Salient features of Dowry Prohibition Act, 1961

The practice of dowry has to be examined in the broader context of the devalued status of women. Parents are often compelled to pay dowry to ensure the security and happiness of their daughter in her matrimonial home.

Dowry Prohibition Act, Indian law, enacted on May 1, 1961, intended to prevent the giving or receiving of a dowry.

Amendments to the original Dowry Prohibition Act also established minimum and maximum punishments for giving and receiving dowry and created a penalty for demanding dowry or advertising offers of money or property in connection with a marriage. The Indian Penal Code was also modified in 1983 to establish specific crimes of dowry-related cruelty, dowry death, and abetment of suicide. These enactments punished violence against women by their husbands or their relatives when proof of dowry demands or dowry harassment could be shown.

The definition of dowry in the Dowry Prohibition Act, 1961 is given in Section 2 as follows:

2. Definition of “dowry”.—In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;

at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Dowry does not include dower or mahr in the case of Shariyat laws.

The definition of the dowry includes the demand for any property before marriage, at the time of marriage, or even after the marriage from one party of marriage to the other party. Such demand should be in connection with the marriage. This demand shall be fulfilled by the party of the marriage, or parents of the party of the marriage, or any other related person of the party of the marriage.

If the husband demanded an amount of Rs 50,000 by way of dowry some days after the marriage from the wife’s father and in the event of her not being able to give that amount was subjected to torture, it would mean that the amount was demanded in connection with the marriage and it was a demand of dowry even though it was demanded after marriage.

The Dowry Prohibition Act 1961 does not bar the traditional giving of presents at or about the time of a wedding. Thus such presents or dowry given by the parents is therefore not at all within the definition of the statute. But it is provided that such gifts must not be demanded, they must be given voluntarily.

The Act provides for the penalty for taking dowry and abetting to take dowry. Such a person may get a punishment of imprisonment not less than five years and he has to pay a fine of at least 15,000 or value equal to such dowry demanded, whichever the more. Such punishment is provided in Section 3 of the Act.

The Act also makes agreements of giving and taking dowry void by Section 5.

Section 6 of the Act provides for the transfer of the property received in the name of dowry to the woman within three months from the date of its receipt. Such transfer in the name of the woman will be beneficial to her and her children. If the receiver of the dowry fails to transfer such property to the concerned woman then an amount equal to the value of the property may be recovered from him.

Every offence under the Act is non-bailable and non-compoundable.

The Act empowers the State Government to appoint the Dowry Prohibition Officer and to make rules for carrying purpose of the Act. Also, Central Government is empowered to make rules for the implementation of the Act.

 

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References:

1) The National Commission for Women Recommendations and suggestions on Amendments to the DOWRY PROHIBITION ACT, 1961

2) Dowry Prohibition Act

3) Dowry Prohibition Act, 1961

Bigamy in India:

Meaning:

Marriage has been defined as a pure sacrament, particularly in our Indian culture a bond that joins two lives together till the end of their lives, unlike in other countries where entering into a marriage is a contract.

If a certain person in a marital bond cheats with the other person and enters into a new bond of marriage during the lifetime of the other partner, doing this is also known as committing the offence of Bigamy, the sole reason being it is immoral on the part of the first partner to start a new life at the expense of happiness and peace of the previous partner in marriage.

The second marriage while the first marriage is in subsistence is called Bigamy. Bigamy, in simple words, means a person marries for the second time while his first marriage is in subsistence.

The bigamy law is applicable to Hindus, Jains, Buddhists, Sikhs, Parsis, and Christians [except Muslims].

Position in society:

In a case, where the husband or the wife is alive then, the second marriage contracted by a person is not legal and does not hold any validity in the eyes of law, i.e. it is termed to be a void marriage. The position of bigamy in India is certainly mentioned in the law but the practice is still very common and hence the contrast between the law and social practice results in the second wives not having enough protection.

Women in the second marriage are cheated on and are not provided with much protection under Indian laws. There is no legal recognition given to second wives. Nevertheless, the victims of bigamy can still approach the Courts for claiming maintenance. The second wife is entitled to maintenance, she is not entitled to property rights.

Legal provisions;

The key law forestalling Bigamy in India is the Indian Penal Code yet in the event that personal laws do not explicitly specify Punishment for Bigamy or illegalize Bigamy, at that point any person can’t be indicted for the offense of bigamy. Bigamy is prohibited in India under Section 494 of the Indian Penal Code. The law expresses that, whoever marries another person in the lifetime of the existing spouse, such marriage by reason of its occurring during the lifetime of such husband or wife, should be viewed as void and should be punished for such offense. If any person marries more than once during the life of his first spouse, he/she should be punished with imprisonment which may extend to seven years, and shall also be liable to a fine.

Section 494 of the IPC provides about “Bigamy” as thus “Whoever, having a husband or wife living, marries again in any case in which such marriage is void by reason of its taking place during the life of such husband or wife shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.

Bigamy in India is a non-cognizable offence. It is bailable and compoundable when the permission of the Court is granted if the offence is committed under section 494 of the IPC. The punishment for bigamy is imprisonment, of a maximum of 7 years or a fine or in some cases, both. In case the person charged with bigamy has performed the second marriage by concealing the fact of the first marriage, then he shall be punished with imprisonment of up to 10 years or a fine or both. Such offence under section 495 is not compoundable.

Hindu Marriage Act, 1955- As per the Section 17 of the Hindu Marriage Act, 1955, if a person considered to be a Hindu under the Act, marries another person in the existence of his/her first marriage, i.e, while the first husband or wife is alive, then that person shall be punished under the Indian Penal Code. Section 16 of the Hindu Marriage Act 1955 states that the children born from a bigamous relationship shall be held perfectly valid. But there is no legal recognition for the second wife, but she may have a chance of maintenance under the Act.

Muslim Women (Protection of Rights on Divorce) Act, 1986- Under this Act, unlike other religions, there are no particular or specific provisions for bigamy. A Muslim man has a right to marry twice, thrice, or four times if he is able to treat and respect all of his wives in an equal manner. In case he fails to do so, then he is liable.

Parsi Marriage and Divorce Act, 1936- Section 5 of this act affirmed Bigamy null and void or dissolved and imposes a penalty which has been laid down under Section 494 and 495 of Indian Penal Code, 1860.

Christian Divorce Act, 1896- This act does not provide a specific law for bigamy but at the time of registration of marriage, Section 60 lays down that none of the parties to the marriage should have been in an existing marriage and if a person gives a fall oath or declaration, then he/ she is punishable under Section 193 of the Indian Penal Code. This provision explains that under this Act, more than one marriage is considered to be illegal.

Special Marriage Act, 1954- Section 44 of this Act lays down that if any person commits bigamy then he/ she is liable under Section 494 and 495 of the IPC, 1860.

Foreign Marriage Act 1969- Section 19 of this act states the punishment for Bigamy and imposes a penalty under Sections 494 and 495 of the Indian Penal Code.

Sarla Mudgal v. Union of India (1995 AIR 1531 SC): The Supreme Court of India in its landmark judgment held that “where any man (not Muslim initially) converts his religion into Islam for the sole purpose of contracting a second marriage without legally divorcing his first wife ), the marriage shall be regarded as void and illegal and he shall be punished in the similar manner as he would have been punished had he not converted his religion.”

Bigamy shall not apply if:

a) the first husband or wife is dead, or

b) the first marriage has been declared void by the Court of competent jurisdiction, or

c) the first marriage has been dissolved by divorce, or

d) the first spouse has been absent or not heard of continually for a space of seven years. The party marrying must inform the person with whom he or she marries of this fact.

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References:

1) Rights of the second wife in India

2) Is Bigamy a Punishable Offence in India?

3) BIGAMY LAWS FAQ

Salient features of conventions for elimination of all forms of discrimination against women:

 

Article 1 of the CEDAW defines discrimination against women as follows:

Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), human rights treaty adopted by the General Assembly of the United Nations in 1979 that defines discrimination against women and commits signatory countries to take steps toward ending it.

The convention, which is also known as the International Bill of Rights for Women, consists of 30 articles and includes an optional protocol (OP). Human rights agreements often include OPs to provide an alternative mechanism to hold governments accountable or to further elaborate on any substantive topic within the treaty itself.

The rights listed in the Convention for Elimination of all forms of Discrimination Against Women (CEDAW) cover many aspects of women’s lives and relate to political participation, health, education, employment, housing, marriage, family relations, and equality before the law.

Under CEDAW, governments are also responsible for ensuring that individual citizens and private organisations do not discriminate against women.

The CEDAW requires both substantive and formal equality, non-discrimination, and empowerment of women, therefore recognizes that formal equality alone is insufficient for a state to meet its obligation and requires measures to address both direct and indirect discrimination to achieve substantive equality between men and women.

CEDAW provides for the right to education of females, protect the reproductive right, sex trafficking and exploitation; political and civil rights, such as the right to vote; health, employment, and marriage; and specific issues affecting rural women, such as access to agricultural credit and loans.

The Committee on the Elimination of Discrimination against Women (CEDAW Committee) is the international body charged with monitoring the implementation of the legal obligations of the 189 States parties under the Convention on the Elimination of All Forms of Discrimination against Women (the CEDAW).

The CEDAW Committee monitors the progress made by the countries, which have ratified or acceded to the convention, in implementing CEDAW.

The CEDAW Committee is made up of 23 independent elected members (elected by countries who have signed CEDAW) who serve in their personal capacity as ‘gender experts.’

The CEDAW Committee meets three times a year to address specific topics related to CEDAW and to monitor and report on the progress of individual countries that have signed CEDAW.

Countries that have signed CEDAW are required to submit reports to the CEDAW Committee at least every four years.

Thus it can be concluded that CEDAW is the convention that enables feminist jurisprudence in the 189 countries that signed the convention. There is a CEDAW committee that monitors the implementation of measures taken to enforce the CEDAW provisions. This convention not only provides for the discrimination of women but also heinous crimes against women, such as trafficking, sexual violence, etc.

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References:

1) Committee on the Elimination of Discrimination against Women (CEDAW)

2) Convention on the Elimination of All Forms of Discrimination Against Women

3) The Convention on the Elimination of All Forms of Discrimination against Women(CEDAW): Sex Discrimination - International Activities

Status of Women in Pre-Constitutional Period

 

Pre-constitutional period means period before the enactment of the Constitution of India i.e. 26^th January, 1950 across India. It includes the British Rule era and period between 15^th August, 1947 and 26^th January, 1950.

During British rule the position of wife in household was at sorry level. The women were dominated in domestic sphere. Literacy rate was also very low, hardly 1 out-off  100 women was able to read and write. Evil social practices, dogmatic religious beliefs, inhuman superstitions and sinister customs caused the maximum degree of deterioration. Child marriage, enforced widowhood, sati, Devadasi, purdah, burkha, dowry, female infanticide and the practice of polygamy made the Indian society static. One sect of the society was having easy provisions of divorce but in the majority the provision for divorce was not present.

During the communal tensions between the religious groups, only the women were victims of sexual violence. During such riots, specifically in Madras precidency, if a pregnant woman was caught then the rioters use to cut her belly and let her to die. Age old women were killed by these rioters. Female children, young girls and other adult women were raped heinously. Also in some parts during such riots, specifically during partition, in the area of Punjab and Bengal, the women were disrobed and forced to walk in front of rioters and then they were gang-raped brutally. British rulers were not able to handle such communal riots and such incidences took place many times even after 1900.

The majority religious group was practicing some things such as child marriages, enforced widowhood, sati, Devadasi, purdah, etc. But the social reformers such as Raja Ram Mohan Ray, Iswar Chandra Vidyasagar, Savitri Bai Phule, Mahatma Jyotiba Phule and others protested for the abolition of such practices and they stressed for the women education and widow remarriages. Their efforts were accepted by the majority religious groups.

The majority religious group accepted the reforms Sati’ was legally abolished in December, 1829. After the abolition of ‘Sati’ the Britisher’s realized the pitiable conditions of the Hindu widows and enacted the Hindu Widow Remarriage Act in 1856. The Hindu Woman’s Right to Property Act was passed in the year 1937. It intended to improve the position of widows in respect of property. The Child Marriage Restraint Act was passed in 1929. This Act penalized the marriage of girls below fourteen and boys below eighteen years of age. They accepted the reforms and many inhumane practices were abolished and many Acts in favour of Hindu women were passed. Also for these reforms Hindus supported to the protests and then government was forced to pass the enactments.

Some religious groups were against such reforms and from such groups practices like polygamy were not reformed, because no one was there to protest against such practices. And still there are some sects in the society where polygamy, dowry, no education rights, child marriage, etc. are practiced which are heinous.

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Explain the provisions relating to women in Directive Principles of State Policy under the Indian Constitution.

The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio-economic, education, and political disadvantages faced by them. The Constitution of India prohibits discrimination based on sex but it equally directs and empowers the government to undertake special measures for women. The Constitution provides many protection rights for women such as Protective discrimination in favor of women, the Right to freedom of women, the Right of women against exploitation, the Rights of women under directives, and political representations of women.

This policy envisaged equal rights to work, equal pay for equal work, and adequate means of decent and dignified livelihood for both men and women, these are guaranteed under the directive principles of State policy. Part IV of the Constitution containing Articles 38, 39 (a) (d) and (e), 42, 44, and 45 deals with the welfare and development of women.

A. Equal justice and free legal aid

In the Indian Constitution, there are provisions to get Equal justice and free legal aid to the needy. Such provisions are given in Article 38 of the Constitution of India, which reads as follows:

Article 38. State to secure a social order for the promotion of welfare of the people -

(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

Legal Aid means giving free legal services to the poor and needy who are unable to afford the services of an advocate for the conduct of a case or a legal proceeding in any court, tribunal, or before any judicial authority.

In the case of Hussainara khatoon vs. State of Bihar, it was held that if an accused is not able to afford legal services then he has a right to free legal aid at the cost of the state.

B. Principle of “equal pay for equal work” is a constitutional goal.

This principle is provided in Clauses (a) and (d) of Article 39 of the Constitution of India, which read as follows:

Article 39: Certain principles of policy to be followed by the State:

The State shall, in particular, direct its policy towards securing—

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(d) that there is equal pay for equal work for both men and women;

India still lacks a comprehensive and transparent wage policy for all the sectors of the economy. Gender equality is the goal, while gender neutrality and gender equity are practices and ways of thinking that help in achieving the goal. Gender parity, which is used to measure gender balance in a given situation, can aid in achieving gender equality but is not the goal in and of itself.

In Clause (a) of Article 39, all citizens, regardless of gender, have equal rights and a decent livelihood.

Article 39(d) ensures that there is equal pay for equal work for both men and women. The Parliament has enacted the Equal Remuneration Act, 1976 and implemented Article 39. The doctrine of ‘equal pay for equal work’ is equally applicable to both men and women, even the daily wagers are also entitled to the same wages as other permanent employees in the department employed to do the identical work.

The Apex court in Randhir Singh v. Union of India has expressed the opinion that the principle of “equal work” is not declared in the Constitution to be a fundamental right but it is certainly a constitutional goal.

C. Men and women workers to be protected equally

This principle is provided in Clauses (a) and (e) of Article 39 of the Constitution of India, which read as follows:

Article 39: Certain principles of policy to be followed by the State:

The State shall, in particular, direct its policy towards securing—

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

In Clause (a) of Article 39, all citizens, regardless of gender, have equal rights and a decent livelihood.

According to Article 39(e) of the Constitution, the state is required to ensure that the health and strength of women workers are not abused and that they are not forced by economic necessity to enter avocations unsuited to their strength and that of the children of underage to be protected equally. They should not be forced to work under inhuman and hazardous conditions.

In M.C Mehta v. State of Tamil Nadu, it has been held that in view of Article 39 the employment of children within the match in view of Article 39 the employment of children within the matches factories directly connected with the manufacturing process of matches and fireworks cannot be allowed as it is hazardous. Children can, however, be employed in the process of packing, etc. away from the place of manufacturing.

D. Provisions for maternity benefits:

Article 42 of the Constitution of India gives the provisions for the safety of women in work conditions and maternity relief. The said article reads as follows:

42. Provision for just and humane conditions of work and maternity relief –

The State shall make provision for securing just and humane conditions of work and for maternity relief.

E. Uniform Civil Code and Gender Equality

Article 44 of the Constitution of India gives the provisions for Uniform Civil Code in India. In order to establish true equality among the citizens of the country, the State must enforce the Uniform Civil Code. Gender justice means social, political, and economic equality for women. The Article reads as follows:

44. Uniform civil code for the citizens –

The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

It suggests the abolition of the patriarchal system that has been infused with the system. Gender justice is indispensable for ‘development’ in a true sense. The implementation of a uniform civil code and the issue of gender justice, two are closely connected to each other in the Indian socio-legal perspective. Women empowerment in core areas like social status, gender bias, health, security, and empowerment are of urgent necessity. There is no Uniform Civil Code in India but a Uniform Criminal Code exists. Criminal law is equally applicable to all citizens irrespective of their religious affiliation. However, in the case of civil law particularly in the matter of personal laws, there is no uniformity. World history is evidence of the fact that one of the most neglected ideas has been that of women’s rights. Around half of the world’s population has been denied equality in almost every sphere of life. This statement is a testimony to the fact that equality without gender justice is no equality at all.

In a landmark judgment in Sarla Mudgal versus U.O.I: The Supreme Court has passed directions to the Central Government to review Art. 44 of the Constitution which permits the state to guarantee a uniform civil code (U.C.C). According to the court, it is imperative and essential for the protection of the oppressed and for the promotion of public solidarity and integrity.

F. Free Education for female children:

The right to education is a fundamental right and Article 45 provides the directive principle to impart free education to all children of India irrespective of their gender, caste, creed, religion, etc. until they complete the age of fourteen years. The Article reads as follows:

Article 45 Provision for free and compulsory education for children –

The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

As per Article 45, all children are to be given free education irrespective of their gender.

Thus Directive Principles of State Policies through Articles 38, 39 (a), (d) and (e), 42, 44, and 45 provide for the feminist jurisprudence.

References:

1) DIRECTIVE PRINCIPLES OF STATE POLICY AND WOMEN IN INDIA

2) Women Rights under the Constitution of India

3) PART IV DIRECTIVE PRINCIPLES OF STATE POLICY

What do you understand by outraging the modesty of a woman?

Outraging the modesty of a woman:

Section 354 of the Indian Penal Code provides definition and punishment for the outraging the modesty of a woman. The said section reads as follows:

354. Assault or criminal force to woman with intent to outrage her modesty.-

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.

Outraging the modesty of a woman is an offence provided there is use of assault or criminal force with the intention for the purpose or knowing it likely that he will thereby outrage her modesty. The offence under this section is different from rape and is of less seriousness than the one under Section 376.

It has been made a non-bailable offence under the Criminal Law Amendment Act, 2013.

Ingredients

The section has two main ingredients:

(i) Assault or use of criminal force to a woman. The act on his behalf must be an outcome of the criminal force or an assault used by him.

(ii) Intention of the actor or his knowledge that he would thereby commit this offence. From the side of an accused, section 354 requires basic knowledge on his part that his act is likely to cause harm to a woman's modesty.

Outraging the modesty

In ordinary language "modest" means freedom from conceit or vanity or propriety in dress, speech and conduct. Modesty means sexual dignity of a woman which is acquired by her since the time of her birth. Modesty is defined as something lewd or scrupulously chaste as per the Oxford dictionary. The Supreme Court defined, the essence of a woman’s modesty is her sex.

The word "outrage" has affinity with extremely rude, violent, injurious or insulting act on one hand and it is connected with guilt, culpability, criminality and deviation from rectitude on the part of the person committing assault or using criminal force on a woman. The word ‘outrage’ implies a physical act.

The concept of modesty is subjective to every woman i.e. the sexual limits are personal to every woman; there cannot be a set formula to judge the boundaries of the sexual honour of a woman.  For example, a simple touch on the shoulder might be unacceptable to a woman who lives in a rural area but for a woman in an urban area it could be a casual gesture to greet people. However, there are certain acts which are bound to violate the modesty of every woman and these are the concerns of law, e.g. touching on her posterior sexual organs etc.

Herein, the modesty of a woman is violated by touching her without her consent at such parts of her body which are unacceptable to her. The reaction of the woman is not very relevant in judging as to whether an assault to her amount to outraging her modesty as this offence differs from woman to woman. The ultimate test for ascertaining whether modesty has been outraged is whether the act by the accused is capable of shocking the sense of decency of the woman.

Examples- include demand for disrobing her, defamatory remarks, forcefully dragging her to commit sexual assault and not limited to voyeurism are acts that would come under the ambit of outraging the modesty of a female.

Insulting Modesty

The word ‘insult’ refers to a situation where a woman is made to feel ashamed of her sexual dignity i.e. lowering the sexual honour of a woman in her own eyes. It may be done by passing sexual obscene remarks or making such gestures, sounds or showing sexual objects to her.

The modesty of a woman is insulted without actually touching her but by uttering any word, making any sound or gesture or exhibiting any object which has a sexual connotation with the intention that it be heard, seen or intrudes upon the privacy of such woman. If a person with an object to insulting the modesty of a woman exposes private parts of his body to her or uses obscene words or exhibits obscene drawings he shall be liable for the offence of insulting the modesty of a woman. However, the offender himself doesn’t need to personally exhibit the object; he may employ an agent for the same.

 

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References:

1) Outraging modesty of a woman [S. 354]

2) Sexual Offences in IPC: Outraging Modesty, Disrobing, Voyeurism, and Stalking

3) Case study on outraging modesty of women

 

 

Explain the beneficial provisions conferred on the women under the Factories Act.

The Factories Act, 1948:

The Factories Act, 1948 The Factories Act is a part of labour welfare legislation wherein measures have been laid down to be adopted for the health, safety, welfare, working hours, leave and employment of young persons and women who are employed at factories. The Act was drastically amended in 1987 whereby safeguards against the use and handling of hazardous substances for setting up hazardous industries were laid down.

Provisions for women's welfare under the Factories Act, 1948

Exclusive provisions for women have also been incorporated in the Act keeping in view their soft and tender personalities. The maximum of these provisions was incorporated by the amendment of the Act in 1987. Provisions for the welfare of women:

Prohibition of employment of women during night hours: It is a safety measure for a woman.

Section 66(1)(b) of the Factories Act, 1948 states that no woman shall be required or allowed to work in any factory except between the hours of 6 a.m. and 7 p.m.

Prohibition of work in hazardous occupations: it provides that no women shall be allowed to clean, lubricate or adjust any part of a prime mover of any transmission machinery, lubrication or adjustment which would expose the women to risk of injury from moving any part either of that machinery.

Section 22(2) of the Factories Act, 1948 provides that no woman shall be allowed to clean, lubricate or adjust any part of a prime mover or of any transmission machinery while the prime mover or transmission machinery is in motion, or to clean, lubricate or adjust any part of any machine if the cleaning, lubrication or adjustment thereof would expose the woman to risk of injury from any moving part either of that machine or of any adjacent machinery.

Pearson v Belgium Co LTD.(1896) 1 Q B 244: The question was whether stationary parts of a machine can be cleaned by women if the machine as a whole is in motion. It was held by the court that if machinery as a whole is in motion even stationary parts of the machine cannot be cleaned by a woman.

Richard Thomas and Baldwins Ltd. V Cummings(1955) 1 AII ER 285: The court observed that there would be no breach of statutory duty if an injury occurs while the machinery is unfenced if the power is cut off and the machinery is under repairs and the parts are not in motion but are moved by hand for purposes of repairs.

Prohibition of employment of women in pressing cotton where a cotton opener is at work: Section 27 of the Factories Act, 1948 prohibits employment of women in any part of a factory for pressing cotton in which a cotton opener is at work.

Fixation of daily hours of work at nine: Hours of work which provides that the daily hours of work of adult workers have been fixed at 9 by provisions of Section 54 of the Factories Act, 1948. Sometimes men can work for more time but it does not permit women workers to go beyond the limit.

Fixation of maximum permissible load: It is a safety measure and it is also supported by the International Labour Laws.

Provision for crèche: In every factory where more than 30 women workers are ordinarily employed, there shall be a suitable room for the use of children under the age of six years of such women. It is a nursery and a place where the babies of working women are taken care of while the mothers are at work. It provides that in every factory there shall be a suitable room for the use of children under the age of 6 years of such women and should be adequately clean, ventilated, accommodation and sanitary condition. Section 48 of the Factories Act, 1948 provides for the provision of crèche in factories.

Provision for washing and bathing facilities, toilet facilities: The Act provides for separate and adequately screened washing and bathing facilities for women. Washing and bathing facilities are provided for women workers and shall be kept clean. Provisions for toilets are also provided under the Factories Act. Latrine and urinal facilities separately for men and women are necessary where women labour is employed. The factories Act must make it obligatory for any factory owner to maintain an adequate number of latrines and urinals separate for women. Provision for separate latrines and urinals for female workers exists under Section 19 of the Factories Act, 1948. Provision for separate washing facilities for female workers exists under Section 42 of the Factories Act.

All the above provisions are simultaneously provided under The Plantations Labour Act 1951, The Mines Act 1952, The Beedi and Cigar Workers (Conditions of Employment) Act 1966, The Contract Labour (Regulation and Abolition) Act 1970 and The Interstate Migrant Workmen (Regulation of Employment and condition of services) Act 1979.

References:

1) Protection of women under the labour laws

2) Women Rights Under Indian Labour Laws- A Socio-Economic Study

3) About Women Labour

What are the main features of Immoral Traffic (Prevention) Act?

The Immoral Traffic (Prevention) Act (for short ITPA) was Act no. 104 of 1956 and it was enacted on Dt. 30.12.1956. The long title of the ITPA is, “An Act to provide in pursuance of the International Convention signed at New York on the 9^th day of May, 1950, for the Prevention of Immoral Traffic.” It is evident from the long title that the ITPA is enacted in pursuance of the International Convention for the Prevention of Immoral Traffic, New York, signed on Dt. 9.05.1950.

The ITPA extends to whole India.

According to ITPA any person who is keeping and/or managing a brothel is liable for the punishment of rigorous punishment for 1 to 3 years with a fine upto Rs. 2,000/- (Two thousands only). If such person is again convicted for the same crime then the rigorous imprisonment term may be 2 to 5 years with a fine upto Rs. 2,000/- (Teo thousands only).

If a major (completed 18 years of age) person is living on the earning of prostitution then such person may be punished with imprisonment of a term upto 2 years and/or a fine upto 1,000/- (One thousands only). And if such prostitute is a minor, then the person who is living on her/his earning will be punishable for imprisonment of a term of 7 to 10 years.

Further the ITPA provides the punishment for procurement, inducement or taking a person for sake of prostitution which is rigorous imprisonment 3 to 7 years with a fine upto Rs. 2,000/- (Two thousands only). And if such act of the convicted person is against the will of the person then the punishment will be rigorous imprisonment of 14 years.

This Act provides for the appointment of special police officer and advisory body for dealing the offenses under the Act.

Offenses under ITPA are cognizable offenses. Also search of such premises where brothel is continued can be done without search warrant due to the provisions of the IPTA Act.

This act provides for the establishment of protect home for removed and rescued persons from such heinous trafficking. Also how such protect homes should maintain their records is provided under ITPA.

Only Metropolitan Magistrate or a Judicial Magistrate of the first class can try the offenses under the ITPA.

State governments and Central government are empowered to establish the special courts for imparting the justice in the cases covered under this Act. State governments are empowered to formulate the rules and regulations under this Act for proper implementation of the Act and such rules are published in the official gazette of the State.

The ITPA provides for the prevention of the trafficking of humans for illicit purpose of prostitution and brothel. Both are the heinous acts which are destroying the ethics of the humanity. In general in such businesses women are forcefully thrown and they are forced to lose their dignity and modesty.

Reference:

TheImmoral Trafficking (Prevention) Act, 1956.

 

Environmental Law Short Questions and Answers: Part 3

Vande Matram! Here are some short questions and answers on Environmental laws in India. Please read these and note them down for your knowledge.

When is the hunting of a wild animal permitted in India?

·         Hunting of wild animals is permitted only when such animals become dangerous to human beings or it becomes diseased beyond recovery.

Which Section of the Indian Forest Act, 1927 provides poisoning water of a forest area?

·         The Indian Forest Act, 1927 Section 26(i) of the Act makes it punishable if any person, who, in contravention of the rules made by the State Government, poisons the water of a forest area. This is a colonial law and this provision must be incorporated into the statute of independent India.

Enlist the main provisions for the protection of the environment enacted in India?

·         the Wild Life (Protection Act), 1972

·         The Indian Forest Act, 1927

·         The Water (Prevention and Control of Pollution) Act, 1974

·         The Air (Prevention and Control of Pollution) Act, 1981

·         Environment (Protection) Act, 1986

·         The Noise Pollution (Regulation and Control) Rules, 2000

·         The Serais Act, 1867

·         Obstruction in Fairways Act, 1881

Which Act empowers pollution control boards to inspect and analyse industrial plants?

·         The Water (Prevention and Control of Pollution) Act, 1974 empowers Pollution Control Boards to enter into industrial plants, factories, etc., and inspect plants, records registers, and documents, to take samples of industrial effluents and analysis of same.

What is the objective of the Air (Prevention and Control of Pollution) Act, 1981?

·         The objective of the Air (Prevention and Control of Pollution) Act, 1981 is to provide prevention, control, and abatement of air pollution. This Act basically aimed at industrial pollution and automobile pollution. 

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Environmental Law Short Questions and Answers: Part 2

Vande Matram! Here are some short questions and answers on Environmental laws in India. Please read these and note them down for your knowledge.

What is the Constitutional provision for the protection of the environment in India?

·         In Article 48 of the Constitution of India, it is clearly stated that it is the duty of the state to ‘protect and improve the environment and to safeguard the forests and wildlife of the country’. It imposes a duty on every citizen ‘to protect and improve the natural environment including forests, lakes, rivers, and wildlife.’

Who is responsible for making rules and regulations for the protection of the environment in India?

·         The Ministry of Environment and Forests, India. In India, the Ministry of Environment and Forests is the nodal agency at the Central level for planning, promoting, and coordinating the environmental programmes, apart from policy formulation.

What are the main objectives of the Ministry of Environment and Forests?

·         Following are the main objectives laid down by the Ministry of Environment and Forests:

o   Conservation & survey of flora, fauna, forests, and wildlife

o   Prevention and control of pollution

o   Afforestation & regeneration of degraded areas

o   Protection of the environment.

 Who is authorised to monitor industrial pollution and its prevention, and control?

·         In India the Central Pollution Control Board monitors, industrial pollution, prevention, and control at the central level, which is a statutory authority attached to the Ministry of Environment and Forests.

·         At the State level, the State Departments of Environment and State Pollution Control Boards are the designated agencies to perform these functions.

What is the main motive of the Wild Life (Protection Act), 1972?

·         The motive of the Wild Life (Protection Act), 1972 is to introduce legislation for providing protection to wild animals and birds. It provides that the wildlife which is an integral part of the ecosystem can be protected and guarded against extinction. This Act is basically for the protection of animals, plants, and birds that live in forests. 

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Concept of the environment

 Concept of the environment:

Environment has everything to meet the needs of the individual and not the desire.  The writings in the Vedas and Upanishads clearly depict the idea of environment. Environment and development are two paradoxical situations which needs a balance from both the sides.

Sustainable development is the core concept in modern times for protection of environment and keeps up the pace of development. Environment in broader terms includes each and everything in the ecosystem and their relationship between each other.

Sustainable Development speaks the essence of balancing the needs of present and future generations, national and international perspectives clearly help us to understand the idea of protection of the environment and to give preference on development without altering the purpose and essence of which it is built.

IDEA OF ENVIRONMENT

Environment denotes totality of all extrinsic, physical and biotic factors effecting the life and behaviour of all living things. The word “Environment” is derived from the French word “Environmer”, means encircle and encompasses within it the land, water, flora, fauna, living creatures, forests and everything on the earth.

Industrialization and ever-growing technological development has caused damage to the environment to an alarming extent. The question of protection of environment is so important that it is regarded as a Human Right around the world.

The term “Environment” is sum of various phenomena the dynamism of this term defines its scope. A lot of attempt has been made to define Environment through various national and International instruments. Generally, environment comprises of natural resources, external conditions, stimuli etc., with which a living creature interrelates.

The Preamble of the UN Declaration on Human Environment states that: “Man is both creature and moulder of his environment, which gives him physical substance and affords him the opportunity for intellectual, moral, social and spiritual growth”.

Environment is clearly defined under Clause 1 of the Section 2 (a) of the Environment (Protection) Act 1986 as: “Environment includes water, air and land and the inter-relationship which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property”.

While Clause  2 of the Section 2(a) of the Environment (Protection) Act 1986 gives the definitions for environmental pollution and environmental pollutants. “Environmental Pollution” means the presence in the environment of any environmental pollution. “Environmental pollutant” means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment.

ANCIENT & MEDIEVAL WRITTINGS

Ancient India and Environmental protection:

Environment protection has been 6000 years old tradition for the Indians. It was the “Dharma” for each individual in the society for protection of nature. The five important elements of nature called “Panchabhootas” were the divine incarnation for us. Natural resources management was given major importance in ancient India like conservation of water bodies, Protection of forests & wildlife were considered to be the important aspects of governance by the rulers and local people. Punishments were prescribed for causing injury to plants. According to evidences in Vedas and Kautilya’s Arthasasthra, different dynasties accorded top priority to environmental protection and sustainable use of its components. All of the tree parts were considered important and sacred and Kautilya fixed punishments based on the destruction of the specific part of the tree, some of the important trees were even elevated to the position of God.

The Rig-Veda establishes the symbolism of this close kinship when it says: ‘Heaven is my father; my mother is this vast earth, my close kin.’ Atharva-Veda contains the hymn - Bhumi Sukta – ‘in praise of the earth and invokes a balance: upon the immutable, vast earth supported by the law, the universal mother of the plants, peaceful and kind, may we ever walk for ever.’

In Mahabharata, in the Bhisma Parva, refers to the earth as an ‘ever-yielding cow’ provided its resources are developed and managed with balance and control: ‘If Earth is well looked after, it becomes the father, mother, children, firmament and heaven, of all creatures.’

The Rig Veda does mandates about Cow slaughter is a heinous crime equivalent to a human murder and those who commit this crime should be punished. Protection of animals and plants are clearly depicted in the ancient times. Forests, Wildlife and more particularly trees were held in high esteem and held a place of special reverence in Sanatan theology. The vedas, Puranas, Upanishads and other scriptures of the Sanatan religion gave a detailed description of trees, plants and wildlife and their importance to the people. The Rig Veda highlighted the potentialities of nature in controlling the climate, increasing fertility and improvement of human life emphasizing for intimate kinship with nature.

During the Vedic period, cutting of live trees was prohibited and punishment was prescribed for such acts. In Srimad Bhagavatam, it has been rightly pointed out that a man who with exclusive devotion offers respect to sky, water, earth, heavenly bodies, living beings, trees, rivers and seas and all created beings and considers them as a part of the body of the Lord attaints the state of supreme peace and God’s grace.

The Sages and Saints of India lived in forest. In the history, people’s attitude towards plants, trees, sky, air, water and animals was to keep a sympathetic attitude towards them. Sanatan Dharma instructed man to show reverence for presence of spirituality in nature. The flora and fauna, hills, mountains, rivers are worshiped as symbols of veneration. The cutting of trees, polluting air, water, and land were regarded as sins and they were to be respected as associated with gods and goddesses.

India possesses a great-diversified ecosystem including forests, wetlands, islands, estuaries, parks, landscapes, oceans and rich blend of variety of natural surroundings. Many customary or community practices were evolved by the ancestors to protect the environment. The efforts of the people in local community in conservation of natural resources quite deserve to eulogize.

In consequence to rapid industrialization, sophisticated science and technological advancement, increased population, urbanization, deforestation, indiscriminate utilization of natural resources etc., the traditional practices to preserve and conserve natural resources have not been taken seriously by the people in modern times which have resulted in environmental degradation. The phenomenon of environmental protection is not a new concept to the human civilization.

Hindutva said to be dealt with various aspects of nature and ways of worshipping the nature. It appears that the civilization of Mohenjodaro, Harappa and Dravidian civilization lived in consonance with its ecosystem and their small population and their needs maintained the harmony with the environment.

One who plant one pipal, one neem, one ber, ten flowering plants creepers, two pomegranates, two oranges and five mango trees will not go to hell. Similarly, several Hindu Gods and Goddesses have animals and birds as their associates.

Medieval India and Environment protection:

From the point of view of environment conservation, a significant contribution of various emperors of that time has been the establishment of magnificent gardens, fruit orchards and green parks, round about their places, central and provincial headquarters, public places, on the banks of rivers and in the valley and dales which they used as holiday resorts or places or temporary headquarters during the summer season.

Among the officials empowered for administration of justice by the kings and the emperors of India, Muhtasibs and Balutedars were vested with the duty of prevention of pollution. Main duty among others was to remove obstructions from the streets and to stop the commission of nuisance in public places. Also people were aware of tree plantations and lots of jungles were planted artificially during British era. During freedom struggle Gandhiji had given many ideas for recycling of the waste to produce organic fertilizers, papers which are still used by organisations such as Arbindo mission and even today’s Swachchha Bharat Abhiyan is based on the principles of recycling the waste given by Gandhiji. Gandhiji motivated many to consume vegan diet and only fruits diet.

Environmental protection during post-independence era:

The post-independence era witnessed a lot of changes in the policies and attitudes of the Governments with respect to environmental protection. Under the constitution various provisions directly or indirectly deals with environmental protection. Also there are many statutes enacted by the Parliament of India to achieve the goal of environment protection.

• Article 39(b), 47, 48, 49 of Constitution of India

• National Forest Policy, 1952

• Wild life Protection Act, 1972

• Project Tiger, 1973

• Under 42nd Amendment of the Constitution in 1976

• Forest conservation Act in 1980.

• Air (Prevention and control of pollution) Act, 1981

• Wild life (protection), 1983

• Environment (protection) Act, 1986

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Short Question and Answers: Part 1

 Vande Matram! These are some short questions and answers about environmental law. Please read and share them.

 ·         What is the environment?

o   The environment has been defined as that outer physical and biological system in which man and other organisms live as a whole.

·         What are the two main parts of the human environment?

o   Human environment consists of both the physical environment and biological environment.

·         What are the components of the physical environment?

o   Physical environment covers land, water, and air.

·         What are the components of the biological environment?

o   Biological environment includes plants, animals, and other organisms.

·         Which Section of the Environmental Protection Act, 1986 defines ‘environment’?

o   Section 2(a) of the Environmental Protection Act, 1986.

·         Which Section of the National Environmental Tribunal Act, 1995 defines ‘environment’?

Section 2(d) of the National Environmental Tribunal Act, 1995.

The approach of India towards environmental protection

Vande Matram friends! The environment is one of the science topics. But the environment and its protection is our implied duty as human beings. So it is necessary to create some laws, rules, and regulations for the protection of this very basic thing for our better life. This series will discuss all the things related to environmental laws in India.

The approach of India towards environmental protection:

India had an ancient tradition of paying constant attention to the protection of the environment. In India, the devices and rules for protecting the environment are discernible from ancient times. Many scriptures show how ancient Indians were thankful for Mother Nature and how they were protecting it by planting numerous trees which they used to worship occasionally. Including idol worshiping, tree plantation, animal protection, and worshiping trees and animals was incorporated in day-to-day life for sake of the protection of the environment and its various components.

Apart from ancient practices in Hinduism, Buddhism, Jainism, and Sikhism India had practiced the worship and protection of the environment during medieval and British Eras. After independence India had developed its own legislation for the protection of the environment which is in accordance with modern requirements and international environmental protection laws. Also, a great sense of concern has been shown by the legislature and even the Indian judiciary showed great concern regarding the environment with its landmark judgments.

During historical times Indians were aware of how to protect various components of the environment. They were planting trees to protect the biological environment. The planted trees were worshiped so that no one can chop them due to Godly respect for those trees. As trees were planted and grown other organisms and animals were sheltered properly. Indians were using organic fertilisers and hence the lands were free of chemical pollution caused by chemical fertilisers.

The cows were not just mothers in the spiritual sense, they were the main source of fertilisers and also used as medicine for many plant infections in agriculture. As cow dung is the best organic fertiliser even today. Also, cow urine is useful to treat various plant infections. Bulls were used in all agricultural operations and hence the air pollution which is due to mainly vehicles on the road and land was absent. Using animals for agricultural purposes which was the main source of earning and having a great impact on the economy of the nation was not cruel as described by today’s so-called animal lovers.

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