of the Apex Court in Utkal Contractors
& Joinery Pvt. Ltd. (supra)

A statute is best understood if we know the
reason for it. The reason for a statute is the safest guide to its
interpretation. The words of a statute take their colour from the reason for
it.

The provisions of DV Act i.e. the definition
clauses, provisions of DV Act, if read together with the Statement of objects
and reasons under Bill No. 116 of 2005 for passing the DV Act makes it clear
that the complainant shall be necessarily be a woman and the respondent also
shall necessarily be a male except in cases where the complainant is a wife, the
respondent may be a female relative of the husband or male partner. The Bill
under Clause 4(i) of the Statement of Objects and Reasons seeks to cover those
women who are or have been in a relationship with the abuser where both parties
have lived together in a shred household and are related by consanguinity
marriage or through a relationship in the nature of marriage or adoption. In
addition, relationships with family members living together as a joint family
are also included. The Bill enables the wife or the female living in a
relationship in the nature of marriage to file a complaint under the proposed
enactment against any relative of the husband or the male partner; it does not
enable any female relative of the husband or the male partner to file a
complaint against the wife or the female partner. It would be pertinent to
mention here that the judgment of the MP High Court in Ajay Kant discussed supra
though discussed the Statement of Objects and Reasons of DV Act, 2005 has
refrained from discussing the aforesaid Clause 4(i) of the Statement of Objects
and Reasons which could have thrown some light on intention of the legislature
and would have guided the judicial wisdom to interpret the provision of Statute
in accordance with the legislative intent.

With due respect to the Honble MP High Court, it
is the view of this author that in the said judgment though resort to the
Statement of object and reasons was made to but its aid was not taken to
understand the true legislative intent. More so, it could not have been done, as
the said judgment omitted the vital Clause 4(i) of the Statement of Objects and
Reasons.

It is fairly well settled from a series of
various judicial pronouncement that reference to the Statement of Objects and
Reasons is permissible for understanding the background, the antecedent state
of affairs, the surrounding circumstances in relation to the statute and the
evil, which the statute was sought to remedy. Justice G.P. Singh in his
scholarly book Principles of Statutory Interpretation 8th Edn.,
2001 has observed:

Reference to the Statement of Objects and
Reasons is permissible for understanding the background, the antecedent state of
affairs, the surrounding circumstances in relation to the statute, and the evil
which the statute sought to remedy. Further, there are various judicial
pronouncements in which the Honble Apex Court used the external aid i.e. Statement of Objects and Reasons to find out the true legislative intent. See
Central Bank of India v. Workmen: [1960]1SCR200 , B.
Banerjee v. Smt. Anita Pan: [1975]2SCR774,
Chern Taong Shang v. S. D. Baijal, AIR1988SC603

The aforesaid view of the author finds support in
the recent speaking judgment of the Honble Andhra Pradesh High Court in
Afzalunnisa Begum & Ors Vs. The State of A.P. & ors Criminal
Petition No. 7160 and 8495 of 2008 pronounced on 02/06/2009 in which
the Honble High Court after making detailed analysis of Section 2 (q) read with
various provisions of DV Act, 2005 particularly Section 19, 21 together with
Statement of Objects and Reasons under Bill No. 116 of 2005 for passing the DV
Act has in clear term laid down that the respondent as defined under
Section 2(q) of the Act includes a female relative of the husband. The
judicial pronouncement of the Honble Andhra High Court makes sense as it has
applied the sound principles of interpretation of statutes as discussed by the
author in arriving at the aforesaid ratio. The ascertainment of legislative
intent is basic rule of statutory construction. A rule of construction should be
preferred which advances the purpose and object of legislation. Though a
construction according to plain language, which ordinarily be adopted, such a
construction should not be adopted where it leads to anomalies, injustice and or
absurdities. Having ascertained the intention, the Honble Andhra High Court
strived to so interpret the statute as to promote or advance the object and
purpose of enactment. The judgment makes sense out of ambiguous & unhappily
worded definition of Respondent where the purpose of statute is apparent to
the judicial eye from the Clause 4 (i) Statement of Objects and Reasons under
Bill No. 116 of 2005 for passing the Act.

However, there is no final word from the Honble
Apex Court with respect to the correct interpretation and scope of the
definition of Section 2 (k) defining the term Respondent, and it would be
interesting to view the stand of the Honble Apex Court when this vexed question
of law comes before it.

Police-lawyers clash: State opposes High Court judgment

J. Venkatesan

Police-lawyers clash: State opposes High Court judgment

J. Venkatesan

Congress cannot clear Indira’s name

Former prime minister’s cardinal sin was the elimination of morality from politics

If all the sponsored publicity arranged by the Congress-ruled central and state governments could efface the stigma attached to Indira Gandhi, it would have happened long ago. It makes no sense, 25 years after her death, for the exercise to be repeated all over again, with tens of millions of rupees going down the drain. The effort failed because there was no introspection, no regret.

Gandhi’s cardinal sin was not the imposition of a state of emergency but the elimination of morality from politics. She rubbed out the thin line that differentiates right from wrong, moral from immoral. She did this so thoroughly that the line remains blurred, even today.

In the first 19 years after independence, Jawaharlal Nehru and his successor, Lal Bahadur Shastri, saved the nation from falling prey to power politics. They used their office to serve the nation. Never did pettiness or vindictiveness cross their minds. But Gandhi was different. She had no qualms about making power an end in itself. She should have resigned on moral grounds when she was disqualified by the Allahabad High Court for a poll offence. But how could she follow the rule of law when she was a law unto herself?

Instead of resigning, she imposed a state of emergency to overturn the entire system and save her skin. She had parliament pass legislation to overturn her disqualification and did not think it appropriate to consult even the Cabinet, which was summoned in the morning to endorse the proclamation which the president had “signed” the night before.

Gandhi was never happy with the press; her first order was to gag it. The media have still not regained their equilibrium, even after 34 years. They now seek to stay on the right side of whichever party is in power. That is why newspaper articles on the 25th anniversary of her death hardly mentioned her misdeeds.

Return of fear

Mahatma Gandhi taught the nation to shed fear. Indira Gandhi recreated fear in the minds of people. Whether it was the press, the judiciary or the bureaucracy, they compromised because of fear. The nation was at first in a state of shock over her actions. When she split the Congress party in 1969, giving a sense of unity to the country, people did not realise the full implications of her actions. By the time the nation woke up to the import of her desperate policies, the virus had spread into the body politic and freedom was lost.

She decimated what had been an impartial bureaucracy. It caved in under pressure. Desire for self-preservation became the sole motivation for government servants’ actions and behaviour. The fear generated by the mere threat made them pliable. They carried out her orders without questioning them. Ethical considerations or traditional values became beyond the mental grasp of bureaucrats. They became a tool of tyranny in her hands.

Gandhi used the word “commitment”, long before the state of emergency, to assess the loyalty of bureaucrats towards her. Some of them said that their commitment was to the Constitution of India. But they were either ignored at the time of promotion or put in an unimportant position.

The poison she injected continues to run in the veins of bureaucrats who administer the system at the whim of those who come to power. They change their loyalty and colour when a new regime takes over.

The judiciary also felt the pressure as she superseded three Supreme Court judges to appoint her own Chief Justice of India. He came in handy when the case of the imposition of a state of emergency was before him. The Supreme Court judgment was 11 to 1. The lone dissenter, the most senior judge, was passed over for promotion.

The biggest damage she did in her 18-year-rule was to the institutions which her father, Nehru, had put in place. She manipulated even the parliament when she lost the majority in the Lok Sabha in the wake of the party’s split. She weakened the Congress and its ideological stance to such an extent that the Bharatiya Janata Party came to power.

Gandhi certainly began her political life with a remarkable mix of talents: a capacity to listen, to comprehend at different levels, to communicate with the common man. But these qualities diminished as time went by.

Later, another problem arose as Indira Gandhi’s son, Sanjay Gandhi, became the extra-Constitutional authority. He opened the door to lumpen youth. One can see his legacy in Indian governance even today.

Indira Gandhi used all methods at her disposal to break those who opposed her. I wonder if she deserves even a footnote in history. If she does get a mention, it would be because of Operation Blue Star against the Sikhs’ Golden Temple.

She paid a heavy price for this, as her Sikh bodyguards killed her to avenge the attack on the Golden Temple. The government’s retaliation was criminal, as it stood by for three days while 3,000 Sikhs were butchered at Delhi in broad daylight. So the Sikhs also had something to commemorate this week the 25th anniversary of the massacre.

Kuldip Nayar is a former Indian High Commissioner to the United Kingdom and a former Rajya Sabha member.

4 top cops to blame for Feb 19 clash: HC

T S Sekaran expressbuzz.com

First Published : 30 Oct 2009 03:18:00 AM

Last Updated : 30 Oct 2009 07:04:44 AM IST

CHENNAI: The Madras High Court on Thursday blamed four top police officers for the violence on the court premises on February 19, 2009.

The court held then City Police Commissioner K Radhakrishnan, Additional Police Commissioner A K Viswanathan, Joint Police Commissioner (North) M Ramasubramani and Deputy Police Commissioner (Flower Bazaar) Prem Anand Sinha responsible for the clash between lawyers and police.

We are of the view that there are overwhelming materials prima facie to show that the actions of the four officials had caused obstruction to the functioning of courts and interference in the administration of justice, a division bench comprising Justice F M Ibrahim Kalifulla and Justice R Banumathi observed.

The bench directed the government to initiate disciplinary proceedings against the officers and recommended that they be suspended till completion of proceedings.

To enable fair and unbiased inquiry, it will be in order for the government to exercise its discretion to place the four under suspension pending inquiry, the bench said.

The (then) Police Commissioner has miserably failed in his duty and responsibility to protect the interest of the public and instead made himself responsible for the most imprudent act of creating a situation of lawlessness, which ultimately resulted in very ghastly incidents to take place and thereby created a blot on the institution namely the Judiciary, the Bench observed and added that we have no hesitation to hold that there was absolutely no faith in their conduct much less good faith in order to enable them to avail the protection under section 132(2) of the Criminal Procedure Code. The court also ordered initiation of proceedings against the four police officers under the Contempt of Court Act and issued contempt notice to them.

The bench also chided the advocates for their behaviour.

After the February 19 incident, the public opinion is much against the lawyers.

They need to dispel the impression that they are law unto themselves.

Is employment of children as domestic and hotel workers really banned in India?

By Karthik Navayan

Child labour is one of the major bane for our Dalit, Adivasi and other lower caste children from rural areas. While you are reading this piece, millions of our community children are being deprived of their childhood which for others is their birthright. Though the government has come out with a strong legislation but it has no impact on a society that treats people from different backgrounds as subhuman and therefore have no remorse what soever in treating our unfortunate children as slaves. We all are equal partners in this crime by keeping quiet and allowing this inhuman practice to become a normal thing. As a part of Dalit movement, we must raise our voice against child labour and work together to provide them a better future than what the society has reserved for them right now. Below is an english translation of my essay, Endlallo Hotallalo Pillalatho Pani Cheyenchadam nishedam from my Telugu book Dalitawaj-I.

The employment of child labour within households, hotels, Dhabas, restaurants etc., has been banned by the Govt. of India, through Ministry of Labour and Employment, by recognizing these places as hazardous occupations and included them in the Part A of the Child Labour (Prohibition & Regulation) Act 1986. This amendment has been made effective from 10th October 2006. This gesture hopefully rekindles the 1986 Act, though, after 20 long years.

Is this law and its amendment enough to secure our childrens future and prevent their becoming slaves?

The impact of the Act and its implementation can be vouched from the fact that even today after almost three years of amendment that banned child labourers in hotels one can easily locate around 50 children working in different hotels that are located within the premises of various city courts in Hyderabad like at Ranga Reddy District Court, City Civil Court premises in Nampally and even within the premises of the Andhra Pradesh High court itself! There are about 40 child workers toiling within the various mess premises of residential colleges run by Sri Chaithanya in the city.

To make the ban effective, the government must initiate several measures and start working on implementing the same. But if we look back, right from the day of our Independence to the very day of conceiving the 1986 Act, for 40 long years, we have not done anything either to formulate or to enact a Law to ban the child labour. What little we had was a hope that remained in paper, as per our Constitution, that guarantees a universal and free education.

Background

The Act of 1986 divided the nature of child-labour work places as hazardous and non- hazardous. It concluded that the hazardous ones exist very fewer in number, thereby permitting 90 % of the work places to engage and employ young children as laborers. This has resulted in the continuous employment/ enforcement of child labour in both the banned and hazardous and non-hazardous occupations and work places entirely to the extent of cent percent. Therefore, the Child Labour (Prohibition and Regulation) Act of 1986, sans the recent amendment, was of little use to the laboring children in India.

Indias failure in its expressed objective of prohibiting child labour led many NGOs to take initiatives towards building a movement against its prevalence, highlighting the plight of child labourer. The likes of NDWM (National Domestic Workers Movement) then, came up in alliance with the domestic workers, child domestic workers and migrant workers. Together with many other such initiatives they were able to create pressure on the Government and the Labour Ministry for a better legislation against the rampant practice of child labour in India.

The cumulative campaigning and advocacy efforts of the NGO community, together with the all-round efforts of domestic, child domestic and migrant workers finally paid dividends and the Union Ministry of Labour and Employment, GOI was forced to make amendments in the Part A of the 1986 Act, under the heading Occupations.

After item (13) and the entry relating thereto, the following items were added as banned in the 1986 Act -

(14) Employment of child as domestic workers or servants;

(15) Employment of children in Dhabas (road-side eateries), restaurants, hotels, motels, tea-shops, resorts, spas or other recreational centers.

Such a violation now would attract conviction with a jail term of not less than 6 months together with the imposition of penalty up to Rs. 25,000. However, the truth is that, till date, no offender has been ever subjected to such a conviction. In the cases of torture and violence against child labour, by the employers, the police had been merely registering such cases only under IPC 324 and 506 (inflicting injury with a criminal intent). Since both the IPC sections are bailable the culprits are going scot-free.

Among the children engaged in the domestic work, almost 90% of them are girls and are compelled to work for 14 to 16 hours, without a break. The nature of their work ranges from sweeping the floors, washing the cloths, cleaning the dishes, baby sitting and preparing food for the entire household. Apart from the inhuman workload the children are more often then not are subjected to severe physical violence from employer family members. More over, the children have to cope up with the wild gestures and sexual abuses and harassment.

The problems of Child Labourers in Hyderabad

According to the recent estimates, there are around 40,000 such households in the city of Hyderabad only that employ children as domestic workers. You take any multi storied apartment in the city and can easily find 15-20 child domestic servants who are otherwise completely invisible to the outside world. As the employers go out to their offices these child labourers are locked inside the apartments with no hope of dreaming about their own future.

Most of these children hail from drought affected rural areas and are from the families that are subjected there to severe oppression and exploitation. These are then exported to the urban areas by many gangs that indulge in human trafficking for the purpose of providing child-slaves to these city apartments. These cannibals target mostly the girl child, hailing from the poorest of the poor in the drought prone rural areas, promising their parents good money and excellent food and clothing for the children.

However, once bringing the child as domestic servant they turn them into slaves of rich families and are left to face inhuman work load, torture, rape, sometimes even murder. After a period of time these children often go missing or many are even find in jails on false theft charges.

Among the type of families that seek and employ the hapless girls as child labour are mostly hailing from middle class with secure Government jobs. And the kind of wages and salaries they dole out to the toiling girls is a monthly paltry sum of mere Rs. 200 or on occasion Rs. 300/- a month.

Some suggestions

The Act although bans the child labour and restraining hotels and restaurants from employing children. But the purpose of such legislation would all be futile if it is not implemented as envisaged and there is a strong need to devise some proactive means to sensitize the society about the law as well as the problems of child labourers. Some of these immediate proactive steps are -

- To inform the masses that child labour is an offence, all news papers, TV channels and Radio stations must undertake serious publicity for about an year.

- All the State and Central Government employees shall have to be ordered to refrain from employing children in their households and other places.

- The child labour employed within the premises of any government establishments or offices must be liberated with immediate effect and to be rehabilitated through providing them with education and other help.

- Conduct raids and liberate all the child labourers from all the city based hotels and establishments and accord them rehabilitation coupled with their education.

- All hotels and apartments must be under constant scrutiny and monitoring.

- A police officer in every police station shall undergo training classes to build awareness about the Child Labour (Abolition and Regulation) Act 1986.

Conclusion

Yes. The Act is great for all those persons who oppose child labour and believe that instead of working, a child needs education and recreation for his/her mental and physical development. Yet the battle is far from over. Apart from raising voices against its faulty implementation at ground level, many civil society organizations are demanding another amendment in the act with respect to governments definition of child labourer as those who are 14 years old and lower.

This is a big loophole in the Act and makes the Act futile. A Child, according to the Juvenile Justice (the care and protection of children) Act 2000, is defined as below the 18 years of age. It is the same with the International Child Rights Convention too. India as a country has accepted it and is one of the signatories. So now it is imperative to undertake struggle declaring any 18 year old child doing any work shall have to be treated as child labour. The Child Labour (Abolition and Regulation) Act needs another amendment and for which we have to fight. Child labour is child labour whether the age is 16 or 18 it is still an offence. The future of our children is the future of our country. Hence we have to fight for another amendment in the child labour Act.

Is employment of children as domestic and hotel workers really banned in India?

By Karthik Navayan

Child labour is one of the major bane for our Dalit, Adivasi and other lower caste children from rural areas. While you are reading this piece, millions of our community children are being deprived of their childhood which for others is their birthright. Though the government has come out with a strong legislation but it has no impact on a society that treats people from different backgrounds as subhuman and therefore have no remorse what soever in treating our unfortunate children as slaves. We all are equal partners in this crime by keeping quiet and allowing this inhuman practice to become a normal thing. As a part of Dalit movement, we must raise our voice against child labour and work together to provide them a better future than what the society has reserved for them right now. Below is an english translation of my essay, Endlallo Hotallalo Pillalatho Pani Cheyenchadam nishedam from my Telugu book Dalitawaj-I.

The employment of child labour within households, hotels, Dhabas, restaurants etc., has been banned by the Govt. of India, through Ministry of Labour and Employment, by recognizing these places as hazardous occupations and included them in the Part A of the Child Labour (Prohibition & Regulation) Act 1986. This amendment has been made effective from 10th October 2006. This gesture hopefully rekindles the 1986 Act, though, after 20 long years.

Is this law and its amendment enough to secure our childrens future and prevent their becoming slaves?

The impact of the Act and its implementation can be vouched from the fact that even today after almost three years of amendment that banned child labourers in hotels one can easily locate around 50 children working in different hotels that are located within the premises of various city courts in Hyderabad like at Ranga Reddy District Court, City Civil Court premises in Nampally and even within the premises of the Andhra Pradesh High court itself! There are about 40 child workers toiling within the various mess premises of residential colleges run by Sri Chaithanya in the city.

To make the ban effective, the government must initiate several measures and start working on implementing the same. But if we look back, right from the day of our Independence to the very day of conceiving the 1986 Act, for 40 long years, we have not done anything either to formulate or to enact a Law to ban the child labour. What little we had was a hope that remained in paper, as per our Constitution, that guarantees a universal and free education.

Background

The Act of 1986 divided the nature of child-labour work places as hazardous and non- hazardous. It concluded that the hazardous ones exist very fewer in number, thereby permitting 90 % of the work places to engage and employ young children as laborers. This has resulted in the continuous employment/ enforcement of child labour in both the banned and hazardous and non-hazardous occupations and work places entirely to the extent of cent percent. Therefore, the Child Labour (Prohibition and Regulation) Act of 1986, sans the recent amendment, was of little use to the laboring children in India.

Indias failure in its expressed objective of prohibiting child labour led many NGOs to take initiatives towards building a movement against its prevalence, highlighting the plight of child labourer. The likes of NDWM (National Domestic Workers Movement) then, came up in alliance with the domestic workers, child domestic workers and migrant workers. Together with many other such initiatives they were able to create pressure on the Government and the Labour Ministry for a better legislation against the rampant practice of child labour in India.

The cumulative campaigning and advocacy efforts of the NGO community, together with the all-round efforts of domestic, child domestic and migrant workers finally paid dividends and the Union Ministry of Labour and Employment, GOI was forced to make amendments in the Part A of the 1986 Act, under the heading Occupations.

After item (13) and the entry relating thereto, the following items were added as banned in the 1986 Act -

(14) Employment of child as domestic workers or servants;

(15) Employment of children in Dhabas (road-side eateries), restaurants, hotels, motels, tea-shops, resorts, spas or other recreational centers.

Such a violation now would attract conviction with a jail term of not less than 6 months together with the imposition of penalty up to Rs. 25,000. However, the truth is that, till date, no offender has been ever subjected to such a conviction. In the cases of torture and violence against child labour, by the employers, the police had been merely registering such cases only under IPC 324 and 506 (inflicting injury with a criminal intent). Since both the IPC sections are bailable the culprits are going scot-free.

Among the children engaged in the domestic work, almost 90% of them are girls and are compelled to work for 14 to 16 hours, without a break. The nature of their work ranges from sweeping the floors, washing the cloths, cleaning the dishes, baby sitting and preparing food for the entire household. Apart from the inhuman workload the children are more often then not are subjected to severe physical violence from employer family members. More over, the children have to cope up with the wild gestures and sexual abuses and harassment.

The problems of Child Labourers in Hyderabad

According to the recent estimates, there are around 40,000 such households in the city of Hyderabad only that employ children as domestic workers. You take any multi storied apartment in the city and can easily find 15-20 child domestic servants who are otherwise completely invisible to the outside world. As the employers go out to their offices these child labourers are locked inside the apartments with no hope of dreaming about their own future.

Most of these children hail from drought affected rural areas and are from the families that are subjected there to severe oppression and exploitation. These are then exported to the urban areas by many gangs that indulge in human trafficking for the purpose of providing child-slaves to these city apartments. These cannibals target mostly the girl child, hailing from the poorest of the poor in the drought prone rural areas, promising their parents good money and excellent food and clothing for the children.

However, once bringing the child as domestic servant they turn them into slaves of rich families and are left to face inhuman work load, torture, rape, sometimes even murder. After a period of time these children often go missing or many are even find in jails on false theft charges.

Among the type of families that seek and employ the hapless girls as child labour are mostly hailing from middle class with secure Government jobs. And the kind of wages and salaries they dole out to the toiling girls is a monthly paltry sum of mere Rs. 200 or on occasion Rs. 300/- a month.

Some suggestions

The Act although bans the child labour and restraining hotels and restaurants from employing children. But the purpose of such legislation would all be futile if it is not implemented as envisaged and there is a strong need to devise some proactive means to sensitize the society about the law as well as the problems of child labourers. Some of these immediate proactive steps are -

- To inform the masses that child labour is an offence, all news papers, TV channels and Radio stations must undertake serious publicity for about an year.

- All the State and Central Government employees shall have to be ordered to refrain from employing children in their households and other places.

- The child labour employed within the premises of any government establishments or offices must be liberated with immediate effect and to be rehabilitated through providing them with education and other help.

- Conduct raids and liberate all the child labourers from all the city based hotels and establishments and accord them rehabilitation coupled with their education.

- All hotels and apartments must be under constant scrutiny and monitoring.

- A police officer in every police station shall undergo training classes to build awareness about the Child Labour (Abolition and Regulation) Act 1986.

Conclusion

Yes. The Act is great for all those persons who oppose child labour and believe that instead of working, a child needs education and recreation for his/her mental and physical development. Yet the battle is far from over. Apart from raising voices against its faulty implementation at ground level, many civil society organizations are demanding another amendment in the act with respect to governments definition of child labourer as those who are 14 years old and lower.

This is a big loophole in the Act and makes the Act futile. A Child, according to the Juvenile Justice (the care and protection of children) Act 2000, is defined as below the 18 years of age. It is the same with the International Child Rights Convention too. India as a country has accepted it and is one of the signatories. So now it is imperative to undertake struggle declaring any 18 year old child doing any work shall have to be treated as child labour. The Child Labour (Abolition and Regulation) Act needs another amendment and for which we have to fight. Child labour is child labour whether the age is 16 or 18 it is still an offence. The future of our children is the future of our country. Hence we have to fight for another amendment in the child labour Act.

Is employment of children as domestic and hotel workers really banned in India?

By Karthik Navayan

Child labour is one of the major bane for our Dalit, Adivasi and other lower caste children from rural areas. While you are reading this piece, millions of our community children are being deprived of their childhood which for others is their birthright. Though the government has come out with a strong legislation but it has no impact on a society that treats people from different backgrounds as subhuman and therefore have no remorse what soever in treating our unfortunate children as slaves. We all are equal partners in this crime by keeping quiet and allowing this inhuman practice to become a normal thing. As a part of Dalit movement, we must raise our voice against child labour and work together to provide them a better future than what the society has reserved for them right now. Below is an english translation of my essay, Endlallo Hotallalo Pillalatho Pani Cheyenchadam nishedam from my Telugu book Dalitawaj-I.

The employment of child labour within households, hotels, Dhabas, restaurants etc., has been banned by the Govt. of India, through Ministry of Labour and Employment, by recognizing these places as hazardous occupations and included them in the Part A of the Child Labour (Prohibition & Regulation) Act 1986. This amendment has been made effective from 10th October 2006. This gesture hopefully rekindles the 1986 Act, though, after 20 long years.

Is this law and its amendment enough to secure our childrens future and prevent their becoming slaves?

The impact of the Act and its implementation can be vouched from the fact that even today after almost three years of amendment that banned child labourers in hotels one can easily locate around 50 children working in different hotels that are located within the premises of various city courts in Hyderabad like at Ranga Reddy District Court, City Civil Court premises in Nampally and even within the premises of the Andhra Pradesh High court itself! There are about 40 child workers toiling within the various mess premises of residential colleges run by Sri Chaithanya in the city.

To make the ban effective, the government must initiate several measures and start working on implementing the same. But if we look back, right from the day of our Independence to the very day of conceiving the 1986 Act, for 40 long years, we have not done anything either to formulate or to enact a Law to ban the child labour. What little we had was a hope that remained in paper, as per our Constitution, that guarantees a universal and free education.

Background

The Act of 1986 divided the nature of child-labour work places as hazardous and non- hazardous. It concluded that the hazardous ones exist very fewer in number, thereby permitting 90 % of the work places to engage and employ young children as laborers. This has resulted in the continuous employment/ enforcement of child labour in both the banned and hazardous and non-hazardous occupations and work places entirely to the extent of cent percent. Therefore, the Child Labour (Prohibition and Regulation) Act of 1986, sans the recent amendment, was of little use to the laboring children in India.

Indias failure in its expressed objective of prohibiting child labour led many NGOs to take initiatives towards building a movement against its prevalence, highlighting the plight of child labourer. The likes of NDWM (National Domestic Workers Movement) then, came up in alliance with the domestic workers, child domestic workers and migrant workers. Together with many other such initiatives they were able to create pressure on the Government and the Labour Ministry for a better legislation against the rampant practice of child labour in India.

The cumulative campaigning and advocacy efforts of the NGO community, together with the all-round efforts of domestic, child domestic and migrant workers finally paid dividends and the Union Ministry of Labour and Employment, GOI was forced to make amendments in the Part A of the 1986 Act, under the heading Occupations.

After item (13) and the entry relating thereto, the following items were added as banned in the 1986 Act -

(14) Employment of child as domestic workers or servants;

(15) Employment of children in Dhabas (road-side eateries), restaurants, hotels, motels, tea-shops, resorts, spas or other recreational centers.

Such a violation now would attract conviction with a jail term of not less than 6 months together with the imposition of penalty up to Rs. 25,000. However, the truth is that, till date, no offender has been ever subjected to such a conviction. In the cases of torture and violence against child labour, by the employers, the police had been merely registering such cases only under IPC 324 and 506 (inflicting injury with a criminal intent). Since both the IPC sections are bailable the culprits are going scot-free.

Among the children engaged in the domestic work, almost 90% of them are girls and are compelled to work for 14 to 16 hours, without a break. The nature of their work ranges from sweeping the floors, washing the cloths, cleaning the dishes, baby sitting and preparing food for the entire household. Apart from the inhuman workload the children are more often then not are subjected to severe physical violence from employer family members. More over, the children have to cope up with the wild gestures and sexual abuses and harassment.

The problems of Child Labourers in Hyderabad

According to the recent estimates, there are around 40,000 such households in the city of Hyderabad only that employ children as domestic workers. You take any multi storied apartment in the city and can easily find 15-20 child domestic servants who are otherwise completely invisible to the outside world. As the employers go out to their offices these child labourers are locked inside the apartments with no hope of dreaming about their own future.

Most of these children hail from drought affected rural areas and are from the families that are subjected there to severe oppression and exploitation. These are then exported to the urban areas by many gangs that indulge in human trafficking for the purpose of providing child-slaves to these city apartments. These cannibals target mostly the girl child, hailing from the poorest of the poor in the drought prone rural areas, promising their parents good money and excellent food and clothing for the children.

However, once bringing the child as domestic servant they turn them into slaves of rich families and are left to face inhuman work load, torture, rape, sometimes even murder. After a period of time these children often go missing or many are even find in jails on false theft charges.

Among the type of families that seek and employ the hapless girls as child labour are mostly hailing from middle class with secure Government jobs. And the kind of wages and salaries they dole out to the toiling girls is a monthly paltry sum of mere Rs. 200 or on occasion Rs. 300/- a month.

Some suggestions

The Act although bans the child labour and restraining hotels and restaurants from employing children. But the purpose of such legislation would all be futile if it is not implemented as envisaged and there is a strong need to devise some proactive means to sensitize the society about the law as well as the problems of child labourers. Some of these immediate proactive steps are -

- To inform the masses that child labour is an offence, all news papers, TV channels and Radio stations must undertake serious publicity for about an year.

- All the State and Central Government employees shall have to be ordered to refrain from employing children in their households and other places.

- The child labour employed within the premises of any government establishments or offices must be liberated with immediate effect and to be rehabilitated through providing them with education and other help.

- Conduct raids and liberate all the child labourers from all the city based hotels and establishments and accord them rehabilitation coupled with their education.

- All hotels and apartments must be under constant scrutiny and monitoring.

- A police officer in every police station shall undergo training classes to build awareness about the Child Labour (Abolition and Regulation) Act 1986.

Conclusion

Yes. The Act is great for all those persons who oppose child labour and believe that instead of working, a child needs education and recreation for his/her mental and physical development. Yet the battle is far from over. Apart from raising voices against its faulty implementation at ground level, many civil society organizations are demanding another amendment in the act with respect to governments definition of child labourer as those who are 14 years old and lower.

This is a big loophole in the Act and makes the Act futile. A Child, according to the Juvenile Justice (the care and protection of children) Act 2000, is defined as below the 18 years of age. It is the same with the International Child Rights Convention too. India as a country has accepted it and is one of the signatories. So now it is imperative to undertake struggle declaring any 18 year old child doing any work shall have to be treated as child labour. The Child Labour (Abolition and Regulation) Act needs another amendment and for which we have to fight. Child labour is child labour whether the age is 16 or 18 it is still an offence. The future of our children is the future of our country. Hence we have to fight for another amendment in the child labour Act.

Collegium may withdraw recommendation for Justice Dinakaran By : Y.Prakash on 19 October 2009 Charges of land encroachment against Justice P D Dinakaran, Chief Justice of the Karnataka High Court, have been endorsed by an investigation ordered by the Supreme Court, dealing a serious blow to the prospect of his elevation to the apex court. Sources said that V Palanikumar, district collector of Thiruvallur near Chennai, found Justice Dinakaran to have encroached 197 acres of public land around his property in Kaverirajapuram village. In his report to the SC, the district collector has also held that the encroachments by Justice Dinakaran have blocked access to government land. According to sources, the Chief Justice of India, Justice K G Balakrishnan, and other judges who form the Collegium, are considering to withdraw their recommendation for Justice Dinakaran’s elevation in the light of the damning findings of the Thiruvallur collector. “The Collegium always keeps an open mind about its recommendations. It would not be difficult for it to withdraw the earlier recommendation when it meets next time over the reports of the collector and the response from Justice Dinakaran,” a highly placed source told TOI. After the controversy over the recommendation broke out, Justice Dinakaran had in a one-to-one meeting with the CJI on September 18 assured him that he had not acquired even an inch of land after his appointment as a high court judge. Justice Balakrishnan has asked the Chief Justice of the Karnataka High Court for his response to the report of Palanikumar. The CJI has also asked the collector to provide him with maps detailing the alleged encroachment of 197 acres of government land in Kaverirajapuram village, besides directing the revenue secretary of Tamil Nadu to update him about the nature and the period of encroachments. He had sought the report from the district collector in the wake of massive opposition to the recommendation for Justice Dinakaran’s elevation to the SC. With the collector’s damning report on encroachment virtually confirming a part of the allegation levelled by various members of the Bar against Justice Dinakaran, the Collegium would find it extremely difficult to stand by its earlier decision to recommend to the Centre to appoint him as a judge of the Supreme Court. The Collegium headed by CJI comprises Justices S H Kapadia, Tarun Chatterjee, Altamas Kabir and R V Raveendran.