1. The equality of women, being integral to the Constitution, its denial is a sacrilege and a constitutional violation. Sustained constitutional violations mean that governance is not in accordance with the Constitution. A fortiori, all limbs of the State - the executive, the legislature as well as the judiciary -must respect women’s rights and must treat them in a non-discriminatory manner.
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2. As a primary recommendation, all marriages in India (irrespective of the personal laws under which such marriages are solemnised) should mandatorily be registered in the presence of a magistrate, which magistrate will ensure that the marriage has been solemnised without any demand for dowry having been made and that the marriage has taken place with the full and free consent of both partners.
3. The manner in which the rights of women can be recognised can only be manifested when they have full access to justice and when the rule of law can be upheld in their favour. The proposed Criminal Law Amendment Act, 2012, should be modified as suggested, and to secure public confidence, be promulgated forthwith. Since the possibility of sexual assault on men, as well as homosexual, transgender and transsexual rape, is a reality the provisions have to be cognizant of the same.
4. In respect of certain categories of cases, such as those where the victim is in custody of persons in authority including police and armed personnel, certain statutory presumptions must apply under Section 114A of the Indian Evidence Act, 1872. Every complaint of rape must be registered by the police and civil society should perform its duty to report any case of rape coming to its knowledge.
5. Any officer, who fails to register a case of rape reported to him, or attempts to abort its investigation, commits an offence which shall be punishable as prescribed. We have also taken into account offences of eve teasing, voyeurism, stalking as well as sexual assault and unsolicited sexual contact.
6. A special procedure for protecting persons with disabilities from rape, and requisite procedures for access to justice for such personsis also an urgent need. Amendments to the Code of Criminal Procedure, which are necessary, have been suggested.
7. The protocols for medical examination of victims of sexual assaulthave also been suggested, which we have prepared on the basis of the best practices as advised by global experts in the fields of gynaecology and psychology. Such protocol based, professional medical examination is imperative for uniform practice and implementation.
8. The insensitivity of the police to deal with rape victims is well known. The police respect a patriarchal form of society, and have been unable to deal with extraordinary cases of humiliation and hardship caused by the khap panchayats, as is evident from various judgments of the Supreme Court. The police are involved in trafficking of children (including female children) and in drug trade.
To inspire public confidence, it is necessary that there must not only be prompt implementation of the judgment of the Supreme Court in Prakash Singh case, but also police officers with reputations of outstanding ability and character must be placed at the higher levels of the police force.
In the present context, and in view of the facts revealed to us, it is necessary that every police commissioner and director general of police of this country must be selected in accordance with the directions of the Supreme Court in Prakash Singh’s case, who can lead by example. The leader makes all the difference. As such, all existing appointments need to be reviewed to ensure that the police force has the requisite moral vision.
9. It is settled law that every policeman is bound to obey the law and any order of a superior officer, which is contrary to law, is no defence for his illegal action, which may be a punishable offence.
Accordingly, any political interference or extraneous influence in the performance of the statutory duty by a policeman cannot be condoned.This principle has to be clearly understood by every member of the police force - their accountability is only to the law and to none else in the discharge of their duty. Dereliction of this duty has to be punished according to the service rules and applicable law.
10. Authentic figures of missing children in India are not available for obvious reasons of the complicity of law enforcement agencies. Children have been driven into forced labour, sex abuse, sexual exploitation as well as made victims of illegal organ trade. Our report includes the testimonies of children (whose identities have been concealed for their safety) to verify facts from their personal experience. As a small gesture, this Committee has (at its own cost) taken necessary steps for proper rehabilitation and education of one of these children, payment of the minimum wages due to the said child, her safe passage and reintegration with her family, psychotherapeutic intervention, and to fulfil her educational aspirations.The Committee expects similar treatment by the State of all such deprived children.
11. Every District Magistrate is responsible for carrying out a census of missing children within his district. Having regard to the apathy shown by the district magistrates and the police in the matter of missing children, evident from advisories issued by the Ministry of Home Affairs as late as on 30th January 2012, this issue needs immediate attention. This is necessary also for the credibility of the political establishment.
12. The judiciary has the primary responsibility of enforcing fundamental rights, through constitutional remedies. The judiciary can take suo motu cognizance of such issues being deeply concerned with them both in the Supreme Court and the High Court. An all India strategy to deal with this issue would be advisable. The Chief Justice of India could be approached to commence appropriate proceedings on the judicial side. The Hon’ble Chief Justice may consider making appropriate orders relating to the issue of missing children to curb the illegal trade of their trafficking etc. Social activists involved in curbing this menace could assist the court in the performance of this task. The question of award of compensation and rehabilitation could also be considered in such cases by the court.
13. Juvenile homes in the country, i.e. child homes, and observation homes, are not being run in a manner consistent with the spirit of the Juvenile Justice Act. To ensure that the constitution of the Child Welfare Committee, Juvenile Justice Board, the infrastructural facilities in a home, the quality of food, the quality of counselling and psychotherapy required for a child to wipe out the scars of abuse and deprivation in early childhood and to mainstream him/her in society and to educate him/her fully requires a deeper and profound engagement of the State and civil society. This is the primary duty of the State, which is found wanting. We are shocked to note that so many of these children have been forced into bonded labour and beggary, which is in violation of Article 23 of the Constitution. India should not permit cheap child labour to be an incentive for foreign investment to boost our economy.
14. It is time for the judiciary to step in to discharge the constitutional mandate of enforcing fundamental rights and implementation of the rule of law. In performance of this obligation, the Chief Justice of the High Court in every State could devise the appropriate machinery for administration and supervision of these homes in consultation with experts in the field. For the safety and physical security of children, women, persons with disabilities, inmates of mental homes and widows, monitoring by the judiciary is necessary. The immediate and ultimate guardianship of such persons has to be with the court, founded on the principle of parens patriae.
15. To augment the police force, there is a need to develop community policing by involving the local gentry, which would also motivate them to perform their duty as citizens. Respectable persons in each locality could also be appointed Special Executive Magistrates under Section 21, Cr.P.C. and invested with powers to deal with the traffic offences and other minor offences. In addition, to assisting the maintenance of law and order in the locality, their presence would inspire greater confidence of safety in the locality.
16. Street lighting everywhere would provide more safety since dark areas are more prone to facilitate crimes. There is great wisdom in the words of the American Judge Louis Brandeis, that "Sunlight is said to be the best of disinfectant; electric light the most efficient policeman".
17. Street vending should be encouraged to make the bus stops and footpaths safe for communities and pedestrians, in addition to providing street food for the common man.
18. We recommend the creation of a new constitutional authority akin to the Comptroller and Auditor General for education, non-discrimination, in respect of women and children.
19. Reforms in respect of the political establishment:
(a) Reforms are needed in the Representation of People Act, 1951 to deal with criminalisation of politics and to ensure true representation of people by elimination of those with criminal antecedents. This is also essential to avoid any conflict in the discharge of their legislative functions.
(b) Having regard to the fact that there is no verification of the affidavits which are filed by candidates under Section 33A of the Representation of People Act, 1951, we have suggested amendments to the said Section 33A requiring the making of a declaration about the pendency of any criminal case, whether cognizance has been taken of it. A certificate from the Registrar of the High Court should be necessary for the validity of the nomination.
(c) We also suggest that, in the event cognizance has been taken by a magistrate of an offence mentioned in Section 8(1) of the Representation of People Act, 1951, the candidate ought to be disqualified from participating in the electoral process.
(d) We further suggest that Section 8(1) of the Representation of People Act, 1951 be amended and should include all heinous offences as suggested.
(e) A candidate who fails to disclose a charge or the commission of an offence should be disqualified subsequently. It is alleged that a minister of the Andhra Pradesh Cabinet had failed to disclose an offence and there is presently a complaint pending against such minister under Section 125A of the Representation of People Act, 1951. We request the Chief Minister of Andhra Pradesh to dismiss the minister immediately from the Cabinet if it is correct that he did not disclose the offence for which he was charged.
(f) Scrutiny and verification of the disclosures made by candidates in respect of their assets may be made by the CAG with necessary follow up action in the case of such disclosures being found to be incorrect or false. Such discrepancies should be a ground for subsequent disqualification under the Representation of People Act, 1951.
(g) If all those in Parliament and State Legislatures, who have any criminal case pending against them in respect of heinous offences, vacate their seats as a mark of respect to Parliament and to the Constitution (which they have sworn to uphold), it would be a healthy precedent and would raise them in public esteem. This would be consistent with the principle of institutional integrity emphasised by the Supreme Court in the P.J. Thomas case judgment.
(h) It is the least to expect that political parties do not nominate any candidates for election who have any criminal antecedents. Failure to do so is likely to set in motion social urges of inestimable dimensions. It has been established in the oral interactions of the Committee with the stakeholders that the fielding of such candidates leads to women being deterred from exercising their right to vote.
(i) Legislation be enacted for compulsory registration of all political parties as indicated earlier.
20. Even though the scope of the terms of reference of this Committee was to look at all criminal laws including laws relating to aggravated sexual assault, we have also studied the related laws which have a bearing upon the administration of criminal justice, including the exercise of enacting legislation.
21. These recommendations are to be read along with the various other recommendations contained in the body of the report relating to specific matters.
22. The recommendations made in this report, unless urgently implemented, will end the exercise conducted by this Committee in futility.
Centre for PIL & Another v. Union of India. Judgment dated March 3, 2011 in Writ Petition (C) No. 348 of 2010.
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