The global health care market is approximately worth a little over 500 billion dollars annually. When we say health care data, our assumption is that it’s related to patient care. But it’s actually not. Although patient care and management was primordial in this field, today, they extend to services like laboratory and diagnostic facilities, introducing the masses to many cutting-edge procedures, managing data collected on patients and professionals and so on. On the operational side of things, medical or health care also includes contributions and support from pharmaceuticals, research and development, medical equipment, logistics storage and management and more. All of these services and operations have one thing in common – the data. This article seeks to provide an insight into the privacy issues surrounding the Electronic Health System in Health Care Organizations.
Data and the pharma sector
For instance, here’s a snippet on how data plays an important role in Pharma-R&D sector when they are trying to develop a new drug. First of all, they would need tons of background data while developing the drug – data on primary consumers, utility, what does it solve, what does it help manage, ingredients, reaction rate, prescribed dosage, procedure to administer, quality and so on. And this is all only to make the drug. They would then have to get approvals for human trials to try and test their drug on a live tissue. Before they resort to this, they would have developed the drug keeping in mind – a sample set of real patients’ data, their vital stats, their bio structure and such other streams of data to substantiate if the drug would work on a human. Without all these data sets, it would be impossible to develop a drug. The primary question is ‘How does one procure a nuanced set of data, of this nature and quality?’ As dramatic as it may sound, they simply ‘steal it’ or procure it ‘the unethical way.’
Health care related patents and copyrights are the nation’s assets. Whoever owns the highest patents or answers to age-old pandemics such as Polio, AIDS, Cancer, Virus-based diseases holds a great deal of leverage and wealth over other countries. Using such sensitive data with permission for R&D is legal, and to some extent, the law allows it. But procuring data without authorization and using it for personal gains or to manipulate a certain sentiment is a criminal act.
With every country and their chains of health-care facilities storing tons of volumes of data in their servers and in electronic form, it has more risks than what it seems theoretically. Since all data today is preferred to be collected, stored, and managed online and in electronic form, the risk or probability of it being stolen is higher. Hackers need not visit a physical place to hack data, they can hack into servers in remote locations from their basements and choose to dispose of it by selling it in the black market. There are plenty of real-life instances where hackers have stolen insurance details (personal and sensitive) of millions of consumers worth crores from multinational corporations and have leaked it (sold it) on the black market to anonymous people. Imagine Western data of this nature and stature falling into the hands of some Eastern country who is known for its monopoly play! The eastern country would seek ways to capitalize on it in an unethical manner. This again would indirectly hurt millions in the west due to import prices, cost of making the drug overseas, taxes levied and more over the dependency it creates of not being able to produce the drug in their own country.
Understanding Health Care Data
Now that we understand the elements and fields of potentially procuring health care data, we need to understand what an actual data record consists of. In India, among other details, it has a person’s name, date of birth, address, Aadhar number, payment details, insurance details, case history, allergies and so on. This is identified as EHR, which expands to Electronic Health Record – basically health data associated with a person who at some point needed medical care and assistance from a registered entity.
The Electronic Health Record Standards (EHR Standards) was formulated by the Ministry of Health and Family Welfare, in India, and it defines EHR as “a collection of various medical records that get generated during any clinical encounter or events.” There are some standards notified under this as well. These Standards are intended to provide for creation and maintenance of health records in a standardized manner so that interoperability of HER’s can be made possible throughout the country.
Need to secure Health Care Data
Further, internationally, Electronic Health Record (EHR) is defined by the International Organization for Standardization (ISO) as “a repository of information regarding the health status of a subject of care, in computer processable form.” In a nutshell, an EHR is a digital print of a person’s medical history stored in the servers/databases of a healthcare organization. In the US, Medical or Personal Health Information (PHI) is defined in HIPAA(Health Insurance Portability and Accountability Act) standards as, “information that is created by a health care provider [and] relates to the past, present, or future physical or mental health or condition of any individual.”
The nature of this data is such that it can identify a person and his personal details. Without authorization, learning about this data is a breach of an individual’s privacy rights which again is a fundamental right [Ref: Justice K S Puttaswamy (RETD) and anr v. Union of India and ors, WP (Civil No) 494 of 2012]. Although India does not have a definition regarding what qualifies as medically sensitive data, it recognizes breach of confidentiality which is basically breach of individual privacy [District Registrar and Collector v. Canara Bank (2005)]. For these reasons and others explained in the first section, there is a dire need to protect data especially when it is confidential, sensitive and personally identifiable.
Current security challenges in the EHS
India has a growing economy. The majority of people want to have a health care file that can be portable anywhere they travel within the country. It is the need of the hour and is a concept that is growing at a rapid pace. Securing this data should also go hand in hand. Security is not only about protecting the data collected; it also includes processes and efforts to maintain it, complete it, and update it. The following are some of the challenges in today’s data security.
Lack of awareness: This is perhaps the biggest problem to deal with! Health care personnel working on collecting patient’s data need some level of training on handling data securely. Sometimes, a data leak occurs through sheer negligence because someone in the system clicked on a phishing email that allowed a bug in the system. At times, people are not trained enough to store data well due to digital illiteracy. If personnel are not trained with basic guidelines, then it becomes very difficult to arrest the breach or even in some cases avoid it. Health Organizations should consider investing in this sector which currently is lacking in the system. Moreover, the importance of creating awareness on privacy should start with “why?” “why not?” “what and what not to?” and the impact of these careless actions.
Role based access: Any infra that is set up within the organization that handles patient data should be set up with role-based access. Role based access works on the principle that people who have restricted info on information will also have restricted access to data and other infra.
Digital literacy: Health care professionals are usually not trained in tech simply because it’s not a part of their day to day job. But with basic training, anyone can learn how to handle tech and software. Digital literacy emphasizes, among many things, the importance of online safety skills, basics of Internet safety such as creating strong passwords, understanding and using privacy settings, and knowing what to share or not on social media. On the other hand, executives and management need to invest in tech which is simple to handle. Most go with fancy looking tech which may be complicated for a majority of the medical staff on ground. Whoever is selecting the app should thoroughly test the infra on usability, user accessibility, and customer centric concerns
Overall, the effort and responsibility for a successful, safe and secure tech should be from both – the staff using the tech, and the executives designing the network.
Data Privacy and Compliance framework – prevent than to cure
Perhaps the cure we are all looking for is a framework based around a privacy-driven approach. One such framework is HIPAA, introduced in 1996 (Health Insurance Portability and Accountability Act, a federal law that required the creation of national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge). It consists of three basic rules – HIPAA Privacy rules, Security rules, and Breach Notification rules. Everything designed in a compliance program will contain sub-sections of these in one way or the other.
HIPAA compliance addresses operations like (1) Self-audits (2) Gap identification and remediation (3) Policies and procedures (4) Employee training (5) Business associate management (6) Incident management. Therefore, it may not be a bad idea to develop a software system bearing all the above compliance programs in mind.
Conclusion
The Government of India has a global role to play when it comes to information exchange. It houses one of the largest populated countries of the world with the highest digital illiteracy rate. In 2018, the Parliament introduced the Digital Information in Healthcare Security Act, 2018 (DISHA), for promotion and adoption of e-health standards in India. It is a legislation which aims to provide better data privacy, confidentiality, security and standardization. The idea extends to create regulatory authorities both at central and state level, the National Electronic Health Authority (NeHA) and the State Electronic Health Authority (SeHA).
In 2019, the Personal Data Protection Bill or PDP Bill was also introduced by the Parliament. It applies to processing of personal data where such data has been collected, disclosed, shared or otherwise processed in India. However, all these are yet to go-live. If they do, it will be an inception point of India’s journey in data privacy.
Ultimately, it narrows down to “who collects the data? Who owns it? And is there a consent chain in place for all the collected data?” In other words, it’s about accountability. The onus usually lies with the entity that collects it, in this case, the health organisations. The only way out is to build an infrastructure that supports a privacy-compliant framework.
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This is written by Michael Shriney from the Sathyabama Institute of Science and Technology. This article describes Section 106 of the Transfer of Property Act, which deals with lease, their elements, agreements, tenure, the aims of composite and integrated tenancies, impacts, and other lease-related information.
It has been published by Rachit Garg.
Table of Contents
Introduction
A transfer of property is a gift, sale, mortgage, lease or exchange of immovable property from the owner to another living person, who can make use of the land or enjoy the possession of land for a period of time or permanently. In other terms, transfer of property is the act of transferring property from one person to another.
This article focuses on the term ‘lease’, which refers to the transfer of property from one person to another in exchange for money, for a set period of time. Without selling the property, another person can utilise it as his own property for the duration of the agreement. Even if the owner’s property is leased to someone else, the owner will always be the owner. For a fixed period of time, the other person may utilise that property as his own. The parties’ agreement might be written or verbal in their contract.
Section 106 of the Transfer of Property Act, 1882 governs the tenure of leases in the absence of a documented contract or local practice. Let us go through some more details concerning lease under the Transfer of Property Act of 1882.
Essential elements of lease under Section 105 of Transfer of Property Act, 1882
Section 105 of the Transfer of Property Act of 1882 addresses the essential elements of a valid lease of immovable property.
The parties
There are two parties in a lease: the lessor and the lessee. The word “lessor” refers to the party, who transfers the immovable property, i.e. the owner or transferor. The word “lessee” refers to the person, who receives the property from the owner, also known as the holder of the property or the transferee.
The demise
The term “demise” implies to transfer property by lease or to give a property at lease. It is the transfer of immovable property from the lessor to the lessee through a lease. The property obtained from the owner is enjoyed by the lessee. It is the right to enjoyment known as demise.
The term (duration)
The duration of time is limited to the time indicated by the owner or lessor. The lessor specifies a time frame for transferring his immovable property for lease. It is entirely up to the owner to reach an agreement with the lessee for a specific span of time, to use or enjoy a hold of his property.
The consideration
The owner fixes the lease price, which is known as the premium, and the money or value, contribution, service, or other things that are delivered is known as rent. The immovable property is leased for a certain amount, determined by the owner as the consideration. Consideration is the price to be paid or the promised amount to be given to the transferor on a regular or specified basis by the transferee.
Agreement to lease
The lease agreement is a deed between two parties, the lessor and the lessee, who both enter into a lease agreement. The lessor is the person who rents out his immovable property to the lessee on a monthly or annual basis for a fixed cost that the owner has agreed to or set. Under this agreement, the owner retains ownership of his property but transfers it to the other person for his use or enjoyment in exchange for a premium or rent. It is up to the parties whether the agreement is written or implied. The owner may establish the rate of premium for the immovable property.
For example: When ‘A’ leases his house to ‘B’ for a year at a payment of Rs.50,000. This is an agreement between ‘A’ and ‘B.’ As a result, ‘A’ does not lose ownership throughout this one-year period.
Duration of certain leases : Section 106 of Transfer of Property Act, 1882
In the absence of a formal contract or local practice, Section 106 of the Transfer of Property Act, 1882 governs the lease. There are two uses, agricultural and manufacturing, that are made to be assumed to lease on a year-to-year basis and can be terminated by either the lessor or the lessee with six months’ notice. If it is for any other reason, it will be treated as a lease from month to month basis by giving 15 days’ notice.
Agricultural purposes
The most common type of lease is for agricultural use. The land owner rents or transfers his land to a lessee or farmer who uses it for agricultural purposes. It is done on rent or cash basis that is fixed by the owner. They may also contribute agricultural materials such as rice, wheat, or anything that they produce on the land. This can be accomplished by a formal agreement or a verbal agreement reached between the parties, i.e., the lessor and lessee. They utilise the land on a monthly or annual basis, which must be cancelled by giving 15 days’ notice or 6 months’ notice respectively if a written agreement is not present.
Manufacturing purposes
The other lease is for the purpose of manufacturing. They make use of the property to produce certain commodities. It must have a manufacturing process that involves either labour or machines. After the manufacturing process is completed, the finished product is produced. In other words, during the manufacturing process, the commodity must be in its original state.This can be performed by a legal agreement or a verbal agreement between the parties, namely the lessor and lessee. They use the land on a monthly or annual basis, which must be terminated with 15 days’ notice or 6 months’ notice respectively if no formal agreement exists.
Composite tenancy and integrated tenancy for dual purposes
A composite tenancy is the letting of premises for specific purposes. They give the tenant, the premises, for more than one specific purpose, allowing the tenant to use the entire premises as one unit. Mixed tenancy is another name for composite tenancy. Integrated tenancy serves two functions by allocating different portions to different types of users. There will be two or more rooms in this tenancy, one for residential purposes and the other for non-residential purposes. Two or more users will share the same premises as a tenant.
Notice to terminate the lease (Section 106 of the Transfer of Property Act,1882)
In the absence of a written lease contract, the lessee will be given 6 months’ notice to terminate the lease, if it is used for agricultural or manufacturing purposes on a yearly basis. In the case of other purposes on a monthly basis, the lessee will be given 15 days’ notice to terminate the lease. The notice period will begin from the date when the lessee receives the notification.
Shanthi Prasad Devi and Anr. v. Shankar Mahto and Ors. (2005)
The appellant secured possession on lease for the purpose of running a petrol pump for a term of fifteen years under a registered lease deed in this case. Although the lease was for a year, the payments were made monthly. After the period of fifteen years has passed, the lessee issued a notice under Section 106 of the Transfer of Property Act of 1882, to renew the lease deed. Even after the lease time had expired, the lessee continued to pay the rent, which the lessor accepted. The lessee took the acknowledgement of rent as an assent to the notice and remained on the premises. The Supreme Court concluded that Section 106 of the Transfer of Property Act, 1882, was not required for the renewal of the deed, hence, the appellant was ordered to depart the premises within two months in the same condition.
Service of notice
The lessor will serve notice to the lessee in the absence of a formal contract for the following reasons.
Every notice must be in writing, signed by or on behalf of the person providing it, or it must be personally given to such party or his family or servants at his attached address.
After the notice time has expired, a suit or procedure may be filed. The notice will remain effective even after the expiry date has passed.
During agricultural or manufacturing purposes on a yearly basis, notice will be given to the lessee to terminate within 6 months.
During other purposes on a monthly basis, notice will be given to the lessee to terminate within 15 days.
Acceptance of rent after notice
The acceptance of rent after notice is not accepted as the notice is given to terminate the lease. In other ways, by giving rent, the lease contract will not be renewed.
Munnar Lavten Yadav v. Ashok Dalvi (2021)
In this case, the petitioner was the owner of a plot of land, while the respondent was a monthly tenant. The respondent owed rent and refused to pay inspite of repeated reminders. The petitioner gave notice of eviction under Section 106 of Transfer of Property of 1882, and thus, the tenancy was cancelled. Ignoring the fact, the respondent failed to pay the arrears and did not vacate the land. According to the Bombay High Court bench, the respondent must hand over unoccupied and peaceful custody of the suit premises to the petitioner within two months of the date of the judgement.
Deposit of rent in court
The tenant cannot be made to deposit rent in Court all of a sudden. There are various requirements required in the Rent Control Act, 1948 for depositing rent in court, if the particular state has to be fulfilled with the following.
When the landlord refuses or fails to deliver the receipt
When the landlord does not accept the rent given by the tenant
When the tenant is unsure to whom the rent is payable
In certain cases, the tenant may deposit his rent in Court. The Court receives the rent and transfers it to the landlord through registered post acknowledgement, as well as sends copies of the application and a copy of the notice to the landlord.
Permissive occupancy
Giving permission to reside in a given area is what the term “permissive occupation” refers to. The word ‘permissive’ implies tolerance, and the term ‘occupation’ means being habituated to or living in it. This occupation of premises is permitted, allowing the lessee to utilise the property for an extended period of time. This has no impact on the owner’s rights or ownership. This is approved or permitted to the tenant on the basis of rent or lease to the tenant by expanding the term or by the landlord’s implied authorization. It is a legal right that can be claimed against any third party.
Effect of redemption on tenant-mortgagee
When a tenant-mortgage is redeemed, there is no relationship between the landlord and the tenant. If a tenant is to be formed beyond the period of the mortgage, specific statements of intent must be made.
After taking ownership, the mortgagor will be entitled to receive future rent payments. This was the impact of a mortgagee in possession on a tenant. A mortgagee cannot develop an interest in the mortgaged property that will survive beyond the end of his mortgage interest.
Rent control legislation
The legislature established the Rent Control Act, 1948. It governs the laws of rental property and guarantees that neither the landlords’ nor the tenants’ rights are abused by the other.
Rental Agreement: In India, renting or leasing any property for residential or commercial use is subject to a variety of rules and regulations. There must be a formal agreement between the two parties describing all of the tenancy terms and conditions.
Tenant’s rights: The legislation is in place, not just to protect the landlord and their property, but also to safeguard the tenant. The landlord cannot evict the tenant unless there is a valid reason or cause. The landlord cannot demand more than the agreed-upon rent for the lease. The tenant has access to vital utilities such as water, electricity, and so on.
Landlord’s rights: The purpose of the Act is to protect property against unfair exploitation from the tenant. When the landlord is dissatisfied with the tenant, he has the authority to remove him. He has the right to charge rent to the tenant. He can also temporarily repossess the property in order to enhance its condition or change it.
Tenants-at-will
‘Tenancy- at- will’ refers to a situation in which either the landlord or the tenant can freely terminate the lease or rent at any moment. This occurs even in the absence of a contract or lease that specifies the duration of the tenant’s tenure or the payment exchange. The landlord does not compel tenants to remain for an extended period of time.
Tenancy of sufferance
Landlords generally sign a lease agreement that permits the tenant to stay in the property for a fixed period of time. Tenancy at sufferance occurs when a tenant does not vacate the property after the expiry date. In other words, the renter remains in the rental property after their lease time has expired. This gives rise to a tenancy at sufferance.
Sample of lease agreement
(This is just a sample lease agreement template for your reference. This agreement can be modified to meet the interests of both the landlord and the tenant.)
State of _____________
LEASE AGREEMENT
This lease agreement (this “Agreement) is made this_________, 20__, (the “Effective Date”) by and between __________, an individual located at _____________(‘Landlord’) and ____________, an individual located at ____________ (‘tenant’). Each landlord and tenant may be referred to in this agreement individually as a “Party” and collectively as the “Parties.”
WHEREAS Landlord owns and desires to lease to Tenant, and Tenant desires to lease, the Site (as defined herein); and
WHEREAS Landlord and Tenant wish to enter into this Agreement for the lease of the Site for use by Tenant as per the terms of this agreement.
NOW, THEREFORE for good and valuable consideration stated herein, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
Agreement to Lease. Landlord agrees to lease to Tenant and Tenant agrees to lease from Landlord, according to the terms and conditions set forth herein, the real estate described in Exhibit A attached hereto (the “Site”).
Purpose. The Site may be used and occupied only for the following purpose (the “Permitted Use”): ________________. Nothing herein shall give Tenant the right to use the Site for any other purpose without the prior written consent of the Landlord. Landlord makes no representation or warranty regarding the legality of the Permitted Use, and Tenant will bear all risk of any adverse change in applicable laws.
Term. This agreement will be for a term beginning on _____________ and ending on ____________ (the “Term”). The Parties hereto may elect to extend this agreement upon such terms and conditions as may be agreed upon in writing and signed by the Parties at the time of any such extension.
Rent. Tenant will pay Landlord rent in advance on the Effective Date in the amount of Rs ______________..
Late fee. Rent paid after the ______day of each month will be deemed as late; and if rent is not paid within _______ days after such due date. Tenant agrees to pay a late change of Rs _____________.
Additional rent. There may be instances under this agreement where the Tenant may be required to pay additional charges to the Landlord. All changes are considered additional rent under this agreement and will be paid with the next regularly scheduled rent payment. Landlord has the same rights and Tenant has the same obligations with respect to additional rent as they do with rent.
Security Deposit. Upon signing this agreement, Tenant will pay a securely deposit in the amount of _________to the Landlord. The security deposit will be retained by the Landlord as security for Tenant’s performance of its obligations under this agreement. If Tenant does not comply with any of the terms of this agreement, Landlord may apply any or all of the security deposit to remedy the breach, including to cover any amount owed by tenant and / or any damages or costs incurred by Landlord due to Tenant’s failure to comply. Within ___________days after the termination of this agreement, the Landlord will return the security deposit to Tenant. Any reason for retaining a portion of the security deposit will be explained in writing.
Utilities. Landlord/ Tenant shall pay the cost of all utility services during the term, including but not limited to gas, water, and electricity used on the site.
Acceptance. Both the parties, Landlord and the tenant should have read and understood this agreement and have agreed to sign the same without any pressure from any side.
In WITNESS WHEREOF the lessor/owner and the tenant/lessee have hereunto subscribed their hand at ____________ (place) on this the ________ (date of rent agreement) year first above mentioned in presence of the following witnesses.
Witnesses:
_____________ (name of the landlord)
_____________ (name of the tenant)
Conclusion
Lease is the transfer of property from the owner to the tenant through an agreement, which may be in written or verbal form, for a certain length of time with a fixed premium or rent. The tenant may use the property for a limited time for an agreed amount. The owner’s ownership rights cannot be taken away. He is still the same as the owner.
When a documented lease agreement is missing, the tenant may be terminated by giving 6 months’ notice for agricultural and manufacturing purposes. Lease will be cancelled for other purposes by giving 15 days’ notice. Both are covered under Section 106 of the Transfer of Property Act, 1882. The effective enforcement of the law will begin the day after the notice is received. Even though the notice period has expired, the suit or proceedings can be filed. The notice must be in writing, signed by the lessor, and delivered to the lessee by post, personal delivery, or other ways to his family members or servants at the lessee’s residence.
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This article is written by Neha Dahiya, a law student at Dr. B.R. Ambedkar National Law, University. This article explains the writ of certiorari, provisions for the writ in other countries, and the difference between certiorari and prohibition.
The origin of the writ of certiorari can be traced to several years back when it was used as a means to review the judgments for the errors. The modern form of it is not any different. It has been continually used by the superior authorities to quash the judgments given by the lower ones having errors of law or having exceeded the limits of their jurisdiction. Under Indian law, Articles 32 and 226 of the Constitution contain the provisions for writ jurisdictions of the Supreme Court and the High Courts respectively.
A brief introduction of writs
A writ is basically a formal order issued by a legal authority having administrative or judicial powers. In the Indian context, the writ jurisdiction of the Supreme Court and the High Courts has been guaranteed by Article 32 and 226 respectively. Article 32 has been called the “heart and soul” of the Indian Constitution by the Chairman of the Drafting Committee, Dr. B. R. Ambedkar. This is because the fundamental rights mentioned in Part III forms the essence of the constitution. However, without any recourse to enforce them when violated, there is no purpose served by them. Thus, Article 32 provides us that protection. Article 32 is a fundamental right, albeit Article 226 is not. Article 226 is a constitutional provision and provides wide discretionary powers to the High courts.
Different types of writs as per Article 32(2)
Article 32(2) lists down various writs as follows-
Habeas corpus
It literally translates to “you may have the body”. It protects a person’s personal liberty and can be invoked whenever it has been breached illegally. It is usually issued by the courts in cases of illegal detention and presenting a prisoner before the court. Any such person held, can file the writ petition either himself or through another person.
Mandamus
It is a latin word for “We Command”. It is usually issued by a higher judicial court to a lower court, tribunal, or public authority to direct them to perform a particular task. It is invoked when a public authority fails to perform the action assigned to it. So when the authority fails, this writ can be issued to command them to do a particular thing as required by the law.
Prohibition
It is invoked by a higher court to stop a lower court or a body from transgressing the limits of its powers. It can be passed only during the pendency of the proceedings.
Quo Warranto
It literally means questioning “what is your authority”. It is invoked to restrain a person from taking charge of a public office to which he is not entitled. It is a safeguard against persons illegally holding offices they are not fit for.
Certiorari
Basically it means “to be certified”. It can be issued by the Supreme Court or the High Court to quash an order already passed by a lower court. It could also be used by the Supreme Court to transfer a particular matter to it or some other superior judicial authority for consideration.
The writ of Certiorari
Grounds for Certiorari and Persons against whom Certiorari can be constituted
Certiorari is basically a tool for judicial control and restraint. As mentioned above, it is issued by the Supreme Court or the High Court to quash an order passed by an inferior court, tribunal, or quasi-judicial authority, whenever the authority has acted in excess of its power, or without requisite jurisdiction, or has violated the principles of natural justice. It is corrective in nature and is aimed at preventing overstepping by the judicial authorities.
Essential conditions for the writ of Certiorari
For the issuance of the writ of certiorari, the following conditions must be fulfilled:
The existence of an officer or a tribunal having the judicial authority as per the law to decide on the cases affecting the rights of people.
Such an officer or the tribunal must have acted-
in excess of judicial power, or
without requisite jurisdiction, or
in violation of the principles of natural justice.
The honorable Supreme Court has clarified that this writ cannot be issued against purely administrative actions. This implies that it can be invoked only in those situations where it is the concerned authority’s duty to act judiciously, after hearing both the parties and without any extraneous considerations. However, in the subsequent decisions, this view has been rejected. So even if the authority is not required to hear both sides before coming to a decision, the principles of natural justice must be obeyed. Thus, the writ of certiorari can be issued even in the administrative cases.
A body is said to have acted beyond its jurisdiction in the following cases:
Where the court considering the matter has not been constituted properly as per the law, like the requirements of members, etc.
Where the subject matter of inquiry lies beyond the scope of the body’s powers as per the law.
When the jurisdiction has been based on a wrong assumption of facts.
When there is a failure of justice due to violation of principles of natural justice or presence of elements like fraud, collusion, or corruption.
Even though the body has acted well within the limits of its jurisdiction, a decision can be quashed if there is a blatant error prima facie. The error here means an error of law.
Thus, in all the above-mentioned cases, a writ of certiorari can be issued.
Procedure to file a writ of Certiorari
The procedure to file a writ for certiorari is similar to filing any writ petition. A writ petition can be filed either in the Supreme Court under Article 32 or in the High Court under Article 226, whenever a person’s fundamental rights have been violated. No specific time limit has been provided for the filing of the petition. However, there is room for reasonable delay. It should be filed within a reasonable time after the violation of a right.
To begin with, an aggrieved person has to first approach an advocate or an organization with all the required documents. This is followed by the drafting of the petition by the lawyer. The draft will include all the required particulars about the aggrieved and the facts about the breach of his rights. The petition is then filed in court. Then the court will prescribe a specific date for the hearing. Notice shall be sent by the court to the other party. Both parties shall then appear in the court and put forward their arguments. After hearing both sides, the judge shall pass the judgment. Just like any other writ, there is a proper prescribed format for the writ that is to be followed in the petition.
Cases law related to the writ of Certiorari
The following are some important case laws associated with the writ of certiorari:
Syed Yakoob v. K.S. Radhakrishnan & Ors. (1964)
Facts
The State Transport Authority had called for applications for the grant of two-stage carriage permits via a notification under the Motor Vehicles Act, 1939. After receiving a number of applications, the first permit was granted to one of the applicants while fresh applications were called for the second one. Following this, the appellant appealed to the State Transport Appellate Tribunal. The Tribunal in its decision confirmed the first permit and in the second it allowed the appellant’s appeal and held that it should be given to him. The respondent then moved to the High Court with a writ of certiorari. It contended that the Tribunal had overlooked several material considerations. When the previous order was affirmed, the appellant then moved the Supreme Court under a special leave petition.
Issue
Did the High Court exceed its jurisdiction by issuing the writ of certiorari?
Held
It was held that the High Court did exceed its jurisdiction by issuing the writ of certiorari in the present case. It was observed that this writ is issued to correct instances where a court has exceeded its jurisdiction. Under the powers granted by the writ, the court cannot act as a court of appeal or check an error of fact. It can be employed in cases where there is an error of law, or when it can be shown that there has been a violation of the principles of natural justice. But not on the basis of an error of fact solely. However, whether there has been such an error or not is a matter of the court’s discretion.
Hari Vishnu Kamath v. Syed Ahmed Ishaque (1954)
Facts
In this case, both the appellant and respondent were two election candidates from the constituency of Hoshangabad for the election to the House of the People. When the result came out, the respondent secured more votes than the appellant and the Returning Officer declared the former as the winner. The appellant then filed a writ petition challenging the election and setting it aside as 301 ballot papers marked in favor of the respondent were not valid as they did not have the distinguishing marks as per Rule 28. The Election Tribunal dismissed the petition on the ground that the result was not affected by the wrong acceptance of votes. The appellant then moved to the High Court for a writ of certiorari to get the order passed by the Election Tribunal quashed on the grounds that it was invalid and the Tribunal had overstepped its jurisdiction.
Issue
Whether the High Court had the jurisdiction to issue a writ under Article 226 against the decision of the Election Tribunal?
Held
It was held that the petition was maintainable and the decision of the Tribunal came under the writ jurisdiction of the High Court. The decision by the Election Tribunal was also quashed.
Also, it firmly established the following principles:
(i) The writ can be issued for correcting the errors of jurisdiction committed by the lower courts.
(ii) It is a part of the supervisory jurisdiction of the court and not the appellate jurisdiction. If the law does not allow an appeal in a particular case, then giving it a back-door entry via the writ of certiorari amounts to defeating the purpose of the law.
(iii) The aim here is not to re-hear the case and consider the facts once again. It can only be invoked in cases of error of law.
Radhey Shyam and anr. v. Chhabi Nath and Ors. (2015)
Facts
The respondent had filed a writ petition in the High Cout, during the pendency of trial, against an interim order passed by the civil court. The High Court vacated the interim order and passed in favor of the appellant. Then the appellant moved the Supreme Court under Special Leave Petition contending that the High Court had no jurisdiction to pass the order and no writ petition can lie against an interim order passed by civil court.
Issue
Can a writ be filed against the order of the civil court under Article 226 of the Indian Constitution?
Held
The court differentiated the High Court’s jurisdiction under Articles 226 and 227. It was observed that Article 226 gives writ jurisdiction to the court, while on the other hand Article 227 gives supervisory jurisdiction. Both of them differ in their scope and nature of powers given to the court. As per Article 227, the court cannot only quash an order, but also substitute it with its own opinion or a decision. But the court cannot do the same under Article 226. Thus, it was held that judicial orders of civil courts are not amenable to a writ of certiorari.
Provisions for Certiorari in other countries
The writ of certiorari persists in similar forms across the nations in the following forms:
USA
The writ of certiorari is often employed in the United States Supreme Court to review the judgments of lower courts. A party cannot appeal to the SC directly as a matter of right. Thus, it has to use certiorari to seek a review of the case from a lower court. In order to entertain a plea for certiorari, then at least four judges must agree to hear the review. This is called ‘granting certiorari’. ‘Denying certiorari’ is when the judges refuse to accept the review. Participating in the “cert pool” is a common practice in the US. In this practice, the law clerks of the judges are involved in collectively assigning the petitions for certiorari among themselves. They analyze them and prepare memoranda for the judges making recommendations whether the judges should or should not grant the certiorari. Rule 10 of the US SC Rules List contains the criteria for granting certiorari. It also declares that this is a discretionary power that rests with the SC. Denying the writ does not necessarily mean that the court agrees with the lower court’s judgment. In cases of factual errors or misapplication of law, the writ is rarely granted.
UK
In the UK, the writ is used at judicial discretion, granted only when there is a jurisdictional error. It is available in the original jurisdiction of the High Court under Section 75(v) of the British Constitution. It is also available with the Federal Court as per Section 39B(1) of the Judiciary Act, 1903. It also lies with the state courts in a limited nature. A peculiar feature of the writ here is that it is always granted as ancillary relief. It can only be issued when there is another constitutional remedy that is established. A court may also grant an equitable remedy like an injunction or a declaration in the place of the writ.
France
The writ of certiorari can be issued by the Cour de cassation in the following cases:
(i) When the previous court did not have jurisdiction to give the judgment
(ii) When due process has not been followed
(iii) If the reasoning given is not pertinent
(iv) If the decision is not compatible with the legal framework
The court can reject a petition if it finds it to be meritless and record the reasons for doing the same.
Australia
Historically, the power of judicial review, previously called as inferior jurisdictions, came to Australia with the establishment of the first Supreme Courts in Van Dieman’s Land and New South Wales in 1824. Thus, certiorari which was a common law power was a power of jurisdiction created by courts through their decisions. In common law followed there, judicial review can be obtained by the means of various prerogative writs and certiorari is one of them. Certiorari sets aside a decision given contrary to the law. Along with this, Section 75(v) of the Constitution also provides an ‘entrenched minimum provision of judicial review. Additionally, Section 39B(1) of the Judiciary Act, 1903 extends the original jurisdiction of the High Court of Australia to the Federal Court.
Difference between Certiorari and Prohibition
Writ of Certiorari
As explained above, it is used by a superior court to quash the order passed by the lower judicial authority. It is issued in cases where there is a prima facie error of law in the judgment, the authority has given an order in excess of its powers, or when the principles of natural justice are violated.
Writ of Prohibition
Similar to the writ of certiorari, the writ of prohibition is also issued by a higher judicial authority to a lower one to prevent it from overstepping its jurisdiction. It is a kind of a ‘stay order’ where the higher authority ‘prohibits’ the lower one from carrying out the proceedings further. However, it can be passed only against judicial bodies and not administrative bodies. It is a safeguard against the breach of the judicial hierarchy and the separation of subject matters for efficiency. It can only be passed during the pendency of the proceedings.
Cases in which the writ of prohibition can be issued
The three main cases in which it can be issued are the following
When an authority has overstepped its jurisdiction
When there was no jurisdiction with the authority to deal with the matter
There has been a breach of the principles of natural justice
Both the writs ensure that the judicial functions are being carried out as per the law without any violations of the established rules. Both of them ensure that the judicial authorities do not overstep their jurisdictions. However, they are not the same. The differences between them are as follows:
Certiorari
Prohibition
The writ of certiorari is issued after the court has given its decision to quash the order. So if a person wants to file a writ against an order already passed by the court, it should be the writ of certiorari.
The writ of prohibition is issued when the proceedings are going on and the order has not been given yet. So if someone wants to file a writ during the pendency of the proceedings, it should be the writ of prohibition.
It is corrective in nature.
It is preventive in nature.
The presence of an alternative remedy may be more relevant in the case of certiorari as it would be preferable to quashing the entire order by an inferior court.
The presence of an alternative remedy is not an absolute bar on the writ of prohibition.
Conclusion
The writ of certiorari has been used by the Supreme Court and the High Courts to quash the orders passed by the lower courts when they have overstepped their jurisdiction, violated the principles of natural justice, or have made an error of law. The courts have clarified the requirements in a plethora of judgments. The writ jurisdiction falls in Article 32 for the SC and Article 226 for the HC. The writ of certiorari can also be found in other countries, more or less in similar forms. Certiorari and prohibition run along very similar lines. However, both of them differ substantially in their essence.
References
D.D. BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA (22nd ed. 2011).
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This article is written by Preetham Kumar pursuing an MBA with a Specialisation in Data Protection and Privacy Management (From the Swiss School of Management). This article has been edited by Zigishu (Associate, Lawsikho).
“I dream of a Digital India where cyber security becomes an integral part of our National Security.”
~ Narendra Modi, PM, India
Information exchange and data security are two sides of the same coin. One cannot go ahead without the other. IT or Information Technology, over time, has transformed into a superpower and is a globally accepted phenomenon. Today, Data and Technology are intangible assets affecting all fields (finance, economics, politics, etc.,) that run a country either directly or indirectly. In a country like India, information exchange is even more important given the advancements and pace at which everything is going. The massive explosion of data, although a boon, can turn into a bane if there are not enough security measures in place to protect this outburst of data.
India’s approach towards digital transformation
The government of India has acted in many ways to formulate and streamline the management of data and its privacy, both directly and indirectly.
In 2015, the Government launched the Digital India Scheme with an intention to digitally empower society and transform India into a knowledge economy. It’s been six years and the digital transformation that was initially envisioned has had its hiccups due to lack of foresight and poor planning.
Then came 2016, Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits, and services) Act. The data collected by the Unique Identification Authority of India (UIDAI), a statutory authority established in January 2000, under the jurisdiction of the Ministry of Electronics and Information Technology, was provisioned under this Act of 2016.
In the most recent times, in December 2019-2021, the Personal Data Protection Bill 2019 (PDP Bill 2019) was drafted by the Ministry of Electronics and Information Technology. The Bill covers mechanisms for the protection of personal data and proposes the setting up of a Data Protection Authority (DPA) of India for the same. Further, it aims at providing a comprehensive framework for personal and non-personal data.
All these and more rules and regulations deal with data collection, management, and privacy aspects related to it. Every Bill or Act in succession to each other was drafted or amended to be better than its predecessors. Although the attempt is sincere in many ways, it digresses from the entire crux or importance of data utility end to end. Data privacy, at its core, is not as simple as merely protecting data by encryption per se, it’s about understanding the importance of different sets of data, what it can do, what powerful insight it can draw, and most importantly, if it leaks or falls into the wrong hands, what is the impact it can create. Answering all these questions will formulate a better framework around data privacy policies.
Another core problem that our existing rules and regulations undermine or hardly address is the concept of “consent from the data subjects.” When a citizen’s data is collected, he should consent to it, he should know what his rights are, he should know the purpose of collection and most importantly, should be given the right to opt-out of the whole program or procedure if he chooses to. This is currently a sleeping topic in all acts and bills.
Data, a matter of national security – a ‘Riddled Approach’ so far
In many ways these Bills, Acts, provisions introduced by the Government are commendable. The aims and objectives drafted within them look comprehensive. But the question is about their execution and success rate. And sadly, the answer struggles to skew towards a positive note.
For instance, issuing of UID or Unique Identification started in 2009 onwards under the name Aadhar ID by UDAI. The collection of data for an ID included submission of biometric details, demographic and profile-based information by the citizens in India. With time, today, almost 90% of Indians have an Aadhar card because of an activity that lasted over 10 years. In this duration, the committee had to deal with deduplication of IDs, iterate on security infra, and had to cater to many other needs. The primary intention of introducing an ID like this was to empower the poorer citizens of India in accessing financial necessities – loans, bank accounts, etc., easily. Earlier, a poorer man had to fill out lengthy forms, go through lengthy procedures, authentication processes, and so on if he wished to get a loan. The probability of his application being rejected was higher due to incomplete information that was either lost in translation or was not addressed in a timely manner. Now that he had an Aadhar, the lengthy, never-ending process was no longer required. He was able to get a loan sanctioned in a matter of a few hours. This indeed looks like a boon – something that saves a great deal of time and money.
Fast forward many years: Aadhar now, was pushed to be used as an identity card for almost every application or approval procedure. The rule was not limited to him or people like him anymore; rather every citizen was encouraged to use it at any/every place that required authentication or ID proof. Although this insight again is a success snippet, unintentionally it is also an alarming revelation of the massive volumes of data the government of India has on its citizens. From the beginning there existed a fundamental flaw in the process that was ignored. I,e., No citizen had freely consented to their personal data collection. In fact, no one realized that such data is classified as sensitive and needs consent for collection in the first place. This was rather a mandated act than a consensual one.
Today, since everyone is talking about data privacy, the underlying question or debates around draft/bill were also around “why do we need one single ID like Aadhar which is linked to almost everything a citizen interacts within his network (bank, place of work, his residence, his verification at many places)?” and “why doesn’t the bill, although in time will seek legislative powers, not say anything about its security?” Besides, India already has many different databases for nuanced purposes. For example, the government has a database on BPL (Below Poverty Line) cardholders. Why does it have to be substituted with something like Aadhar? Or why should a BPL card be linked with Aadhar? These are some fundamental questions that the bills at the moment do not address. Some even argue that this scheme of data collection is a matter of national security and will someday result in a draconian rule which can be used to influence political and religious sentiments.
An alternative compliance framework
It’s already clear that India has miles to go in terms of figuring out what would work the best for a country like ours, especially in a country where Data-Privacy is not understood correctly. Nevertheless, India has made and is making many attempts to imbibe legislative powers to these acts and rules. But at the same time, it might be a good idea to create awareness among citizens about data privacy, rights, framework, etc.
Data protection in India is currently governed by the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“Data Protection Rules”) notified under the Information Technology Act, 2000 (“IT Act”).
Also, the Bureau of Indian Standards (“BIS”) issued new standards for data privacy assurance i.e. the IS 17428. It is intended to provide a privacy assurance framework for organizations to establish, implement, maintain and continually improve their data privacy management system. It is a certification for organizations to assure their customers and employees of their privacy practices and can be strategically used as a differentiator amongst market competitors. BIS is a national standards body constituted to regulate standardization, conformity assessment, and quality assurance of goods and services in India.
To ensure data privacy assurance to individuals and to help the organizations who process data, the Bureau of Indian standards has published two Indian Standards:
IS 17428 (Part 1) Data Privacy Assurance Part 1 Engineering and Management Requirements
sets forth Engineering and Management Requirements (“IS Requirements”) which lay down basic requirements of engineering design and information management and are mandatory in nature; similar to IS/ISO/IEC 29100: 2011 Information Technology — Security Techniques — Privacy framework
IS 17428 (Part 2) Data Privacy Assurance Part 2 Engineering and Management Guidelines sets forth Engineering and Management Guidelines (“IS Guidelines”) which provide detailed practices that aid in implementing these requirements and are suggestive in nature. Similar to IS/ISO/IEC 27001: 2013 Information Technologies — Security Techniques — Information Security Management Systems — Requirements.
Salient features of IS 17428
Defines keywords such as data controller, data processor, personal information, sensitive personal information, processing, consent for an organization to adequately identify its role and responsibilities. With the aid of these definitions, an organization would need to assess the role that it plays, the nature of the data being processed, and to whom the data is being shared.
The organization must incorporate certain engineering and design requirements at the time of the development life cycle of any product, service, or solution. These requirements include:
The organization’s privacy requirements considering the applicable jurisdiction;
Verification and testing of applicable data privacy control prior to development and at regular intervals.
The organization must also establish certain privacy management processes/functions such as:
The nature of personal information and outsourcing policies;
Defining its structure, responsibilities, accountability, communication, and governance systems;
Inventory and flow of such information;
Implement privacy policies;
Record logs and evidence and determine the retention period of the data;
Establish a privacy impact assessment methodology;
Setup a grievance redressal mechanism to identify and publish the contact information of the grievance officer, as well as set up complaint filing and escalation procedures;
Upskill the relevant staff of the organization involved in handling personal information
Conclusion
Managing operations in the most populated economy on the planet are no joke, and one single approach will definitely not fit in the existing scenario to see it succeed. Although a lot of the Acts, Bills, Committees, etc., came into existence over 20 years, the processes are yet to reap the benefits they initially set out to seek. Data privacy in India is at its nascent stage. Simply put, it’s at the very first step of the entire data cycle.
In the grander scheme of things, understanding the power of data is where the true strength lies. Before it is too late, the country should be open to adopting western or European data compliance models to manage processing activities. Data privacy and protection policy is a strategic and continuous process. The sooner we start, the less hassle we face.
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This article is written by Shivi Khanna, a student of the School of Law, Sushant University, Gurgaon. This article is an attempt to examine and understand the key terms described in the interpretation clause i.e., Section 3 of the Indian Evidence Act, 1872.
Table of Contents
Introduction
The primary objectives of the law of evidence are to aid the courts in ascertaining the truth, to prevent inquiries from becoming drawn-out and prolonging the judicial process, and to ensure that judges do not grow confused or muddled due to irrelevant or inconsequential evidence. The origin of the law of evidence in India can be traced to the concepts enshrined in English law. The Indian Evidence Act, 1872 (henceforth referred to as the Act), which governs the rule of law of evidence in India is not exhaustive, therefore, English law can be used as a reference while interpreting the provisions of the aforementioned Act. However, principles of English law inconsistent with the Act cannot be applied.
Evidence which does not fall under the Act, is not admissible in court, even if it is the key to determining the truth of the matter. Furthermore, the parties cannot opt-out of following the provisions of the Act through means, such as contracts, nor do courts have the power to neglect relevant facts using the pretext of conforming to public policy.
Evidence law is supported by three main pillars: 1) Evidence should only consist of matters in issue; 2) Hearsay evidence does not have evidentiary value; 3) There should be an effort to provide the best evidence in all cases.
Section 3 of the Indian Evidence Act, 1872 is an important clause that provides the definition of important terms that appear throughout the Act. Section 3 clearly defines what constitutes a court i.e., who is authorised by this Act to collect evidence and reach a decision. Section 3 also states what is a fact, what is relevant, the different types of evidence, documents, how a fact is proved, disproved and not proved. The significance of Section 3 lies in how it sets up the reading of the rest of the Act, and the interpretation of evidence law according to it.
Section 3 of the Indian Evidence Act, 1872
Interpretation clause
Section 3 of the Indian Evidence Act, 1872 contains details on the interpretation of the terms – Court, Fact, Relevant, Facts in issue, Document, Evidence, Proved, Disproved, Not Proved, India – unless the context implies a contrary intention.
Court
‘Court’ consists of all judges and magistrates, and any person who is legally authorised to take evidence, with the exception of arbitrators and tribunals. Arbitrators and tribunals function on the basis of natural justice and are authorised to collect evidence, however, they do not come under the definition of “Court” within the meaning of this Act.
It is interesting to note that the 69th Law Commission Report recommended making a comprehensive definition of “Court” to avoid confusion. The Law Commission’s definition included civil, criminal, revenue courts and tribunals within the definition of “Court.” However, the definition of “Court” has not been amended to include revenue courts or tribunals till date.
In Brajnandan Sinha v. Jyoti Narain (1956), the Supreme Court delved into the definition of “Court” and came to the conclusion, that such a body or forum must be capable of making a decision or judgement which is final and authoritative in nature. This is the basic quality of a judicial pronouncement, and a salient characteristic of a “Court.”
Fact
‘Fact’ may be defined as:
Any thing, state of things, relation of things, that can be sensed (external fact).
For instance –
When certain things are placed in a certain way/pattern, it is a fact.
When a person sees or hears something, it is a fact.
The words spoken by a person, is a fact.
Any mental condition of which any person is conscious (internal fact).
For instance–
The opinion of a person.
The intentions of a person.
A person acting in good faith/fraudulently.
The deliberate choice of a person’s words.
Feeling a certain sensation at a certain time.
A person’s reputation.
Physical and psychological facts
Physical facts are those that can be discovered through the use of a person’s senses. For instance, observing the arrangement of certain objects, hearing the distinct sound of a horn, etc. However, the law of evidence is not restricted to physical facts “only”. Beyond, physical facts lie psychological facts which are based on the mental condition of a person. For instance, when a person commits fraud, his intention to deceive the other party is also a fact.
Positive and negative facts
When the existence of a situation or state of things can be confirmed, it is a positive fact. For instance, in a property dispute case, the deceased left a will to bequeath his property. The existence of the will is a positive fact. On the other hand, the non-existence of a situation or state of things is a negative fact. For instance, the lack of a weapon at the scene of a murder.
Facts in issue
Facts in issue are those facts that are sought to be proved and are also called “principal facts” or factum probandum. When the rights and liabilities of the parties are dependent on a fact that is in dispute or controversy, that fact is in issue.
For example, ‘X’ is accused of defaming ‘Y’ through libel. The possible facts may be in issue: that ‘X’ caused damage to ‘Y’s reputation; ‘Y’s business suffered losses due to ‘X’s defamation; ‘X’ wrote and published defamatory statements about ‘Y’ out of malice, etc.
Facts in issue determine the arguments of both the plaintiffs and defendants. The parties must prove that the facts in issue lean toward their pleadings in order to sway the court’s decision in their favour. The substantive law applicable to the offence determines what constitutes the facts in issue. In criminal cases, facts in issue depend on the contents of the charge-sheet, whereas, in civil cases the framing of issues takes place.
Facts in issue form the foundation upon which the parties argue their case, and when these facts are proved to the satisfaction of the court, a decision can be made.
Relevant facts
Relevant facts are those which are needed to prove or disprove a fact in issue. Relevant facts are also called evidentiary facts (factum probans). These facts are not in issue – they are not the main issue of controversy or dispute between the parties. Rather, relevant or evidentiary facts dig deeper into the context or circumstances of the facts in issue, and help to draw inferences about them.
Admissions and confessions, statements by those who are not witnesses, precedents from case laws, statements made under special circumstances, facts which form a chain of logic with facts in issue, third party opinions, and evidence as to the character of a person – all these fall under the category of relevant facts.
Relevant facts indicate a relationship between facts, which according to a sound chain of logic and common sense, either prove or disprove the existence of each other. Relevant facts act as supplementary material to sway the opinion of the court in favour of the party making the argument with respect to the facts in issue.
For example, ‘A’ is accused of committing theft. A relevant fact would be that ‘A’ has had a history of pickpocketing and shoplifting, and has been prosecuted before. The fact in issue would be – whether A has committed theft.
Document
A document within the meaning of this Act, is any writing, marks, figures inscribed on a surface for the purpose of recording a matter. In R v. Daye (1908) the Court observed that the notches made by bakers and milkmen on wood to indicate the amount of bread or milk supplied are also documents. The surface upon which the writing or marks are inscribed is not restricted to paper. Writings, words in photographs, maps, plans, inscriptions on metallic surfaces – all these fall within the category of document.
Evidence
The origin of the term ‘evidence’ can be traced to the Latin words “evident” or “evidere” – meaning to discover, determine or arrive at the truth. Evidence also implies – to make clear, certain, notorious. Evidence plays a key role in the judicial process by supporting or building an argument before the court, with respect to proving or disproving a matter of fact or controversy, between the parties.
Oral evidence
Covered in detail under Section 59 and 60 of the Act, oral evidence can be defined as the statements made by witnesses which are allowed or needed by the court. These statements by witnesses help determine the matter in issue or controversy between the parties. When a witness orally makes a statement it is regarded as oral evidence. Witness testimony has also been called ‘living proof.’ However, in the cases where a witness is unable to speak, then communication through signs or writing is also admissible as oral evidence.
Usually, all evidence that is not written in documents is oral evidence and is sufficient to prove a fact or title. However, according to Section 60, in the presence of both documentary evidence and oral evidence, the former takes precedence.
Oral evidence must be direct i.e., the witness making the statement must have seen or heard, or experienced the event first-hand.
Hearsay evidence
Whenever information passes through indirect channels, such as rumours or gossip, it can be termed as ‘hearsay.’ Hearsay evidence is that information which has not been obtained through direct means, and has not been experienced by the witness firsthand. Hearsay evidence is not admissible in court and does not hold evidentiary value.
However, hearsay evidence is admissible in the case of the following exceptions:
A statement made by someone other than a witness becomes admissible when it is part of the transaction in question according to the principle of res gestae in Section 6. For example, an hour before a murder took place, ‘A’ heard ‘B’ making death threats to the victim inside the victim’s house. B’s death threats before the murder were part of the transaction in question as the murder took place an hour later.
The testimony of a witness to whom a confession or admission was made outside the court.
Dying declaration made under Section 32(1) of the Indian Evidence Act, 1872.
Entries in books of account in the course of business under Section 34; entries in public registers under Section 35.
Under Section 60, in the absence or death of experts, their thoughts and words expressed in their treatises and books can be counted as evidence.
When a slanderous statement is made in the presence of a witness, the witness can testify as to the fact that the statement was made.
Documentary evidence
Documentary evidence is covered by Section 61-90 of the Act. All documents submitted to the court for scrutiny fall under the umbrella of documentary evidence. Documentary evidence holds precedence as compared to oral evidence, in terms of both credibility and permanence. Documentary evidence is also called ‘dead proof.’ Due to the improvement in technology and the coming up of legislation such as the IT Act, 2000, electronic evidence has also been included within the purview of documentary evidence.
Documentary evidence can be of two types: 1) primary evidence, and 2) secondary evidence.
Primary evidence
Primary evidence includes the original document; a document executed in separate parts; a document that has been manufactured or produced by one uniform, mass process (for example, photographs, lithographs, etc).
Secondary evidence
Secondary evidence includes certified copies of the original document. Also, when original documents are used to make a large number of copies through a mechanical process, for example, by printing, photocopying, etc.
Classification of evidence
Evidence can be classified into various types and is not restricted to a narrow, rigid definition.
Direct and circumstantial evidence
Direct evidence directly addresses the fact in issue or the matter of controversy between parties. It includes both the statement of witnesses and documentary evidence. For example, ‘A’ witnessed ‘B’ killing ‘C’ with a knife. ‘A’s witness testimony of the murder of ‘C’ by ‘B’, is direct evidence. Direct evidence takes precedence over circumstantial evidence. Direct evidence depends on the credibility of the witness testimony and the documents submitted.
Whereas, circumstantial evidence is based upon relevant facts that prove or disprove the fact in issue. Circumstantial evidence must prove the guilt of the accused beyond doubt if it is to be admissible in court. Circumstantial evidence takes the indirect route to prove or disprove the fact in issue, however, it must not be confused with secondary evidence.
Real evidence consists of the assumptions or conclusions the court draws from the information available to it. For example, DNA found at the crime scene; the nervous behaviour of the accused before the judge; fingerprints found on the murder weapon, etc. Personal evidence is obtained through human agency.
Original and unoriginal evidence
Original evidence is firsthand evidence, which a witness has personally experienced through his own senses. Whereas, unoriginal evidence is secondary or hearsay and has been learned indirectly through a third party.
Substantive and non-substantive evidence
Substantive evidence is that evidence which does not need to be corroborated and serves to prove or disprove a fact in issue. Substantive evidence can be both circumstantial or direct. Non-substantive evidence does not hold enough weight by itself and is not sufficient to prove or disprove a fact.
Positive and negative evidence
Positive evidence proves that an event has taken place or that a certain fact exists. Whereas, negative evidence proves that a fact does not exist.
Prosecution evidence and defence evidence
Evidence used by the prosecution to prove the guilt of the defendant or accused is called prosecution evidence. On the other hand, the evidence used by the defendant to prove his innocence is called defence evidence.
Proved
When the court believes beyond a reasonable doubt in the existence of a certain fact or believes that a reasonable man would be likely to act in a certain manner on the basis of his belief that said fact exists, then the fact is said to be “proved.”
Disproved
When the court believes beyond reasonable doubt that a fact does not exist, and that a reasonable man would upon knowing the details of the case, act on the belief that the fact does not exist, the fact is said to be “disproved.”
Not proved
A fact is said to be “not proved” when it is neither proved nor disproved, and a reasonable man would not believe in the existence or the non-existence of the fact.
Conclusion
The law of evidence is a key tool to aid the judiciary in weaving and sorting through the vast information each case presents. Only evidence which falls under the Indian Evidence Act, 1872 is admissible and has evidentiary value. This prevents the court from wasting its time and helps the court in quickly gaining access to the relevant and correct evidence needed to determine the outcome of a case. Section 3 of the Indian Evidence Act, 1872, is an interpretation and definitions clause that describes key terms and concepts used in the Act, and in deciphering evidence law.
Ashok Jain, Law of Evidence, Ascent Publications, 2014
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article is written by Neha Dahiya, a law student at Dr. B.R. Ambedkar National Law University, Sonipat. This article explains all the aspects of Section 114 of the Indian Evidence Act; and the classification, as well as, differences between the different types of presumptions.
It has been published by Rachit Garg.
Table of Contents
Introduction
Section 114 of the Indian Evidence Act, 1872 empowers the courts to presume the existence of certain facts taking into consideration the common course of natural events, human conduct, and public and private business with relation to the facts of the case at hand. The presumption is an important legal tool that allows the judges to draw out inferences from the shreds of evidence and facts available unless they can be disproved.
This article talks about Section 114 and explains the scope and extent of legal presumptions, as outlined in the Section.
Section 114 of the Indian Evidence Act
Section 114 outlines the powers of the courts in terms of presuming certain facts that are likely to have happened, with due consideration being given to the ‘common course of natural events, human conduct and public and private business’, as connected to the facts of the specific case.
As per the illustrations mentioned, the court has the liberty to presume the following:
If a person is found in the possession of stolen goods immediately after the theft has occurred, then that person is presumed to be either the thief or has received those goods with the knowledge that they are stolen, unless he can prove otherwise.
But the court must take into consideration all the factors. Unexplained possession of the stolen goods may create a strong presumption. But the fact of recovery must be proved beyond a reasonable doubt. The burden of proof lies on the accused to prove his innocence.
An accomplice is presumed to be unworthy of credit unless he can be corroborated in a material particular.
An accomplice is someone who is actively involved in the commission of a crime or the guilty associate. Corroboration can flow out from direct, indirect or circumstantial evidence. Evidence of a co-accused does not carry much weight against the accomplice unless it can be corroborated by any other evidence.
A bill of exchange, when accepted or endorsed, is presumed that was accepted or endorsed for good consideration.
A bill of exchange is a formal document or order in writing that binds one party to another to pay a fixed amount of money when demanded or at a pre-fixed date. This presumption assumes that all things are done the way they ought to be. Thus, when a bill of exchange is endorsed or accepted, it is done for good consideration. But the contrary could also be true and the court must look into all the factors before arriving at the final conclusion.
When it is shown that a thing or state of things has been in existence for a period shorter than the one within which such things or state of things usually stop existing, it is presumed that it is/are still existing.
It could be illustrated by the example that when an ancestral property has been in the family for generations, it will be presumed that it will continue to pass on to the coming generations unless the opposite is proved in the court of law. It implies that when a thing has followed its natural course for a considerable period of time, it is presumed that it will continue to do so unless evidence is presented that suggests the contrary.
It is to be presumed that all the judicial and official acts prescribed are performed regularly.
This presumption is similar to illustration (c) where it is presumed that the things prescribed are done in the right way and regularly. Thus, it is presumed that the judicial and official authorities have been doing the functions assigned to them regularly and correctly. For example, if a court has heard the case and given its judgment, it is presumed that it is done rightly. But the presumption can be rebutted by evidence that suggests that the work has not been done correctly or regularly.
It is presumed that in specific cases, the common course of business has been adopted as is usually done.
This provision can be better explained when read with Section 16 of the Indian Evidence Act. This Section talks about the importance and relevance of the natural course of business, whenever a particular act was done is in question. So when a letter that was dispatched was in question, the fact that it was put into the natural course of transmission is relevant. It is presumed that it will follow the common course of business as it is usually adopted.
If a piece of evidence could be presented but has not been presented, it is presumed that if presented, it would be unfavourable to the person who has been withholding it.
In this case, it is presumed that the person withholding the evidence does so because the evidence may be against him. For example, when the anti-adulteration authorities refuse to present the sample to be submitted, it can be presumed that there might be something in the sample that might provide evidence against them.
If a man refuses to answer a question, which he is not bound by law to do so, it is to be presumed that if it is answered, it would not be in his favour.
If the document creating an obligation is found in the hands of the obligor, then it is presumed that the obligation has been discharged.
But not in all the above-mentioned cases, the presumption can be accepted as being final. Court has to consider all the facts carefully to assess whether the illustrated maxims can be applied or not. It is explained by the following examples:
Where stolen money is found with a shopkeeper soon after it was stolen and he cannot account for its possession specifically, but it is in the usual course of business for him to receive money continually.
When a person A of good character is tried for causing a man’s death due to negligence in arranging certain machinery. Also, B, another person involved in the arrangement, of equally good character explains in detail what exactly was done and even admits the carelessness that caused the accident.
In another case, a crime is committed by several persons, and the three of them, i.e., A, B and C are caught at the crime scene. When investigated separately, all three give accounts that implicate D and these accounts are also corroborated with each other in such a manner that renders the previous concert highly improbable.
A bill of exchange was given by A, the drawer, a man of business to B, the acceptor who was a young and ignorant person, and completely under A’s influence.
In a situation where a river ran a certain course five years ago but is prone to changing its course due to recurrent floods since that time.
When a judicial act under scrutiny for its irregularity was performed under exceptional circumstances.
When it is in question whether the letter was received, it is shown that it has been delivered but the usual course is disrupted by some disturbances.
A man may refuse the presentation of documents bearing on a contract of minute significance in the case in which he is sued, as the presentation of documents might harm the reputation of his family or hurt their feelings.
A man may refuse to answer questions asked to him which he is not bound to answer as answering them might cause him a loss in matters that are completely not related to the present matter at hand.
The obligor might possess a bond, though it may have been acquired by theft.
In all the above-mentioned instances, it is shown that the validity of legal presumptions illustrated above can be questioned and they may not be the final conclusions.
Cases related to the validity of legal presumption under Section 114 of the Indian Evidence Act, 1872
This issue has been further clarified in a slew of several judgments decided by the courts.
It was held in Tulsa v. Durghatiya (2008 (4) SCC 520) that if the partners have lived together for a considerably long period as husband and wife, it will be presumed that they are married. But this presumption is rebuttable and the burden of disproving it lies on the person who challenges the validity of the legal origin of the marriage.
It was laid down in Lalta v. District IVth upper Distt. Judge Basti (AIR 1999 All 342), that the mere omission of the husband and wife relation from the family register is no clinching evidence to deny their relationship if there is oral and other reliable evidence satisfactorily proving that the couple lived together as husband and wife.
Supreme Court declared in Mukund alias Kundu Mishra v. State of Madhya Pradesh ((1997) 4 Supreme 359), that in a case where a person is found in the possession of stolen goods, it can not only be legitimately presumed by the court that he committed the robbery but also that the murder was committed by him.
This Section has placed discretionary powers in the hands of the court to presume certain facts from the existing circumstances of the case that can reasonably guide us towards a valid conclusion. It is pertinent to note that it is not mandatory to do so. Presumptions can be deduced from the prevailing facts and conditions, albeit not from other presumptions through logical reasoning and a balance of probabilities. Also, presumptions are conclusive evidence and must be made within the ambit permitted by law. They may be rebutted by the evidence produced by the person on whom the onus lies. It is on the court to carefully look through all the facts presented and take a reasonable and informed decision.
Main elements of forming a presumption
Broadly, the Section outlines three main elements of forming a presumption. These are-
Common course of natural events
A presumption must be such that it conforms to the natural course of events, depending on the facts and circumstances of the case.
Human conduct
It is the conduct that is natural to a human being, capable of rational judgment between what is right and wrong. The expression of the conduct could be positive or negative, characterized by the situation.
Public and private business
A presumption can flow out of the ordinary course of public and private business, where it is presumed that an event will take place as is regularly conducted.
Classification of presumptions
Broadly, the presumptions can be classified into two categories-
Presumption of Fact
Presumption of Law
What is presumption of facts
Also known as material or natural presumptions, presumptions of fact can be derived from the reasonable observation of the circumstances that flow naturally from the usual course of human conduct. They are based on circumstantial evidence wherein inferences can be drawn out from various facts of the case that make reasonable sense. They are generally rebuttable in nature.
When can the courts use presumption of facts
Instances, where natural presumptions or presumptions of facts can be used by the courts, are found in the following sections of the Indian Evidence Act.
Section 86 covers the presumption as to certified copies of foreign judicial records.
Section 87 includes a presumption in the matters of books, maps and charts.
Presumptions related to telegraphic messages are included in Section 88.
Presumptions as to documents that are purported or proved to be thirty years old are covered in Section 90.
Section 113A lays down the rule on presumption as to abetment of suicide by a married woman within seven years from the date of her marriage and that she was subjected to cruelty by her husband or his relatives in line with Section 498A of the Indian Penal Code.
Section 113B deals with presumption as to dowry death. In all of these instances, it is laid down that the court “shall presume” certain facts inferred from the given circumstances of the case. Also, these are considered to be valid unless challenged and proved to be wrong.
What is presumption of law
Presumptions of law include such inferences and conclusions that can be derived from the law itself. It is further classified into-
Rebuttable presumptions- These are such presumptions that can be inferred by the courts under the law, even though there may not be sufficient proof of believing it to be so. However, if sufficient evidence can be presented to disprove it, the court is bound to reject it.
Example: Under the law, a person who has not been heard alive for seven years or more by people who would naturally have heard of him is presumed to be dead by the law. However, the contrary can also be true and proved in court.
Irrebuttable presumptions- Also known as conclusive presumptions, they are considered to be final and irrebuttable by law, even though the facts could prove otherwise.
Example: A child below the age of seven is presumed to be incapable of committing a crime and understanding the consequences of his act. It is considered to be final and no evidence can be presented that can suggest otherwise.
When can the courts use presumption of laws
Examples, where courts can employ the usage of presumption of law, may include the following instances:
Presumption of innocence- A person is deemed to be innocent unless it can be proved with evidence that it is not so. Thus, the burden of proof lies on the person alleging the facts to be true and not on the one denying them. It was observed by the Supreme Court inthe State of Maharashtra v. Vasudeo Ramchandra Kaidalwar (1981 3 SCC 199) that the accused is always presumed to be innocent in a criminal trial until the prosecution can prove his guilt. Thus, the burden of proof always lies on the prosecution and never shifts.
Doli incapax- Mentioned in Section 82 of the Indian Penal Code, it lays down that no act committed by a child below the age of seven years is an offence. In the English case of Marsh v. Loader ( (1863) 14 CBNS 535), the accused was a child of below seven years and was caught stealing a piece of wood from the defendant’s premises. However, the child was discharged following the principle of doli incapax.
Presumption of death- As mentioned in Section 107 and 108 of the Indian Evidence Act, a person who has not been heard alive for seven years or more by the people who would have naturally heard of it is presumed to be dead by the law, unless it can be proved otherwise.
Birth of a child during marriage- Section 112 of the Indian Evidence Act states that any child born during the continuance of marriage between the mother and any man, or within 280 days after its dissolution is conclusive proof that the child is legitimate unless evidence can be presented to prove the contrary.
Can the courts use presumption of law and presumption of facts at the same time
Presumption of facts and law can be used at the same time and such presumptions are known as mixed presumptions. They are majorly used in the English law of real property but have a limited scope in Indian law. The Indian Evidence Act consists of numerous provisions that outline the use of presumptions of facts and law. At times, a presumption may be derived from another fact that can be disproved on evidence or can be conclusively taken to be true with no evidence admissible to disprove it. Thus, in certain instances, courts may need to employ both the presumptions together to reach a reasonable conclusion.
Difference between presumption of facts and presumption of law
Presumption of facts
Presumption of law
These presumptions are derived from the facts of the situation itself.
These presumptions are adopted by the courts as per the law, regardless of any evidence proving the same.
They are rebuttable and can be derived from any evidence presented to suggest the contrary.
They are of two types- rebuttable and irrebuttable. The latter cannot be disproved even by evidence suggesting the contrary, while the former can be.
Court has discretionary powers to presume or not to presume certain facts from the circumstances of the case.
Courts do not have any discretionary powers and they are bound by the law to do so.
Example: Presumption of foreign judicial records, presumption of books, maps and charts, etc.
Example: Doli incapax, presumption of innocence, etc.
May presume
“May presume” as mentioned in the first clause of Section 4 of the Indian Evidence Act is a discretionary power given to the courts. They may also be called presumptions of fact or natural presumptions. As per the Act, the court may presume a fact as to be true unless and until it is proved otherwise, or it may call for proof of it. Thus, ‘may’ here denotes a weaker form of presumption, i.e. it may or may not be presumed to be so.
Example: The court may or may not presume that the judicial and official acts are performed regularly.
InHans Raj v. the State of Haryana (MANU/SC/0174/2004), the question was raised concerning the presumption mentioned under Section 113A, which is regarding the abetment of suicide of a married woman. The Court here clarified that the presumption mentioned in this Section is a ‘may presumption’, i.e. it is dependent upon the discretion of the court. The presumption cannot be adopted merely on the basis of the fact that the suicide was committed within seven years of marriage and had been subjected to cruelty by her husband. It does not automatically give rise to the presumption of abetment. It ‘may’ be strengthened by the circumstantial evidence. The court must look into the circumstances and the words ‘the other circumstances of the case’ in the Section denote the need for the court’s supervision in deciding whether the presumption can be adopted in the case or not. It was observed that there must be a cause and effect relationship established between cruelty and suicide, and then the presumption may be raised. This is the essence of the ‘may presumption’ where the court’s discretion depending upon the particular facts of the case determine whether the presumption can be raised or not.
Shall presume
Covered by the second clause of Section 4 of the Act, shall presumptions are also called the presumptions of law. They suggest a strong assertion that does not give discretionary powers to the court. Instead, it binds the court to presume a fact mandatorily, though it may be rebutted. The Act prescribes that the court ‘shall’ presume a fact as proved, unless and until it is disproved.
Example: The court ‘shall’ presume a person to be dead if he has not been heard alive for seven years or more by persons who would have naturally heard of it, unless and until it can be disproved.
InMaya Devi and Ors. v. the State of Haryana (MANU/SC/1398/2015), the Court held that Section 113B, which is related to the presumption of dowry death, is a ‘shall’ presumption. Thus, it leaves the court with no other option but to presume that when the ingredients of Section 113B are fulfilled by reasonable and reliable evidence, such death ‘shall’ be deemed to be dowry death caused by the husband or his relatives. In the eyes of the court, the redeeming factor here is that this presumption is rebuttable. The accused must produce proof of his innocence and that the deceased’s death was caused by natural factors in order to rebut the presumption. Therefore, it is a ‘shall’ presumption where the court is obliged to presume it in the presence of ingredients determined by the provision. But it is rebuttable by presenting the evidence supporting the contrary.
Conclusive proof
Conclusive proofs are considered as final and cannot be rebutted by any evidence suggesting the contrary.
Example: Section 113 of the Indian Evidence Act prescribes that when a notification is issued in the Official Gazette regarding the cession of territory to the native state, it is considered as conclusive proof of a valid cession that occurred on the mentioned date in the notification. No evidence can disprove this final conclusion.
In the case ofSmt. Sonawanti and others v. the State of Punjab and others (MANU/SC/0034/1962), the Apex Court dismissed the distinction that is often established between ‘conclusive proof’ and ‘conclusive evidence’. It was observed that it is often contended that where a fact has been declared to be ‘conclusive proof’ by the law, then the court is precluded from considering any evidence suggesting the contrary once such a conclusion is established. Thus, where a fact has been made out as conclusive proof of another fact and it is established to be true, then the court is supposed to proceed further considering it to be final. On the other hand, where the law makes a fact the ‘conclusive evidence’ of another fact, then the possibility of presenting another evidence proving the contrary is not shut out. However, this argument was rejected and it was declared that there was no difference between ‘conclusive proof’ and ‘conclusive evidence’, both suggesting a final conclusion to be adopted by the court.
Tracing the difference between may presume, shall presume and conclusive proof
May Presume
Shall Presume
Conclusive Proof
Mentioned in the first cause of Section 4, may presumptions provide a discretionary power to the courts to presume a fact as true unless proven otherwise, or call proof for it. It is a presumption of facts and rebuttable.
Mentioned in the second clause of Section 4, it puts an obligation on the courts to presume a certain fact to be true, unless and until it can be disproved by substantial evidence. It is presumption of law and compelling.
Conclusive proofs provide no room for disproving a fact, even if the evidence suggests the opposite. Whenever it is prescribed by the law, the courts are bound to treat it as the final conclusion with no need for any circumstantial or strong evidence.
Conclusion
Legal presumptions have been of tremendous help in promoting legal developments. They have helped in deducing certain facts from the circumstantial evidence present and made it easier for the courts. Section 114 of the Indian Evidence Act provides the right impetus in this direction. It outlines the powers of the courts to make certain presumptions based on the facts of the case flowing out from the usual course of things.
Moreover, the Section relies on natural events, human conduct and public and public and private business. It draws out natural facts from them and declares them as ‘presumptions’ to be adopted by the court, though they are mandatory or discretionary. Thus, the Section lays down the foundation of presumptions that can be found dispersed among other laws and used from time to time.
References
V.D. MAHAJAN, JURISPRUDENCE AND LEGAL THEORY (5th ed. 1987).
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This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of domestic violence helpline numbers, counselling and how to report such related cases smoothly.
Domestic violence is defined in a way that is related to or overlaps with two other concepts, namely, violence against women and domestic violence or inter-family violence. As women are overrepresented in domestic violence from a victimological standpoint, the factors relating to violence against women take precedence in official discourses. According to the Beijing Platform for Action, which was adopted at the Fourth World Conference on Women in 1995, violence against women is defined as “any act of violence based on gender difference that results or may result in physical, sexual, or psychological injury or suffering for women, including threats related to such acts, coercion, or arbitrary deprivation of liberty, whether in public or private life.” This article aims to serve its readers as a self-help guide thereby providing helpline numbers, the process of reporting cases, laws available as safeguards, the possible consequences of filing a domestic violence case and the immense role of the counsellor in restoring mental peace and physical well being.
What is domestic violence
Domestic abuse, often known as “domestic violence” or “intimate partner violence,” is a pattern of conduct intended to establish or retain power and control over an intimate partner in any relationship. Abuse is defined as physical, sexual, emotional, financial, or psychological acts or threats against another individual. Any behaviour that frightens, intimidates, terrorises, manipulates, hurts, humiliates, blames, injures, or wounds someone falls under this category. Anyone of any colour, age, sexual orientation, religion, or gender can be a victim of domestic violence. It can occur within a range of relationships including couples who are married, living together or dating. Domestic violence affects people of all socioeconomic backgrounds and education levels.
Domestic violence has specific characteristics that distinguish it from other sorts of violence that occur accidentally or in other situations, as well as a unique dynamics or manifestation cycle that is determined by the type of relationship between the victim and the offender. It is a major phenomenon that affects women primarily, and is a communitarian, social, and public health issue. The characteristics are:
The instrumental character: The aggressor exerts control over the victim, and this conduct becomes functional and sustains if the desired outcome is achieved.
The deliberate character: It is generated with the goal to control and dominate, to retain power, an intention that the doer does not admit but can be identified by the effects.
The acquired character: Violence is learned, not intrinsic.
Terms related to domestic violence that you must know
Survivor: This term is referred to by counsellors to address a person who has suffered or lived through domestic violence. This term is used as a better alternative of the word ‘victim’ so as to offer a liberating atmosphere for the aggrieved party to open up before the counsellor freely.
Perpetrator: The person who is committing the abuse is referred to as the perpetrator.
Counselling: Counselling can be referred to as a structured conversation between two or more people that aim to assist one of the participants to work through the problems he or she is facing or encountering in his or her personal life.
Empowerment: Empowerment can be best defined as the process by which an individual gains inner strength to combat victimisation.
Types of domestic violence
Physical and sexual assaults, as well as threats to conduct them, are the most visible types of domestic abuse and violence, and they are frequently the activities that alert others to the situation. However, when the abuser’s habitual use of other abusive behaviours is reinforced by one or more instances of physical violence, a bigger system of abuse emerges. Physical assaults may only happen once or twice, but they induce dread of future violent attacks and allow the abuser to dominate the victim’s life and surroundings. The Power & Control wheel is a particularly useful tool for comprehending an abuser’s entire pattern of abusive and violent actions, which he or she employs to create and retain control over his or her spouse or any other person.
Emotional abuse
Constant criticism, disparaging one’s talents, name-calling or other verbal abuse, harming a spouse’s connection with the children or refusing to let a partner visit friends and relatives are all examples of emotional abuse. You may be in an emotionally abusive relationship if your partner:
Calls you names, insults you and criticises you all the time.
Acts jealous or possessive because your partner doesn’t trust you.
Attempts to cut you off from your family or friends.
They keep track of where you go, who you call, and how you spend your time.
They don’t want you to go to work.
Controls or refuses to share financial resources.
Withholds affection as a kind of punishment.
It is expected of you to get permission from your partner.
Threatens to hurt you, your children, your family or your pets.
Humiliates you in every way possible.
Physical abuse
Hitting, kicking, burning, grasping, squeezing, shoving, slapping, hair-pulling, biting, withholding medical treatment or forcing to drink and/or use drugs, or employing other physical force are all examples of physical abuse. You may be in a physically abusive relationship if your partner:
When enraged, causes damage to property (throws objects, punches walls, kicks doors, etc.).
You are pushed, slapped, bit, kicked, or choked.
Leaves you in a risky or unfamiliar environment.
By driving carelessly, your partner scares you.
Threatens or harms you with a weapon.
You are compelled to leave your house.
Keeps you trapped at home or prevents you from escaping.
Stops you from calling the cops or seeking medical help.
Your partner tries to harm your children.
In sexual situations, physical force is used.
Sexual abuse
Sexual abuse involves forcing a partner to take part in a sex act when the partner does not consent. You may be in a sexually abusive relationship if your partner:
Accuses you of cheating.
Your partner wants you to dress in a sexually suggestive manner.
Insults you sexually or refers to you as a sexual object.
Has pushed or tricked you into having sex or engaging in sexual activities.
During intercourse, your partner holds you down.
When you are ill, exhausted, or beaten, your partner demands sex.
During intercourse, your partner hurts you with weapons or items.
Forces you to be involved sexually with other people.
Ignores your sex-related sensations.
Psychological abuse
Intimidation, threats of physical damage to self, partner, or children, destruction of pets and property, “mind games,” or forced isolation from friends, family, school, and/or employment are all examples of psychological abuse.
Stalking
Stalking is defined as any pattern of action that is meant to harass, irritate, or intimidate the victim and serves no legitimate purpose. Repeated phone calls, unwanted letters or presents in the mail, and monitoring at work, home, and other areas that the victim is known to frequent are all examples of stalking activities. In most cases, stalking becomes more serious. This offence comes under psychological abuse as often one partner stalks the other on grounds of trust issues thereby leading to troubles in their relationship.
Financial or economic abuse
Financial or economic abuse include keeping entire control over financial resources, restricting access to money, and/or limiting attendance at school or work in order to make or attempt to make a person financially dependent.
Common queries surrounding domestic violence
You being a reader of this article can have several queries surrounding the subject matter of domestic violence. Many of such queries have been discussed in detail in this article. Under this heading, some of the common questions related to domestic violence have been addressed.
Who can experience domestic violence
The answer to this question is anyone can experience domestic violence.
Under the Act of 2005, an aggrieved wife or female residing in a live-in relationship can lodge a complaint against a relative of the husband or male partner.
If the aggrieved party is not a woman, the individual might file a complaint under the Indian Penal Code, 1860.
Does domestic violence happen in gay/lesbian/bisexual relationships
Yes, domestic violence can happen in gay/lesbian/bisexual relationships as well. A transwoman is covered by many of the protections given to women under the criminal law as per a Delhi High Court judgment.
How common is domestic violence in India
In India, domestic violence is deeply rooted and commonly practised. According to the National Crime Records Bureau (NCRB), Section 498A of the Indian Penal Code, 1860 is used in the bulk of the 4.05 lakh instances involving crimes against women. One in three women in India is likely to have been subjected to intimate partner violence of a physical, emotional, or sexual nature.
What you should not do to a victim of domestic abuse
While there is no right or wrong way to assist a domestic abuse victim, you should avoid doing anything that could exacerbate the situation. Here are some ‘don’ts’ to stay away from:
Assault the abuser. Concentrate on the conduct rather than the personality.
Blaming the victim is precisely what the abuser does.
Undervalue the threat to both the victim and yourself.
Any assistance that you promise but don’t deliver is a waste of time.
Support on a conditional basis.
Provoke the abuser in whatever way you can.
Apply pressure on the victim.
Give up easily on the victim and not be patient if they don’t want to open up right away.
Make things as tough as possible for the victim.
Can men also experience domestic violence
Yes, men can also experience domestic violence. The criminal law on assault is available for men. However, since they are not as category victims of specific and widespread historic discrimination no special legislation exists to protect them against domestic abuse, although, the same is suggestive on the part of the legislatures owing to social progress. The sexual assault of both boys and girls is covered under Protection of Children from Sexual Offences Act, 2012.
When should you call the police for your friend who’s a victim of domestic violence
If you suspect that there is active violence, dial 100 right away.
Call the cops if you hear or see someone being physically abused. The most efficient strategy to remove the immediate risk to the victim and their children is to call the police.
There are no circumstances under which children should be exposed to violence. Take whatever steps are required to guarantee their safety, even if it involves going against the victim’s or abuser’s desires. Calling child protective services is not the problem, rather it is part of the solution in actively aggressive circumstances.
Recognising the signs of domestic abuse
Recognising the signs of domestic abuse is necessary in order to deal with the same and resolve it rationally. The signs of domestic abuse can be categorised into two broad heads, namely, what your partner does and what you feel because of your partner’s actions.
Actions of partners contributing to domestic abuse
Embarrass or make fun of you in front of your friends, family or relatives?
Tell you that you are nothing without them?
Treat you roughly, grab, push, pinch, shove or hit you?
Put down your accomplishments?
Make you feel like you are unable to make decisions?
Call you several times a night or show up to make sure you are where you said you would be?
Blame you for how they feel or act?
Pressure you sexually for things you aren’t ready for?
Use intimidation or threats to gain compliance?
Use drugs or alcohol as an excuse for saying hurtful things or abusing you?
Try to keep you from leaving after a fight or leave you somewhere after a fight to “teach you a lesson”?
Make you feel like there is “no way out” of the relationship?
Prevent you from doing things you want to do like spending time with friends or family?
Common feelings as a result of partner’s abusive actions
Do you ever become worried about how your spouse may act?,
Make excuses for your partner’s behaviour in front of other people all the time?
Do you believe that if you change anything about yourself, you might be able to connect well with your spouse?
Try not to do anything that can generate a squabble or enrage your partner?
Do you always do what your partner wants rather than what you want?
Stay with your partner because you are afraid of what your partner would do if you broke up?
If any of these things are happening in your relationship, talk to someone. Without help, the abuse will continue. Making that first call to seek help is a courageous step.
Domestic violence laws in India
Knowing your rights alongside duties is extremely important for raising your voice against domestic violence. An overview of laws governing the offence of domestic violence in India has been discussed hereunder.
The Indian Penal Code, 1860
Section 354C: The provision deals with the offence of voyeurism where a man watches or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed.
Section 354D: Section 354D of the Indian Penal Code, 1860 deals with the offence of stalking. The offence involves following or monitoring a woman despite repeated disinterest on the part of the woman.
Section 498A: Section 498A is a non-bailable and a cognizable offence that involves subjecting a woman to cruelty by her husband or relative of her husband. Both mental and physical harassment of the woman is included under the ambit of this provision.
Section 509: Section 509 of the Indian Penal Code, 1860, was enacted to give general protection to women. The offence is cognizable, bailable, as well as non-compoundable which is triable by any Magistrate. In addition, a person might be sentenced to three years of simple imprisonment, as well as a fine.
Protection against Domestic Violence Act, 2005
Section 3: Section 3 of the Domestic Violence Act, 2005 lays down the ingredients constituting domestic violence. Four types of domestic abuse have been provided under the provision, namely, physical, verbal, sexual and economic abuse.
Section 12 (1): Section 12 (1) of the 2005 Act provides that an aggrieved person or a Protection Officer or any person on behalf of the aggrieved person can present an application before the Magistrate seeking relief under the 2005 Act.
Section 17: Section 17 of the 2005 Act guarantees that an aggrieved person has a right to reside in a shared household irrespective of whether she has any right, title or beneficial interest in the same.
Section 18: A protection order in favour of the aggrieved person after hearing both the parties to the domestic violence case can be passed by the Magistrate under Section 18 of the 2005 Act.
Section 19: Magistrate can exercise the power vested on him or her under Section 19 to deliver a residence order that majorly aims to restrict and direct the respondent to carry out certain things that would be detrimental for the aggrieved person.
Section 20: The respondent can be directed to pay monetary reliefs to the aggrieved party by the Magistrate under Section 20 of the 2005 Act.
Section 21: Section 21 of the 2005 Act authorises the Magistrate to deliver custodial orders for the child in concern or related to the domestic violence case before it.
Section 22: The ambit of compensation orders have been covered under Section 22 of the 2005 Act.
Information Technology Act, 2000
Section 66:Section 66 of the Information Technology Act, 2000 extends protection to electronic signature, passwords or any other unique identification feature of any person from being fraudulently or dishonestly used.
Section 66E: Section 354C of the Indian Penal Code, 1860 read with Section 66E of the 2000 Act lays down punishment for violation of privacy with an imprisonment of three years or a fine not exceeding two lakh rupees, or both.
Section 67: Section 67 of the 2000 Act can be invoked if your partner tries to emotionally abuse you by threatening to publish obscene information related to you in electronic form.
Section 67A: Punishment for a period of seven-year and a fine of rupees ten lakh can be imposed for publishing or transmitting material containing the sexually explicit acts, etc. in electronic form under Section 67A.
What to do if you are being domestically abused
It is true that leaving behind an abusive relationship can be difficult, but a safety plan and some positive measures can help you survive through domestic violence until you get help for the same. Some of the measures have been provided hereunder:
Find a safe friend or friends, as well as safe venues to visit. Create a code word that you may use with your friends, family, or neighbours to let them know you are in danger without letting the abuser know. Agree on a hidden spot where they can pick you up if feasible.
Keep a backup phone with you at all times. If you need assistance, don’t use your house phone or a shared cell phone. It’s possible that your partner will be able to track down numbers. You can obtain a prepaid cellphone if you don’t already have one. Save the phone numbers of friends, relatives, and shelters in your phone. Even if your spouse snatches your phone, you will still be able to communicate with your loved ones or find refuge.
If you have to go fast, make a list of everything you will need. The most important documents and money are likely to be the top priorities. Gather these goods and store them in a secure location where your spouse will not locate them. If you are in danger right now, leave without them. If you can hide an extra set of vehicle keys in case your partner takes your regular keys, you will be able to go.
Ask your doctor how you or your children may receive extra medicine, glasses, hearing aids, or other medically essential goods which will be required when you leave your house where you lived with an abusive partner.
For more information on obtaining a restraint order, contact your local Mahila thana or Protection Officer for Domestic Violence. If you require legal assistance but do not have the financial means to pay for it, your local Protection Officer or the police’s Crime Against Women’s Unit may be able to assist you in locating a lawyer who will work for free.
As you gather information and plan, keep your internet security in mind. Use a public library computer or a friend’s computer or cellphone to download material. Otherwise, your spouse might be able to keep track of your plans. If you leave your relationship, try to take any proof of abuse or violence with you. This might involve your spouse sending you threatening notes. Copies of police and medical reports might be among them. It might contain photos of your injuries or property damage. On an external thumb drive, save copies of all paper and electronic documents.
Legal help for domestic violence
As you have already read through the laws that can be invoked if you file a domestic violence case and what those laws deal with, it is now necessary to know some technicalities and queries related to legal help for domestic violence in India.
Domestic violence helpline numbers
Both national level and state level helpline numbers have been provided below.
National level
Women Helpline ( All India ) – Women In Distress: 1091.
Women Helpline Domestic Abuse: 181.
Police: 100.
National Commission For Women (NCW) ( Domestic violence 24×7 helpline for Sexual Violence and harassment ): 7827170170.
National Commission For Women (NCW): 011-26942369, 26944754.
Delhi Commision For Women: 011-23378044 / 23378317 / 23370597.
Outer Delhi Helpline: 011-27034873 , 27034874.
Student / Child Helpline: 1098
State level
National Commission for Women: 011-23237166, 23234918.
Delhi
Delhi Commission for Women: 011-23379181, 23370597
Delhi Women Protection Cell: 011-24673366/ 4156/ 7699.
West Bengal Commission for Protection of Child Rights (WBCPCR) (Child marriages and trafficking): 9830056006, 9836078780, Whatsapp: 9836300300.
How to report domestic violence cases
The victim, or someone on their behalf, can file a complaint using one of the options indicated below.
Police Station
The police will register a First Information Report (FIR) or Domestic Incident Report (DIR) or will direct the victim to a Protection Officer in charge of the area.
Protection Officer
A Protection Officer is the first point of contact for domestic violence cases in a district. A Protection Officer will help the victim file a DIR and file a case in court.
National Commission for Women (NCW)
Domestic violence, dowry harassment, and sexual assault accusations are dealt by the NCW. NCW will assist local police in monitoring and expediting investigations, offer counselling/mediation as an alternative to going to court, and form an inquiry committee that conducts on-the-spot investigations, interviews witnesses, collects evidence, and submits a report to NCW with recommendations regarding the complaint. A victim can also file a domestic abuse complaint through the NCW’s internet portal.
How safe is it to file a complaint against your husband
By being scared of the consequences of filing a complaint against your husband over domestic violence, you cannot keep yourself or your children (if any) safe and secure. Therefore, it is important that you proceed with legal help with courage.
Section 498 A of the Indian Penal Code, 1860 is a strong weapon in the hands of women to save themselves from ruthless behaviour and actions of their husbands, provided the said provision is not misused by the wife or the partner.
Offence under Section 498A is cognizable which means that the police have the power to arrest without warrant or any other law according to the circumstances. It is non-bailable in nature which means that only the court has the power to grant bail. Therefore, it can be said that filing a complaint against your husband is safe provided you are fearless.
How safe is it to file a complaint against your wife
The husband might bring a lawsuit against his wife for threatening and blackmailing him into filing a false case under Section 498A. When bringing a complaint against the wife, documentation proof and other details are required.
If the husband and his family are concerned about being arrested in a case under Section 498A, they should consider filing for anticipatory bail.
In the event that the wife has already left the husband and the husband desires to continue living his life with her, he may file a petition under Section 9 of the Hindu Marriage Act, 1955.
The Supreme Court of India had ruled in Kusum Narottamdas Harsora and Mohammad Zakir v. Shabana (2017) that a husband can file a complaint against his wife under the Domestic Violence Act, 2005. In this case the Court had found adequate grounds to pursue the wife under Section 12 of the Act.
Will the abuser(s) get immediately arrested on filing a complaint
What is the punishment in India for domestic violence, in case injury has been caused
As proceedings under the Domestic Violence Act, 2005 are quasi-civil in nature, there are no penalties, but you can seek compensation for cruelty and medical costs.
You must make a complaint under Section 12 of the Domestic Violence Act, 2005 and seek monetary relief under Section 20 of the same Act.
You can submit a police complaint under Section 498A of the Indian Penal Code, 1860 at your local police station if you want to take a criminal action.
If the offence is proven, your husband will be sentenced to prison for a period of up to three years, along with a fine.
The court procedure to address domestic violence complaints
The victim will be required to make an application before the Magistrate, with the assistance of a lawyer, in which they will describe the kind of reliefs they seek from the court. Protection orders, residence orders, monetary relief instructions, a grant of compensation or damages, and interim orders are all possible reliefs that the victim can ask for. A victim can hire a lawyer, request assistance from their protection officer, or approach an NGO to assist them in obtaining legal assistance.
When a police officer, protection officer, service provider, or magistrate receives a complaint, they must advise the victim of all available remedies and legal rights.
The victim would be required to divulge any previous or current cases between the parties under the Indian Penal Code, 1860, Criminal Procedure Code, 1973, Hindu Marriage Act, 1955 and Hindu Adoptions and Maintenance Act, 1956 when submitting the complaint. The victim will also be expected to reveal whether or not a maintenance application has been filed and whether or not interim maintenance has been given to the victim as a result of the same.
Within three days of the court’s receipt of the application, the Magistrate will set the first hearing date.
All complaints must be addressed and resolved within 60 days, according to the Domestic Violence Act, 2005. If a party is offended by a Magistrate’s order, he or she may file an appeal against it.
Financial help for domestic violence survivors
The majority of domestic violence survivors suffer after leaving their abusive partners because of their financial dependence on them. Scenarios turn worst for females in this case as many being homemakers have reliance on their partners for finance. But, because of this detriment, you should not be restricting yourself to remain in an abusive relationship and therefore, here are some convenient and possible ways of making money independently:
Content writing
Graphic designing
Content Management (Scheduling & Posting)
Virtual Assistant
Discord Server – creators & mods
Audio Editing
Video Editing
Transcription (to multiple languages)
Paid Newsletters
Affiliate Marketing
Online Teaching.
These are some of the general ways in which you can earn money easily and with ground-level knowledge.
Emotional self-care for survivors of domestic violence
Self-care, or taking proactive actions to feel physically, emotionally, and psychologically well and comfortable, can help survivors cope with the repercussions of trauma such as sexual violence.
In order to overcome the paralysis that accompanies trauma, leaving us feeling numb and frozen, it’s critical that we find at least one sort of physical outlet for the deep emotions of sadness, wrath, and hurt we are certain to feel in the aftermath of abuse and trauma.
Art therapy is extremely beneficial to post-traumatic stress disorder patients because it allows them to develop new ways of expressing themselves that allows them to create rather than self-destruct.
Thus, to sum up, the five powerful self-care tips are provided hereunder:
Have positive affirmations.
Heal the mind through the body.
Breathe and relax.
Channel your pain into creativity.
Ask for help.
How does counselling help in fighting domestic violence
The magnitude and severity of the repercussions of domestic violence necessitate the introduction of some specific help programmes for domestic violence victims. Counselling can provide individuals who have been victims of domestic violence with a greater awareness of their right to their own thoughts, feelings, and perceptions, as well as a growing sense of control over their own person, the opening of one’s mind, the desire for change, and the trust in one’s own decisions.
What does counselling involve
The counsellor must be appropriately trained with knowledge in the field of domestic abuse, and must demonstrate an interest in staying relevant on current issues. The counsellor may collaborate with other professionals with the client’s consent. When necessary, secondary counselling from skilled practitioners with considerable expertise of domestic violence is also asked for.
It is critical that the victim/client be informed of the following facts at the start of the counselling process:
The victim/client be treated with dignity and respect.
The victim/client will be heard and comprehended.
The victim/client will be told about the resources available to them in the event of domestic violence, they will not be accused of violence, and their actions will be assessed in light of how they are affected by the abuse.
The counsellor will convey to the client/victim the need of maintaining their privacy.
The client’s safety is the most crucial consideration for the counsellor.
In the sense that the counsellor will not treat their client as a victim of a single dysfunctional relationship, but as a pattern that affects many individuals in all social situations. The counsellor will help them comprehend their personal violence experience.
The counsellor will be educating their clients on the consequences of violence in order to better comprehend the emotions they are encountering.
The counsellor will address the issue of the children under their client’s care and safety, as well as the impact of violence on them.
The counsellor will assist their client in identifying and evaluating potential solutions to the situation, as well as promote and respect their decisions.
How is counselling for male victims different from that of females
It generally appears that male-on-female domestic violence is more likely to result in major injury or death, whereas female-on-male domestic violence is more likely to result in male suicide. This is due to the fact that men are more inclined to physically abuse women and are more capable of doing so, but women are more likely to emotionally control and coerce men. Men are more inclined than women to use violence as a result of their greater stature, therefore if a man punches a woman, he is likely to cause more harm than if a woman attacks a man. Women, on the other hand, can and do utilise weapons to counteract men’s biological build. In domestic abuse situations, women are twice as likely to use a lethal weapon than men. Macchietto (1992) noted the necessity for therapists to be aware of the impact that culturally held preconceptions have on men’s expectations, limiting therapists’ ability to give greater support for both genders of victims.
Counselling of male victims of domestic violence
Male victims are majorly silent: Counsellors have talked about how society and social conditioning encourage males to keep silent about being victims, which exacerbates the problem. The added strain of cultural expectations that males should be able to care for themselves was described as causing victims to dread being viewed as weak or less of a man if they confessed their victimisation.
Males are not usually identified as victims: Counsellors said there was a lack of recognition and understanding of males as victims of domestic abuse in society, which had ramifications for counselling, especially in terms of recommending clients. Counsellors have time and again described their experiences working with clients who were afraid of not being believed that they were victims because they were male.
Destruction of image is a common concern for male victims: Male clients are more apprehensive of male therapists because they are afraid of being pushed into their shame base, and they find it difficult to disclose their domestic issues to another male because of the concern of their image and personality as the male gender. This has generally evolved because of the social structure we are brought up in which teaches boys to avoid shedding tears like that of the girls so as to wear their gender as pride.
List of counselling centres and helpline numbers you can reach out to
All India Women’s Conference
Emancipation, Education and Empowerment of Women, across 10 states
10 NGOs helping women to fight for their rights in India
Guria India: The technique adopted by Guria India is to concentrate on rescue and legal intervention. Due to the shame associated with sexual assault, it assists the victim with all aspects of their case, from filing a FIR to assisting them in gathering evidence. Guria attorneys assist victims in preparing for court. The NGO not only assists women in obtaining legal justice, but it also provides counselling and financial assistance to victims.
Majlis Manch: Majlis Manch’s legal centre provides socio-legal support to victims of sexual assault through their programme ‘Rahat.’ The all-female team of lawyers and social workers meets with victims to explain the legal processes. They are also informed of all legal, public, and private programmes to which they have access.
Sayodhya home for women in need: Sayodhya runs a short-stay house for women and young girls who are in difficulty, as well as a 24-hour telephone helpline. They assist women in obtaining legal justice in important circumstances by transporting them to women’s protection cells, where they explain the process and assist women in filing cases. The shelter collaborates closely with law enforcement and judicial officials to ensure that survivors have access to protection, entitlements, and other legal tools to help them find work and develop their skills.
ActionAid India: ActionAid India is a full affiliate of ActionAid International and a member of a global federation. ActionAid’s Gauravi crisis centre is open 24 hours, seven days a week. Domestic and sexual violence victims of all ages, including minor boys, are served by the centre. Counselling, intervention, legal assistance, medical assistance, a shelter home, and social rehabilitation are all provided to the victims. Victims are not compelled to pursue legal action and are given all available options.
Committee for Legal Aid to Poor: Acid attacks are among the most terrible and horrible crimes perpetrated against women. The Committee for Legal Aid to the Poor (CLAP) was established to assist victims of this heinous crime. CLAP assists victims by monitoring court processes to ensure that wrongdoers are punished harshly, providing legal assistance and assisting victims in obtaining government compensation, and rehabilitating survivors.
International Foundation for Crime Prevention and Victim Care (PCVC): The International Foundation for Crime Prevention and Victim Care was founded in response to the demand for a support organisation for domestic violence victims and survivors. This women’s NGO offers a variety of services, including crisis management, legal advocacy, support, and resource assistance. PCVC established a national domestic violence platform to assist women who are victims of various forms of abuse.
Shikshan Ane Samaj Kalyan Kendra: Shikshan Ane Samaj Kalyan Kendra is committed to assisting women in areas such as health, education, and empowerment. It provides workshops on the causes and effects of domestic violence and brings the subject to the attention of district officials and subordinate courts. They also encourage victims to come out and warn men from engaging in behaviours that would harm their wives.
Prerana: Prerana is dedicated to the rescue, protection, and rehabilitation of victims of human trafficking. They collaborate with state governments to develop anti-human trafficking plans and strategies that will help victims be rescued and rehabilitated. They also help with legal proceedings to restore their rights. It also offers psychological assistance to survivors.
Sakhya Women’s Guidance Cell: Sakhya Women’s Guidance Cell’s major goal is to achieve gender equality and gender justice by empowering women. Through education and awareness, they seek to give women more autonomy. The charity provides case counselling, referrals, legal aid, lodging, and rehabilitation to sexual abuse victims, as well as accompanying them to hospitals and legal institutions
The Prajnya Trust: Since 2008, the Prajnya Trust has worked to eliminate gender and sex-based violence against women. This women’s NGO holds workshops, organises talks, offers legal assistance, and educates service providers who may come across situations of sexual abuse at work.
Child abuse : a counterpart of domestic abuse
Intimate partner violence and its connection to child maltreatment are receiving more attention in present times. China, Colombia, Egypt, India, Mexico, the Philippines, South Africa, and the United States have all discovered a substantial link between these two types of violence, according to data from research conducted in these countries. Domestic violence in the family was shown to double the likelihood of child maltreatment in a recent research in India. Domestic violence in the home has been reported by 40% or more of known child abuse victims. In fact, because many organisations tasked with safeguarding children do not consistently gather statistics on other types of family violence, the link may be considerably greater.
To prevent prospective abuse and successfully deal with incidents of abuse and neglect that have occurred, prevention programmes and policies must directly address children, their caregivers, and the circumstances in which they live. Public health academics and practitioners may play a crucial role by leading and supporting the process, which will involve focused and coordinated efforts from a wide variety of sectors. The three ways in which domestic violence contribute to child abuse are provided hereunder.
Disregulation in cognitive and emotional systems
Children who have been exposed to domestic abuse are more likely to face cognitive, psychological, and emotional difficulties. Several studies found that children who have been subjected to abuse had poorer levels of social competence than their peers of the same age group.
Dysregulation is defined as the inability to maintain normal functioning. For example, deficits in executive functioning, such as, organising, prioritising, and task completion in cognitive functioning.
Dysregulation in emotional functioning can manifest as difficulty sustaining friendships, a rise in dysfunctional peer connections, and loneliness.
Impact on behavioural systems : internalising behaviours and externalising behaviours
Witnessing domestic violence plays a significant effect in a child’s behavioural functioning, according to the research. Family violence is a huge societal problem for individuals who witness violence and those who are physically assaulted, according to Lawson (2001), who examined prior data. The ramifications on children’s behaviour are discussed, as well as how the impacts are “likely to cause long-term intergenerational cycles of abuse if not remedied early.”
Aggression, hyperarousal, anti-social behaviours, fearfulness, withdrawn behaviours, avoidant behaviours, inhibited behaviours, and developmental regression are examples of behavioural systems in children who have been exposed to domestic violence versus those who have not.
The attachment has an influence on both internalising and externalising behaviours. As a result of their exposure to domestic violence, children may become overprotective and display negative behaviours, both of which can produce relationship problems. Bullying may be connected to harmful attitudes toward violence as well.
Multi-level perspectives
The two-person model: The two-person model can be described as the child and their caregiver, most often the mother. When the caregiver/mother is in conflict, it has an influence on the child’s development and behaviour.
Broffenbrenner’s theory: Broffenbrenner’s theory describes how a child’s system impacts his or her development. The ecological systems theory of Bronfenbrenner views child development as a complex system of relationships influenced by several layers of the surrounding environment, ranging from intimate home and school settings to broad societal values, laws, and practises.
Ecobiodevelopmental perspective: The ecobiodevelopmental approach is utilised to better understand how violence and trauma affect a child’s development. The framework takes into account the family’s cultural ideas and values, as well as the neighbourhood and community settings, family situations, and the child’s traits, which allows this framework to look at the child holistically. The framework is useful for comprehending the effects of violence on children, as well as how children will react depending on their neurological development.
How can you help someone who is being domestically abused
If you know or believe that someone you care about is a victim of domestic abuse, you may be unsure how to help. Don’t let your fear of saying anything inappropriate keep you from reaching out. Waiting for the correct words may prevent you from taking the chance to improve someone’s life. For many domestic violence victims, life may be lonely, isolating, and frightening. Reaching out and letting them know you’re there for them may sometimes be a huge comfort.
Make time for them
If you decide to contact an abused victim, do it while you are calm. Getting engaged when people’s tempers are rising might be dangerous. Make sure you have enough time planned out in case the victim decides to speak up. You will not want to terminate the talk because you have another obligation if the individual decides to reveal years of bottled-up anxiety and fury.
Begin a conversation
“I’m worried about you because…”, “I’m concerned about your safety…”, or “I’ve seen certain changes that concern me…” are all good ways to bring up the issue of domestic abuse thereby beginning a conversation. Perhaps you have seen the individual wearing extra garments to hide injuries or that he or she has been abnormally silent and reclusive. Both of these things might indicate that someone has been abused.
Make it clear to the person that whatever information you share will be kept private. Allow the conversation to flow naturally rather than forcing the person to open up. Take it easy and leisurely. Simply let the person know that you are there and willing to listen.
Listen to them
If the person chooses to speak, listen without passing judgment, provide advice, or offer solutions. If you attentively listen, the individual will most likely tell you exactly what they require. Allow the speaker to speak for as long as they want. You can offer to clarify questions, but you should mostly let the person express their emotions and anxieties. You could be the first person with whom the victim has shared his or her secrets.
Learn the warning signs
For a number of reasons, many people try to hide the violence, and recognising the warning signs of domestic abuse can help you aid them.
Physical signs that you should notice
Black eyes.
Busted lips.
Red or purple marks on the neck.
Sprained wrists.
Bruises on the arms
Emotional signs that you might encounter
Low self-esteem.
Overly apologetic or meek.
Fearful.
Changes in sleeping or eating patterns.
Anxious or on the edge.
Substance abuse.
Symptoms of depression.
Loss of interest in once enjoyed activities and hobbies.
Talking about suicide.
Behavioural signs that you can often come across
Becoming withdrawn or distant.
Cancelling appointments or meetings at the last minute.
Being late often.
Excessive privacy concerning their personal life.
Isolating themselves from friends and family
Believe the victim
Because domestic violence is more about control than fury, the victim is sometimes the only one who sees the perpetrator’s ugly side. Others are frequently surprised to hear that someone they know is capable of violence. As a result, victims frequently assume that if they reported the abuse, no one would believe them. Believe the victim’s account and express your belief. Finally finding someone who understands their problems might provide a feeling of hope and comfort to a victim. Offer the victim these assurances:
I believe you,
This is not your fault,
You don’t deserve this.
Try to validate the victim’s feelings
Victims may exhibit mixed emotions regarding their spouse and their predicament. These emotions can include:
Anger and guilt.
Both optimism and pessimism towards their partner.
Fear as well as love for their partner.
If you really want to assist, you should support her sentiments by telling her that having contradictory views is quite normal. But it is also important that you state unequivocally that violence is not acceptable and that living in dread of being physically assaulted is not normal. Because they have no alternative models for relationships, some victims may not understand that their situation is unusual. They have gradually gotten acclimated to the cycle of violence. Tell the victim that good relationships do not include violence or abuse. Confirm to them, without passing judgement, that their circumstance is perilous and that you are worried for their safety.
Try to understand the reasons why the victim continues to live with their abusive partner
It’s difficult to comprehend why someone you care about might choose to remain in an abusive or toxic relationship. Here are a few reasons why breaking up is difficult:
They are afraid of being hurt if they leave.
They still adore their partner and are hopeful that things will improve.
Their partner pledged to make a difference.
The conviction that marriage is ‘for better or worse’ has prohibited them from breaking apart.
They believe it is their fault for the abuse.
Children are the biggest form of weakness they have. Their welfare being paramount, they avoid broken relationships.
Lack of self-assurance.
Fear of loneliness or isolation.
Family and community pressure.
Lack of resources (work, money, transportation) to support themselves.
Provide rationale and logical help to the victims of domestic abuse
After taking into account the issues and the sufferings of the survivor/victim of the domestic abuse you are assisting, never advise or suggest any help that will be detrimental or contravening to the laws of the land. Along with the rights of the survivor, let them know about the duties they owe towards their partner as well. Taking the law in hand will be dangerous for the survivor themselves. Therefore, always suggest rational and logical help to them instead of suggesting violence to fight the ongoing abuse.
Offer specific support
Assist the victim in locating services and assistance. Look up contact information for shelters, social services, attorneys, counsellors, and support groups. If you have them, distribute domestic violence flyers or booklets.
You should also assist them in obtaining information on any legislation pertaining to protective orders/restraining orders and child custody. Don’t hesitate to help if the victim requests you to do anything particular. If you can’t, attempt to think of alternative methods to meet the requirement.
Identify their advantages and strengths, and assist them in building and expanding on them so that they may find the drive to help themselves. The most essential thing is to let them know that you are always there for them. Simply inform them of the best way to contact you in the event that assistance is required. If feasible, volunteer to accompany you to the police station, court, or lawyer’s office for moral support.
Help the survivor/victim to form a safety plan to defend domestic violence
Assist the victim in developing a safety plan that they can use if the violence occurs again or if they want to escape the situation. Simply developing a plan can assist them in seeing whatever tasks are required and psychologically preparing to do them. Because victims who leave their abusive spouses are more likely to be harmed by them than those who stay, it is critical for them to have a specific safety plan in place before a crisis or when they decide to leave. Assist the victim in thinking through each phase of the safety plan, assessing the risks and advantages of each option, as well as strategies to mitigate them. Include the following items in your safety plan:
A safe place in the event of an emergency or if they chose to leave the house.
If they feel threatened, they have a ready-made excuse to quit.
A code phrase is used to notify relatives or friends that assistance is required.
An ‘escape bag’ containing cash, crucial papers (birth certificates, social security cards, etc.), keys, toiletries, and a change of clothes that may be quickly retrieved in an emergency.
A list of emergency contacts, such as trustworthy relatives or friends, local shelters, and a hotline for domestic abuse
Conclusion
Most legal systems in the early 1800s tacitly accepted wife-beating as a husband’s right, as part of his entitlement to control over his wife’s resources and services. In the late 1800s, the feminist movement shifted public opinion, and by the end of the century, most courts had ruled that husbands had no authority to ‘chastise’ their wives. However, few women had realistic options for assistance, and the majority of police departments did nothing to protect women. As we stand in the 21st century, domestic violence continues to grow as one of the heinous crimes affecting individuals irrespective of age and gender. Although there lies no solution to these growing issues except change in mentality and increased awareness, the need for raising a voice by those who are being suppressed must continue thereby turning out to be the strongest shield against such violence.
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Globalization has led to the opening of markets and economies all across the world wherein competition between businesses has increased, and therefore, it is important to ensure a level playing field for all players in a market.
Healthy competition, as a concept in business and in markets, is extremely crucial, as it ensures fair and competitive pricing, supply of quality goods and services to consumers, and it fosters innovation.
However, there are certain business practices, including anti-competitive agreements, cartelization, and monopolization, among others, that distort fair competition in markets. Such practices tend to restrict free and fair competition, negatively impacting the prices and quality of goods and services, and hampering innovation in markets.
Economic growth and development do not take place simultaneously across all nations- the timing, pace, and stages of development are different for different nations. The same is the case with competition legislation and enforcement to keep a check on anti-competitive practices like cartelization. While different nations such as the US, UK, Japan, and India enacted their own legislation and rules at different points in time, the impact of said regulations has been different in different countries. One common factor, however, amongst almost every competition law regime across the world is the fact that cartels are considered to be undesirable and anti-competitive. Through this article, the author seeks to talk about cartels and the various regulations governing said cartels.
What are cartels
Cartels refer to certain kinds of agreements, practices, and activities which are antithetical to free and fair competition in markets. They are mostly secret or implicit agreements that are highly undesirable.
The Competition Act, 2002 (‘the Act’) defines a cartel as an agreement or understanding between enterprises and players in a market, who decide to come together to limit, regulate, or control the production, supply, and prices of goods and services in a market. Cartels primarily involve-
Fixing prices of goods and services;
Regulating and controlling production and supply;
Allocation of markets; and
Bid-rigging or collusive bidding.
Such practices adversely affect the price, consumers’ choice, quality of goods and services, and innovation in the market.
Factors such as few players, difficulty for new players to enter the market, homogeneity among products and services sold, presence of trade associations, and high demand of the product or service, are fertile ground for cartelization.
Cartels under Indian Competition Act, 2002
Under the Indian Competition Act, 2002, the term ‘agreement’, under Section 2(b) has been defined, quite broadly, to encompass different types of anti-competitive agreements and arrangements that can come under the scrutiny of the antitrust regime, irrespective of whether they are formal or in writing or not.
Section 3 of the Competition Act, 2002 deals with anti-competitive agreements, and cartels come under the purview of horizontal agreements under Section 3(3) of the Act. Such agreements are entered into between parties that operate and function in similar industries, dealing in similar goods and services, and are presumed to be anti-competitive in nature, and are therefore void.
Cartel regulation and enforcement in India
The Competition Act, 2002 has been enacted in India which provides for the establishment of an authority known as the Competition Commission of India (CCI), whose mandate is to-
keep a check on anti-competitive business practices;
ensure free and healthy competition in markets;
protect and promote consumer welfare;
ensure freedom of trade.
The CCI is empowered to investigate and impose penalties for cartelization. It has an investigative wing consisting of the Director-General who conducts the investigations under the Act. If any party is aggrieved by the decision of the CCI, the National Company Law Appellate Tribunal (NCLAT) may be approached by way of an appeal, and furthermore, the Supreme Court may also be approached against the decision of the NCLAT.
In the Indian jurisdiction, some of the primary steps that are followed in the process of cartel investigation and regulation are-
receipt of information by the CCI regarding the existence of a cartel under Section 19(1) of the Act, from any person, Central or State Governments. The CCI may even initiate an inquiry on a suo-moto basis.
if there is a prima facie case of cartelization found, the CCI will send orders to the DG to initiate the investigation process, to be completed within a prescribed period of time
After the DG conducts the investigation as per the instructions of the CCI, looking into all the evidence available regarding the existence and functioning of a cartel, a detailed report is prepared, which is shared with the CCI for further inquiry and evaluation.
On receipt of the report, the CCI analyses and evaluates the same. It sends a copy of the same to all the concerned parties, i.e., the complainant and the parties accused of cartelization, inviting their responses, objections or comments.
Subsequently, the CCI allows the parties to present oral arguments. If the enterprises are found guilty of forming a cartel, thereby violating Section 3(3) read with Section 3(1) of the Act, the CCI is empowered to impose penalties on them, as well as on individual persons involved.
Any party aggrieved by the decision of the CCI may invoke the appellate jurisdiction of the NCLAT.
Recent cartel cases in India
In Re: Alleged anticompetitive conduct in the Beer Market in India
In September 2021, the CCI passed an order against 5 parties, which included 4 beer manufacturers, and a trade association is known as the All India Brewers’ Association, concluding, based on the inquiry and investigation process, that the concerned parties are guilty of cartelization, in contravention of Section 3(3) read with 3(1) of the Act.
The CCI had received information regarding alleged cartelization in the beer manufacturing industry by beer manufacturers, wherein they decided to collectively fix prices of the beers sold by them. There were also communications through email and meetings between the parties, and the All India Brewers’ Association also acted as a common forum for the same. After arriving at a prima facie opinion of the violation of Sections 3(1) and 3(3) of the Competition Act, the DG was ordered to conduct the investigation. On receipt of the DGs investigative report, and after hearing oral arguments and submissions of all the parties, the CCI concluded that there was cartelization by some players in the beer manufacturing industry, as they indulged in, inter alia, fixing of prices, regulating and controlling the supply of beer, and even allocating markets among themselves, and penalties were imposed on them. Even some of the individuals and executives who were involved were also penalized.
In Re: Anti-competitive conduct in the paper manufacturing industry
In 2016, the CCI, on receipt of information regarding alleged cartelization, initiated a suo moto case against certain paper manufacturing enterprises, and an association. It came to a prima facie conclusion that the parties had acted in contravention of Section 3(1) read with Section 3(3) of the Act. On receipt of the DGs investigative report, the CCI analyzed and evaluated the evidence and after considering the oral submissions of all the parties involved, concluded that the concerned parties had formed a cartel, and they were involved in price fixation of printing and writing paper. There were also meetings organized between the enterprises, wherein a trade association also provided a common platform for such meetings and discussions. The enterprises, through these meetings, coordinated their pricing strategies. Therefore, the CCI concluded that the enterprises acted in contravention of Section 3(1) read with Section 3(3) of the Act.
In Re: Cartelisation by Shipping Lines in the matter of provision of Maritime Motor Vehicle Transport Services to the Original Equipment Manufacturers
The CCI, on receipt of some information regarding alleged cartelization by four business enterprises, initiated a suo moto case in 2014 against such enterprises. The alleged anti-competitive practice related to the formation of a cartel among enterprises for providing maritime motor vehicle transportation services to automobile Original Equipment Manufacturers, for specific trade routes.
The CCI came to a preliminary conclusion and found that the concerned parties had indulged in cartelization, in contravention of Section 3(3) read with 3(1) of the Competition Act, 2002. After studying and analyzing the DGs investigative report, as well as taking into account the evidence and the arguments of all the parties, the CCI concluded that there was a cartel between the concerned business enterprises. The parties exchanged information that is considered commercially sensitive through meetings, emails, and contracts, in order to restrict and distort competition in the market. The parties were penalized and were also ordered to discontinue such conduct.
Cartel regulation and enforcement in the USA
In the US jurisdiction, the Sherman Act was passed in 1890, in order to ensure, inter alia, free fair, and healthy competition in markets. Section 1 of the Sherman Act declares contracts that restrict trade or commerce as anti-competitive and illegal. One unique feature of the US Antitrust system is that the Sherman Act provides for criminal penalties and sanctions for violation of its provisions, meaning thereby that the concerned persons may also face criminal prosecution for anti-competitive practices. Under the US system, there is a concept of parallel conduct between the parties involved in the alleged cartelization, wherein they intentionally adopt coordinated and same practices, and such parallel conduct needs to be proved. This proof of parallelism can be used in addition to other evidence.
The curious case of the oil and diamond cartels
Organization of the Petroleum Exporting Countries (OPEC)
Oil is the most crucial commodity in the world, and those entities that try to control the supply of oil, are said to indirectly impact the supply of natural gas as well, as natural gas can be extracted from oil.
To start with, there were 7 major oil companies that came together to influence the production and pricing of oil. The 2nd World War had the most devastating effect on the majority of the countries, and most nations decided that resources should be fairly distributed in their respective jurisdictions. There was speculation that there might be nationalization of oil, and fearing this, these seven companies decided to take oil-exporting countries on board and share half of the profits earned with them. Due to tough competition, the oil companies were compelled to reduce their prices, which the oil-exporting countries were not happy with. Over a period of time, both parted ways, with the oil-exporting countries forming OPEC.
OPEC is a 13-member cartel whose goal is to regulate and control the oil supply, in order to fix the prices of oil in the international market. The majority of the crude oil reserves in the world are controlled by OPEC, and their members are major oil-producing countries. Many nations have voiced their concerns regarding the functioning of OPEC and its negative impact on the oil market.
De Beers
A unique and sustained advertising campaign has been run by De Beers, wherein they have successfully manipulated the social, emotional, and cultural weakness of the human psyche in order to create a niche market for a product that is neither scarce nor rare. By appealing to the people’s sentiments, they have created a collective desire to own diamonds. An abundant gemstone had been given an exclusivity status, and the company, by controlling its supply, had managed to make diamonds a high-value item.
De Beers company had introduced a system wherein diamond supplies would be routed through their distribution channel all across the world, thereby giving it the control of having control over the worldwide supply of diamonds. Gradually, countries like Russia, Australia, and Canada decided not to take this route. Furthermore, there were many litigations filed against De Beers, alleging monopolistic behaviour for global diamond supply.
Conclusion
The Competition Commission of India has definitely come a long way since its inception- it has grown and developed with the changing times, and is playing an active role, especially when it comes to cartel enforcement.
Cartels are considered the most injurious form of anti-competitive conduct, and their opaque nature makes their detection and investigation quite tricky. Furthermore, factors such as globalization, liberalization, digitalization, and the proliferation of cross-border partnerships have made the identification and regulation of cartels even more difficult. Therefore, the investigative tools and systems of different competition law authorities need to be fine-tuned and sharpened. In India, there has been a shift wherein the CCI focuses more on the circumstantial evidence for cartelization rather than direct evidence in every case.
In India, we also have the Leniency Regime for cartels, primarily covered under Section 46 of the Competition Act, 2002 and the Competition Commission of India (Lesser Penalty) Regulations, 2009. There is a mechanism of imposing ‘lesser penalties’ for cartel members who approach the CCI and provide genuine and relevant information regarding the cartel, and the CCI is empowered to grant a benefit of imposing a lesser penalty than what is provided for under the Act or relevant Rules if it feels that a party has disclosed vital, complete and correct information regarding the cartelization.
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This article is written by Neha Dahiya, a law student at Dr. B.R. Ambedkar National Law University. This article explains the history of the Karachi Agreement with its provisions. It also analyses the drawbacks of the agreement and how it ultimately collapsed with the beginning of the war of 1965.
It has been published by Rachit Garg.
Table of Contents
Introduction
India and Pakistan have had a long history of conflict. The focal point of this conflict has been the “Kashmir issue”. Both sides have fought for years in Kashmir. The beginning dates back to the time of partition. There is no doubt that we witnessed a bloody partition. However, the violence was not just limited to the borders between Hindus and Muslims only. Kashmir was caught in a similar fire too. In order to annex Kashmir forcefully, Pakistan started what is called as the “First War” between the two newborn countries in 1947. What unfolded was a huge crisis and it finally came to a temporary halt in 1949 with the United Nation’s intervention. Thus, the Karachi Agreement was born.
Timeline of events
Background of the conflict
The British left India in a haste with a poorly executed partition. Despite the continuous efforts of our leaders, communalism disrupted the peace of India and resulted in hostile feelings between Hindus and Muslims, which led to the partition. However, the terms of the partition dictated, gave a choice to the princely states to join either of the nations. When the final transfer of power took place by the British government to India and Pakistan, Raja Hari Singh of the princely state of Jammu and Kashmir decided not to join either of them. In such a situation, both countries made efforts to assimilate Kashmir towards their side but nothing seemed to work. A Hindu ruler, Raja Hari Singh, ruling over a Muslim-majority population, preferred to sit on the fence and not make a decision. He preferred independence rather than joining a democratic or a Muslim majority nation. Later on, when Pakistan attained full freedom on 14 August 1947, it made efforts to persuade Hari Singh to join. When nothing worked, it decided to do so through coercion.
Attack by Pakistan
Pakistan sent a few tribesmen called ‘Kabalis’ backed by Pakistani forces to attack Kashmir. This marked the beginning of the ‘Operation Gulmarg’ in Kashmir by Pakistan. These tribal warriors wreaked havoc in Kashmir. There were thousands of them and they were very well looked after by the Pakistani forces. They were fully armed with modern weapons and entered Kashmir either on foot or were loaded in trucks. They committed large-scale atrocities and civilians were killed brutally. In this situation, Hari Singh found himself powerless and vulnerable. He could not defend Kashmir against the invasion. He sought India’s help when the tribals had reached Srinagar and were brutally destroying anything that came in their way. This is also one of the prime reasons for conflict between both the countries on Kashmir as Pakistan alleges that Hari Singh assented to joining India under coercion and hence, the accession was not valid.
Signing of the instrument of accession
Finally, Hari Singh knocked on India’s door for help. He signed the Instrument of Accession on 26 October 1947. With this, India got limited access to Kashmir’s defence, communications, and foreign affairs. This also paved the way for the future special status given to Kashmir, which further complicated the situation, as revealed in the coming years. Indian troops landed in Kashmir on 27 October, 1947 and took control of the situation. With the Indian Army’s help, the invaders were pushed back. Indian forces had enough resources to deal with the conflict. However, the war persisted for some time.
UNO cease-fire
Meanwhile, India approached the United Nations Organisation to mediate and resolve the conflict. India went to the UNO under Article 35 of the UN Charter which allowed states to bring to the notice of UNSC, those situations, which if continued, could disrupt international peace and security. After a series of protracted discussions and mediations, a ceasefire became operative from 1 January, 1949. Even though India was at the brink of winning the war, it approached the UNO for assistance, to prevent the stretching of war and bitter relations between India and Pakistan and to stop Pakistan from aiding the invaders. As per the cease-fire agreement, both the countries were asked to withdraw their militaries, followed by a plebiscite (a direct vote in which the people of a nation or region express their opinion for or against a policy or proposal) to record the will of the Kashmiris. However, none of the two things actually happened.
The UN Commission intervention
On UNO’s intervention, Pakistan rejected the claims of its involvement in invading Kashmir. However, on its visit to India in July 1948, the commission found that Pakistani forces were present in Pakistan Occupied Jammu and Kashmir (POJK). The resulting UNCIP Resolution passed in 1948, recorded Pakistan’s act of aggression, and eventually, discussions with both the governments began. After due deliberations, the resolution was adopted.
UNO Resolution,1948
The Resolution called for a ceasefire and complete end of hostilities. It established a truce agreement and ordered a complete withdrawal of Pakistani forces and tribals from Kashmir. India was also asked to withdraw its forces and keep minimum numbers there, required for maintaining law and order. It also stated that the two countries would sit together with the Commission to decide the future course taking into consideration the people’s will. The win for India was that the resolution recognized Pakistan as the aggressor. Finally, the representatives of both nations sat down to build the Karachi agreement.
The Karachi Agreement
Constitution and purpose
The Karachi agreement was formally known as the “Agreement Between Military Representatives of India and Pakistan regarding the establishment of a Cease-fire line in the State of Jammu and Kashmir”. It was instrumental in ending the war in Kashmir resulting from the post-partition conflict. The military representatives of India sat down together with the Truce Sub-Committee of the United Nations Commission for India and Pakistan to deliberate upon the future course of action. Both the sides sent three members and two observers each. The Sub-committee consisted of four members consisting of a chairman. The delegation met at Karachi to mutually agree upon the cease-fire line in the state of Jammu and Kashmir. The meeting was purely for military purposes and no attention was given to political issues.
Provisions of the agreement
An 830 km long cease-fire line was established as a complement to the suspension of hostilities as per the Resolution already passed.
The line would run from Manawar in the south, north to Keran, and Keran east to the glacier area. A more detailed plan was agreed upon mutually by the parties.
The cease-fire line was to be drawn on a one-inch map and then to be verified practically in the field by the local commanders on both sides with the aid of the UN Military observers. If the local commanders did not agree on common ground, then the Military adviser’s decision was to be considered final. Then a final map was to be released.
No troops were to be stationed in the area of the Burzil Nullah from the south of Minimarg to the cease-fire line. In a situation of any dispositions, the troops might remain at least 500 yards from the line.
Both sides were free to decide their respective defensive positions behind the line. However, neither of them could put wires or mines when new bunkers and defences were constructed. In areas where no major adjustments were involved, no increase of forces or strengthening defences were allowed.
The United Nations Commission for India and Pakistan was to station ‘observers’ wherever it deemed fit.
The agreement was to be ratified by the governments on both sides and then the documents were to be deposited with the UNCIP till 31 July 1949.
A period of 30 days was given to both sides from the date of ratification to vacate the areas erstwhile occupied by them beyond the designated cease-fire line as mutually agreed. Also, neither of the sides was to move further into the areas to be taken over by either of them before the end of the 30 days period.
Outcomes of the agreement
The anomalies
Despite a mutual agreement on the cease-fire line, there was no physical demarcation on the ground that could have meant a concrete solution to the issue.
The glacial terrain near the China border was not taken into consideration for demarcation as it seemed to be inaccessible and a permanent barrier against any form of military action. Thus, it made this area a ‘no man’s land’, which otherwise turned out to be a hotly contested one.
At the southern-most end of the cease-fire line in Jammu, there was a gap of approximately 200 km between the line and the international boundary dividing India from Pakistani Punjab. In this area, the forces on both sides were divided by a provincial line and hence, it was felt that there was no need for another line. Nevertheless, Indians have been referring to it as the international boundary and the Pakistanis on the other hand have been calling it simply as ‘the border’ or the ‘working border’.
Failure of the agreement
Broadly, the agreement had prohibited six types of military activities along the line. These were as follows:
Crossing of the line or military advancements within 500 yards of the line.
Firing and use of explosives within five miles of the line, without prior warning given to the UN observers.
Installing new wiring or mines in the area.
Strengthening defences in areas where no major adjustments were allowed by the agreement.
Reinforcement of defence forces in Kashmir, other than for relief and maintenance.
Flying of aircraft over the other party’s territory.
All of these restrictions in Kashmir were aimed at demilitarization of the zone and preventing any further escalation of the conflict. Though it was supposed to be a permanent solution, it did not turn out to be so. The violations occurred right from the start from both sides. However, it escalated rapidly after the 1950s. The UN Peacekeeping mission could not keep up with the huge responsibility that it had. The agreement was practically fading.
The war of 1965
The first war between India and Pakistan started in 1947. The second one occurred in 1965. The only solid source of peace agreement was the Karachi Agreement between this time period. However, this did not mean the complete cessation of hostilities between the two neighbors. There were other peace talks during this interval including two formal bilateral negotiations. But they did not yield any concrete solution. The situation deteriorated post-1962 Sino-India war. There were regular complaints of violations of the cease-fire line on both sides. The violations included the movement of civilians, setting up of military outposts and, military raids that practically defeated the purpose of the agreement. The agreement, finally collapsed when Pakistan initiated ‘Operation Gibraltar’ and sent infiltrators into Indian Kashmir. This heralded the second war between India and Pakistan in 1965.
Recent developments
Demand for the abolition of the Karachi Agreement by PoK Activists
The activists from Pakistan Occupied Kashmir (PoK) have been protesting for the abolition of the Karachi Agreement. They argue that the agreement was biased towards the Pakistan government and it has since then ignored the region of PoK and Gilgit-Baltistan. The agreement gave the administration powers to Pakistan. However, the region’s development has been ignored since then. The local administration of the area was not consulted before this arrangement. This has resulted in numerous humanitarian crimes being committed in the area with no respite. These people have faced continuous discrimination and persecution. The social and economic development has been ignored largely in this area by Pakistan. Thus, the people there have been demanding the abolition of the Karachi Agreement for the sake of the development of their area.
The Siachin Glacier dispute
The last point on the map mutually agreed in the Karachi Agreement was ‘NJ 9842’. The area beyond this was merely mentioned as ‘north to the glaciers’ without going into the details as apparently it did not seem important at that time to deal with such an ‘inaccessible’ area. However, it was decided in the agreement itself that the accession of Kashmir by India was valid and any such ‘no man’s land’ should be controlled by India during the period of ceasefire and truce. However, it could be disputed by Pakistan with adequate proof. The main conflict started in 1980s when the news came that Pakistan was planning to claim the Siachin glacier. Since then, there has been a heated conflict between both the sides on Siachin glacier, all due to a lacuna left by the Karachi Agreement.
Conclusion
Kashmir has been the bone of contention between India and Pakistan since Raja Hari Singh assented to join India. The conflict has remained irresolvable till today. The efforts for peace started from the Karachi agreement with the UNO’s intervention. The events that unfolded, later on, revealed the drawbacks in the agreement and ultimately led to its complete collapse with the beginning of the war of 1965. Nevertheless, the agreement marked the beginning of the negotiations between the two nations on Kashmir and started a new era post-partition.
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This article is authored by Nidhi Bajaj, of Guru Nanak Dev University, Punjab. The article seeks to outline the various government policies and other measures for achieving the goal of gender equality in India.
It has been publishedby Rachit Garg.
Table of Contents
Introduction
‘Gender Equality’ is the 5th goal among the 17 Sustainable Development Goals (SDGs) adopted by the United Nations. The Constitution of India also recognizes the principle of gender equality in its Preamble, Fundamental Rights, and under the Directive Principles of State Policy. One of the most significant provisions in the Indian Constitution is Article 15(3) which empowers the State to adopt measures of positive discrimination in favour of women. It is also notable that the National Commission for Women was set up in the year 1992 for dealing with complaints of women’s rights violation, to advise on the aspect of socio-economic development of women and to protect the legal rights of women, etc.
At the international level, India has ratified and endorsed various conventions, instruments, initiatives, and strategies that aim to secure equal rights for women, the most significant among them being the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) which was ratified by India in 1993.
In addition to the above-mentioned legislations and measures, the Indian government has undertaken numerous policy initiatives, such as ‘National Policy for Women Empowerment’ and schemes such as ‘Beti Bachao Beti Padhao’, to secure a better, safe and equal place for women in society and to take care of their all-round interests including their socio-economic development. This article will focus on analyzing these policies and schemes in light of their role in fulfilling the goal of gender equality in India.
Also, towards the end of the article, we will also discuss the various measures taken by the government for securing equal rights to persons belonging to the transgender community.
Gender Equality : Goal 5 in SDGs
Mission statement : Achieve gender equality and empower all women and girls
Gender equality is a fundamental human right and a necessary foundation for a peaceful, prosperous and sustainable world. It is a proven fact that empowering women and girls fosters economic growth and development.
Goal targets
Ending all forms of discrimination against all women and girls everywhere.
Elimination of all forms of violence against women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation.
Eliminating all harmful practices, such as child, early and forced marriage, and female genital mutilation.
Recognising and valuing unpaid care and domestic work through the provision of public services, infrastructure, and social protection policies, and the promotion of shared responsibility within the household and the family as nationally appropriate.
Ensure women’s full and effective participation and equal opportunities for leadership at all levels of decision-making in political, economic, and public life.
Undertake reforms to give women equal rights to economic resources, as well as access to ownership and control over land and other forms of property, financial services, inheritance, and natural resources, in accordance with national laws.
Enhance the use of enabling technology, in particular information and communications technology, to promote the empowerment of women.
Adopt and strengthen sound policies and enforceable legislation for the promotion of gender equality and the empowerment of women and girls at all levels.
Goal 5 and India
India has been working hard to secure equal opportunities and status for women at all levels and in all spheres including in matters of pay, primary education, labour force, and other fields. As of June 2019, the proportion of seats held by women in Lok Sabha was merely 11% but 46% in the Panchayati Raj Institutions. In 2016, about 1/3rd of the total crimes reported against women was physical cruelty by husband or his relatives. While India is definitely on the path of achieving gender equality, there is still a lot of scope for improvement especially given the effects of the COVID-19 pandemic which has exacerbated existing inequalities.
Status of goal 5 as per SDG India Index & Dashboard 2020-21(Third Edition)
On average, 8.46% of total seats in legislative assemblies are held by women.Target number: 50% of seats each for men and women.The Legislative Assembly of Chhattisgarh has the highest representation of women at 14.44%, followed by West Bengal at 13.61%.Nagaland and Mizoram are the worst performers with no women representation.
FEMALE LABOUR FORCE PARTICIPATION
As of 2018-19, the ratio of Female to Male LABOUR FORCE Participation Rate(LFPR) is 0.33.Target number: 1The ratio of female to male LFPR is the highest in Himachal Pradesh at 0.8, while it is the lowest in Bihar at 0.06.
SEX RATIO AT BIRTH (females per 1,000 males)
As reported in SRS 2016-18, the sex ratio at birth in India is 899 females per 1000 males.Target number: At Least 950 females for 1000 males.Chattisgarh and Kerala have surpassed this target with a sex ratio at birth of 958 and 957, respectively.
FAMILY PLANNING
According to the National Family Health Survey-4 (2015-16), 72% of married women have their demand for family planning met by modern methods.Andhra Pradesh among the States and Puducherry among the UTs were the best performers at 93.6 and 87.1 percent, respectively.
CRIME AGAINST WOMEN
For every 1,00,000 female population in India, about 62 cases of crime were reported in 2019. The highest rate of crime against women was witnessed in Assam at about 178, followed by the UT of Delhi at 144 crimes per 1,00,000 female population.The lowest rate of crimes against women was in Nagaland at about 4 crimes per 1,00,000 female population followed by the UT of Puducherry at 12 crimes per 1,00,000 female population.
Women experienced CRUELTY/physical violence by a spouse or his relatives for every 1,00,000 female population
As per the reports of the National Crime Bureau, for every 1,00,000 female population, 20 have experienced cruelty or physical violence by a husband or his relatives in 2019.Assam at 71, recorded the highest number of victims per 1,00,000 female population while among the UTs, Delhi at 41, recorded the highest number of victims.
WOMEN IN MANAGERIAL POSITIONS
For every 1000 persons in managerial positions, 190 are women.Target number: At least 245 women for every 1000 persons.The highest number of women in managerial positions was recorded in Puducherry with 615 women.The lowest number of women in managerial positions was recorded in Meghalaya(111) and J & K and Ladhak(100).
FEMALE OPERATIONAL LANDHOLDERS
As per the Agricultural Census (2015-16), the percentage share of female operational landholders has increased from 12.79 percent in 2010-11 to 13.96 percent in 2015-16, which is still far from desirable. The share of female operational landholders was the highest in Meghalaya at 34.32 percent and lowest in Punjab at 1.55 percent.
WAGE GAP
For the period April 2018-March 2019, the average wage/salary earned by females is only three-fourths of that of males among regular wage/salaried employees.Target: Equal pay for men and women.Uttar Pradesh has the highest female-to-male wage ratio of 0.94 while West Bengal has the lowest at 0.53. Among the UTs, Lakshadweep is the best performer.
Government policies for gender equality in India
National Policy for the Empowerment of Women, 2001
The National Policy for the Empowerment of Women was adopted in the year 2001 for the advancement, development, and empowerment of women. The Policy strives to achieve the following goals and objectives:
Creation of an environment that fosters the overall development of women and enables them to achieve their full potential. This shall be done by adopting positive social and economic policies.
De-jure and de-facto enjoyment of all human rights and fundamental freedoms by women on an equal basis with men in all spheres.
Ensuring equal access for women to participation and decision-making in the social, political, and economic life of the country.
Equality of access to women in healthcare, quality education at all levels, career and vocational guidance, employment, equal remuneration, occupational health and safety, social security and public office, etc.
Strengthening the legal systems aimed at elimination of all forms of discrimination against women.
Changing societal attitudes and community practices by active participation and involvement of both men and women.
Mainstreaming a gender perspective in the development process.
Elimination of discrimination and all forms of violence against women and the girl child.
Building and strengthening partnerships with civil society, particularly women organisations.
Policy prescriptions
Judicial legal systems: The Policy prescribes that the legal and judicial system should be made more responsive to the needs of women. New laws will be enacted for ensuring quick justice to victims. The Policy encourages changes in personal laws relating to marriage, divorce and maintenance, property, etc. to eliminate discrimination against women and for securing them an equal status in society.
Decision-making: This involves undertaking measures to ensure active and full participation of women in decision-making bodies at all levels, including legislative, executive, judicial, corporate, committees, boards, trusts, etc. Reservations and quotas for women should be considered on a time-bound basis.
Mainstreaming a gender perspective in the development process: Women’s perspective to be mainstreamed in all developmental processes, as catalysts, participants, and recipients, through devising policies and programmes, as well as systems.
Economic empowerment of women: Steps will be taken for economic empowerment of women and this shall cover the following aspects:
Poverty eradication: Poverty eradication programs will be devised to address the needs and problems of the women population living below the poverty line.
Micro-credit: Existing micro-credit mechanisms will be established and existing mechanisms will be strengthened to enhance women’s access to credit for consumption and production.
Women and economy: Recognition and inclusion of women’s perspectives in framing and implementation of macro-economic and social policies through the institutionalisation of women participation in such processes. Appropriate policies and measures shall be undertaken for recognizing women’s contribution in various roles in the formal and informal sector and appropriate policies regarding employment and working conditions of women to be drawn up.
Globalisation: Strategies will be designed to enhance the capacity of women and empower them to deal with the negative social and economic consequences of the globalisation process.
Women and agriculture: Expansion of training programmes in social forestry, soil conservation, etc. to benefit women workers in the agricultural sector.
Women and industry: Suitable measures to be undertaken so that women can work night shifts in industries. This will include support services such as security and transportation.
Support services: Expansion of support services such as childcare facilities, creche at workplaces, and educational institutions.
Social empowerment of women: This includes:
Education: Equal access to women and girls in education and creation of a gender-sensitive educational system. Special measures to be undertaken such as universalisation of education, development of technical and vocational skills in women, special focus on girls belonging to backward communities, and introduction of a gender-sensitive curriculum at all levels of the educational system.
Health: Adoption of a holistic approach to women’s health including ensuring women’s access to comprehensive, affordable, and quality healthcare. Other measures such as compulsory registration of marriages, imparting of information regarding healthcare and nutrition, and resolving issues regarding infant and maternal mortality to be adopted.
Nutrition: Focus will be made on the fulfilment of the nutritional needs of women at all stages of life including infancy and childhood, adolescent, and reproductive phases.
Drinking water and sanitation: The needs of women in the provision of safe drinking water and sewage disposal, toilet facilities, and sanitation within acceptable reach of households will be given special attention.
Other aspects such as the inclusion of the perspective of women in housing policies, environmental policies, and ensuring increased participation of women in science and technology are also included in the policy.
The policy also recognizes the diversity of women’s situations and undertakes to provide special assistance to women in extreme poverty, women in conflict situations, disabled widows, elderly women, destitute women, single women in difficult circumstances and prostitutes, etc.
Violence against women: All forms of violence perpetrated against women, whether physical or mental, whether at domestic or societal levels will be dealt with effectively with a view to eliminate its incidence. Mechanisms and schemes will be created for providing assistance and for prevention of violence including sexual harassment at the workplace, regressive customs such as dowry, and rehabilitation of the victims of violence.
Rights of the girl child: Strong measures shall be undertaken for eliminating all forms of discrimination against the girl child within and outside the family. Laws against prenatal sex selection and practices of female foeticide common female infanticide child abuse child marriage and child prostitution to be strictly enforced.
Mass media: The Policy strives to remove the traditional stereotypical representations of women that are insulting, denigrating, and unpleasant.
Operational strategies
Action plans: The Central and state ministries are responsible for converting the Policy into a set of concrete actions by drawing up time-bound action plans. For the said purpose, the Central/state departments of women and child development and National/state commissions for women shall be consulted. The action plans will include the identification and commitment of resources and shall incorporate a gender perspective in the budgeting process, etc.
Institutional mechanisms: This includes:
Strengthening of institutional mechanisms to promote the advancement of women.
Formation of National and state councils to monitor the implementation of the policy on a regular basis.
National and State Resource Centres on women will be established with mandates for collection and dissemination of information, undertaking research work, conducting surveys, implementing training and awareness generation programmes, etc. These Centers will link up with Women’s Studies Centres and other research and academic institutions through suitable information networking systems.
Strengthening of institutions at the district level and helping women to organise and strengthen themselves into Self-Help groups at the village level. The government will help the women’s groups to institutionalise themselves into registered societies.
Legislation: Existing laws shall be reviewed and new laws shall be enacted for implementing this Policy. For the implementation of laws in an effective manner, the involvement of civil society and the community will be encouraged. Laws such as the Equal Remuneration Act, 1976 shall be strictly enforced. In order to eliminate violence and atrocities against women, the following measures shall be undertaken:
Expansion of women cells in police stations, encouraging women police stations, legal aid centres, family courts, and counselling centres.
Widespread dissemination of information relating to legal rights and human rights of women.
Gender sensitisation: This includes training of personnel of legislative, executive, and judicial wings of the state, promoting societal awareness to gender issues and human rights of women, reviewing educational curriculum to incorporate gender education and human rights issues, removal of references that are derogatory to the dignity of women from all public documents and legal instruments and using various kinds of mass media to disseminate social messages relating to equality and empowerment of women.
Panchayati Raj Institutions: The Panchayati Raj Institutions (PRIs) will play an important role in enhancing women’s participation in public life.
Partnership with the voluntary sector organisations: Participation of voluntary organisations including women organisations and NGOs to be ensured in the formation, implementation, monitoring, and review of policies and programmes affecting women.
The Women Vocational Training Programme under the Ministry of Skill Development & Entrepreneurship was launched in 1997 to mainstream women into economic activities by giving vocational training. This programme was formulated with the assistance of the Swedish International Development Authority(SIDA) and the International Labour Organization(ILO). The Programme offers:
Industrial skill training under the Craftsmen Training Scheme(CTS)
Instructor skill training under Craft Instructors Training Scheme(CITS)
Demand-driven short-term courses
Special programs for training the instructors of ITIs
Tailor-made courses as per industry’s demand
This program was implemented through a network of 11 institutes which were later named as “National Skill Training Institutes for Women”. These institutes function directly under the control of the Central government. Also, new NSTIs have been established in addition to the existing 11 institutes.
GATI (Gender Advancement for Transforming Institutions)
GATI is an initiative of the Department of Science and Technology (DST) that aims to promote gender equity in science and technology. It is an innovative project launched by the DST and is one of the three initiatives that was announced by the Hon’ble President of India on 28 February 2020, National Science Day. GATI aims to nudge higher educational institutions towards supporting diversity, inclusion, and the full spectrum of their success and progression. It aspires to create an enabling environment that encourages women to participate equally in Science, Technology, Engineering, Medicine, and Mathematics (STEMM) disciplines at all levels. The Project is inspired by the Athena SWAN Gender Equality Charter and accreditation framework operated by Advance HE, the UK since 2005.
Major initiatives, schemes, and measures taken by the government for achieving gender equality in India
Beti Bachao Beti Padhao (BBBP)
The Beti Bachao Beti Padhao Scheme focuses on ensuring the protection, survival, and education of the girl child. This Scheme was introduced by the government for addressing the issue of declining Child Sex Ratio (CSR). The overall goal of the scheme is to Celebrate the ‘Girl Child & Enable her Education’. The objectives of the Scheme are as follows:
Preventing gender-biased sex selective elimination
Mahila Shakti Kendra Scheme (MSK) aims at empowering rural women by providing opportunities for skill development and employment. The Scheme was approved for a period of three years i.e. 2017-18 to 2019-20. It is a sub-scheme under the umbrella scheme of the Mission for Protection and Empowerment of Women.
Working Women Hostel (WWH)
The Scheme for Working Women Hostel (WWH) aims at ensuring the security and safety of working women. The scheme seeks to provide safe accommodation for working women including daycare facilities for their children, wherever possible. The beneficiaries of the scheme include the following categories of working women and their children
Working women who are single, widowed, divorced, separated, or married but do not live in the same city/area as their husband or immediate family. Women from the disadvantaged sections of society may be given special preference. There should also be a provision for the reservation of seats for physically challenged beneficiaries.
Women undergoing job training as long as the total training period does not exceed one year. This is only if there is a vacancy available after accommodating working women. The number of women undergoing job training should not exceed 30% of the total capacity.
Girls up to the age of 18 years and boys up to the age of 5 years, accompanying working mothers, will be housed with their mothers. Working mothers may also avail of Day Care Centre services as provided under the scheme.
Scheme for Adolescent Girls
Previously known as the Rajiv Gandhi Scheme for Empowerment of Adolescent Girls (SABLA), the Scheme for Adolescent Girls (SAG) was devised in the year 2010. The scheme covers adolescent girls aged 11 to 18 years old and aims to provide them with life skills education, nutrition and health education, and awareness of socio-legal issues, among other things. This Scheme replaced the Kishori Shakti Yojana (KSY) Scheme and the Nutrition Programme for Adolescent Girls(NPAG).
The objectives of SAG are as follows:
To enable adolescent girls to self-development and empowerment.
Improving nutrition and health of adolescent girls.
Promoting awareness regarding health, hygiene, nutrition, etc.
Upgrading the home-based skills, life skills, and vocational skills of adolescent girls.
Supporting the out-of-school girls to transition back to formal schooling.
Providing information regarding the available public services such as Primary Health Centres(PHCs), post offices, etc.
Mahila Police Volunteers (MPV)
This Scheme envisages the nomination of Mahila Police Volunteers in all States and Union territories who will act as a link between police and community and will facilitate the women in distress. An MPV shall serve as a public-policy interface in order to fight crime against women. MPVs shall be responsible for reporting crimes against women such as domestic violence, child marriage, harassment in relation to dowry, etc.
Rashtriya Mahila Kosh (RMK)
Established in March 1993, Rashtriya Mahila Kosh(RMK) is an autonomous body, a national level organization under the aegis of the Ministry of Women and Child Development with the objective of socio-economic empowerment of women. Currently, RMK acts as a facilitating agency wherein it provides loans to NGOs, Intermediary Micro-Financing Organization(IMO), and voluntary organizations which on-lend to Self-Help Groups(SHGS) of women.
National Crèche Scheme for the Children of Working Mothers
A creche is a facility that enables parents to leave their children while they are at work and where children are provided with a stimulating environment for their holistic development. The objectives of the “National Creche Scheme for the Children of Working Mothers” are as follows:
To provide day-care services for children aged 6 months to 6 years of working mothers in the community.
To improve children’s nutrition and health status.
To encourage the holistic development of children.
To educate and empower parents/caregivers to provide better childcare.
Pradhan Mantri Matru Vandna Yojna
The Pradhan Mantri Matru Vandana Yojana aims to benefit pregnant women and lactating mothers. The Scheme came into effect on 1st January 2017. The Scheme provides a benefit of Rs.5000 payable in three installments to Pregnant Women and Lactating Mothers (PW&LM) for the first live child in the family.
The DAY-NULM under the aegis of the Ministry of Housing & Urban Affairs, the Government of India aims to provide shelters equipped with essential services to the urban homeless in a phased manner. The objective of the Mission is to reduce poverty and vulnerability of the urban poor households by providing them with opportunities for gainful self-employment. The Mission covers the urban poor and the families of disadvantaged groups including women. It encourages the formation of women’s SHGs, provides for the skilling of street vendors, and facilitates access of the vulnerable groups to institutional credit and social security, etc.
Pradhan Mantri Ujjwala Yojana
The Pradhan Mantri Ujjwala Yojana (PMYY) was introduced by the Ministry of Petroleum and Natural Gas in May 2016 with an objective to ensure the availability of clean cooking fuel such as LPG in the rural and deprived households which were otherwise using traditional cooking fuels such as firewood, cow-dung cakes, and coal, etc. The scheme aims to empower women and protect their health by providing free-of-cost LPG cylinders.
Sukanya Samriddhi Yojana (SSY) aims at the economic empowerment of women. Launched as a part of the ‘Beti Bachao Beti Padhao’ campaign, this Scheme is a small deposit scheme for a girl child in order to secure her future. The parents who have a girl child below the age of 10 years can invest in the scheme through any designated public and private banks and post-offices. The plan matures when the daughter attains the age of 21 years. The minimum deposit amount is Rs. 250 and the maximum amount is Rs. 1.5 lakh in a financial year. An interest rate of 7.6% p.a. is offered under the scheme.
Skill Upgradation and Mahila Coir Yojana
Skill Upgradation and Mahila Coir Yojana(MCY) is a training programme of MSME which aims at empowering women by providing them spinning equipment at subsidized rates after appropriate skill development training. A stipend of Rs. 10,000 per month is given to the trainees under the skill development programme.
Prime Minister’s Employment Generation Programme (PMEGP)
The objective of the Prime Minister’s Employment Generation Programme (PMEGP) is to provide financial assistance to self-employment ventures in order to create job opportunities for unemployed youth and traditional artisans. The key benefits of the programme are as follows:
Bank-financed subsidy scheme for setting up microenterprises in the non-farm sector.
Margin money subsidy on bank loans of 15% to 35% for manufacturing projects of up to INR 25 lakhs, and INR 10 lakhs for service projects.
For special category beneficiaries such as SC/ST/Ex-Servicemen/NER/Women/PH/Minorities, the money subsidy margin is 25% in urban areas and 35% in rural areas. The limit for the maximum project cost is INR 10 lakhs in the service sector and INR 25 lakhs in the manufacturing sector.
Stand-Up India
The Stand-Up India Scheme for financing SC/ST and/or Women Entrepreneurs aims to promote female entrepreneurship by facilitating bank loans ranging from 10 lakh and 1 crore to at least one scheduled caste or scheduled tribe borrower and at least one women borrower per bank branch for setting up a greenfield enterprise in the manufacturing, services, agri-allied or trading sector.
Eligibility
SC/ST and/or woman entrepreneurs aged above 18 years.
Loans under the scheme are available for only greenfield projects i.e. the first-time venture of the beneficiary in the manufacturing, services, agri-allied activities, or the trading sector.
In the case of non-individual enterprises, 51% of the shareholding and controlling stake should be held by either SC/ST and/or Women Entrepreneurs.
The borrower should not be in default to any bank or financial institution.
Mahila e-Haat
Mahila e-Haat is a joint initiative of the Ministry of Women and Child Development and Rashtriya Mahila Kosh (RMK). Launched on 7th March 2016, Mahila e-Haat is a direct online marketing platform that leverages technology to support women entrepreneurs/SHGs/NGOs and showcase the products/services that they make/manufacture/undertake. This exclusive portal is the first in the country to offer a specialised, female-focused marketing platform. Being a bilingual portal, it aims at the financial inclusion and economic empowerment of women.
One-Stop Centre (OSC) Scheme
One-Stop Centre (OSC) Scheme was launched in 2015 by the Ministry of Women and Child Development with the goal of supporting women affected by violence in private and public spaces. The Scheme provides specialised services to women who have endured any type of gender-based violence including “attempted sexual harassment, sexual assault, domestic violence, trafficking, honour-related crimes, acid attacks or witch-hunting”.
Objectives of the scheme are as follows:
Providing integrated support and assistance to women affected by violence, both in private and public spaces under one roof.
Facilitating immediate, emergency, and non-emergency access to a variety of services, including medical, legal, psychological, and counselling support, all under one roof in order to combat all forms of violence against women.
Ujjawala Scheme
The Ujjawala Scheme is a comprehensive scheme for “prevention of trafficking and rescue, rehabilitation and reintegration of victims of trafficking for commercial sexual exploitation.” The Scheme became effective on April 1st, 2016. The objectives of the Ujjwala Scheme are provided as follows:
To prevent the trafficking of women and children for commercial sexual exploitation through social mobilisation and community involvement, awareness generation programmes, generate public discourse through workshops/seminars and such events, and any other innovative activity.
Facilitating the rescue of victims from the place of their exploitation and placing them in safe custody.
To give urgent and long-term rehabilitation services to victims by providing basic necessities/needs such as shelter, food, clothing, medical treatment, counselling, legal advice and guidance, and vocational training.
To aid the victims’ reintegration into their families and society at large.
To facilitate the repatriation of cross-border victims to their country of origin.
Women Helpline Scheme
The Women Helpline Scheme came into effect on April 1, 2015. The Scheme provides a 24-hour emergency response to all women who are affected by violence both in the public and private spheres. The helpline is established in every state and union territory. Following are some of the significant objectives of the Women’s Helpline:
Provide toll-free 24-hours telecom service to women affected by violence seeking support and information.
Facilitate crisis intervention through referral to police, hospitals, or ambulance services.
Provide information about the appropriate support services available to the woman affected by violence, in her particular situation within the local area in which she resides or is employed.
Creation and maintenance of a comprehensive referral database by the Helpline within its local area.
SWADHAR Greh (A Scheme for Women in Difficult Circumstances)
This scheme is being implemented by the Ministry of Women and Child Development with the objective to rehabilitate women in difficult circumstances. The Scheme covers the following categories of women:
women who are deserted and without any social and economic support,
women victims of domestic violence, family tension, and natural disaster.
Under this Scheme, a SWADHAR Greh will be set up in every district with the following objectives:
To meet the primary needs of women in distress who lack social and economic support, such as shelter, food, clothing, medical treatment, and care.
To help them regain their emotional strength, which has been hampered due to encounters with unfortunate circumstances.
Providing them legal aid and guidance to enable them to take steps for their readjustment in family/society.
To economically and emotionally rehabilitate them.
Support to Training and Employment Programme for Women (STEP) Scheme
The objective of the STEP Scheme is to provide skills that give employability to women and also provide competencies and skills that enable women to become self-employed/entrepreneurs. The Scheme intends to benefit women all across the country who have attained the age of 16 years and above.
Promoting and supporting aspiring as well as established women entrepreneurs in India.
Assisting and handholding the women entrepreneurs in their journey from starting up to scaling up and expanding their ventures.
This unique, one of its kind, enabling platform is built on three pillars:
‘Iccha Shakti’ represents motivating aspiring entrepreneurs to start their businesses.
‘Gyaan Shakti’ represents providing knowledge and ecosystem support to women entrepreneurs to foster entrepreneurship.
‘Karma Shakti’ represents providing hands-on support to entrepreneurs in setting and scaling up businesses.
Initiatives taken by the government for transgender persons
Recently, India has enacted a law for the protection of rights of transgender persons that came into force on 10th January 2022. The Act, namely the Transgender Persons (Protection of Rights) Act, 2019 recognizes the identity of transgender persons and prohibits discrimination or unfair treatment against them in relation to education, employment, healthcare services, holding public or private offices, etc.
In addition to the aforesaid legislative measures, the Government of India has undertaken some policy and other measures for upliftment and protection of the rights of transgender persons, which are discussed as below:
Support for Marginalised Individuals for Livelihood and Enterprise (SMILE)
Comprehensive Rehabilitation for Welfare of Transgender Persons;
Comprehensive Rehabilitation of Persons engaged in the act of Begging;
SMILE covers several comprehensive measures for the welfare of transgender persons which are provided as follows:
National Portal for Transgender Persons
The Ministry of Social Justice and Empowerment has launched the “National Portal for Transgender Persons” in consonance with the Transgender Persons (Protection of Rights) Rules, 2020. The official website of the portal is:transgender.dosje.gov.in
The Portal provides the following facilities:
Certificates and Identity Cards: The Portal provides the facility for transgender persons to apply for certificate and identity cards from across the country without physical interface through a seamless end-to-end mechanism. The Transgender certificate and identity card is nationally recognised and provided by the Ministry of Social Justice & Empowerment. The aforesaid certificate is a mandatory document to avail the welfare measures being provided under the SMILE Scheme.
Helpline: The portal provides technical and administrative support to the applicant. It also assists in sending timely reminders to district authorities for expediting the process of issuing certificates and identity cards to applicants to alleviate unnecessary delays by making the process transparent to the beneficiaries.
The Portal also encourages online skill training and employment opportunities for transgender persons and provides recognition/incentives to those applicants who have done courses from the SWAYAM portal.
SMILE Garima Greh : Shelter Homes
Garima Greh aims to provide shelter to destitute and abandoned transgender persons with basic amenities such as shelter, food, medical care, and recreational facilities. In addition to that, it also provides support for the skill development of transgender persons. Garima Greh seeks to empower the transgender community by ensuring that they have access to a safe and secure environment.
TGs certified issued through National Portal for Transgender Persons and preferably living below the poverty line.
Transgenders who are abandoned, aged above 18 years and below 60 years.
TGs should not be engaged in sex work and beggary.
TG must be unemployed and not engaged in productive commercial activities.
Scholarships
The Ministry of Social Justice & Empowerment is providing scholarships to transgender students for studies. These scholarships are available in four categories:
Scholarships for secondary school (9th and 10th) transgender students.
Scholarships for senior secondary (11th and 12th) education.
Scholarships for students (Undergraduate/Diploma).
Scholarships for students (Post-graduation)
Skill Development and Training
The Skill Development and Training programmes are provided in the form of short-term training programs and long-term training programs with the aim of providing employment opportunities to the persons belonging to the transgender community by teaching them market-oriented skills. The training is provided free of cost and a stipend of Rs. 1000 per month per trainee is also given in case of non-residential training.
Medical Support and Health Benefits
This scheme aims to provide health insurance coverage to all transgender persons living in India to improve their health condition through proper treatment including sex reassignment surgery as well as medical support. The scheme would cover all transgender persons not receiving such benefits from others centre/state-sponsored schemes.
Eligibility
The transgender persons will be selected as per the following criteria:
The beneficiary should be a transgender person as notified by the Government of India holding a Transgender Certificate & Identity Card issued by the National Portal for Transgender Persons.
The beneficiary should not be availing similar benefits from any other scheme of the Centre or state government.
Conclusion
This article has extensively discussed the various policy measures, schemes and other initiatives undertaken by the Government of India to achieve gender equality in India. These schemes and measures seek to uplift, protect and empower women and persons of the transgender community to enable them to enjoy an equal status in personal and public life and to eliminate all forms of discrimination, prejudice and unfair treatment meted out to them. While there are a plethora of schemes and laws that have been formulated and are being formulated to address the gender inequalities in India, what is required is the continuous monitoring and tracking of the implementation of these measures. In addition to that, the timely revival and updation of these policies to make them more inclusive and responsive to the urgent needs of a particular situation or crisis will go a long way in accelerating the achievement of the goal of gender equality in India.
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