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TABLE OF CONTENTSSr. No. Particulars Page no.1. Preface i2. Acknowledgments v3. Glossary vii4. Introduction 15. Methodology6. Chapter OneConstitutionalism, Republicanism, and GenderEquality7. Chapter TwoGender Justice and India’s Obligations underInternational Conventions8. Chapter ThreeRape and Sexual Assault9. Chapter FourSexual Harassment at the Workplace10. Chapter FiveOther Offences against Women11. Chapter SixTrafficking of Women and Children12. Chapter SevenChild Sexual Abuse13. Chapter EightKhap Panchayats and Honour Killings14. Chapter NineSentencing and Punishment15. Chapter TenProvision of Adequate Safety Measures andAmenities in respect of Women16. Chapter ElevenMedico-Legal Examination of the Victim245770119142152200225234260272


17. Chapter TwelvePolice Reforms18. Chapter ThirteenElectoral Reforms19. Chapter FourteenEducation and Perception Reform31234038320. Conclusions and Recommendations 41121. Appendix 1Gazette Notification No. SO 3003(E) datedDecember 23, 201222. Appendix 2List of Persons Interacted with by the Committee23. Appendix 3Bill of Rights42542642924. Appendix 4Proposed Criminal Law Amendments25. Appendix 5Proposed Amendments to the Representation ofPeople Act, 195126. Appendix 6Proposed Emergency Response System27. Appendix 7Suggested Guidelines for Medical Examination ofSexual Assault Survivor28. Appendix 8Suggested Protocol for PsychologicalInterventions in Sexual Assault/Rape29. Appendix 9Transcript of Interview with Trafficked Girl30. Appendix 10Transcript of Interview with Abused Children31. Appendix 11Requests for Information from the Committee toVarious Governmental Authorities434454463465471477510569


PREFACE1. The constitution of this Committee is in responseto the country-wide peaceful public outcry of civilsociety, led by the youth, against the failure ofgovernance to provide a safe and dignifiedenvironment for the women of India, who areconstantly exposed to sexual violence. Theimmediate cause was the brutal gang rape of ayoung woman in the heart of the nation’s capital ina public transport vehicle in the late evening ofDecember 16, 2012. We refrain from sayinganything more about the incident, which is subjudice for the trial in a court of law for the offencescommitted by the rapists. It is unfortunate thatsuch a horrific gang rape (and the subsequentdeath of the victim) was required to trigger theresponse needed for the preservation of the rule oflaw—the bedrock of a republic democracy. Let ushope that this tragedy would occasion bettergovernance, with the State taking all necessarymeasures to ensure a safe environment for thewomen in the country, thus preventing therecurrence of such sexual violence.2. The urgency of the matter impelled the Committeeto undertake the performance of the assigned taskwithin the short period of 30 days to enable theauthorities, with all their resources, to take thenecessary follow up action within a further 30-dayperiod, so that the same or a substantial portion ofthe same may be completed before commencementof the next session of the Parliament, which, wehope, will undertake the needed legislativeexercise recommended by this Committee.i


3. The Committee has been facilitated in the task byan overwhelming response to the Public Noticeinviting suggestions within the available shorttime. An oral consultation was also held for interaction with the representatives of severalstakeholders, particularly the women’s socialaction groups and experts in the field. Thisstupendous task could not have been completed intime without the dedicated industry of a group ofyoung lawyers, law graduates and academics whoworked around the clock to do the necessaryresearch and study required for the preparation ofthis report. We marvel at the extensive researchdone by them to collect relevant material fromaround the world on the subject within such ashort span of time. Their contribution isacknowledged separately.4. Women’s social action groups, which have beenactively advocating the cause of gender justice fordecades, also came forward to give valuablesuggestions with requisite supporting material.Many foreign contributors, including academiaand students of prestigious foreign universitiesalso volunteered and rendered valuable opinions.The list is long and the primary contributors arealso acknowledged separately.5. During this exercise, the Committee has beenreassured that strict observance and faithfulimplementation of the constitutional mandate andthe existing laws by a competent machinery issufficient to prevent, and if need be, to punish anysexual harassment or assault; and theimprovement needed in the laws, if any, ismarginal, to await which is no excuse for theimpairment of the rule of law. Correction of theii


societal mindset of its gender bias depends moreon social norms, and not merely on legal sanction.The deficiency in this behalf has to be overcome bythe leaders in the society aided by the necessarysystemic changes in education and societalbehaviour.6. This view of the Committee is buttressed by thefact that the executive, meanwhile, has takenseveral measures to this effect under the availableregimen, and the judiciary too has issued severaldirections under the existing laws to ensure safetyand protection of the dignity of women in publicplaces and in public transport.7. Failure of good governance is the obvious rootcause for the current unsafe environment erodingthe rule of law, and not the want of neededlegislation. If there was a felt need for more laws,there are many recommendations of expert bodiesand judicial decisions that remain unimplemented.The Law Commission’s 84 th Report in 1980 and its172 nd Report of 2000 relating to this subject, theNational Police Commission Reportsrecommending autonomy and seminalimprovement in the quality of the police force,which is the principal machinery for themaintenance of law and order, continue to gatherdust for decades due to the apathy of all thepolitical dispensations. The Supreme Court’sjudgment of 2006 in Prakash Singh’s case givingcertain directions for the autonomy and improvingthe quality of the police force remain to beimplemented by all the governments. Action inthis behalf does not brook any further delay, ifthere is a genuine desire to honour the purpose ofconstituting this Committee.iii


ACKNOWLEDGEMENTS1. It is not possible to ensure that the contribution ofeveryone in the performance of this stupendous taskis duly acknowledged. They are too many to benamed individually for an exhaustive list.2. The response to the Committee’s public noticeinviting suggestions was overwhelming. We aregrateful for the responses and suggestions receivedfrom all stake-holders, including women's groups,social activists, academia, eminent persons, NationalCommissions, and also some political parties. Manyexperts, such as medical personnel, psychologists,psychiatrists, mental health providers etc. also gavevaluable advice. Help came voluntarily also from thefaculty and students of some prestigious foreignuniversities. The Committee grate<strong>full</strong>y acknowledgesthe contribution of each of them.3. The Committee also acknowledges the benefit itderived from oral interactions with representatives ofmany women's organizations, constitutional bodiesand commissions, lawyers, and social activists etc.,who were met for a better appreciation of theirsuggestions. A list of such persons is annexed.4. The Committee needs to make a special mention of theteam of young lawyers, law students and academics,who worked around the clock, throughout the period,researching and collecting material from across theworld, and assisting the Committee in the performanceof its task. The Committee's counsel, AbhishekTewari, Advocate, was overall in-charge of thepreparation of the report. He was assisted by AnubhavKumar, Apoorv Kurup, Devansh Mohta, Jigar Patel,Nikhil Mehra, Nishit Agrawal, Shyam Nandan,v


Nithyaesh Natraj, Preetika Mathur, Salman Hashmi,Shwetasree Majumder, Siddharth Peter de Souza,Saumya Saxena, Talha Abdul Rahman and Prof.Mrinal Satish of the National Law University, Delhi.The Committee is indeed very grateful to them fortheir immense contribution and support.5. The Committee would also like to thank ProfessorLaura Hoyano (Oxford University), Judge MichaelKirby (Australia), PRS Legislative Research, Center forResearch, Bhuwan Ribhu (Bachpan Bachao Andolan),Sagar Preet Hooda, Prof. David Wilkins (HarvardUniversity), Prof. Diane Rosenfeld (HarvardUniversity), Prof. Sandra Fredman (Oxford University),Prof. Shlomit Wallerstein (Oxford University), KavitaAvula, Dr. Shekhar Seshadri, Dr. Sameer Malhotra,Shantha Sinha (NCPCR), Mukund Upadhyay, KiranBedi, Mihira Sood, Prateek Chadha, and AnirudhMathur (student at Oxford University), for theirvaluable contributions.6. Particular mention must be made of the invaluablecontribution by the staff in the office of Mr. GopalSubramanium for providing the infrastructure andsupport needed for the Committee's work. KewalKrishan Ahluwalia, Vipul Trivedi, and Boby Kumar ofthat office need special mention. The Committee isgrateful for their ungrudging services and support.7. The Committee also acknowledges with gratitude thehope and expectation of the people of India from thisCommittee. We have tried to live up to theirexpectation.vi


LIST OF ABBREVIATIONSADRAssociation of Democratic ReformsAFSPAArmed Forces Special Powers Act,1958AIRAll India ReporterAITCAll India Trinamool CongressBBABachha Bachao AndolanBJPBharatiya Janata PartyBSPBahujan Samaj PartyCAGComptroller and Auditor GeneralCBICentral Bureau of InvestigationCCTVClose Circuit TelevisionCECChief Election CommissionerCHRICommonwealth Human RightsInitiativeCIDCrime Investigation DepartmentCPI(ML)(L)Communist Party of India Marxist-Leninist LiberationCPOCentral Police OrganisationsCrPC Criminal Procedure Code, 1973CRPFCentral Reserve Police ForceDGPDirector General of PoliceFIRFirst Information ReportGDP Gross DomesticProductICCPRInternational Covenant on Civil andPolitical RightsILO InternationalLabour OrganisationINDIndependentIPC Indian Penal Code, 1860vii


IPSIndian Police ServiceJMMJharkhand Mukti MorchaMGNREGAMahatma Gandhi National RuralEmployment Guarantee Act, 2005MHAMinistry of Home Affairs,Government of IndiaMLAMember of Legislative AssemblyMPMember of ParliamentNCEUSNational Commission for Enterprisesin Unorganised SectorNCPCRNational Commission for Protection ofChild RightsNCRBNational Crime Records BureauNCTNational Capital Territory of DelhiNCWNational Commission for WomenNHRCNational Human Rights CommissionNSCPPNational Security and Central PolicePersonnel WelfarePCRPolice Control RoomPEBPolice Establishment BoardRCPRashtriya Communist PartyRJDRashtriya Janata DalRP Act Representation of People’s Act, 1951SPSamajwadi PartyUNDHRUnited Nations Declaration on HumanRightsUNGAUnited Nationals General AssemblyUNSCUnited Nations Security CouncilUPSCUnion Public Service CommissionWRPEWomen’s Role in Planned EconomyWTOWorld Trade Organisationviii


INTRODUCTION“Woman is the companion of man, gifted with equal mentalcapacities. She has the right to participate in the minutestdetails in the activities of man, and she has an equal right offreedom and liberty with him. She is entitled to a supreme placein her own sphere of activity as man is in his. This ought to bethe natural condition of things and not as a result only oflearning to read and write. By sheer force of a vicious custom,even the most ignorant and worthless men have been enjoyinga superiority over woman which they do not deserve and oughtnot to have. Many of our movements stop half way because ofthe condition of our women.”Mahatma Gandhi 11. Rape, sexual assault, eve-teasing and stalking arematters of serious concern – not only because ofthe physical, emotional and psychological traumawhich they engender in the victim, but alsobecause these are practices which are beingtolerated by a society ostensibly wedded to therule of law.2. The fundamental rights to life with humandignity 2 , to equality 3 , and to work in ones chosenprofession or trade 4 inherently include protectionfrom sexual harassment. It is indubitably theposition that the Constitution guaranteesfundamental freedoms to women. In view ofArticle 15(3), which enables the State to makespecial provisions for women and children, theequality of women and children is firmlyenshrined in Article 14 as well as Article 15(1) of1 M. K. Gandhi, Speeches and Writings. G. A. Natesan & Company,Madras, 1933.2 Constitution of India, Article 213 Ibid Articles 14 and 154 Ibid Article 19(1)(g)1


the Constitution. It is also necessary to note thatArticle 21 applies equally to women. Article 21A,which guarantees the right to education applies to‘all children’ irrespective of gender. Article 23prohibits traffic in human beings and forcedlabour. Article 24 protects children and enjoinsthat no child below the age of 14 years will beemployed to work in any factory or mine orhazardous employment. It may also be noticedthat Article 51A(e) provides that it shall be theduty of every citizen of India to renounce practicesderogatory to the dignity of women.3. In fact, the Preamble to the Constitutionguarantees social, economic and political justicewhich, in the view of the Committee, wouldinclude gender justice, liberty of thought,expression, belief, faith and worship; equality ofstatus and opportunity that would again reinforcethe theory of equality; while fraternity enjoinscitizens to treat each other with respect anddignity, regardless of gender.4. The right to be protected from sexual harassmentand sexual assault is, therefore, guaranteed by theConstitution, and is one of the pillars on which thevery construct of gender justice stands 5 .5. This right is buttressed by the directive principlesof State policy contained in Articles 38, 39 and 39Aof the Constitution, which are to be construedharmoniously with the fundamental rights in PartIII; and these fundamental principles bind the5 See also the observations of the Supreme Court of India in Vishakhav. State of Rajasthan, AIR 1997 SC 3011 and Apparel Export PromotionCouncil v. A.K. Chopra, AIR 1999 SC 625.2


State in performance of its task of governance ofthe country.6. Every person invested with public power remainsprimarily a citizen who is duty bound to performthe fundamental duties of every citizen with theadded public duty of implementing the directiveprinciples of securing a social order for thepromotion of welfare of the people.7. A fortiori, the duty of the State, therefore, is toprovide a safe environment, at all times, forwomen, who constitute half the nation’spopulation; and failure in discharging this publicduty renders it accountable for the lapse. TheState’s role is not merely reactive to apprehendand punish the culprits for their crimes; its duty isalso to prevent the commission of any crime to thebest of its ability. Crimes against women are anegregious violation of several human rightsdemanding strict punishment with deterrence toprevent similar crimes in future by the likeminded.8. The National Human Rights Commission has alsoheld the government accountable and responsiblefor the violation of human rights within itsjurisdiction, observing:“…it is the primary and inescapable responsibilityof the State to protect the right to life, liberty,equality and dignity of all of those who constituteit. It is also the responsibility of the State to ensurethat such rights are not violated either throughovert acts, or through abetment or negligence. It isa clear and emerging principle of human rightsjurisprudence that the State is responsible not onlyfor the acts of its own agents, but also for the acts ofnon-State players acting within its jurisdiction.3


The State is, in addition, responsible for anyinaction that may cause or facilitate the violation ofhuman rights.” 69. This Committee has proceeded to perform its taskon the basis of the above constitutional obligationand juristic principles enunciating the State’sresponsibility for the protection of the right to lifewith all aspects of human dignity of women. Thisis also the demand of the fundamental rights inArticles 14, 15 and 19 of our Constitution asindicated above. The substantive laws must meetthese standards and the machinery prescribing theprocedure for their implementation must beadequately equipped for it.10. The purpose of laws is to prescribe the standard ofbehaviour of the people and to regulate theirconduct in a civilized society. Faithfulimplementation of the laws is of the essence underthe rule of law for good governance. In the absenceof faithful implementation of the laws by efficientmachinery, the laws remain mere rhetoric and adead letter.11. Dr. Rajendra Prasad, while moving the motion foradoption of the Constitution in the ConstituentAssembly, had said:“…Whatever the Constitution may or may notprovide, the welfare of the country will depend uponthe way in which the country is administered. Thatwill depend upon the men who administer it. If thepeople who are elected, are capable and men ofcharacter and integrity, they would be able to makethe best even of a defective Constitution. If they arelacking in these, the Constitution cannot help the6 NHRC Order dated April 1, 2002 in Case No. 1150/6/2001-20024


country. After all, a Constitution like a machine is alifeless thing. It acquires life because of the men whocontrol it and operate it, and India needs todaynothing more than a set of honest men who will havethe interest of the country before them…It requires men of strong character, men of vision,men who will not sacrifice the interests of thecountry, at large for the sake of smaller groups andareas and who will rise over the prejudices which areborn of these differences. We can only hope that thecountry will throw up such men in abundance…” 7Is the fervent hope belied? If so, the faith has to berestored.12. Amartya Sen in ‘The Idea of Justice’ echoed thesame sentiment, in the following words:“…There is no automatic guarantee of success by themere existence of democratic institutions…Thesuccess of democracy is not merely a matter ofhaving the most perfect institutional structure thatwe can think of. It depends inescapably on our actualbehaviour patterns and the working of political andsocial interactions. There is no chance of resting thematter in the ‘safe’ hands of purely institutionalvirtuosity. The working of democratic institutions,like all other institutions, depends on the activities ofhuman agents in utilizing opportunities forreasonable realization…” 813. In short, ‘institutional virtuosity’ by itself is notenough without ‘individual virtuosity’.7 Constituent Assembly Debates, Volume XI.8 Amartya Sen. The Idea of Justice. 2011 Harvard University Press.5


14. The most perfect laws also would remainineffective without the efficiency and ‘individualvirtuosity’ of the human agency for implementingthe laws, namely, the law enforcement agencies.The mechanism has to be supported by thecomplementary role of civil society as envisaged inthe fundamental duties of the citizens underArticle 51A of the Constitution.15. The fundamental duties of every citizen specifiedin Article 51A of the Constitution include theduties ‘to renounce practices derogatory to thedignity of women’ in clause (e), and the foremostduty ‘to abide by the Constitution and respect itsideals’ in clause (a). These fundamental duties aremerely a reiteration of the values of the Indianethos, which needed a reminder in the waningmoral structure of the society, more prevalent inthe institutions of governance. Aristotle, in hisancient and seminal work ‘Politics’, emphasizedthe significance of ‘education of citizens in thespirit of the Constitution’, thus:“The greatest of all means…for ensuring the stabilityof Constitutions—but which is nowadays generallyneglected—is the education of citizens in the spirit ofthe Constitution…” 9The significance of this observation has to besustained.16. Thus, if these are guaranteed freedoms under theConstitution, how do they become real freedomsand how do they enable women to possessrequisite capabilities which would lead to the9 Aristotle, Politics, ed. R. F. Stalley, trans. Ernest Barker (Oxford,1998)6


fulfilment of their potential as individual citizensunder India’s liberal and democratic framework?In this respect, the Committee finds great supportin the ‘capability approach’ postulated by Dr.Amartya Sen, who points out:“The idea of ‘capability’ (i.e. the opportunity toachieve valuable combinations of humanfunctionings — what a person is able to do or be)can be very helpful in understanding theopportunity aspect of freedom and human rights.Indeed, even though the concept of opportunity isoften invoked, it does require considerableelaboration, and capability can help in thiselucidation. For example, seeing opportunity interms of capability allows us to distinguishappropriately between (i) whether a person isactually able to do things she would valuedoing, and (ii) whether she possesses themeans or instruments or permissions topursue what she would like to do (her actualability to do that pursuing may depend on manycontingent circumstances).” 10 (Emphasissupplied)17. While the Committee is of the view that there ismerit in the capability approach propounded byProf. Amartya Sen, it must also be borne in mindthat the ability to dictate needs and desires(including the capacity and ability forconsumption as well as income generation) are notirrelevant factors. The Committee is unable todisregard the subjugation of women, which hasbeen occasioned in India on account of the lack offinancial independence and security. Hence, whileacknowledging that the capability approach doesaddress a series of other issues in relation to10 Amartya Sen, Human Rights and Capabilities, Journal of HumanDevelopment, Vol.6, No. 2. (July 2005), pp. 151-166 DOI:10.1080/14649880500120491.7


women, it is necessary, as a part of the overallchange of consciousness, that women must bemade equally capable and productive for thepurpose of becoming self-sufficient financially,which would be one of the intrinsic safeguards for‘feeling’ and ‘perceiving’ equality. Naturally, thiscannot detract from the reality that politicalpower, domestic violence, education and socialstatus are indeed vital concerns.18. The Committee is of the view that capabilities areindeed crucial to the people’s potentialfunctioning, as observed by Prof. Sen. But how dowe arrive at that stage in respect of women, whenit is evident that women have been kept awayfrom reaching that stage for no fault of their own?This brings us to the vexed question that unlessand until the State pursues a policy of avoweddetermination to be able to correct a historicalimbalance in consciousness against women, it willnot be possible for men and indeed womenthemselves, to view women differently andthrough the prism of equality. It is not enoughthat women occupy a few symbolic politicalpositions to evidence true empowerment ofwomen in this country. In the view of thisCommittee, the ethos of empowerment of womendoes not limit itself to political equality, but alsoextends, in equal terms, to social, educational, andeconomic equality.19. If true empowerment of women were to meananything, it is necessary that law, as well as publicpolicy, must be capable of engaging substantiallywith women’s rights, opportunities, acquisition ofskills, the ability to generate self-confidence andinsist on total equality in relationships, both with8


society and the State. It is the inability of womento claim equality in society which has led to a slantagainst women as a consequence of which therehas been a latent bias against women in theprosecution of crimes including its prevention.One wonders if the following words penned byMahbub-ul-Haq hold true for Indian women:“As we approach the 21 st century, we hear the quietsteps of a rising revolution for gender equality. Thebasic parameters of such a revolution have alreadychanged. Women have greatly expanded theircapabilities over the last few decades through aliberal investment in their education. At the sametime, women are acquiring much greater controlover their lives through dramatic improvements inreproductive health. They stand ready and preparedto assume greater economic and politicalresponsibilities. And technological advances anddemocratic processes are on their side in thisstruggle. Progress in technology is alreadyovercoming the handicaps women suffer in holdingjobs in the market, since jobs in the future industrialsocieties will be based not on muscular strength buton skills and discipline. And the democratictransition that is sweeping the globe will make surethat women exercise more political power as theybegin to realize the real value of the majority votesthat they control. It is quite clear that the 21 stcentury will be a century of much greater genderequality than the world has ever seen before.” 1120. We also revisit the report submitted by one of usin Sheela Barse (infra), which pithily states:“Thus the meaning of law and the empowerment whichlaw gives and the clothing of man with such11 Human Development in South Asia, 2000: The Gender Question, TheMahbub ul Haq Human Development Centre, Oxford UniversityPress, 2000.9


Constitutional rights is only to make sure that whetherit be State or whether it be man, and after all the Statecontains men, that with Pausanius, King of Sparta, aman feels confidently that “laws should have anauthority over men, not men over laws” in order to seethat a human right is also accompanied by anenforcement modus effectualis, it is necessary to give itin the first instance the prime importance which itdeserves and which is merited to it in law, after all lawitself recognises the high dimensions and dyophysiteexistence of rights, the one absolute impregnable and theother subject to social regulation by valid statute law.”21. It is an admitted fact that women in India havesuffered in various aspects of life and physicalhealth, mental well-being, bodily integrity andsafety, social relations, political empowerment,education and knowledge, domestic work andnon-market care, paid work and other projects,shelter and environment, mobility, leisureactivities, time autonomy, respect, religion, and ifwe may add, self-esteem / self-autonomy. We areof the opinion that Indian women havesubstantially suffered on most of these counts as aconsequence of which the de facto equalityguaranteed by the Constitution has not become areality for them.22. The achievement of empowerment and equality ofwomen has to be necessarily a conjoint effort of theindividual and the State. Cases of individualwomen performing well are not indicative of theempowerment of women as a collectiveresponsibility under the Constitution. The nationalso suffers from, on the other hand, dismal sexratios in several states such as Punjab andHaryana. The nation suffers from the existence ofchauvinistic institutions like khap panchayats,which, unfortunately, are politically so powerful10


that they overrule, with impunity, theconstitutionally mandated administration ofequality in favour of women, by using extraconstitutional, oppressive methods of punishment.23. It is shocking to note that even after the recenthorrific incident of gang rape, many politicalleaders, including members of Parliament/Statelegislatures, spiritual gurus with large followingsand other eminent persons have been makingstatements reinforcing the gender bias. Some haveeven blamed the victim for having facilitated therape by her own behaviour. Some of the worstexamples are:(i)(ii)Shri Anisur Rahman (Communist Party ofIndia (Marxist) – West Bengal): "We havetold the chief minister in the assembly that thegovernment will pay money to compensate rapevictims. What is your fee? If you are raped, whatwill be your fee?"Shri Asaram Bapu: "Only 5-6 people are notthe culprits. The victim is as guilty as herrapists... She should have called the culpritsbrothers and begged before them to stop... Thiscould have saved her dignity and life. Can onehand clap? I don't think so,"(iii) Shri Om Prakash Chautala (INLD –Haryana): "We should learn from the past...specially in Mughal era, people used to marrytheir girls to save them from Mughal atrocitiesand currently a similar situation is arising inthe state. I think that's the reason khap has takensuch a decision and I support it."11


(iv)Shri Sri Prakash Jaiswal (Congress): “Newvictory and a new marriage have their ownsignificance. The memory of your victory fadeswith time, the same way one’s wife becomes oldand loses her charm”Many of them have reflected this gender biascontrary to the constitutional mandate afterswearing ‘to bear true faith and allegiance to theConstitution of India’, in addition to theirfundamental duty ‘to abide by the Constitutionand respect its ideals’. These deep rootedprejudices have to be eliminated for the efficacy ofany laws on the subject. The time has come toenact laws providing for the subsequentdisqualification of elected representatives on thisground alone.24. This begs the question - does the Indian State liveat two levels? One which comprises those who areaffluent and who have access to the Constitutionand its machinery, and the other comprising thosewho live in the silent domination of the superiorwill of tradition, customs and practices which arederogatory to women?25. In our view, unless and until each one of thesepernicious models is deconstructed by thecollective will of not only Parliament, but also ofthe people of India, gory incidents, such as thosewhich have been reported in recent times (andwhich continue to be reported) from across thecountry, will continue to shake the faith of thepeople. Each violent incident against an Indianwoman is causing greater provocation. It iscausing greater provocation not simply because itis a shameful incident, but also because it appears12


that there is a vast disconnect between equalityand respect and the obligations of those whoadminister the law.26. These indeed compel us to admit to only oneanswer that whatever be the political orientation,the Indian State has failed to look at this issue in asubstantive manner. While we acknowledge andgreatly applaud the concerns of feminists andvarious persons who have spoken in support ofwomen, we still feel distressed to say that allorgans of the State have, in varying degrees, failedto fulfil the promise of equality in favour ofwomen. We also notice that the high instances offemale foeticide and infanticide, poor maternityand child care, women’s diseases turning chronic,women being subjected to malnutrition, areoutrageous stains on a free India. They disclosethe inbuilt subconscious bias of those who ruleagainst women. The Committee would like toremind the State that gender equality andsafeguarding of human rights is a MillenniumDevelopment Goal (to be achieved by the year2015) under the United Nations MillenniumDeclaration.27. If these problems exist - and there have beenconsistent studies by sociologists which establishthis fact - the mere setting up of Ministries for thesocial empowerment of women is highlyinadequate. The immediate requirement is,therefore, that there should be minimal guaranteedrations in respect of women, compulsory access toeducation for women, free education in respect ofwomen up to the undergraduate level, preferentialopportunities to single women, rehabilitation ofdestitute women, prevention of trafficking in13


women and a host of measures which would showthat the Indian society is serious in reinforcinggender equality.28. A fortiori the need for good governance is of acredible and efficient mechanism for lawenforcement and justice delivery coupled withperformance of the fundamental duties by everycitizen.29. Implicit in the terms of reference, this forms anintegral part of the Report.30. In our tradition bound society, structured on thebasis of conservative values, when a woman issubjected to sexual assault in any form, ittranslates into a multiple crime. She is raped athome (literally and figuratively) and in public,followed by demeaning medical examination,examination and cross-examination by the policeand in court, in salacious media reports, and in theinsensitive response of society, including familyand acquaintances. In sum, the victim suffersintermittent rape in <strong>full</strong> public glare.31. Another humiliating aspect of the crime againstwomen is that her status in the patriarchalstructure of society also impedes her access tojustice. The inequities of social status, casteprejudices, and economic deprivation furthercompound the gender injustice.32. Despite the well-known Bhanwari Devi case,which led to the Vishakha judgment, <strong>full</strong> justicecontinues to elude the victim of sexual harassmentand sexual assault even after two decades. Themost appalling feature of the case is that the trial14


court acquitted the accused observing that therapists were middle-aged and respectable personsof a higher caste who could not have raped a lowercaste woman. The mindset of the judiciary alsoneeds to be improved by their education in gendersensitivity. The women’s tragedy is to face thecompounding of gender and social injusticecontrary to the constitutional promise to ‘secure asocial order in which justice, social, economic andpolitical, shall inform all the institutions ofnational life’, and the State’s obligation ‘toeliminate inequalities in status, facilities andopportunities, not only amongst individuals butalso amongst groups of people’ 12 .33. Education to correct gender bias and to cure themindset of the prejudices influencing the lawenforcement agencies has also to be a part of thisexercise. A holistic view of the entire issue has tobe taken by addressing the root causes and notmerely the symptoms of the malady. Educationhas to begin at birth in the home, in formaleducation, personal behaviour, social interaction,and it has to continue life-long. The process maytake time for its completion, but it must commenceforthwith. The Report has, therefore, to deal withthis aspect as well.34. Women must enjoy freedom and should not beintended to act as carriers of ‘perceived honour’any differently from male children. Thus, theexcessive control over women, which has beenexercised over the last few decades and itsacceptance in India in recent years, is simplyoutrageous. We are also of the opinion that the12 Constitution of India, Article 38.15


ape of Nirbhaya and the sacrifice of her life onlyreinforces that India requires de facto equality,freedom from superstition, renunciation of arcane,misogynist traditions and practices which are atvariance with the Constitution, which seek todebilitate and handicap women.35. On the contrary, it is necessary that the State mustpractice equality in matters of all suchopportunities which it affords in publicemployment, the employment of women whichwould include even employment in otherpositions where women could completely showtheir ability to perform.36. It is indeed tragic that the brutal gang rape of ayoung, defenseless woman on December 16, 2012by a group of perverted men in the heart of thenation’s capital was needed to bestir thegovernment into action realizing the gravity of thesituation, which could no longer countenancedelay in taking necessary steps to provideadequate measures for the safety and protection ofthe womenfolk in the country. The setting up ofthis Committee is a step in that direction, and wehope, at the very outset, that the three arms ofgovernance, viz, the executive, the judiciary andthe legislature, will take the recommendationsmade herein to their logical conclusion.37. We must note, with some satisfaction, that duringthe formulation of this Report, the Executive hastaken steps to implement measures to ensure thesafety of women in public transport 13 . Thejudiciary has also come down heavily in several13 Orders go out for CCTVs, bus checks, patrol vans, Indian Express,Delhi, January 10, 2013.16


instances, and, as reported in the media, theSupreme Court has, on January 11, 2013, takencognizance of a PIL filed seeking directions inrespect of women’s safety in Delhi 14 . We hope thatthe impetus generated by the December 16incident and the ensuing protests will continue inthe future.38. The involvement of civil society led by the youthin the spontaneous country-wide peaceful protest,demanding prompt measures by the governmentto protect the dignity of women has lent greaterurgency to the long felt need. To quote PratapBhanu Mehta:“The disenchantment with the state often expressesitself in the thought that those who wield state powerare not accountable.” 1539. To achieve this reality, stages of change do nothave to be, in the Darwinian sense, mere steps inevolution but can be fast forwarded byfundamental changes of attitude. We are glad tonote that the voices of protest raised post theDecember 16, 2012 incident have symbolised thepotential of the youth of the nation, and, perhaps,their need to disregard past perceptions in relationto women. In the view of the Committee, theprotests are clearly a call to modern India torenounce old ways of looking, thinking and actingtowards women and are a strong, positive movetowards true empowerment.14 Nipun Saxena & Anr. v. Union of India & Ors. (Writ Petition (C) No.565/2012).15 Pratap Bhanu Mehta, The Burden of Democracy, 2003, PenguinBooks, India.17


40. Demand of accountability by the civil society ofthose responsible to provide good governance tocurb the menace of sexual harassment escalating toassault on women in any form is the discharge ofpeople’s participatory role in republicangovernance. This is a positive fallout of theunfortunate incident. Sexual assault degenerates toits gravest form of rape beginning withuncontrolled sexual harassment in milder forms,which remain uncontrolled. It has, therefore, to becurbed at the initial stage.41. The Report, therefore, deals with sexual crimes atall levels; and with the measures needed forprevention as well as punishment of all acts withsexual overtone that are an affront to humandignity. To go a step further, this Report also dealswith the construct of gender justice in India andthe various obstructions thereto, which preventthis nation of more than a billion persons fromachieving the objectives stated in the Preamble tothe Constitution.42. The expressions ‘aggravated sexual assault’,‘Criminal Law’, and ‘speedier justice’ used in theterms of reference contained in the Notificationdated December 23, 2012 constituting theCommittee, have to be interpreted expansively toserve the object of this exercise.43. The expression ‘aggravated sexual assault’ mustinclude all stages of affront to human dignitywhich is the quintessence of human rights,beginning with any act with a sexual overtone. Theexpression ‘Criminal Law’ must include all genderrelated laws: criminal, civil or electoral. Theexpression ‘speedier justice’ must include all18


institutions of the justice delivery system, whichare meant to provide speedy justice to enforce theright to life with dignity guaranteed in Article 21of the Constitution of India.44. In short, a holistic view is to be taken of theunrealized and seriously threatened constitutionalpromise of the universally recognized human rightof gender justice.45. This is the scope of the Committee’s Report.19


METHODOLOGY ADOPTED BY THECOMMITTEE1. In the performance of its task, the Committeeadopted the method of inviting suggestions fromall stakeholders through a public notice. Inaddition it interacted with a number of experts,social activist, interest groups; through theirrepresentatives, to elicit their views on the subject.For the purpose of further elaboration of some oftheir suggestions the committee also invited anumber of representatives, eminent academics foran oral interaction.Suggestions and views of various stake holders2. The Committee directed the Ministry of HomeAffairs, Government of India to issue a publicnotice on behalf of the Committee inviting viewsand suggestions from the general public.Accordingly, a public notice dated December 24,2012, was issued by the Ministry of Home Affairs,which called for suggestions to be sent to theCommittee by January 5, 2013. In response to thesaid public notice, the Committee received anoverwhelming number of responses by way ofemails, post and fax which were in excess of70,000. These were sent by the stake-holders, socialactivists and the general public.3. The Committee also addressed letters to variouspublic functionaries, such as High Court judgesand advocates general of various states.(i) Members of the Indian and internationalacademia;(ii) Women’s Organisations;20


(iii) Child rights Organisations;(iv) Members of the medical fraternity in India;(v) Non- government Organisations;(vi) Research groups;(vii) Members of the administrative and policeservices; and(viii) Legal expertsseeking their views and comments on theories andpractices, experiences and also the medical andpsychological aspects of sexual crimes. TheCommittee received positive responses from them,which have been pivotal in the drafting of thisreport and the framing of the Committee’srecommendations.Meetings with various stakeholders4. The Committee held interactions at various timesafter December 23, 2012 (including on January 19 thand 20 th 2013), with various stakeholders, a list ofwhom is annexed. The views of the representativesof the Ministry of Home Affairs, the Ministry ofHealth and Family Welfare, Ministry of Womenand Child Development, National Commission forProtection of Child Rights, National Commissionfor Women, Delhi Police and the Central Bureau ofInvestigation were also sought by the Committee.In these meetings, experts from all over India weregiven an opportunity to voice their opinions withan all-encompassing and a comprehensive set ofagendas, covering a variety of issues that have abearing on gender justice.21


Collection of data from interested parties5. We also undertook an analysis of a wide range ofrecommendations that came from political parties,and interest groups. These groups ranged fromspecific organisations with grass route experienceand specialization in certain aspects, includingchild rights activists and specialists on disabilityrights. Further, the Committee engaged withorganisations which worked with statisticaldatabases, collected over years of research, whichhelped us to evaluate systemic problems,addressing which would have far reachingconsequences for women’s rights economic, socialand political. The committee also consultedofficers with administrative and policingexperience to adequately identify the lacunas thatplague the state machinery.6. The committee engaged in in-depth globalresearch to gather material for reaching itsconclusions and crafting the proposedamendments in legislation. The Committee alsoanalyzed past judgments, reviewed the trajectoryof public policy and its sensitivity towards gender;and enquired into the differences of socio-politicalcon<strong>text</strong>s in which uniform laws are/have beenimplemented. This led us to probe deeper inrecognizing multiple patriarchies and striking at awider ‘culture of misogyny’ through a change ineducational practices. The committee hopes tohave success<strong>full</strong>y addressed the concerns of thepeople, and done justice to the widespreadprotests across the country. But at the same timewe hope that the state action is accompanied bysustained efforts by the people to move22


collectively towards a culture of equality andmutual respect.7. The Committee also sought extensive data fromvarious ministries and departments of the Centraland State Governments to facilitate its task. Thelukewarm responses received will be commentedupon later in the Report.23


CHAPTER ONECONSTITUTIONALISM, REPUBLICANISM,AND GENDER EQUALITY“[Prejudice] it’s like a hair across your cheek. You can't see it,you can't find it with your fingers, but you keep brushing at itbecause the feel of it is irritating.”Marian Anderson1. We wish to base a large number of our conclusionson the theory of the Constitution. The actions ofthose in authority have been in conflict withconstitutional theory under which citizens of Indiaare entitled to equality. We wish to say thatequality is the bedrock of the Constitution.However, what is meant by equality under theConstitution, its manifestations and whether thisenables a citizen to have a greater say ingovernance is one of the fundamental questionswhich arises before this Committee.2. Thus it is important to state that, even though agovernment may enjoy popular public will, unlessand until its actions are informed byconstitutionalism, it will be unable to discharge theobligations towards citizens which are guaranteedunder the Constitution. The way in which theserights are made visible in life, society, and on apractical and continual basis, is the obligation ofthe State. This cannot be more telling in the con<strong>text</strong>of women, their rights and their empowerment.3. The word ‘republic’ is also vital to understand theconstitutional values which are embedded withinthe Constitution. We are aware of the cultural and24


egional diversity and pluralism which exists inIndian society. The idea of republic, we must bearin mind, is a Platonian concept which also wasadopted after the French revolution. In fact, weagree with a scholarly exposition in Jenning’sanalysis about ‘Citizenship, Republicanism andMulticulturalism’ in the French con<strong>text</strong> that reveals,that the concept of a ‘republic’ is a ‘reflectiveideal’, as opposed to a ‘regulative ideal’. 164. We are of the opinion that the ideology and theconduct of political parties, and all constitutionalinstitutions must bear the character of a republic. Itis important, therefore that our public life as wellas society, must be capable of reflectingrepublicanism.5. India’s democracy, as well as sovereignty iscontingent on the realisation of the ideal of socialjustice. We are therefore of the view that genderinequality is contrary to the unifying idea of asovereign, democratic republic.6. We agree with the historian Pierre Rosanvallon:“Our history is directed towards a rationalistconception of democracy. In France, democracy is notbased upon the confrontation of interests, it is notbased upon the negotiation of demands and needs. Itwants to establish itself upon an objective image of thegeneral interest. And this general interest is notdetermined by confrontation; it is understood byreason” 1716 Jennings, J. 2000. 'Citizenship, republicanism and multiculturalism incontemporary France', British Journal of Political Science, Volume (4):575-98.17 Pierre Rosanvallon, ‘Les e´lites franc¸aises, la de´mocratie et l’Etat:Entretien avec Pierre Rosanvallon’, Esprit, 236 (1997), p. 62. In Jennings,J. 2000. 'Citizenship, republicanism and multiculturalism incontemporary France', British Journal of Political Science, Volume (4):575-98.25


7. We would like to state that it is the youth of Indiawho actually by their extraordinary protest havereinforced reason, and have attempted to confrontthe state and political elite, to what is modernreality in the con<strong>text</strong> of the Constitution. Thesolidarity which cut across caste, creed, sex,religion and community clearly shows that theprotest was dictated entirely by secular andrational considerations. We believe that thepromotion of rational behaviour which appears tobe the engagement of youth as we could see fromthe protest is one of the telling tales of optimismfor the future; but we need to caution the State thatif such protests and if such engagements arediscarded by the arrogance of power, or theassumption of authority, the political class mayitself find its existence deeply imperilled.8. We think this lack of understanding ofrepublicanism and its character in IndianConstitution has been a serious omission. Wewish to clearly say that the Constitution embodiescertain fundamental universal values. Thesevalues have to be secured in practice and realityand that is the obligation of the State. We thinkthat a State which is unable to address itself tothese issues is going to seriously undermine theconstitutional existence of its citizens.9. In fact, way back in Ram Jawaya Kapur v. State ofPunjab 18 , we may note that Bijon KumarMukherjea, a scholar and Judge of greatdistinction, said that a modern State is expected toengage in all activities necessary for the promotion18 AIR 1955 SC 54926


of the social and economic welfare of thecommunity. It may be noted that in Ram JawayaKapur, the question which arose was the width ofthe executive power and it was held that:-“The limits within which the Executive Governmentcan function under the Indian Constitution can beascertained without much difficulty by reference to theform of the executive which our Constitution has set up.Our Constitution though federal in its structure, ismodelled in the British Parliamentary System where theexecutive is deemed to have the primary responsibilityfor the formulation of the governmental policy and itstransmission into law though the condition precedent tothe exercise of this responsibility is its retaining theconfidence of the legislative branch of the State. Theexecutive function comprises both the determination ofthe policy as well as carrying it into execution. Thisevidently includes the initiation of legislation, themaintenance of order, the promotion of social andeconomic welfare, the direction of foreign policy, in factthe carrying on of supervision of the generaladministration of the State…..”10. Mukherjea, J. further went on to say:-“…..As we have said already, the executive governmentare bound to conform not only to the law of the land butalso to the provisions of the Constitution. The IndianConstitution is a written Constitution and even theLegislature cannot override the fundamental rightsguaranteed by it to the citizens. Consequently, even ifthe acts of the executive are deemed to be sanctioned bythe legislature, yet they can declared to be void andinoperative if they infringe any of the fundamentalrights of the petitioners guaranteed under Part III of theConstitution…..”11. We have cited this decision as one of the firstdecisions which chose to speak about the theory ofgovernance under the Constitution. What does the27


theory of governance under the Constitutionimply when the State is obliged to respect rights?There are two theories which exist. One is that therights are injunctions against the State whereas thesecond is that the rights had both these injunctions(State as a non-violator) and also, in addition havean affirmative obligation to secure the conditionsfor those rights. This Committee is of the viewthat our Constitution, is a proactive Constitution,therefore, believing in the latter theory. This is infact the challenge of governance under theConstitution when the Constitution is a livingorganism capable of reflecting dynamicaspirations, as well as a bundle of rights, whichmay be of competing character.12. We notice that there was an earlier decision of theSupreme Court in State of West Bengal v. Anwar AliSarkar 19 , which set out an important principle withreference to Article 14 of the Constitution.13. Article 14 of the Constitution runs as follows:-“14. The State shall not deny to any person equalitybefore the law or the equal protection of the laws withinthe territory of India.”14. The first part of Article 14 is borrowed from theIrish Constitution. It is a declaration of equality ofcivil rights of all persons. We also believe that thatis why in the Preamble there is an expressreference to the character of India being ademocratic republic. Republicanism, as discussedabove, in our view means equality of rights. Infact, it may be noted that Chief Justice Shastri (inSarkar), very perceptively noted that:19 1952 SCR 28428


“…..the second part which is a corollary of the firstand is based on the last clause of the first section of the14 th Amendment of the American Constitution enjoinsthat equal protection shall be secured to all suchpersons in the enjoyment of their rights and libertieswithout discrimination or favouritism, or as anAmerican Judge put it “it is a pledge of the protectionof equal laws”…… that is laws operate alike on allpersons under like circumstances.”15. We would like to note that while Article 14 is usedas a prohibitory injunction, we also find that thereare certain words in Sarkar which suggest that,namely:“and as the prohibition under the Article is directedagainst the State, which is defined in Article 12 asincluding not only the legislatures but also thegovernments in the country, Article 14 secures allpersons within the territory of India against arbitrarylaws as well as arbitrary application of laws. This isfurther made clear by defining law in Article 13(which renders void any law which takes away orabridges the rights conferred by Part III as includingamong others any order or notification so that evenexecutive orders or notifications must not infringeArticle 14).”16. This ensures non-discrimination in State actionboth in the legislative and administrative spheresin the democratic, republic of India. In fact, inSarkar, it was noted that:“….the State in the exercise of its governmental powermust have necessity make laws operating differentlyon different groups or classes of persons within itsterritory to attain particular ends in giving effect to itspolicies, and it must possess for that purpose largepowers of distinguishing and classifying persons orthings to be subjected to such laws. But classificationimplies discrimination between persons classified andthose who are not members of that class. ….. Atchison,29


Topeka & Santa Fe R. Co. v. Matthews, that upon theclass or caste duties and burdens different from thoseresting upon the general public …… indeed the veryidea of classification is that of equality, so that it goeswithout saying that the mere fact of inequality in nomanner determines the matter ofconstitutionality…..”17. We are referring to the above passage to indicatethat even as far back as 1952, the Supreme Courtwas conscious of protection of fundamental rightsand particularly in the sphere of nondiscrimination.Obviously, legislative andadministrative actions which are hostile indiscrimination are forbidden by the Constitution.But at the same time, it is open to the State toactually adopt such special measures as may benecessary for the purpose of removing inequality.We also notice that in the farsighted judgment ofJustice Shastri, where there was an expressreference to the celebrated decision in Hopkins 20which clearly said that “…..though the law itself befair on its face and impartial in appearance, yet if it isapplied and administered by public authority with anevil eye and an unequal hand so as to practically makeunjust and illegal discrimination between persons insimilar circumstances, material to their rights, thedenial of equal justice is still within the prohibition ofthe Constitution.”18. In our view, these telling observations in Sarkar aresomewhat vital in understanding the concept ofequal protection of the laws within the territory ofIndia. This means that women are entitled notonly to equality under Article 14 but are alsoentitled to the equal protection of the laws. Anyoffences which are committed in relation to them,20 Yick Wo v. Hopkins, 118 U.S. 356, 373 -74 (1886)30


should not be tried in a facially compliant manner,but in an effective manner, so that there is honestyof purpose, integrity of prosecution as well assuccessful conviction of such offences, for whichthe state must evolve a dynamic reviewmechanism.19. We must note that the Constitution is a pledge ofthe State. The State is responsible to live andadminister the Constitution. As far as the rights ofwomen are concerned, in our opinion, the Statehas failed to fulfil its tryst and pledge with theConstitution to create both, atmospheric climaticand ground conditions for their welfare andbenefit.20. In the Squire Centenary Lecture, the RightHonourable Lord Woolf, Lord Chief Justice ofEngland and Wales, clearly said that anyworthwhile society required an efficient andeffective legal system. Constitutions have toevolve to meet the needs of their citizens. Indeed,Lord Woolf perceptively remarked:-“The evolution can be incremental in a way whichwould be difficult if we had a written Constitution. Butflexibility comes at a price. We have never had theprotection that a written Constitution can provide forinstitutions that have a fundamental role to play insociety. One of those institutions is a legal system thatis effective, efficient and independent. A democraticsociety pledged that the rule of law would be deeplyflawed without such a legal system…..” 2121 The Rule of Law and a Change in the Constitution – The Rt. Hon. TheLord Woolf, Lord Chief Justice of England and Wales. 2004. SquireCentenary Lecture.31


21. Lord Woolf rightly noted that the ability to copewithout a written Constitution in Britain dependedlargely on the tradition of mutual respect, restraintand cooperation. We agree with Lord Woolf that:-“There is hardly an institution performing functions ofa public nature which has not been the subject ofchange. The changes have had an impact on the way inwhich our Constitution operates…..” 2222. We are of the opinion that while acknowledgingthe sovereignty of the legislatures and the latitudegiven to executive governance, the primacy ofsovereignty as well as latitude is only for publicgood and is informed by the theory of entrustmentand protection of human rights. We must add thatthe rule of law is not only intended to prevent thegovernment of the day from abusing its powersbut is also meant to be the informing charter for itsduties and attitudes including behavioral andsocial attitudes.23. Have we seen a social attitude of politicalauthority against Khap Panchayats? Have we seenan express denunciation by a collective body likeParliament against such bodies? Have we seen anexpress denunciation by Parliament to deal withoffences against women? Have we seen thepolitical establishment ever discuss the rights ofwomen and particularly access of women toeducation and such other issues over the last 60years in Parliament? We find that over the last 60years the space and the quantum of debates whichhave taken place in Parliament in respect ofwomen’s welfare has been extremely inadequate.22 Ibid32


Further, we have noted the sustained historicalneglect of women in planning and public policy.24. While we do agree that after the enforcement ofthe Constitution in a newly independent state,there are priorities in governance. We take note ofthe fact that the first 15 years of independent Indiawere largely spent in the building of institutionsunder the Constitution which included aparliamentary democracy, independent judiciary,encouraging economic development andtechnological advancement which were to mark itas a modern State.25. However, as far as women are concerned, the roleof women in planned economy was notadequately prioritized. It is revealed that in 1939,there was a National Standing Committee whichappointed a Sub-Committee to work out the roleof women in a planned economy. 23 The NationalPlanning Committee was set up in 1938 by theIndian national Congress at the joint initiative ofSubhash Chandra Bose and Jawaharlal Nehruunder the chairmanship of the latter. We furthernotice that the final report (Women’s Role inPlanned Economy WRPE) was presented beforethe Plenary Session of the National PlanningCommittee in 1940. According to historians, thesaid report did clearly show that there were issuesat stake, and recommended that these be put in aframework of contemporary national andinternational thinking. We must note that the 1939report came to light on account of the efforts ofMaitreyi Krishnaraj from the archival sources23 Banerjee, N. 1998. 'Whatever Happened to the Dreams of Modernity?The Nehruvian Era and Woman's Position', Economic and PoliticalWeekly, Volume(17).33


which was brought back into public notice –‘Remaking Society for Women: Visions from Pastand Present’. Some of its key recommendationsthat have a direct bearing on a woman’s economicempowerment are summed up as below:1. The report noted that economic rights ofwomen were contingent on each woman beingrecognised as a separate and an independentunit within the economic structure.2. WRPE report dealt with equal pay for equalwork and also raised the question ofcompensation for household labour byabsolute claim on a portion of the householdincome.3. The report also accorded women the right toclaim crèche facilities. (This crucial provisionwas not recognised till as late as 2006, in theMahatma Gandhi National Rural EmploymentGuarantee Scheme (MNREGS), butunfortunately this provision still remainsextremely inadequate if not dysfunctional)4. The report suggested that “there should becessation of all work during the day - so thatthe mid-day meal can be conveniently takenand the house wife is released from the dutiesin kitchen" [NPC 1948:227, resolution I lb]. 245. It also condemned the prioritization of maleworkers over women, and sought equalguarantees for women at work regardless oftheir marital status.24 Ibid p234


26. Indeed, it is extraordinary that the said reportwent quietly unnoticed.27. A similar trend of absence in policy can be viewedby analysing the Planning Commission Reports.The trend has historically been to view women as‘recipients’ and not contributors to public policy.These patronizing tones blind the state to thespecificities of women’s issues and theparticularities of their condition. 2528. Bannerjee’s paper asserts that the first Five YearPlans fails to recognize women as workers.Bannerjee writes “the first plan resolved toprovide women with adequate services necessaryto fulfil what was called a ‘woman's legitimate rolein the family’ [GOI 1974:306]. The Second Plan didmention women’s work but it was mainly to talkabout protecting them from hazards for whichthey were physically unfit. We do not find in theFive Year Plans any attempt to promote equality orremove specific handicaps of disadvantagedgroups in the initial years. Thus, for aconsiderable period, agricultural activities as wellas wage good industries other than those in the25 Ghosh, J. 2002. 'Globalization, export-oriented employment for womenand social policy: A case study of India', Social Scientist, Volume: 17-60Kabeer, N. 2004. 'Globalization, Labor Standards, And Women SRights: Dilemmas Of Collective (In) Action In An InterdependentWorld', Feminist Economics, Volume(1): 3-35., Krishnaraj, M. 2000.'Women's Perspectives on Public Policy in India: A Half-Century ofIncomplete or Lost Agenda?', Gender, Technology and Development,Volume(2): 161.See also, Swaminathan, M. 1998. 'The new economic policies and therural women', Women’s Equality, Volume. and Saxena. S 2010“Whatdo the literatures on India’s New Economic Policy and on Women inthe Informal Economy allow us to understand about the linkbetween Macro Policy and Gendered Outcomes as seen through theCritical Feminist Analytical Lens?” unpublished thesis, University ofOxford.35


factory sector, were outside the realm of planning.We also find that in the chapter on agriculturalworkers in 1956 Plan, there was no awarenessshown about women in the agricultural sector.We also notice that the Third Plan also did notaddress the issue of women in employment. Theonly mention which we find about women in theThird Plan is about women’s training for familyplanning work and midwifery 26 . We notice thatthere was a thrust for women’s development withrespect to girls’ education 27 , however, thedocument in talking about the gap between boys’and girls’ educational achievements did notexamine the causes for such disparities.29. A study undertaken by Krishnaraj (1998), hasrevealed that planning commission reports alsodid not account for the vast number of womenemployed in the informal sector of the economy,who lay outside the purview of any labour lawsand were vulnerable to exploitation. It not till theArjun Sengupta Report and the setting up of theNational Commission for Enterprises in theUnorganized Sector (NCEUS) in the year 2008 thatthe unorganized economy was acknowledged. Wethink, this, has been a serious aberration ingovernance and in understanding the structuraleconomics as far as women are concerned. Wetherefore, urge the state to make up for thishistorical neglect in understanding the role playedby women.26 (1961 Plan Document, p. 179)27 (1974 Plan Document, p. 307) Banerjee, N. 1998. 'WhateverHappened to the Dreams of Modernity? The Nehruvian Era andWoman's Position', Economic and Political Weekly, Volume(17).36


30. In India, we did not need special antidiscriminationlegislation or for that matter,special courts to deal with complaints relating todiscrimination because of the presence of a writtenConstitution. However, it may not be irrelevant toincorporate the principles of promotion of equalityand prevention of unfair discrimination whichhave in fact been the subject matter of speciallegislation in some jurisdictions.31. We notice that the Preamble to the South AfricanPromotion of Equality and Prevention of UnfairDiscrimination Act, 2000 includes an expressprovision 28 that “the consolidation of democracy inour country requires eradication of social and economicinequalities, especially those that are systemic in nature,which were generated in our history by colonialism,apartheid and patriarchy, and which brought pain andsuffering to the great majority of our people…..”32. We think that the Preamble of our Constitution in1950 proceeded to project these principles andproceeded on the basis that economic and socialinequality was meant to be eradicated. Theobjective was sufficiently large and was cognizantof the oppression and discrimination which wouldexist in a patriarchal society.33. We further note:-“Although significant progress has been made inrestructuring and transforming our society and itsinstitutions, systemic inequalities and unfairdiscrimination remain deeply embedded in socialstructures, practices and attitudes, undermining theaspirations of our constitutional democracy….”28 Preamble. Promotion of Equality and Prevention of UnfairDiscrimination Act. 2000. Republic of South Africa.37


34. We believe that while certain measures may havebeen taken over a period of time but they havebeen too far and too few and they certainly havenot attempted to restructure and transform societyand its institutions. If there has to be a societywhich is based on equality of gender, we mustensure that not only does a woman not suffer onaccount of gender but also not suffer on account ofcaste or religion in addition. Thus a woman maysuffer a double disadvantage – a) because she is awoman, and b) because she belongs to acaste/tribe/community/religion which isdisadvantaged, she stands at a dangerousintersection if poor.35. We also notice that in South Africa there wasconsciousness of adherence to internationalobligations and binding treaties. We quote:-“South Africa also has international obligations underbinding treaties and customary international law in thefield of human rights which promote equality andprohibit unfair discrimination. Among theseobligations are those specified in the Convention on theelimination of all forms of discrimination againstwomen and the Convention on the elimination of allforms of racial discrimination.” 2936. As we shall presently point out, India is asignatory to all the international Conventionsrelating to women and we shall consider theirimportance in constitutional interpretation and inthe theory of the Indian State in its attitudetowards women.29 Ibid38


37. The further recital provides that Section 9 of theConstitution of South Africa provides for theenactment of national legislation to prevent orprohibit unfair discrimination and to promote theachievement of equality. This implies theadvancement by special, legal and other measuresof historically disadvantaged individuals,communities and social groups who weredispossessed of their land and resources, deprivedof their human dignity, and who continued toendure the consequences.38. The South African Promotion of Equality andPrevention of Unfair Discrimination Actendeavours to facilitate the transition to ademocratic society united in its diversity markedby human relations that are caring andcompassionate and guided by the principles ofequality, fairness, equity, social progress, justice,human dignity and freedom. We are of theopinion that each of the concepts of equality,fairness, equity, social progress, justice, humandignity and freedom are to be found in the IndianConstitution. We also believe that by virtue of thePreamble, the Indian State is meant to be a ‘caring’and ‘compassionate’ State towards those who aredisabled in poverty, ability, or disadvantaged inany manner which would also include womenwho also have been subjected to a disadvantagedsocial position. We notice that Section 8 of the saidAct provides for prohibition of unfairdiscrimination on the ground of gender. TheIndian law has recognized in Ashok Kumar Thakurv. Union of India 30 that equality means not onlyfacial equality but de facto equality:30 (2008) 6 SCC 139


“What I am concerned to see is not whether there isabsolute equality in any academical sense of the termbut whether the collective conscience of a sovereigndemocratic republic can regard the impugned law,contrasted with the ordinary law of the land, as thesort of substantially equal treatment which men ofresolute minds and unbiased views can regard as rightand proper in a democracy of the kind we haveproclaimed ourselves to be. Such views must take intoconsideration the practical necessities of government,the right to alter the laws and many other facts, but inthe forefront must remain the freedom of theindividual from unjust and unequal treatment,unequal in the broad sense in which a democracywould view it. In my opinion, 'law' as used in Article14 does not mean the "legal precepts which areactually recognised and applied in tribunals of a giventime and place" but "the more general body of doctrineand tradition from which those precepts are chieflydrawn, and by which we criticise, them.”39. We may notice that in the South African law,equality has been defined as both de jure and defacto equality. It has provided that:“Equality includes the <strong>full</strong> and equal enjoyment ofrights and freedoms as contemplated in theConstitution and includes de jure and de facto equalityand also equality in terms of the outcomes.”40. It is, therefore, to be noticed that in Section 8 of theSouth African law, there is a prohibition of unfairdiscrimination on ground of gender subject toSection 6, no person may unfairly discriminateagainst any person on the ground of gender,including – a) gender based violence; b) femalegenital mutilation; c) the system of preventingwomen from inheriting family property; d) anypractice including the traditional, customary orreligious practice which impairs the dignity of40


women and undermines the equality of womenand men including undermining the dignity andwell-being of the girl child; e) any policy orconduct that unfairly limits access of women toland rights, finance and other resources,discrimination on the ground of pregnancy,limiting women’s access to social services orbenefits such as health, education and socialsecurity, the denial of access to opportunitiesincluding access to services or contractualopportunities for rendering services forconsideration or failing to take steps to reasonablyaccommodate the needs of such persons, systemicinequality of access to opportunities by women asa result of the sexual division of labour.41. We also notice that in South Africa, there is aWomen Empowerment and Gender Equality Billwhich is available for public comment. We noticethat this is intended to be a legislative frameworkfor empowerment of women, to give effect toSection 9 read with Section 2 of the Constitution ofthe Republic of South Africa 1996 in compliancewith South Africa’s international commitments; toprovide for an obligation to adopt and implementthe gender mainstreaming, to provide for offencesof practices with adverse effects. We do noticethat from the words of the said Bill, there is arecognition that lesbian, gay, bisexual,transgender, intersexual persons are endowedwith the same alienable rights and are entitled tothe same protection as all human beings andspecial provisions have been sought to be made toprotect them from abuse and violation of theirhuman rights including torture, rape and murder.We notice extensive references to genderinequality in workplace, in areas apart from the41


workplace and that how law must overridepatriarchal, customary, traditional and religiousprovisions which have unequal outcomes and thatcollective societal environment is imperative forthe country to realise substantive gender equality.42. We may note further to our discussion on auniversal charter of rights, that the United Nationsprotocol to prevent, suppress, punish trafficking inpersons especially women and children adopted inNovember 2000 is a part of the United NationsConvention against organised crime and providesthe first internationally recognised definition oftrafficking (ESEAP 2003). Besides giving aframework for further discussions, it has proved tobe a guiding principle for a matter of conceptualunderstanding of trafficking.43. We are of the opinion that each one of theseclauses is inbuilt into our constitutional conceptsof Article 14, 19, 21 read with Article 51A(e)including the duty on the part of the State to makespecial provisions under Article 15(3). In view ofArticle 51A(e) of the Constitution which is theduty of every fundamental citizen to renouncepractices which are derogatory to the dignity ofwomen and the guaranteed Articles under theConstitution, we have already in our Constitutiona duopoly of obligations of the State as well asobligations of the individuals. Unfortunately, as aresult of the political class/establishment beingunable to take a firm position, unequivocal incharacter, to reinstate these as fundamentalprinciples of equality in which parliamentarydemocracy and republican character of the nationwill be affirmed; and as a result of inaction andhiding behind the apathy and the delegated42


esponsibility of administration of laws by thepolice, the main discourse relating to subjugationof women has been lost sight of. We think it isnecessary that this imbalance is set right byexpress statutory provisions which are outlined inthe form of a draft Bill of Rights appended to thisReport.44. Empowerment of women means the advancementof women as contemplated under Articles 14 and21 of the Constitution through integratedstrategies, frameworks, programmes, plans,activities, budgets, which aim to eliminatestructural inequalities and which enable women togain power and control over decisions andresources which determine the quality of theirlives in a sustainable manner.45. The Committee is of the firm opinion that the lackof empowerment of women resides in threefactors:-a. The inequality perceived and felt bywomen;b. De facto inequality; andc. Poverty and lack of power, or, the inabilityto access authority in equal terms.46. We regret to state that there have been cases wherethe police has viewed vulnerability of the victimsas a corresponding additive to its own strength ofcontrol. We are afraid the violation of humanrights pertaining to ‘rape cases’ includingpermission of rape, distorting investigation inrape, pre-conceived notions of ‘honour,’ certainregressive court judgment (in some cases, we aretold, that the rapist made a magnanimous offer tomarry the girl) are extraordinarily telling43


euphemisms of misplaced morality. Thus,complaints of rape become mere matters offormality - low on priority because there is nounderstanding of the acuteness of the violation ofhuman rights in respect of a woman by sexualassault and the psychological trauma sheundergoes. This is compounded by vulnerabilitiesemanating from class/caste/communitydisadvantages and also that of poverty. This hasled to a subculture of oppression and we are afraidthat unless and until this is addressed not just inhigh sounding economic terms but in terms ofconcrete legislation, accountability, assertion ofrights, guarantees of education and above all tosecure spaces, India’s constitutional claim torepublicanism remains overstated. As Dr.Ambedkar opined:“I feel that the constitution is workable, it is flexibleand it is strong enough to hold the country togetherboth in peacetime and in wartime. Indeed, if I may sayso, if things go wrong under the new Constitution, thereason will not be that we had a bad Constitution.What we will have to say is that Man was vile.”47. In this respect, we note the submissions madebefore us by Ms. Indira Jaisingh, AdditionalSolicitor General of India, who stresses thatequality for women not only be tested on thecornerstone of Article 15, but equally in the con<strong>text</strong>of Article 16(4) of the Constitution (which has beeninterpreted to mean that women could also beconsidered as "other backward class").48. In a certain sense, the ASG’s views have someforce, and we agree that the guarantee of nondiscriminationbased on sex ought to be available44


equally against the State as well as against nonstateactors. Laws to fill in the missing link onviolence against women are, in our view,inevitable to ensure true equality.49. This is indeed the correct way to look at thisproblem. We consider that non-discrimination isthe foundation in any society which is governedby principles of equality based on humanity. Wedo believe that the collective failure of anorganisation to provide an appropriate andprofessional service to each section of societyregardless of sex, colour, culture or ethnic originamounts to discrimination through unwittingprejudice, ignorance, thoughtlessness andstereotyping.50. We do broadly agree that the institutional biasagainst women in India is a failure on the part ofthe State and its organs to provide appropriatenon-discriminatory treatment to people because oftheir sex or gender. We do agree that such biascan be seen and detected in processes, attitudesand behaviour which disadvantage women.51. However, in a country which mostly follows apatrilineal system, the seeds of discrimination aresown at the lowest social tier itself. Discriminationbetween sexes in the allocation of scarce resourcesin various fields such as nutrition, medical careand education is directly related to the greaterdesirability of the son and the transferability of thedaughter. In most families, girls are taught to seebrothers get more and better food. This attitude isinternalized by girls often without being consciousof it; but a conscious effort is also made so that the45


girls inculcate the cultural norms which legitimizea differential treatment between girls and boys 3152. We would like to say that non-discrimination is awider concept. Non-discrimination is not merelythe absence of discrimination. It is an affirmativeposition, which is called non-discrimination. Inother words, the purpose of equality under theConstitution can simply be defeated by recourse tosubtle, slants of behaviour, attitudes and powerplay as well as the exhibition of arrogance. We areof the opinion that this protest which was made byyoung India is a protest against institutional biaswhich both men and women perceive related towomen and we think that is an important facet ofthis protest.53. We wish to add that the supreme law does nothave any bias against women – on the contrary,the Constitution guarantees political and socialequality and liberty to women. Where, then, liesthe mismatch in the letter of the law and its spirit?54. Law is a normative exercise. What needs to beexamined is whether the normative exercise isviewed as a sufficient communication to thesociety on what is and what is not an offence.55. We are of the opinion that on account of thepatriarchal structure of our society, women havebeen constantly marginalised and ignored. Theyhave gone through years and years of struggle.On the other hand, we must not forget, they haveparticipated in equal measure in India’s freedommovement, and the framing of the Constitution.31 Towards Equality-Report of the Committee on the Status ofWomen in India, Sharma K. and Sujaya C.P. (Ed), Pearson, 201246


They are as much architects of India's freedom anddestiny as anyone else. But they had dualresponsibilities. They also had a reproductive roleas a result of which the concept of family and theirrole in the family was one which was geared tobring up and look after the family. The mere factthat they looked after the family did not in anymanner diminish their abilities. They felt traditionbound and looked after families, but at the sametime they were also having the same humancuriosities and wanted to study, and soughteducation. The moment the patriarchal societyrealised that women, if educated, could becomeindependent and could assert authority, it saw achallenge to its authority. It is this perceivedchallenge of authority which is misplaced and is aresult of years and years of past cultural beliefs.We agree that this cannot be washed away in aday. We have to make transformative processes insociety which will not only make society moresecure, but give equality to women, respect them,give them secure spaces, and males will also bebenefited as a result of their changed attitudes andliberation. Thus India will stand to gain.56. We wish to make it clear that the acts of extraconstitutionalbodies (like khap panchayats), whichrestrain the right of men and women to select apartner of their choice, do not enjoy the sanction oflaw in India. It is not that the framers of theHindu Marriage Act were not aware of the Smritisand the Dharmashastras when they framed the law.We are, therefore, unable to understand how a setof self-styled bodies and panchayats can decide tooutlaw marriages borne out of free choice. We areof the opinion that women's right to choose whom47


they want to marry and also to enter into marriageas a civil union is vital to a democratic society.57. There is, naturally, a certain degree of institutionalbias against women. Their complaints are nottaken seriously by the police. On account of thepatriarchal structure the male police officers donot take complaints of rape seriously.58. We have, during our deliberations, also seen thatthere is large-scale trafficking of women andfemale children in India. We have also noted theinvolvement of elements of the police force in thepropagation of such a heinous crime. We havealso been made aware that the policeestablishment and the CBI have been <strong>full</strong>y awareof this malaise for years, but apart from theissuance of advisories and circulars, they havedone little to curb this menace. We have seen thatcomplaints made by women andtrafficked/abused children are not promptlyregistered (or at all) by the police. It is clear thatthis institutional bias, especially against theweaker sections of society, have resulted inwomen and children being contained andmanaged like chattel due to the apathy of theState. When a woman belongs to the weakersection of society, she already suffers from,therefore, a twin disadvantage i.e. she is standingat the crossroads of both being a woman as well asbeing economically disadvantaged.59. We are also of the opinion that women must enjoyfreedom and should not be intended to act ascarriers of ‘perceived honour’ any differently frommale children. Thus, the excessive control overwomen, which has been exercised over the last few48


decades and its acceptance in India in recent years,is simply outrageous.60. It is necessary that the State must actually practiceequality in matters of all such opportunities whichit affords in public employment. The employmentof women should also include employment inother positions.61. The State must also, in our view, seriously tackleand attempt to eradicate the evil of malnutrition ofwomen and children. It is sad to note that in spiteof several orders of the Supreme Court issuingdirections to ensure women and children get middaymeals, adequate measures have not beentaken:“… In one of the orders earlier passed, this Courthad observed about the impact of this publicinterest litigation on the very existence of largesection of poor people, their right to life and rightto food to those who can ill-afford to provide totheir families two meals a day and theirmisfortune becoming further grave duringfamine and drought.On 28th November, 2001, this Court directed theState Governments/Union Territories toimplement mid-day meal scheme by providingevery child in every government and governmentaided primary school with a prepared mid-daymeal with a minimum content of 300 caloriesand 8-12 grams of protein each day of school for aminimum of 200 days.… … …It is a matter of anguish that despite lapse ofnearly three and half years, the order dated 28thNovember, 2001 has not been <strong>full</strong>y implementedby all the States and Union Territories. … … …49


It is a constitutional duty of every State andUnion Territory to implement in letter and spiritthe directions contained in the order dated 28thNovember, 2001 … 3262. These are definitely schemes to ensure thatpoverty does not come in the way of survival ofcitizens. Yet, we are concerned that thevulnerability to poverty and destitution is fargreater in respect of women.63. The prevention of domestic violence having to beenforced through legislation called the Protectionof Women from Domestic Violence Act, 2005 isitself an indication of the manner in which womenhave been disempowered. The statement ofobjects and reasons of the Domestic Violence Act isas follows:-“Domestic violence is undoubtedly a human rightissue and serious deterrent to development...2. The phenomenon of domestic violence is widelyprevalent but has remained largely invisible in thepublic domain. Presently, where a woman issubjected to cruelty by her husband or his relatives,it is an offence under Section 498-A of the IndianPenal Code. The civil law does not however addressthis phenomenon in its entirety.3. It is, therefore, proposed to enact a law keeping inview the rights guaranteed under Articles 14, 15and 21 of the Constitution to provide for a remedyunder the civil law which is intended to protect thewomen from being victims of domestic violence andto prevent the occurrence of domestic violence inthe society.”32 Order of the Supreme Court dated April 20, 2004 in W. P. (C) No.196 of 2001 (PUCL v. UOI & Ors.)50


64. While the enactment of this statute was a welcomemeasure, it has not led to a reduction in instancesof domestic violence. This is primarily becausethere has been no change of fundamental attitudestowards women. The passing of legislationwithout adequate dissemination of implementingthe spirit of the legislation as a part of normativehuman conduct is missing in Indian executivegovernance. The translation of legislation intobehavioural attitudes is not simply a matter ofpsychological skill or acquisition but is indeed acharter of obligations enjoined upon the State. TheState, which has the resources of the media,educational institutions, and executivegovernance, must have <strong>full</strong> time long termadvisors who would be able to constantly monitorthe condition of women from different standpointsand characteristics. We are unable to see in theGovernment of India any specialists in theMinistry of Health who are under a <strong>full</strong> timeemployment to be able to ascertain sociologicallythe condition of women much less theirpsychological well-being.65. We must also recognize that our society has theneed to recognize different sexual orientations ahuman reality. In addition to homosexuality,bisexuality, and lesbianism, there also exists thetransgender community. In view of the lack ofscientific understanding of the different variationsof orientation, even advanced societies have had tofirst declassify ‘homosexuality’ from being amental disorder and now it is understood as atriangular development occasioned by evolution,partial conditioning and neurologicalunderpinnings owing to genetic reasons. Further,we are clear that Article 15(c) of the constitution of51


India uses the word “sex” as including sexualorientation.66. To better understand alternate sexualities we lookto ‘Magnus Hirschfeld's Doctrine of SexualIntermediaries and the Transgender Politics of (No-)Identity’ 33 .67. In this work, Bauer traces the origins of thewestern conceptualization of sexual differences“according to a binomial scheme” within which,only the male/female combinatory was given adivine sanction and considered a natural order.Any other combination be it male/male andfemale/female) were largely understood as a sin,crime or illness. Over the years, the Westdeveloped an “alternative sexualconceptualization based on Galen's one sexmodel.”68. Barner argues, “While the two-sex scheme posits ahierarchical structure in which the female sex issubordinated to its complementary opposite, the Galenicone-sex model establishes a bi-polar hierarchy, whichresults from the way individuals actualize in theirbodies the unique sexual nature of maleness .” 3469. He further posits:“On this account, "fe-males" are only imperfectinstantiations of the single existing sex and they musttherefore be subordinated to "males" as the superior33 J. Edgar Bauer, Magnus Hirschfeld's Doctrine Of Sexual IntermediariesAnd The Transgender Politics Of (No-) Identity’. Past and Present ofRadical Sexual Politics. Ed Gert Hekma. Amsterdam 2004.34 Cf. Laqueur 1992, especially chapter 3: 63-113, In Barner 2003,52


ealization of mankind's sexual nature. Although theone-sex model became a determinant factor inRenaissance anatomical studies and its traces areobservable even in Sigmund Freud's theory of a uniquemale libido, it never challenged seriously the pervasiveinfluence of sexual binarism, whose ideological prestigewas supported by biblical revelation and allegedlyobservable factuality.” 3570. The categorisations of “a first, paternal, rulingsex,” and “a second, maternal, subordinate sex,”the third sex was meant to reconcile theircharacteristics as one individual. Bauer furtherexplains that:“For its modern advocates, the third sexual mode wasan indispensable accretion to binary sexuality designedto closure the possibilities of what is conceivable as"sex". Later on, the third sex was conceived as anemblematic sexual variety that, besides supersedingbinomial sexuality, initiates a sexual series, whichexcludes the idea of its own final completion… Whilethe proposal of a "suppletive" third sex sought toovercome the limitations of the sexual binomium byadding a collective category that included all previouslyrejected or ignored sexual alternatives, the postulationof a "serial" third sex reflected the insight that no finalsexual category can do justice to the inexhaustiblevariability of human sexuality.” 3671. Bauer refers to Ulrichs’ (1825-1895) redefinitionsexuality within a triadic scheme of sexual modesand concluded: "We constitute a third sex." 37Basically, Ulrichs viewed male Uranians as femalesouls trapped in male bodies. Further, he regardedthem as well as their female counterparts as35 Bauer, J. E. 2003. 'Magnus Hirschfelds doctrine of sexualintermediaries and the transgender politics of (no-) identity',Conference: Past and Present of Radical Sexual Politics, Amsterdam.36 Ibid37 (Ulrichs [1899] 1994: 47), in Ibid53


appertaining to a separate, third sexual classclearly distinguishable from normal men andwomen. Bauer opines that from its inception,however, Ulrichs' third sex category was markedby a specific instability. In the letter quoted,Ulrichs asserted that "sexual dualism" is presentembryonically in every human individual, but thatit manifests itself in a greater degree inhermaphrodites and Uranians than in normal menand women.72. He asserts that, “Despite his intuitive awareness thatall humans are to a greater or lesser extent bisexual,Ulrichs obviously decided to disregard his insight forreasons of argumentative strategy, and declaredprogrammatically: "We are not concerned by anyintermediary degrees.”73. We quote with emphasis the following sentence,which is crucial for the purpose of the presentdebate: “For it led, among other things, to theunwarranted acceptance of heterosexual teleology and tothe psychoanalytical sanction of the patriarchaldistributions of sexuality and power.” Borrowingagain from Bauer, a primary assumption ofHirschfeld's doctrine of sexual intermediaries isthat, “there are no men and women, but onlyhuman beings that are to a large extent male or toa large extent female.” 3874. There is an inexhaustible diversity of sexualitiesresulting from qualitative as well as quantitativedifferences that are determined by the way the“primary sexual disposition reacts to processesthat hinder or advance its development”. Against38 (Hirschfeld 1913: 4) in Ibid p554


this backdrop, all artificially separated sexualvarieties prove to be transitions within thepervading continuity of nature.75. Thus, if human rights of freedom mean anything,India cannot deny the citizens the right to bedifferent. The state must not use oppressive andrepressive labeling of despised sexuality. Thus theright to sexual orientation is a human rightguaranteed by the fundamental principles ofequality. We must also add that transgendercommunities are also entitled to an affirmation ofgender autonomy. Our cultural prejudices mustyield to constitutional principles of equality,empathy and respect.76. We can do no better than to quote Nancy Fraser 39 :“Alternative remedies of homophobia and heterosexismare currently associated with gay identity politics,which aims to revalue gay and lesbian identity.Transformative remedies, in contrast, are associatedwith queer politics, which would deconstruct the homoheterodichotomy…so as to de- stabilize all fixed sexualidentities. The point is not to dissolve all sexualdifferences in a single, universal human identity; it is,rather, to sustain a sexual field of multiple, debinarized,fluid ever -shifting differences”77. We need to remember that the founding fathers ofour Constitution never thought that theConstitution is ‘mirror of perverse socialdiscrimination’. On the contrary, it promised themirror in which equality will be reflected brightly.Thus, all the sexual identities, including sexualminorities, including transgender communities are39 Fraser, Nancy, Justice Interruptus: Critical Reflections on the"Postsocialist" Condition, Routledge, 199755


entitled to be totally protected. The Constitutionenables change of beliefs, greater understandingand is also an equally guaranteed instrument tosecure the rights of sexually despised minorities.78. It would be clear from the above that there is asubstantial deprivation of equality, status andopportunity for women. The Constitutioncontemplates an ever vigilant State, an evereffective State, and ever sensitive State, and yet,the measures of success of a State not in terms ofmoney or monetary indices, but in terms of thecapability and capacity of human beings to livewithout discrimination based on principles ofequality and fulfilment of individual potentiality.79. The rape of Nirbhaya and the sacrifice of her lifeonly reinforces that India requires de factoequality, requires freedom from superstition,renunciation of arcane, misogynist traditions andpractices which are completely at variance withthe Constitution.56


CHAPTER TWOGENDER JUSTICE AND INDIA’SOBLIGATIONS UNDER INTERNATIONALCONVENTIONS1. The Committee notes that the obligation of theState to ensure gender justice (including protectingwomen from crime and abuse) arises from manysources of international law. We note some ofthese below:The Universal Declaration of Human Rights, 19482. India was one of the 48 countries which voted infavour of the adoption of the UDHR by the UnitedNations General Assembly on 10 th December 1948.The UDHR is not a treaty in itself but defines‘fundamental freedoms’ and ‘human rights’ for thepurposes of the UN Charter. The UDHR isgenerally agreed to be the foundation ofinternational human rights law as it inspired thenumerous human rights conventions whichfollowed including the ICCPR and ICESCR.3. The Preamble to the UDHR states as follows:“Whereas recognition of the inherent dignity and of theequal and inalienable rights of all members of thehuman family is the foundation of freedom, justice andpeace in the world,Whereas disregard and contempt for human rights haveresulted in barbarous acts which have outraged theconscience of mankind, and the advent of a world inwhich human beings shall enjoy freedom of speech andbelief and freedom from fear and want has been57


proclaimed as the highest aspiration of the commonpeople,”4. Article 16 of the UDHR should also be mentioned:“Article 16(1) Men and women of <strong>full</strong> age, without anylimitation due to race, nationality or religion,have the right to marry and to found a family.They are entitled to equal rights as to marriage,during marriage and at its dissolution.(2) Marriage shall be entered into only with the freeand <strong>full</strong> consent of the intending spouses.(3) The family is the natural and fundamentalgroup unit of society and is entitled toprotection by society and the State.”The International Covenant on Civil and PoliticalRights, 19665. The UDHR was followed up by the ICCPR, thePreamble to which inter alia states:“Recognizing that, in accordance with the UniversalDeclaration of Human Rights, the ideal of free humanbeings enjoying civil and political freedom and freedomfrom fear and want can only be achieved if conditionsare created whereby everyone may enjoy his civil andpolitical rights, as well as his economic, social andcultural rights,Considering the obligation of States under the Charterof the United Nations to promote universal respect for,and observance of, human rights and freedoms,Realizing that the individual, having duties to otherindividuals and to the community to which he belongs,is under a responsibility to strive for the promotion andobservance of the rights recognized in the presentCovenant,”58


6. Article 3 of the ICCPR places an obligation on allcovenanting parties to:“…undertake to ensure the equal right of men andwomen to the enjoyment of all civil and political rightsset forth in the present Covenant.”7. Article 23 of the ICCPR upholds certain inherentrights of the family and of men and women tocommit to a union:“Article 231. The family is the natural and fundamental groupunit of society and is entitled to protection bysociety and the State.2. The right of men and women of marriageable age tomarry and to found a family shall be recognized.3. No marriage shall be entered into without the freeand <strong>full</strong> consent of the intending spouses.4. States Parties to the present Covenant shall takeappropriate steps to ensure equality of rights andresponsibilities of spouses as to marriage, duringmarriage and at its dissolution. In the case ofdissolution, provision shall be made for thenecessary protection of any children.”8. India acceded to the ICCPR on April 10, 1979.India has, however, not signed or ratified theoptional protocols to the ICCPR (including theSecond Optional Protocol, which abolishes deathpenalty).59


International Covenant on Economic, Social andCultural Rights, 19669. India is also a party to the ICESCR, which states inits Preamble:“Recognizing that, in accordance with the UniversalDeclaration of Human Rights, the ideal of free humanbeings enjoying freedom from fear and want can only beachieved if conditions are created whereby everyone mayenjoy his economic, social and cultural rights, as well ashis civil and political rights,”10. Article 7 of the ICESCR obligates state parties to:“recognize the right of everyone to the enjoyment of justand favourable conditions of work which ensure, inparticular:(a) Remuneration which provides all workers, as aminimum, with:(i) Fair wages and equal remuneration for work of equalvalue without distinction of any kind, in particularwomen being guaranteed conditions of work not inferiorto those enjoyed by men, with equal pay for equal work;(ii) A decent living for themselves and their families inaccordance with the provisions of the present Covenant;(b) Safe and healthy working conditions;(c) Equal opportunity for everyone to be promoted in hisemployment to an appropriate higher level, subject to noconsiderations other than those of seniority andcompetence;(d) Rest, leisure and reasonable limitation of workinghours and periodic holidays with pay, as well asremuneration for public holidays”11. India acceded to the ICESCR on April 10, 1979.India has not signed or ratified the optionalprotocol to the ICESCR.60


12. India is also party to the Beijing Principles of theIndependence of the Judiciary (drawn up andagreed to in 1995 by the Chief Justices of countriesin the Asia-Pacific region). These principlesrepresent the minimum standards to be necessarilyobserved in order to maintain the independentand effective functioning of the judiciary. Underthese principles the judiciary has a duty to ensurethat all persons are able to live securely under theRule of Law. This is particularly important towomen. The judiciary also has a duty to promotethe observance and the attainment of human rightsof women under the Beijing Principles. The saidprinciples set out the objectives of the judiciary asbelow:The objectives and functions of the Judiciary include thefollowing:(a) To ensure that all persons are able to live securelyunder the Rule of Law;(b) To promote, within the proper limits of the judicialfunction, the observance and the attainment of humanrights; and(c) To administer the law impartially among personsand between persons and the State."13. India is also a party to the Convention on thePolitical Rights of Women, 1954. The saidConvention enjoins state parties to inter alia ensurethe protection of the following political rights ofwomen:(a) Women shall be entitled to vote in all electionson equal terms with men, without anydiscrimination;61


(b) Women shall be eligible for election to allpublicly elected bodies, established by nationallaw, on equal terms with men, without anydiscrimination; and(c) Women shall be entitled to hold public officeand to exercise all public functions, establishedby national law, on equal terms with men,without any discrimination.14. India signed the Convention on the Political Rightsof Women on April 29, 1953 and ratified it onNovember 1, 1961.The Declaration on Elimination of Violence againstWomen 1993 and Convention on Elimination of all formsof Discrimination against Women15. The Committee is conscious of therecommendations in respect of India made by theUN Committee on the Elimination ofDiscrimination against Women (“CEDAWCommittee”) in February 2007. The CEDAWCommittee has recommended that the countryshould “widen the definition of rape in its Penal Codeto reflect the realities of sexual abuse experienced bywomen and to remove the exception of marital rape fromthe definition of rape…..”16. We wish to add that in the Declaration onElimination of Violence against Women 1993(“DEVW”), the following passage is pertinent:-“Violence against women is a manifestation ofhistorically negligent poor relations between men andwomen, which have led to domination over anddiscrimination against women by men and to theprevention of the <strong>full</strong> advancement of women and thatviolence against women is one of the crucial social62


mechanisms by which women are forced intosubordinate position compared with men…..”17. We, in fact, note that Article 14 of the DEVWprovided that:“….State should pursue by all appropriate means andwithout delay a policy of eliminating violence againstwomen and, to this end should:(d) develop penal, civil, labour andadministrative sanction and domestic legislationto punish and redress wrongs caused to women;women who are subjected to violence should beprovided with access to the mechanism of justiceand, as provided for by national legislation, tojust and effective remedies for the harm that theyhave suffered; State also informed women oftheir rights in seeking redress through suchmechanisms.”18. Further, the Convention on Elimination of allforms of Discrimination against Women(“CEDAW”) under Article 11(1) provides asfollows:-“States parties shall take all appropriate measures toeliminate discrimination against women in the field ofemployment in order to ensure on the basis of equalityof men and women, the same rights in particular (a) theright to work as an inalienable right of all humanbeings; (b) the right to protection of health and to safetyin working conditions, including the safeguarding ofthe function of reproduction.”19. Article 22 postulates that equality in employmentcan be seriously impaired when women aresubjected to gender specific violence such assexual harassment in the work place.63


20. Article 24 postulates that State parties willundertake to adopt all necessary measures at thenational level aimed at achieving the <strong>full</strong>realization of the rights recognized in the presentconvention. Article 24 also requires State partiesto include in their reports information aboutsexual harassment, and on measures to protectwomen from sexual harassment and other formsof violence of coercion in the workplace.21. We notice that CEDAW was ratified by India on25 th June 1993. The only reservation which hasbeen made by India is to Article 29, paragraph 1,relating to dispute resolution between States byarbitration. We also notice that Government ofIndia has made the commitment at the FourthWorld Conference in Beijing to formulate andoperationalize a national policy on women, whichwill continuously guide an informed action atevery level and at every sector.22. We are of the firm opinion that substantiveequality and women’s rights as human rights havebeen established both in domestic andinternational legal regimes. We are of the opinionthat, having regard to the exposition of the law inAshok Kumar Thakur v. Union of India 40 that theConstitution embraces the substantive equalityapproach as provided in Article 15(1) and Article15(3). We are also convinced that the concept offormative action under sub-article (3) of Article 15is not merely an enabling provision but, in thecon<strong>text</strong> of Article 14, may be a mandatoryobligation.40 (2008) 6 SCC 164


23. We are further of the opinion that merely facialgender neutral laws and policies cannot deny whathas perceptively called “…..differential access tojustice faced by women seeking to engage with the legalsystem…..” 4124. The concept of dignity under Article 21 is alsosignificant and it must be noticed that it isconjoined by the preceding expression ‘right tolife’. We are of the opinion that any form ofviolence or assault, sexual or otherwise, on womenis a violation of the fundamental right to live withdignity. We also are in agreement with the viewexpressed that substantive due process in Stateaction is mandatory to ensure the right to live withdignity. However, the issue before us is notsimply the redrafting of existing laws but also theneed to reassert and reaffirm that the State hasprimary obligations under the Constitution tosecure fundamental rights of its citizens. Thefundamental rights of women include safety andbodily integrity. The said rights, in turn, includesecure spaces where they can exercise autonomyand freewill.25. We must also note that the concepts of equality,the rule of law, justice, social, economic andpolitical, liberty of thought and expression are allultimately engendered to the exercise of individualautonomy and fulfilment of the optimumpotential. We are further of the opinion that ifconstitutional obligations towards women are notfulfilled there would be a declaration against theState that right to equality and dignity have beendenied. We must note that in the con<strong>text</strong> of41 See Handbook on Law of Domestic Violence, Lawyer’s Collective.Indira Jaising ed., 2009 Lexis Nexis.65


women, and in the con<strong>text</strong> of persons withdisabilities, the role of the State as a guarantor offundamental rights in respect of the latter, the roleof the State as parens patriae is fundamental to theConstitution. We also wish to state that merelybecause there are private actors or non-state actors,as perceptively described, the duty of the Statedoes not diminish nor do the obligations of theState attenuate. On the contrary, we are of theopinion that they are deeply enhanced.26. We notice that CEDAW, for the first time in thesphere of international law, accorded primacy andsupremacy to women’s human rights. Thedefinition of “discrimination against women”under Article 1 of CEDAW was clarified byRecommendation 19 to include gender basedviolence:-“The definition of discrimination includes gender basedviolence, i.e., violence that is directed against womanbecause she is a woman or that affects womandisproportionately. It includes acts that inflict physical,mental or sexual harm or suffering, threats of such acts,coercion and other deprivations of liberty. Gender basedviolence may breach specific provisions of theConvention regardless of whether those provisionsexpressly mention violence...”27. Thus, it is clear that the expression ‘ensuresafeguards’ clearly means that such safeguards beeffective safeguards. We also need to add that theconcept of safeguards is to create a climate ofsecurity. This, of course, is a twin objective – one todeal with immediate redressal of an individualgrievance and the other to create an atmosphereand climate of security which is synonymous withthe exercise of freedom. We also must bear inmind that this injunction for creating safeguards to66


prevent discrimination against women is not onlyagainst public authorities but also extends to theprivate sphere as signified by “…..any person,organization or enterprise…”28. We must add that there is a special definition ofviolence against women. We need to note that thisdefinition is an extraordinarily wide butperceptive definition. It seeks to capture both theact of violence as well as the consequence ofviolence upon the individual. It also clarifies thatthe said Act is a direct deprivation of libertywhether occurring in public or in private life. Atthis juncture, we would like to say that Article 1 ofthe DEVW clearly defined violence against womenas any act of gender based violence that results in,or is likely to result in, physical, sexual orpsychological harm or suffering to womenincluding threats of such acts, coercion or arbitrarydeprivation of liberty whether occurring in publicor in private life.29. We also must note that further elaboration ofviolence against women has been described as“…..physical, sexual and psychological violenceoccurring in the family, including battering, sexualabuse of female children in the household, dowry relatedviolence, marital rape, female genital mutilation andother traditional practices harmful to women, nonspousalviolence and violence related toexploitation….” 42 .30. We would like to state that a detailed study wasconducted by the United Nations called the “In-42 DEVW, Article 1.67


depth Study on all forms of Violence against Women” 43 .This study clearly finds that non-implementationor ineffective implementation of existing domesticlaws in most countries was the single mostimportant reason for continued immunity toperpetrators of violence against womenparticularly in intimate relationships.31. We are therefore of the opinion that failure toframe a domestic law, which is requisite fordealing with violence against women, willconstitute a breach of the internationalConvention. Secondly, the law must beimplemented in a manner that satisfies the criteriaof impartial administration of justice, which is thefundamental cornerstone of the rule of law. Wealso need to add that while physical violence is anoffence, it also constitutes deprivation of humanrights and liberty, and is a form of sexdiscrimination. Thus, violence against women hasa dual characteristic. It is an offence under theprinciples of penology but, more importantly, it isa direct constitutional violation. The number ofconstitutional violations in India assume greatimportance as they have a bearing upon the truemeaning of democracy, the true meaning ofrepublic, and the true meaning of social justice.We therefore wish to caution the State and suggestto the Legislature that it must keep aside all otherbusiness and first correct this aberration of theConstitution which has been permitted in theIndian society for so many decades.43 In-depth study on all forms of violence against women –Report of theSecretary General, July 2006, UN General Assembly DocumentA/61/122/Add.1www.un.org/womenwatch/daw/vaw/SGstudyvaw.htm68


32. In respect of our views above, we take note of theDowry Prohibition Act, 1961, as well as theProtection of Women from Domestic Violence Act,2005, both of which were enacted to prevent andremedy the occurrence of dowry and domesticviolence in Indian society. The National CrimeRecords Bureau statistics, however, establish thatoffences of cruelty and violence by the husbandand his family against the wife (for dowry orotherwise) constituted over 3% of the total numberof crimes against women in 2006-2007. Theconviction rate was only approximately 21%. Onewonders why Parliament had to enact speciallegislation in respect of dowry and domesticviolence if the provisions of the IPC were beingeffectively enforced.69


CHAPTER THREERAPE AND SEXUAL ASSAULT1. The statutory definition of the offence of “rape” isfound under section 375. It reads thus:“375. Rape.—A man is said to commit “rape” who,except in the case hereinafter excepted, has sexualintercourse with a woman under circumstances fallingunder any of the six following descriptions:—First.—Against her will.Secondly.—Without her consent.Thirdly.—With her consent, when her consent has beenobtained by putting her or any person in whom she isinterested in fear of death or of hurt.Fourthly.—With her consent, when the man knows thathe is not her husband, and that her consent is givenbecause she believes that he is another man to whom sheis or believes herself to be law<strong>full</strong>y married.Fifthly.—With her consent, when, at the time of givingsuch consent, by reason of unsoundness of mind orintoxication or the administration by him personally orthrough another of any stupefying or unwholesomesubstance, she is unable to understand the nature andconsequences of that to which she gives consent.Sixthly.—With or without her consent, when she isunder sixteen years of age.Explanation.—Penetration is sufficient to constitute thesexual intercourse necessary to the offence of rape.Exception.—Sexual intercourse by a man with his ownwife, the wife not being under fifteen years of age, is notrape.”70


2. Simply put, the offence of rape is “ravishment of awoman” without her consent or against her will byforce, fear or fraud and also includes the “carnalknowledge” of a woman. 443. “Carnal Knowledge” means penetration to anyslightest degree. This ingredient of rape has beenstatutory incorporated under the Explanation toSection 375.Ingredients of the offenceConsent4. In order to bring home the charge of rape against aman, it is necessary to establish that the “sexualintercourse” complained of was either against thewill or without her consent. Where the consent isobtained under the circumstances enumeratedunder clauses firstly to sixthly, the same would alsoamount to rape.5. In Dileep Singh v. State of Bihar 45 the Supreme Courtobserved that “though will and consent often interlaceand an act done against the will of the person can besaid to be an act done without consent, the Indian PenalCode categorizes these two expressions under separateheads in order to as comprehensive as possible.”6. The difference between the two expressions wasbrought out by the Supreme Court in State of UP v.Chottey Lal 46 in the following words:“15. Be that as it may, in our view, clause Sixthly ofSection 375 IPC is not attracted since the prosecutrixhas been found to be above 16 years (although below 1844 Bhupendra Sharma v. State of HP (2003)8 SCC 551 [para 10-11]45 (2005)1SCC 88 (para 14)46 (2011)2 SCC 55071


years). In the facts of the case what is crucial to beconsidered is whether clause Firstly or clause Secondlyof Section 375 IPC is attracted. The expressions“against her will” and “without her consent” mayoverlap sometimes but surely the two expressions inclause Firstly and clause Secondly have differentconnotation and dimension. The expression “againsther will” would ordinarily mean that the intercoursewas done by a man with a woman despite her resistanceand opposition. On the other hand, the expression“without her consent” would comprehend an act ofreason accompanied by deliberation. (Emphasissupplied)”7. It must be noted that the Courts have followed thetests laid down under Section 90 of the IPC forestablishing “consent”. Section 90 reads thus:“90. Consent known to be given under fear ormisconception.—A consent is not such a consent as isintended by any section of this Code, if the consent isgiven by a person under fear of injury, or under amisconception of fact, and if the person doing the actknows, or has reason to believe, that the consent wasgiven in consequence of such fear or misconception; or[Consent of insane person] if the consent is given bya person who, from unsoundness of mind, orintoxication, is unable to understand the nature andconsequence of that to which he gives his consent; or[Consent of child] unless the contrary appears fromthe con<strong>text</strong>, if the consent is given by a person who isunder twelve years of age.”8. In this con<strong>text</strong> the decision of Supreme Court inState of H.P v. Mango Ram 47 is noteworthy. TheCourt observed as follows:47 (2000) 7 SCC 22472


“13………The evidence as a whole indicates that therewas resistance by the prosecutrix and there was novoluntary participation by her for the sexual act.Submission of the body under the fear of terror cannotbe construed as a consented sexual act. Consent for thepurpose of Section 375 requires voluntary participationnot only after the exercise of intelligence based on theknowledge of the significance and moral quality of theact but after having <strong>full</strong>y exercised the choice betweenresistance and assent. Whether there was consent ornot, is to be ascertained only on a careful study of allrelevant circumstances. From the evidence on record, itcannot be said that the prosecutrix had given consentand thereafter she turned round and acted against theinterest of the accused. There is clear credible evidencethat she resisted the onslaught and made all possibleefforts to prevent the accused from committing rape onher. Therefore, the finding entered by the learnedSessions Judge that there was consent on the part of theprosecutrix is without any basis.”9. The United Nations Handbook points out that thedefinitions of rape and sexual assault have evolvedover time, from requiring use of force or violence,to requiring a lack of positive consent.10. The United Nations recommends that thedefinition of rape should require the existence of‘unequivocal and voluntary agreement’ as well asproof by the accused of steps taken to ascertainwhether the complainant was consenting. 48 Thishas the advantage of shifting the burden to thedefence to prove that such steps were taken. Thisapproach was endorsed by the CEDAW committeein its views in Vertido v The Philippines, 49 whichmade it clear that such a definition would assist inminimizing secondary victimization of thecomplainant/survivor in proceedings.48 Ibid.49 Above n 96.73


11. Similarly, under Canadian law, the accused cannotargue that there was belief in consent if theaccused did not take reasonable steps to ascertainthat there was consent to the specific sexualactivity. It is not enough that the accusedsubjectively believed there was consent. He mustalso demonstrate that he took reasonable steps toascertain it. 5012. Under the law of England and Wales, a personconsents if he or she ‘agrees by choice and has thefreedom and capacity to make that choice.’ 51 Thereare certain statutory presumptions regardingconsent. For example, lack of consent is assumed ifviolence was used or threatened or the accusedhad induced a fear of violence; the complainantwas unlaw<strong>full</strong>y detained, asleep or unconscious;or the accused had administered a substancecapable of causing the complainant to be stupefiedor overpowered. Lack of consent is conclusivelyproved if the defendant intentionally deceived thecomplainant as to the nature or purpose of therelevant act, or induced consent by impersonatinga person known to the complainant. 52 Theunderlying principle is that consent to sexualactivity ‘requires a conscious, operating mind,capable of granting, revoking or withholdingconsent to each and every sexual act.’ 53 There aresome similar presumptions in the Indian statute.We have defined consent keeping the above inmind.50 Canadian Criminal Code s. 273.2.51 Sexual Offences Act 2003 (UK) s. 74.52 Sexual Offences Act 2003, ss 75 and 76.53 R v J.A. (n 91).74


Penetration13. The section further clarifies that mere penetrationis sufficient to constitute the offence of rape.14. In Koppula Venkatrao v. State of AP 54 the SupremeCourt held as follows:“12. The sine qua non of the offence of rape ispenetration, and not ejaculation. Ejaculation withoutpenetration constitutes an attempt to commit rape andnot actual rape. Definition of “rape” as contained inSection 375 IPC refers to “sexual intercourse” and theExplanation appended to the section provides thatpenetration is sufficient to constitute the sexualintercourse necessary to the offence of rape. Intercoursemeans sexual connection.”15. Pursuant to the aforesaid observation the offenceof ‘attempt to commit rape’ also need elaboration.Section 376 read with Section 511 of IPC penalizesthe offence of ‘attempt to rape’.Attempt to commit rape16. In Koppula Venkatrao (supra) the Supreme Court,with respect to the applicability of section 511 tothe offence of rape, held the following:“8. The plea relating to applicability of Section 376 readwith Section 511 IPC needs careful consideration. Inevery crime, there is first, intention to commit,secondly, preparation to commit it, and thirdly, attemptto commit it. If the third stage, that is, attempt issuccessful, then the crime is complete. If the attemptfails, the crime is not complete, but law punishes theperson attempting the act. Section 511 is a general54 (2004)3 SCC 60275


provision dealing with attempts to commit offences notmade punishable by other specific sections. It makespunishable all attempts to commit offences punishablewith imprisonment and not only those punishable withdeath. An attempt is made punishable, because everyattempt, although it falls short of success, must createalarm, which by itself is an injury, and the moral guiltof the offender is the same as if he had succeeded. Moralguilt must be united to injury in order to justifypunishment. As the injury is not as great as if the acthad been committed, only half the punishment isawarded.9. A culprit first intends to commit the offence, thenmakes preparation for committing it and thereafterattempts to commit the offence. If the attempt succeeds,he has committed the offence; if it fails due to reasonsbeyond his control, he is said to have attempted tocommit the offence. Attempt to commit an offence canbe said to begin when the preparations are complete andthe culprit commences to do something with theintention of committing the offence and which is a steptowards the commission of the offence. The moment hecommences to do an act with the necessary intention, hecommences his attempt to commit the offence. The word“attempt” is not itself defined, and must, therefore, betaken in its ordinary meaning. This is exactly what theprovisions of Section 511 require. An attempt tocommit a crime is to be distinguished from an intentionto commit it; and from preparation made for itscommission. Mere intention to commit an offence, notfollowed by any act, cannot constitute an offence. Thewill is not to be taken for the deed unless there be someexternal act which shows that progress has been madein the direction of it, or towards maturing and effectingit. Intention is the direction of conduct towards theobject chosen upon considering the motives whichsuggest the choice. Preparation consists in devising orarranging the means or measures necessary for thecommission of the offence. It differs widely from attemptwhich is the direct movement towards the commissionafter preparations are made. Preparation to commit anoffence is punishable only when the preparation is tocommit offences under Section 122 (waging war against76


the Government of India) and Section 399 (preparationto commit dacoity). The dividing line between a merepreparation and an attempt is sometimes thin and hasto be decided on the facts of each case. There is a greaterdegree of determination in attempt as compared withpreparation.10. An attempt to commit an offence is an act, or aseries of acts, which leads inevitably to the commissionof the offence, unless something, which the doer of theact neither foresaw nor intended, happens to preventthis. An attempt may be described to be an act done inpart-execution of a criminal design, amounting to morethan mere preparation, but falling short of actualconsummation, and, possessing, except for failure toconsummate, all the elements of the substantive crime.In other words, an attempt consists in it the intent tocommit a crime, falling short of, its actual commissionor consummation/completion. It may consequently bedefined as that which if not prevented would haveresulted in the <strong>full</strong> consummation of the act attempted.The illustrations given in Section 511 clearly show thelegislative intention to make a difference between thecases of a mere preparation and an attempt.11. In order to find an accused guilty of an attempt withintent to commit a rape, court has to be satisfied that theaccused, when he laid hold of the prosecutrix, not onlydesired to gratify his passions upon her person, but thathe intended to do so at all events, and notwithstandingany resistance on her part. Indecent assaults are oftenmagnified into attempts at rape. In order to come to aconclusion that the conduct of the accused wasindicative of a determination to gratify his passion at allevents, and in spite of all resistance, materials mustexist. Surrounding circumstances many times throwbeacon light on that aspect.”77


Evidence and proof17. It is well settled that the evidence of the victim ofrape is on the same footing as the evidence of aninjured complainant or witness. Her testimonyalone is sufficient for conviction. In prosecutions ofrape, the law does not require corroboration. It isonly by way of abundant caution that the court maylook for some corroboration so as to satisfy itsconscience and rule out any false accusation. 5518. However, the above principle of presumptionwhile prosecuting rape cases emerged in theaforesaid background.19. In Tukaram v. State of Maharashtra 56 the SupremeCourt had disbelieved the statement of the victimof rape, on the ground that the circumstantialevidence did not lead to the inference of guilt and“in fact derogates in no uncertain measure from theinference drawn by it.” 5720. The facts were these - Mathura was a young girllabourer of 14-16. Her bother and she werebrought to their local police station to record theirstatements in respect of a complaint lodged by herbrother. While at the police station, Mathura wasraped by Head Constable Tukaram and ConstableGanpat, a fact which she reported to a crowd thathad gathered outside the police station. Mathurawas then examined by a doctor, who advised herto file a police complaint, which complaint wasregistered by the police after some hesitation andprotests from the crowd.55 Infra 1 (para 22)56 (1979)2 SCC 14357 Ibid (para 17)78


21. Mathura’s medical examination revealed noinjuries and evidence of prior intercourse.Presence of semen was detected on her clothes andthe pyjama of Ganpat. The Trial Court, however,refused to convict the accused. The High Courtreversed the finding and sentenced Tukaram torigorous imprisonment for one year and Ganpatfor five years. The High Court held that both these‘gentlemen’ were perfect strangers to Mathura andthat it was unlikely that ‘she would make anyovertures and invite the accused to satisfy her sexualdesires’ The High Court came to the conclusionthat Mathura did not consent to intercourse. TheSupreme Court reversed the High Court verdictand held that as there were no injuries shown bythe medical report, the story of ‘stiff resistancehaving been put up by the girl is all false’ and thealleged intercourse was a peaceful affair. TheCourt further held that crimes and alarms were aconcoction on her part. The Court further heldthat under Section 375 only the “fear of death orhurt” could vitiate consent for sexual intercourse.22. Following this verdict a nation-wide protest waslaunched for inclusion of custodial rape within thelegislative provision. The Supreme Court’sjudgment was criticised by four eminent lawteachers – Upendra Baxi, Vasudha Dhagamdar,Raghunath Kelkar, and Lotika Sarkar – who posedthe following questions in an open letter to theSupreme Court -a) Was this not a decision which violated human rightsof women under the law and the Constitution?b) The judgment provided no cogent analysis as towhy the factors which weighed with the High Courtwere insufficient to justify conviction for rape?79


c) The fact remains that Mathura was asked to remainin the police station even after her statement wasrecorded and her friends and relations were asked toleave. Why?d) Why were the lights put off and the doors shut?23. The decision of Tukaram v. State of Maharashtra 58 , isa relevant case to show how public opinion andvarious organisations have espoused the rights ofwomen.24. Accordingly the Criminal Law Amendment Act,1983 was passed which included situation of“aggravated rape” under section 376A to E.Further, the India Evidence Act, 1872 was alsoamended by the Criminal Law Amendment Act,1983 and section 114A was incorporated whichimposed the burden of proving “consent” uponthe accused in the aforesaid cases of aggravatedrape. This was an exception of the general rule ofpresumption of innocence of the accused.25. However, even before the above amendmentscame in to force in the case of Bharvada GohinbhaiHirjibhai v. State of Gujarat 59 , the Supreme Courtreversed the trend and came to a conclusion that itwas open to the Court to rely upon the evidence ofa complainant even without seeking corroborationif corroboration by medical evidence is available.We also notice that the said judgment seems tohave stereotyped Indian and Western women in asomewhat unorthodox way:“9. In the Indian setting, refusal to act on the testimonyof a victim of sexual assault in the absence of58 (1979) 2 SCC 14359 (1983) 3 SCC 21780


corroboration as a rule, is adding insult to injury. Whyshould the evidence of the girl or the woman whocomplains of rape or sexual molestation be viewed withthe aid of spectacles fitted with lenses tinged with doubt,disbelief or suspicion? To do so is to justify the charge ofmale chauvinism in a male dominated society. We mustanalyze the argument in support of the need forcorroboration and subject it to relentless andremorseless cross-examination. And we must do so witha logical, and not an opiniated, eye in the light ofprobabilities with our feet firmly planted on the soil ofIndia and with our eyes focussed on the Indian horizon.We must not be swept off the feet by the approach madein the Western World which has its own social milieu,its own social mores, its own permissive values, and itsown code of life. Corroboration may be consideredessential to establish a sexual offence in the backdrop ofthe social ecology of the Western World. It is whollyunnecessary to import the said concept on a turn-keybasis and to transplate it on the Indian soil regardless ofthe altogether different atmosphere, attitudes, mores,responses of the Indian Society, and its profile. Theidentities of the two worlds are different. The solution ofproblems cannot therefore be identical. It is conceivablein the Western Society that a female may level falseaccusation as regards sexual molestation against a malefor several reasons such as:(1) The female may be a 'gold digger' and may wellhave an economic motive to extract money byholding out the gun of prosecution or publicexposure.(2) She may be suffering from psychologicalneurosis and may seek an escape from theneurotic prison by phantasizing or imagining asituation where she is desired, wanted, andchased by males.(3) She may want to wreak vengeance on the malefor real or imaginary wrongs. She may have agrudge against a particular male, or males ingeneral, and may have the design to square theaccount.(4) She may have been induced to do so inconsideration of economic rewards, by a person81


interested in placing the accused in acompromising or embarrassing position, onaccount of personal or political vendetta.(5) She may do so to gain notoriety or publicity orto appease her own ego or to satisfy her feeling ofself-importance in the con<strong>text</strong> of her inferioritycomplex.(6) She may do so on account of jealousy.(7) She may do so to win sympathy of others.(8) She may do so upon being repulsed.10. By and large these factors are not relevant to India,and the Indian conditions. Without the fear of makingtoo wide a statement, or of overstating the case, it can besaid that rarely will a girl or a woman in India makefalse allegations of sexual assualt on account of anysuch factor as has been just enlisted. The statement isgenerally true in the con<strong>text</strong> of the urban as also ruralSociety. It is also by and large true in the con<strong>text</strong> of thesophisticated, not so sophisticated, and unsophisticatedsociety. Only very rarely can one conceivably comeacross an exception or two and that too possibly fromamongst the urban elites. Because :(1) A girl or awoman in the tradition bound non-permissive Societyof India would be extremely reluctant even to admitthat any incident which is likely to reflect on herchastity had ever occurred. (2) She would be consciousof the danger of being ostracised by the Society or beinglooked down by the Society including by her own familymembers, relatives, friends and neighbours. (3) Shewould have to brave the whole world. (4) She would facethe risk of losing the love and respect of her ownhusband and near relatives, and of her matrimonialhome and happiness being shattered. (5) If she isunmarried, she would apprehend that it would bedifficult to secure an alliance. With a suitable matchfrom a respectable or an acceptable family. (6) It wouldalmost inevitably and almost invariably result inmental torture and suffering to herself. (7) The fear ofbeing taunted by others will always haunt her. (8) Shewould feel extremely embarrassed in relating theincident to others being over powered by a feeling ofshame on account of the upbringing in a traditionbound society where by and large sex is taboo. (9) The82


natural inclination would be to avoid giving publicityto the incident lest the family name and family honouris brought into controversy. (10) The parents of anunmarried girl as also the husband and members of thehusband's family of a married woman would also moreoften than not, want to avoid publicity on account of thefear of social stigma on the family name and familyhonour. (11) The fear of the victim herself beingconsidered to be promiscuous or in some wayresponsible for the incident regardless of her innocence.(12 The reluctance to face interrogation by theinvestigating agency, to face the court, to face the crossexamination by Counsel for the culprit, and the risk ofbeing disbelieved, acts as a deterrent”.26. As a listing of these characteristics, we regret thatthere is a profiling of an Indian girl which hastaken place which is an overgeneralisation and itwould neither be accurate nor scientific to test thetestimony of an Indian women with reference tothe criteria which are mentioned in paragraph 10above. But what is important is that the judgment,in a certain sense, discloses how a woman isviewed in India.27. We feel that it is the duty of the State as well ascivil society to deconstruct the paradigm of shamehonourin connection with a rape victim. Rape is aform of sexual assault just like any other crimeagainst the human body under the IPC. While weagree that it has its distinguishing characteristics,we do not think that there is any basis for societyor the State and much less the police/doctors totreat a rape victim as a victim of any other crime.In other words, we are of the opinion that whilethe said paragraph quoted illustrates themisplaced juxtaposition of shame and honour withthe crime of rape, the juxtaposition is clearly amatter of reality and at the same time we think83


that it is necessary for this to be deconstructed. Italso shows that women have been looped into avicious cycle of shame and honour as aconsequence of which they have been attendedwith an inherent disability to report crimes ofsexual offences against them.28. In other words, a woman seems to be risking herreputation and honour by reporting a crime ofsexual assault against herself. This view mustchange and while the above passage shows thefundamental misconceptions which are inbuilt insociety dealing with women, we are moreconcerned with the observations in so far as theydescribe the position of women in Indian society,not in as much as women in the con<strong>text</strong> of rape. Infact, we believe that equality before law, which isguaranteed under the Constitution, invariablymeans the eschewing of irrelevant considerationsand we do believe that many of theseconsiderations must be viewed as irrelevant in achanging society. However, we do notice that theabove characteristics are completely inconsistentwith fundamental rights which are guaranteed to awoman under the Constitution. We further believethat these cannot be the basis for the purpose ofdefining the rights of women under the law.29. At this stage, we notice in Rafique v. State of UP 60 ,where Krishna Iyer, J. made the followingobservations:-“There are several "sacred cows" of the criminal law inIndo-Anglian jurisprudence which are superstitioussurvivals and need to be re-examined. When rapists arerevelling in their promiscuous pursuits and half of60 1981 SCR (1) 40284


humankind-womankind-is protesting against its haplesslot, when no woman of honour will accuse another ofrape since she sacrifices thereby what is dearest to her,we cannot cling to a fossil formula and insist oncorroborative testimony, even if taken as a whole, thecase spoken to by the victim strikes a judicial mind asprobable. In this case, the testimony has commandedacceptance from two courts. When a woman is ravishedwhat is inflicted is not merely physical injury, but "thedeep sense of some deathless shame".A rape! a rape!...Yes, you have ravish'd justice;Forced her to do your pleasure.”“Hardly a sensitized judge who sees the conspectus ofcircumstances in its totality and rejects the testimony ofa rape victim unless there are very strongcircumstances militating against is veracity. None wesee in his case, and confirmation of the conviction by thecourts below must, therefore, be a matter of course.Judicial response to human rights cannot be blunted bylegal bigotry.”30. The effect of the Criminal Law Amendment of1983 was examined by the Supreme Court 61 and itwas observed as follows:“15. In spite of the decision of this Court that(depending upon the circumstances of the case)corroboration of the prosecutrix was not necessary, thecases continued to end in acquittal on account ofmishandling of the crime by the police and theinvocation of the theory of ‘consent’ by the courts whotried the offence. To overcome this difficulty, thelegislature intervened and introduced Section 114-A inthe Evidence Act by Act No. 43 of 1983 reading asunder:“114-A. Presumption as to absence of consent incertain prosecutions for rape.— In a prosecutionfor rape under clause (a) or clause (b) or clause61 Shri Bodhisattwa Gautam v. Shubra Chakraborty, 1996 SCC (1) 490.85


(c) or clause (d) or clause (e) or clause (g) of subsection(2) of Section 376 of the Indian PenalCode (45 of 1860), where sexual intercourse bythe accused is proved and the question iswhether it was without the consent of thewoman alleged to have been raped and she statesin her evidence before the Court that she did notconsent, the Court shall presume that she didnot consent.”16. This section enables a court to raise a presumptionthat the woman who was the victim of rape had notconsented and that the offence was committed againsther will. The situation, however, has hardly improved.Conviction rates for rape are still lower than any othermajor crime and the women continue to argue eventoday that in rape cases the victimised women, ratherthan the rapists, were put on trial. A large number ofwomen still fail to report rapes to the police because theyfear embarrassing and insensitive treatment by thedoctors, the law enforcement personnel and/or the crossexaminingdefence attorneys. The fear has to be allayedfrom the minds of women so that if and when this crimeis committed, the victim may promptly report thematter to the police and on a charge-sheet beingsubmitted, the trial may proceed speedily withoutcausing any embarrassment to the prosecutrix who maycome in the witness-box without fear psychosis.”31. Further in State of Maharashtra v. ChandraprakashKewalchand Jain the Court observed: 62“15. It is necessary at the outset to state what theapproach of the court should be while evaluating theprosecution evidence, particularly the evidence of theprosecutrix, in sex offences. Is it essential that theevidence of the prosecutrix should be corroborated inmaterial particulars before the court bases a convictionon her testimony? Does the rule of prudence demandthat in all cases save the rarest of rare the court shouldlook for corroboration before acting on the evidence of62 (1990) 1 SCC 55086


the prosecutrix? Let us see if the Evidence Act providesthe clue. Under the said statute ‘Evidence’ means andincludes all statements which the court permits orrequires to be made before it by witnesses, in relation tothe matters of fact under inquiry. Under Section 59 allfacts, except the contents of documents, may be provedby oral evidence. Section 118 then tells us who may giveoral evidence. According to that section all persons arecompetent to testify unless the court considers that theyare prevented from understanding the questions put tothem, or from giving rational answers to thosequestions, by tender years, extreme old age, disease,whether of body or mind, or any other cause of the samekind. Even in the case of an accomplice Section 133provides that he shall be a competent witness against anaccused person; and a conviction is not illegal merelybecause it proceeds upon the uncorroborated testimonyof an accomplice. However, illustration (b) to Section114, which lays down a rule of practice, says that thecourt ‘may’ presume that an accomplice is unworthy ofcredit, unless he is corroborated in material particulars.Thus under Section 133, which lays down a rule of law,an accomplice is a competent witness and a convictionbased solely on his uncorroborated evidence is notillegal although in view of Section 114, illustration (b),courts do not as a matter of practice do so and look forcorroboration in material particulars. This is theconjoint effect of Sections 133 and 114, illustration (b).16. A prosecutrix of a sex offence cannot be put on parwith an accomplice. She is in fact a victim of the crime.The Evidence Act nowhere says that her evidencecannot be accepted unless it is corroborated in materialparticulars. She is undoubtedly a competent witnessunder Section 118 and her evidence must receive thesame weight as is attached to an injured in cases ofphysical violence. The same degree of care and cautionmust attach in the evaluation of her evidence as in thecase of an injured complainant or witness and no more.What is necessary is that the court must be alive to andconscious of the fact that it is dealing with the evidenceof a person who is interested in the outcome of thecharge levelled by her. If the court keeps this in mindand feels satisfied that it can act on the evidence of the87


prosecutrix, there is no rule of law or practiceincorporated in the Evidence Act similar to illustration(b) to Section 114 which requires it to look forcorroboration. If for some reason the court is hesitant toplace implicit reliance on the testimony of theprosecutrix it may look for evidence which may lendassurance to her testimony short of corroborationrequired in the case of an accomplice. The nature ofevidence required to lend assurance to the testimony ofthe prosecutrix must necessarily depend on the factsand circumstances of each case. But if a prosecutrix isan adult and of <strong>full</strong> understanding the court is entitledto base a conviction on her evidence unless the same isshown to be infirm and not trustworthy. If the totalityof the circumstances appearing on the record of the casedisclose that the prosecutrix does not have a strongmotive to falsely involve the person charged, the courtshould ordinarily have no hesitation in accepting herevidence. We have, therefore, no doubt in our mindsthat ordinarily the evidence of a prosecutrix who doesnot lack understanding must be accepted. The degree ofproof required must not be higher than is expected of aninjured witness. For the above reasons we think thatexception has rightly been taken to the approach of theHigh Court as is reflected in the following passage:“It is only in the rarest of rare cases if the court findsthat the testimony of the prosecutrix is so trustworthy,truthful and reliable that other corroboration may notbe necessary.”With respect, the law is not correctly stated. If we maysay so, it is just the reverse. Ordinarily the evidence of aprosecutrix must carry the same weight as is attached toan injured person who is a victim of violence, unlessthere are special circumstances which call for greatercaution, in which case it would be safe to act on hertestimony if there is independent evidence lendingassurance to her accusation.17. We think it proper, having regard to the increase inthe number of sex violation cases in the recent past,particularly cases of molestation and rape in custody, to88


emove the notion, if it persists, that the testimony of awoman who is a victim of sexual violence mustordinarily be corroborated in material particulars exceptin the rarest of rare cases. To insist on corroborationexcept in the rarest of rare cases is to equate a womanwho is a victim of the lust of another with an accompliceto a crime and thereby insult womanhood. It would beadding insult to injury to tell a woman that her story ofwoe will not be believed unless it is corroborated inmaterial particulars as in the case of an accomplice to acrime. Ours is a conservative society where it concernssexual behaviour. Ours is not a permissive society as insome of the western and European countries. Ourstandard of decency and morality in public life is notthe same as in those countries. It is, however,unfortunate that respect for womanhood in our countryis on the decline and cases of molestation and rape aresteadily growing. An Indian woman is now required tosuffer indignities in different forms, from lewd remarksto eve-teasing, from molestation to rape. Decency andmorality in public life can be promoted and protectedonly if we deal strictly with those who violate thesocietal norms. The standard of proof to be expected bythe court in such cases must take into account the factthat such crimes are generally committed on the sly andvery rarely direct evidence of a person other than theprosecutrix is available. Courts must also realise thatordinarily a woman, more so a young girl, will not stakeher reputation by levelling a false charge concerning herchastity.18. But when such a crime is committed by a person inauthority, e.g. a police officer, should the court'sapproach be the same as in any other case involving aprivate citizen? By our criminal laws wide powers areconferred on police officers investigating cognizableoffences. The infrastructure of our criminalinvestigation system recognises and indeed protects theright of a woman to decent and dignified treatment atthe hands of the investigating agency. This is evidentfrom the proviso to sub-section (2) of Section 47 of theCode which obliges the police officer desiring to effectentry to give an opportunity to the woman inoccupation to withdraw from the building. So also sub-89


section (2) of Section 53 requires that whenever a femaleaccused is to be medically examined such examinationmust be under the supervision of a female medicalpractitioner. The proviso to Section 160 stipulates thatwhenever the presence of a woman is required as awitness the investigating officer will record herstatement at her own residence. These are just a fewprovisions which reflect the concern of the legislature toprevent harassment and exploitation of women andpreserve their dignity. Notwithstanding this concern, ifa police officer misuses his authority and power whiledealing with a young helpless girl aged about 19 or 20years, her conduct and behaviour must be judged in thebackdrop of the situation in which she was placed. Thepurpose and setting, the person and his position, themisuse or abuse of office and the despair of the victimwhich led to her surrender are all relevant factors whichmust be present in the mind of the court whileevaluating the conduct evidence of the prosecutrix. Aperson in authority, such as a police officer, carries withhim the awe of office which is bound to condition thebehaviour of his victim. The court must not be obliviousof the emotional turmoil and the psychological injurythat a prosecutrix suffers on being molested or raped.She suffers a tremendous sense of shame and the fear ofbeing shunned by society and her near relatives,including her husband. Instead of treating her withcompassion and understanding as one who is an injuredvictim of a crime, she is, more often then not, treated asa sinner and shunned. It must, therefore, be realisedthat a woman who is subjected to sex violence wouldalways be slow and hesitant about disclosing her plight.The court must, therefore, evaluate her evidence in theabove background.32. We are of the opinion that these factors are to bekept in mind as we go forward. We do think thatthe criterion that ‘a stigma attaches to the rape victimin Indian society.’ is a counter-productive basis ofappraisal. We do not think the victim suffers astigma. It is a stigma against society. The rights ofwomen in the con<strong>text</strong> of the Constitution are90


clearly intended to overcome all negativeperceptions generated against them. We do thinkthat the reiteration of the theory of stigma andshame has itself led to an ‘unintended’ diminutionof the status of the victim. In other words, thevictims can and ought to recover like any othervictims from an accident, but that is possible onlywhen there is a due discharge of the functions bythe State. Except for this caveat, we think that theformulation by Lodha, J. has substantially aligneditself with modern psychological and scientificunderstanding of psychosocial trauma.33. There is some degree of substance in the criticismwhich we have heard from women’s organisationsthat women do not need sympathy, empathy orcharity. They are equal per se. In other words, theyclaim what general human rights and theConstitution guarantees as their natural space tolive freely and effect decisions based on individualjudgment. We are unable to discountenance thisargument. On the contrary this is entirely correct.The fundamental attitude, based on paternalism,must be discarded. We also think that thejudgments of courts can sometimes bemisconstrued as suggestive of sympatheticconsideration in a criminal trial. We also think thatthe right to justice is a fundamental right under theConstitution and must not be earned out of asympathy having regard to the social malaisewhich exists in society. In other words, weadvocate an approach that if the juxtapositionbetween honour and shame on the one hand andthe crime of rape is deconstructed, people wouldbe able to step forward and be heard. Such crimesshould be registered immediately and investigatedimpartially and in respect of which we propose to91


make recommendations in the succeedingparagraphs. If an impartial investigation bringsoffenders to book, it is going to add to theconfidence of not only the individual victim butalso to women in society that such crimes can bebrought to book. No woman in India must feel asense of shame or stigma in the event of sexualassault. She is entitled to the redressal of thatinjury and that offence and she is thereforestatutorily and constitutionally capable of access tothe rule of law.34. We believe that there is no danger and no shameor loss of honour in a victim seeking redressal byfiling complaints and must in fact exercise,consistent with fundamental rights of women, theright to file complaints and bring offenders tobook. We also think that it is the duty of the Stateto encourage such a climate and also to makeavailable such resources that enable them to filesuch complaints.35. If the depiction of the Indian society is what isdepicted by Thakkar, J. in 1983, we must changethe situation. We are indeed impressed by thereasoning of Lodha, J. who, although relying uponthe decision of Thakkar, J. in Bharwada BhoginbaiHirjibai, has correctly elucidated the psychologicalfactors. We think that the scientific alignmentadopted by Lodha, J. is the correct way to fashionthe attitude of society towards a rape victim,which is to administer to her not only justice, butalso such psychological therapeutic intervention asis necessary for rediscovery of the self andincreased self-affirmation.92


36. Many people who have faced accidents haveovercome the disability caused by those accidentsand have proceeded with life in a positive way.We must be able to teach the same rehabilitativemethodology to rape victims. But in order to dothat, it is necessary that they must be encouragedto report such crimes of sexual violence. In fact, itis the process of reporting such crimes which willbe a forward looking step in being able to assertand demand justice. The demand of justice is not apersonal aspiration. The demand of justice is afundamental charter of freedom which isguaranteed under the Constitution to everyindividual. In the con<strong>text</strong> of a woman, it is all themore necessary that we snap the link betweenshame and honour, on the one hand, and the crimeitself. We urge every victim to have the requisitecourage to go forward and we exhort civil societyto support all such cases where people who arefiling complaints genuinely are given massivesupport to bring perpetrators to book.37. We do notice that this concept of shame hassomehow led the police to have an upper hand.The police have become arbiters of honour. Thepolice, without registering even a FIR, assume thatthey have the moral capacity to pronounce uponthe rights and wrongs of the rapist as well as therape victim. This is simply deplorable and it isinconceivable in a modern society, which isgoverned by republican values. We think that it isnecessary for the police officers to be completelysensitised against the honour-shame theory, and totreat every woman complainant as an individualin her own right capable of asserting hergrievance. In other words, we feel that an indirectvalidation of police inaction in rape crimes has93


taken place as a result of – a) amorphousattribution of women’s position in Indian society;b) the theory of shame-honour; and c) thepoliceman, ‘being the male’ in a ‘patriarchalsociety, ought to be ‘the moral judge’. It not onlyskews the justice delivery system at the stage oflodging the complaint, but it has a stronglydebilitating effect resulting in direct violation offundamental human freedoms and rights underthe Constitution and the various internationalinstruments.38. We wish to take this point further. When a womancomplains of rape, it is not the physical part of thewoman which is directly the focus of attention. Itis the offence and the offence against the bodilyintegrity of the woman as a person which is theoffence in question. We therefore think that weneed a woman to be viewed as a whole and not asa physical centre of sexual congress. At the sametime it must not be viewed that a woman, whilemaking a complaint, is in any way acting lesshonourably or in any way disturbing what isconsidered as the repository of honour of thefamily, community and others.39. An offence against a person is very different fromoffence against a community. We think that therehas been a completely erroneous connection whichis being made between a woman and acommunity. In other words, we feel very stronglythat an assault on a woman is an assault on theperson of the woman. In this regard, we wouldlike to quote Sohaila Abdulali, a rape victim, whorecounts her experience which took place 32 yearsago in Mumbai:94


“Rape is horrible. But it is not horrible for all thereasons that have been drilled into the heads of Indianwomen. It is horrible because you are violated, you arescared, someone else takes control of your body andhurts you in the most intimate way. It is not horriblebecause you lose your “virtue.” It is not horriblebecause your father and your brother are dishonored. Ireject the notion that my virtue is located in my vagina,just as I reject the notion that men’s brains are in theirgenitals.If we take honor out of the equation, rape will still behorrible, but it will be a personal, and not a societal,horror. We will be able to give women who have beenassaulted what they truly need: not a load of rubbishabout how they should feel guilty or ashamed, butempathy for going through a terrible trauma.” 6340. We are given to understand that the Governmentof India had brought out a Criminal LawAmendment Bill, 2012. We notice that a detailedcritique of the said Bill was submitted on behalf ofwomen’s groups and other stakeholders. We, too,have had the opportunity of examining the saidBill, which is presently pending before Parliament.41. While we feel that the Criminal Law AmendmentBill, 2012 has provisions that are somewhatprotective of the right of safety of women, we feelthat the said Bill is far from complete. It needs aseries of revisions, many of which we propose torecommend at a later stage in this Report.42. At this juncture, we would like to revisit therecommendations made by previous Law63 I Was Wounded; My Honor Wasn’t - Sohaila Abdulali, New York<strong>Times</strong>, January 7, 2013http://www.nytimes.com/2013/01/08/opinion/after-being-rapedi-was-wounded-my-honor-wasnt.html?_r=095


Commissions on various issues pertaining tocrimes against women.43. We begin with the 84 th Law Commission Report 64 .The said report was submitted on 25 th April 1980by the 42 nd Law Commission presided over by Mr.Justice P.V. Dixit, former Chief Justice of theMadhya Pradesh High Court. It was pointed out inthe said report that:“1.1 During recent years, the impact on the criminaljustice system on victims of rape and other sexualoffences has received considerable attention both in legalcircles and amongst organizations and individualsconnected with the welfare of women. In the field ofcriminology, an increasing interest has been shown inthe victim and his or her position with the criminaljustice system. In consequence, greater attention hasnow been paid to female victims of the sexual offence.Psychologists have, for some times past, been studyingthe effects of rape and other sexual offences upon womenor girls and their personality.”44. We agree with the following observations of the84 th Report of the Law Commission:-“1.2 It is often stated that a woman who is rapedundergoes two crisis, the rape and the subsequent trial.While the first seriously moves her dignity, curbs herindividual, disturbs her sense of security and may oftenrun her physically, the second is no less potent ofmixture, in as much as it not only forces her to relivethrough the traumatic experience, but also does so in thegrudge of publicity in a totally alien atmosphere, withthe whole apparatus and paraphernalia of the criminaljustice system focused upon her.”64 Law Commission of India, 84 th Report on Rape and Allied Offences –Some Questions of Substantive Law, Procedure and Evidence. 1980.http://lawcommissionofindia.nic.in/51-100/Report84.pdf96


45. We also agree with the following observation ofthe 42 nd Law Commission regarding the purposeof criminal law:“Thus, we acknowledge that criminal law is the chieflegal instrument to prevent anti-social acts of a seriouscharacter. The object is sought to be achieved, in thefirst instance, by the legislative command embodyingthat aspect of punishment which is called “generaldeterrence”. Once a crime – whether sexual or anyother crime – has been committed, this aspect is, at leastfor the time being, exhausted in regard to thatparticular criminal act. The fact that the particularcrime has been committed shows that the object ofdeterrence has failed to prevent the particular criminalact.”46. We must point out that the Law Commission ofIndia in its 42 nd Report 65 as well as the 69 thReport 66 has also made certain suggestions to theIPC and the Evidence Act. With reference to theIPC, it was suggested that where the circumstancesare such that a male may be able to take undueadvantage of the situation and seduce the womanto illicit intercourse, the Commissionrecommended the insertion in the Code of threespecific sections, intended respectively to dealwith illicit intercourse – a) by a person havingcustody of a woman, with that woman; b) bysuperintendent of an institution with an inmate ofan institution; and c) by a person in-charge of ahospital, with a mentally disordered patient.47. We are indeed shocked to note thatnotwithstanding the fact that these Law65 Law Commission of India, 42 nd Report on the Indian Penal Code. 1971.http://lawcommissionofindia.nic.in/1-50/Report42.pdf66 Law Commission of India, 69 th Report on the Indian Evidence Act1872.1977. http://lawcommissionofindia.nic.in/51-100/Report69.pdf97


Commission Reports were made decades ago, verylittle attention has been paid to theimplementation of these recommendations. Wealso note that the National Legal Vision Document(drafted by one of us) in fact wanted a separateoffice of the Attorney General and SolicitorGeneral to be established which would study theimplementation of recommendations of the LawCommission. This, unfortunately, has also notbeen carried out.48. The 42 nd Law Commission (in the 84 th Report)recommended that Sections 375 to 376E beredrafted.49. While the Law Commission in its 84 th Report maderecommendations in the con<strong>text</strong> of forcible andfraudulent sexual intercourse as well as illicitsexual intercourse by way of seduction, the 84 thReport proceeded further. It examined the issue of‘consent’. According to the Law Commission, thestatutory definition of rape in India emphasizedthe element of absence of consent. In fact, absenceof consent is an important aspect. Barring caseswhere consent is irrelevant and the age of the girlis the only crucial factor (because of the statutoryrequirement of minimum age), want of consentbecomes infructuous as a determining factor inmost prosecutions for rape. It is also the factor towhich the law has devoted its most detailedattention.50. We agree with the 84 th Report that:-“2.6 Consent is the anti-thesis of rape. Even if somemay find any discussion on consent, it is toocomplicated. The matter cannot consistently with theneeds of the subject be put in simple one phrase98


formulation. When circumstances in life present aninfinite variety, the law must be well equipped to dealwith them, nuances of consent are thereforeunavoidable.”51. It may also be noted that the 84 th Report of theLaw Commission therefore dealt with thesubstantial law relating to the law of consent in thecon<strong>text</strong> of rape. Consent must be real. Often, it isvitiated by circumstances which take away thefreedom of choice. Section 90 of the IPC runsthus:-“A consent is not such a consent as is intended by anysection of this Code, if the consent is given by a personunder fear of injury, or under a misconception of fact,and if the person doing the act knows or has reason tobelieve, that the consent was given in consequence ofsuch fear or conception; or if the consent is given by aperson who, from unsoundness of mind, or intoxication,is unable to understand the nature and consequence ofthat to which he gave his consent; or unless the contraryappears from the con<strong>text</strong> if consent is given by a personwho is under 12 years of age.”52. Thus the 84 th Law Commission Report observed asfollows:“2.9 The modifications recommended by us in the thirdclause vitiate consent not only when a woman is put infear of death or hurt, but also when she is put in fear ofany injury being caused to any person (includingherself) in body mind, reputation or property and alsowhen her consent is obtained by criminal intimidation,that is to say, by any words or acts intended orcalculated to put her in fear of any injury or danger toherself or to any person in whom she is interested orwhen she is threatened with any injury to herreputation or property or to the reputation of any one inwhom she is interested. Thus, if the consent is obtainedafter giving the woman a threat of spreading false andscandalous rumours about her character or destruction99


of her property or injury to her children or parents or byholding out other threats of injury to her person,reputation or property, that consent will also notbe consent under the third clause as recommended to beamended.”53. The 84 th Law Commission Report correctly saidthat violence was not mandatory.“2.11. Overt violence, if necessary.—While these arethe main amendments on the point of consent, we mayalso mention a few points that have been raised duringthe suggestions made to us, concerning the concept ofconsent. There is a suggestion that the definition of“rape” should make it clear that the crime can take placewithout overt violence. We have given careful thoughtto this aspect, but we do not think that the law needsany clarification in this regard. Overt violence, or, forthat matter, violence of any particular category, is not anecessary element of rape as defined in S. 375. Thecardinal fact is absence of consent on the part of thewoman.”54. There can be cases of consent even when there isno violence. Violence—or, for that matter, marksof resistance—are not conclusive of consent. In anycase, after a clarification is made in S. 375 on thelines recommended by us, this point would losemuch of its practical importance.55. The 84 th Report further recommended that theminimum age should be increased to 18 years andobserved as follows:“2.20. Increase in minimum age.—The question to beconsidered is whether the age should be increased to 18years. The minimum age of marriage now laid down bylaw (after 1978) is 18 years in the case of females andthe relevant clause of S. 375 should reflect this changedattitude. Since marriage with a girl below 18 years isprohibited (though it is not void as a matter of personal100


law), sexual intercourse with a girl below 18 yearsshould also be prohibited56. On the question of Section 354 relating tooutraging modesty of women and indecentassaults, the 84 th Report suggested that Section354A must be inserted regarding indecent assaulton a minor. The 84 th Report also opined that eveteasing was amply covered under Section 509 ofthe IPC, and observed as follows:“2.31. Recommendation as to Section 354-A, IndianPenal Code.—Accordingly, we would recommend that,while incorporating S. 354-A in the Indian Penal Code,after the words “obscene manner”, the words “with orwithout the consent of the minor” should also be added.XVI. Indecent gestures2.32. Section 509 IPC—We may mention here that actswhich do not amount to an “assault”—acts such asindecent gestures and acts that have come to be knownas “eve teasing”—are amply covered by S. 509 of theIndian Penal Code. The matter strictly does not fallwithin the purview of rape or assault, but we refer to itbecause one of the women's organisations with whomwe held discussions was anxious that the law shouldpenalise such behaviour in public places or on publictransport vehicles particularly.”57. Where there is physical contact or threat ofphysical contact, the offender can be chargedunder S. 354 of the same Code, punishing a personwho “assaults or uses criminal force to any woman,intending to outrage or knowing it to be likely that hewill thereby outrage her modesty”. The punishment isimprisonment of either description up to two yearsor fine or both. Both the offences are, as the lawnow stands, cognizable101


58. We notice that many other recommendations havebeen made in respect of female victims of sexualoffences. In particular, we have also noticed thesuggestion contained in paragraph 3.15 of the 84 thReport that a new sub-section be added in Section160 of the CrPC to require the statement of femalevictims of sexual assault under the age of 12 to berecorded by a woman police officer. It isunfortunate that it is only in 2012, in the Protectionof Children from Sexual Offences Act, 2012, thatan attempt has been made by Parliament toprovide special measures for the recording ofstatements of children who are victims of sexualoffences.59. We also notice in the 84 th Report that the medicalreport is a document of vital importance anddeserves attention.60. We notice that the medical examination report ofthe accused in a case of rape or attempt to commitrape is an important document, and we have dealtwith this aspect at some length later in this Report.We also think that any delay in reporting rape willresult delay in the commencement of theinvestigation. But at the same time, the police areduty bound to register such cases and must notinsult or harass or refuse to hear the victim or thecomplainant.61. We notice that the following recommendationswere made for the purpose of recording of reasonsby inserting Sections 53(1A), (1B), (1C) and (1D) inthe CrPC:-“4.7. Recommendation as to Section 53 CrPC.—It isvery important that reasons should be given for the102


opinion expressed in the report. Accordingly, werecommend the insertion in S. 53 of the Code ofCriminal Procedure, of the following sub-sections:Ss. 53(1-A), (1-B), (1-C) and (1-D) Code of CriminalProcedure, 1973 to be inserted.(1-A) When a person accused of rape or an attempt tocommit rape is arrested and an examination of hisperson is to be made under this section, he shall beforwarded without delay to the registered medicalpractitioner by whom he is to be examined.(1-B) The registered medical practitioner conductingsuch examination shall without delay examine suchperson and prepare a report specifically recording theresult of his examination and giving the followingparticulars:(i) the name and address of the accused and of theperson by whom he was brought,(ii) the age of the accused,(iii) marks of injury, if any, on the person of theaccused, and(iv) other material particulars in reasonable detail.(1-C) The report shall state precisely the reasons foreach conclusion arrived at.(1-D) The exact time of commencement and completionof the examination shall also be noted in the report, andthe registered medical practitioner shall, without delay,forward the report to the investigating officer, who shallforward it to the Magistrate referred to in S. 1973 aspart of the documents referred to in cl. (a) of sub-s. (5)of that section.”103


62. We are of the view that Section 417A suggested bythe 84 th Report requires to be enacted, as suggestedbelow:“When a woman is arrested and there are no suitablearrangements in the locality for keeping her in custodyin a place of detention exclusively meant for women sheshall be sent to an institution established andmaintained for the reception, care, protection andwelfare of women or children licensed under theWomen’s and Children’s Institutions (Licensing) Act,1956 or an institution recognized by the StateGovernment except in cases where any special lawrequires that she should be sent to a protective home orother place of detention authorized for the purposes ofsuch special law.”63. What is most surprising is that Parliament hasignored the recommendation of the 84 th Report,which calls for the punishment of a station-inchargewho fails to register information of acognisable offence given to him. In this respect the84 th Report recommended as follows:“X. Non-recording of information relating to cognizableoffences3.29. Section 167-A IPC—Refusal to register case ofrape.—We now come to another matter concerning thestage of investigation. During our oral discussions withthe representatives of women's organisations, it wasstated that in some cases the police fail to register a caseof rape reported to them even when the <strong>full</strong> facts arecommunicated to them. We have not been able to gatherstatistics of the number of such cases, as the collection ofthe relevant figures would take considerable time andthe present Report deals with a matter of urgency. Wehope that the percentage of such cases would not behigh. Nevertheless, we do take the view that inprinciple, the law should contain a specific provisiondealing with refusal (or failure without sufficient cause)to register such cases. The offence of rape is a cognizable104


offence and if the police fail to register it, it is a clearviolation of the provisions of the Code of CriminalProcedure, 1973 in this regard. Cognizable offencesreported to the police are “registered”—as the popularusage goes—under S. 154(1) of the Code of CriminalProcedure. If the officer in charge of a police stationrefuses to record the information reported relating to acognizable offence, there is a remedy already provided inthe Code of Criminal Procedure, the relevant provisionbeing in the following terms:“(3) Any person aggrieved by a refusal on thepart of an officer in charge of a police station torecord the information referred to in sub-s. (1)[of S. 154] may send the substance of suchinformation, in writing and by post, to theSuperintendent of Police concerned who, ifsatisfied that such information discloses thecommission of a cognizable offence, shall eitherinvestigate the case himself or direct aninvestigation to be made by any police officersubordinate to him, in the manner provided bythis Code and such officer shall have all thepowers of an officer in charge of the policestation in relation to that offence.”3.32. Insertion of Section 167-A, Indian Penal Coderecommended.—Having regard to what we have statedabove, we would recommend the insertion of a specificpenal provision, say, as S. 167-A, in the Indian PenalCode on the subject. In view of the general schemeadopted in that Code, the proposed provision would notbe confined to refusal to register the offence of rape andwould cover other cognizable offences as well. Thefollowing is a rough draft of the provision that werecommend:“167-A.—Whoever, being an officer-in-charge of apolice station and required by law to record anyinformation relating to the commission of a cognisableoffence reported to him, refuses or without reasonablecause fails to record such information shall be punishedwith imprisonment of either description for a term105


which may extend to one year, or with fine, or withboth.”64. Section 375 of the Indian Penal Code hastraditionally defined rape in narrow terms as‘sexual intercourse’ or ‘penetration’ in thecircumstances defined in the statute. The IndianCriminal Law Amendment Bill 2012 proposesreplacing the offence of ‘rape’ with that of ‘sexualassault’. However, while the new provisionswiden the definition of ‘penetration’ beyondvaginal penetration, the new offence remainslimited to that of ‘penetration’. Other types ofsexual assault are not subject to appropriate legalsanction.65. Two contrasting positions on this issue have beentaken in other jurisdictions examined here.a. A wide definition of sexual assault toreplace the offence of rape and indecentassault:i. The UN Handbook recommends that existingoffences of ‘rape’ and ‘indecent assault’ bereplaced with a broad offence of ‘sexualassault’ graded according to harm. 67However, its definition of ‘sexual assault’ issignificantly wider than that of the proposedIndian approach. The Handbook recommendsthat ‘sexual assault’ be defined as a violationof bodily integrity and sexual autonomy.Moreover, it recommends the removal of anyrequirement of proof of penetration.ii. This follows the approach in Canada, whichdoes not have a separate definition of rape.67 Handbook for Legislation on Violence against Women, 2009, UNhttp://www.un.org/womenwatch/daw/vaw/handbook/Handbook%20for%20legislation%20on%20violence%20against%20women.pdf106


Instead, s. 271 of the Criminal Code inCanada prohibits ‘sexual assault’. Section 265defines ‘sexual assault’ as non-consensualtouching in circumstances of a ‘sexualnature’. 68 The law does not distinguishbetween different types of touching fromgroping to penetration. All are sexual assaultsand criminal offences.iii. The advantage of this approach is that it doesnot require complex definitions of‘penetration’, which are inevitably unable tocapture the <strong>full</strong> range of violations to which awoman could be subject. Such definitionsalso considerably increase the evidentialburden of the prosecution to provepenetration.iv. The disadvantage of this approach is that theepithet ‘rape’ continues to bring with it ahigh degree of moral and social opprobrium,which is not conveyed by the words ‘sexualassault.’ By removing the epithet ‘rape’, thereis a risk of diluting the extent of moralcondemnation.b. Retaining an offence of ‘rape’ within awider offence of sexual assault.i. This approach retains the specific offence ofrape but includes it in a cluster of offencesunder the category of sexual assault. This isthe approach of the legislation in Englandand Wales, which specifies offences of ‘rape’,68 In certain circumstances- aggravated sexual assault or sexualassault with a weapon- there are increased penalties but this does notchange the underlying nature of the offence (ss. 272-273 of theCriminal Code).107


‘assault by penetration’, ‘sexual assault’ and‘causing a person to engage in sexual activitywithout consent’.1. ‘Rape’ occurs when a person (A)‘intentionally penetrates the vagina, anus ormouth of another person (B) with his penis’without consent. This carries a maximumsentence of life imprisonment. 692. ‘Assault by penetration’ occurs when (A),without consent, ‘intentionally penetratesthe vagina or anus of another person (B)with a part of his body or anything else,’and the penetration is sexual. This carries amaximum sentence of life imprisonment. 703. ‘Sexual assault’ occurs when (A)‘intentionally touches another person (B),’and the touching is sexual. This carries amaximum sentence of 10 years’imprisonment. 714. ‘Causing a person to engage in sexualactivity without consent’ occurs when (A)intentionally causes another person (B) toengage in a sexual activity withoutconsent. 72 Where the activity is equivalentto rape or assault by penetration, themaximum sentence is life imprisonment. Inother cases, the maximum sentence is 10years.69 Sexual Offences Act 2003 (UK), s. 1.70 Sexual Offences Act 2003 (UK), s. 2.71 Sexual Offences Act 2003(UK), s. 3.72 Sexual Offences Act 2003 (UK), s. 4.108


ii. A similar approach is taken by the SouthAfrican legislation, which distinguishesbetween rape and other forms of sexualassault. Under South African law, 731. ‘Rape’ is defined as all penetrative offences.‘Sexual penetration’ is defined in broad andgender-neutral terms which go well beyondthe prior common law restriction to penilevaginalpenetration. 742. ‘Sexual assault’ replaces the common lawoffence of ‘indecent assault’. Section 5 ofthe Act provides that sexual assault iscommitted where a person (‘A’) unlaw<strong>full</strong>yand intentionally sexually violates acomplainant (‘B’). ‘Sexual violation’ has awide definition.3. The advantage of this approach is that itretains the moral opprobrium attached tothe common understanding of rape.Notably the separation of rape from otherforms of sexual assault was supported bythe South African Law Reform Commissionin its 1999 Discussion Paper on the reformof South African sexual violence laws. 75The Commission argued that sexualviolence involving the penetration of thebody using sexual organs is qualitativelydifferent from non-penetrative forms ofsexual assault and therefore should be73 Sexual Offences Act 2007 (SA), s.3.74 See Masiya v Director of Public Prosecutions, Pretoria and Another[2007] ZACC 9; 2007 (5) SA 30 (CC) para 26.75 SALRC, ‘Project 105: Sexual Offences, Discussion Paper 85: SexualOffences – The Substantive Law’ (1999) accessed 12January 2013.109


treated as a more severe offence. 76 Tocombine penetrative acts with nonpenetrativeacts in a single offence, itargued, would reduce the gravity of theoffence. Furthermore, it argued that thedivision between penetrative and nonpenetrativesexual offences would providea better guide to judicial officers insentencing. 77iii. The disadvantage of this approach is thatthere will still be disputes as to when an act ispenetrative and when it is not, potentiallymaking it more difficult to prove a rape case.66. The meaning of ‘sexual’: In both cases it isnecessary to give some guidance as to when anassault is a sexual as against any ordinary assault.a. The Canadian Criminal Code is silent as tothe definition of ‘sexual’. The SupremeCourt of Canada in R v Chase gave a broaddefinition: ‘viewed in the light of all thecircumstances, is the sexual or carnalcon<strong>text</strong> of the assault visible to a reasonableobserver.’ 78 Courts will examine the part ofthe body touched, the nature of the contact,the situation in which it occurred, thewords and gestures accompanying the act,threats, intent of the accused and any otherrelevant circumstances. 79 However, it is nota pre-requisite that the assault be for sexualgratification. The motive of the accused is76 ibid p. 80.77 ibid.78 R v Chase, [1989] 2 SCR 293 para 11, citing R v Taylor (1985), 44 CR(3d) 263 at p 269.79 ibid.110


just ‘simply one of many factors to beconsidered.’ 80b. The UK legislation has a statutorydefinition, which like the Canadian, relieson the way in which a ‘reasonable observer’might view the activity. Under s. 78, anactivity is sexual if a reasonable personwould consider that it is ‘because of itsnature sexual’ or that ‘because of its natureit may be sexual and because of itscircumstances or the purpose of any personin relation to it (or both) it is sexual.’67. We are of the considered opinion that in the Indiancon<strong>text</strong> it is important to keep a separate offence of‘rape’. This is a widely understood term whichalso expresses society’s strong moralcondemnation. In the current con<strong>text</strong>, there is arisk that a move to a generic crime of ‘sexualassault’ might signal a dilution of the political andsocial commitment to respecting, protecting andpromoting women’s right to integrity, agency andautonomy. However, there should also be acriminal prohibition of other, non-penetrativeforms of sexual assault, which currently is notfound in the IPC, aside from the inappropriatereferences to ‘outraging the modesty’ of women inSections 354 and 509. We recommended theenactment of Section 354 in another form while wehave recommended the repeal of Section 509.68. We have kept in mind that the offence of rape beretained but redefined to include all forms of nonconsensualpenetration of a sexual nature.Penetration should itself be widely defined as in80 Ibid.111


the South African legislation to go beyond thevagina, mouth or anus.69. An offence of sexual assault should be introducedto include all forms of non-consensual nonpenetrativetouching of a sexual nature. It isrecommended here that the Canadian approach befollowed, according to which the ‘sexual nature’ ofan act is established if: ‘viewed in the light of allthe circumstances… the sexual or carnal con<strong>text</strong> ofthe assault [is] visible to a reasonable observer.’ 81Courts will examine the part of the body touched,the nature of the contact, the situation in which itoccurred, the words and gestures accompanyingthe act, threats, intent of the accused and any otherrelevant circumstances. It should not be a prerequisitethat the assault be for sexual gratification.The motive of the accused is ‘simply one of manyfactors to be considered.’ 8270. In this background it is necessary to examine theCriminal Law Amendment Bill, 2012. The offenceof rape falls under Chapter XVI dealing with“offences affecting human body”. Sections 375 to376D are put under the category of “sexualoffences”. While Courts have often used theexpression “sexual assault” in dealing with notonly rape cases but also cases of sexual abuse, theIPC did not define the said expression. Thedefinition of “assault” is found under section 351.71. By virtue of the Amendment, the legislature hassought to widen the scope of the offence undersection 375 to 376D by substituting the expressionrape with “sexual assault”. While we feel that the81 R v Chase (n 78).82 ibid.112


proposed Bill (as placed before Parliament)proposes some welcome changes to the law, thereis still much ground that needs to be covered.Accordingly, this Committee has recommendedamendments (appended to this Report) to theCriminal Law Amendment Bill 2012, which shouldbe considered and enacted by Parliament at theearliest possible, if not immediately. In any event,we feel that the same ought to be promulgated bythe Government as an ordinance.Marital Rape72. The exemption for marital rape stems from a longout-dated notion of marriage which regardedwives as no more than the property of theirhusbands. According to the common law ofcoverture, a wife was deemed to have consented atthe time of the marriage to have intercourse withher husband at his whim. Moreover, this consentcould not be revoked. As far back as 1736, SirMatthew Hale declared: ‘The husband cannot beguilty of rape committed by himself upon his lawfulwife, for by their mutual matrimonial consent andcontract the wife hath given herself up in this kind untoher husband which she cannot retract’. 8373. This immunity has now been withdrawn in mostmajor jurisdictions. In England and Wales, theHouse of Lords held in 1991 that the status ofmarried women had changed beyond allrecognition since Hale set out his proposition.Most importantly, Lord Keith, speaking for theCourt, declared, ‘marriage is in modern times83 Sir Matthew Hale. History of the Pleas of the Crown, 1 Hale PC (1736)629. See further S. Fredman Women and the Law (OUP, 1997) pp. 55-57.113


egarded as a partnership of equals, and no longer onein which the wife must be the subservient chattelof the husband.’ 8474. Our view is supported by the judgment of theEuropean Commission of Human Rights in C.R. vUK, which endorsed the conclusion that a rapistremains a rapist regardless of his relationship withthe victim. Importantly, it acknowledged that thischange in the common law was in accordance withthe fundamental objectives of the Convention onHuman Rights, the very essence of which isrespect for human rights, dignity and freedom. 85This was given statutory recognition in theCriminal Justice and Public Order Act 1994. 8675. We find that the same is true in Canada, SouthAfrica and Australia. In Canada, the provisions inthe Criminal Code, which denied criminal liabilityfor marital rape, were repealed in 1983. 87 It is nowa crime in Canada for a husband to rape his wife.South Africa criminalised marital rape in 1993,reversing the common law principle that ahusband could not be found guilty of raping hiswife. Section 5 of the Prevention of FamilyViolence Act 1993 provides: ‘Notwithstandinganything to the contrary contained in any law or inthe common law, a husband may be convicted ofthe rape of his wife.’ In Australia, the common law‘marital rape immunity’ was legislatively84 R. v R [1991] 4 All ER 481 at p.484.85 C.R. v UK Publ. ECHR, Ser.A, No. 335-C; see Palmer Feminist LegalStudies VoI.V no.1 [1997] pp. 1-786 S. 142 abolished the marital rape exception by excluding the word'unlawful' preceding 'sexual intercourse' in s. 1 of the Sexual OffencesAct 1956.87 R.S.C. 1985, c. C-46.114


abolished in all jurisdictions from 1976. 88 In 1991,the Australian High Court had no doubt that: ‘if itwas ever the common law that by marriage a wifegave irrevocable consent to sexual intercourse byher husband, it is no longer the common law.’ 89According to Justice Brennan (as he then was): ‘Thecommon law fiction has always been offensive to humandignity and incompatible with the legal status of aspouse.’ 9076. These jurisdictions have also gone further andrecognised that consent should not be implied bythe relationship between the accused and thecomplainant in any event. In the Canadian 2011Supreme Court decision in R v. J.A., Chief JusticeMcLachlin emphasised that the relationshipbetween the accused and the complainant ‘doesnot change the nature of the inquiry into whetherthe complaint consented’ to the sexual activity. 91The defendant cannot argue that the complainant’s88 Criminal Law Consolidation Act 1935, s. 73(3). See also s. 73(4)which provides that ‘No person shall, by reason only of the fact thathe is married to some other person, be presumed to have consentedto an indecent assault by that other person.’ The Crimes (SexualAssault) Amendment Act 1981 (NSW) inserted s. 61A(4) into theCrimes Act 1900 (NSW), which provided that the fact that a person ismarried to a person on whom an offence of sexual assault is allegedto have been committed is no bar to conviction for that offence. TheCrimes (Amendment) Ordinance (No 5) 1985 (ACT) inserted s 92Rinto the Crimes Act1900 (NSW), as it applied to the ACT, whichprovided that the fact that a person is married to a person uponwhom an offence of sexual intercourse without consent contrary to s.92D is alleged to have been committed shall be no bar to theconviction of the first-mentioned person for the offence. In Victoria,the Crimes (Amendment) Act 1985 (Vic) substituted for s 62(2) of theCrimes Act 1958 (Vic) a new sub-section providing that the existenceof a marriage does not constitute, or raise any presumption of,consent by a person to a sexual penetration or indecent assault byanother person.89 R v L [1991] HCA 48; (1991) 174 CLR 379 at p. 390 per Mason CJ,Deane and Toohey JJ.90 R v L [1991] HCA 48; (1991) 174 CLR 379 at p. 402.91 [2011] 2 SCR 40, para 64.115


consent was implied by the relationship betweenthe accused and the complainant. 92 In SouthAfrica, the 2007 Criminal Law (Sexual Offencesand Related Matters) Amendment Act (‘SexualOffences Act’) provides, at s. 56 (1), that a maritalor other relationship between the perpetrator orvictim is not a valid defence against the crimes ofrape or sexual violation.77. Even when marital rape is recognised as a crime,there is a risk that judges might regard maritalrape as less serious than other forms of rape,requiring more lenient sentences, as happened inSouth Africa. 93 In response, the South AfricanCriminal Law (Sentencing) Act of 2007 nowprovides that the relationship between the victimand the accused may not be regarded as a‘substantial and compelling circumstance’justifying a deviation from legislatively requiredminimum sentences for rape.78. It is also important that the legal prohibition onmarital rape is accompanied by changes in theattitudes of prosecutors, police officers and thosein society more generally. For example, in SouthAfrica, despite these legal developments, rates ofmarital rape remain shockingly high. A 2010 studysuggests that 18.8% of women are raped by theirpartners on one or more occasion. 94 Rates ofreporting and conviction also remain low,92 ibid para 47.93 See, for example, S v Moipolai [2004] ZANWHC 19 (Mogoeng J) andS v Modise [2007] ZANWHC 73.94 Gender Links and the South African Medical Research Council,‘The War at Home’ (2010) accessed 12January 2013.116


aggravated by the prevalent beliefs that maritalrape is acceptable or is less serious than othertypes of rape. 95 Changes in the law therefore needto be accompanied by widespread measuresraising awareness of women’s rights to autonomyand physical integrity, regardless of marriage orother intimate relationship. This was underlined inVertido v The Philippines, a recent Communicationunder the Optional Protocol of the Convention onthe Elimination of Discrimination Against Women(CEDAW), where the CEDAW Committeeemphasised the importance of appropriate trainingfor judges, lawyers, law enforcement officers andmedical personnel in understanding crimes of rapeand other sexual offences in a gender-sensitivemanner. 9679. We, therefore, recommend that:i. The exception for marital rape be removed.ii. The law ought to specify that:a. A marital or other relationship between theperpetrator or victim is not a valid defenceagainst the crimes of rape or sexualviolation;b. The relationship between the accused andthe complainant is not relevant to theinquiry into whether the complainantconsented to the sexual activity;c. The fact that the accused and victim aremarried or in another intimate relationshipmay not be regarded as a mitigating factorjustifying lower sentences for rape.95 See further Gemma Hancox, ‘Marital Rape in South Africa: Enough isEnough’ (2012) BUWA Journal on African Women’s Experiences 70accessed 12 January 2013.96 Vertido v The Philippines Communication No. 18/2008, Committeeon the Elimination of Discrimination against Women July 2010.117


80. We must, at this stage, rely upon Prof. SandraFredman of the University of Oxford, who hassubmitted to the Committee that that “training andawareness programmes should be provided to ensurethat all levels of the criminal justice system andordinary people are aware that marriage should not beregarded as extinguishing the legal or sexual autonomyof the wife”.118


CHAPTER FOURSEXUAL HARASSMENT AT THEWORKPLACE1. While much has been said and done in the pastseveral years about sexual harassment at theworkplace, it is evident that this evil is stillrampant in Indian society. Parliament is thereforeconsidering the Sexual Harassment of Women atWorkplace (Prevention, Prohibition and Redressal)Bill, 2012. We however notice that there was nodebate in the Lok Sabha on 3 rd September 2012when this Bill was introduced, and it is nowpending approval in the Rajya Sabha.2. We are also aware that in compliance with thejudgment in Vishakha v. State of Rajasthan 97 ,universities such as the Jawaharlal NehruUniversity and the University of Delhi haveformulated policies and constituted mechanisms toprevent and redress complaints of sexualharassment. We have taken note of the suggestionthat those universities whose anti-sexualharassment policy rules and committeemechanism meet the standards of Vishakha areproposed to be exempted from the purview of theSexual Harassment Bill, 2012, as these committeesare more democratic and are better related toensure prevention and prohibition of sexualharassment in educational institutions. We donotice that there is an anomaly in the Bill that itdoes not include within its ambit the students ofuniversities, colleges or schools. We will deal with97 AIR 1997 Supreme Court 3011119


other shortcomings of the proposed Billsubsequently.3. We must, however, first revisit the SupremeCourt’s judgment in Vishakha. Here, the petitionerin question sought to enforce the fundamentalrights of working women. The said petitionwanted an enforcement of Article 14, 19 and 21 ‘inview of the prevailing climate in which the violation ofthese rights is not uncommon’. Regrettably,notwithstanding the directions of the SupremeCourt in Vishakha, there is no empirical evidence tosuggest that conditions of working women havedistinctly improved in the recent past. We alsonotice that the petition was presented as a classaction by certain social activists and NGOs withthe aim of focusing attention towards the ‘societalaberration’ and also to a system finding suitablemethods for realisation of the true concept ofgender equality. There was also a prayer thatsexual harassment of women in all workplacesmust be injuncted through judicial orders until thevacuum in the existing legislation was replaced.4. The Court, in Vishakha, took notice of Articles 15and Article 42 of the Constitution. We would liketo emphasise Article 42:-“The State shall make provision for securing just andhumane conditions of work and for maternity relief.”5. Article 42, naturally, needs to be read along withthe other provisions which are contained in thefundamental rights and the Preamble and itemphasises, in the light of the preamble of values,that the State is meant to be caring and120


compassionate about those who areunderprivileged or those who are disadvantagedand those who may not even need specialprovisions but may insist upon the simplecompliance with constitutional guarantees.6. We do take note of a shift in the manner in whichthe women’s organisations have presentedthemselves as a ‘rising community’, a moreconscious and aware community, and not wantingthe ‘succour’ of any special provisions. Womenwant constitutional guarantees to be simply andplainly enforced and we think that it is the duty ofthe State to make special provisions to ensure thatthey are granted. We would like to reiterate thatthe Indian society is a sovereign, socialist, secularand a republic. The words ‘socialist’, ‘secular’ and‘republic’ bear great meaning. We are therefore ofthe opinion that the Indian State appears to havebeen out of tune with its own Constitution. It doesnot view that the State is meant to be a just and ahumane State where it cares for the rights ofcitizens. We also would like to say that in thediscourse of rights, we are aware that there mustbe economic policies which actually take forwardgrowth but not at the expense of the obligations ofthe State towards the poor.7. Article 51 of the Constitution provides that theState shall endeavour to foster respect forinternational law and treaty obligations in thedealings of organised people with one another.8. Article 253 of the Constitution which provides thatParliament can legislate for the whole or any partof the territory of India for implementing anytreaty, agreement or convention with any other121


country or countries or any decision made at anyinternational conference association or other body.9. We also would like to point out that Entry 14 ofList 1 provides that Parliament can enter intotreaties and agreements with foreign countries andimplement treaties, agreements and conventionswith foreign countries. We are also of the opinionthat such international conventions which areconsistent with fundamental rights and inharmony with its spirit, must actually be read intothe provisions of the fundamental rights becausethey actually impart clarity and perhaps morevigour to the content of the Article. We also noticethat under Article 51(c) of the Constitution andunder Article 253 read with Entry 54, the power ofParliament to enact laws to implementinternational conventions exists.10. We also notice therefore that we have a largenumber of provisions in the Constitution thatmandate the State and its various organs toguarantee gender equality. If laws have to giveeffect to the same, it is necessary that laws whichinvolve crime against women must also besufficiently structured to give effect to theseguarantees.11. In Vishakha, it was observed that:-“Gender equality includes protection from sexualharassment and right to work with dignity, which is auniversally recognised basic human right. The commonminimum requirement of this right has received globalacceptance. The international conventions and normsare, therefore, are of great significance in theformulation of the guidelines to achieve this purpose.”122


12. In a certain sense, the judiciary is also theenforcing authority for fundamental rights. InVishakha, the principles of independence of thejudiciary were also referred to and in particular theobjective and function of the judiciary was statedas follows:-a) To ensure that all persons are able to livesecurely under the rule of law;b) To promote within the proper limits of thejudicial function, the observance andattainment of human rights;c) To administer the law impartially amongpersons and between persons and the State.13. In this con<strong>text</strong>, we must add a note about thelower judiciary in the words of the Commissionerappointed by the Supreme Court in Sheela Barse(infra):“Usually the most important encounter which thecitizen has with the law is at the primary level. Thislevel, in fact, frightens many citizens, and has\ given afeeling of helplessness that the administration of lawdoes not necessarily lead to justice in the predominanceof Truth. Even the secondary and the Tertiary levelcourts i.e. the High Court and the Supreme Court tofunction, they too depend upon the impressions of theprimary level courts. Thus, if an error creeps in there,it becomes an error which may not perceptible ofcorrection by the secondary and the tertiary levels.”14. The Vishakha judgment made it clear that genderequality and the right to a secure workspace waspart of the fundamental rights guaranteed underthe Constitution, and that it was the duty of thejudiciary to ensure (as a part of the Constitutionalmachinery) that the State enforced these rights,especially in view of the nation’s obligation to123


comply with covenants of international treatiesand conventions.15. It is necessary that the judicial system must alsocooperate in enhancing the credibility and faith ofpeople in the rule of law. We are of the utmostconfidence that judiciary will lead by example andwill ensure that speedy justice to rape victims isgiven. We must point out that apart from thevarious recommendations which we have madefor the protection of the juveniles including thefemales and children who are rescued fromtrafficking, we are of the opinion that theinadequacy of judicial personnel, which is cited asa reason for non-expeditious disposal of cases canbe immediately and effectively addressed in thefollowing manner:(a) Retired Judges of the Supreme Court, High Courtand the District Courts could be appointed as adhocjudges to expeditiously dispose pending cases;(b) Parliament should consider equalisation of age ofretirement of the subordinate judiciary, the HighCourt and the Supreme Court so that manpowerwill be immediately available;(c) Infrastructure for ad hoc judges can be easilyidentified in respect of unutilised governmentbuildings and be made available.(d) Adjournment should not be allowed as a matter ofcourse in respect of cases specially fixed forhearing before the ad-hoc courts, or even beforeregular courts.124


(e) Public prosecutors should be appointed on thebasis of merit in accordance with therecommendations made by the Chief Justice of theHigh Court and not on the basis of any politicalconsiderations.(f) Cases of rape and sexual assault should be tried bywomen prosecutors, and, to the extent possible, bywomen judges. In any event, all judges of thesubordinate and higher judiciary should receivetraining in gender sensitivity.16. We would also like to refer to the decision inNilabati Behera v, State of Orissa & Others 98 . Thiswas an important pronouncement to ensure thatan enforceable right of compensation was also apart of the enforcement of guaranteed rights.Thus, what can happen in respect of an offencelike rape is that there could be not only an offenceas defined in the IPC but simultaneously therewould be a constitutional violation of Articles 14,14, 19 and 21 and which would also enable thevictim to claim right to compensation. We are ofthe view that a right to claim compensation will lieagainst the State in the event the State is unable tosecure safe conditions / safe spaces for women. Itis under these circumstances that the norms andguidelines were actually prescribed in Vishakha bythe Supreme Court.17. In 2000, in Municipal Corporation of Delhi v. FemaleWorkers’ Muster Roll 99 , we notice the constitutional98 (1993) 2 SCC 74699 AIR 2000 SC 1274125


position vis-à-vis the Indian reality noted by theSupreme Court:“Not long ago, the place of a woman in rural areas hasbeen traditionally her home; but the poor illiteratewomen forced by sheer poverty now come out to seekvarious jobs so as to overcome the economic hardship.They also lake up jobs which involve hard physicallabour. The female workers who are engaged by theCorporation on muster roll have to work at the site ofconstruction and repairing of roads. Their services havealso been utilised for digging of trenches. Since they areengaged on daily wages, they, in order to earn theirdaily bread, work even in advance stage of pregnancyand also soon after delivery, unmindful of -detriment totheir health or to the health of the new-born. It is in thisbackground that we have to look to our Constitutionwhich, in its Preamble, promises social and economicjustice. We may first look at the Fundamental Rightscontained in Chapter III of the Constitution. Article 14provides that the State shall not deny to any personequality before law or the equal protection of the lawswithin the territory of India. Dealing with this Articlevis-a-vis the Labour Laws, this Court in <strong>Hindustan</strong>Antibiotics Ltd. v. Workmen , has held that labour towhichever sector it may belong in a particular regionand in a particular industry will be treated on equalbasis. Article 15 provides that the State shall notdiscriminate against any citizen on grounds only ofreligion, race, caste, sex, place of birth or any of them.Clause (3) of this Article provides as under:(3) Nothing in this article shall prevent the State frommaking any special provision for women and children.18. The Court also noticed Article 39(e) of theConstitution:8. From Part III, we may shift to Part IV of theConstitution containing Directive Principles of StatePolicy. Article 38 provides that the State shall strive topromote the welfare of the people by securing andprotecting, as effectively as it may, a social order in126


which justice, social, economic and political shall informall the institutions of the national life. Sub-clause (2) ofthis Article mandates that the State shall strive tominimise the inequalities in income and endeavour toeliminate inequalities in status, facilities andopportunities.19. In our considered view, the time has come whenwomen must be able to feel liberated andemancipated from what could be fundamentallyoppressive conditions against which anautonomous choice of freedom can be exercisedand made available by women. Thus, we noticethe guaranteeing of the private space to thewomen, which is to choose her religious andprivate beliefs and also her capacity to assertequality which is in the public space is vitallyimportant. Very often, a woman may have toassert equality vis-à-vis her own family and that iswhy it is necessary to understand the subtledimension of a woman being able to exerciseautonomy and free will at all points of time in thesame way a man can. This, we will later see, issexual autonomy in the <strong>full</strong>est degree.20. We now examine the proposed Bill in greaterdetail.21. We note that Section 10(1) of the SexualHarassment Bill, 2012 stipulates that on receipt ofcomplaint of sexual harassment, conciliation mustbe attempted between the complainant andrespondent. This is in violation of the mandateprescribed by the Supreme Court in Vishakha,which was a direction to the State ‘to ensure a safeworkplace / educational institution for women’. In thiscon<strong>text</strong>, we think that the attempts to get justicecannot be muscled by attempts at conciliation.127


There are certain areas, such as contractual matterswhere there could be conciliation, but in matters ofharassment and humiliation of women an attemptto compromise the same is indeed yet another wayin which the dignity of women is undermined. Weare in agreement with the objections raised bymany women’s organisations that the saidprovision actually shows very little regard for thedignity of women. We think that Section 10(1) ofthe Bill, in so far as it proposes conciliation as afirst step, must be deleted.22. We now wish to look at Section 14 of the SexualHarassment Bill, 2012. We notice from theprovisions of the Bill that Section 14 appears topenalise a woman for filing a false complaint. Wethink that such a provision is a completely abusiveprovision and is intended to nullify the objective ofthe law. We think that these ‘red-rag’ provisionsought not to be permitted to be introduced andthey show very little thought.23. As far as Section 11(ii) is concerned, which hasenabled the internal complaints committee to begiven powers of a civil court for summoningdiscovery and production of documents isconcerned, this amounts to colourable legislationbecause powers of courts cannot be simplyconferred upon domestic committees, particularlywhen the composition of the internal committeedoes not have any legal background. We are alsoof the opinion that the Bill does not specify anytraining to the committee for fulfilling these duties.This is in distinction to the composition of the localcomplaints committee in which at least onemember has to preferably have a background inlaw or legal knowledge.128


24. As far as clause 6 of the Bill is concerned, whichcontains ambiguous guidelines for constitution ofthe local complaints committee, we notice that theBill provides that every district officer shallconstitute a local complaints committee in thedistrict. It also prescribes that an additional localcomplaints committee shall be constituted at theblock level to address complaints in certain cases.However, the jurisdiction and functions of thesecommissions is unclear. This needs to be clarified.25. We are further of the opinion that suitableprovisions should be added to the Bill to makepayment of compensation for a woman who hassuffered sexual harassment which should be paidby the company which compensation will bedetermined by a Tribunal.26. Pursuant to a review of the Sexual HarassmentBill as passed by the Lok Sabha, applicable caselaws, a review of available literature and variousconversations with Indian and internationalexperts, we have arrived at the conclusion that,read as a whole, the Sexual Harassment Bill isunsatisfactory. While the Sexual Harassment Billpurports to be in effectuation of the Hon’bleSupreme Court’s dictum in Vishakha v. State ofRajasthan 100 , it is clear from a reading of the saidBill that the spirit of the judgment in Vishakha isnot adequately reflected. It is our aim that theapplicable law relating to sexual harassment at theworkplace ought to ensure that not even animperceptible influence of any gender bias is feltagainst the female workforce either in theperformance of their duties or in their careerprogression. Our analysis of the Sexual100 (1997) 6 SCC 241129


Harassment Bill and suggestions for a moreeffective legislation are as follows:(a) Definition of Sexual Harassment: We are of theview that the present definition of “sexualharassment” contained in Section 2(n) and theconsequential provision relating to the preventionof sexual harassment contained in Section 3 of theSexual Harassment Bill is satisfactory and shouldbe retained in any future bill.However, it is important to note that the definitionrequires some clarification inasmuch as anyinterpretation of the word “unwelcome” ascontained in the said definition must give dueweight to both objective as well as subjectivecriteria in order to ensure that women of differingperceptions and comfort levels are givenappropriate protection. Therefore, we suggest thatafter the definition of “sexual harassment”, thefollowing explanation may be inserted:“Explanation: In determining whetherthe behaviour or act complained of isunwelcome, one of the factors to begiven due weight shall be the subjectiveperception of the complainant.”(b) Employment Tribunal: We are of the view that thepresent structure mandating the setting up of anInternal Complaints Committee to which anycomplaint must be filed is counter-productive tothe ends sought to be met. While each employermay opt for an internal mechanism for redressal ofcomplaints of sexual harassment, it would betterserve the ends sought to be achieved to set up aseparate Tribunal to be termed as the EmploymentTribunal to receive and adjudicate all complaints.130


It is our apprehension that the in-house dealing ofall grievances would dissuade women from filingcomplaints and may promote a culture ofsuppression of legitimate complaints in order toavoid the concerned establishment falling intodisrepute. Consequently the setting up of aTribunal as proposed herein would obviate theneed for both the Internal Complaints Committeeas well as the Local Complaints Committee asenvisaged under the present Sexual HarassmentBill.(c) Constitution and jurisdiction of an EmploymentTribunal: We propose that an EmploymentTribunal be set up which should comprise of tworetired judges (of which one must be a woman),two eminent sociologists and one social activist,who has sufficient experience in the field ofgender-based discrimination. The members of theTribunal should be appointed by a collegiumconsisting of the Chief Justice of the High Court(or his nominee judge) of the concerned state or aDistrict Judge, if the appointment is to be made ina Taluka, as the case may be, along with no lessthan one eminent female sociologist and onefemale advocate of the local High Court or DistrictCourt, as the case may be.We further propose that the proposedEmployment Tribunal’s operation should not betrammelled by the application of complexprocedures found in civil suits under the CPC orallied legislation. We therefore suggest that theTribunal ought to follow a summary procedure forthe disposal of complaints so as to expedite theresolution of disputes. It is apprehended that if thecomplaint of sexual harassment is tried as a <strong>full</strong>131


lown civil trial then the parties concerned will beadversely affected in the workplace for aprolonged period of time which can cause aprejudicial effect to both or either party. It isexpected that typical complaints of sexualharassment will not be evidence-intensive andhence should not require either a plethora ofdocuments or witnesses. It is therefore proposedthat, under the principle of kompetenz kompetenz,the Tribunal ought to be free to choose its ownprocedure for each complaint. Specifically, it issuggested that parties shall not as a matter of rightbe free to call upon witnesses, unless permitted bythe Tribunal in the facts of the case.(d) Establishments to which the proposed Act shallapply: Since each and every act of sexualharassment at the workplace is a form of sexdiscrimination which in effect denies a woman herfundamental rights guaranteed under theConstitution, it is proposed that any legislationdealing with the said issue should have the widestpossible application so as to take within its scopeevery female member of the national workforce.Therefore, any legislation must apply to allgovernment institutions, all public bodies, allpanchayats, all establishments covered under theFactories Act and the Industrial Disputes Act andall employers in the private sector who are nototherwise covered by the categories listed above.The present definition of “workplace” contained inSection 2(o) is of wide amplitude and in that senseis acceptable. However, it bears mentioning that aclarification may be inserted in the said definitionthat the “unorganized sector” is not exempt fromthe ambit of the proposed legislation. To this end,132


we suggest that the proposed legislation shouldalso cover women in the armed forces and police,agricultural workers and women students andstaff of all schools and educational institutions.The present definition appears to excludegovernment and other educational institutions.It is also proposed that domestic workers shouldalso fall within the ambit of the proposedlegislation. This would facilitate protection fromsituations where their wages are withheldarbitrarily as also to provide a basis for monetarycompensation in the event of sexualharassment/assault besides steps taken under thegeneral criminal law. Since education andbehaviour at home is the most valuable form oflearning, we feel that providing dignity todomestic workers is one of the most effective waysto humanize the treatment meted out to those oflower castes or economic class. We note that thepresent Sexual Harassment Bill does in fact coverdomestic workers. We only reiterate the need forsuch protection to highlight the importance ofcovering every single female member of thenational workforce.(e) Mode of Enforcement: The intendment of theproposed legislation ought to be the widestpossible dissemination of the rules relating tosexual harassment so that all persons at theworkplace are aware of what is expected. Wetherefore suggest that the sexual harassmentpolicy of each establishment ought to beprominently displayed within the premises withcomplete details on the procedure for making acomplaint. Further, it is suggested that the policyshould form part and parcel of the letter of133


appointment to ensure every person joining theestablishment is made aware of their rights againstsexual harassment. Any dereliction in the duty ofthe employer to prominently disseminate thesexual harassment policy in the work place andthe mode for making a complaint ought to be metwith a fine in the first instance, and imprisonmentof the concerned officer for a repeat offence.(f) Requirement of Complaint to be made only inwriting: This Committee is of the view thatground realities and the fact that the proposedlegislation shall be applicable to the widestpossible amplitude of workplaces, it would be tooonerous a burden to expect a complaint to be madeonly in writing. Often the more underprivilegedmembers of the female workforce are not in aposition to make a complaint in writing for variousreasons, such as, illiteracy, lack of education topermit them to put down on paper that which theyhave experienced and which may otherwise beclear in their minds. We propose thatcomplainants may be free to approach theTribunal directly to state a complaint orally, whichmay then be transcribed into the written form inthe manner prescribed by the Tribunal.(g) Limitation: We are of the view that period oflimitation of 3 months for the making of acomplaint contained in Section 9(1) of the SexualHarassment Bill may be misused to defeat the endssought to be achieved. It may often transpire that awoman may fail to make a complaint on theoccurrence of the first instance of sexualharassment and may only do so upon a repetitionof such instances. It would in those circumstancesbe unfair for only the last of such incidents (or134


those that fall within the three month limitation) toform the basis of her complaint when evidence ofprior instances may reveal a systemic flaw at theworkplace which is promotive of gender-baseddiscrimination. It is therefore suggested that nofixed time period of limitation be prescribed andthat the only expectation be that a complaint shallbe made within a reasonable period of time withregard to the facts and circumstances surroundingthe making of such a complaint and the personalcircumstances of the complainant. Adetermination of what amounts to a reasonableperiod of time shall be made by the Tribunalwhich may then be refined through thedevelopment of case law on the point.(h) Conciliation: The Committee is of the view thatconciliation in cases of sexual harassment isantithetical to the intended result, inasmuch as theconcept of conciliation pre-supposes the existenceof a valid complaint. If in fact a false complaint ismade or one which is incapable of proof, there willbe no need for a conciliation. Alternatively, sinceconciliation arises at a time prior to action beingtaken on a complaint it may be used as an effectivetool to muzzle the Tribunal’s primary duty ofinvestigating and prosecuting cases of sexualharassment so as to lend sufficient teeth to thelegislation. If a valid complaint is made, then theconsequences that ensue must only be thosemandated by the proposed legislation. We arefurther of the view that the complainant shall notbe permitted to withdraw a complaint once madeso as to ensure that all cases of sexual harassmentare properly dealt with under the law of the land.We apprehend that permitting either mandatoryconciliation, even if at the instance of the135


complainant, or permitting the complainant towithdraw her complaint will negatively impact theability of women to bring valid complaints beforethe Tribunal. It cannot be gainsaid that the myriadpressurizing influences that are brought to bearupon women in our society may act to disable herfrom pursuing a valid complaint.(i) Role of the Employer: While we have proposedthe elimination of a mandatory InternalComplaints Committee, we are of the view that thebest source for prevention of incidents of sexualharassment is an enlightened employer. Oursuggestions should not be read to mean that wewish to restrict the various optional measures thatan employer may take to prevent sexualharassment. They should be free to set up aninternal committee, if they so desire, however, acomplainant cannot be compelled to approachsuch an internal committee prior to approachingthe proposed Employment Tribunal. They are alsofree to take other measures such as educationprogrammes within their premises to furtherstrengthen anti-sexual harassment measureswithin their establishments. Employers must takeall steps necessary to prevent sexual harassmentfrom occurring, such as affirmatively raising thesubject, expressing strong disapproval, developingappropriate sanctions internally when an instanceof sexual harassment is brought to their notice,informing employees of their right to raise, andhow to raise, the issue of harassment, anddeveloping methods to sensitize all concerned.Particularly, all employers must have a nodalofficer to whom all complaints of sexualharassment may be made, whether in writing orotherwise. Such a person should always be a136


female member of the workforce and should begranted sufficient training to deal with suchsituations. It shall be such nodal officer’s duty toassist an aggrieved party to make a complaint tothe Tribunal, if necessary. We would like to clarifythat it shall not be mandatory for a complainant toapproach such nodal officer prior to the filing of acomplaint with the Tribunal.(j) Liability of the Employer: We are of the view thatit would be inequitable to visit the employer withliability in all cases of sexual harassment thoughthe primary responsibility for avoiding situationsof sexual harassment lies with the employer. Wetherefore propose that the liability of the employerwill be limited to case where the employer has (a)by an act or omission facilitated the specific act ofsexual harassment complained of; (b) permittedthe creation of an environment at the workplacewhere acts of sexual harassment have becomewidespread and systemic; or (c) been found inbreach of any other obligation under the Act,including but not limited to, the proper disclosureof the sexual harassment policy and the mode offiling of a complaint or the forwarding of anycomplaint received by either the employer, or byany person appointed by the employer on itsbehalf, to the Tribunal at the instance of thecomplainant.(k) Action during Pendency of the Enquiry/Case: Theproposed Section 12 of the Sexual Harassment Billempowers the Internal Complaints Committee orthe Local Complaints Committee to direct theemployer to either transfer the aggrieved womanor the respondent or to grant leave to theaggrieved woman if it deems fit. Once an137


Employment Tribunal, as envisaged by theserecommendations, is put into place, it follows thatthis power will be exercisable by the Tribunal.However, we are of the view that the Tribunalshould not have the power to compulsorilytransfer or grant leave to the aggrieved woman. Itis our view that either of these powers should onlybe exercised with the consent of the aggrievedwoman. In the event that the aggrieved woman isnot amenable to either transfer or grant of leavethen no such action ought to be taken against herwill so as to ensure that she does not foster either asense of bias or alienation merely on account of thefact that she exercised her rights under theproposed legislation to file a complaint of sexualharassment. However, to facilitate a feasibleworking environment, both the aggrieved womanand the respondent should not be compelled towork together on any project. They should beseparated at the workplace such that they do notneed to come into contact with one anotherpending the adjudication of the complaint.Additionally, it is suggested that leave may begranted to the respondent pending adjudication inthe event that the aggrieved woman is neitheramenable to transfer or leave or that given thestructure of the workplace or the nature of thework it is infeasible or impossible for theaggrieved woman and the respondent to beseparated in the discharge of their duties. Thepresent act seems to regard the granting of leave asa beneficial provision for the aggrieved womanwithout taking into account her wishes. This, toour mind, is contrary to the ends sought to beachieved by the proposed legislation inasmuch asthere should not be any provision that enhances asense of victimhood in the aggrieved woman.138


(l) Action in relation to False or MaliciousComplaints or Giving of False Evidence:The present Section 14 of the Sexual HarassmentBill appears to be a provision which is liable tomisuse. Where an aggrieved woman makes acomplaint it is possible that she will be faced withopposition from the employer as well. In suchcases it is often possible that evidence may bemanipulated by the employer or those acting inconcert with the employer so as to ostensiblyfalsify the allegations of the aggrieved woman.Therefore the fear is that such a provision may beused to counter the complaint of the aggrievedwoman and would promote a culture amongemployers with means to render false the genuinecomplaint of an aggrieved woman.Accordingly, it is our recommendation that thesaid provision be deleted so as to foster anenvironment conducive to the making ofcomplaints under the proposed legislation. TheTribunal shall always have the option ofreprimanding the aggrieved woman or thewitness, as the case may be, in its order in relationto any falsification. It is our belief that such anorder of reprimand will have far reachingconsequences for the future employment prospectsof the aggrieved woman which may bepunishment enough.(m) Review of Premises by the Tribunal: TheTribunal ought to also be mandated to conductperiodic inspection of various establishmentswithin their jurisdiction to obtain information onthe state of the enforcement of the proposedlegislation and to assess various steps taken by139


employers to ensure proper compliance with theterms of the proposed legislation. The purpose ofthese inspections should not be limited to theenforcement of the proposed legislation butshould also extend to activities relating to gendersensitization based on the experiences collated bythem. This may be through various educationprogrammes or assessments received by those thathave interacted with a specific employer as eitherworkers or as clients or in any other capacity.(n) Special Provisions as to Universities: While in thepreceding Recommendation No. 2 we haverecommended that students and staff of alleducational institutions may also be includedwithin the definition of “workplace” under theproposed legislation, we are in receipt of certainsubmissions made the Jawahar Lal NehruUniversity which, in part, deal with the issue ofsexual harassment. Those universities, in whichInternal Complaint Committees have functionedsuccess<strong>full</strong>y to deal with sexual harassment,should share their internal guidelines oncombating sexual harassment in their Universitywith other Universities across India. As anexample, the internal complaint committee of JNUis known as Gender Sensitisation Committeeagainst Sexual Harassment, which is stated to havebeen extremely effective in its working partly dueto the diverse nature of its constituent members.This model may be examined.Further with regards to the constitution of ICC’swithin Universities in the Dr. B. N Ray v. Ramjas140


College & Ors 101 judgment on 21 st May 2012, theDelhi High Court ruled that:“It was very much in the domain and competence of theUniversity to provide, by way of Ordinance, that themembers of the Committee would includerepresentatives from all the sections of the collegecommunity”.The High Court then went on to say that in factsuch a constitution would be welcome on the basisthat it“…meets the objective of ensuring that all sections ofthe college community have <strong>full</strong> faith in the functioningof the Committee on account of presence of theirrepresentatives on it. The findings of such a broad basedCommittee are likely to be better received and acceptedby all the sections of the college community”.The court held that the mere fact that thechairperson of the committee was ranked junior tothe accused was not violative of his rights underArticle 14 of the Constitution.We note that the court in Dr. B. N Ray v. RamjasCollege & Ors stated that whilst the principles ofnatural justice should be followed in theprocedures of the University’s ICC, it is notimperative that the complainant(s) in a case ofsexual harassment need be cross examined in thepresence of the accused.101 Judgment dated May 21, 2012 in Writ Petition (C) No. 4427 of2008.141


CHAPTER FIVEOTHER OFFENCES AGAINST WOMENEve Teasing1. Another important aspect of sexual harassment isthe horrendous practice of eve-teasing. In a recentjudgment in DIG v. S. Samudiram 102 , the SupremeCourt has referred to eve-teasing as a euphemism,which attracts penal action. In this case, apoliceman was caught eve teasing a marriedwoman. It led to his dismissal from service andthe initiation of criminal proceedings. Theaggrieved employee challenged the dismissalorder before the Tamil Nadu AdministrativeTribunal, Chennai. While the said application waspending before the Tribunal, the JudicialMagistrate, Tenkasi rendered a judgmentacquitting the respondent of all charges. TheTribunal noticed that no reliance could be placedon the judgment of the Criminal Court and upheldthe order of dismissal from service, which waseventually upheld by the Supreme Court.2. Since the case was in the con<strong>text</strong> of eve teasing, thefollowing observations of Radhakrishnan, J. arevery important. In our view, the learned Judgeperceptively has looked at not only sexualharassment at workplaces but the safety of womenin all places. We are of the opinion that the safetyof women in all places is again a fundamentalguarantee which is enforceable against the State.We note the Supreme Court’s observations whichare as follows:-102 (2012) 11 SCALE 420142


“26. We may, in the facts and circumstances of thiscase, wish to add some aspects which are also ofconsiderable public importance. We notice that thereis no uniform law in this country to curb eve-teasingeffectively in or within the precinct of educationalinstitutions, places of worship, bus stands, metrostations,railway stations, cinema theatres, parks,beaches, places of festival, public service vehicles orany other similar place. Eve-teasing generally occursin public places which, with a little effort, can beeffectively curbed. Consequences of not curbing sucha menace, needless to say, at times disastrous. Thereare many instances where girls of young age arebeing harassed, which sometimes may lead to seriouspsychological problems and even committing suicide.Every citizen in this country has right to live withdignity and honour which is a fundamental rightguaranteed under Article 21 of the Constitution ofIndia. Sexual harassment like eve- teasing of womenamounts to violation of rights guaranteed underArticles 14, 15 as well. We notice in the absence ofeffective legislation to contain eve-teasing, normally,complaints are registered under Section 294 orSection 509 IPC.… … …28. It is for the prosecution to prove that the accusedcommitted any obscene act or the accused sang,recited or uttered any obscene song; ballad or wordsand this was done in or near a public place, it was ofobscene nature and that it had caused annoyance toothers. Normally, it is very difficult to establish thosefacts and, seldom, complaints are being filed andcriminal cases will take years and years and oftenpeople get away with no punishment and filingcomplaint and to undergo a criminal trial itself is anagony for the complainant, over and above, theextreme physical or mental agony already suffered.… … …30. The burden is on the prosecution to prove that theaccused had uttered the words or made the sound or143


gesture and that such word, sound or gesture wasintended by the accused to be heard or seen by somewoman. Normally, it is difficult to establish this and,seldom, woman files complaints and often the wrongdoers are left unpunished even if complaint is filedsince there is no effective mechanism to monitor andfollow up such acts. The necessity of a properlegislation to curb eve-teasing is of extremeimportance, even the Tamil Nadu Legislation has noteeth.31. Eve teasing today has become pernicious, horridand disgusting practice. The Indian Journal ofCriminology and Criminalistics (January- June 1995Edn.) has categorized eve teasing into five heads viz.(1) verbal eve teasing; (2) physical eve teasing; (3)psychological harassment; (4) sexual harassment; and(5) harassment through some objects. In Vishaka andOthers v. State of Rajasthan; (1977) 6 SCC 241, thisCourt has laid down certain guidelines on sexualharassments. In Rupan Deol Bajaj and Another v.K.P.S. Gill; (1995) 6 SCC 194, this Court hasexplained the meaning of ‘modesty’ in relation towomen. More and more girl students, women etc. goto educational institutions, work places etc. and theirprotection is of extreme importance to a civilized andcultured society. The experiences of women and girlchildren in over-crowded buses, metros, trains etc.are horrendous and a painful ordeal.32. The Parliament is currently considering theProtection of Woman against Sexual Harassment atWorkplace Bill, 2010, which is intended to protectfemale workers in most workplaces. Provisions of thatBill are not sufficient to curb eve-teasing. Beforeundertaking suitable legislation to curb eve-teasing,it is necessary to take at least some urgent measuresso that it can be curtailed to some extent. In publicinterest, we are therefore inclined to give thefollowing directions:1) All the State Governments and Union Territoriesare directed to depute plain clothed female policeofficers in the precincts of bus-stands and stops,144


ailway stations, metro stations, cinema theatres,shopping malls, parks, beaches, public servicevehicles, places of worship etc. so as to monitor andsupervise incidents of eve-teasing.2) There will be a further direction to the StateGovernment and Union Territories to install CCTVin strategic positions which itself would be adeterrent and if detected, the offender could becaught.3) Persons in-charge of the educational institutions,places of worship, cinema theatres, railway stations,bus-stands have to take steps as they deem fit toprevent eve-teasing, within their precincts and, on acomplaint being made, they must pass on theinformation to the nearest police station or theWomen’s Help Centre.4) Where any incident of eve-teasing is committed ina public service vehicle either by the passengers or thepersons in charge of the vehicle, the crew of suchvehicle shall, on a complaint made by the aggrievedperson, take such vehicle to the nearest police stationand give information to the police. Failure to do soshould lead to cancellation of the permit to ply.5) State Governments and Union Territories aredirected to establish Women’ Helpline in variouscities and towns, so as to curb eve-teasing withinthree months.6) Suitable boards cautioning such act of eve-teasingbe exhibited in all public places including precincts ofeducational institutions, bus stands, railway stations,cinema theatres, parties, beaches, public servicevehicles, places of worship etc.7) Responsibility is also on the passers-by and onnoticing such incident, they should also report thesame to the nearest police station or to WomenHelpline to save the victims from such crimes.145


8) The State Governments and Union Territories ofIndia would take adequate and effective measures byissuing suitable instructions to the concernedauthorities including the District Collectors and theDistrict Superintendent of Police so as to takeeffective and proper measures to curb such incidentsof eve-teasing.3. We have recommended insertion of provisions inthe IPC to criminalise the act of eve-teasing.Acid Attacks4. We understand that a most heinous form of attackon women, which is commonplace in severalAsian and African countries, is the throwing ofacid on women for a multitude of reasons,including alleged adultery, turning downadvances from men, and also as a form ofdomestic violence. Acids and other corrosivesubstances are thrown on women or administeredto them, thereby causing death or physical andpsychological damage with unfathomableconsequences. The 226 th Report of the LawCommission of India, which dealt particularlywith this offence stated:“Though acid attack is a crime which can becommitted against any man or woman, it has aspecific gender dimension in India. Most of thereported acid attacks have been committed onwomen, particularly young women for spurningsuitors, for rejecting proposals of marriage, fordenying dowry etc. The attacker cannot bear the factthat he has been rejected and seeks to destroy thebody of the woman who has dared to stand up tohim”. 103103 ‘Proposal for the inclusion of acid attacks as specific offences in theIndian Penal Code and a law for compensation for victims of crime’, LawCommission of India, July 2008 at p. 3.146


5. In a certain sense, the aggressor is conscious thatself-worth and self-esteem of a woman often lies inher face, which is a part of her personality. Thedismemberment of the face or the body is notmerely an offence against the human body but willcause permanent psychological damage to thevictim. What happens when there is permanentphysical and psychological damage to a victim, isa critical question and law makers have to beaware that offences are not simply based on theprinciple of what might be called offence againstthe body, i.e., damage of the body, but they musttake into account the consequences on the right tolive with dignity which survives the crime. This isan important consideration both in the fields ofcriminology and also in the field of sociology.6. The Law Commission studied instances of acidattacks and also laws to deal with the offence invarious countries including Australia, Bangladesh,Cambodia, China, El Salvador, Ethiopia, Italy,Laos, Malaysia, Nepal, Pakistan, Thailand, SriLanka, Uganda, UK, USA and Vietnam. However,the incidence in Bangladesh, India, Pakistan,Cambodia and Uganda are much higher and areon the rise. The Bangladesh Government thereforeenacted a law called the Acid Offences PreventionAct, 2002. The Law Commission after examiningthe law in various jurisdictions, came to theconclusion that a separate Act should be proposedfor dealing with compensation to victims of acidattacks, rape, sexual assault, kidnapping.7. Traditionally, the offence is dealt with underSection 326 of the IPC which deals with‘Voluntarily causing grievous hurt by dangerous147


weapons or means’. This provision also deals withcausing grievous hurt using ‘corrosive substances’which include acids.8. In fact in Sachin Jana Vs. State of West Bengal 104 , acase involving acid attack which had causeddisfigurement of the victim, the Supreme Courtapplied Section 307 IPC (Attempt to murder) readwith Section 34 on the basis that to justify aconviction under Section 307 it was not essentialthat ‘bodily injury capable of causing death wasinflicted’. The Section made a distinction betweenthe act of the accused and its result. Therefore itwas not necessary that the injury actually causedto the victim should be sufficient under ordinarycircumstances to result in death. The court is onlyrequired to see whether the act, irrespective of itsresult, was done with the intention or knowledgementioned in Section 307. It was sufficient if therewas intent coupled with an overt act in executionthereof. The Supreme Court in this case, also reliedupon the decision in State of Maharashtra Vs.Balram 105 .9. The gender specificity and discriminatory natureof this offence does not allow us to ignore thisoffence as yet another crime against women. Werecommend that acid attacks be specificallydefined as an offence in the IPC, and that thevictim be compensated by the accused. Howeverin relation to crimes against women, the Centraland State governments must contribute substantialcorpus to frame a compensation fund. We notethat the existing Criminal Law (Amendment) Bill,2012, does include a definition of acid attack.104 (2008) 3 SCC 390105 (1983) 2 SCC 28148


Offences against women in border areas / conflict zones10. We now address a very important, yet oftenneglected area concerning sexual violence againstwomen – that of legal protections for women inconflict areas. Our views on this subject areinformed by the plight of a large number ofwomen from areas in Kashmir, the North-East,Chhattisgarh, Odisha and Andhra Pradesh whowere heard at length in the course of preparingour report. We are indeed deeply concerned at thegrowing distrust of the State and its efforts todesignate these regions as ‘areas of conflict’ evenwhen civil society is available to engage andinform the lot of the poor. We are convinced thatsuch an attitude on the part of the State onlyencourages the alienation of our fellow citizens.11. At the outset, we notice that impunity forsystematic or isolated sexual violence in theprocess of Internal Security duties is beinglegitimized by the Armed Forces Special PowersAct, which is in force in large parts of our country.It must be recognized that women in conflict areasare entitled to all the security and dignity that isafforded to citizens in any other part of ourcountry. India has signed the InternationalConvention for the Protection of All Persons fromEnforced Disappearance 106 , which has to behonoured. We therefore believe that strongmeasures to ensure such security and dignity willgo a long way not only to provide women inconflict areas their rightful entitlements, but also to106 http://www2.ohchr.org/english/law/disappearanceconvention.htm149


estore confidence in the administration in suchareas leading to mainstreaming.12. To this end, we make the followingrecommendations for immediate implementation:a) Sexual violence against women by members ofthe armed forces or uniformed personnel mustbe brought under the purview of ordinarycriminal law;b) Special care must also be taken to ensure thesafety of women who are complainants andwitnesses in cases of sexual assault by armedpersonnel;c) There should be special commissioners – whoare either judicially or legislatively appointed –for women’s safety and security in all areas ofconflict in the country. These commissionersmust be chosen from those who haveexperience with women’s issues, preferably inconflict areas. In addition, such commissionersmust be vested with adequate powers tomonitor and initiate action for redress andcriminal prosecution in all cases of sexualviolence against women by armed personnel;d) Care must be taken to ensure the safety andsecurity of women detainees in police stations,and women at army or paramilitary checkpoints, and this should be a subject under theregular monitoring of the specialcommissioners mentioned earlier;150


e) The general law relating to detention of womenduring specified hours of the day must bestrictly followed;f) Training and monitoring of armed personnelmust be reoriented to include and emphasizestrict observance by the armed personnel of allorders issued in this behalf;g) There is an imminent need to review thecontinuance of AFSPA and AFSPA-like legalprotocols in internal conflict areas as soon aspossible. This is necessary for determining thepropriety of resorting to this legislation in thearea(s) concerned; andh) Jurisdictional issues must be resolvedimmediately and simple procedural protocolsput in place to avoid situations where policerefuse or refrain from registering cases againstparamilitary personnel.151


CHAPTER SIXTRAFFICKING OF WOMEN AND CHILDREN1. We have dealt with issues regarding sexualoffences committed on women and children indetail. We have also talked about the legal andpolicy changes needed to address the menace.However, these changes can only handleperceptible and tangible problems. Perceptibleproblems occur when offences are committed onperceptible people. One of the biggest areas ofconcern in our country (and around the world)pertains to offences committed silently and underthe cloak of darkness on lakhs of poor childrenand women who are uprooted illegally from theirrecorded geographic co-ordinates and whiskedaway into anonymity; into a world of mirth anddarkness.2. This report will be incomplete without dealingwith the heinous offence of trafficking of humans,whether it is of children or women for variouspurposes, understated as immoral but in realityheinous. It now stands undisputed that one of themain reasons for human trafficking is forCommercial Sexual Exploitation (CSE) of thesechildren and women. This view has beenreaffirmed by the Supreme Court in the decision ofBachpan Bachao Andolan v. Union of India 107 .Offences committed initially on them never cometo light. Over time the sexual abuse becomes partof their life. It then gets termed as prostitution andthen the abuse borders on being consensual. It isthis vicious circle of missing children/women-107 (2011) 5 SCC 1152


trafficking-abuse-prostitution which needs to becurbed with urgent measures.3. The NHRC, in a report 108 published on ‘missingchildren’ says that on an average 44000 children gomissing in the country every year. Of thesechildren, 11,000 remain untraced. It cannot beignored that there are cases where children runaway from their homes. However, it also cannot beignored that many are taken away against theirvolition. We are surprised by the fact that whenthe factum of a child going missing is reported tothe police station, no FIR is registered. It is merelyreduced to a General Diary (GD) entry which thenpasses through various information disseminationchannels and finally rests in the National CrimeRecords Bureau’ s (NCRB) TALAASH InformationSystem. This database is not properly updatedsince the police reporting of having recoveredmissing children to the NCRB is, apparently, lax.4. It is quite unacceptable that cases of ‘missingchildren’, which may or may not be the result oftrafficking in humans, is considered at par with a‘lost and found’ situation of inanimate objects.Further, the accountability of the police in thesecases is almost non-existent. We are of the strongopinion that it be made legally mandatory thatFIRs be registered by the police in case wherechildren are reported to be missing. This makesthe police more accountable and under the directcontrol of the courts.5. The report of the NHRC also refers to andreiterates the guidelines issued by the Supreme108 Report of the NHRC Committee on Missing Children. NHRC 2007.http://nhrc.nic.in/Reports_misscl.htm153


Court in the case of Horilal v. Commissioner of Police,Delhi 109 . These guidelines pertain to procedure tobe followed in case of missing children andkidnapped minor girls and women. We believethat states need to implement these guidelines inright earnest so as to nip this evil in the bud.6. Apart from the report of the NHRC, we have alsohad the opportunity to interview a young girl froman eastern State, who was subjected to trafficking,but who still retains a sparkle in her eyes andenthusiasm to forge forward. We also interactedwith child victims of trafficking and sexual abuse.These stories further confirm our belief thatmissing children who are further trafficked forvarious purposes belong to an extremelyunfortunate lot and without preventing sexual andother forms of abuse committed on these children,the task remains unfinished. Some poignantstatements made by these children are extractedbelow:(1) CASE OF THE TRAFFICKED GIRL: This is thetestimony of a girl trafficked from her nativeplace in the eastern part of the country to NewDelhi, where she was raped, sexually andphysically abused, and forced to do unpaidlabour. The Committee is saddened to note thatdespite judicial notice having been taken of theinvolvement of ‘placement agencies’ anddespite the same being in the knowledge of theState, the Committee has not been providedwith any credible material that shows anygenuine step having been taken by the State todeal with this menace. This casestudy/testimony assumes importance because109 W.P (Crl) 610 of 1996.154


it is reflective of a pattern of violence uponwomen, which has been invisiblised by theState.“Girl: esjs dks mu yksx cgdk,s uk fnYyh pyksAQ: dkSu] fdUgksus dgk csVk\*****Q: vkSj ;s foØe eryc rqedks ysds x;k ;k vkSj HkhyMfd;ksa dks ysds x;k\Girl: vkSj Hkh yMfd;ksa dks yxk;k Fkk ij esjs dks fnYyhvkus ds ckn esa oks yMdh ykrk gS irk pyk eq>sAQ: **** D;k djrk gS\Girl: vkWfQl IyslesaV pykrk gSAQ: vPNk ?kj esa D;k dke djrh Fkh rqe csVk\Girl: MLVhax] >kMw iks;k vkSj diM+s e’khu ls /kksrh FkhAQ: ysfdu rqEgsa dqN Hkh iSls fn;sa ;k ugha fn;k-\Girl: ugha ------ okyk ,d Hkh iSlk ugha fn;kAGirl: oks rks cksyrh Fkh eSMe ds lkjs iSls bDVBs ys tkbZ;ksaAvxj iSls ns nwWaxh rks Hkkxus dk Mj gksrk gS uk mu yksx dks’kd djrs gS fd yMdh dks iSls ns nsaxsa rks Hkkx tk;sxhAblfy, mu yksx esjs dks iSls ugha nsrs Fks efgus esaAQ: ysfdu IyslesaV ,tsalh eryc bldh employmentoks vaDy vkWaVh ls [kRe gks xbZA*****B: vaDy vaVh eryc budk ,d flLVe gksrk gS fd eS;s yMdh ns jgk gwW vkSj eS bldks cny Hkh ldrkgwW vkSj ;s esjh xkjUVh gS vxj ;s cny xbZ rks eSnwljh yMdh ns nwWaxkA Like contract labour*****Girl: xqMxkWaok esa ysdj vk;k fQj eSus cksyk ds eq>s ?kjtkuk gSA eq>s iSls ns nksA rks cksyk fd vHkh ge yksx xkWaotk,saxsa DVBk eryc ,d efgus ckn ge lkjs ?kj tk jgs gSArks rqe Hkh ,d efgus dke dj yks fQj lkjs ?kj tk;saxsa rqeHkh gekjs lkFk pyh tkukA*****Girl: ,d efgus ds fy,A esjs dks cksyk ,d efgus dkeyxkÅ¡xkA eSus Hkh cksyk fd ,d efgus ds fy, dke yxk jgs155


gks esjs dks rks esjs dks xqM+xk¡o ds vUnj gh dke yxk nks eSavkidks dksbZ f’kdk;r ugha igqWpkÅWaxhAGirl: rks mUgksus cksyk fd Bhd gS eS xqMxk¡ok ds vUnj ghyxk nwWaxkA igpku esa gh yxk nw¡xk cksykA vkSj esjs dks ogkWaitakc ys x;kA*****Girl: gkWa th] ogkW LVs’ku gS ogkW mrjs Fks] ogkW jkr gks xbZfQj esjs dks jLrs is taxy esa lqyk;k Fkk jkr dks fQj-----Q: dkSu **** us\Girl: **** usA fQj lqcg mBds 4-00 cts esjs dks dksBhigqWapk;k tkya/kjAQ: tc taxy esa lqyk;k rks **** us dqN rqEgkjs lkFkcykRdkj ;k dqN ,sls djus dh dksf’k’k dh\Girl: dksf’k’k ugha mUgksus fd;kA xyr fd;kA*****Q: vPNkA vkSj ;s xqtjky uxj esa fQj csVk fdl dksBh esarqEgs yxk;k] D;k dke\Q: iSls rqEgs nsrs Fks os yksx\Girl: ugha mu yksx bDVBs nsaxsa cksysA ogkW dk rks lkjkiSlk esjs lkeus fxurh djds oks **** ds gkFk esa iSls idMk,sAGirl: **** us ogkW ls lkjs iSls mlh VkbZe fxuok ds] lkjs iSlsfxuok ds mUgksus gkFk es ys fy;kAQ: vius gkFk esa\Girl: vius gkFk es ys fy;kA esjs dks lkgc us cksyk fd irkugha ;s vkneh nsxk fd ugha nsxk rks 6000 rqe nks efgus dk6000 rw vius gkFk es j[k ysA bls er crkuk fd rsjs gkFk esa6000 iSls gSA*****Girl: fQj xqMxkWaok] esjs dks xqMxkWaok esa dksBh ls fudkykvkSj ml VkbZe mUgksus tkucw> djds Hkst fn;k Fkk viuschoh cPps dks ?kj fQj vkWfQl esa eS vdsyh FkhA xqMxkWok esaeryc ?kj is eS vdsyh Fkh vkSj dksbZ Hkh ugha FksAQ: rks rc D;k djrs Fks ;s\Girl: eSa muds ?kj is 17 fnu FkhA 17 fnu esa ls 10 fnu dsdjhc esjs lkFk mUgksus xyr fd;kA156


Girl: th] ,d fnu muds ?kj is esageku vk,s gq,s FksA rksmldk NksVs okyk cPPkk Fkk rks mldks xksn esa ysdj eSa ÅijxbZA fQj eSa jks jgha Fkh fd eq>s ?kj tkuk gS eq>s ?kj HkstksAjkst jkst ,sls ekjihV dj jgs gks eq>s A blls vPNk gS eq>sej tkuk pkfg,sA rks mUgksus cksyk fd ejus dk ’kkSd gS rksrqEgsa vHkh /kDdk nsdsA /kDdk ns nwWaxk rks vHkh fxj ds ejtk,sxhA ,sls cksyk FkkA eq>s gkFk yxk;k Fkk ij /kDdk ughafn;k FkkA”*****B: This fellow basically sold her to thisother gentleman the driver.Q: He sold her to the driver?B ActuallyQ: for a certain sum of money.B actually as per our understanding,because he was a driver, she was toldthat he was going to (Name of State)B actually being taken to Mumbai thesame principle as she was earliertaken to Punjab and then she saidthat i am not going to go with youthen at the Railway Station it wasvery difficult for him to say, that ishow it was.Q: That is how she went with that guy?Q: 2008 esa ;s dg jgs gS fd tc budh iksfLVax blbykds esa Fkh ’kdwj iqj ds bykds esa rks ogk¡ is dksbZIyslesaV ,tsalht ugha Fkh vkSj bdk nwdk ’kq: gqbZFkhA vkt ogk¡ is 500&700 ls T;knk IyslesaV,tsaflt gSAGirl:xkWao es cksyk Fkk eEeh ikik dks fQj eSus ,d ckjQksu fd;k Fkk rks cksyk fd **** us rks cksyk fd rqerks ej xbZ gSAB: ;s **** tc rqedks ysds tkrk Fkk txg txgAGirl:thB: vyx vyx txg tc yMdh NksMrk FkkAGirl: thAB: yxHkx fdruh yMfd;k NksMrk gksxkA 1]2]---10157


Girl:Girl:ugha bruk ls rks mlds ikl T;knk yMfd;k¡ gksaxhAfxurh rks ugha dj ikÅ¡Waxh ysfdu de ls de 150ls mij gksaxh yMfd;kW mlds iklAD;ksfd eq>s xqMxkWok ls tgkW tkrk Fkk ogkW is ystkrk Fkk ysfdu oks rks chp chp esa ikdZ esa ystkrk FkkA ikdZ Hkh ts tkrk FkkA ikdZ esa xyr rksugh djrk Fkk ysfdu cSBk ds nk: fiykrk FkkAQ: csVk rqEgs lcls igys rks ge tYnh ls tYnh tks gS;s iSls fnyok;saxsa vkidksGirl:th] oks rks vc rd eq>s


****Child-1: tkek efLtn is ,d xSax jsi gqvk FkkAQ: gkWaChild-1: cPph ds lkFkAQ: thAD: gkW gkWChild-1: 12 lky dh yMdh FkhQ: thAChild-1: mlds lkFk esa gqvk Fkk xSax jsiAQ: ysfdu rqe tks ;s guqeku efUnjA eryc ge vkils;s iwNuk pkg jgs Fks tSls fd ;s u’kk o’kk djrs FksAblesa D;k dqN iqfyl okyks dk Hkh gkFk Fkk\C: iqfyl okys gh rks Pimps FksAChild-2: tSls lj ge yksx u’kk djrs gSD: thAChild-2: tks pksjh djus yxs ;k dqN djus yxsA rks iqfylokys gels iSls ysrs gSAQ: eryc rqe u’kk djrs gks rks iqfyl okys rqels iSlsysrs gS\Child-2: gkW idM fy;kChild-3: tkek efLtn esa Hkh fdrus yksx csprs jgrs gSAiqfyl okys ,l-,p-vks] osl-,p-vks lc tkrs jgrs gSns[krs gS [kqys vke fcd jgk gSA fQj Hkh dqN ughacksyrs gSA*****D: csVk vHkh ;s iwN jgs Fks fd iqfyl okys vxj yMdksds lkFk ugha rks yMfd;ks ds lkFk rks djrs gksaxsamYVk dke ;sA159


Child-2: djrs rks gksaxsa ;sA fMªad djrs gS pkSdh esaA ,slkysfMl ds lkFk Hkh djrs gS oksAD: gk¡Q: fdu ds lkFk\Child-2: ysfMl ds lkFk tSls ckgj ?kqerh jgrh gSAB: mldks idM ysrs gSAChild-1: mldks iVk ds yk;k iSls fn;k vksj dj ysrs gSAQ: dgk¡ dj ysrs gS\Child-2: pkSadh esa dkSu ns[k jgk gSA x;k dke cu x;kAQ: dgkW pkSdh es ys x,sAChild-2: pkSdh esa HkhQ: yMdh dks\Child-2: vkSj D;k] ehuk cktkj esa cgqr ,sls gh gksrk jgrkgSAQ: eryc oks ] oks tks iqfyl okyk gS oks iSls ysrk gS]oks iSls nsrk gS ;k oks oSls gh oks oks--Child-2: iSls nsrk gS oks tSls gks x;k 100&50 ns fn;kAQ: oks tks yMdh dksAChild-2: gkWAChild-3: vxj dksbZ NksVh yMdh jgrh gS mls ys tkrs gSAxyr dke djokrs gSAQ: eryc mldks tcjnLrh ys tkrs gSAChild-3: iSls dk ykyp fn[kk dsAD: iqfyl okys ys tkrs gSAChild-3: gkWa] iSls dk ykyp fn[kk dsAQ: iqfyl okys iSls dk ykyp fn[kkds mldks ysdstkrs gSA vkSj fQj mldks] mldks fQj mlds lkFkxyr dke djds mldks NksMrs gS\Child-3: gk¡A iSls rks ekaxrh gS vxj oks cksyrh eq>s bl dkeds fy, yk,s Fks vkSj ;s djk jgs gks oks euk djrh160


gS rks fQj mldks ekj ds Hkxk nsrs gSA 100 :i;s nsnsrs gS mls dHkh 10 :-******Q: vPNk] vkSj dHkh] ugha] tSls fd le> yks tkekefLtn esa NksVh yMdh gS mldks lMd ls mBkfy;k igys mldks mldks ykyp fn[kk nhA ys x;kogk¡ iqfyl LVs’kuA mlds lkFk xyr dke djfy;kA ckn esa oks lh/kk th-ch-jksM Hkst nsrk gSAChild-3: gk¡ cgqr tu dj nsrs gS fcpok nsrs gSQ: fcpok nsrs gS\Child-4: esjh vk¡[kks ds lkeus-----Child-3: gk¡] fcpok nsrs gS-----Child-4: ;s fcpok nsrs gS vkSj iqfyl okys gh tks gS oks cPpksdks fcpok nsrs gSA*****Child-4: cPpk gks] ysfMl gks dksbZ Hkh gksAQ: ogk¡ ij lkgjuiqj esaAChild-4: gk¡ ogk¡ isAQ: rks ogkW is iqfyl ns[krh ugh gS ns[krh ugh gS ;slcAChild-4: cktkj es tk Hkh ugh ldrkA iSls feyrs gS ukAQ: dkSu\Child-4: iqfyl okys dks iSls feyrs gS rks D;k tk;sxkA*****Child-4: rks ,d xkMh vkbZA ,d yMdh cSx ysds tk jghFkh rks iqfyl okys us idM yhAD: yMdh dks161


Child-4: gk¡ yMdh dks iwNk rkNk D;k D;k irk ughaAmldks fcBk fy;kADfdlus\Child-4: iqfyl okyks usADviuh xkMh esa\Child-4: gk¡] vkSj tgk¡ is taxy Fkk] taxy ds vUnj xkMh?kqlsM nhAQ: gS\Child-4: lHkh ns[kus yxs D;k dj jgs gS] ge mlds ihNsihNs x,s ns[kk rks yMdh fpYyk jgh gS vkSj ,d useqWg nck j[kk gS vkSjA …Child-4: rhu yksx FksAChild-4: rhu iqfyl okys FksA ,d MªkbZoj Fkk vkSj nks vkSjFksAQ: gk¡AD: iqyhl dh xkM+h Fkh ih-lh-vkj oSu gksrh gSAChild-4 gk¡]D: ih-lh-vkj oSu ljAQ: ih-lh-vkj vkSj ;s ih-lh-vkj oSu tks gS oks ysds x,syMdh dksD: taxy esaAChild-4: taxy esa ys ds x,s vkSj ge Hkh mlds ihNs ihNsx;sAQ: gk¡AChild-4: ns[kus ds fy,AChild-2: ns[kus ds fy,AChild-4: tks MªkbZoj FkkAChild-2: tks ih-lh-vkj dk MªkbZoj FkkAChild-4: rks mlus eqWg nck j[kk Fkk vkSj tks nks Fks oks mldkjsi dj jgs FksA162


Q: gS\Child-4: oks mls jsi dj jgs FksAQ: oks jsi dj jgs Fks\Child-4: jsi dj jgs FksAQ: gk¡A vkSj fQjChild-4: eryc fQj tks yMdk FkkA oks eq>s Hkh ns[ks tks eSusmldks ns[kk rks eS Hkh cgqr Mj x;k fd iqfyl okysgsS vxj dqN HkhChild-3: idM fy;k rksAChild-4: vxj ’kksj Hkh epk fn;k rks gedks rks ekj----Q: fcYdqy ekj nsaxsa rqEgs tku lsAChild-4: gk¡] ekj Mkysaxsa D;ksfd iqfyl okys gSAQ: gk¡AChild-4: rks mlus esjs dks cksyk fd tks Hkh ns[k jgk gS clrw vius lhus esa jf[k;ksa fdlh dks crkbZ;ksa erA ugharks vxjA vHkh irk py x;k uk budksA fd geusArks ;gh is xksyh ekj nsaxsAChild-4: rhuks us fd;kA mlds ckn mlus oks irk ughayMdh dks D;k fn;kA irk ugha D;k fd;kA yMdhdks oks uhps Qsad fn;kA mlls xkMh lsA xkMh lsuhps Qsadk….”The Committee was extremely moved afterlistening to the above narrations.7. As far as the trafficking of these children isconcerned, the law seems to lag behind socialrealities. The only law in India dealing withoffence of trafficking is the ITPA apart from theIPC, the latter having many provisions which maybe employed to deal with different aspects of163


trafficking. Ironically though, the term ‘traffickingin persons’ is nowhere defined in our law. It hasbeen however defined in the United NationsPalermo Protocol 110 as :“Trafficking in persons” shall mean therecruitment, transportation, transfer, harbouringor receipt of persons, by means of the threat or useof force or other forms of coercion, of abduction, offraud, of deception, of the abuse of power or of aposition of vulnerability or of the giving orreceiving of payments or benefits to achieve theconsent of a person having control over anotherperson, for the purpose of exploitation.Exploitation shall include, at a minimum, theexploitation of the prostitution of others or otherforms of sexual exploitation, forced labour orservices, slavery or practices similar to slavery,servitude or the removal of organs”8. The above definition links traditional offencesunder the Indian Penal Code to the compositeoffence of ‘trafficking in persons’ and thisinexorable link will put an additional burden onthe police to lodge an FIR and investigate it inaccordance with law. The above definition is alsopertinent because the nadir of an offence need notalways be in another offence. Phrases like ‘abuse ofpower or a position of vulnerability’ and ‘giving orreceiving benefits to achieve the consent of aperson having control of another person’ etc. areper se not offences in the eyes of our law. It istherefore imperative that these actions be linked tothe offence of ‘trafficking’ so as to make themculpable. This definition has been adopted in the110 Protocol To Prevent, Suppress And Punish Trafficking In Persons,Especially Women And Children, Supplementing The United NationsConvention Against Transnational Organized Crime, 2000http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_%20traff_eng.pdf (ratified by India in May,2011)164


Goa Children’s Act, 2003 111 which can also be usedas a template to evolve law in this area.9. In any event, we recommend that the definition of‘trafficking’ contained in the Palermo Protocolought to be adopted by the Legislature as adefinition of the offence in the Indian con<strong>text</strong>,since the lack of definition of trafficking and theineffective law enforcement in relation totrafficking and in particular the non-application ofthe provisions contained in the Indian Penal Codein relation to the same have actually madetrafficking a huge industry which has not beenbrought to any critical gaze of law enforcement forreasons already cited. We believe that in order toprotect the dignity of women in particular, it isnecessary that the definition of trafficking ascontained above must be incorporated as anindependent definition in the Penal Code as aseparate offence.10. The ITPA was enacted to bring into effect the “UNConvention For The Suppression Of The Traffic InPersons And Of The Exploitation Of The ProstitutionOf Others, 1950”. Moreover, it was aimed to giveeffect to the lofty Constitutional mandate in Article23. However, when we look at the provisions ofthe said Act, it appears to be an Act for theprevention of immoral traffic rather than dealingwith traffic itself. As noted above, the expression111 The Goa Children’s Act, 2003. Section 2(z):(z) “child trafficking” means the procurement, recruitment, transportation,transfer, harbouring or receipt of children legally or illegally, within oracross borders, by means of threat or use of force or other forms of coercion,of abduction, of fraud, of deception, of the abuse of power or of a position ofvulnerability or of giving or receiving payments or benefits to achieve theconsent of a person having control over another person, for monetary gainor otherwise.165


‘trafficking’ is not defined in the ITPA. We mayadd that there can be cases of children who aretrafficked, who are sexually assaulted, but yet arenot actually into prostitution. We further noticethat in cases of trafficking, at least the offenceswhich are cognate offences like Sections 366, 367,370, 372 and 373 of the IPC are vital provisionswhich are not relied upon when a case oftrafficking is brought to the attention of the police.Article 23 of the Constitution, which provides forprohibition of traffic in human beings and forcedlabour, clearly mandates that traffic in humanbeings, beggary and other similar forms of forcedlabour, are prohibited and any contravention ofthis provision shall be an offence punishable inaccordance with law.11. The ITPA defines a ‘trafficking police officer’ inSection 2(j)and prescribes a punishment (underSection 3) for keeping a brothel or allowingpremises to be used as a brothel and to furtherpunish for living on the earnings of prostitution.Section 5 provides that – (a) any person whoprocures or attempts to procure a person whetherwith or without his consent for the purpose ofprostitution or induces a person to go from anyplace with the intent that he may for the purposeof prostitution become the inmate of a frequentbrothel or takes or attempts to take a person orcauses a person to be taken from one place toanother with a view to his carrying on or beingbrought up to carry on prostitution or cause orinduces a person to carry on prostitution shall bepunishable on conviction with rigorousimprisonment for a term not less than 3 years andnot more than 7 years and also with fine which166


may extend to Rs.2000. Strangely, the saidprovision contains the following words:-“If any offence under this sub-section is committedagainst the will of any person, the punishment offeredfor a term of 7 years shall extend imprisonment for aterm of 14 years….”12. It is further provided that if the person, in respectof whom an offence committed under the subsection,is a child, the punishment provided underthis sub-section shall extend to a rigorousimprisonment for a term not less than 7 years butmay extend to life.13. To deliberate further, we should not lose track ofthe social realities which lead to women andchildren being pushed into these criminal rings.We should also not forget that controlling suchcrimes have great consequences on the survivors.As observed by the Supreme Court in the BachpanBachao Andolan 112 decision:“34. Trafficking in women and children has becomean increasingly lucrative business especially sincethe risk of being prosecuted is very low. Women andchildren do not usually come to the brothels on theirown will, but are brought through highly systematic,organised and illegal trafficking networks run byexperienced individuals who buy, transport and sellchildren into prostitution. Traffickers tend to workin groups and children being trafficked often changehands to ensure that neither the trafficker nor thechild gets caught during transit. Different groups oftraffickers include gang members, police, pimps andeven politicians, all working as a nexus. Traffickingnetworks are well organised and have linkages bothwithin the country and in the neighbouringcountries. Most traffickers are men. The role of112 Supra Note167


women in this business is restricted to recruitmentat the brothels.”14. Trafficking is a complex crime with innumerableconstituents. It is time we looked at acomprehensive code to deal with CSE as opposedto prostitution, which is traditionally viewed in theour society as ‘immoral’. We have been introducedto an elaborate study on ‘Trafficking of Women andChildren in India’ made by the Institute of SocialSciences under the auspices of NHRC andUNIFEM. This study has underlined that victimsof CSE are victims of rape 113 . The said study hashighlighted most of the areas of concern whiledealing with the crime of trafficking.15. What comes to the fore from these studies and thevarious recommendations we have received, apartfrom the oral interactions had by us, is that ourlaw has many effective provisions to deal withtrafficking. They are scattered in different statuteslike the ITPA, Juvenile Justice Act and the IPC.However, due to lack of synergies, theseprovisions remain underused and in many casesabused. Section 5 of the ITPA makes ‘procuring,inducing or taking a person for the sake ofprostitution’ as a punishable offence. However therecords show that this is one of the mostunderused provisions of the Act with an abysmalrate of prosecution and conviction. On the otherhand, one of the prime examples for the abuse oflaw is Section 8 of the same Act. The women andchildren who are subjected to the offences underthe Act are firstly ‘arrested’ as ‘prostitutes’. We areamazed at how young children and women who113 Trafficking in Women and Children in India, Shanker Sen & P.M. Nair(Ed), Orient Longman, 2005 at p. 303168


are supposed to be protected by the Act are‘arrested’ under the very same law. The result isthat women and children are arrested for the Actof ‘soliciting’ prostitution and prosecuted. This is atypical case of the survivor of an offence (weprefer the term to ‘victim’) ultimately becomes theconvict. We recommend that the law needs to besensitized and overhauled lest it degrades into atool to stigmatize girls and women for the rest oftheir lives.16. It has also been brought to our notice that the lackof an established protocol for verifying the age ofthe survivors leads to the exploitation of loopholesin the ITPA and Juvenile Justice Act. Thesurvivors, if they are below the age of 18 are sentto Child Welfare Committee (CWC) as prescribedin the Juvenile Justice Act. This could lead totheybeing taken away from the clutches of thecriminals. However since most of the traffickedpersons do not have adequate records to provetheir age, they are shown as adults using falsifieddocuments presented mostly by pimps andmiddlemen. It is shown from studies that in mostcases, the survivors are ‘bailed out’ by pimps andmiddlemen.17. A standardized protocol has to be put in placewhereby the age of survivors is objectivelyassessed by a body of experts using wellrecognized tests like the ossification test. We notewith concern that there appears to be a deeprooted nexus between some in the police force andcriminals, which has primarily led to the misuseand abuse of the law. The offence of trafficking ismuch more intricate and complex than traditionaloffences. The country needs a specialized police169


force to deal with trafficking since it has inter aliatrans-border connections as well. It is asophisticated crime which needs a specialised lawenforcement agency to tackle.18. We also perceive that a ‘prevention or conviction’approach will not solve the problem. One of us,while assisting the court as the Solicitor General ofIndia in Bachpan Bachao Andolan had theopportunity to present a detailed report to thecourt on issues of child trafficking in India. TheSupreme Court reaffirmed the submission of theSolicitor General that “rehabilitation will be themeasure of success of the Juvenile Justice Act” 114 . Theshelter homes/corrective institutions and CWCsshould perform the role of rehabilitating thesurvivors. They should not become breedinggrounds for future offences. It is of paramountimportance that the shelter homes and correctiveinstitutions are constantly monitored by anindependent body and reports are periodicallyassessed by the State governments.19. The recommendations given by the SolicitorGeneral have now become diktats of the court. Weare reproducing the suggestions given withrespect to the synergy of the ITPA and JuvenileJustice Act as part of our opinion in this regard:“38. The following directions are necessary:(a) Every Magistrate before whom a child isbrought must be conscious of the provisions ofthe Juvenile Justice (Care and Protection ofChildren) Act, 2000;(b) He must find out whether the child is belowthe age of 18 years;114 Supra note at p. 19170


(c) If it is so, he cannot be accused of an offenceunder Section 7 or 8 of ITPA;(d) The child will then have to be protectedunder Juvenile Justice Authority;(e) The Magistrate has a responsibility toascertain and confirm that the person producedbefore her or him is a child by accurate medicalexamination;(f) The definition of a child in Section 2(k) meansa juvenile or a child as a person who has notcompleted 18 years of age;(g) Once the age test is passed under Section17(2) establishes that the child is a child/minorless than 18 years of age, theMagistrate/Sessions Judge while framingcharges must also take into account whether anyoffence has been committed under Sections 342,366, 366-A, 366-B, 367, 368, 370, 371, 372,373, 375 and if so, he or she must also framecharges additionally;(h) The child should be considered as a child inthe protection of the Child Welfare Act;(i) The child should be handed over to the ChildWelfare Committee to take care of the child. Theperformance of the Child Welfare Committeesmust be reviewed by the High Court with acommittee of not less than three Hon'ble Judgesand two psychiatrists;(j) A child must not be charged with any offenceunder ITPA or IPC;(k) A minor trafficked victim must be classifiedas a child in need of care and protection.Further, the Magistrate must also order forintermediate custody of minor under Section17(3) of ITPA, 1956;(l) There should not be any joint proceedings of ajuvenile and a person who is not a juvenile onaccount of Section 18 of the Juvenile Justice(Care and Protection of Children) Act, 2000;171


(m) It is necessary that courts must be directedthat the same lawyer must not represent thetrafficker as well as the trafficked minor;(n) Evidence of child should be taken in camera.Courts must protect the dignity of children. Thechildren's best interest should be the priority.20. Even though under Section 22A of the ITPA, theState Governments have the power to set upSpecial Courts to deal with the offence oftrafficking, the said provision has not been utilizedoptimally by the States. As we had mentioned theneed for specialized investigating and prosecutingagencies, specialised courts are also required toeffectively deal with this complex crime.21. We have had the opportunity of meeting manychildren who have been subjected to the mostinhuman crime of trafficking. Many of them haveno recollection of their roots and have beensubjected to various other crimes on the way. Wereiterate the need for a comprehensive code to dealwith ‘Trafficking and Sexual Exploitation (bothcommercial and otherwise)’. This code ought to becomplemented with specialised judicialmechanism to prosecute offender while protectingthe survivors.22. At this juncture, we may note the desensitizationof the police that has taken place in such afundamental matter. We note that the police forceis unable to seriously view the offences oftrafficking and sexual abuse of trafficked womenand children is on account of three factors:-a) The members of the police force themselvesoften come from a society where patriarchalsuperiority is established;172


) Police is considered to be an expression ofpower and authority as distinguished fromservice and protection of the oppressed; andc) They are as much alive either in the form ofconnivance or in the trafficking of childrenincluding female children.23. The police are also aware that such female childrenare either used as domestic labour, open to sexualassault and sometimes sexually assault suchchildren. If trafficking in women is taking placewith the complete knowledge of the police, and afew rescue operations take place at the instance ofeither an NGO or the police but which rescueoperations do not actually cover the entire field oftrafficked children, it is clear to us that there is afundamental incompetence in the ability of thepolice to deal with rape cases.24. At our request, the Commissioner, Delhi Policesubmitted certain alarming facts in respect ofmissing children, by way of an affidavit. We werealso briefed by a Special Commissioner of Police,Delhi, who met with us during the course of ouroral consultations, that FIRs, in cases of missingchildren above 8 years of age, would be registeredonly after 24 hours after the children went missing.It is interesting to note that the analysis of reasonsfor missing children has been prepared on theinformation provided by the Delhi Legal ServicesAuthority. It is also interesting to note that therewere 3395 cases of missing children in 2011 and3519 cases in 2012.173


25. We have been informed by the Delhi Police that:-“viii. Investigation of cases of kidnapping related tomissing children was being hampered on account ofabsence of photographs of the children, particularlythose belonging to poor strata of society. To tackle theproblem, a scheme PEHCHAAN was launched in July2012 in which a photograph is taken of the entire familywith all children and a copy of the photograph is givento the family for record so that in case a child is reportedmissing, his/her photograph is available. This schemehas been implemented in areas where maximumchildren are reported missing. 64,055 children havebeen photographed under this scheme in various parts ofDelhi and beyond with initial focus on JJ clusters andrehabilitation colonies and a Police station wise database has been maintained.”26. We are uncomfortable with such photographsbeing taken and are unsure whether this can leadto sexual profiling. We have been further led tounderstand that, in a meeting held on June 21,2012 (prior to the present Commissioner being inplace), the Lt. Governor of Delhi asked for agender breakup of missing children. It is clear,therefore, that the State is <strong>full</strong>y aware of theproblem of missing children and its implications.We notice from the minutes of subsequent meetingheld on August 23, 2012 presided by Lt. Governor,that:-"Gender distribution of missing children be indicatedduring the next meeting. Causative factors behindmissing children be also depicted by pie chart....."27. We have also seen correspondence between theDelhi Police and the Director, Department ofWomen and Child Development, Government ofNCT of Delhi, wherein the Delhi Police has soughtthe following information:174


“How many cases of rape and other crimes againstwomen have been reported in the NCT wherein one ormore of the accused person(s) are staff of protectivehomes for women, or where the offence has taken placewithin the premises of a protective home for women forthe period 01.01.2007 to 31.12.2012. Data in respect ofeach such crime be provided separately.”28. We find that no reply has been made available bythe Delhi Government.29. During the course of our oral consultations,women’s organizations from Banda andSaharanpur in UP confirmed to us that the sale ofwomen and children is rampant in the outlyingareas of Saharanpur and in some areas of Bareilly.The Committee is unable to dismiss such reportsas it has received lateral information of sale ofwomen and children in a bazar near Saharanpur.Under these circumstances, it is clear thatsuccessive state governments of Uttar Pradeshhave obviously turned a blind eye to the issue oftrafficking.30. Our view has been corroborated by the CBI officerwho appeared before us during the oral hearing.He submitted that trafficking has been a persistentproblem since 1999. He also admitted that manyprocedural hitches including delayed registrationof complaints has hampered the attempts to curbthe menace. This is an important aberration whichmust be addressed by Parliament.31. We must also note, with some alarm, thesubmission made before us by the DirectorGeneral, Health Services (MoHFW), when askedby the Committee whether organs of accidentvictims were being illegally removed at the175


hospital taken by the police. He stated that thiswas indeed the case and hinted at the connivanceof the police.32. The Director, CBI, has also submitted that the CBIis aware of such kind of cases. We find, however,that no serious attempt has been made on the partof the CBI from 2007 till 2012 to investigate thesecases. We do note that on 27 th February 2012, acase of cheating and kidnapping of minor girls,who were wrong<strong>full</strong>y confined and sexuallyexploited under false promise of employment, wasregistered which is pending trial. We aresomewhat surprised however that the CBI has notgiven us details of any of the legal provisionsunder which this case has been registered.33. We notice that when cases are directed to beregistered under the orders of the High Court, theperformance of the CBI appears to be slightlybetter. We also understand that the CBI is awareabout the running of placement agencies as atrafficking racket. The CBI says that it hasdesignated one of its units as an Anti-HumanTrafficking Unit, but this unit has commencedfunctioning only with effect from 28 th February2012.34. Paragraphs 3.5 and 3.6 of the CBI (Crime) Manual2005 were brought to our notice, which deal withtrafficking of human beings:-“3.5 The Special Crimes Zones-I & II are organizedinto Branches/ Units having territorial jurisdictionover one or more States as well as CentralInvestigating Units having all-India jurisdiction.These Branches/Units take up collection of176


information and investigation of the following types ofcases: –…..(f) Global trafficking in human beings especiallywomen and children for various activities includingprostitution, child sex etc.……(h) Trade in human organs.3.6 The Special Crimes Division may also undertakethe task of collection, collation and dissemination ofinformation/intelligence in respect of organized gangsof criminals, terrorists, kidnapers/abductors,trafficking of human beings, especially women andchildren.”35. We are also informed by the Director, CBI, that theAHTU is being strengthened. We must say thatthe CBI has candidly admitted that no organisedgang has been apprehended by the CBI during theabove said period.36. On the issue of illegal extraction of organs, we findthat only three cases have been registered by theCBI - one is a case in the year 2007 against oneMahender Singh Goldi. The allegation was thatthe kidneys of boys and girls were being extractedand they were being sold by deceiving them.37. A charge sheet was filed against 9 persons and thecase is still pending at the stage of prosecutionevidence. In respect of a third complaint, a closurereport was filed. These three are enough for us toarouse a suspicion that there exists a huge racketof extraction and sale of human organs and inview of the statement made by the DirectorGeneral of Health Services and in the con<strong>text</strong> oftrafficking of children whose numbers are notavailable, we draw an adverse inference against all177


the State police departments, who have failed torespond to the data sheet which this Committeehad requested. We come to the conclusion thatthere appears to be organised networks and gangswhich are operating which through middlemenare inducing and abducting children includingfemale children and with the connivance of policeis actually selling them, abducting them,subjecting them to sexual assault and possiblyextraction of organs. Therefore the advisoryissued by the Ministry of Home Affairs dated 31stJanuary 2012 assumes special significance.38. When one looks at the ‘efforts’ undertaken by theexecutive, we have examined the Delhi Police’s‘Zipnet’ website which was set up in 2004 to act asa country-wide database for, inter alia, missingwomen and children. When Zipnet wasestablished, its objective was to have a nation-widenetwork / database by 2012 – i.e., all policestations in the country would be connected. Thishas, sadly, not been achieved.39. As we have noticed, there appears to be greatdifficulty in getting the correct numbers ofuntraced women and children. We must thereforelook at the figures with a certain degree ofsuspicion because there has been a lack of propereffort by the State and the law enforcementmachinery either to register cases or for that matterof fact have an exact number of missing womenand children. There is no correlation between thenumber of children who are missing and thenumber children who are traced and supposedlyrehabilitated.178


40. The failure of statutory authorities in seeking toprotect children is quite evident. The abject failureof the State to maintain proper protective homesfor distressed women and children - homes andshelters where women and children are treatedwith love and affection and where a conduciveclimate of counselling and motivation for a betterfuture is made available. If this failure is notremedied immediately, then such children andwomen might also not only slip back to crime, butthey would feel that society has cheated them.41. Trafficking is an organised crime but yet we arenot satisfied that traffickers are brought to book.Notwithstanding the very well-meaningpublications of UNODC as well as the provisionsof the ITPA, we do not find that StateGovernments have taken any synergistic steps.We also find that in spite of excellent resourcematerials, this has not weighed on the priority ofthe police. We are also of the view that eventhough the NHRC and the MHA have issuedcirculars and advisories (especially after the masskillings of children in Nithari village), theprovisions of registering complaints is not beingstrictly followed. It is clear to us that even thoughAnti-Human Trafficking Units have been set up inthe country we are surprised that such units havenot cracked any gangs and particularly gangs,which operate at a national and international level.We also must point out that human trafficking isno less a serious crime than drug trafficking.42. One of the representations submitted to thisCommittee claims that more than one lakhchildren in the country go missing each year. Weare unable to comment upon the correctness of this179


figure but we are also not able to dismiss it. Weare afraid that even though there are salutaryprovisions in the Juvenile Justice (Care andProtection) Act, 2000, they have not beenimplemented in the spirit for mainstreaming thechild into the society.43. In other words, children have not beenstrengthened and made confident to lead a normallife in conjunction with their parents and society.As per NCRB’s records, in the year 2009, 68,227children were missing, 77,133 were missing in 2010and 59,668 were missing in 2011. We also noticethat these figures exclude 5 States which are themost vulnerable States of trafficking. The dataseen by us does not indicate whether thosechildren who have been traced are the ones whichare missing.44. We must, at this stage, note that by way of a seriesof letters, we had requested, inter alia, details ofmissing children from the police departments ofall states and Union Territories. While only theDelhi Police acknowledged our request, we are notsatisfied with the figures furnished by it in respectof missing children.45. In view of the advisory issued by the of theMinistry of Home Affairs dated 31 st January2012 115 , there can be no doubt that Government ofIndia is completely cognizant of the seriousness ofthe problem but has been unable to crack it.115 Advisory on missing children-measures needed to prevent trafficking andtrace the children-regarding. Ministry of Home Affairs, Government ofIndia, Office Memorandum No. F.NO.15011/60/2011.180


46. It is pertinent to examine the <strong>text</strong> of the saidadvisory:“The issue of missing and untraced children, based onpolice records, is a matter of deep concern to theGovernment of India. It requires a concerted andsystematic attention of Central and State Governments.As missing children are exposed to high risk situations,they are vulnerable and fall prey to crimes ofexploitation, abuse, including human trafficking. It is,therefore, necessary that effective steps be taken forinvestigation of cases relating to missing children andtracing of these children. This advisory is incontinuation of the advisories dated 09.09.2009,14.7.2010 02.12.2011 and 4.1.2012 issued by thisMinistry to all the States / UTs on similar/relatedissues of crimes against children.… … …An officer not below the rank of a DIG should bedeclared Nodal Officer for every state/UT for handlingthe cases of missing children.Supervision of investigation of such cases by seniorpolice officers of the level of Dy.SP/Addl.SP may beensured.When, any heinous crime or organized crime onmissing children, such as, victims of rape, sexual abuse,child pornography, organ trade etc, is reported, andthen the investigation of such cases should be taken overby the CID of the States/UTs to expedite theinvestigation and to ensure prosecution of the offenders.State Crime branch should maintain close links withDistrict Missing Children Unit (DMCU) and ensurethat uploading of data and matching of missing childrenwith UIDBs/Children found is carried out effectively.The Missing Persons Squad (MPS) will match theinformation regarding missing children with the dataavailable with the MPS and if matched it should be181


communicated to the concerned police station.monthly report should be sent to DMCU.AWhen the missing person is traced through search orrescue from places of exploitation, the police controlroom, District Missing Persons Unit (DMPU) andMissing Persons Squad (MPS) should be informedimmediately for updating the record and fordiscontinuing the search.Whether these missing children land up in BeggingRings, Flesh Trade, Pedophilic Net and Organ Trade orend up getting exported for Camel Jockeying Etc., it isalways an Organised Crime. Profile of all traffickerswho facilitate such trafficking should be maintained atPS level in Gang Registers.The State CID should use data mining to analysepatterns, gather intelligence and to build profiles whichhave inter state ramifications, ascertain angles oftrafficking, organized crime, number age/sex profile andmaintain liaison with other central agencies dealingwith the matter.All police officers and men, especially the team ofofficers handling investigation into these cases need tobe trained and sensitized on an ongoing basis to theissues concerned. The issues of missing children,human trafficking along with JJ Act may be made partof syllabus in the state police training colleges tosensitize the police force. The training should focus onimparting knowledge of the substantial and procedurallaws, court rulings, administrative procedures, skills inchild-friendly investigations, including interviewing,interrogation, scientific data collection, presentation inthe court of law, networking with the prosecutors,facilitating victims/witness protection programmes etc.As there is considerable overlap in the problems ofmissing children and trafficked children, AHTUsshould play an active role.182


The Superintendent of Police in the districts andCommissioners of Police in the metropolitan areasshould review each case of missing children/personsduring their monthly crime review meetings to find outthe actual number of missing children, number ofchildren traced/untraced, children, the reasons for childdisappearance/missing and its links to humantrafficking and to take stringent action against theperpetrators of the crime. They should also take strongmeasures for successful prosecution of the offenders inthe court of law.In cases where children and women have been smuggledillegally out of the country, the investigation agenciesshould utilize Interpol channels to communicate withmember countries and if need be, have appropriateInterpol Notices issued through CBI/Interpol wing, inorder to trace the victims.An exercise to check all the unclaimed and unidentifiedchildren who are kept under safe custody in variousshelter homes of the government/non-governmentalagencies may be undertaken and details may be matchedwith the available missing children data base in thecountry as most of the children lodged in these shelterhomes are indeed missing children. Missing PersonsBureau in the state should have a centralized data onchildren lodged in these shelter homes run by thegovernment/non-governmental agencies in the statewith mechanism to update the data on regular basis.This data along with the photographs of the childrenshould be digitized and regularly sent to NCRB andNCRB will upload this data in their websitewww.ncrb.gov.in for pan-India search by other statepolice/stake holders.A number of children reportedly die afterdisappearance/missing and their dead bodiesremain unidentified. States/UTs should alsoconsider making it mandatory for theinvestigating officers and provide the necessaryinfrastructure to have the DNA profiling of allsuch unidentified dead bodies for futurecomparison and identification. DNA profile of the183


nearest blood relative through informed consentshould be done if child is not found for 3 months.Both the DNA data base may be maintained at thestate MPS for future comparison and matching.Similarly, in order to curtail offences of child sex abuse,in all cases of pornography, cyber crimes etc. underinvestigation, efforts should be made to correlate thepictures of the child with the details of missing childrenand vice-versa.The data available in each missing children file shouldbe uploaded to the computer maintained at the policestation for this purpose. It will be the responsibility ofeach I.O. to ensure that efforts made towards tracingthe missing children is also uploaded on the computer,which would be linked to national database and viaCCTNS, eventually. CCTNS should update itpromptly on the proposed ‘Khoya Bachpan’ website.The SHO/Inspector of the police station will ensure thatthe computerized record of missing children ismaintained up-to-date and the same is sent to DCRBand from there to SCRB. The State and District/Citypolice Control Room/local Police net, ZIP NET,www.trackthemissingchild.gov.in should be updatedimmediately. It would be useful to access data onmissing children through other websites maintained bywww.childlineindia.org.in and www.stoptrafficking.into mention a few.NCRB is mandated to function as a national repositoryof crime and criminal related data in the country andthe States /UTs should evolve a mechanism to share thedata on missing children and human trafficking cases toNCRB in the prescribed proforma of NCRB on monthlybasis for analysis and study to find the emerging trendsin these sensitive issues.NCRB should device methods of uploading the data on areal-time basis not only of missing persons but alsowith respect to traced and un-traced persons as well aslinking the database with those of rescued persons from184


different places including children rescued fromexploitative or forced labour.The universal number 1098 for reporting of missingchildren 24x7 is being run in some States / UTs, butthere is no uniformity. It needs to be made effective andoperational if not done earlier. There should be at leastone dedicated police personnel at this helpline on 24x7basis with proper monitoring mechanism. In themeantime BPR&D would explore further possibilities ofintegrating 1098 with 100 to make it toll free.Responsible and competent NGOs be earmarked asNodal NGOs in States for assisting the lawenforcement agencies in this regard. The NGOs whohave done work in this field with commitment besupported by the law enforcement agencies and synergybe established so that they could work in tandem.When training the police, they must be oriented toundertake all preventive steps including steps toidentify children in distress, watch of suspiciouspersons, special attention at transit points viz. borderareas, ICPs, railway stations, bus stations, airports,ports etc., identify vulnerable population/places andtake steps to address the vulnerability on time.BSF/ITBP/SSB personnel in outposts on borders shouldbe trained to look-out for trafficked children on theborders. They should be sensitized to question anddetect unaccompanied minors/children oraccompanying adults with suspicious behaviour duringpursuant checking of vehicles/public transport.The law enforcement agencies may involverepresentatives of Panchayati Raj Institutions and thecommunity at large, such as, Village Watch & ward/MunicipalCommittees/NeighbourhoodCommittees/Resident Welfare Associations etc.. Thiswill enable the community to get <strong>full</strong>y involved alongwith the administration/police in identification, tracing& recovery of missing and trafficked children and arrestof accused persons.185


Community awareness programmes on the issue ofmissing children and its links with human traffickingmay be undertaken by the District administration.Periodic interface with Public and Safety AwarenessCampaign should be conducted in schools andvulnerable areas, jointly by the district administration.Schools must be encouraged to issue Identity cards tochildren.The activities of various departments and agencies inthe States /UTs need to be integrated through a nodalagency. These includes Home Department, PoliceDepartment, Social Welfare Department, Women andChild Welfare Department, Juvenile JusticeDepartment, Child Welfare Committees, LabourDepartment, Health Department, Tourism Departmentas well as other agencies like State Human RightsCommission, State Women’s Commission, StateCommission for Child Rights, Railways, RPF, BSF,SSB, ITBP etc. State governments may institutionalizea coordinating mechanism among all these agenciesthrough an SOP clearly mandating the roles andresponsibilities of each of these agencies.In places, where vulnerable groups of children are foundin large numbers, a mechanism should be evolved inpartnership with NGOs and social workers, where byapart from rendering counseling to them, awarenessraisingactivities are also carried out.The protocols and SOPs developed by UNODC in theJoint Project of MHA-UNODC, during 2006-2008,including protocol on interstate transfer of rescuedvictims may be effectively utilized (refer www.unodc.org/india).”47. A Standard Operating Procedure for dealing withcases of missing and found children appears tohave been issued by the Commissioner of Policeon 19th May 2011. In fact, the Standard OperatingProcedure is rather long and one can easily seethat the purpose of such a detailed procedure is186


only to make sure that no officer will be able tounderstand the steps nor will he be able toeffectively ensure compliance with the same.48. In fact, we also take note of the fact that onSeptember 16, 2009, the Delhi High Court on itsown Motion 116 has taken suo motu cognizancepertaining to missing children. One of the firstdirections is that Delhi Police will, without anydelay, register all complaints of missing childrenas FIRs and that the Delhi Police will strictlyfollow the Supreme Court’s directions in Horilal.We also understand that the Supreme Court, onJanuary 17, 2013, has directed police stationsacross the country to compulsorily register missingcomplaints of any minor and appoint a specialpolice officer to handle complaints of juveniles.Such police personnel should be stationed at everypolice station in plain clothes.49. We may now add that in Bachpan Bachao Andolanetc. v. Union of India etc 117 . the issue arose in thecon<strong>text</strong> of trafficking of missing children for thepurpose of forced labour and placing them withplacement agencies. The Delhi High Court’sfollowing observations in this con<strong>text</strong> are relevant:“17. Trafficking in women and children is thegravest form of abuse and exploitation of humanbeings. Thousands of Indians are traffickedeveryday to some destination or the other and areforced to lead lives of slavery. They are forced tosurvive in brothels, factories, guesthouses, dancebars, farms and even in the homes of well-offIndians, with no control over their bodies and lives.116 Writ Petition (Crl) No. 249/2009 – Court on its own Motion v. State.117 Judgment dated December 24, 2010 in Writ Petition (Crl.) No. 82 /2009.187


The Indian Constitution specifically bans thetrafficking of persons. Article 23 & others in theFundamental Rights, Part III of the Constitution,prohibits “traffic in human beings and other similarforms of forced labour”. Though there is no concretedefinition of trafficking, it could be said thattrafficking necessarily involvesmovement/transportation, of a person by means ofcoercion or deceit, and consequent exploitationleading to commercialization. The abusers,including the traffickers, the recruiters, thetransporters, the sellers, the buyers, the end-usersetc., exploit the vulnerability of the trafficked person.Trafficking shows phenomenal increase withglobalization. Increasing profit with little or no risk,organized activities, low priority in law enforcementetc., aggravate the situation. The income generatedby trafficking is comparable to the money generatedthrough trafficking in arms and drugs. Traffickingin human beings take place for the purpose ofexploitation which in general could be categorized as(a) Sex based and (b) Non-sex-based. The formercategory includes trafficking for prostitution,Commercial sexual abuse, paedophilia, pornography,cyber-sex, and different types of disguised sexualexploitation that take place in some of the massageparlours, beauty parlours, bars, and othermanifestations like call girl racket, friendship clubs,etc. Non sex based trafficking could be for differenttypes of servitude, like domestic labour, industriallabour, adoption, organ transplant, camel racing,marriage related rackets etc. But the growingtrafficking in women is principally for the purpose ofprostitution. Prostitution is an internationalproblem. However, we are aware of the fact that it islegalized in many countries around the globe.Unfortunately, society remains tolerant of thisabominable crime against women. There areassorted ways of getting women into prostitutionthat are common to many countries; then there areparticular unique methods varies to a country.Probably, the three most common methods are falseemployment promises, false marriages andkidnapping. But what makes women and girls188


vulnerable are economic distress, desertion by theirspouses, sexually exploitative social customs andfamily traditions. In a recent survey in India,prostituted women cited the following reasons fortheir remaining in the trade, reasons that have beenechoed in all the concerned countries. In descendingorder of significance, they are: poverty andunemployment; lack of proper reintegration services,lack of options; stigma and adverse social attitudes;family expectations and pressure; resignation andacclimatization to the lifestyle. The two principalIndian laws that addresses the trafficking andprostitution in particular are the Suppression ofImmoral Traffic in Women and Girls Act, 1956(SITA) and the Immoral Traffic (Prevention) Act,1986 (ITPA), colloquially called PITA, andamendment to SITA. Neither law prohibitsprostitution per se, but both forbids commercializedvice and soliciting.”50. It was further observed as follows:-“The main concern of all the counsel in these writpetitions was that there was no comprehensivelegislation regulating the placement agencies to takecare of the menace. On the other hand, there weremultiple statutes and authorities under those statutesand the challenge was as to how to achieve thecoordination to remove/disconnect them. It would beof use to mention that this has been the focus of thevarious proceedings in these writ petitions anddirections were given from time to time. Though, it isnot necessary to take note of all those orders, some ofthe important orders and directions passed in all theseproceedings from time to time need a look, as thatwould pave the way for final direction, which wepropose to issue in this order. In the order dated04.10.2004, this Court had highlighted two issues,which arise in these writ petitions, viz., tracing andproduction of children on the one hand andfunctioning of different placement agencies working inNCT of Delhi on the other hand. However, directionswere given to the Government of NCT, Delhi by that189


order, to provide framework within which theplacement agencies could be regulated andmonitored.”51. The manner in which the Juvenile Justice Act hasbeen implemented shows a complete failure of theState. It shows apathy but perhaps moreimportantly it shows vested interests. This is amatter of serious concern. We are informed thatthe Principal Magistrate, Juvenile Justice Board,has actually passed orders to segregate juvenileson the basis of age to ensure that younger juvenileswere tender and impressionable minds are notmistreated and are kept away from elder juveniles.We are also given to understand that it has beenobserved that:-"No constructive occupational training or schedule hasbeen formulated or are being followed, rather the factthat they are able to move out of the protective custodyof the observation home, at will, shows juveniles areprone to outside influence and are easy targets for thosewho may want to manipulate them. It is submitted thata constructive and productive role which the institutionis required to play is possible only if the provisions ofthe JJ Act 2000 and Rules framed thereunder arefollowed by the Department of Social Welfare increating requisite infrastructure and institutions inaccordance with Acts and Rules for the administrationof juvenile justice." 11852. We have also examined orders passed by theJuvenile Justice Boards in various matters. One ofthese orders is extracted below, which clearly setsout the hostile atmosphere which seems to becommonplace in juvenile homes in the country:118 CITE190


“Facts 119The child was produced before the Board on 23.8.2010along with Ms. Nandini of SAFMA and Mr. Anant K.Asthana, advocate from DLSA.The child made a complaint in the Board that he wasgiven beatings by the elder children inside the home.He said that he has not reported this to Superintendentof the Home, accordingly it was deemed fit to apprisethe Superintendent of the situation and to ask him tofile a report. What happened thereafter was in factbeyond the comprehension of the Board. Child appearedbefore the Board on 25.8.2010 and report ofSuperintendent was also received. The report ofsuperintendent is reiterated, as its contents areimportant in explaining the conduct/language used bythe juvenile in the Board and Chamber.Report:“With due respect, I would like to inform your goodselfthat juvenile Deepak is living in child friendlyenvironment and enjoying his life at PrayasObservation Home, Delhi Gate. He has gained 10 kgweight in a month. As per the Juvenile he told lie torelease. No elder children tease him and beat him. Weare providing due care, guidance and supervision for hiscomplete development. In future I will take care of thischild.”… … …There was something wrong. The body languageof the boy was betraying the utterance and heseemed terrified. He was called in the chamber. Hewas asked to tell the truth. The child put all his powerto control his emotions and pain and kept on repeatingthat nothing in fact had happened, no one had beaten119 FIR No. 89 of 2010, PS Swaroop Nagar, u/s 380/411/34 IPC –before the Juvenile Justice Board I, Sewa Kutir Complex, KingswayCamp: Presided over by Ms. Anuradha Shukla, Principal Magistrate191


him. He was 30 kg of weight when he came to theHome and weighs 40 kg now.There was still something that the child was trying tohide and terror and tension were apparent in his eyes.We talked and talked and the child, as he is – brokendown.He said that initially he was beaten by a childwho is in custody in a case of murder, Bhaiya,however, blamed him as he had bit the boy (whohad beaten him) in hand to save himself frombeing suffocated. He got serious injuries in hisribs.Thereafter he explained the incident that took place afterhe had made the complaint in the Board (regarding thebeatings given by the other/elder children). He saysthat when he went from the Board to the home, thepaper (order of the Board) was given to Kale WaleBhaiya. He went to the room and started playingcarom. Bhaiya came there; he showed the paper toeverybody and read it over loudly. Then Bhaiya beathim. Bhaiya put his head between the legs and hit onhis head by elbow. The boy was told that if hewould say anything against him (bhaiya) theother boys (co-inmates) will not spare him.Thereafter all the children kept on beating himeven after Bhaiya left. Child was made to rub hisnose in front of Bhaiya and was made to seek apology.He was apologised but on the condition that he wouldsay before the Board as was told to him and the poor boydid the same.There is an observation in the board proceedings dated25.08.2010 that the child had a swollen hand (right), hecould not move his third finger. He says he hadbandage over the hands, which were removed in themorning. He has marks of beatings on his back.… … …The entire law of Juvenile justice is aimed at providing“CARE AND PROTECTION” to the children whether192


it be a child in conflict with law or a neglected child inneed of care and protection, and the law definitely is nottalking about the kind of care and protection which hasbeen given to this particular child in the instant matter.The fundamental rights of the juvenile have beenviolated and brutally so.It is worth consideration that whatever be theadministrative set up for keeping a child in protectivecustody / understanding / memorandum between thegovernment and the non governmental authorities(Prayas in the instant matter), each child is kept underthe protective custody by the order of the board. He isin de-jure custody of the board and the ultimateresponsibility of his care and protection is of none otherthan board, logically also because he has been kept therebecause the Board wanted him to be kept there. Theboard feels ashamed in having failed to ensure the safetyand the protection of the child.The manner in which the child has been dealt withcannot be tolerated for an adult person; he is a small boywho has seen enough sufferings in his small life.The child lost his mother at an early age, his father is adrunkard and does not bother where and how his childis surviving. His elder brother is missing for more thana year and there are allegations of he having beenmurdered – the investigation is going on.As if this all was not sufficient, the child has been giventhis ghastly treatment by none other than the person,who was supposed to be his protector under the law.There is no reason with us to believe that the childwould have given a false statement. The injuries on hisbody were apparent and an observation to the effect hascome in the proceedings dated 23-08-2010. There is noreason why the Board should tolerate this brutal acteither.We feel guilty of betraying the faith of the child,which he showed in us when we told him that he193


is not safe outside and so we are taking him incustody – our custody – protective custody.It is pertinent to note that a child is kept in anobservation home, or for that reason in any institution,not as a mark of punishment but for his own protectionand only if it is in his interest.Keeping a child in protective custody and givinghim this kind of treatment is a crime and the lawproclaims so under Section 23 of the JUVENILEJUSTICE (Care and Protection of Children) ACT,2000 (herein after referred to as the JJ ACT).”53. We are of the opinion that there has been a failureto create the requisite infrastructure which wouldhelp children to be reintegrated into society. Thepriority for making these high quality institutionsso that de facto inequality can be cured, has beencompletely overlooked by all concerned.54. We also notice that in a Vision Document on ChildRights 2012-2013 has been under the aegis of theAssam State Legal Services Authority.55. It is atrocious that juveniles were being lodged enmasse in jails. The Delhi High Court in Court on itsown Motion v. Department of Women and ChildDevelopment 120 , by an order dated 11th May 2012held that the same violated Article 21 of theConstitution. It is strange that without sendingthem to the juvenile home, they were taken toTihar Jail. It is clear that a number of directionsare being passed by the Courts but we are unableto see any perceptible change.120 Writ Petition (C) No. 8889/2011.194


56. In a case involving sanction for prosecutionagainst physical and sexual abuse in custody (Statev. Rameez), Muralidhar, J. observed as follows:-“7. This Court has failed to understand how theState could be a prejudiced in any manner by theorder dated 30 th November 2005 passed by thelearned Principal Magistrate, JJB whereby itsattention has been drawn to the commission ofcognizable offences by policemen of P.S.NewUsmanpur. The said order describes in some detailthe statements made by the four juveniles whichprima facie show that serious crimes have beencommitted by the said policemen against the fourrespondents who were in their custody. Is the Statesuggesting that no policeman can even be accused ofcommitting a custodial offence? Is it completelyidentifying itself with the suspects, to the extent itwill seek to challenge any order that directs that theallegations made against them for commission ofserious crimes against children should beinvestigated? Can this Court be unmindful of theincreasing instances of custodial crimes committedby the uniformed gentry which have beendocumented in detail in the reports of the NationalHuman Rights Commission over the past fifteenyears?8. In our system of criminal justice, the victims ofcrime trust our police to undertake a fairinvestigation and the State to prosecute the offenders.Therefore, in most criminal cases involving trial ofcognizable offences there are only two parties: theState and the accused. The victims are participantsin the trial only as witnesses. The trust reposed inthe State that it will prosecute the offenders willstand betrayed if the State begins to identify itselfwith the accused and seek to defend them to theextent it will not even allow a case to be registeredagainst them. The State in this case is doing preciselythis. What is really disturbing is that it is in theprocess trying to shield policemen who are expectedto be the enforcers of the law, the State is forgettingthat there are several provisions in the Indian Penal195


Code (IPC) to deal with the offence of custodialviolence. It is policemen who are invariably theaccused when such offences are committed. And it isthe State that has to be the prosecutor. It isincomprehensible that where policemen are accusedof sexually abusing the children arrested by them andkept in police custody, the prosecuting agency (theState) will actually step into the shoes of thepolicemen and challenge the order of a court askingthat a case be registered and the crime investigated. Ifthis were to be permitted it would be a sad day for therule of law as it militates against the scheme ofcriminal justice where trust is reposed by victims inthe State that it will the prosecute the perpetrators ofcrimes even if, and perhaps particularly if, they arepolicemen.”57. We think that the above leaves us in no doubt ofthe sheer abuse of these institutions. In view of theabove, we recommend that in each of the States, allthe children homes, observation homes, juvenilehomes and women's protective homes be placedunder the legal guardianship of the High Court.We would also suggest that a Committee of Judgesbe formed which could undertake surpriseinspections to make sure that the children areliving in a healthy atmosphere. The saidCommittee of Judges may also constitute a Boardof psychiatrists who would prescribe detailedpsychotherapy for the children. Thereafter,aptitudinal tests must be undertaken and thechildren must also be reintegrated with theirfamilies on the one hand, and normal educationalpossibilities for mainstreaming should be madeavailable.58. We are of the view that it is be duty of the State toprovide education free of charge uptoundergraduate level for all children in need of careand protection and also with those who are in196


conflict with law who come in these institutions.We are also of the opinion that women inprotective homes must be given therapy and theymust also be made to lead a useful life and theremust be new projects which should be devised sothat their self-worth and self-esteem can grow upand they can be again mainstreamed into society.59. We think only judiciary can give "ummeed", anexpression which a trafficked (and then rescued)child, which we met with, said that he would likethe name of his organisation for street children tobear that name. He is a child who has seen theatrocities of life and described them to us. Whenwe asked him, what he would like to do, he said,just as he was rescued by well-meaning socialactivists, he too would like to run an NGO forstreet children in the Jama Masjid area.60. Similarly, we recommend that all homes forchildren with disabilities should be registered withthe Registrar of the High Court. They should alsobe kept under the guardianship of the High Courtand will ensure that special facilities are providedto these persons with disabilities by the State or bythe institution under whose care they have beenlodged.61. We are also of the opinion that all the women'sprotective homes must not be the erstwhile naariniketanmodel but must actually be modernised,psychologically revolutionised, and useful homesof productivity. We are also of the opinion thatwidows' homes in Vridavan, Mathura and Banarasbe also revamped and structural changes be made197


and they should be under the legal guardianshipof the High Court. It is necessary that widowsmust not be viewed with suspicion and must notbe disempowered in our society. They too need tobe brought into the mainstream. We all are nowconcerned about the mentally ill persons includingwomen, who are institutionalised.62. We are sorry to say that even the corporates haveto understand that India is not a land of sweatshops.We also want to make it clear that theworld must not consider India as a place wherechildren can be used for the purpose of cheaplabour and which labour will maximise in profitsof investors. India i.e. Bharat, is the Union ofStates and consists of its children and those underprivileged children for whom the founding fathersof the Constitution have enacted a Constitution.63. We also recommend that in order to havecomplete figures of all missing children, everyDistrict Magistrate in the country report with thehelp of all his officers, supervised by a judicialofficer to the High Court the total number ofmissing children in every District. Thereafter, theFIR should be registered. The High Court shallmonitor the investigation of all these cases.64. To conclude, we cannot be ignorant about theinstitutional apathy shown towards survivors ofsuch heinous crimes. We would like to reiteratethe observation made by one of us in the reportsubmitted to the Supreme Court while acting asthe Commissioner appointed by the Court in thecase of Sheela Barse v. Union of India 121 :121 Report of Commissioner Appointed by the Hon'ble SupremeCourt of India vide order dated 13.5.1994 in Writ Petition198


“A disturbing nexus between the judiciary, thepolice and the Administration has come to light.Administrative apathy, authoritarian excesses andjudicial connivance has led to a most shocking stateof affairs negating the very basis of the existence ofhuman life and democratic safeguards enshrined inthe Constitution of India”.65. The said observation holds true in the presentsituation as well and needs immediate cleansingand rectification.66. As noticed above, the ITPA does not achieve theobjective it is meant to achieve, primarily since itdoes not define ‘trafficking’, and is hence reducedto a legislation dealing with prostitution. Thisglaring vacuum has also been noticed by theNHRC, which has observed as follows:“The Immoral Traffic (Prevention) Act, 1956(ITPA), initially enacted as the ‘Suppression ofImmoral Traffic in Women and Girls Act, 1956, is themain legislative tool for preventing and combatingtrafficking in human beings in India. However, tilldate, its prime objective has been to inhibit/abolishtraffic in women and girls for the purpose ofprostitution as an organized means of living. The Actcriminalizes the procurers, traffickers and profiteers ofthe trade but in no way does it define ‘trafficking’ per sein human beings.” 12267. We recommend that in place of the existingSection 370 of the IPC, a new section be inserted,which defines and comprehensively criminalisestrafficking, which we have recommended later.(Criminal) No. 237 of 1989 Sheela Barse Vs. Union of India AndAnother122 Integrated Plan of Action to Prevent and Combat Human Traffickingwith Special Focus on Children and Women. NHRC,http://nhrc.nic.in/women_child_issues.htm199


CHAPTER SEVENCHILD SEXUAL ABUSE“One child goes missing every eight minutes in ourcountry or seven children every hour. 331 children wentmissing in India’s capital between 1 st June and 18 th July2011 according to the Zonal Integrated PeaceNetwork.” 1231. This, according to us, is a shocking state of affairs.We must understand that if children can betrafficked, it sets the climate for “a rape culture”.The Committee believes, on the basis of evidencereceived, that police officers, if not complicit, at leastare negligent in preventing trafficking in children.The trafficking of women and children is a failure ofgovernance. The victims of trafficking are easy preyto sexual violence at the hands of bad characterswith, at times, the help of a conniving policeman.The Committee reiterates that without a proactivepolitical crusade against the real problems of lifesuch as impoverishment, nutrition, child abuse, lackof physical protection, destitution, lack of accesseducation and corruption, it will be difficult toprovide sustained secured spaces for women andchildren.2. It is rather unfortunate that a schism of two Indias –one for the rich and one for the impoverished – haveemerged. The country-wide protest after the recentDelhi gang-rape, led by the country’s youth whobraved the cold and physical injury, is a reflection of123 MISSING CHILDREN OF INDIA: A PIONEERING STUDY BY BACHPANBACHAO ANDOLAN (VITASTA, 2012), preface. We are given tounderstand that this as a conservative figure because the figures aredependent on reporting and recording of the FIR which is oftenavoided.200


the conscience of ‘We, the People’. In our view, this isa wakeup call for all national institutions ofgovernance to ensure the faithful performance ofthe constitutional mandate The Government figuresshow that complaints for 117,000 missing childrenwere received in last two years, but only 16,000 FIRswere eventually registered under the category ofkidnapping. 124 As per the NCRB Report, 2011, anincrease of 122.2% has been observed in such cases(80 cases were reported during the year 2011 ascompared to 36 cases in 2010). 1253. On August 8, 2012, in respect of a query raised byMr. Dhiraj Prasad Sahu, MP (Rajya Sabha), theMinistry of Home Affairs had provided data, whichwas tabled before the Parliament. In the saidresponse, which is based on (conservative) dataavailable with NCRB between 2009 and 2011,2,05,028 children were reported to be missing. Outof the said number, 140978 children are claimed tohave been traced whereas 64,050 are claimed to beuntraced. The datasheet provided to the Parliamentdoes not appear to contain the number of missingchildren in respect of the following states: Bihar(2010), Goa (2010 & 2011), Jammu & Kashmir (2010& 2011), Jharkhand (2009, 2010 &2011), Maharashtra (2011), Meghalaya (2010),Odisha (2011), Punjab (2011), Tripura (2009) andUttar Pradesh (2010). Thus, the data is incompleteand unreliable to say the least. The responseprovided to the Parliament is further caveated bythe following statement: "However, data regardingnumber of children handed over to their families is notmaintained centrally by National Crime Records124 Id.125 Report of National Crime Records Bureau 2011, page 100.201


Bureau", and thus, we are unable to understand thatthe true import of the word "traced" in thedatasheet.4. We also notice that a question had been put up byMr. Bijayant Panda and Mr. Rajaiah Siricilla onAugust 2, 2012 in respect of "the details of humantrafficking rackets busted including rackets of traffickingof women and children and cases registered in thisregard..." We have not come across any answer tothe said question.5. The Committee takes note that the afore-statedstatistics reveal (i) the minimalistic approach of theState to establish and fund child protection homes,and (ii) that Integrated Child Protection Schemeshave clearly failed to achieve their avowedobjective. The Committee is aware that there is norecourse available to the children who manage toescape from physically and mentally debilitatingenvironment of child protection homes, and if theyapproach the law enforcement agency, they areagain sent back to the same protection homewherefrom they escaped.6. While we have come across isolated instances wherequantitative questions have been asked by membersof Parliament in Lok Sabha in this regard, theCommittee has not been able to find any concreteresponse from the Government in the minutes ofParliamentary proceedings. In fact, the Committeehas been unable to get satisfactory responses to thequantitative/statistical queries raised by it in thisregard.202


7. The Committee is distressed to infer that the Statehas failed to treat the symptoms as well as themalady on account of the apathy towards womenand children for the amelioration of theirconstitutional rights of safety and protection againstsexual abuse. Sadly, the apathy of the politicalexecutive has been transmitted also to thebureaucracy, for which this issue holds a lowpriority as well.8. The Committee is horrified at the plight of India’smissing children. The constitutional philosophy ofdistributive justice requires the economic growth tobe qualitative as well as quantitative, for whichnational and regional policies must be adequate.The media is obligated to focus attention on thedisparities and deprivations of large sections of theIndian people to motivate good governance. Thiseffort also seems to be lacking.9. We note, with much despair, that in many cases achild is subjected to sexual abuse in his/her home.We are also deeply concerned at the failure of theState to prevent and prosecute cases of child abuse,which take place in institutions of care and custodypatronized by the State. We believe fundamentalrights must not be ignored by the State on aspecious argument of paucity of resources, whenthe rich continue to thrive and wasteful expenditureof public monies is more than evident. In fact, theprovision of Article 15(3) of the Constitution, beingan enabling provision, is a clear indication of theobligation of the State to adopt and strictly enforcepreferential measures in relation to matters affectingwomen and children.203


10. It is clear that such children, who are the victims ofabuse, will require psychotherapy of a high order toprogressively boost their confidence to take theirplace as members of society. There is no significantdata pertaining to rehabilitation of children injuvenile justice homes. An audit of the quality ofrehabilitation of such children is imperative. Therealso appears to be some nexus between organizedcrime syndicates involved in trafficking of womenand children and the law enforcement machinery ofthe country, which facilitates the crime 126 . Thisnexus needs to be broken forthwith, and we areconcerned whether juvenile homes which serve assmoke screens and as a forum for legitimating forsuch purposes.11. The National Commission for Protection of ChildRights had done an inspection on a Children ShelterHome in Rohtak called ‘Apna Ghar’ run by theBharat Vikas Sangh. To support our conclusion thatthe definition of a ‘home’ must be re-visited in theJuvenile Justice Act and that the duties of the Statemust be clearly outlined and until all infrastructurefor taking forward the home in the true way is donethe homes must be under the local guardianship ofthe Court, we are discussing the report.12. On 9 th May, 2012 at 3:00pm, the in-charge of ChildLine, Meerut visited the Commission’s office todiscuss certain issues. It seems that three girls hadrun away from one shelter home in Rohtak andcontacted Child Line, Delhi. Child Line was to126 Haryana cops raped us – Children’s home inmates: Indian Express,Chandigarh, June 6, 2012. See also On the Spot Visit Report – “BharatVikas Sangh” run “Apna Ghar” Children’s Shelter Home in Rohtak – Acase of Protector turning Predator, National Commission for Protectionof Child Rights, June 2012(http://www.ncpcr.gov.in/publications_reports.htm)204


present the girls then placed with Rose home inDwarka, Delhi, before CWC.13. The members of the Commission recorded thestatements of the three girls. On hearing thestatements, the members went to Rohtak. The ApnaGhar houses Nari Sadan, Swadhar - shelter home forwomen, home for runaway couples, home formentally challenged women and children.14. The team reached the place at 8:30 p.m. The teamwas surprised to note that a police official, one SubInspector Bhim Singh Ranga, SHO, Gandhi Campwas sitting with the owner-cum-director of theHome Ms. Jaswanti. The police official informedthat he was present to collect the photographs of thethree girls reported to have escaped from the hometwo days ago for which Jaswanti had lodged acomplaint with the police station.15. The NCPCR team visiting the said home wasshocked to note that the children who weresupposed to be housed in the building were forcedto work as construction workers and were made tosteal bricks from various other construction sitesduring night time. The children white-washed andpainted the entire building. It had a small courtyardand no playing area. The children were not allowedto venture out of the complex. The children werenot allowed to go out for the formal day school anda few children sponsored by the citizens werewithdrawn from the school by the director. Upon aninquiry being made, the director of the home statedthat the atmosphere in the neighbourhood school205


was not conducive and corrupted the mind ofyoung children.16. We are shocked to note that the state is notinformed of any constitutional aspirations. It isindeed interesting to note that the visitors’ bookrevealed that the Dy. Commissioner, JudicialMagistrate, Sub Divisional Magistrates, Officers ofWCD had visited the place. The judicial magistratesdo not appear to have interacted with the childrento get a feedback on the ground reality and thetreatment meted out to the children.17. The presence of Sub Inspector Bhim Singh Ranga ofGandhi Camp raised doubts. It was clear that thereis a close relationship between him and directorJaswanti. The Report further States that:“They would get only daliya or daal and rice every dayto eat. Only when some dignitary or celebrity was tovisit the home, kheer, poori-sabzi or roti daal would beserved. A set of second hand used clothes was given tochildren once in a year. Fresh clothes were providedonly when some dignitary or celebrity was to visit thehome. Cots, beddings were not provided and theinmates were forced to sleep together in a huddledmanner. Even during the winter time, the inmateswere not provided with proper warm clothes. Onlybare minimum could be provided. One common towelwas used by a group of children. Provision of soapcase, oil, tooth paste, tooth brush was regarded as aluxury not generally made available.”18. The Committee noticed the following livingconditions revealed by the inmates:“Living Conditions as revealed by the inmates206


• The children were not allowed to venture out ofthe Home and were treated as captive all thetime.• Medical attention was provided by a privatedoctor who would not write a prescription, butjust give the medicine. ADC cross checkedwith the doctor referred by the DirectorJaswanti who denied that Jaswanti would everbring children to him for treatment.• Children were forced to live together with thementally challenged women, where as theyneeded to be segregated as this had a definitebearing on the psyche of the children.• Most of the children were malnourished as theywere not provided with the proper dietaryrequirements. Unless a special day, theevening meals consisted Dalia with high watercontent barely enough to feed a growing childin his/her developmental stage.• For the newly born babies the mothers wereforced to beg Director Jaswanti for the milk andat times even on begging it would be denied asa part of punishment even for a flimsy mistakeby the mother.• On occasions as a part of punishment, childrenwere forced to go hungry for 2-3 days even formost minor mistakes committed evenunwittingly. And sometimes the punishmentwould be extended to all the children even asold as 4-5 years.• The sexually abused six girls transferred fromDrone Foundation Gurgaon to NaazFoundation Delhi and again on re-transfer toHaryana were finally sent to “Apna GharRohtak” revealed that even in this home theywere subjected to harsh abuse and have beenforced to engage only in cleaning and sweepingwithout any one caring for their dietaryrequirements. Out of these 4 girls were HIVpositive, and their medical record was notproperly maintained in the Home.”207


19. We are shocked to note the following:“ABUSES, ITS FORMS and OTHER IRREGULARACTS COMMITTED BY THE DIRECTOR, HERDAUGHTER, HER SON-IN-LAW AND THEDRIVER AS REPORTED BY THE CHILDREN• The most frequent form used by DirectorJaswanti was the abusive, obscene and vulgarlanguage used, which at times was evenshameful for the children to repeat.• Calling names like Randi, Vaishya andsexually abusive terminology• Physically beating of children and evenadolescent girls by the Director Jaswanti, herdaughter Sushma@Simmi and Jai Bhagwan onthe slightest of pre<strong>text</strong> of committing a mistakeor refusal obey orders even if vulgar and notacceptable to girls.• Even the boys were not spared of thrashingsand spankings by the trio on the slightest ofpre<strong>text</strong> of committing a mistake or refusal toobey orders.• Forcing the girls to disrobe and lie in a nakedcondition overnight. Sometimes the girlswould be tied to the grilled fencing with theduppatta for even two to three days andbeating them with iron rods & wooden sticks;• On slightest pre<strong>text</strong> of indiscipline making thechildren go without food and water for dayranging 1 to 3;• Forcing two girls to lay in a naked condition ina locked room and subjecting them to engage ina lesbian act in presence of the DirectorJaswanti who derived a special satisfaction outof the act and in case of a refusal to do sohitting their private parts with wooden rollingpins, scissors etc. which would result inbleeding at times.• Using the children as domestic helps andsending them to her own home, home of herdaughter and others without anyremunerations;208


• Forcing the children to work in agriculturalfields (a good number of sickles have beenreportedly found in the premises by the police)• Sexual molesting of girls by Mr. Jaibhagwan,reportedly the son-in-law of the owner of theHome;• Girls with good looks were sent to weddings toserve as waitress or even to perform.• Tips earned would be snatched away by thedirector.• Abandoning mentally challenged women fromthe Home in trains / bus stops in the middle ofnight with accomplice driver Satish Ahlawat.• Allegedly selling / giving away of babies /infants in adoption without the consent ofbiological mothers or even following norms foradoption of destitute/orphaned children;• Reportedly restoring children tomothers/relatives without any specific ordersfrom CWC and without conducting anyInquiry as required under section 33 of the JJAct, 2000.• On the occasion of Holi the children wereintoxicated by Jaswanti and Sushma@Simmiresulting in a child falling sick.• As a part of punishment unleashed on a childcommitting a grave mistake of demandingmore food some amenities, child was forced toclean all the utensils for entire week or sweepthe entire floor with a wet cloth.• Cooking was normally entrusted to elderchildren of Apna Ghar, adolescents and theadult inmates of Swadhar Shelter Home.• It is very clear that the frequent visit by thepolice to this home raises suspicion that thesechildren must have been used for sexualfavours.”20. We think that there has been a dereliction of duty ofall the visitors including the judicial magistrateswho visited this home. There has been a grossfailure on the part of the Government of India and209


its agencies and in its belief of outsourcing itsfundamental obligations to do justice to the poor. Itis therefore advisable that these homes be taken outof the control of the private organisations andplaced under the supervision of the High Courtsuntil the Parliament passes a stringent law and theGovernment finds competent care takers, teachersand psychotherapists because each one of thesechildren need psychotherapy in order tomainstream them.21. During our oral consultations with the NCPCR, thefollowing shocking revelations were made to us:(a) There have been gross failures in the juvenilejustice system not only because the provisions ofthe Juvenile Justice Act are lacking, but also thatthese provisions are not implemented in theirletter and spirit.(b) The police, a key stakeholder under the JuvenileJustice Act has its role and functions defined underSection 63 therefore for the prevention of juvenilecrime or handling of juveniles or children toperform their functions more effectively. They areto be specially instructed and trained and bedesignated as juvenile or child welfare officers andwork in coordination with the police. The Act callsfor setting up of Special Juvenile Police Units inevery district level and city and a child welfareofficer at every police station to co-ordinate andupgrade the police treatment of the juveniles andchildren. SJPU’s and Child Welfare Officers donot exist in every police station and even wherethey do they have been largely untrained.210


(c) Child Welfare Committees and Juvenile JusticeBoards are yet to get the infrastructure theyrequire to function optimally and structures suchas Observation Homes and Special Homes are notyet established in several districts and it is notsurprising that juvenile justice functionaries find i<strong>text</strong>remely challenging to work in such situationswhich do not have reformative and rehabilitativeservices.22. One of us, as a Commissioner in Sheela Barse v.Union of India, where the Commissioner, afterholding camp sittings in every jail in Assam, foundthat people who are not mentally ill were describedas mentally ill and were in Jail for large number ofyears. The apathetic attitude of the State wasbrought on record by the Commissioner. A passagefrom that report is relevant:“One of the questions which may arise is whetherthere is any cause for concern that while an effort ismade to seek a fair and equitable and properadministration of law in relation to individual libertyof a mentally ill person with society’s interests inmaintaining order and protecting the public would beignored. As the Commissioner will point out in laterparagraphs that this kind of concern which has beenraised is a bogie only for the purpose of belittling andjustifying the barbarism towards mentally ill personsand adequate machinery can be employed and“adequate machinery of a non-police nature” can beemployed for the purpose of ensuring that society’sinterests are also safeguarded” (para 17)23. According to the Palermo Protocol, 2000 127 :127 The Protocol to Prevent, Suppress and Punish Trafficking inPersons, Especially Women and Children, was adopted by the UN atPalermo, Italy, in 2000, and it supported the United NationsConvention against Transnational Organized Crime211


“Trafficking in persons” shall mean the recruitment,transportation, transfer, harbouring or receipt ofpersons, by means of the threat or use of force or otherforms of coercion, of abduction, of fraud, of deception, ofthe abuse of power or of a position of vulnerability or ofthe giving or receiving of payments or benefits toachieve the consent of a person having control overanother person, for the purpose of exploitation.Exploitation shall include, at a minimum, theexploitation of the prostitution of others or other formsof sexual exploitation, forced labour or services, slaveryor practices similar to slavery, servitude or the removalof organs.”24. Therefore, it is evident, as is also confirmed by thecase-studies brought to the notice of the Committeethat one form of exploitation leads to another.“Trafficking is the process which may result in any kindof exploitation or might be, for kind of exploitation. If weconsider that the majority of children are going missingor run away, to become victims of one or otherexploitative situations, it can be safely said that majorityof missing children can be victims of trafficking.” 128While society is guilty of fomenting a culture ofsilence, the State certainly has facilitated a culture ofinvisiblisation of the impoverished.25. The Report of the Committee investigatingallegations of large scale sexual abuse, rape andmurder of children in Nithari village, Noida, UP,commissioned by the Ministry of Women and ChildDevelopment in 2007, specifically notes that:(http://www.unodc.org/unodc/en/treaties/CTOC/index.html).This was signed by India in December 2002, but not ratified untilMay 13, 2011128 Bachpan Bachao Andolan, MISSING CHILDREN OF INDIA: APIONEERING STUDY BY BACHPAN BACHAO ANDOLAN (VITASTA, 2012) at103.212


“It does not appear that the Police diligently filedGumshudhi reports. According to DistrictAdministration, the investigation of disappearance ofPayal based on the Court Orders led to the cases ofother missing children. The Committee’s meeting withvictim families revealed that the police were insensitiveto their woes and rude in their approach and theirbehaviour was generally gender and child insensitive.One of the victims’ mother mentioned that her daughterwas taken by Maya, the maid servant of the accused, towork in his house on the fateful day and the girl neverreturned.” 12926. The Committee has been apprised by researchersand social workers that the parents complainingabout their missing children in Nithari, UttarPradesh were themselves suspected by the police ofhaving sold their children. The evident apathy ofthe State reflected, inter alia, in the behavior of thepolice undermines confidence. The Committeeconsiders this as an additional instance of inabilityof the criminal justice system to deracinate criminalbehavior at an early opportunity. The NithariReport 130 confirms that discovery of the sexualabuse and murder of missing children was afortuitous discovery by the Police – a byproduct ofinvestigation when a woman by the name of Payalhad gone missing.27. The Committee is of the view that such apathy ofthe institutions mirrors the apathy of the society.Sexual repression means repression of one’s identityand their right to be himself or herself; and in factsocietal rewards eulogizes and rewards certainbehavioural patterns that conform to a societal129 Report of the Committee investigating into allegations of largescale sexual abuse, rape and murder of children in Nithari village ofNOIDA, UP, commissioned by Ministry of Women and ChildDevelopment (2007), page 14.130 Id.213


construct of a being. Admittedly, one of themethods in which the society represses humanismand sexuality, and sub-consciously imposes aconstruct is through parenting.28. Thus, we are clear that there has to be a newtraining module which should be taught throughthe internet and media for parents about addressingand forms of communication towards childrenespecially female children.29. In schools teachers should promote groupinteractive practices so that the idea of a male childhaving masculinity and which necessarily impliesan implied repudiation of feminity or sensitivitymust is discouraged. The attempt of educationshould be to liberate children from social constructsand not to reinforce them; and thrust has to beinculcation of respect for other person especiallythat of the other gender.30. We, therefore, think that one of the ideas of genderroles which is firmly embedded in the psyche of theIndian male needs to be now psychologicallyreconstructed on rational lines in the con<strong>text</strong> ofrelationship with society and with women andparticularly respect and equality towards women.We, therefore, suggest that there must be animprovisation in the school curriculum which mustinvolve the subject of what are called as “SocialScience- Practical Applications”, and in fact, thecurriculum must be modified to include a flavor ofthe afore-stated approach in each of the subjects.The State must be careful in choosing <strong>text</strong> books andmust ensure the readings should serve theoverarching object of liberation and education in thetrue sense. We are of the view that this must also214


involve on-the-field interactions. We must add herethat the country is in dire need of a cadre ofpsychologists and we suggest that a counselor mustbe attached to each school in India for the purposeof enabling this advanced interaction.31. The scope of criminal law is not only to punish fortransgressions but also to prevent commission oftransgressions. In its consultation with the experts,the Committee was surprised to find out thatoffences such as stalking, voyeurism, ‘eve-teasing’etc are perceived as ‘minor’ offences, even thoughthey are capable of depriving not only a girl childbut frail children of their right to education andtheir freedom of expression and movement. We arethus of the view that it is not sufficient for the Stateto legislate and establish machinery of prosecution,but conscious and well thought out attempts willhave to be made to ensure the culture of mutualrespect is fostered in India’s children. Preventivemeasures for the initial minor aberrations arenecessary to check their escalation into major sexualaberrations.32. The Committee sees a direct and rational nexusbetween methods of parenting and schoolcurriculum and the rights of women, especially thegirl child. Through proper parenting andappropriate school curriculum, India can teach itschildren to respect the members of the other and thesame sex, and would to a great extent succor gendermainstreaming. We firmly believe that this wouldlead to reduction in drop outs, and would enablebetter understanding, mutual acceptance of eachother when children enter into adolescents. Thesepractices in schools are a must. We must again215


emind the State that these practices should bepracticed in every school in India.33. We, therefore, urge all sections of civil society, andin particular the political leadership, to realize thatthere needs to be strong psychological correction inthe parenting practices, which should be impartedat the panchayat level as well as at the school level,and which can be actively broadcast by the mediaand we are sure that the media will spend some partof its time in doing this social service bybroadcasting these modules so that people can seethem and adopt them. The change in the mediumof communication, the attitude of communicationwhich should be designed in the form a modulemust also be broadcast in the media.34. At this juncture, we recommend that, in addition toimmediately curing the systemic problems affectingthe juvenile justice system in this country, thefollowing terms need to be defined in the JuvenileJustice (Care and Protection of Children) Act, 2000,in the manner suggested below:(a) “harm” means any act, omission or commissionof which, may injure or endanger the health,safety, life, limb or well-being, whether mentalor physical, of a juvenile. 131(b) “health” is absence of any disease or infirmityand includes a state of complete physical, mentaland social well-being. 132131 Please refer to the Protection of Women from Domestic Violence,2005 (section 3).132 CESC Ltd v. Subhash Chandra Bose (1992)1 SCC 441 (para 32)216


35. We must also notice that the categorization ofoffences of eve teasing, stalking and sexual assaultalso have one offence in between which is sexualragging. We have come to learn from psychiatriststhat sexual ragging and sodomy also lead totremendous mental damage. We must also notethat when we deal with the issues relating to ‘maleculture’, it is important that the male ego of theIndian adult must be founded on reason and onmutual respect. There is also a syndrome of maleversus male which leads to sodomy and thetendency to dominate the other male, and instancesof committing rapes in the presence of a male friendor a relative or a boyfriend or a husband. In otherwords, here the conquest is conquest of a male overanother male by subjugating the woman to rape andsexual assault.36. In an article published in the Hindu 133 , it has beenlucidly argued that sexual assault and affront towomen’s sexuality is more often an instrument ofsubjugation and it says:“Rape, though, is something rapists do, not who theyare. Precisely why particular individuals find pleasurein inflicting violence on women is a question everyonefrom evolutionary biologists to cultural theorists haveweighed in on; there is no consensus, and may neverbe. Yet, as Welsh noted, strange behaviour “alwayshas a con<strong>text</strong>.” Five such con<strong>text</strong>s suggest themselvesas possible keys to the production of India’s urbanmaledysfunction. Together, these con<strong>text</strong>s ensureyoung men are rarely <strong>full</strong>y weaned; able to leadan adult life characterised by agency and individualchoice. The consequence is a deep rage that manifestsitself in nihilist behaviours.133 Praveen Swami, Rapist in the Mirror, the Hindu, Jan 11, 2013accessed at http://www.thehindu.com/opinion/lead/the-rapist-inthe-mirror/article4295240.eceon January 14, 2013217


India’s transforming urban economy has, firstly,produced a mass of young, prospectless men. Theparents of these children, many first-generationmigrants to cities, worked on the land or wereartisans. Though this generation’s position in theeconomy may have been inequitable, its agency asworkers was not. The young, though, find themselvesfighting for space in an economy that offers mainlycasual work. This casualisation has come about even ashard-pressed parents are spending ever more oneducation. Even the pressures on middle-class andlower middle-class men are enormous. Frequentlycoddled in son-worshipping parents, young men areonly rarely able to realise the investment and hopesvested in them.For a second con<strong>text</strong> to hyper-violent masculinity, wemust look at culture. Increasingly, cities have norecreational spaces for young men. Films, long one ofthe few cultural activities that a working-classaudience could participate in, now target élites; movietheatre prices exclude large parts of the youthpopulation. There is diminishing access to theatre, art,music and sport. In its place, the street becomes thestage for acting out adulthood, through substanceabuse and violence.Thirdly, a number of young men, particularly in newurban slums, are being brought up by no-parentfamilies — families that fathers have abandoned or arelargely absent from, and where mothers work longhours. Elsewhere in the world, too, this social crisishas been linked to sexual violence. South Africanresearcher Amelia Kleijn, in a 2010 study of childrapists, found most had deprived childhoods marked by“physical and emotional abuse, as well as neglect.”Fourth, there is a crisis of sexuality. Few men,working class or rich, have access to a sexual culturewhich allows them sexual freedoms or choices. Thecrisis is exacerbated by the fact that sections of urbanélites participate in a sexual culture which is relativelyliberal — a culture that young men can watch ontelevision and in public spaces, but never hope to218


participate in. For some, the sexually independentwoman is thus enemy to be annihilated. In his hit songC**t, the rape-valorising rap star Honey Singh voiceshis yearning to kick a woman after raping her, to driveout the bhoot of ego from her head. Similarly, Strangsees on the streets a wash of “blonde and auburn wigs,lipstick smeared on those deadly pincer-like insectjaws….Young men of all classes, finally, see women as statusenhancingcommodities — emulating the longstandinggender privileges tradition has vested in élitemen.None of these five con<strong>text</strong>s is new. Particular stresseslinked to the reordering of India’s social fabric, though,are giving new lethality to gender inequity. In a 2008paper, Jon Wolseth showed how neoliberalism createdthe conditions for a murderous surge of youth gangviolence in the Honduras during the 1980s. Economicpolicies, he argued, had not just impoverished the poor;they also tore apart community networks, diminishedpublic spaces and closed the door to politicalparticipation. Evangelical Christianity and the assaultrifle-armed gang emerged as mode of liberation.Elsewhere in Latin America, scholars have observedmuch the same.In India, women’s bodies appear to have become theprincipal terrain on which male rage is venting itself.It isn’t that young Indian men are inherently violentthan they were in the past. In 2011, according to theNational Crime Records Bureau, 29,937 men between18 and 30 were arrested for murder. Twenty yearsearlier, it was 38,961. In 1991, 270,602 men of thisage group were arrested for rioting; in 2011, the figurewas 72,867. Sexual violence data, though, trends theother way. 8,864 18-30 men were arrested for rape in1991; 16,528 in 2011. Molestation and sexualharassment arrests from this cohort have also almostdoubled, from 23,075 in 1992, the first year for whichdata is available, to 32,581 in 2011.219


Lacking agency isn’t, obviously, the cause of sexualviolence: women aren’t responding to theirdisenfranchisement by attacking men; men with powercan, and do, rape. The point here is, rather, that thelarge-scale disempowerment of urban men is lendingintensity to a pre-existing culture of sexual violence.”37. Thus, rape and other forms of sexual assault havebeen found to be consistently deployed as anexpression of power and must not necessarily beseen as ‘crime of passion’ only. Sexual assaults onwomen and children has been found to be havebeen used consistently by State and private personsin conflict areas including in communal violence;where by raping women, men attempt to establishtheir superiority over the other. The Committee is ofthe view that such forms of sexual assault deserve tobe treated as aggravated sexual offence in law. It isimportant to note that sexual assault in situations ofcommunal violence, regional conflicts and armedconflicts are committed upon women and childrenon account of their identity. This, we believe, is animportant aspect which we need to bear in mindbecause of sub-cultures which also exist and theIndian State is pretty much unaware of, and forwhose reformation there are hardly any proponents.Destitutes38. Destitute persons cannot live on alms or charity.They are as much the citizens of India as persons ofmeans. The Constitution mandates the State toensure adequate means of livelihood to all people.It is, therefore, a breach of this duty, if the State isunable to actually prevent destitution and, moreimportantly, the sexual abuse of destitute persons.Eradication of poverty is not only a State obligation,220


ut also a Millennium Development Goal 134 , whichneeds to be achieved by 2015.39. We are clearly of the opinion that the removal ofstigma from rape is the first necessary step. We areunable to appreciate the view that the survivor ofrape is a ‘zinda laash’ (a living corpse). Suchcomments are unfortunate and are antithetical to theconstruct of a progressive society.40. We have been made aware of an initiative by apolice officer, who had started, in 2005, a projectcalled ‘Parivartan’ 135 in the Delhi Police, which hadthe following objective:“QUALITY OBJECTIVESa) To reduce the annual growth rate of crime againstwomen & children by at least 25% per annum.b) To organize at least one pantomime show in eachbeat covered under Parivartan programme onyearly basis.c) To organize at least one workshop and lectures ineducational institutes in each Police Stationcovered under Parivartan programme on yearlybasis to sensitize the students and teachers aboutthe prevailing crime against women.d) To organize at least one self-defense trainingprogramme in each Sub-division of NorthWest District on yearly basis to empower thewomen/girls.e) To initiate action on the complaints immediatelyexcept those which required review by the Senior134 United Nations Millennium Declaration, UN General AssemblyResolution No. A/55/L.2.135 www.delhipolice.nic.in/parivartan/parivartan.htm221


Officers, which can be taken within 3 days fromthe receipt of the complaint.f) To process the complaints regarding functioningof Parivartan within 3 days.g) To organize at least one workshop on monthlybasis to sensitize the male staff about Parivartanand crime against women.h) To review the role/participation of the members ofWomen Safety Committee in the implementationof programmes under Parivartan on yearly basis.i) To organize at least one awarenessprogramme/meeting in each beat covered underParivartan programme on yearly basis.”This initiative needs to be studied care<strong>full</strong>y andreplicated across the country.41. There is an urgent need to audit the performance ofall institutions of governance and law and order. Itis indeed necessary that we must now have externalsocial audit for the sake of transparency. We alsowish to make it clear that every case of a missingchild must be registered as an FIR. A copy of thatcomplaint will be sent to the NCPCR, which isexpected to approach the High Court seeking habeascorpus relief. During the course of our studies anddeliberations, we were unable to discover any carethat has been taken in selecting wardens orsuperintendents of juvenile homes, nor were weable to see any visible effort been made by the Stateto train and sensitize them against sexual abuse.We are therefore of the opinion that theGovernment needs to take urgent and necessarysteps in this regard. We are also of the opinion thatthe working of the system of juvenile justice homes,child welfare committees, child protection centers, is222


wholly unsatisfactory and it needs drasticimprovement.42. We also need to have an oversight mechanism andthe Court appears to be that oversight mechanism.It must be a function of the High Court, through aninspecting judge, to give weekly reports on theconditions in relation to each of the custody homesand matters, particularly relating to sexual abuse ofthe inmates. There needs to be professionalizationin the appointment of wardens, superintendents,caretakers of all custodial homes including homesfor disabled and poor all over the country.43. Further, special training needs to be imparted topsychotherapists and psychologists in matters ofcounseling rape/sexual assault victims. Thetraining imparted in mental health hospitals needsimprovement. We think that mere bio-medicalintervention is not enough. There must be acombination of bio-medical (psychiatry) and alsoactive psychotherapy. We also believe merecreation of a statutory authority like the NationalCommission for Protection of Women and Childrenis not enough. It must be invested with properinfrastructure. While we appreciate the laudablework of the Chairperson of the NCPCR in manyareas, we find that the NCPCR as an organization isconstrained for want of adequate resources, with noindependent budgetary grant and autonomy. Thisdeficiency needs to be cured promptly.44. We have also viewed rape as a psycho-socialphenomenon. In this, we see the intersectionbetween the individual, the social culture and alsothe group and we also see the exacerbating factorssuch as alcohol, aggression which is often preceded223


either by sexual repression or child sex abuse orwanton neglect or a feeling of deprivation which aretranslated into active sexual aggression resulting inrape. We make it clear that we do not condone rapeby any of these means. If rape has to be prevented,it has to be prevented not only as a crime, it has tobe also prevented by substantive attitudinal changesin society.45. We are also of the opinion that social alienation isone of the factors and we think that thedemonstration of male sexuality by active forciblepenetration and overpowering of women issomething which needs to be rejected as a part ofmasculinity and we need psychological practiceswhich correct such aberrations which have creptinto society on account of the marginalization ofwomen including the claim of upper caste to be ableto overpower women belonging to dalit andoppressed sections of society.224


CHAPTER EIGHTKHAP PANCHAYAT AND HONOUR KILLINGS1. Khap is a form of grouping, which may comprise ofmore than one village. Sometimes these villagescomprised of people belonging to the same gotra(clan) or caste or multi-gotra or multi-castes.2. The Khap Panchayat as a social institution has a longhistory. These institutions functioned as a publicforum for resolution of difference by providing aplatform for direct negotiations between thedisputants from such village or villages which fellunder Khap. The decisions meted out by the KhapPanchayat would bind the parties, and in a rare case,the dissatisfied party may apply for review to Sarv-Khap, which functioned as a higher assembly ofrepresentatives from all neighbouring Khaps.3. This logic of maintaining caste order by preventinginter-caste marriages and further debarring intracastemarriages which are sagotra, severely limitsthe freedom to freely choose ones partner; thesepractices have no legal sanction under HinduMarriage Act. This further unduly emphasizes awoman’s ‘honour’ thereby encouraging not justcontrol of sexuality but also her marital choice, bystigmatising inter-caste marriages. 136 This has muchwider social and economic repercussions andrestraining women’s free mobility affecting hereducation/ employment and fundamental rights.136 Chakravarti, U. 1993. 'Conceptualising Brahmanical patriarchy inearly India: Gender, caste, class and state', Economic and PoliticalWeekly, Volume(14): 579-85. See also; Baxi, P., Rai, S. M. and Ali, S. S.2006. 'Legacies of common law crimes of honour in India andPakistan', Third World Quarterly, Volume(7): 1239-53.225


4. In his erudite paper titled Khap Panchayats: A Socio-Historic Overview, Ajay Kumar 137 states that “… therelative ease and speed with which justice was dispensedand the sense of solidarity and support that villages andcommunities provided to families gave khap a firm socialstanding. Of course, given the strong hold patriarchyhad on all aspects of society, women played no part inkhap deliberations. The position of the lower caste andschedule caste were no different”. In his words, a Khappanchayat is seen as upholding the concept ofbhaichara on a gotra, caste or territorial basis.5. It is believed that Khap Panchayats generally consistof powerful elements of a dominant caste, seniorcitizens who “wished to be considered as upholdersof village norms, custodian of rural culture andguardians of public morality.” 138 The meansadopted by Khap Panchayat to secure compliance ofmembers of their community with their notions ofmorality and right conduct, in the name of cultureand tradition, has assumed unreasonableproportions. Khaps regularly oppose marriagesbetween people related by blood or belonging to thesame gotra (sagotra), or people who are members ofa Khap (on territorial basis). However, Khap permitsmarriage within the same caste and prohibits intercastemarriage. 1396. A Khap panchayat does not allow any violation ofthe above diktat to go unnoticed and imposes upon137 Kumar.A “Khap Panchayats: A Socio-Historic Overview” No. 4Economic & Political Weekly, Vol XLVIISee also, Chowdhry, P. 1997. 'Enforcing cultural codes: Gender andviolence in northern India', Economic and Political Weekly, Volume:1019-28.138 Yadav, B. 2009. 'Khap Panchayats: Stealing Freedom?', Economicand Political Weekly, Volume: 16-9.139 Ibid226


the violator social boycott or excommunication aspunishment. These punishments have also takenform of gross human right violation where thesepurported violators have been subjected to brutalityand sometimes have been brutally murdered.7. At this juncture, the decision of the Supreme Courtin Arumugam Servai v. State of Tamil Nadu 140 isnoteworthy. This case arose in the con<strong>text</strong> ofviolation of certain provisions of Schedule Tribeand Schedule Caste (Prevention of Atrocities) Act,1989. The Court in this case, based upon theprinciple of equality and “life, liberty and pursuitsof happiness” –from the American Constitutionidentifiedcertain practices prevalent in India whichalso included the human rights violation carriedout by Khap Panchayat.8. The Supreme Court observed and directed asfollows:“12. We have in recent years heard of “KhapPanchayats” (known as “Katta Panchayats” in TamilNadu) which often decree or encourage honour killingsor other atrocities in an institutionalised way on boysand girls of different castes and religion, who wish to getmarried or have been married, or interfere with thepersonal lives of people. We are of the opinion that this iswholly illegal and has to be ruthlessly stamped out. Asalready stated in Lata Singh case, there is nothinghonourable in honour killing or other atrocities and, infact, it is nothing but barbaric and shameful murder.Other atrocities in respect of personal lives of peoplecommitted by brutal, feudal-minded persons deserveharsh punishment. Only in this way can we stamp outsuch acts of barbarism and feudal mentality. Moreover,these acts take the law into their own hands, and amountto kangaroo courts, which are wholly illegal.140 (2011)6 SCC 405227


13. Hence, we direct the administrative and policeofficials to take strong measures to prevent suchatrocious acts. If any such incidents happen, apart frominstituting criminal proceedings against thoseresponsible for such atrocities, the State Government isdirected to immediately suspend the DistrictMagistrate/Collector and SSP/SPs of the district as wellas other officials concerned and charge-sheet them andproceed against them departmentally if they do not (1)prevent the incident if it has not already occurred butthey have knowledge of it in advance, or (2) if it hasoccurred, they do not promptly apprehend the culpritsand others involved and institute criminal proceedingsagainst them, as in our opinion they will be deemed to bedirectly or indirectly accountable in this connection”9. The actions of Khap Panchayats are extremelyrelevant for the consideration of this Committee inthe con<strong>text</strong> of crimes against women, on the basis ofgender, since one of the most prevalent practicesemployed by Khap Panchayats to enforce theirdecisions is that of “Honour Killing”.10. The Supreme Court, in Lata Singh v. State of UP 141 ,took cognizance of such practices, where life threatswere meted out to a girl who married outside hercaste of her free will. Upon taking note of the factsof her case the court observed as follows:“16. Since several such instances are coming to ourknowledge of harassment, threats and violence againstyoung men and women who marry outside their caste,we feel it necessary to make some general comments onthe matter. The nation is passing through a crucialtransitional period in our history, and this Court cannotremain silent in matters of great public concern, such asthe present one.141 (2006)5 SCC 475228


17. The caste system is a curse on the nation and thesooner it is destroyed the better. In fact, it is dividing thenation at a time when we have to be united to face thechallenges before the nation unitedly. Hence, inter-castemarriages are in fact in the national interest as they willresult in destroying the caste system. However,disturbing news are coming from several parts of thecountry that young men and women who undergo intercastemarriage, are threatened with violence, or violenceis actually committed on them. In our opinion, such actsof violence or threats or harassment are wholly illegaland those who commit them must be severely punished.This is a free and democratic country, and once a personbecomes a major he or she can marry whosoever he/shelikes. If the parents of the boy or girl do not approve ofsuch inter-caste or inter-religious marriage themaximum they can do is that they can cut-off socialrelations with the son or the daughter, but they cannotgive threats or commit or instigate acts of violence andcannot harass the person who undergoes such inter-casteor inter-religious marriage. We, therefore, direct that theadministration/police authorities throughout the countrywill see to it that if any boy or girl who is a majorundergoes inter-caste or inter-religious marriage with awoman or man who is a major, the couple is not harassedby anyone nor subjected to threats or acts of violence,and anyone who gives such threats or harasses orcommits acts of violence either himself or at hisinstigation, is taken to task by instituting criminalproceedings by the police against such persons andfurther stern action is taken against such persons asprovided by law.18. We sometimes hear of “honour” killings of suchpersons who undergo inter-caste or inter-religiousmarriage of their own free will. There is nothinghonourable in such killings, and in fact they are nothingbut barbaric and shameful acts of murder committed bybrutal, feudal-minded persons who deserve harshpunishment. Only in this way can we stamp out suchacts of barbarism.11. Generally “honour killing” and “honour crimes”are used to describe the incident of violence and229


harassment caused to young couple intending tomarry or having married against the wishes of thecommunity or family members. But killing in thename of honour of a person upon the belief that theperson has ‘dishonoured’ the family has beenprevalent in our part of the world.12. The Law Commission, in its 242 nd Report, observedas follows:“In so far as the caste or community panchayats play aconstructive role in addressing the common problemsconcerning the society or amicably settling the disputesbetween the local inhabitants and families, dissuadingthe people from a criminal path, the mission and thework of these village elders and Panchayatdars can becommended; but, if they exceed their limits, as it is oftenhappening, impose their decisions in matters relating tomatrimony and interfere with the legitimate choices ofyoungsters and indulge in acts of endangering their lifeand liberty, the law cannot remain a silent spectator inour progressive democratic polity wedded to cherishedconstitutional values.” 14213. In India, “honour killing” is being practiced againstyoung couple marrying either against the wishes oftheir family or marrying outside their caste orreligion which are regarded as “objectionablematrimonies” 143 . Khap Panchayats have beenadopting this course to enforce their diktat “byassuming to themselves the role of social or communityguardian”. 144 Where a murder is committed in thename of culture and honour, it has been regardedas less serious than murder and members of the142 Prevention of Interference with the Freedom of Matrimonial Alliances(in the name of Honour and Tradition): A Suggested Legal Framework.Law Commission of India. August 2012.143 Ibid.144 Ibid230


communities are found to have condoned thekilling.14. As women have largely been targets of “honourkilling” it is extremely important for the Committeeto take note of this social menace and atrocitiesagainst woman. Therefore, with the intention ofchecking any unwarranted interference by themembers of such panchayats, who would resort tocriminal intimidation by the members of unlawfulassembly to secure compliance with illegalassembly, the Law Commission of India wasassigned the task to examine the need to have aseparate legislation to curb “honour killings” incases of matrimonial choices.15. The 242 nd Law Commission Report recommended abill entitled “The Prohibition of Unlawful Assembly(Interference with the Freedom of MatrimonialAlliances) Bill, 2011 which prohibited a person or anygroup of person from gathering, assembling orcongregating at any time with the view or intention ofcondemning any marriage, not prohibited by law.”However, the Commission did not find itappropriate to suggest an amendment to section300 of the IPC to include honour killing as aseparate offence.16. It is pertinent to note that the Supreme Court inBhagwandas v. State (NCT of Delhi) 145 had opinedthat “honour killing for whatever reason would comewithin the category of rarest of rare case deserving deathpenalty.”145 (2011)6 SCC 396231


17. The Law Commission commented upon thedecision of the Supreme Court in Bhagwandas, asbeing contrary to the settled principle of awardingdeath sentence in the Bacchhan Singh 146 case. TheLaw Commission observed thus:“10.1 Before we conclude this Report, we would like torefer to one recent decision of the Supreme Courtwherein a direction of far reaching consequences has beengiven by the Supreme Court while laying down theproposition that the so-called honour killing comeswithin the category of rarest of the rare cases deservingdeath punishment. It was observed “this is necessary as adeterrent for such outrageous, uncivilized behaviour. Allpersons who are planning to perpetrate ‘honour killing’should know that the gallows await them”. This decisionin Bhagwan Das Vs. State (NCT of Delhi) [(2011) 6SCC 396] as well as the decision in Arumugam Servai(supra) were rendered by the same Bench. A copy of thejudgment was directed to be sent to all the High Courtswho shall circulate the same to all the Sessions Judges.Following this judgment, in the recent times, as seenfrom the newspaper reports, almost all the accused in theso-called honour killing murder cases were sentenced todeath by the Sessions Courts in U.P. and Delhi. Withgreat respect, we are constrained to say that such ablanket direction given by the Supreme Court makingdeath sentence a rule in “honour killings” cases, makes adeparture from the principles firmly entrenched in ourcriminal jurisprudence by virtue of a series of decisionsrendered by larger Benches of Supreme Court, for e.g.Bachan Singh Vs. State of Punjab and Machhi Singh Vs.State of Punjab6. It is settled law that aggravating andmitigating circumstances should be weighed and it isonly in very exceptional and rare cases, death sentenceshould be imposed. Death sentence, in other words, is alast resort. Further, where there is more than oneaccused, the degree of participation and culpability mayvary. It is needless to emphasis that each case must bejudged by the facts and circumstances emerging in thatcase. No hard and fast rule can be laid down in the light146 (1980) 2 SCC 684232


of the Supreme Court’s consistent approach towardsdeath sentence vs. life imprisonment issue. Thisjudgment in the case of Bhagwan Das is bound to createuncertainty in the state of law and we are sure that inthe near future, the correctness of such proposition willbe tested by a larger Bench of Hon’ble Supreme Court.”18. We expect the State to ensure that these institutionswill not interfere with the choices made by men andwomen in respect of marriage, as emphasized bythe Supreme Court.233


CHAPTER NINESENTENCING AND PUNISHMENTThe judicial trend in awarding punishment1. Over the years, courts in India have consistentlyheld that sexual offences ought to be dealt withsternly and severely as undue sympathy to imposeinadequate sentence would do more harm to thesystem and undermine public confidence in theefficacy of law. We cite a few cases in support:2. In Mahesh v. State of M. P. 147 , the Supreme Courtobserved that:“It will be a mockery of justice to permit theseappellants [the accused] to escape the extreme penaltyof law when faced with such evidence and such cruelacts. To give the lesser punishment for the accusedwould be to render the justicing system of this countrysuspect. The common man will lose faith in courts. Insuch cases, he understands and appreciates thelanguage of deterrence more than the reformativejargon”. [Emphasis supplied]3. Sevaka Perumal v. State of T.N. 148 , is also in the samevein:“Therefore, undue sympathy to impose inadequatesentence would do more harm to the justice system toundermine the public confidence in the efficacy of lawand society could not long endure under seriousthreats. If the courts did not protect the injured, theinjured would then resort to private vengeance. It is,therefore, the duty of every court to award propersentence having regard to the nature of the offence and147 (1987) 3 SCC 80148 (1991) 3 SCC 471234


the manner in which it was executed or committedetc.”4. Later in Dhananjoy Chatterjee v. State of W.B. 149 , theSupreme Court opined that:“…shockingly large number of criminals gounpunished thereby increasingly encouraging thecriminals and in the ultimate, making justice suffer byweakening the system's creditability. The impositionof appropriate punishment is the manner in which thecourt responds to the society's cry for justice againstthe criminal. Justice demands that courts shouldimpose punishment befitting the crime so that thecourts reflect public abhorrence of the crime. The courtmust not only keep in view the rights of the criminalbut also the rights of the victim of the crime and thesociety at large while considering the imposition ofappropriate punishment”.5. Then, in Ravji v. State of Rajasthan, (1996) 2 SCC175, the Supreme Court observed that:“It has been held in the said case that it is the natureand gravity of the crime but not the criminal, whichare germane for consideration of appropriatepunishment in a criminal trial. The court will befailing in its duty if appropriate punishment is notawarded for a crime which has been committed notonly against the individual victim but also against thesociety to which the criminal and victim belong. Thepunishment to be awarded for a crime must not beirrelevant but it should conform to and be consistentwith the atrocity and brutality with which the crimehas been perpetrated, the enormity of the crimewarranting public abhorrence and it should “respondto the society's cry for justice against the criminal”. Iffor extremely heinous crime of murder perpetrated in avery brutal manner without any provocation, mostdeterrent punishment is not given, the case ofdeterrent punishment will lose its relevance”.149 (1994) 2 SCC 220235


6. Similarly, in State of Karnataka v. Puttaraja 150 , theSupreme Court held that:“The object should be to protect the society and todeter the criminal in achieving the avowed object oflaw by imposing appropriate sentence. It is expectedthat the courts would operate the sentencing system soas to impose such sentence which reflects theconscience of the society and the sentencing processhas to be stern where it should be.Imposition of sentence without considering its effecton the social order in many cases may be in reality afutile exercise. The social impact of the crime e.g.where it relates to offences against women like the caseat hand, dacoity, kidnapping, misappropriation ofpublic money, treason and other offences involvingmoral turpitude or moral delinquency which havegreat impact and serious repercussions on social orderand public interest, cannot be lost sight of and per serequire exemplary treatment. Any liberal attitude byimposing meagre sentences or taking too sympathetic aview merely on account of lapse of time orconsiderations personal to the accused only in respectof such offences will be result wise counterproductivein the long run and against societal interest whichneeds to be cared for and strengthened by the requiredstring of deterrence inbuilt in the sentencing system”.7. And, in State of M.P. v. Munna Choubey 151 , it wassaid that the:“Imposition of sentence without considering its effecton the social order in many cases may be in reality afutile exercise. The social impact of the crime e.g.where it relates to offences against women, dacoity,kidnapping, misappropriation of public money, treasonand other offences involving moral turpitude or moraldelinquency which have great impact on social orderand public interest, cannot be lost sight of and per se150 (2004) 1 SCC 475151 (2005) 2 SCC 710236


equire exemplary treatment. Any liberal attitude byimposing meagre sentences or taking too sympatheticview merely on account of lapse of time in respect ofsuch offences will be result wise counterproductive inthe long run and against societal interest which needsto be cared for and strengthened by string ofdeterrence inbuilt in the sentencing system”8. The same was the opinion in Jugendra Singh v. Stateof U.P. 152 , where the Supreme Court said that:“Rape or an attempt to rape is a crime not against anindividual but a crime which destroys the basicequilibrium of the social atmosphere. Theconsequential death is more horrendous. It is to be keptin mind that an offence against the body of a womanlowers her dignity and mars her reputation. It is saidthat one’s physical frame is his or her temple. No onehas any right of encroachment. An attempt for themomentary pleasure of the accused has caused thedeath of a child and had a devastating effect on herfamily and, in the ultimate eventuate, on the collectiveat large. When a family suffers in such a manner, thesociety as a whole is compelled to suffer as it creates anincurable dent in the fabric of the social milieu. Thecry of the collective has to be answered and respectedand that is what exactly the High Court has done byconverting the decision of acquittal to that ofconviction and imposed the sentence as per law.”9. In fact, it is interesting to note that in SwamiSharaddananda v. State of Karnataka 153 , the SupremeCourt lamented at paragraph 92 that:“The issue of sentencing has two aspects. A sentencemay be excessive and unduly harsh or it may be highlydisproportionately inadequate. When an appellantcomes to this Court carrying a death sentence awardedby the trial court and confirmed by the High Court,this Court may find, as in the present appeal, that thecase just falls short of the rarest of the rare category152 (2012) 6 SCC 297153 (2008) 13 SCC 787237


and may feel somewhat reluctant in endorsing thedeath sentence. But at the same time, having regard tothe nature of the crime, the Court may strongly feelthat a sentence of life imprisonment subject toremission normally works out to a term of 14 yearswould be grossly disproportionate and inadequate.What then should the Court do? If the Court's optionis limited only to two punishments, one a sentence ofimprisonment, for all intents and purposes, of notmore than 14 years and the other death, the Court mayfeel tempted and find itself nudged into endorsing thedeath penalty. Such a course would indeed bedisastrous. A far more just, reasonable and propercourse would be to expand the options and to take overwhat, as a matter of fact, law<strong>full</strong>y belongs to the Courti.e. the vast hiatus between 14 years' imprisonmentand death. It needs to be emphasised that the Courtwould take recourse to the expanded option primarilybecause in the facts of the case, the sentence of 14years' imprisonment would amount to no punishmentat all”.10. It therefore becomes important to review thepunishments provided under our penal laws.11. Punishments for crimes involving sexual offencescan be broadly classified into two categories: termsentences (e.g. imprisonment for 10 years) and lifeimprisonment. Of course, in appropriate cases,death penalty may be awarded if the evidenceindicates that the crime in question falls within thescope of section 302 of the Indian Penal Code.On term sentences12. As far as term sentences are concerned, section 376of the Indian Penal Code currently provides forpunishment of either description for a term whichshall not be less than 7 years but which may be forlife or for a term which may extend to 10 years.238


We however recommend that in the proposedCriminal Law Amendment Bill, 2012, theminimum sentence should be enhanced to 10 yearswith a maximum punishment being lifeimprisonment.On life imprisonment13. Before making our recommendation on thissubject, we would like to briefly examine themeaning of the expression “life” in the term “lifeimprisonment”, which has attracted considerablejudicial attention.14. Mohd. Munna v. Union of India 154 reiterates the wellsettledjudicial opinion that a sentence ofimprisonment for life must, prima facie, be treatedas imprisonment for the whole of the remainingperiod of the convict’s natural life. This opinionwas recently restated in Rameshbhai ChandubhaiRathode v. State of Gujarat 155 , and State of U.P. v.Sanjay Kumar 156 , where the Supreme Courtaffirmed that life imprisonment cannot beequivalent to imprisonment for 14 or 20 years, andthat it actually means (and has always meant)imprisonment for the whole natural life of theconvict.15. We therefore recommend a legislative clarificationthat life imprisonment must always meanimprisonment for ‘the entire natural life of theconvict’.154 (2005) 7 SCC 417. See also Gopal Vinayak Godse v. State ofMaharashtra, (1961) 3 SCR 440155 (2011) 2 SCC 764156 (2012) 8 SCC 537239


On death penalty16. Justice Stewart in Furman v. Georgia 157 , seminallynoted that:“The penalty of death differs from all other forms ofcriminal punishment, not in degree, but in kind. It isunique in its total irrevocability. It is unique in itsrejection of rehabilitation of the convict as a basicpurpose of criminal justice. And it is unique, finally,in its absolute renunciation of all that is embodied inour concept of humanity”.17. These words have formed the broad foundationfor the evolution of modern jurisprudence on‘death penalty’ and have prompted us todeliberate at length on this issue.18. The Indian law on punishment with death hasbeen concretized in a few leading judgmentswhich narrow down the award of death sentencesto the ‘rarest of the rare’ cases. The criteria fordetermining whether a given case is so rare can befound in Bachhan Singh v. State of Punjab 158 , whichwas later cited with approval in Macchi Singh v.State 159 , and recently in Mulla v. State of U.P. 160 .The said criteria are as follows (see Macchi Singh):“I. Manner of commission of murder33. When the murder is committed in an extremelybrutal, grotesque, diabolical, revolting or dastardlymanner so as to arouse intense and extremeindignation of the community. For instance,(i) when the house of the victim is set aflame withthe end in view to roast him alive in the house;157 408 U.S. 238158 (1980) 2 SCC 684159 (1983) 3 SCC 470160 (2010) 3 SCC 508240


(ii) when the victim is subjected to inhuman acts oftorture or cruelty in order to bring about his or herdeath;(iii) when the body of the victim is cut into pieces orhis body is dismembered in a fiendish manner;II. Motive for commission of murder34. When the murder is committed for a motivewhich evinces total depravity and meanness. Forinstance when (a) a hired assassin commits murderfor the sake of money or reward (b) a cold-bloodedmurder is committed with a deliberate design inorder to inherit property or to gain control overproperty of a ward or a person under the control ofthe murderer or vis-à-vis whom the murderer is ina dominating position or in a position of trust, or(c) a murder is committed in the course of betrayalof the motherland.III. Anti-social or socially abhorrent nature of thecrime35. (a) When murder of a member of a ScheduledCaste or minority community, etc. is committed notfor personal reasons but in circumstances whicharouse social wrath. For instance when such acrime is committed in order to terrorise suchpersons and frighten them into fleeing from a placeor in order to deprive them of, or make themsurrender, lands or benefits conferred on them witha view to reverse past injustices and in order torestore the social balance.(b) In cases of ‘bride burning’ and what are knownas ‘dowry deaths’ or when murder is committed inorder to remarry for the sake of extracting dowryonce again or to marry another woman on accountof infatuation.IV. Magnitude of crime36. When the crime is enormous in proportion. Forinstance when multiple murders say of all or almost241


all the members of a family or a large number ofpersons of a particular caste, community, orlocality, are committed.V. Personality of victim of murder37. When the victim of murder is (a) an innocentchild who could not have or has not provided evenan excuse, much less a provocation, for murder (b)a helpless woman or a person rendered helpless byold age or infirmity (c) when the victim is a personvis-à-vis whom the murderer is in a position ofdomination or trust (d) when the victim is a publicfigure generally loved and respected by thecommunity for the services rendered by him and themurder is committed for political or similar reasonsother than personal reasons.38. In this background the guidelines indicatedin Bachan Singh case [(1980) 2 SCC 684 : 1980SCC (Cri) 580] will have to be culled out andapplied to the facts of each individual case where thequestion of imposing of death sentence arises. Thefollowing propositions emerge from Bachan Singhcase [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] :(i) The extreme penalty of death need not beinflicted except in gravest cases of extremeculpability.(ii) Before opting for the death penalty thecircumstances of the ‘offender’ also require to betaken into consideration along with thecircumstances of the ‘crime’.(iii) Life imprisonment is the rule and deathsentence is an exception. In other words deathsentence must be imposed only when lifeimprisonment appears to be an altogetherinadequate punishment having regard to therelevant circumstances of the crime, and provided,and only provided, the option to impose sentence ofimprisonment for life cannot be conscientiouslyexercised having regard to the nature andcircumstances of the crime and all the relevantcircumstances.242


(iv) A balance sheet of aggravating and mitigatingcircumstances has to be drawn up and in doing sothe mitigating circumstances have to be accorded<strong>full</strong> weightage and a just balance has to be struckbetween the aggravating and the mitigatingcircumstances before the option is exercised.39. In order to apply these guidelines inter alia thefollowing questions may be asked and answered:(a) Is there something uncommon about the crimewhich renders sentence of imprisonment for lifeinadequate and calls for a death sentence?(b) Are the circumstances of the crime such thatthere is no alternative but to impose death sentenceeven after according maximum weightage to themitigating circumstances which speak in favour ofthe offender?40. If upon taking an overall global view of all thecircumstances in the light of the aforesaidproposition and taking into account the answers tothe questions posed hereinabove, the circumstancesof the case are such that death sentence iswarranted, the court would proceed to do so.”19. The philosophy behind the aforesaid tests was alsoexplained in Macchi Singh: every member of thecommunity is able to live his/her life because ofthe protection afforded by the community and ruleof law. But, when one member of the communityshows ‘ingratitude’ to the community by killing afellow member of the community or when thecommunity feels that its very existence is underthreat, then for the purposes of self-preservation,the community withdraws its protection. Thiswithdrawal of protection results in imposition ofdeath penalty. The court further elaborated thatthe community will only do so –“in rarest of rare cases’ when its collective conscienceis so shocked that it will expect the holders of the243


judicial power centre to inflict death penaltyirrespective of their personal opinion as regardsdesirability or otherwise of retaining death penalty.”20. The ‘rarest of rare’ doctrine has been intrinsicallylinked with the need to mandatorily give ‘specialreasons’ before imposing a penalty as specifiedunder Section 354 (1) of the Cr. P.C. Bachhan Singhhas clarified the law by saying that ‘specialreasons’ implies ‘exceptional reasons’ (atpara. 161). We also notice that punishment withdeath is given only in the rarest of rare cases whenthe alternative option of reformation andrehabilitation of the convict is unquestionablyforeclosed.21. To sum up, the following are the tests fordetermining whether the accused deserves a deathsentence (see Mulla v. State of U.P.):(a) The gruesome nature of the crime;(b) The mitigating and aggravating circumstancesin the case. These must take into considerationthe position of the criminal, and(c) Whether any other punishment would becompletely inadequate. This rule emerges fromthe dictum of this Court that life imprisonmentis the rule and death penalty an exception.Therefore, the court must satisfy itself thatdeath penalty would be the only punishmentwhich can be meted out to the convict.22. While we believe that enhanced penalties in asubstantial number of sexual assault cases can beadjudged on the basis of the law laid down in theaforesaid cases, certain situations warrant aspecific treatment. We believe that where theoffence of sexual assault, particularly ‘gang rapes’,244


is accompanied by such brutality and violence thatit leads to death or a Persistent Vegetative State (or‘PVS’ in medical terminology), punishment mustbe severe – with the minimum punishment beinglife imprisonment. While we appreciate theargument that where such offences result in death,the case may also be tried under Section 302 of theIPC as a ‘rarest of the rare’ case, we mustacknowledge that many such cases may actuallyfall within the ambit of Section 304 (Part II) sincethe ‘intention to kill’ may often not be established.In the case of violence resulting in PersistentVegetative State is concerned, we are reminded ofthe moving story of Aruna Shanbagh, the youngnurse who was brutally raped and lived the rest ofher life (i.e. almost 36 years) in a PersistentVegetative State.23. In our opinion, such situations must be treateddifferently because the concerted effort to rape andto inflict violence may disclose an intentiondeserving an enhanced punishment. We havetherefore recommended that a specific provision,namely, Section 376 (3) should be inserted in theIndian Penal Code to deal with the offence of“rape followed by death or resulting in a PersistentVegetative State”.24. In our considered view, taking into account theviews expressed on the subject by anoverwhelming majority of scholars, leaders ofwomen’s’ organisations, and other stakeholders,there is a strong submission that the seeking ofdeath penalty would be a regressive step in thefield of sentencing and reformation. We, havingbestowed considerable thought on the subject, andhaving provided for enhanced sentences (short of245


death) in respect of the above-noted aggravatedforms of sexual assault, in the larger interests ofsociety, and having regard to the current thinkingin favour of abolition of the death penalty, andalso to avoid the argument of any sentencingarbitrariness, we are not inclined to recommendthe death penalty.25. We must therefore end this topic with a note ofcaution. Undoubtedly, rape deserves seriouspunishment. It is a highly reprehensible crime inthe moral sense, and demonstrates a totalcontempt for the personal integrity and autonomyof the victim. Short of homicide, it is the “ultimateviolation of self.” It is also a violent crime becauseit normally involves force or the threat of force orintimidation to overcome the will and the capacityof the victim to resist. Rape is very oftenaccompanied by physical injury to the victim andcan also inflict mental and psychological damage.We have no doubt that it undermines thecommunicating sense of security and there ispublic injury. However, we believe that suchoffences need to be graded. There are instanceswhere the victim/survivor is still in a positionfrom which she can, with some support fromsociety, overcome the trauma and lead a normallife. In other words, we do not say that such asituation is less morally depraved, but the degreeof injury to the person may be much less and doesnot warrant punishment with death.26. The Working Group on Human Rights in Indiaand the UN has made a submission before us. Wehave examined the submission care<strong>full</strong>y. We havenoticed in the said submission that the Group hassuggested that there should be no amendment to246


the existing law to either provide death penaltyand/or chemical castration for the offence of rapeor sexual assault.27. The Group has placed emphasis on Article 6 of theInternational Covenant on Civil and PoliticalRights which provides:-“In countries which have not abolished the deathpenalty, sentence of death may be imposed only for themost serious crimes in accordance with the law in forceat the time of commission of crime and not contrary tothe provisions of the present Covenant….”28. It has also been observed that death penalty willnot be imposed on persons below 18 years andobserves that:-“Nothing in this Article should be invoked to delay orprevent the abolition of capital punishment….”29. Article 7 of the Covenant provides that:-“No one shall be subjected to torture or to cruel,inhuman or degrading treatment or punishment inparticular, no one shall be subjected without his freeconsent to medical or scientific experimentation.” 16130. This Committee is conscious of the provisions ofthe ICCPR 162 , the Universal Declaration of HumanRights 163 , the Convention on the rights of child,Convention against torture and other cruel,inhuman and degrading treatment or punishmentand other international Conventions.161 Article 7, Part 3 ICCPR 1966162 Atricle 6 and 7, ICCPR 1966163 Article 5, UDHR 1948247


31. We note that one of the standards before us is thatthe UN Commission on Human Rights hasadopted the four resolutions to impose amoratorium on death penalty until such time asdeath penalty is <strong>full</strong>y abolished. The first suchresolution is dated 18th December 2007. Theresolution calls upon States which still retain thedeath penalty to “progressively restrict the use of thedeath penalty and reduce the number of offences forwhich it may be imposed”. The abolition of deathpenalty and the reduction of number of offences instatute books which notify capital punishment arestated to be a part of international customary law.It has also been pointed out that the UN HumanRights Committee in its concluding deliberationson 4th August 1997 observed that:-“The Committee expresses concern of the lack ofcompliance of the Penal Code with Article 6, paragraphs2 and 5 of the Covenant. Therefore, the Committeerecommends that the State party abolish by law theimposition of the death penalty on minors and limit theoffences carrying the death penalty in the most seriouscrimes with a view to its ultimate abolition….”32. We also have noted the report of the UN SpecialRapporteur on Extrajudicial, Summary orArbitrary Executions with reference to his Indiamission in 2012.“It is a matter of concern that the death penalty may beimposed for (seemingly a growing number of crimesthat cannot be regarded as the most serious crimesreferred to in Article 6 of the ICCPR as internationallyunderstood, namely, crimes involving intentionalkilling)” 164164 (Press Statement – Country Mission to India 2012 available athttp://www.ohcr.org):-248


33. The phrase ‘rarest of rare cases’ taken fromBachhan Singh v. State of Punjab is often used todescribe the Indian approach to the death penalty.However, this may create a wrong impressionsince the list of crimes for which sentence may beimposed is still much wider than the one providedfor under international law. Accordingly, he hasrecommended that India places a moratorium onthe death penalty in accordance with GeneralAssembly Resolution 65/206.34. This Committee is aware that over 150 States in theworld have abolished death penalty or do notpractice death penalty. The Committee is alsoaware that several States in the United States ofAmerica retain and implement the death penalty.We are aware that there is a movement in theUnited States of America to impose death penaltyfor rape. The US Supreme Court has struck downthe death penalty for rape as contrary to the USConstitution. We look at the judgment in Coker v.Georgia, 165 where the US Supreme Court struckdown the sentence of death for a convicted felonwho had committed rape holding that the sentenceof death for rape was disproportionate, violative ofthe 8 th and 14 th Amendments to the USConstitution and was also “barbaric and excessive”.It may be noted that this was a case of aggravatedsexual assault.35. We also note the decision in Kennedy v. Louisianawhere the constitutional validity of a Louisianastatute permitted death penalty for raping a childunder 12 years was challenged. It was noted thatthe crime of the petitioner was one which wasrevulsive to society and was <strong>full</strong> of horror and165 433 US 584249


hurt. Yet, the US Supreme Court reached a findingthat the death penalty for rape of a minor wasunconstitutional and violative of the 8thAmendment being in the nature of “cruel andunusual punishment”. 16636. Kennedy, J. observed that:-“Evolving standards of decency must embrace andexpress respect for the dignity of the person, and thepunishment of criminals must conform to that rule…..”As we shall discuss, punishment is justified under oneor more or three principal rationales – rehabilitation,deterrence and retribution. It is the last of thisretribution that most often can contradict the laws’ ownends. This is of particular concern when the Courtinterprets the meaning of the 8th Amendment in capitalcases. When the law punishes by death, it risks its owndissent into brutality transgressing the constitutionalcommitment to decency and restraint.37. Thus, there is a strong case which is made outbefore us that in India in the con<strong>text</strong> ofinternational law as well as the law as explained inthe American Courts, it would be a regressive stepto introduce death penalty for rape even wheresuch punishment is restricted to the rarest of rarecases. It is also stated that there is considerableevidence that the deterrent effect of death penaltyon serious crimes is actually a myth. According tothe Working Group on Human Rights, the murderrate has declined consistently in India over the last20 years despite the slowdown in the execution ofdeath sentences since 1980. Hence we do take noteof the argument that introduction of death penaltyfor rape may not have a deterrent effect.166 554 US 407 (2008)250


However, we have enhanced the punishment tomean the remainder of life.Castration38. On the question of chemical castration as a crueland unusual punishment, we find that chemicalcastration is an injection for sex offenders withdrugs such as Depo-Provera which has the effectof reducing the levels of testosterone and therebycontrolling libidinous urges. There are varyinggroups of drugs that effect libidinous urges, thesehave been categorized in the following way:“For patients with obsessive sexual fantasies,antidepressants from the family of SSRIs that includesProzac, often prescribed to treat obsessive compulsivedisorder, can help them control their sexual thoughts.The second and more radical approach is an antiandrogendrug, such as leuprorelin, which reducestestosterone levels to those of a prepubescent boy, andmakes the patient impotent.” 16739. It is important to understand that unlike surgicalcastration, the effects of chemical castration aretemporary and therefore repeated monitoreddoses at regular intervals is a necessary prerequisite.It is pointed out before us that 9 Statesin the United States of America have introducedlegislation which has permitted chemicalcastration of sex offenders, making it discretionaryfor the first time offenders and mandatory forrepeat offenders as a pre-condition for releasefrom imprisonment and/or release on parole. Tilldate, a challenge to the constitutionality of these167 Decca Aitkenhead, Chemical Castration: The Soft Option. TheGuardian, January 18, 2013.http://www.guardian.co.uk/society/2013/jan/18/chemicalcastration-soft-option-sex-offenders251


laws has not been considered by the US SupremeCourt. It is the stand of the Working Group onHuman Rights that mandatory chemical castrationfor sex offenders is unconstitutional as it wouldviolate the fundamental right to privacy and theright to refuse invasive medical treatment andwould constitute a violation of the prohibitionagainst “cruel and unusual punishment”contained in numerous international covenantsincluding the ICCPR and CAT.40. We note that it would be unconstitutional andinconsistent with basic human rights treaties forthe State to expose any citizen without theirconsent to potentially dangerous medical sideeffects. For this reason we do not recommendmandatory chemical castration of any type as apunishment for sex offenders. For the same reasonthe government of India also does not prescribechemical castration as a family planning method.41. However, we note that in the UK, sex offendertreatment programs sometimes offer chemicalcastration of one of the two types mentioned toconvicted sex offenders as a form of psychiatrictreatment. This is done in consultation withdoctors and psychiatrists with the consent of thesex offender. We recommend further research andstudy on the matter before commenting on itsapplicability or effectiveness in the Indian con<strong>text</strong>.42. We also notice from literature that side effects ofchemical substances like Depo-Provera mayinclude osteoporosis, hypertension, fatigue, weightgain, nightmares, muscle weakness and apart fromthat the long term side effects are still not known.We are further of the opinion that chemical252


castration fails to treat the social foundations ofrape which is about power and sexually deviantbehaviour. We therefore to hold that mandatorychemical castration as a punishment contradictshuman rights standards.43. We, therefore, reject the possibility of chemicalcastration as a means of punishment. We musttake on record a suggestion from a leading doctorfor permanent surgical castration. We think that amutilation of the body is not permitted by theConstitution. ‘Death’ is a known form of penaltybut mutilation has not been recognised inprogressive jurisprudence as prescribed punitiveaction.Reduction of age in respect of juveniles44. We have heard experts on the question ofreduction of the age of a juvenile from 18 to 16 forthe purpose of being tried for offences undervarious laws of the country. We must confess thatthe degree of maturity displayed by all thewomen's organizations, the academics and a largebody of thinking people have viewed this incidentboth in the criminological as well as societalperspective humbles us.45. Assuming that a person at the age of 16 is sent tolife imprisonment, he would be releasedsometimes in the mid-30s. There is little assurancethat the convict would emerge a reformed person,who will not commit the same crime that he wasimprisoned for (or, for that matter, any othercrime). The attempt made by Ms. Kiran Bedi toreform Tihar Jail inmates was, and continues to be,253


a successful experiment. But we are afraid thatthat is only a flash in the pan. Our jails do nothave reformatory and rehabilitation policies. Wedo not engage with inmates as human beings. Wedo not bring about transformation. We, therefore,breed more criminals including juveniles) in ourprison and reformatory system by ghettoing themin juvenile homes and protective homes wherethey are told that the State will protect andprovide for them, but which promise is a fruitlessone.46. Children, who have been deprived of parentalguidance and education, have very little chances ofmainstreaming and rehabilitations, with theprovisions of the Juvenile Justice Act beingreduced to words on paper.47. We are of the view that the 3 year period (forwhich delinquent children are kept in the custodyof special home) is cause for correction withrespect to the damage done to the personality ofthe child. We are completely dissatisfied with theoperation of children’s’ institutions and it is onlythe magistrate (as presiding officer of the JuvenileJustice Board) who seems to be taking an interestin the situation. The sheer lack of counselors andtherapy has divided the younger society into ‘I'and 'them'.48. We have also taken note of the fact thatconsidering the recidivism being 8.2% in the year2010, as against 6.9% during 2011, we are notinclined to reduce the age of a juvenile to 16.254


49. It is time that the State invested in reformation forjuvenile offenders and destitute juveniles. Thereare numerous jurisdictions like the UnitedKingdom, Thailand, and South Africa wherechildren are corrected and rehabilitated;restorative justice is done and abuse is prevented.We think this is possible in India but it requires adetermination of a higher order.50. Further, we Articles 37 and 38 of the Conventionon the Rights of Child clearly provide as follows:-“37. States Parties shall ensure that:(a) No child shall be subjected to torture or other cruel,inhuman or degrading treatment or punishment.Neither capital punishment nor life imprisonmentwithout possibility of release shall be imposed foroffences committed by persons below eighteen years ofage;(b) No child shall be deprived of his or her libertyunlaw<strong>full</strong>y or arbitrarily. The arrest, detention orimprisonment of a child shall be in conformity with thelaw and shall be used only as a measure of last resortand for the shortest appropriate period of time;(c) Every child deprived of liberty shall be treated withhumanity and respect for the inherent dignity of thehuman person, and in a manner which takes intoaccount the needs of persons of his or her age. Inparticular, every child deprived of liberty shall beseparated from adults unless it is considered in thechild's best interest not to do so and shall have the rightto maintain contact with his or her family throughcorrespondence and visits, save in exceptionalcircumstances;(d) Every child deprived of his or her liberty shall havethe right to prompt access to legal and other appropriateassistance, as well as the right to challenge the legality255


of the deprivation of his or her liberty before a court orother competent, independent and impartial authority,and to a prompt decision on any such action.38. (1) States Parties undertake to respect and toensure respect for rules of international humanitarianlaw applicable to them in armed conflicts which arerelevant to the child.(2) States Parties shall take all feasible measures toensure that persons who have not attained the age offifteen years do not take a direct part in hostilities.(3) States Parties shall refrain from recruiting anyperson who has not attained the age of fifteen years intotheir armed forces. In recruiting among those personswho have attained the age of fifteen years but who havenot attained the age of eighteen years, States Partiesshall endeavour to give priority to those who are oldest.(4) In accordance with their obligations underinternational humanitarian law to protect the civilianpopulation in armed conflicts, States Parties shall takeall feasible measures to ensure protection and care ofchildren who are affected by an armed conflict.51. We have also taken certain scientific factors intoaccount. Having regard to the development inneurosciences, we are of the view that adolescentbrain development is one of the important issuesin public policy. We have taken note of thereasons stated by the US Supreme Court forabolishing death penalty for juveniles in Roper v.Simmons 168 wherein it was quoted as follows:-“When a juvenile offender commits a heinous crime, theState can exact forfeiture of some of the most basicliberties, but the State cannot extinguish his life and hispotential to attain a mature understanding of his ownhumanity.168 543 U.S. 551 (2005)256


… … …Retribution is not proportional if the law's most severepenalty is imposed on one whose culpability orblameworthiness is diminished, to a substantial degree,by reason of youth and immaturity.”52. We have also noted the decision of the USSupreme Court in Graham v. Florida 169 as follows:-A State is not required to guarantee eventual freedom toa juvenile offender convicted of a nonhomicide crime.What the State must do, however, is give defendantslike Graham some meaningful opportunity to obtainrelease based on demonstrated maturity andrehabilitation. It is for the State, in the first instance, toexplore the means and mechanisms for compliance. Itbears emphasis, however, that while the EighthAmendment forbids a State from imposing a lifewithout parole sentence on a juvenile nonhomicideoffender, it does not require the State to release thatoffender during his natural life. Those who committruly horrifying crimes as juveniles may turn out to beirredeemable, and thus deserving of incarceration for theduration of their lives. The Eighth Amendment doesnot foreclose the possibility that persons convicted ofnonhomicide crimes committed before adulthood willremain behind bars for life. It does forbid States frommaking the judgment at the outset that those offendersnever will be fit to reenter society.53. We must also take note of the neurological state ofthe adolescent brain. Studies show thatadolescence is a period of significant changes inthe brain structure and function. There isconsensus among developmental neuroscientistson the nature of this change, which is aptly set out169 560 U. S. ____ (2010)257


in Laurence Steinberg’s ‘A Social NeurosciencePerspective on Adolescence Risk-Taking 170 ’ –“(i) There is a decrease in grey matter in prefrontalregions of the brain, reflective of synaptic pruning,the process through which unused connectionsbetween neurons are eliminated. The elimination ofthese unused synapses occurs mainly during preadolescenceand early adolescence, the period duringwhich major improvements in basic cognitiveabilities and logical reasoning are seen, in part dueto these very anatomical changes.(ii) Important changes in activity involving theneurotransmitter dopamine occur during earlyadolescence, especially around puberty. There aresubstantial changes in the density and distributionof dopamine receptors in pathways that connect thelimbic system, which is where emotions areprocessed and rewards and punishmentsexperienced, and the prefrontal cortex, which is thebrain’s chief executive officer. There is moredopaminergic activity in these pathways during thefirst part of adolescence than at any other time indevelopment. Because dopamine plays a critical rolein how humans experience pleasure, these changeshave important implications for sensation-seeking.(iii) There is an increase in white matter in theprefrontal cortex during adolescence. This is largelythe result of myelination, the process through whichnerve fibres become sheathed in myelin, a white,fatty substance that improves the efficiency of braincircuits. Unlike the synaptic pruning of theprefrontal areas, which is mainly finished by midadolescence,myelination continues well into lateadolescence and early adulthood. More efficientneural connections within the prefrontal cortex areimportant for higher-order cognitive functions—planning ahead, weighing risks and rewards, and170 A social neuroscience perspective on adolescent risk-taking. LSteinberg - Developmental Review, 2008 – Elsevier.258


making complicated decisions, among others—thatare regulated by multiple prefrontal areas workingin concert.(iv) There is an increase in the strength ofconnections between the prefrontal cortex and thelimbic system. This anatomical change is especiallyimportant for emotion regulation, which isfacilitated by increased connectivity between regionsimportant in the processing of emotionalinformation and those important in self-control.These connections permit different brain systems tocommunicate with each other more effectively, andthese gains also are on-going well into lateadolescence.54. We are of the view that the material before issufficient for us to reach the conclusion that theage of ‘juveniles’ ought not to be reduced to 16years.259


CHAPTER TENPROVISION OF ADEQUATE SAFETYMEASURES AND AMENITIES IN RESPECTOF WOMEN1. The task of preventing the commission of heinouscrimes puts a greater responsibility on the statethan what it does to ensure justice is deliveredafter the crime is perpetrated. Apart from havingan efficient and honest law and order machinery, itis necessary that certain basic measures regardingprovision of civic amenities be undertaken by theState, so as to minimise opportunities for theperpetrators of the crimes.2. As a fundamental requirement, we strongly opinethat the State should undertake the task ofproviding well lit roads, streets and other commonspaces to the citizens. It is nothing but commonsense that crime hides in darkness and eradicationof darkness is an easy way to eradicate crime.3. It has been borne out from recommendationsreceived by us that in rural India, lack of propersanitation facilities also contribute to thecommission of sexual crimes against women. Atnight women have to get out of their houses to usesanitation facilities and these moments are abusedby anti-social elements. We opine that the issue ofprovision of adequate sanitation facilities invillages and urban areas has to be consideredurgently.4. On the issue of mobility, the State transportsystems do not appear to have safety measures to260


protect women. Not only are appropriate safetymeasures not in place, the Committee is shockedto note the large number of directions issued byvarious High Court and the Apex Court in thisregard, which are not being complied with by theCentral Government and various StateGovernments. A prime example would be thedirections of the Delhi High Court in Court on itsown motion v. Union of India & others 171 in respect ofthe use of dark film on car windows, whereSwatanter Kumar J. (as he then was) observed:“7. … … … Despite the fact that all concernedauthorities including the police, admit the use ofsuch black filmed vehicles in propagation of majorcrimes but still they are not able to prevent theiruser despite the fact that it also offends theprovisions of the Motor Vehicles Act, 1988(hereinafter referred to as 'the Act') and TheCentral Motor Vehicles Rules, 1989 (hereinafterreferred to as 'the Rules')….… … …9. Besides that it offends the law, use of black filmshas a very serious and dangerous consequenceeven in the field of crime. It is a commonknowledge that the cars or vehicles involved incommission of heinous crimes like kidnapping,abducting, rape and other serious offences,normally carry jet black films, thus, totallypreventing the offenders from being seen/identifiedby any person on the road.10. During the course of hearing, the learnedCounsel appearing for the various authoritiesaccepted this position. What is more important isthat the Additional Commissioner of Delhi Police,in charge of Traffic, who appeared in the Court,fairly stated that majority of the cars/vehiclesinvolved in commission of crimes use the blackfilms through which it is impossible to see inside171 139(2007) DLT 244261


the cars even from a very close distance. Lack ofwill to enforce this condition has resulted inserious prejudice to all concerned though it mighthave proved as a boon for the criminals.11. Another aspect of this traffic offence is that theauthorities are required to allow use of black filmsfor security reasons, particularly in relation to thepersons to whom high security is provided for theirprotection. This obviously being restricted to avery limited class of society, cannot, therefore, bepermitted to defeat the law as well as endanger thelife of a common man, particularly the women andchildren…”5. This position was subsequently reiterated by theSupreme Court in Avishek Goenka v. Union ofIndia 172 , where the Court observed:“1. Alarming rise in heinous crimes likekidnapping, sexual assault on women anddacoity have impinged upon the right to life andthe right to live in a safe environment which arewithin the contours of Article 21 of theConstitution of India. One of the contributoryfactors to such increase is use of black films onwindows/windshields of four-wheeled vehicles…2. The use of black films upon the vehicles givesimmunity to the violators in committing a crimeand is used as a tool of criminality, considerablyincreasing criminal activities. At times, heinouscrimes like dacoity, rape, murder and eventerrorist acts are committed in or with the aid ofvehicles having black films pasted on the sidewindows and on the screens of the vehicles. It isstated that because of non observance of thenorms, regulations and guidelines relating to thespecifications for the front and rear windscreensand the side windows of the vehicles, the172 (2012) 5 SCC 321262


offenders can move undetected in such vehiclesand commit crimes without hesitation….”Accordingly, the Apex Court issued, inter alia,the following direction:“27. For the reasons afore-stated, we prohibit theuse of black films of any VLT percentage or anyother material upon the safety glasses, windscreens(front and rear) and side glasses of all vehiclesthroughout the country. The Home Secretary,Director General/Commissioner of Police of therespective States/Centre shall ensure compliancewith this direction. The directions contained in thisjudgment shall become operative and enforceablewith effect from 4th May, 2012.”6. A cursory glance on any of India’s roads at anytime of day or night will show that these directionsof the Supreme Court are being openly flouted byall and sundry. It saddens the Committee to notethat the police forces of this country enforce thesedirections, and indeed law, only when orders arepassed by various courts, and then again, onlytake action for a few days.7. What is even more shocking is the incapability ofthe Government of India and of the various StateGovernments to implement even the most basicsafety measures with any amount of efficacy. Forexample, the Ministry of Home Affairs,Government of India, issued Office MemorandumNo. F. NO.15011/48/2009-SC/ST-W datedSeptember 4, 2009, to all State Government andUnion Territory Administrations. This OfficeMemorandum is titled “Advisory on Crime againstWomen – Measures needed to curb –regarding” andtakes note of no less than 8 advisories issued bythe Central Government to the States and Union263


Territories (between 1995 and 2007) in respect ofsteps to be taken for prevention of crimes andviolence against women. The said Memorandumthen observes as follows:“2. These advisories, inter-alia, include gendersensitization of the police personnel, adoptingappropriate measures for swift and salutarypunishment to public servants found guilty ofcustodial violence against women, minimizingdelays in investigations of murder, rape andtorture of women and improving its quality,setting up a ‘crime against women cell’ in districtswhere they do not exist, providing adequatecounselling centers and shelter homes for womenwho have been victimized, setting up of specialwomen courts, and improving the effectiveness ofschemes developed for the welfare andrehabilitation of women who are victimized withgreater emphasis on income generation to make thewomen more independent and self-reliant.3. Through the aforesaid advisories, the StateGovernments were also requested to undertake acomprehensive review of the effectiveness of themachinery in tackling the problem of women andto take appropriate measures aimed at increasingthe responsiveness of the law and order machinery.No doubt, some State Governments have takensome measures in this regard, however, the inputsregarding crime against women available with thisMinistry indicate that these measures need to bestrengthened further, so that the women folk feelsecure, enjoy their human rights and live their lifewith dignity and respect that they deserve. Despiteseveral steps being taken by the StateGovernments, picture still is very grim anddisappointing. Complaints are still being receivedregarding non-registration of FIRs andunsympathetic attitude of police personneltowards rape victims and victims of violence.”264


8. The said Memorandum also recommends, interalia, a series of steps for ensuring safety of women.Some of these are:“xx. For improving the safety conditions on road,the concerned departments of the StateGovernment must take suitable steps to:a. Increase the no. of beat constables, especiallyon the sensitive roads;b. Increase the number of police helpbooth/kiosks, especially in remote and lonelystretches;c. Increase police patrolling, especially duringthe night;d. Increase the number of women police officersin the mobile police vans;e. Set-up telephone booths for easy access topolice;f. Install people friendly street lights on allroads, lonely stretches and alleys; andg. Ensure street lights are properly andefficiently working on all roads, lonelystretches and alleys.”9. This clearly shows that the Executive of thiscountry is <strong>full</strong>y aware of the bare minimum stepsthat are required to ensure the safety of women,and has been aware of the same, as will be seenelsewhere in this Report, for several years. Yet,despite numerous recommendations,deliberations, consultations, studies, directionsfrom the judiciary and, most importantly, theprotests of civil society, the State continues to fallwoe<strong>full</strong>y short of ensuring the safety of women inthis country.10. The Committee is of the opinion that in respect ofall public transport vehicles which move after 5.30265


pm until 7.30 am, every transport vehicle musthave a security person.11. The Committee divides its suggestions into threeparts:-a. Whether it be rural or metropolitan area,the public transport vehicles must beadequately increased and it is the functionof the State to make sure that there isadequate means of transport which willincrease the level of security in respect ofwomen both during the day as well asnight.b. In relation to metropolitan towns, it isnecessary that public transport vehiclesmust be –i. well lit at night;ii. must have drivers who are securityvetted and who have an identity cardof certification by the police afterwhich alone they will be permitted todrive such vehicles;iii. in relation to vehicles which plybetween 5.30 pm and 7.30 am in themorning, it is necessary that each ofthese vehicles must have either amale or a female constable riding thebus in order to prevent anypossibility of an assault on women;c. In rural areas, for each public transportvehicle which will ply between 5.30 pm and7.30 am, there will be either a male or afemale police to be available in the vehicle.12. Such enforcements have become necessaryalthough they may be a drain on State Exchequer,266


ut having regard to the shameful incidents ofrape which have been witnessed in India over thelast five to six decades, it has become necessary tomake this recommendation. One of us, while hewas the Chief Justice of India had given a directionin the judgment passed in M.C. Mehta Vs. Union ofIndia 173 that:“Every holder of a permit issued by any of theroad transport authorities in the NCR and NCT,Delhi will within ten days from today, file with itsRTA a list of drivers who are engaged by himtogether with suitable photographs and otherparticulars to establish the identity of suchpersons. Every vehicle shall carry a suitablephotograph of the authorised driver, duly certifiedby the RTA. Any vehicle being driven by a personother than the authorised driver shall be treated asbeing used in contravention of the permit and theconsequences would accordingly follow.”13. The above direction must be implemented strictlyacross the country. Moreover, we recommend thatthe identities of drivers and other personnel whowork in public transport vehicles be vetted by thelocal Road Transport Authority and there must bea certification of their good character by at leasttwo known persons in the city where they areoperating. The local police should have acomplete database of information regarding suchpersonnel. We are of the view that every StateGovernment must have a computerised databasewhich would have details of –a. All the vehicles;b. Their real owners (as against benamiowners);173 (1997) 8 SCC 770267


c. It will be mandatory for the bus owners (orState Road Transport Corporations) todisplay, in good light, the bus numbers aswell as the name, age and address of thedrivers along with their photographs andcontact numbers. It should be displayedwithin the bus and should always be visibleon the outside of the bus as well;d. In all metropolitan towns, CCTV camerasshould be installed inside each bus. TheCCTV has to be installed in a tamper-proofcondition and it will be the duty of theconstable (woman or male) who istravelling in the bus to ensure that theCCTV is not tampered with;e. In addition, all buses should be fitted withtamper proof GPS systems. In respect ofnew buses, proposals should be made toengine/chassis manufacturers to build suchGPS tracking system into theengine/chassis before delivery to thecustomer;f. In metropolitan areas, the city can bedivided into different zones where if thereis a deviation of the bus from the allottedroute, immediately the centralised systemcan be set in motion;g. The Station House Officer in each area willbe responsible for the patrolling of thebuses by the PCR vans as and whennecessary and also will be personallyresponsible for the conduct of the268


constables who are deputed inside the bus;andh. It is necessary to have simple hotlinenumbers which can be dialled bypassengers when need arises. We alsopropose that downloadable mobile phoneapplications may be developed so thatcitizens can, with one click or touch, senddistress signals to the police. Technologymay also be developed so as to track thesignals or messages sent thus. In thisrespect, we have, after consultation withexperts, suggested a ‘Public EmergencyResponse System’ (at Appendix 6), whichmay be considered.14. We further express our distress that the State hasturned a blind eye to poor and destitute women,and women who are victims of domestic violenceand who are unable to provide shelter forthemselves. This fundamental lack of empathy,understanding and engagement reflects poorly onthe State, which has the constitutionalresponsibility to provide for those who lack accessto justice.15. The Constitution grants every citizen afundamental right to protection againstperpetration of injustice. We would like to remindthe State that it is duty-bound to provide safespaces or safe residences for not only destitute,disabled and abused women, but also for workingwomen who are unable to find suitableaccommodation, especially in metropolitan areas.16. Even though Section 6 of Protection of Womenagainst Domestic Violence Act, 2005, provides269


victims of domestic violence to avail of the facilityof shelter, we notice that the State has not madeany such provision. We opine that the concept of‘shelter homes’ under the said Act may beextended to the protection of destitute women.These homes, which serve as ‘safe spaces’ fordestitute women, should not be confused withprotection homes and corrective institutions underother statutes.17. We recommend that the State should take thefollowing actions:a) Safe spaces should be completely accessible topersons with disabilities in architecturaldesign, management and provision of services.b) Residents of Safe Spaces to be trained andthese institutions ought to be managed in amanner where the residents have aparticipatory role.c) Where destitute women have children,concrete linkages to child rights services.d) Institutional access to comprehensive healthcare services.e) Physical location of Safe Spaces should becentrally located with public services in closeproximity and connected by public transport.f) Destitute women should not beinstitutionalized and sent to protective homesor beggar homes. They should also not to besent to jails for their safe keeping.270


18. If necessary steps are not taken by the State toprovide basic amenities and guarantees in linewith the Constitutional mandate, the State runs therisk of alienating its own citizens. We are phrasingthis note of caution consciously.271


CHAPTER ELEVENMEDICO-LEGAL EXAMINATION OF THEVICTIM1. It is recommended that when a call is made to thesexual assault helpline 174 , police personnel and adesignated unmarked ambulance attached to a‘Sexual Assault Crisis Centre’ 175 (hereinafterreferred to as ‘the Centre’) reach the location andas soon as possible transport the survivor to theCentre. Other injured people, if any, should betaken to the nearest hospital.2. It goes without saying that the life of the victim isto be preserved before legal formalities are met. Inan eventuality that the life of a victim will be betterprotected by taking him/her to the nearesthospital rather than SACC, the latter option willhave to be adopted as an emergency measure. Weemphasise that this should be resorted to only inextreme emergencies.3. The Supreme Court in the case of Pt. ParmanandKatara Vs. Union of India 176 has emphasised theparamount, absolute and total obligation ofdoctors, whether in private or government service174 Details on the technology and nature of helpline may be seen atAppendix 6.175 The Centre should be a specifically and exclusively designatedspace within the premises of a hospital and should be a reclusive andinconspicuous space. The hospital in question could either be agovernment or a private hospital. There should be adequate securityprovided at the place. There should be at least 3 rooms – a waitingroom, a medical examination room and a counseling/ consultationroom. The examination room should preferably have access to atoilet and a shower. The surroundings should also be child friendly.They should be non-threatening, sanitized and well-lit.176 (1989) 4 SCC 286272


to extend his/her services with due expertise forprotecting the life of the victim withoutinterference from laws of procedure. This dutyneeds no support from any code of ethics or rule oflaw. The said decision also casts a duty on the statemachinery to abstain from unduly harassingdoctors who will have to be witnesses in suchcases.4. The Court directed that this duty be dulypublished through visual, audio and print media.However, we observe that these directions havenot been adequately complied with and doctors,especially in private hospitals, are extremely waryto deal with cases of this nature. In our opinion,the duty of the medical profession to extendunqualified services to victims of such heinousoffences should be duly publicised and medicalprofessionals and hospitals who abstain fromperforming the same ought to be punished inaccordance with law.5. The Centre should be private, discreet and shouldat all times have all the facilities required topreserve the life of the victim and for her recovery.In particular it should have a female gynaecologistand a professionally qualified counsellor (who istrained to handle medico legal cases and is alsofemale as far as feasible) available on the premises.The counsellor should be professionally qualifiedto deal with victims who are persons withdisabilities also. The Centre should have asanitised medical examination room with a ‘sexualassault investigation kit’ available on the premises.Proper refrigeration and storage facilities forpreserving forensic evidence including DNAshould be available at the Centre.273


6. Subject to her physical health and choice, the firstinteraction of the victim should be with thecounsellor and thereafter with the doctor and thepolice. At the very outset the counsellor mustinform the victim about the procedure to ensueand also make her aware of her rights. . There willalso be a readily available set of names andtelephone numbers of lawyers at the Centre and alawyer from the list will be contacted by thecounsellor to render assistance during recording ofher statement by the police.7. We are also in agreement that the report of themedico-legal examination of the victim in a rape /sexual assault case should, besides containing theusual form of particulars, deal specifically with:-(i) Age of the victim;(ii) Injuries to the body of the victim;(iii) General mental condition of the victim(iv) Counsellors report regarding disabilities ofthe victim, if any; and(v) Other material particulars8. We have discussed a model checklist of guidelinesin this respect, which shall be henceforth adoptedby medical examiners in all rape cases. Weassume that necessary circulars, in this regard, willbe issued administratively until they areincorporated statutorily in the CrPC.9. The issue of whether sexual assault occurred is alegal issue and not a medical diagnosis.Consequently, doctors should not, on the basis ofthe medical examination conclude whether rapehad occurred or not. Only findings in relation to274


medical findings should be recorded in themedical report.10. It is crucial to underscore that the size of thevaginal introitus has no bearing on a case of sexualassault, and therefore a test to ascertain the laxityof the vaginal muscles which is commonly referredto as the two-finger test must not be conducted.On the basis of this test observations/ conclusionssuch as 'habituated to sexual intercourse' shouldnot be made and this is forbidden by law.11. Routinely, there is a lot of attention given to thestatus of hymen. The “finger test” is alsoconducted to note the distensibility of the hymen.However it is largely irrelevant because the hymencan be torn due to several reasons. An intacthymen does not rule out sexual assault, and a tornhymen does not prove previous sexual intercourse.Hymen should therefore be treated like any otherpart of the genitals while documentingexamination findings in cases of sexual assault.Only those that are relevant to the episode ofassault (findings such as fresh tears, bleeding,oedema etc.) are to be documented.12. We also are of the opinion that the medico-legalexamination report should note the date and timeof examination and be sent without delay to theconcerned investigating officer. To avoidunnecessary delays, the report must betransmitted to the IO by way of email (as a securePDF file – digitally signed where possible), inaddition to sending by way of regular governmentpost. It is in this background that Section 164Awas introduced to the CrPC. The Law275


Commission, in its 84 th Report, recommended theinsertion of Section 164A in the following terms:-“4.8 We next deal with the victim. In manycases, the report of the medical examiner as tothe examination of the female victim is alsofound to be somewhat cursory and does notgive adequate information about the materialparticulars which are necessary for anadjudication as to the various ingredients ofsection 375. Further, it is sometimes noticedthat the medical examination report is not sentpromptly to the investigating officer. As aresult, the possibility of tampering with thereport remains.In our opinion, the report of the examinationof the victim in a case of rape should (besidescontaining the usual formal particulars) dealspecifically with-(i) the age of the victim,(ii) the question whether the victim waspreviously used to sexual intercourse,(iii) injuries to the body of the victim,(iv) general mental condition of the victim,and(v) other material particulars inreasonable detail.It is also necessary that the report shouldnote the time of examination and be sentwithout delay to the investigating officer. It isvery important that the report should statereasons for the conclusions recorded.”13. Parliament enacted the said Section 164A twentyfiveyears later as follows:-“164 A. Medical examination of the victim ofrape. – (1) Where, during the stage when anoffence of committing rape or attempt tocommit rape is under investigation, it is276


proposed to get the person of the woman withwhom rape is alleged or attempted to have beencommitted or attempted, examined by a medicalexpert, such examination shall be conducted bya registered medical practitioner employed in ahospital run by the Government or a localauthority and in the absence of a such apractitioner, by any other registered medicalpractitioner, with the consent of such woman orof a person competent to give such consent onher behalf and such woman shall be sent to suchregistered medical practitioner within twentyfourhours from the time of receiving theinformation relating to the commission of suchoffence.(2) The registered medical practitioner, towhom such woman is sent shall, without delay,examine her and prepare a report of hisexamination giving the following particulars,namely:-(i) the name and address of the womanand of the person by whom she wasbrought;(ii) the age of the woman;(iii) the description of material takenfrom the person of the woman forDNA profiling;(iv) marks of injury, if any, on the personof the woman;(v)general mental condition of thewoman; and(vi) other material particulars inreasonable detail.(3) The report shall state precisely the reasonsfor each conclusion arrived at.(4) The report shall specifically record that theconsent of the woman or of the personcompetent to give such consent on her behalf tosuch examination had been obtained.277


(5) The exact time of commencement andcompletion of the examination shall also benoted in the report.(6) The registered medical practitioner shall,without delay forward the report to theinvestigation officer who shall forward it to theMagistrate referred to in section 173 as part ofthe documents referred to in clause (a) of subsection(5) of that section.(7) Nothing in this section shall be construed asrendering lawful any examination without theconsent of the woman or of any personcompetent to give such consent on her behalf.Explanation. – For the purposes of this section,“examination” and “registered medicalpractitioner” shall have the same meanings asin section 53.”14. Thus, we note that Parliament has acted inalignment with modern understanding thatprevious sexual intercourse of woman would beirrelevant.15. We are also of the opinion that the medicalexamination of a rape/sexual assault victim mustnecessarily take place under the supervision of asenior female obstetrician/gynaecologist. In theevent an obstetrician/gynaecologist is notavailable, it shall be a senior female doctor whowill examine a rape victim. We also recommendthat in order to ensure that there is a consensus ofopinion on the medical examination, a board ofthree doctors must examine a rape/sexual assaultvictim. We believe it is important that thedeliberations of the said board of doctors berecorded as an audio recording, which must belater made available to a court to satisfy itself that278


there has been a fair consensus building in relationto the opinion formation as far as the victim isconcerned.16. We are of the opinion that the medicalexamination of a victim of sexual assault/rapeought to be conducted in the following minimumconditions:a) The equipment used in the examination mustbe adequate for the purpose and must, to theextent possible, confirm to internationalstandards;b) The examination room must be well ventilatedand well lit with fixed lighting;c) It is better, unless the victim is an adultwoman of mature years, to examine orally firstthe mother or older relative by whom thevictim is accompanied. The circumstances inwhich the offence is alleged to have beencommitted shall be ascertained from suchrelative;d) In any event, a trained same-sex supportperson or trained health worker should bepresent during the course of the examination;e) The examining doctor, with the help of thevictim’s relatives / health worker, mustexplain to the victim each step of theexamination and why each such step isimportant to the examination;f) The victim must be assured that she is incontrol of the pace, timing and components ofthe examination and that she will not be forcedto undergo any particular step(s) of theexamination if she is uncomfortable with thesame;279


g) In the event the victim does not consent to thewhole or part of the medical examination, themedical examiner should refrain from makingany adverse remarks in this regard;h) The victim must be reassured that theexamination findings will be kept confidentialoutside of the knowledge of the IO and thecourt; andi) The victim must be shown a copy of the reportand the contents of the same must beexplained to her.17. We have examined various protocols issued fromtime to time relating to medical examination ofrape / victims of sexual offences by the WHO, andwe have also discussed the matter at length withphysicians and experts working in this field. Basedon our deliberations, we have suggested a set ofguidelines for the medical and psychologicalexamination of victims of rape/sexual assault,which can be seen at Appendices 7 and 8 hereto.18. We have perused the order dated 23.04.2009passed by the Delhi High Court in DelhiCommission for Women Vs. Delhi Police W.P (Crl)No. 696 of 2008 and it is seen that the said ordercontains a set of comprehensive guidelines topolice, hospitals/doctors, Committees, SessionsCourts, Magistrate Courts, Prosecutors and otherconcerned authorities in order to tackle cases ofsexual offences. The said guidelines havecomprehensively laid down protocols andprocedures to be followed for medical examinationof the victim. In our opinion, these guidelines,which are extracted below ought to be the startingpoint for arriving at a standardised protocol for280


medical examination which adheres tointernational standards. The orders reads as:“(a) “Crises Intervention Centre” means arecognized agency, appointed by the Delhi Policeand the Delhi Commission for Women forresponding to calls of sexual assault at the policestation to provide counselling and other supportservices to victims of rape;(b) “Expert” means a person who is qualified andhas experience in dealing with cases of sexualviolence;(c) “Guardian” includes besides the naturalguardian, support person or any person appointedby the Child Welfare Committee for a specifiedperiod to take case of the victim during thependency of trial;(d) “Rape Crises Cell” means a cell establishedunder the Delhi Commission for Women to providelegal assistance in the cases of sexual assault whowould coordinate the Crises Intervention Centresand provide legal support to the victim and herfamily;(e) “Support person” means a person working inthe capacity of a Counsellor working with arecognized and registered Crises InterventionCentres, approved by the Delhi Commission forWomen.(f) The expression “offence” for the purpose of theseguidelines shall mean and include offences of rape,attempt to rape and unnatural offences.(I) POLICE(a) Every Police Station shall have available roundthe clock a lady police official/ officer not below therank of Head Constable.(b) As soon as a complaint of the offence is received,the duty officer receiving the complaint/information shall call the lady police official/ officerpresent at the police station and make the victimand her family comfortable.281


(c) The duty officer, immediately, upon receipt ofthe complaint/ information intimate to the “RapeCrises Cell” on its notified helpline number.(d) After making preliminary inquiry/investigation, the Investigating Officer along withthe lady police official/ officer available, escort thevictim for medical examination.(e) The Assistant Commission of Police shallpersonally supervise all investigation into the office.(f) The statement of victim shall be recorded inprivate, however, the presence of family memberswhile recording statement may be permitted with aview to make the victim comfortable. In incest caseswhere there is a suspicion of complicity of thefamily members in the crime such family membersshould not be permitted.(g) The Investigating Officer shall bring the casesrelating to “child in need of case and protection”and the child victim involving in incest cases to theChild Welfare Committee.(h) The accused should not be brought in thepresence of victim except for identification.(i) Except the offences which are reported duringthe night no victim of sexual offence shall be calledor made to stay in the police station of NCT ofDelhi shall ensure that Superintendents of theFoster Home for Women will provide necessaryshelter till formal orders are secured from theconcerned authorities.(j) The Investigating Officer shall endeavour tocomplete the investigation at the earliest and heshall ensure that in no case the accused gets theundue advantage of bail by default as per theprovisions of Section 167, Cr.P.C. It is desirablethat incases of incest the report under Section 173,Cr.P.C. is filed within 30 days.(k) Periodically Training to deal with rape casesshould be provided to the Police Officers, JuvenilePolice Officers, Welfare Officers, ProbationaryOfficers and Support Persons. A Training Modulebe prepared in consultation with the Delhi JudicialAcademy;(l) The Police should provide information to theRape Crisis Cell regarding the case including the282


arrest and bail application of the accused, the dateof filing of the investigation report before theMagistrate;(m) The Police should keep the permanentaddress of the victim in their file in addition to thepresent address. They should advise the victim toinform them about the change of address in future;(n) Subject to the outcome of the W.P. (C)2596/2007 titled Rajeev Mohan v. State, pendingbefore this Hon’ble Court in cases where the victiminforms the police about any threats received by theaccused family, the concerned DCP should considerthe matter and fresh FIR must be registered underSection 506 of the Indian Penal Code;(II) DOCTORS/ HOSPITALS/ HEALTHDEPARTMENT(a) Special rooms to be set up in all Governmenthospitals for victims to be examined and question inprivacy;(b) A sexual assault evidence collection kit or sexualassault forensic evidence (SAFE) kit consisting of aset of items used by medical personnel for gatheringand preserving physical evidence following a sexualassault should be available with all the GovernmentHospitals. A sexual assault evidence collection kitshould contain commonly available examinationtools such as;* Detailed instructions for the examiner.* Forms for documentation.* Tube for blood sample.* Urine Sample container* Paper bags for clothing collection* Large sheet of paper for patient to undress over.* Cotton swabs for biological evidence collection* Sterile water.* Glass slides* Unwaxed dental floss.* Wooden stick for fingernail scrapings.* Envelopes or boxes for individual evidencesamples.* Labels.283


Other items needed for a forensic / medical examand treatment that may be included in the rape kitare :* Woods lamp* Toluidine blue dye.* Drying rack for wet swabs and/or clothing.* Patient gown, cover sheet, blanket, pillow.* Needles/ Syringes for blood drawing.* Speculums* Post – It Notes used to collect trace evidence* Camera (35 mm, digital, or Polaroid), filmbatteries.* Med-scope and/or colcoscope.* Microscope* Surgilube* Acetic acid diluted spray* Medications* Clean clothing and shower/ hygiene items forthe victim’s use after the exam.(c) A detailed description of “Assault/ AbuseHistory” be mentioned by the attending doctors onthe MLC of victim; The doctor must ensure that thecomplete narration of the history of the case detailedby the victim and her escort is recorded.(d) After the examination is complete the victimshould be permitted to wash op using toiletriesprovided by the hospital. The hospital should alsohave clothing to put on if her own clothing is takenas evidence.(e) All hospitals should co-operate with the policeand preserve the samples likely to putrefy in theirpathological facility till such time the police are ableto complete their paper work for despatch to forensiclab test including DNA.(III)CHILD WELFARE COMMITTEE(a) In cases of incest and child in need of care andprotection, the child Welfare Committee shallexamine the victim to ascertain the nature ofsupport she is getting from her family and initiatesteps for ensuring best interests of the child. Insuch cases the Child Welfare Committee shall284


conduct a home study to assess and ensure thesafety of the victim.(b) In cases where the child is placed in the shelter,the Committee shall monitor the condition of thevictim closely.(c) In case of incest, while the victim stays in thefoster home the family members should be allowedto meet the victim only in the presence of thesupport person and care be taken by the staff of thehome that the meeting be not used to pressurize/influence the victim to change for statement;(d) Child Welfare Committee shall ensure thatrehabilitation facilities are provided to the victim inappropriate cases. In cases of a prolonged stay, thevictim should be given educational and vocationaltraining in order to enable the victim to supportherself after she leaves the foster home. The SocialWelfare Department and Child Welfare Committeewill develop and implement Foster Care Serviceswithin two months.(e) Before passing any order of restoration ofcustody of child to the family, the Child WelfareCommittee shall conduct an inquiry to assess thesuitability of the victim being restored to the family.The custody of the child will be altered by the ChildWelfare Committee only after consultation with thestake holders;(f) Child Welfare Committee shall ensure that thevictim is provided with necessary medical andpsychological aid during her stay in foster home forthe purpose of her rehabilitation;(g) Child Welfare Committee shall maintain a list ofall registered Foster Homes providing residentialsupport, special services and rehabilitation facilitiesto the victim.(IV)PROSECUTORS(a) In cases where the child is placed in a shelterfollowing the orders of the Child WelfareCommittee or a Metropolitan Magistrate, theapplication seeking custody of the child made by theparents/ relatives of the victim should not beacceded to till such time, the Public Prosecutor gets285


the status of the applicants verified with the RapeCrisis Cell and also call for the records of the ChildWelfare Committee if it is not available.(V)COURTS(a) The Magistrate unless there are compellingreasons shall record the statement of the victimunder Section 164, Cr.P.C. on the day on which theapplication is moved by the Investigating Officer.The Magistrate before proceeding to record thestatement shall ensure that the child is madecomfortable and she is free from the extraneouspressure.(b) An endeavour shall be made to commit suchcases of offence to the Court of Sessionsexpeditiously and preferably within 15 days.(c) The Hon’ble Supreme Court in Delhi DomesticWorking Women Forum v. Union of India, (1995)1 SCC 14 and reiterated by this Hon’ble Court inKhem Chand v. State of Delhi, 208 (4) JCC 2497had directed that the victim be provided with aCounsel. The existing practice of the victims beingrepresented by a Counsel from the Rape Crisis Cellmay continue. In cases where the victim has aprivate lawyer, she may be allowed to retain theprivate lawyer.(d) That as far as possible chief examination andcross-examination of the victim must be conductedon the same day;(e) The Additional Sessions Judge/ District Judgeshall maintain a panel of psychiatrists,Psychologists and experts in sigh language, etc.who would assist in recording the statement ofwitnesses as and when requested by the SessionsCourts.(f) If it is brought the notice of the Court from asupport person/ Rape Crises Cell Advocate/ victim,regarding threats received by the victim or herfamily members to compromise the matter, theJudge shall immediately direct the ACP to look in tothe matter and provide an action taken report beforethe Court within 2 days. The Court must ensure286


that protection is provided to the victim and herfamily.(g) In cases in which the witness is sent backunexamined and is bound down, the Court shallensure that at least the travelling expenses forcoming to and from for attending the Court arepaid.(VI)SUPPORT SERVICES(a) A 24 – hour helpline that can be contacted bythe victims, police or any member of the public willbe created. The Commission shall notify and widelypublish its existing telephone number and thatnumber will be used till such time a toll-freenumber is made available.(b) The Rape Crisis Cell will have with themaccredited support services for shelter, socialworkers, Counsellors mental health professional,lawyers;(c) The list of these accredited support services willbe provided to the Prosecution Branch, theCommissioner of Police as well as to the Registrarof this Hon’ble Court,”19. We are also of the opinion that the medicalexamination report must be prepared, preferablyimmediately after the examination, but mostcertainly on the same date as the examination andmust be forwarded to the investigating agencyforthwith without delay. The DNA and othersamples should be sent to the concerned ForensicScience Labs or DNA Profiling Centres within twodays of the incident. We are also of the opinionthat any dereliction of duty on part of theexamining doctor(s) to undertake the medicalexamination properly and forwarding the report tothe IO without any delay, and any dereliction ofduty on the part of the investigating agency incollecting the report or causing the victim to be287


taken to the nearest hospital for examination,would be punishable as offences (in respect of theinvestigating agency) and by way of disciplinaryproceedings (in respect of the examining doctor).Evidence and trial of rape / sexual assault cases20. Section 327 of the CrPC now contains a proviso(enacted pursuant to the 42 nd Law CommissionReport) which enables the Presiding Judge orMagistrate, for reasons to be recorded, to direct anin camera enquiry and trial of rape and alliedoffences. In this regard, there are two importantfacets which need to be considered.21. First, should the entire enquiry and the trial beconducted in camera? The Committee feels that,while to protect the testimony of the victim, theexamination in chief and cross examination mustbe done in camera, we believe that unless there arecompelling reasons, the remainder of the trialmust be attempted to be conducted in open courtbecause it is also important that women’sorganisations, members of the media andmembers of the general public should also be ableto observe the conduct of the trial. In any event,the victim must have a member of the women’sorganisation inside to offer moral support.22. In this con<strong>text</strong> the following extract from thedecision of the Supreme Court in State of Punjab v.Gurmeet Singh 177 will be a guiding beacon:“These two provisions are in the nature of exception tothe general rule of an open trial. In spite of theamendment, however, it is seen that the trial courts177 (1996) 2 SCC 384288


either are not conscious of the amendment or do notrealise its importance for hardly does one come across acase where the inquiry and trial of a rape case has beenconducted by the court in camera. The expression thatthe inquiry into and trial of rape “shall be conducted incamera” as occurring in sub-section (2) of Section 327CrPC is not only significant but very important. Itcasts a duty on the court to conduct the trial of rapecases etc. invariably “in camera”. The courts are obligedto act in furtherance of the intention expressed by thelegislature and not to ignore its mandate and mustinvariably take recourse to the provisions of Section327(2) and (3) CrPC and hold the trial of rape cases incamera. It would enable the victim of crime to be a littlecomfortable and answer the questions with greater easein not too familiar a surroundings. Trial in camerawould not only be in keeping with the self-respect of thevictim of crime and in tune with the legislative intentbut is also likely to improve the quality of the evidenceof a prosecutrix because she would not be so hesitant orbashful to depose frankly as she may be in an opencourt, under the gaze of public. The improved quality ofher evidence would assist the courts in arriving at thetruth and sifting truth from falsehood. The High Courtswould therefore be well-advised to draw the attention ofthe trial courts to the amended provisions of Section327 CrPC and to impress upon the Presiding Officers toinvariably hold the trial of rape cases in camera, ratherthan in the open court as envisaged by Section 327(2)CrPC. When trials are held in camera, it would not belawful for any person to print or publish any matter inrelation to the proceedings in the case, except with theprevious permission of the court as envisaged bySection 327(3) CrPC. This would save any furtherembarrassment being caused to the victim of sex crime.Wherever possible, it may also be worth consideringwhether it would not be more desirable that the cases ofsexual assaults on the females are tried by lady Judges,wherever available, so that the prosecutrix can make herstatement with greater ease and assist the courts toproperly discharge their duties, without allowing thetruth to be sacrificed at the altar of rigid technicalitieswhile appreciating evidence in such cases. The courtsshould, as far as possible, avoid disclosing the name of289


the prosecutrix in their orders to save furtherembarrassment to the victim of sex crime. Theanonymity of the victim of the crime must bemaintained as far as possible throughout. In the presentcase, the trial court has repeatedly used the name of thevictim in its order under appeal, when it could have justreferred to her as the prosecutrix. We need say no moreon this aspect and hope that the trial courts would takerecourse to the provisions of Sections 327(2) and (3)CrPC liberally. Trial of rape cases in camera should bethe rule and an open trial in such cases an exception”.23. Secondly, it is important to have properlysensitized judges to conduct such trials. We havenoted disturbing recounts of how rape victimshave been actually pulverised in camera whilesuddenly facing a group of men in a hostileenvironment. The purpose of an in cameraproceeding is to create an environment for thevictim, which is conducive to the conduct of a fairtrial. Here, we are of the opinion that judges whoactually try rape cases must be care<strong>full</strong>y chosen bythe Chief Justice of the High Court and there mustbe a very conscientious allocation of work whenrape cases are tried by such judges. We are also ofthe opinion that High Courts suo motu issueappropriate guidelines to ensure that there is afriendly and non-hostile environment in such incamera proceedings in respect of rape/sexualassault cases. This can be easily undertaken by theCourt in the exercise of the High Court’sjurisdiction under Article 235 of the Constitution,and has, in fact, been undertaken by the DelhiHigh Court in Virender v. State of NCT of Delhi 178 ,where Gita Mittal J. directed that the following178 Judgment of the Delhi High Court dated September 29, 2009 inCriminal Appeal No. 121 of 2009.290


guidelines be implemented immediately in variouscourts in Delhi:“I. POLICE(i). On a complaint of a cognisable offence involving achild victim being made, concerned police officer shallrecord the complaint promptly and accurately.(ii). Upon receipt of a complaint or registration ofFIR for any of the aforesaid offences, immediate stepsshall be taken to associate a scientist from ForensicScience Laboratory or some other Laboratory ordepartment in the investigations. The InvestigatingOfficer shall conduct investigations on the pointssuggested by him also under his guidance and advice.(iii). The investigation of the case shall be referred toan officer not below the rank of Sub- Inspector,preferably a lady officer, sensitized by impartingappropriate training to deal with child victims ofsexual crime.(iv). The statement of the victim shall be recordedverbatim.(v). The officer recording the statement of the childvictim should not be in police uniform.(vi). The statement of the child victim shall berecorded at the residence of the victim or at any otherplace where the victim can make a statement freelywithout fear.(vii). The statement should be recorded promptlywithout any loss of time.(viii). The parents of the child or any other person inwhom the child reposes trust and confidence will beallowed to remain present.(ix). The Investigating Officer to ensure that at nopoint should the child victim come in contact with theaccused.291


(x) The child victim shall not be kept in the policestation overnight on any pre<strong>text</strong>, whatsoever,including medical examination.(xi). The Investigating Officer recording thestatement of the child victim shall ensure that thevictim is made comfortable before proceeding torecord the statement and that the statement carriesaccurate narration of the incident covering allrelevant aspects of the case.(xii). In the event the Investigating Officer should sofeel the necessity, he may take the assistance of apsychiatrist.(xiii). The Investigating Officer shall ensure that thechild victim is medically examined at the earliestpreferably within twenty four hours (in accordancewith Section 164A Cr.P.C) at the nearest governmenthospital or hospital recognized by the government.(xiv). The Investigating Officer shall ensure that theinvestigating team visits the site of the crime at theearliest to secure and collect all incriminatingevidence available.(xv). The Investigating Officer shall promptly referfor forensic examination clothings and articlesnecessary to be examined, to the forensic laboratorywhich shall deal with such cases on priority basis tomake its report available at an early date.(xvi). The investigation of the cases involvingsexually abused child may be investigated on apriority basis and completed preferably within ninetydays of the registration of the case. The investigationshall be periodically supervised by senior officer/s.(xvii). The Investigating Officer shall ensure that theidentity of the child victim is protected frompublicity.292


(xviii). To ensure that the complainant or victim ofcrime does not remain in dark about theinvestigations regarding his complaint/FIR, thecomplainant or victim shall be kept informed aboutthe progress of investigations. In case thecomplainant gives anything in writing and requeststhe I.O., for investigations on any particular aspect ofthe matter, the same shall be adverted to by the I.O.Proper entries shall be made by I.O. in case diaries inregard to the steps taken on the basis of the requestmade by the complainant. The complainant, however,shall not be entitled to know the confidential matters,if any, the disclosure of which may jeopardize theinvestigations.(xix). Whenever the SDM/Magistrate is requested torecord a dying declaration, video recording also shallbe done with a view to obviate subsequent objectionsto the genuineness of the dying declaration.(xx). The investigations for the aforesaid offencesshall be personally supervised by the ACP of the area.The concerned DCP shall also undertake fortnightlyreview thereof.(xxi). The material prosecution witnesses cited in anyof the aforesaid offences shall be ensured safety andprotection by the SHO concerned, who shallpersonally attend to their complaints, if any.(xxii). Wherever possible, the IO shall ensure that thestatement of the child victim is also video recorded.II. RECORDING OF STATEMENT BEFOREMAGISTRATE(i). The statement of the child victim shall be recordedpromptly and at the earliest by the concernedMagistrate and any adjournment shall be avoidedand in case the same is unavoidable, reasons to berecorded in writing.293


(ii). In the event of the child victim being in thehospital, the concerned Magistrate shall record thestatement of the victim in the hospital.(iii). To create a child friendly environment separaterooms be provided within the Court precincts wherethe statement of the child victim can be recorded.(iv). The child victim shall not be separated fromhis/her parents/guardians nor taken out from his/herenvironment on the ground of "Ascertainingvoluntary nature of statement" unless theparents/guardian is reported to be abusive or theMagistrate thinks it appropriate in the interest ofjustice.(v). Wherever possible, the IO shall ensure that thestatement of the child victim is also video recorded.(vi). No Court shall detain a child in an institutionmeant for adults.III. MEDICAL EXAMINATION(i) Orientation be given to the Doctors, who prepareMLCs or conduct post mortems to ensure that theMLCs as well as post mortem reports are up to themark and stand judicial scrutiny in Courts.(ii). While conducting medical examination, childvictim should be first made comfortable as it isdifficult to make her understand as to why she isbeing subjected to a medical examination.(iii). In case of a girl child victim the medicalexamination shall be conducted preferably by a femaledoctor.(iv). In so far as it may be practical, psychiatrist helpbe made available to the child victim before medicalexamination at the hospital itself.294


(v). The report should be prepared expeditiously andsigned by the doctor conducting the examination anda copy of medical report be provided to theparents/guardian of the child victim.(vi). In the event results of examination are likely tobe delayed, the same should be clearly mentioned inthe medical report.(vii). The parents/guardian/person in whom childhave trust should be allowed to be present during themedical examination.(viii). Emergency medical treatment wherevernecessary should be provided to the child victim.(ix). The child victim shall be afforded prophylacticmedical treatment against STDs.(x). In the event the child victim is brought to aprivate/nursing home, the child shall be affordedimmediate medical attention and the matter bereported to the nearest police station.IV. COURT(i) To create a child friendly environment separaterooms be provided within the Court precincts wherethe statement of the child victim can be recorded.(ii) In case of any disability of the victim or witnessinvolving or impairing communication skills,assistance of an independent person who is in aposition to relate to and communicate with suchdisability requires to be taken.(iii) The trials into allegations of commission of rapemust invariably be in camera. No request in thisbehalf is necessary.(iv) The Committal Court shall commit such cases tothe Court of Sessions preferably within fifteen daysafter the filing of the chargesheet.295


(v). The child witness should be permitted to testifyfrom a place in the courtroom which is other than theone normally reserved for other witnesses.(vi) To minimise the trauma of a child victim orwitness the testimony may be recorded through videoconferencing or by way of a close circuit television. Ifthis is not possible, a screen or some arrangement bemade so that the victims or the child witness do nothave to undergo seeing the body or face of theaccused. The screen which should be used for theexamination of the child witness or a victim should beeffective and installed in such manner that thewitness is visible to the trial judge to notice thedemeanour of the witness. Single visibility mirrorsmay be utilised which while protecting thesensibilities of the child, shall ensure that thedefendant's right to cross examination is notimpaired.(vii) Competency of the child witness should beevaluated and order be recorded thereon.(viii) The trial court is required to be also satisfiedand ought to record its satisfaction that the childwitness understands the obligation to speak the truthin the witness box. In addition to the above, the courtis required to be satisfied about the mental capacity ofthe child at the time of the occurrence concerningwhich he or she is to testify as well as an ability toreceive an accurate impression thereof. The courtmust be satisfied that the child witness has sufficientmemory to retain an independent recollection of theoccurrence and a capacity to express in words orotherwise his or her memory of the same. The courthas to be satisfied that the child witness has thecapacity to understand simple questions which areput to it about the occurrence.There can be no manner of doubt that record of theevidence of the child witness must contain suchsatisfaction of the court.296


(ix) As far as possible avoid disclosing the name of theprosecutrix in the court orders to save furtherembarrassment to the victim of the crime; anonymityof the victim of the crime must be maintained as faras possible throughout.(x) The statement of the child victim shall be recordedpromptly and at the earliest by the concernedMagistrate and any adjournment shall be avoidedand in case the same is unavoidable, reasons to berecorded in writing.(xi) The court should be satisfied that the victim isnot scared and is able to reveal what has happened toher when she is subjected to examination during therecording of her evidence. The court must ensure thatthe child is not concealing portions of the evidence forthe reason that she has bashful or ashamed of whathas happened to her.(xii) It should be ensured that the victim who isappearing as a witness is at ease so as to improveupon the quality of her evidence and enable her toshed hesitancy to depose frankly so that the truth isnot camouflaged on account of embarrassment atdetailing the occurrence and the shame being felt bythe victim.(xiii) Questions should be put to a victim or to thechild witness which are not connected to case to makehim/her comfortable and to depose without any fear orpressure;(xiv) The trial judge may permit, if deemed desirableto have a social worker or other friendly, independentor neutral adult in whom the child has confidence toaccompany the child who is testifying. This mayinclude an expert supportive of the victim or childwitness in whom the witness is able to developconfidence should be permitted to be present andaccessible to the child at all times during his/hertestimony. Care should be taken that such persondoes not influence the child's testimony.297


(xv) Persons not necessary for proceedings includingextra court staff be excluded from the courtroomduring the hearing.(xvi) Unless absolutely imperative, repeatedappearance of the child witness should be prevented.(xvii) It should be ensured that questions which areput in cross examination are not designed toembarrass or confuse victims of rape and sexualabuse.(xviii) Questions to be put in cross examination onbehalf of the accused, in so far as they relate directlyto the offence, should be given in writing to thepresiding officer of the court who may put them to thevictim or witnesses in a language which is clear andis not embarrassing.(xix) The examination and cross examination of achild witness should be care<strong>full</strong>y monitored by thepresiding judge to avoid any attempt to harass orintimidate the child witness.(xx) It is the duty of the court to arrive at the truthand subserve the ends of justice. The courts have totake a participatory role in the trial and not act asmere tape recorders to record whatever is being statedby the witnesses. The judge has to monitor theproceedings in aid of justice in a manner thatsomething, which is not relevant, is not unnecessarilybrought into record. Even if the prosecutor is remissin some ways, the court can control the proceedingseffectively so that the ultimate objective that is thetruth is arrived at. The court must be conscious ofserious pitfalls and dereliction of duty on the part ofthe prosecuting agency. Upon failure of theprosecuting agency showing indifference or adoptingan attitude of aloofness, the judge must exercise thevast powers conferred under Section 165of theEvidence Act and Section 311 of the CrPC to elicit allnecessary materials by playing an active role in theevidence collecting process.298


(xxi) The judge is expected to actively participate inthe trial, elicit necessary materials from the witnessesat the appropriate con<strong>text</strong> which he feels necessary forreaching the correct conclusion. The judge hasuninhibited power to put questions to the witnesseither during chief examination or cross examinationor even during re-examination for this purpose. If ajudge feels that a witness has committed an error orslip, it is the duty of the judge to ascertain whether itwas so, for , to err is human and the chances of erringmay accelerate under stress of nervousness duringcross examination.(xxii) The court should ensure that theembarrassment and reservations of all thoseconcerned with the proceedings which includes theprosecutrix, witnesses, counsels may result incamouflage of the ingredients of the offence. Thejudge has to be conscious of these factors and riseabove any such reservations on account ofembarrassment to ensure that they do not cloud thetruth and the real actions which are attributable tothe accused persons.(xxiii) The court should ascertain the spokenlanguage of the witness as well as range ofvocabulary before recording the deposition. In makingthe record of the evidence court should avoid use ofinnuendos or such expressions which may be variablyconstrued. For instance gandi harkatein orbatamezein have no definite meaning. Therefore, evenif it is necessary to record the words of theprosecutrix, it is essential that what those wordsmean to her and what is intended to be conveyed aresensitively brought out.(xxiv) The court should ensure that there is no use ofaggressive, sarcastic language or a gruelling orsexually explicit examination or cross examination ofthe victim or child witness. The court should come299


down with heavily to discourage efforts to promotespecifics and/or illustration by any of the meansoffending acts which would traumatise the victim orchild witness and effect their testimony. The court toensure that no element of vulgarity is introduced intothe court room by any person or the record of theproceedings.(xxv) In order to elicit complete evidence, a childwitness may use gestures. The courts must care<strong>full</strong>ytranslate such explanation or description into writtenrecord.(xxvi) The victim of child abuse or rape or a childwitness, while giving testimony in court should beallowed sufficient breaks as and when required.(xxvii) Cases of sexual assaults on females be placedbefore lady judges wherever available. To the extentpossible, efforts be made that the staff in thecourtroom concerned with such cases is also of thesame gender.(xxviii) The judge should be balanced, humane andensure protection of the dignity of the vulnerablevictim. There should be no expression of gender biasin the proceedings. No humiliation of the witnessshould be permitted either in the examination in chiefor the cross examination.(xxix) A case involving a child victim or childwitness should be prioritized and appropriate actiontaken to ensure a speedy trial to minimise the lengthof the time for which the child must endure the stressof involvement in a court proceeding. Whileconsidering any request for an adjournment, it isimperative that the court considers and give weight toany adverse impact which the delay or theadjournment or continuance of the trial would haveon the welfare of the child.300


V. GENERAL(i) Effort should be made to ensure that there iscontinuity of persons who are handling all aspects ofthe case involving a child victim or witness includingsuch proceedings which may be out of criminal justicesystem. This may involve all steps commencing fromthe investigation to the prosecutor to whom the caseis assigned as well as the judge who is to conduct thetrial.(ii) The police and the judge must ascertain thelanguage with which the child is conversant andmake every effort to put questions in such language.If the language is not known to the court, efforts tojoin an independent translator in the proceedings,especially at the stage of deposition, should be made.(iii) It must be ensured that the number of times thata child victim or witness is required to recount theoccurrence is minimised to the absolutely essential.For this purpose, right at the inception, amultidisciplinary team involving the investigatingofficer and the police; social services resourcepersonnel as well as the prosecutor should be createdand utilised in the investigation and prosecution ofsuch cases involving a child either as a victim or awitness. This would create and inspire a feeling ofconfidence and trust in the child.(iv) The child victim shall not be separated fromhis/her parents/guardians nor taken out from his/herenvironment on the ground of "Ascertainingvoluntary nature of statement" unless theparents/guardian is reported to be abusive or theMagistrate thinks it appropriate in the interest ofjustice.(v) Courts in foreign countries have evolved severaltools including anatomically correct illustrations andfigures (as dolls). No instance of such assistance hasbeen pointed out in this Court. Extensive literaturewith regard to such aids being used by foreign courtsis available. Subject to assistance from experts, it301


equires to be scrutinised whether such tools can beutilised in this country during the recording of thetestimony of a child victim witness so as toaccommodate the difficulty and diffidence faced. Thisaspect deserves serious attention of all concerned asthe same may be a valuable tool in the proceedings toensure that the complete truth is brought out.(vi) No court shall detain a child in an institutionmeant for adults. This would apply to investigatingagencies as well.(vii) The judge should ensure that there is no mediareporting of the camera proceedings. In any case,sensationalisation of such cases should not bepermitted.”24. While the Committee is glad to note the directionsgiven by Mittal J. above, a perusal of the judgmentin Virender clearly points out that these directionshave previously been given, from time to time, byvarious Indian courts (including the SupremeCourt) and are being ignored by the police, theprosecutor and by the magistrate alike. In thisrespect, Mittal J. notes pithily:“84. The issue with regard to teaching of offencesregarding sexual assault and rape itself has been asource of much discussion. I am informed that thereare instances of even legal educators being bashfuland embarrassed about teaching such subjects.Judges and counsels are products of the legaleducation. The multi-faceted problem and concernsnoticed above are not confined to ensuring genderjustice in courts alone. In this background, it isabsolutely imperative that these areas of law and theissues which have been raised herein are taken upwith all seriousness. Perhaps the programme ofcontinuing legal education needs to take a look onthese questions.85. As noted above, the directions laid down in theaforenoticed judgments do not appear to be strictly302


followed. Some of the trial courts are either notconscious of their powers and duties as conferred bythe Code of Criminal Procedure and recognised bythe Indian Evidence Act or hesitant to exercisethem. These issues cannot be ignored any further.”25. It is also a matter of experience that the process ofadducing evidence in trial of cases involvingrape/sexual offences often turns out to be anordeal for the victim. She is put throughconsiderable mental harassment owing toinsensitive handling of the situation by courts andlawyers. The Hon’ble Supreme Court, in State ofPunjab Vs. Gurmeet Singh ( cited supra at page 403)observed anxiously as under:“The courts should examine the broader probabilitiesof a case and not get swayed by minor contradictionsor insignificant discrepancies in the statement of theprosecutrix, which are not of a fatal nature, to throwout an otherwise reliable prosecution case. If evidenceof the prosecutrix inspires confidence, it must berelied upon without seeking corroboration of herstatement in material particulars. If for some reasonthe court finds it difficult to place implicit reliance onher testimony, it may look for evidence which maylend assurance to her testimony, short ofcorroboration required in the case of an accomplice.The testimony of the prosecutrix must be appreciatedin the background of the entire case and the trialcourt must be alive to its responsibility and besensitive while dealing with cases involving sexualmolestations.”There has been lately, lot of criticism of the treatmentof the victims of sexual assault in the court duringtheir cross-examination. The provisions of EvidenceAct regarding relevancy of facts notwithstanding,some defence counsel adopt the strategy of continualquestioning of the prosecutrix as to the details of therape. The victim is required to repeat again andagain the details of the rape incident not so much as303


to bring out the facts on record or to test hercredibility but to test her story for inconsistencieswith a view to attempt to twist the interpretation ofevents given by her so as to make them appearinconsistent with her allegations. The court,therefore, should not sit as a silent spectator whilethe victim of crime is being cross-examined by thedefence. It must effectively control the recording ofevidence in the court. While every latitude should begiven to the accused to test the veracity of theprosecutrix and the credibility of her version throughcross-examination, the court must also ensure thatcross-examination is not made a means ofharassment or causing humiliation to the victim ofcrime. A victim of rape, it must be remembered, hasalready undergone a traumatic experience and if sheis made to repeat again and again, in unfamiliarsurroundings what she had been subjected to, shemay be too ashamed and even nervous or confused tospeak and her silence or a confused stray sentencemay be wrongly interpreted as “discrepancies andcontradictions” in her evidence”.26. The Committee is of the opinion that in cases ofrape/sexual assault, additional representation, ifsought, is made available to thecomplainant/victim prior to and during the trial.While the sole responsibility of carriage ofprosecuting a crime lies with the State, weconsider it necessary to suggest that inrape/sexual assault cases the complainant and/orthe victim must have the opportunity to engagehis/her own lawyer. The said lawyer would alsobe permitted to assist the prosecutor, examinewitnesses and make submissions to the Court.27. We have also taken note of proviso to Section 24(8)of the CrPC which empowers the Court to permitthe victim to engage an advocate of his/her choiceto assist the prosecution under this Section.However, we would like to add that it is necessary304


to confer an independent right of representation infavour of the victim. In other words, we wish tomake it clear that it should be a statutory right as apart of due process of access to justice that thevictim/complainant will be able to engage alawyer of his or her choice – that is, the victim’sadvocate should have a right of audience inhis/her own right, and not merely in a supportcapacity to the prosecutor. The Committeebelieves that this will add an additional level ofoversight in the trial process.28. The Committee, at this stage, notes the judgmentof the Supreme Court in Delhi Domestic WorkingWomen’s Forum v. Union of India 179 and others,where the Court strongly emphasised theimportance of providing legal counsel to thevictim. In this respect, the Court observed:“15.In this background, we think it necessary toindicate the broad parameters in assisting the victims ofrape.(1) The complainants of sexual assault cases should beprovided with legal representation. It is importantto have someone who is well acquainted with thecriminal justice system. The role of the victim'sadvocate would not only be to explain to the victimthe nature of the proceedings, to prepare her for thecase and to assist her in the police station and incourt but to provide her with guidance as to how shemight obtain help of a different nature from otheragencies, for example, mind counseling or medicalassistance. It is important to secure continuity ofassistance by ensuring that the same person wholooked after the complainant's interests in the policestation represent her till the end of the case.179 (1995) 1 SCC 14305


(2) Legal assistance will have to be provided at thepolice station since the victim of sexual assaultmight very well be in a distressed state upon arrivalat the police station, the guidance and support of alawyer at this stage and whilst she was beingquestioned would be of great assistance to her.(3) The police should be under a duty to inform thevictim of her right to representation before anyquestions were asked of her and that the policereport should state that the victim was so informed.(4) A list of advocates willing to act in these casesshould be kept at the police station for victims whodid not have a particular lawyer in mind or whoseown lawyer was unavailable.(5) The advocate shall be appointed by the court, uponapplication by the police at the earliest convenientmoment, but in order to ensure that victims werequestioned without undue delay, advocates would beauthorised to act at the police station before leave ofthe court was sought or obtained.”29. In this respect, we would also like to take note oftwo circulars issued by the Delhi Police in 2011and 2012, which are a positive move in thisdirection. The first circular 180 directs allinvestigating officers to inform thevictim/complainant of the listing of the accused’sbail application, so that the victim/complainantmay get a chance to oppose such bail application.The circular reads as below:“It has been observed that the complainant/victimof rape/dowry cases usually complain against theInvestigation Officers that they do not informthem about the listing of bail application in the180 Circular No.5701-5800/RB/PHQ dated November 15, 2011 issuedby the Commissioner of Police, Delhi.(http://www.delhipolice.nic.in/home/CAW%20Circulars/cawcircular.htm)306


court in their cases, as a result they are not able tooppose bail application of accused and he managesto get benefit/relief from the court. TheInvestigating Officers are portrayed as if theycolluded with the accused party. Though, there isno provision or rule laid down in CriminalProcedure to inform the complainant/victim partyregarding the listing of the bail applications ofaccused in the court, but to keep them informed ofthe development and to offer an opportunity todefend their case, it is felt necessary to bringtransparency in investigation process.Henceforth, all the investigation/enquiry officersshall inform the complainant/victim of CrimeAgainst Women cases through any possible meansof communication regarding the listing of bailapplication in order to facilitate them to put theirversion before the court, if they so desire.”30. The second circular 181 which directs that thecounsel for the Delhi Commission for Women beinformed of the listing of a bail matter in a rapecase, so that the DCW’s counsel may appear tooppose said bail. This circular reads as follows:“1. Whenever a bail matter is listed for a rapeaccused, the lawyer of the Delhi Commission forWomen should be immediately informed at thefollowing numbers of Rape Crisis Cell (RCC) ofthe Delhi Commission for Women…… … …2. The representatives of the Delhi Commission forWomen have assured that they would send theirlawyers to oppose the bail if timely information isgiven to them.”The issue of consent:181 Circular No. 42/2012 dated April 25, 2012 issued by the SpecialCommissioner of Police (Law & Order), Delhi.(http://www.delhipolice.nic.in/home/CAW%20Circulars/cawcircular.htm)307


31. The marks of struggle cannot be the only evidenceof want of consent. The 84 th Law CommissionReport observed that:-“7.9 … … Such an attitude, though deeplyregrettable, has no basis on the statutory provisionsconstituting the law of evidence in India. In fact,the Indian law of evidence does not, in general, laydown that a particular species of evidence should beinsisted upon any proof or disproof of a particularfact. The Evidence Act lays down certain generalrules which indicate the nature of facts that can beproved. If a fact to be proved as a fact in issue, itsconsequences are no doubt relevant. But proof ofthose consequences or facts is not limited toparticular species of evidence. Thus if want ofconsent is the fact in issue, its consequence, thephysical resistance or struggle is no doubt relevantand so is the consequence of that physical struggle,namely, marks on the body. But the law does notlay down that only that piece of evidence can begiven…..”We cannot agree more. This significant passagemust be borne in mind at all times by the trialcourt.32. We must note that the 42 nd Law Commission (inthe 84 th Report) considered the aspect that astatement made in evidence by the complainantmust be regarded as raising a presumption of wantof consent. The Commission observed that:-“We are, therefore, of the view that whether rape isalleged to have been constituted by sexual intercoursewithout the consent of the woman – in the casecontemplated by Section 375, second clause – the courtshall presume that there was want of consent, providedthe prosecutrix has stated so in her evidence.”308


33. The Law Commission, therefore, suggested theinsertion of a new provision namely Section 114Ain the Evidence Act:-“In a prosecution for rape or attempt to commit rapewhere sexual intercourse is proved and the question waswhether it was without the consent of the woman andthe woman with whom the rape is alleged to have beencommitted or attempted, states in her evidence beforethe Court that she did not consent, the Court shallpresume that she did not consent…..”34. We find a reflection of the said Section 114Asuggested by the 42 nd Law Commission as one ofthe amendments in the Criminal Amendment Bill,2012.35. We must also acknowledge the path breakingapproach of the Law Commission in rightlyconcluding that past sexual history is completelyirrelevant in determining the nature of sexualrelations between the complainant and theaccused. The Law Commission observed:-“Even when a harlot or a prostitute is raped, herconsent at the time of the commission of the crime mustbe proved by evidence aliunde…..”36. Accordingly, the Law Commission recommendedthat Section 155(4) needed to be amended toexclude the evidence of sexual relations withpersons other than the accused. Although the saidrecommendation was made in 1980 by the 84 thLaw Commission, it took 23 years for Parliamentto give effect to the amendment. It is unfortunatethat Parliament amended Section 155 by omittingsub-section (4) only in the year 2003. We,therefore, are of the opinion that the failure of theState to implement such sound recommendations309


made by Law Commissions for decades togetherdepicts a low priority for protecting the rights ofwomen. In fact, one of us, who was an author ofthe National Vision Legal Document, hassuggested that there must be a <strong>full</strong>y establishedoffice of the Attorney General and the SolicitorGeneral which will undertake a review of thepending recommendations of the LawCommission and the relevant laws should beamended to bring them in line with thoserecommendations. Prompt action in this regard isnecessary.37. We also must notice that the 42 nd Law Commissionwas aware that even if Section 155(4) of theEvidence Act was amended, recourse could betaken to Section 146 of the Evidence Act. The 42 ndLaw Commission therefore recommended theaddition of sub-section (4) to Section 146 to thefollowing effect:-“In a prosecution for rape or attempt to commit rapewhere the question of consent to sexual intercourse orattempted sexual intercourse is at issue, it shall not bepermissible to adduce evidence or to put questions incross examination of the prosecutrix as to a generalimmoral character or as to her previous sexualexperience with any person other than the accused forproving such consent or the quality of the consent…..”38. The 42 nd Law Commission then stated that eventhis was not enough. It would be necessary toamend Section 53 of the Evidence Act and insertSection 53A which says:-“In a prosecution for rape or attempt to commit rapewhere the question of consent for sexual intercourse orattempt to sexual intercourse is at issue, evidence of thecharacter of the prosecutrix or a previous sexual310


experience with any person other than the accused shallnot be on the issue of such consent or the quality ofconsent.”39. We recommend the enactment of Section 53A assuggested by the 42 nd Law Commission.311


CHAPTER TWELVEPOLICE REFORMS1. In the view of the Committee, a comprehensivebody of legislation to deal with sexual offencesagainst women is not in itself sufficient to preventsexual violence or to bring about gender justice.Government agencies including the police whoseprimary duty is to ensure the safety and security ofall its citizenry, including women, who make uphalf of the population, must function efficiently inorder to ensure that the purposes and objectives ofthe legislation are complied with. It is only thenthat issues of gender violence can be dealt withthrough the mechanism of the law and theConstitution of India. Urgent reform is needed inorder for India to attain a standard of policingwhich is based upon a positive and co-operativerelationship between civil society and the policeservice.2. The Supreme Court, almost 17 years ago, in VineetNarain & Ors Vs. Union Of India & Anr 182 observedthat Government agencies must be duly compelledto perform their legal obligations and to proceed inaccordance with law against each and everyperson involved, irrespective of the height atwhich he is placed in the power set up. This is vitalto prevent erosion of the Rule of Law and topreserve democracy in our country and is arequirement of Article 14, Part III of theConstitution. The committee re-iterates that properprocedure must be followed by the police in182 Vineet Narain & Ors. Vs. Union of India & Anr. (1996) SCC (2) 199,Page 200 paragraph 2312


elation to the filing of each and every complaintby an individual and investigation of thecomplaint irrespective of the social or economicstatus of the complainant.3. The need for police reform was strongly stated bythe Supreme Court, six years back, in Prakash Singh& Ors. Vs. Union of India & Ors 183 and in theCommittee’s perspective ensuring <strong>full</strong> compliancewith this judgment across all of India is of utmostpriority to national welfare; including the welfareof women and children and towards the weakersections of the community. Proper policing canensure a safer community which is accessible to allfor enjoyment; especially women and childrenwithout fear of sexual harassment or violence. InPrakash Singh the court noted that the then HomeMinister, in a letter dated 3 rd April, 1997 sent to allthe State Governments expressed that “the time hadcome to rise above limited perceptions to bring aboutsome drastic changes in the shape of reforms andrestructuring of the police before the country isovertaken by unhealthy developments. It was expressedthat the popular perception all over the country appearsto be that many of the deficiencies in the functioning ofthe police had arisen largely due to an overdose ofunhealthy and petty political interferences at variouslevels”. The court also noted that all the followingCommissions and Committees: National PoliceCommission, National Human RightsCommission, Law Commission, RibeiroCommittee, Padmanabhaiah Committee andMalimath Committee had broadly come to theconclusion of urgent need for police reforms withagreement on the key areas of focus which are: (a)183 Prakash Singh & Ors. Vs Union of India & Ors, (2006) 8 SCC 1,Page 12, paragraph 26313


State Security Commission at State level; (b)transparent procedure for the appointment ofPolice Chief and the desirability of giving him aminimum fixed tenure; (c) separation ofinvestigation from law and order; and (d) a newPolice Act which should reflect the democraticaspirations of the people.4. Despite this, the judgment has not beensubstantially implemented across India andcompliance by most states, as well as theGovernment of India, remains generally poor. TheSupreme Court in State of U.P v Chhoteylal 184observed:“We are constrained to observe that criminal justicesystem is not working in our country as it should. Thepolice reforms have not taken place despite directions ofthis Court in the case of Prakash Singh & Ors vs Unionof India & Ors. We do not intend to say anything morein this regard since matter is being dealt with separatelyby a 3-Judge Bench. The investigators hardly haveprofessional orientation; they do not have modern tools.On many occasions impartial investigation suffersbecause of political interference. The criminal trials areprotracted because of non-appearance of officialwitnesses on time and the non-availability of thefacilities for recording evidence by video conferencing.The public prosecutors have their limitations”.5. The Government has not complied with the letterand spirit of the directions made in Prakash Singh.We note that the Commonwealth Human RightsInitiative has undertaken a detailed review ofcompliance by the Central Government with the184 State of U.P V Chhoteylal, (2011) 2 SCC 550, Page 567, paragraph36314


Prakash Singh directions 185 . The Committee agreeswith the salient points contained in this CHRIreport which have been summarized below:a) (Directive One) In relation to the State SecurityCommission two affidavits have been filed whichseek clarification and modification. TheGovernment of India has proposed creating aCentral Committee for the Union Territory Policeinstead of a State Security Commission 186 . TheGovernments’ proposals mean that instead of aState Security Commission in each union territory,there would be one Central Committee. We alsobelieve that the constitution of the CentralCommittee for the Union Territory Police does notcomply with the directions of the apex court. It is aGovernmental body which does not include theleader of the opposition and independentmembers, whilst the Joint Secretary has beenincluded. This defeats the very objective ofindependence which the Supreme Court sought toachieve through its directives.b) (Directive Two) In relation to the selection andtenure of the DGP the Government of India hasexpressed reservations about the involvement ofthe UPSC in selection of the DGP. This is on thebasis that if the UPSC is involved in appointmentof the DGP, then the UPSC charter and the UPSC(Exemptions from Consultation) Regulations must185 Government of India Compliance with Supreme Court Directives onPoliceReform,http://www.humanrightsinitiative.org/programs/aj/police/india/initiatives/state_compliance_analysis/govt_of_india_chri_compliance_analysis.pdf , http://www.humanrightsinitiative.org/Commonwealth Human Rights Initiative186 Para 16 (iv), page 15, Application for directions on behalf of theUnion of India, date 12 February 2007315


e amended 187 . This committee agrees with theview that this is an attempt to excuse noncompliancewith the directive. As CHRI states, noformal legislative amendment process is requiredsince the UPSC can change its own Regulations. Inthis committee’s opinion the rationales ofimpartiality and autonomy from the Governmentwhich lie behind UPSC involvement are urgent inpolicing today.With respect to tenure, the Government assertsthat to ensure two year fixed tenure irrespective ofsuperannuation would need changing of the AllIndia Service Rules 188 . We think in line with theCHRI report, that the All India Service Rules donot have any bearing on the Governmentdiscretion to fix tenure for any position. Noamendment has been made in the All India ServiceRules to guarantee the tenure of police posts suchas the Director of the Central Bureau ofInvestigation and the Director of the IntelligenceBureau. These have been ensured throughGovernment resolutions.c) In relation to the tenure of the Chief of the CentralPolice Organisations; the Government of India hasnot agreed to ensure two years tenure for PoliceChiefs of the Central Police Organisation assuggested in Directive 7 of the Supreme Court. Weagain also believe that two years tenure is vital forcontinuity of leadership and good management.187 Para 16 (xi), page 17 Affidavit on Behalf of the Union of India inCompliance with the Order dated 22.9.2006, date 3 rd January 2007.188 Para 16, (x) Affidavit on Behalf of the Union of India incompliance with order dated 22.09.2006, date 3 rd January 2007316


d) (Directive Three) In relation to the tenure of policeofficers on operational duties: Directive 3 of theSupreme Court states that the tenure must be aminimum of two years. We are again concernedwith the Central Government’s reluctance tocomply <strong>full</strong>y with this provision 189 . We take theview that the Supreme Court in its directiveintended that in all cases there should be a twoyear operational tenure of 2 years apart from incases of misconduct or where disciplinary action isbeing taken.e) (Directive Four) In relation to the separation ofinvestigation from law and order the majority ofthe Union Territories have not implemented thedirective and the two UT’s which have, are onlypartially compliant. We take the view that theCentral Government must comply with thisdirective in <strong>full</strong>.f) (Directive Five) In relation to the PoliceEstablishment Board, the Government of Indiaasserts that the Police Establishment Board (PEB)cannot have the function of an appellate authoritysince this would dilute the functional control of thepolice chief 190 . We take the view, in agreementwith CHRI, that the purpose of the PEB is toensure that postings, transfers and appointmentsare made purely by a departmental body so thatunwarranted political or extraneous influences arenot exercised. For this to be achieved, the appellatefunction of the PEB is necessary. This committee isof the view that it is vital for police accountability189 Para 16 (xii), Page 18, Affidavit on Behalf of the Union of India incompliance order dated 22.09.2006, date 3 rd January 2007.190 Para 16 (xvi), page 19, Affidavit on Behalf of Union of India incompliance of order dated 22.09.2006,date 3 rd January 2007317


that there should not be inappropriate politicalinterference in policing matters. The functions ofthe PEB which were Directed by the SupremeCourt are crucial to ensuring that the Governmentonly governs rather than rules the police.g) (Directive Six) In relation to the Police ComplaintsAuthority, the Government of India challenges theefficacy of such a complaints authority on thegrounds that numerous mechanisms already existand it would simply add to pre-existingmechanisms without increasing the efficacy of anyone of them. 191 We agree with the viewpoint thatthere must be an independent oversight body toensure the police are fulfilling their obligationsand duties in the law. This is vital to improve therelationship between public and police. TheGovernment argument that this would unfairlysingle out the police for complaints is of no merit.The responsibility of the police to the citizenryrequires that every complaint of misconduct isproperly investigated. It is absolutely crucial thatpolice conduct should be independentlymonitored in relation to rape or any attempt tocommit rape. In addition we take the view thatany sexual offence, attempt to commit a sexualoffence or abetment of the commission of a sexualoffence including as a result of ‘turning of a blindeye’ should be serious misconduct into which thePolice Complaints Authority must be able toinvestigate. We also take the view as stated belowthat the following should count as ‘seriousmisconduct’ to allow the Police ComplaintsAuthority to investigate: inordinate delay,fabrication of evidence, death in police action,191 Para 16, (xviii), page 20, Affidavit on Behalf of the Union of Indiain compliance with order dated 22.09.2006, date 3 rd January 2007318


torture which does not amount to grievous hurt orharassment of a complainant who seeks to registera complaint relating to a sexual offence. If thesecannot be treated as serious misconduct then weare of the view that the Police ComplaintsAuthority should be able to investigate allmisconduct in any case.h) (Directive Seven) In relation to the NationalSecurity Commission, the Government has createdthe National Security and Central Police PersonnelWelfare (NSCPP). We think that this must carryout the specific functions set out by the ApexCourt and that these functions must not be dilutedas they presently appear to be 192 . The compositionof this body should also comply with thatindicated by the Apex Court in its seventhdirective. The Apex Court stated that the heads ofthe Central Police Organisation should bemembers of the NSCPP. We take the view that theNSCPP must not be overburdened withGovernmental officials to avoid unwarrantedpolitical interferences.6. State governments also are largely not incompliance 193 . As of 8 th November 2010 the192 Para 5, Office Memorandum No. 255019/15/2005-PM-II, dated 2 ndJanuary 2007.193 Justice K.T Thomas Monitoring Committee Report, Part V,Findings and Conclusions paragraphs 18 – 30 see also Annexure 1and Annexure 2 of Report.Police Reforms India, State Wise Compliance with the SupremeCourt Directives in the Prakash Singh Case,Commonwealth Human Rights Initiativehttp://www.humanrightsinitiative.org/http://www.humanrightsinitiative.org/index.php?option=com_content&view=article&catid=91%3Ashiva&id=751%3Astate-wisecompliance-with-the-supreme-court-directives&Itemid=98CHRI, National Compliance Chart :http://www.humanrightsinitiative.org/programs/aj/police/india/319


Supreme Court issued notices to the States ofMaharashtra, Utter Pradesh, Karnataka and WestBengal for total non-compliance following thefindings of the Monitoring Committee which wasset up based on Supreme Court directions 194 . TheCommittee notes that certain states have madeattempts to comply with the directives but we feelthat mere attempts are not sufficient and totalcompliance is required. We have enclosed theCommonwealth Human Rights Initiative report onState Compliance with the Directives in theannexure, for reference, this paper studies Statecompliance in greater detail 195 . This Committeedoes not have the time or capacity to conductdetailed investigation into State compliance. Thecommittee urges all states to <strong>full</strong>y comply with allsix Supreme Court directives in order to tacklesystemic problems in policing which exist today.7. Non-implementation has resulted in deprivationof the benefits which police reforms would bringto the protection of fundamental rights of theordinary people. The Committee takes the viewthat the majority of the fundamental rights set outin Part III of the Constitution require an efficient,sensitive and impartial police force for fulfillmentin the way the drafters of the Constitutionintended. Articles 14, 15, 19 and 21 can only beprotected if those who feel that they face the threatof a sexual offence can approach any police officerfor protection or those who have been the victim ofany sexual offence can register an FIR at thenearest police station/ online and feel that their194 Notice issued by Supreme Court 8 th November 2010.195 Police Reforms India, State wise compliance with the SupremeCourt Directives in Prakash Singh case, Commonwealth HumanRights Initiative, http://www.humanrightsinitiative.org/320


complaint will be properly investigated; withoutdelay, intimidation, harassment or prejudice andirrespective of their economic or social status.After all, the right of a person to complain againstviolation of his or her dignity by having the FIRproperly registered and the complaint properlyinvestigated has to be read into the requirement oflife with dignity guaranteed in Article 21.8. We believe that if the Supreme Court’s directionsin Prakash Singh are implemented, there will be acrucial modernization of the police to be serviceorientated for the citizenry in a manner which isefficient, scientific, and consistent with humandignity. The Committee believes that this will bereflective of the need of society today and not thatof control or suppression as in the colonial era.9. The committee takes the view that in line withPrakash Singh, implementation of the SupremeCourt directions need not await the framing of anew Police Act. Until an Act, on the lines of theModel Police Act, proposed by the SorabjeeDrafting Committee, or that which is annexed tothe 8 th report of the National Police Commission, ispassed by Parliament and implemented across thecountry, the seven directions in Prakash Singh mustbe complied forthwith.10. To revisit the Prakash Singh directions, the SevenDirectives are as follows:a. State Security Commissions: The StateGovernments are directed to constitute aState Security Commission in every State toensure that the State Government does notexercise unwarranted influence or pressure321


on the State police and for laying down thebroad policy guidelines so that the Statepolice always acts according to the laws ofthe land and the Constitution of thecountry. This watchdog body shall beheaded by the Chief Minister or HomeMinister as Chairman and have the DGP ofthe State as its ex- officio Secretary. Theother members of the Commission shall bechosen in such a manner that it is able tofunction independent of Governmentcontrol. For this purpose, the State maychoose any of the models recommended bythe National Human Rights Commission,the Ribeiro committee or the SorabjeeCommittee, which are as under:NHRCa. ChiefMinister/HM asChairman;b. Lok Ayukta,or in hisabsence, aretired Judge ofHigh Court to benominated byChief Justice or aMember of StateHuman RightsCommission.c. A sitting orretired Judgenominated byRibeiroCommitteea. Minister i/cPolice asChairmanb. Leader oftheOpposition.c. Judgesitting orretired,nominated byChief Justiceof HighCourt.d. ChiefSecretarySorabjeeCommitteea. Minister i/cPolice (exofficioChairperson)b. Leader ofOpposition.c. ChiefSecretary.d. DGP (exofficioSecretary)e. FiveindependentMembers.322


Chief Justice ofHigh Court.d. ChiefSecretarye. Leader ofOpposition inLower House.e. Three nonpoliticalcitizens ofproven meritand integrity.f. DG Policeas Secretaryf. DGP as exofficioSecretaryThe recommendations of this Commissionshall be binding on the State Government.The functions of the State SecurityCommission would include laying downthe broad policies and giving directions forthe performance of the preventive tasks andservice oriented functions of the police,evaluation of the performance of the Statepolice and preparing a report thereon forbeing placed before the State legislature.b. Selection and Minimum Tenure of DGP:The Director General of Police of the Stateshall be selected by the State Governmentfrom amongst the three senior-most officersof the Department who have beenempanelled for promotion to that rank bythe Union Public Service Commission onthe basis of their length of service, verygood record and range of experience forheading the police force. And, once he hasbeen selected for the job, he should have aminimum tenure of at least two yearsirrespective of his date of superannuation.323


The DGP may, however, be relieved of hisresponsibilities by the State Governmentacting in consultation with the StateSecurity Commission consequent upon anyaction taken against him under the All IndiaServices (Discipline and Appeal) Rules orfollowing his conviction in a court of law ina criminal offence or in a case of corruption,or if he is otherwise incapacitated fromdischarging his duties.c. Minimum Tenure of I.G. of Police & otherofficers: Police Officers on operationalduties in the field like the Inspector Generalof Police in-charge Zone, Deputy InspectorGeneral of Police in-charge Range,Superintendent of Police in-charge districtand Station House Officer in-charge of aPolice Station shall also have a prescribedminimum tenure of two years unless it isfound necessary to remove themprematurely following disciplinaryproceedings against them or theirconviction in a criminal offence or in a caseof corruption or if the incumbent isotherwise incapacitated from discharginghis responsibilities. This would be subject topromotion and retirement of the officer.d. Separation of Investigation: Theinvestigating police shall be separated fromthe law and order police to ensure speedierinvestigation, better expertise andimproved rapport with the people. It must,however, be ensured that there is <strong>full</strong>coordination between the two wings. Theseparation, to start with, may be effected in324


towns/urban areas which have apopulation of ten lakhs or more, andgradually extended to smaller towns/urbanareas also.e. Police Establishment Board: There shall bea Police Establishment Board in each Statewhich shall decide all transfers, postings,promotions and other service relatedmatters of officers of and below the rank ofDeputy Superintendent of Police. TheEstablishment Board shall be adepartmental body comprising the DirectorGeneral of Police and four other seniorofficers of the Department. The StateGovernment may interfere with decision ofthe Board in exceptional cases only afterrecording its reasons for doing so. TheBoard shall also be authorized to makeappropriate recommendations to the StateGovernment regarding the posting andtransfers of officers of and above the rank ofSuperintendent of Police, and theGovernment is expected to give due weightto these recommendations and shallnormally accept it. It shall also function as aforum of appeal for disposing ofrepresentations from officers of the rank ofSuperintendent of Police and aboveregardingtheirpromotion/transfer/disciplinaryproceedings or their being subjected toillegal or irregular orders and generallyreviewing the functioning of the police inthe State.325


f. Police Complaints Authority: There shallbe a Police Complaints Authority at thedistrict level to look into complaints againstpolice officers of and up to the rank ofDeputy Superintendent of Police. Similarly,there should be another Police ComplaintsAuthority at the State level to look intocomplaints against officers of the rank ofSuperintendent of Police and above. Thedistrict level Authority may be headed by aretired District Judge while the State levelAuthority may be headed by a retired Judgeof the High Court/Supreme Court. Thehead of the State level ComplaintsAuthority shall be chosen by the StateGovernment out of a panel of namesproposed by the Chief Justice; the head ofthe district level Complaints Authority mayalso be chosen out of a panel of namesproposed by the Chief Justice or a Judge ofthe High Court nominated by him.These Authorities may be assisted by threeto five members depending upon thevolume of complaints in differentStates/districts, and they shall be selectedby the State Government from a panelprepared by the State Human RightsCommission/Lok Ayukta/State PublicService Commission. The panel mayinclude members from amongst retired civilservants, police officers or officers from anyother department, or from the civil society.They would work whole time for theAuthority and would have to be suitablyremunerated for the services rendered bythem. The Authority may also need the326


services of regular staff to conduct fieldinquiries. For this purpose, they may utilizethe services of retired investigators from theCID, Intelligence, Vigilance or any otherorganization. The State level ComplaintsAuthority would take cognizance of onlyallegations of serious misconduct by thepolice personnel, which would includeincidents involving death, grievous hurt orrape in police custody. The district levelComplaints Authority would, apart fromabove cases, may also inquire intoallegations of extortion, land/housegrabbing or any incident involving seriousabuse of authority. The recommendations ofthe Complaints Authority, both at thedistrict and State levels, for any action,departmental or criminal, against adelinquent police officer shall be binding onthe concerned authority.g. National Security Commission: TheCentral Government shall also set up aNational Security Commission at the Unionlevel to prepare a panel for being placedbefore the appropriate AppointingAuthority, for selection and placement ofChiefs of the Central Police Organisations(CPO), who should also be given aminimum tenure of two years. TheCommission would also review from timeto time measures to upgrade theeffectiveness of these forces, improve theservice conditions of its personnel, ensurethat there is proper coordination betweenthem and that the forces are generallyutilized for the purposes they were raised327


and make recommendations in that behalf.The National Security Commission could beheaded by the Union Home Minister andcomprise heads of the CPOs and a couple ofsecurity experts as members with the UnionHome Secretary as its Secretary.11. The Committee takes the view that when a newPolice Act is passed by Parliament, it should beconsistent substantially with the Model Police Act,2006 proposed by the Sorabjee Drafting Committeeand the Police Act annexed to the 8 th report of theNational Police Commission. It should clearly setout the duties and responsibilities of the policetowards the people. One such duty must be toprevent the harassment of women and children inpublic places and in public transport whichincludes stalking, the making of objectionablegestures, signs, remarks or harassment caused inany way. Until the new Police Act is passed andimplemented, this duty should in letter and spiritbe performed by all police officers across thecountry. We are aware that the Bureau of PoliceResearch and Development of India has issuedguidelines for the training of Sub-Inspectors ofpolice 196 : Paragraph 3.3 of these guidelines sets outthe ‘Duties of the Police towards women, poorpersons and general public’. Of these, paragraph3.3.4 sets out the duty to provide immediatemedical aid to victims of road accidents or victimsof other crimes or police action and inform theirfamilies about the accident or incident. 3.3.4 setsout the duty to advise the victims of road accidentsabout their rights and privileges and assistaccident victims or their heirs or their dependents196 Bureau of Police Research and Development, Training Manual forPolice Sub-Inspectors, Page 6, Section 3.3328


with such information and documents as wouldfacilitate compensation claims. 3.3.6 sets out theduty to prevent harassment of women, childrenand weaker sections of society. 3.5 also states thatall the powers of the police are subject tofundamental rights guaranteed in the constitution.We are glad that such guidelines exist but the needis to ensure training of the police personnel toimbibe these duties so that each police man orwoman practices them during their patrol.12. The Committee would like to point out some ofthe issues it has noted with regards to the ModelPolice Act, 2006 proposed by the Sorabjee DraftingCommittee, in relation to the prevention of sexualoffences. We urge that the following pointsshould be taken into account, in relation to theissue of accountability, while drafting the newPolice Act. Until such an Act is drafted, thesepoints should be duly taken account of in theconstitution and functioning of the PoliceComplaints Authority directed by the SupremeCourt. In the committee’s view the observationsnoted will bring about a transformation in theinteraction of the police with the public. These are:a) First, in relation to the functions and powers of theComplaints Authority which is the PoliceAccountability Commission in Chapter XIII, wetake the view that mandatory inquiries into only“serious misconduct” as defined in the Act wouldbe too narrow. This would according to Section167, Chapter XIII include only any act or omissionof a police officer that leads to or amounts to: (a)death in police custody; (b) grievous hurt, asdefined in Section 320 of the Indian Penal Code,1860, (c) rape or attempt to commit rape or (d)arrest or detention without due process of law. All329


other cases may only be the subject of inquiry bythe commission if referred to by the DirectorGeneral of Police and if, in the opinion of thecommission, the nature of the case merits anindependent inquiry. We take the view thatserious misconduct should include thecommission of or any attempt to commit anysexual offence by any police officer or theabetment of any sexual offence by a police officer.This must include the turning a blind eye of thecommanding police officer to the commission ofsuch offences by his subordinates. The committeealso feels that all types of misconduct shouldrequire mandatory investigation by the PoliceAccountability Commission. This would include:fabrication of evidence, inordinate delay, death inpolice action, torture which does not amount togrievous hurt and harassment of a complainantwho seeks to register a complaint relating to asexual offence.b) Second, we are concerned that the powers of thePolice Accountability Commission in Chapter XIIIare too limited. In cases where the complainantalleges bias or is not satisfied with thedepartmental inquiry process in relation to acomplaint, the Police Accountability Commissionshould be able to call for evidence relating to thedepartmental inquiry in addition to the policereport. The Police Accountability Commission onscrutiny should then have the power to eitherdirect a new inquiry or in cases of inordinate delayorder the inquiry to be completed within areasonable time period or decide to make theinquiry itself in the interests of justice.c) Third, we suggest that the powers of the PoliceAccountability Commission should cover the330


power to search police stations and seize relevantdocuments if the concerned police officers are notco-operating with the Commission and if it hasstrong reason to believe that evidence relating tothe subject matter of the inquiry may be foundthere. This power will have to be subject to theprovisions of Section 100 of the Code of CriminalProcedure, 1973 as far as applicable and will haveto be care<strong>full</strong>y circumscribed to prevent abuse.13. In addition to the suggestions listed in PrakashSingh and the issues raised in relation toaccountability of policing we take the view that thefollowing steps in the areas outlined below shouldalso be implemented forthwith across India:Filing and Registration of Complaints:a) This Committee recommends that the guidelinesissued for the police by the High Court of Delhi inDelhi Commission for Women v. Lalit Pandey andanother 197 must be mandatory and immediatelyfollowed in relation to all sexual offencecomplaints across the Country. This is as perStanding Order No. 303/2010 issued by the DelhiPolice in the Guidelines to be Followed by the PoliceWhilst Investigating Cases of Rape.Of these, the guideline that the duty officer,immediately, upon receipt of the complaint/information must intimate the “Rape Crises Cell”on its notified helpline number is especiallyimportant. The Rape Crisis Cell must then send tothe complainant an appropriately qualified personto provide legal assistance in the filing of the FIRand to provide counseling to the complainant.197 Writ Petition (Crl.) No. 696/2008.331


) All police stations should have CCTV’s at theentrance of the police station, in police cells and inthe questioning room. All PCR vans should alsocontain CCTV’s.The CCTV’s must not be tampered with and everymonth an independent expert should ensure thatthe CCTV footage has not been tampered with.This is an additional method to ensure safety inpolice stations and that proper procedure isfollowed in handling complaints, the recordingand filing of FIR’s and in treatment of those inpolice custody. We understand that this may notbe possible in all rural areas but feel that wherepossible CCTV’s should be installed.c) In addition to every individual being able toregister an FIR at any police station irrespective ofthe jurisdiction in which the crime wascomplained of in writing, every individual mustalso be able to register his complaint online on adesignated website. After this a complaint numbershould be automatically generated so thecomplainant can track the FIR.The same complaint would then be generated atthe nearest police station and a copy would also beprovided to an ombudsman office located in everydistrict. It will still be the case that an FIR cannotbe registered anonymously and the individualwho has registered an FIR online will then have togo to any police station to verify his identity andthe FIR. The Delhi Police already have the facilityfor online registration and tracking of FIR.Something of this nature must be replicated andmade operational across the country. The FIRshould also be recorded on a national online332


database for ready accessibility by thecomplainant.d) In this Committee’s view every police officer onpatrol is under a moral, legal and Constitutionalduty to assist the victim of any traffic accident orcrime irrespective of the jurisdiction in which thecrime occurred or irrespective of the jurisdiction ofthe police station from which such officers areoperating. This is especially important in relationto sexual offences.The Supreme Court, in P.T. Parmanand Katara vsUnion of India 198 , held that:“There can be no second opinion; that preservation ofhuman life is of paramount importance. That is so onaccount of the fact that once life is lost, the status quoante cannot be restored as resurrection is beyond thecapacity of man”.This judgment was given primarily in the con<strong>text</strong>of medical professionals but the court alsointended it to apply to police. With regards to thepolice the court stated:“There is also no doubt that the effort to save the personshould be the top priority not only of the medicalprofessional but even of the police or any other citizenwho happens to be connected with the matter or whohappens to notice such incident or situation”.According to the Supreme Court, this was anecessary consequence of Article 21 of theConstitution which casts the obligation on the stateto preserve life. The members of this committeethink that this has to mean that all the agencies of198 Parmanand Katara Vs Union of India & Ors, (1989) 4 SCC 286333


the State have to do their utmost to preserve lifeand no other jurisdictional or procedural issue canbe more important.The Supreme Court also went on to dismiss thefear that police officers/members of the publicwho render assistance would then be treated aswrong doers.Further, in the Circular issued by the Governmentof India, Department of Road Transport andHighways on 18 th February 2004 199 : Paragraph 4states: “At times, the District Staff and the PCR vansalso delay the removal of the injured to the hospital onaccount of various jurisdictional formalities or otherduties regarding photographs etc…Without waiting forthe photographer etc. the injured has to be removed tothe hospital by the quickest means”. Paragraph 5states: “Members of the public, who rendered voluntaryhelp to persons injured, should not be unnecessarilyquestioned and detained at police stations”. Paragraph6: “All concerned people who bring accident victims tohospitals should be treated with utmost courtesy andnot harassed in any way”. This has to be put intopractice in all cases.Amenities in Police Stationse. Many crimes of sexual violence or genderviolence are facilitated in police stationsbecause of lack of essential and separateamenities for women for example separate lockups for men and women and separatebathrooms. We also feel that there should be aseparate waiting room for visitors to prevent199 Government of India Circular, Department of Road Transport andHighways, 18 th February 2004, paragraph 4.334


intimidation and harassment of those trying toregister complaints of sexual violence or tryingto harass an accused. Infrastructure in policestations should be improved to provide theamenities which are mentioned.Scientific Investigationf. The investigative branch of the police shouldhave the appropriate scientific equipment andtraining to be able to conduct the higheststandards of investigation in every case. Inrelation to sexual offences this includes in thecollection of forensic, medical and writtenevidence and preservation and investigation ofcrime scenes.g. The investigative branch of the police shouldalso be appropriately trained to investigatesexual offence cases.h. We have noted that under Section 17 of theModel Police Act 2006 200 proposed by theSorabjee Drafting Committee, that there areprovisions for Technical and Support Services.This section provides that the StateGovernment shall create and maintain suchancillary technical agencies and services, underthe overall control of the Director General ofPolice, as considered necessary or expedient forpromoting efficiency of the Police Service. TheAct also provides that the service must create a<strong>full</strong>-fledged Forensic Science Laboratory at theState-Level, a Regional Forensic ScienceLaboratory for every Police Range and mobileForensic Science Unit for every district, with200 Model Police Act, 2006, Section 17, Parts (1) – (5)335


appropriate equipment and scientificmanpower, in keeping with the guidelines laiddown by the Directorate of Forensic Science orthe Bureau of Police Research andDevelopment of the Government of India. TheState Government must also ensure regularmaintenance of all scientific equipment andregular replenishment of consumables in theforensic laboratories as well as take measuresto encourage and promote the use of scienceand technology in all aspects of policing.We think that implementation of theserecommendations is necessary for the police to beable to carry out their investigative task to thedesired standard.Police Performance Measurementi. We are of the view that there need to besubstantially improved auditing mechanismsin place to monitor police performance. Thecurrent mechanisms are inadequate and are apoor reflection of police performance. This is inthe interests of both the general public andduty police officers who are judged primarilybased on the number of cases ‘solved’ andcrimes registered. The Committee thinks thatpolice auditing methods need to be urgentlyreviewed. We suggest that qualitative as wellas quantitative measures should be used. Thiswould help to incentivize the improvement ofpolice performance. Such qualitative indicatorsshould be of the following type: overall publicsatisfaction, perceptions of increased safety andsecurity for women and other vulnerablegroups, satisfaction with police treatmentwhilst registering FIR, approachability, as well336


as hard indicators such as prevention offrequent occurrences like communal violence.This will help to bring about policeaccountability and therefore also tackleinstitutional bias as well as perceptions of bias.Police Welfare(i)In our opinion better police welfare will facilitatebetter police performance. The committee notesthat the police force is often stretched for resourcesand personnel.(ii) The committee takes the view that as proposed inSection 185 of The Model Police Act 2006, draftedby the Sorabjee Drafting Committee, there must bean establishment of a Police Welfare Bureauheaded by an officer not below the rank of DeputyInspector General of Police, in the office of theDirector General of Police to advise and assist himin the implementation of welfare measures forpolice personnel. The Bureau should also haverepresentation from all ranks of the police forceincluding some in advisory capacity.(iii) The functions and duties of the bureau mustinclude the administration and monitoring ofwelfare measures for police personnel includinghealthcare in respect of chronic and seriousailments and including post-retirement health careschemes for personnel and their dependents. Theremust also be <strong>full</strong> and liberal medical assistance tothose police personnel who suffer injury in thecourse of performance of duty. The bureau mustensure financial security of the next of kin of thosedying in harness and post retirement financialsecurity plans. As proposed in the Act it is also the337


duty of the welfare bureau to provide for grouphousing and education and training for thedependents of the police personnel. Further theremust be appropriate legal facilities for defence ofpolice officers facing court proceedings in relationto bona fide discharge of duty. Besides laying downnorms and policies relating to police welfare, theBureau must also act as a monitoring agency forvarious police units as mentioned in The ModelPolice Act 2006.Police Presence and Community Policing:j. The total number of police personnel presenton the street needs to be increased. It isespecially important that the number of femalepolice personnel on patrol and on duty inpolice stations is increased; so that females feelcomfortable in complaining of sexualharassment or threats of a sexual nature to anymember of the police.k. To augment the police force, there is need todevelop community policing by involving thelocal population. Willing volunteers should beproperly and intensively trained before beingable to police the community. This would alsomotivate them to perform their duty ascitizens. Respectable persons in each localitycould also be appointed Special ExecutiveMagistrates under Section 21, Cr.P.C. andinvested power to deal with the traffic offencesand other minor offences including eve-teasing.In addition, to assisting the maintenance of lawand order in the locality, their presence wouldinspire greater confidence of safety in theirlocality.338


l. In this regard, the Government may like to alsoconsider maximizing the use of volunteerforces which are already constituted afterensuring proper training of the kind needed totackle the offences which are the subject of thisreport. The Committee does not have thecapacity to study the training, number orjurisdiction of these forces such as the Homeguards in detail and make recommendationsbut this is something which is left to theGovernment to consider as an option afterfurther thought and research.14. The protection of women from harassment andthreats of a sexual nature as well as all other sexualoffences is dependent on the quality of policing inour country. The people trust the police forprevention and investigation of sexual offences. Itis necessary to make systemic changes assuggested. This would inculcate Constitutionalvalues in the police force and the moral visionrequired for the performance of its statutory dutiesin a Republican democracy; where the politicalsovereignty ultimately vests in the people.339


CHAPTER THIRTEENELECTORAL REFORMS1. This committee is of the opinion that electoralreform within India is integral to the achievementof gender justice and the prevention of sexualoffences against women. This Committee isconcerned about the integrity of the legislativeprocess, in particular with regard to the reform ofthe criminal justice system, if lawmakersthemselves have serious charges – of whichcognizance has been taken by a court of competentjurisdiction – pending against them. We haveconsulted with the Election Commission duringthe course of the preparation of this Reportthrough various letters addressing queries tothem. Specifically, we addressed two letters tothem dated 7 th January 2013, and subsequentlythrough two more letters dated 11 th January 2013and the 14 th January 2013 we sent a further requestfor information. Each of our letters to the ElectionCommission form a part of the Appendices of thisReport. The Election Commission sent us aresponse dated 11 th January 2013 adverting only tothe two letters dated 7 th January 2013.2. By the two letters of 7th January 2013, we hadasked the Election Commission of India a numberof questions. By our first letter, we had asked thefollowing questions:-1. Does the ECI have/proposes to put in place apolicy to deal with electoral candidates who have beenaccused of, charged with, or convicted of offences of rapeand sexual abuse/sexual harassment, under theprovisions of the IPC or otherwise? If yes, please340


provide details of such a policy, as well as details of howthe same is being implemented.2. Please provide details of all persons who havebeen disqualified by the ECI under Section 8(1)(a) of theRP Act for offences relating to rape and/or crueltytowards a woman by her husband and/or his relatives?3. Please provide details (for the period 01.01.2004to 31.12.2012) of all such electoral candidates who havedisclosed, pursuant to Section 33A(1) of the RP Act,the existence of charges having been framed againstthem under the following provisions:(i) Sections 363 to 369 of the IPC;(ii) Sections 371 to 373 of the IPC;(iii) Sections 376 to 376 A-D of the IPC;(iv) Section 354 of the IPC;(v) Section 498A of the IPC;(vi) Section 509 of the IPC;(vii) Provisions of the Immoral Traffic (Prevention)Act, 1956;(viii) Provisions the Protection of Children fromSexual Offences Act, 2012;(ix) Provisions of the Indecent Representation ofWomen (Prohibition) Act,1986; and(x) Provisions of the Dowry Prohibition Act, 1961(xi)Is the ECI aware as to whether any politicalparties in India have internal policies/codes ofconduct through which they can verify andprevent candidates who are accused of, chargedof, or convicted of criminal offences generally,and specifically those set out in paragraph 3(i) to(viii) above? If yes, please provide details of thesame.(xii)Is the ECI aware of instances where politicalparties have refused nominations to candidateson grounds of them having been accused of,charged of, or convicted of criminal offencesgenerally, and specifically those set out in341


paragraph 3(i) to (viii) above? If yes, pleaseprovide details of the same.3. By our second letter, we had asked:-1. Does the ECI have a handbook or manual prescribingguidelines for appointment of returning officers inelections? If yes, please provide a copy of the same.2. Does the ECI have a handbook or manual for trainingreturning officers in elections? If yes, please provide acopy of the same.3. Does the ECI verify all details contained in disclosureaffidavits filed by electoral candidates under theprovisions of the RP Act, especially details pertaining todisclosures pertaining to accusations, charges,convictions against candidates under the followingprovisions of law:(i) Sections 363 to 369 of the IPC;(ii) Sections 371 to 373 of the IPC;(iii) Sections 376 to 376 A-D of the IPC;(iv) Section 354 of the IPC;(v) Section 498A of the IPC;(vi) Section 509 of the IPC;(vii) Provisions of the Immoral Traffic (Prevention)Act, 1956;(viii) Provisions the Protection of Children fromSexual Offences Act, 2012;(ix) Provisions of the Indecent Representation ofWomen (Prohibition) Act,1986; and(x) Provisions of the Dowry Prohibition Act, 1961If yes, what is the process of verification undertaken by theECI in this respect?4. The Election Commission in its response has statedthat it had sent a recommendation to theGovernment as far back as 1998 that candidatesshould be disqualified even prior to conviction forserious offences. The Commission's342


ecommendation was that a person against whomcharges have been framed by a court for an offencepunishable with imprisonment of 5 years or moreshould stand disqualified from contesting election.We have noticed that the said proposal wasrepeated in 2004 and has clearly been ignored byParliament.5. We appreciate that the Commission does not havethe legislative powers to add or modify theseprovisions since these fall within the purview of alaw made by Parliament, i.e., Representation ofPeople Act, 1951. However, we would like torecommend an amendment to the Representationof People Act, 1951 by which the spirit of theElection Commission’s suggestion is carried out.We are also of the opinion that arguments onframing of charge themselves take a long time inCourt. For us, it is sufficient if a charge sheet hasbeen filed and cognizance has been taken by aCourt for the person concerned to be disqualifiedfrom contesting elections to either House ofParliament or to the Legislature of a State.Accordingly, we suggest that in Section 8(1) of theRepresentation of People Act, 1951 may beamended as follows:-“8. Disqualification on cognizance or convictionfor certain offences.(1) A person, in respect of whose acts or omissions acourt of competent jurisdiction has taken cognizanceunder section 190(1)(a),(b) or (c) of the Code ofCriminal Procedure, 1973 (Act 2 of 1974) or, has beenconvicted by a court of competent jurisdiction, withrespect to an offence punishable under—(a) the Indian Penal Code, 1860 (Act 45 of 1860) whichare listed in Schedule I ; or343


(b) the Protection of Civil Rights Act, 1955 whichprovides for punishment for the preaching and practiceof untouchability", and for the enforcement of anydisability arising therefrom; or(c) section 11 (offence of importing or exportingprohibited goods) of the Customs Act, 1962 (52 of 1962); or(d) sections 10 to 12 (offence of being a member of anassociation declared unlawful, offence relating todealing with funds of an unlawful association or offencerelating to contravention of an order made in respect ofa notified place) of the Unlawful Activities (Prevention)Act, 1967 (37 of 1967 ); or(e) the Foreign Exchange (Regulation) Act, 1973 (76 of1973 ); or(f) the Narcotic Drugs and Psychotropic SubstancesAct, 1985 (61 of 1985 ); or(g) section 3 (offence of committing terrorist acts) orsection 4 (offence of committing disruptive activities) ofthe Terrorist and Disruptive Activities (Prevention)Act, 1987 (28 of 1987 ); or(h) section 3 (declaration of an association as unlawful)or any offence enumerated in Chapter IV of the(punishment for terrorist activities) of the UnlawfulActivities (Prevention) Act, 1967; or(i) any provision of the Prevention of Terrorism Act,2002; or(j) any offences enumerated in chapter III of thePrevention of Corruption Act, 1988; or(j) section 7 (offence of contravention of the provisionsof sections 3 to 6) of the Religious Institutions(Prevention of Misuse) Act, 1988 (41 of 1988 ); or(k) section 125 (offence of promoting enmity betweenclasses in connection with the election) or section 135(offence of removal of ballot papers from pollingstations) or section 135A (offence of booth capturing) ofclause (a) of sub- section (2) of section 136 (offence offraudulently defacing or fraudulently destroying anynomination paper) of this Act;[ or](l) section 6 (offence of conversion of a place of worship)of the Places of Worship (Special Provisions) Act, 1991, or(m) section 2 (offence of insulting the Indian NationalFlag or the Constitution of India) or section 3 (offence of344


preventing singing of National Anthem) of thePrevention of Insults to National Honour Act, 1971 (69of 1971 ); or(n) any law providing for the prevention of hoarding orprofiteering; or(o) any law relating to the adulteration of food or drugs;or(p) any provisions of the Dowry Prohibition Act, 1961(28 of 1961 ); or(q) any provisions of the Commission of Sati(Prevention) Act. 1987 (3 of 1988),shall be disqualified from the date of such taking ofcognizance under section 190(1)(a),(b) or (c) of theCode of Criminal Procedure, 1973 (Act 2 of 1974) orconviction, as the case may be, and shall continue to bedisqualified for a further period of six years from thedate of his release upon conviction. It is clarified that, inthe event of acquittal of the candidate, disqualificationshall continue to operate from the date of takingcognizance under section 190(1)(a),(b) or (c) of theCode of Criminal Procedure, 1973 (Act 2 of 1974) tillthe date of acquittal.”6. However, we must say that on the second questionasking the Commission to provide details of allpersons who have been disqualified by theElection Commission under 8(1)(a) for offencesrelating to rape and or cruelty towards woman byher husband and her relatives, we have receivedthe following answer:-“Disqualification under Section 8(1) of theRepresentation of People Act, 1951 is automatic byoperation of the provisions therein. The ElectionCommission is not required to issue any separate ordersor bring out any list of persons disqualified underSection 8. Information about persons convicted forvarious offences would be available with theHome/Police departments of the Governments. TheCommission does not have information about cases orconvictions.”345


7. We are unable to subscribe to the suitability of thisview of the Election Commission. In the firstplace, unless and until the Election Commission isinformed about a conviction, the creation of aconsequential vacancy upon the operation of thedisqualification would be left to the faithfulreporting of a conviction by the concernedgovernment (Central or State). While thedisqualification takes place by operation of law, itis certainly the duty of the Election Commission totake consequential action which may occur on thevacation of the seat caused by suchdisqualification. We request the ElectionCommission that henceforth, they must impose aduty forthwith on all candidates against whomcharges are pending, to give progress reports intheir criminal cases every three months. It is to benoted that such a direction does not require anylegislative amendment and hence falls squarelywithin the purview of the plenary powers of theElection Commission. It will indeed beunfortunate if a person has in fact been convictedand the Election Commission has not been notifiedand thus such person continues to function as aLegislator. It will be a complete anathema todemocracy.8. On the third question about the electoralcandidates who have disclosed in accordance withSection 33A(1) of the R.P. Act, cases in whichcharges have been framed by a court of competentjurisdiction against them under Sections 363 to369, 371 to 373, 376 to 376A to D, 354 of the IPC,498A, 509, provisions of Immoral TrafficPrevention Act, provisions of the Protection ofChildren from Sexual Offences Act, 2012,346


provisions of the Indecent Representation ofWomen (Prohibition) Act, 1986 and the provisionsof the Dowry Prohibition Act, 1961, we havenoticed the explanation given by the Commission.According to the Commission, it was pursuant tothe judgment of the Supreme Court in WritPetition No. 490 of 2002 reported as People’s Unionfor Civil Liberties and anr. v. Union of India andanr., 201 passed on 13 th March 2003 that allcandidates were directed by an order issued on27th March 2003 to submit information about theircriminal background, assets, liabilities, andeducational qualifications in an affidavit to besubmitted to the Returning Officers during theperiod of filing of nomination papers. We mustalso point out that the said judgment was passedto enforce the electors’ right to informationregarding candidates who seek their votes in anelection, and hence the affidavit sought by theElection Commission was intended to enableelectors to obtain information about thebackground of the candidates. We are of the viewthat this objective cannot be achieved withoutdisplaying copies of the affidavits filed by them atthe time of filing of nominations. We may furtherpoint out that the Election Commission had on anearlier occasion directed that if any candidate filedfalse information which was capable of beingverified by the Returning Officer by a summaryinquiry, the nomination paper of such candidatewould be liable to be rejected. However, it isstated by the Election Commission in its responsethat in, the Supreme Court in People’s Union of CivilLiberties v. Union of India observed that “thedirection to reject the nomination paper forfurnishing wrong information or concealing201 AIR 2003 SC 2363347


material information and providing for summaryinquiry at the time of scrutiny of nominationscannot be justified”. Consequently, in thesubsequent order issued by the Commission on27th March 2003, the Commission clarified that thenomination shall not be rejected on the ground ofwrong information furnished in the affidavit. Weregret<strong>full</strong>y note the following statement:-"Therefore, the Returning Officer on receipt of theaffidavit, does not conduct any verification about theveracity of the statements in the affidavit. If there isany counter statement filed by anyone challenging anyinformation given in the affidavit, the same is alsodisseminated by displaying copy thereof on the noticeboard of the Returning Officer....."9. It is further stated that whenever there is a falsestatement in an affidavit, the Commission hasdirected the Returning Officers to file complaintsbefore the competent magistrate for prosecutingthe concerned candidate under Section 177 of theIPC and/or 125A of the Representation of PeopleAct, 1951. We have also examined the circularissued by the Election Commission in this regard.However, it is clear to us if the main purpose ofdisclosure of information is that the disclosuremust present provide accurate information, to thendeny power to the Election Commission or theReturning Officer to verify the correctness of theinformation constitutes a major impediment inlaw.10. We are also of the opinion that by not compilinginformation from the affidavits about cases wherecandidates were facing charges, the ElectionCommission has not been able to acquire a suitabledatabase to look at the profile of the candidates348


who have contested elections. After all in ademocratic country where free and fair electionshave to take place, the character of the candidate isrelevant. We, therefore, request the ElectionCommission to compile information from suchaffidavits in the future and keep it readinlyavailable for public access. In fact, we would likethe Election Commission to know that certainother non-governmental agencies have collectedinformation and have made available relevant datato the Committee.11. It must be noted that a free and fair election doesnot commence only with the filing of nominationpapers and declaration of the list of candidates foreach constituency. Rather, it also requiresintermediate scrutiny by the Election Commissionof statements which have been made bycandidates on oath. It is entirely conceivable that aperson has been convicted but has deliberatelyomitted disclosure of the same in his affidavit. Orin the alternative, that a person has been convictedbut has made the false disclosure that he has beenonly charged by a competent court or that he hasno charges pending. In such circumstances, in ourview, the Election Commission has erroneouslyrestrained itself, by being expressing its inability toinquire into the truthfulness and correctness of theallegations in relation to the existence of a criminalcase and its stage. We for instance are informedthat six MLAs have declared that they havecharges of rape against themselves in the affidavitsubmitted with the Election Commission of Indiaat the time of their election. Similarly, thirty-six(36) other MLAs have declared that they havecharges of crimes against women, such as349


outraging the modesty of a woman, assault,insulting the modesty of a woman etc.12. We also have found that political parties havegiven tickets to twenty-seven (27) candidates whocontested the State elections in the last 5 years whohave declared that they have been charged withrape. The names of such candidates are not beingreproduced in this report but are readily accessiblefrom the information provided by the Associationfor Democratic Reform from their website.13. In the Lok Sabha 2009, we are shocked to note thatpolitical parties have given tickets to sixcandidates who declared that they have beencharged with rape. Out of these, one is from RPP,one from RCP, one from BSP, one from JMM andtwo independent candidates. We also notice thatthirty-four (34) other contesting candidates of theLok Sabha 2009 General Elections have declaredthat they have charges of various crimes thatconstitute violence against women. We furtherfind that twelve (12) out of these thirty-four (34)candidates are independents, two are BSPcandidates, and two each from AITC and CPI (ML)(L).14. We thus have 2 Lok Sabha MPs who have declaredthat they have been charged with crimes againstwomen.15. We request the Election Commission to takecorrective measures so that in the future there is anaccurate database which is publicly availabledetailing the candidates in respect of whoseoffences cognizance has been taken by a court ofcompetent jurisdiction. Indeed, in a democracy350


where preambular values of justice, equality andliberty have to be upheld, if candidates have beenaccused of criminal cases of which cognizance hastaken by Courts, we surely believe this constitutesa ground for disqualification.16. We have dealt extensively with the material whichhas been made available to us by the Associationfor Democratic Reforms and, while we have nothad time to compare all of these details with therelevant affidavits, we did some random samplingto check the correctness of these figures and wefind them to be by and large correct. We find thatat least 10,618 candidates in the last 10 years arecandidates who have declared criminal cases.Further, out of them, 6,944 candidates are thosewho have declared heinous crimes. In the dataprovided to us what is meant by a heinous crime isunderstood as constituting a charge for any of thefollowing offences:-(i) Section 115: Abetment of offence punishablewith death or imprisonment for life-ifoffence not committed(ii) Section 120A and 120B: CriminalConspiracy(iii) Section 146 and 147: Rioting andpunishment for rioting(iv) Section 148: Rioting, armed with deadlyweapon(v) Section 153A: Promoting enmity betweendifferent groups on grounds of religion,race, place of birth, residence, language, etc.,and doing acts prejudicial to maintenance ofharmony(vi) Section 157: Harbouring persons hired foran unlawful assembly351


(vii) Section 171E: Punishment for Bribery(viii) Section 171F: Punishment for undueinfluence or personation at an election(ix) Section 212: Harbouring offender(x) Section 216: Harbouring offender who hasescaped from custody or whoseapprehension has been ordered(xi) Section 216A : Penalty for harbouringrobbers or dacoits(xii) Section 302: Punishment for murder(xiii) Section 304: culpable homicide notamounting to murder(xiv) Section 304B: Dowry death(xv) Section 305: Abetment of suicide of child orinsane person(xvi) Section 306: Abetment of suicide(xvii) Section 307: Attempt to murder(xviii) Section 312: Causing miscarriage(xix) Section 313: Causing miscarriage withoutwoman’s consent(xx) Section 314: Death caused by act done withintent to cause miscarriage(xxi) Section 315: Act done with intent to preventchild being born alive or to cause it to dieafter birth(xxii) Section 316: Causing death of quick unbornchild by act amounting to culpablehomicide(xxiii) Section 324: Voluntarily causing hurtby dangerous weapons or means(xxiv) Section 325: Punishment forvoluntarily causing grievous hurt(xxv) Section 326: Volunatrily causing grievoushurt by dangerous weapons or means(xxvi) Section 343: Wrongful confinementfor three or more days352


(xxvii) Section 344: Wrongful confinementfor ten or more days(xxviii) Section 346: Wrongful confinementin secret(xxix) Section 353: Assault or use ofcriminal force to deter a public servant fromdischarge of his duty(xxx) Section 354: Assault or use of criminal forceto a woman with intent to outrage hermodesty(xxxi) Section 357: Assault or use ofcriminal force in an attempt wrong<strong>full</strong>y toconfine a person(xxxii) Section 363: Punishment forkidnapping(xxxiii) Section 363A: Kidnapping ormaiming a minor for purposes of begging(xxxiv) Section 364: Kidnapping orabducting in order to murder(xxxv) Section 364A: Kidnapping forransom etc.(xxxvi) Section 365: Kidnapping orabducting with intent secretly andwrong<strong>full</strong>y to confine person(xxxvii) Section 366: Kidnapping, abductingor inducing woman to compel her marriage,etc.(xxxviii) Section 366A: Procuration of minorgirl(xxxix) Section 366B: Importation of girlfrom foreign country(xl) Section 367: Kidnapping or abducting inorder to subject person to grievous hurt,slavery, etc.(xli) Section 369: Kidnapping or abducting childunder ten years with intent to steal from itsperson353


(xlii) Section 370: Buying or disposing of anyperson as slave(xliii) Section 371: Habitual dealing in slave(xliv) Section 372: Selling minor for purposes ofprostitution, etc.(xlv) Section 373: Buying minor for purposes ofprostitution, etc.(xlvi) Section 374: Unlawful compulsory labour(xlvii) Section 376: Punishment for rape(xlviii) Section 376A: Intercourse by a manwith his wife during separation(xlix) Section 376B: Intercourse by public servantwith woman in his custody(l) Section 376C: Intercourse by superintendentof jail, remand home etc.(li) Section 376D: Intercourse by manager etc. ofa hospital with any woman in that hospital(lii) Section 384: Extortion and Punishment forextortion(liii) Section 385: Putting person in fear of injuryin order to commit extortion(liv) Section 386: Extortion by putting a person infear of death or grievous hurt(lv) Section 387: Putting person in fear of deathor of grievous hurt, in order to commi<strong>text</strong>ortion(lvi) Section 388: Extortion by threat ofaccusation of an offence punishable withdeath or imprisonment for life, etc.(lvii) Section 389: Putting person in fear ofaccusation of offence, in order to commi<strong>text</strong>ortion(lviii) Section 392: Punishment for robbery(lix) Section 393: Attempt to commit robbery(lx) Section 394: Person voluntarily causing hurtin committing or attempting to commit354


obbery, or any other person jointlyconcerned in such robbery(lxi) Section 395: Punishment for dacoity(lxii) Section 396: Dacoity with murder(lxiii) Section 397: Robbery, or dacoity, withattempt to cause death or grievous hurt(lxiv) Section 398: Attempt to commit robbery ordacoity when armed with deadly weapon(lxv) Section 399: Making preparation to commitdacoity(lxvi) Section 400: Punishment for belonging to agang of persons associated for the purposeof habitually committing dacoity(lxvii) Section 401: Punishment forbelonging to wandering gang of personsassociated for the purpose of habituallycommitting thefts(lxviii) Section 402: Assembling for purposeof committing dacoity(lxix) Section 403: Dishonest misappropriation ofproperty(lxx) Section 404: Dishonest misappropriation ofproperty possessed by deceased person atthe time of his death(lxxi) Section 406: Punishment for criminal breachof trust(lxxii) Section 409: Criminal breach of trustby public servant, or by banker, merchant oragent(lxxiii) Section 413: Habitually dealing instolen property(lxxiv) Section 419: Punishment for cheatingby personation(lxxv) Section 420: Cheating anddishonestly inducing delivery of property(lxxvi) Section 449: House- trespass in orderto commit offence punishable with death355


(lxxvii) Section 450: House- trespass in orderto commit offence punishable withimprisonment for life(lxxviii) Section 451: House- trespass in orderto commit offence punishable withimprisonment(lxxix) Section 452: House- trespass alterpreparation for hurt, assault or wrongfulrestraint(lxxx) Section 454: Lurking house- trespassor house- breaking in order to commitoffence punishable with imprisonment(lxxxi) Section 455: Lurking house- trespassor house- breaking after preparation forhurt, assault or wrongful restraint(lxxxii) Section 457: Lurking house- trespassor house- breaking by night in order tocommit offence punishable withimprisonment(lxxxiii) Section 458: Lurking house- trespassor house- breaking by night afterpreparation for hurt, assault, or wrongfulrestraint(lxxxiv) Section 459: Grievous hurt causedwhilst committing lurking house trespass orhouse-breaking(lxxxv) Section 460: All persons jointlyconcerned in lurking house-trespass orhouse-breaking by night punishable wheredeath or grievous hurt caused by one ofthem(lxxxvi) Section 489A: Counterfeitingcurrency- notes or bank- notes(lxxxvii) Section 498: Enticing or taking awayor detaining with criminal intent a marriedwoman356


(lxxxviii) Section 498A: Husband or relative ofhusband of a woman subjecting her tocruelty(lxxxix) Section 505: Statements creating orpromoting enmity, hatred or ill- willbetween classes in place of worship, etc.(xc) Section 506: Punishment for criminalintimidation(xci) Section 509: Uttering any word of makingany gesture intended to insult the modestyof a woman, etc.(xcii) Section 511: Punishment for attempting tocommit offences punishable withimprisonment for life or otherimprisonment”17. As we have stated above, the powers of theCommission in relation to the conduct of electionshas always been held to be plenary in character. InUnion of India v. Association for Democratic Reform 202 ,the Supreme Court in the con<strong>text</strong> of the powers ofthe Election Commission has held as follows:-”….The limitation on plenary character of the power iswhen Parliament or State Legislature has made a validlaw relating to or in connection with elections, theCommission is required to act in conformity with thesaid provisions. In case where law is silent, Article 324is a reservoir of power to act for the avowed purpose ofhaving free and fair elections. The Constitution hastaken care of leaving scope for exercise of residuarypower by the Commission in its own right as creature ofthe Constitution in the infinite variety of situations thatmay emerge from time to time in a large democracy, asevery contingency could not be foreseen or anticipatedby the enacted laws or the rules…:202 (2002) 5 SCC 294357


18. We may also note that the Supreme Court directedthat:-"To maintain the purity of election and in particular tobring transparency to the process of election, theCommission can ask the candidates about theexpenditure incurred by the political parties and thistransparency in the process of election would includetransparency of a candidate who seeks election or reelection.In a democracy, the electoral process has astrategic role. The little man of this country would havethe basic elementary right to know <strong>full</strong> particulars of acandidate who is to represent him in Parliament wherelaws to blind his liberty and property may be enacted.”19. We are also of the opinion that the Supreme Courthad directed that there is a right to know about thecandidates contesting the elections who are publicfunctionaries. Accordingly, the Supreme Courtdirected that:-“The Election Commission is directed to call forinformation on affidavit by issuing necessary order inexercise of its power under Article 324 of theConstitution of India from each candidate seekingelection to Parliament or a State Legislature as anecessary part of his nomination paper, furnishingtherein, information in relation to the following aspectsin relation to his/her candidature:(1) Whether the candidate isconvicted/acquitted/discharged of anycriminal offence in the past – if any, whetherhe is punished with imprisonment or fine.(2) Prior to six months of filing of nomination,whether the candidate is accused in anypending case, of any offence punishableimprisonment for two years or more, and inwhich charge is framed or cognizance istaken by the court of law. If so, detailsthereof.358


(3) The assets (immovable, movable, bankbalance, etc.) of a candidate and his/herspouse and that of dependants.(4) Liabilities, if any, particularly whether thereare any overdues of any public financialinstitution.(5) The educational qualifications of thecandidate.” 20320. In fact, we may add that there was an attempt onthe part of Parliament to undo the effect of thejudgment of the Supreme Court passed in Union ofIndia v. Association for Democratic Reforms.Accordingly, Section 33B of the Representation ofPeople Act was sought to be inserted, which wasstruck down as unconstitutional by the SupremeCourt in People’s Union of Civil Liberties v. Union ofIndia 204 .21. We also note that Section 33A was inserted by Act72 of 2012 w.e.f. 24 th August, 2002 which providedas follows:(1) A candidate shall, apart from any information which heis required to furnish under this Act or the Rules madethereunder, in his nomination paper deliver under subsection(1) of Section 33, also furnish the information asto whether(i)(ii)he is accused of any offence punishablewith imprisonment for two years or morein a pending case in which a charge hasbeen framed by the Court of competentjurisdiction;he has been convicted of an offence otherthan any offence referred to in subsection(1) or sub-section (2), or covered203 Id. at para 48 at 322.204 Supra, n. 1359


in sub-section (3), of Section 8 andsentenced to imprisonment for one yearor more.(2) The candidate or his proposer, as the case may be, shallat the time of delivery to the returning officer thenomination paper under sub-section (1) of Section 33,shall also deliver to him an affidavit sworn in by thecandidate in a prescribed form verifying the informationspecified in sub-section (1).(3) The returning officer shall, as soon as he may be, afterthe furnishing of information to him under sub-section(1), display the aforesaid information by affixing a copyof the affidavit delivered under sub-section (2), at aconspicuous place at his office for the information of theelectors relating to constituency for which thenomination paper is delivered.22. From a bare perusal of the judgment of theSupreme Court it is clear to us that direction No.6clearly provides that:“The Right to Information provided for by theParliament under Section 33A in regard to thepending criminal cases and past involvement insuch cases is reasonably adequate to safeguard theright to information vested in the voter/citizen.However, there is no good reason for excludingthe pending cases in which cognizance has beentaken by Court from the ambit of disclosure...."23. We therefore find that there is an element ofcontradiction in the position that scrutiny ofaffidavits will not be necessary, particularly whenrecourse can be had to Section 125A of theRepresentation of People Act, 1951. Further, itmay be pointed out that a penalty for filing a falseaffidavit is liable to imprisonment for a termwhich may extend to six months. In other words,it is punishable as an offence. If it is punishable as360


an offence, then in that event upon the convictionof that offence, the candidate ought to be liable tobe disqualified. In our view, a disqualification onsuch conviction must definitely ensue. Thus, it isutterly improper that a legislator can file a falseaffidavit under Section 33A, thus denying theElection Commission the powers of any inquiry,for which he can only be prosecuted for an offenceunder Section 125A and/or Section 177 IPC whichdoes not lead automatically to disqualification.This, in our opinion, makes a mockery of the entireprovision contained in Section 33A. We think thatif an affidavit filed by a candidate is not verified,the mere putting up of that affidavit in the publicdomain is hardly of any consequence. Wetherefore suggested the following courses:(i)(ii)That disqualification will ensue in the eventof a conviction under Section 125A of theRepresentation of People Act, 1951 and theseat would be rendered vacant; andFor future elections, we would also suggestthat before any candidates certifies thestatus of a pending case involving him, hemust actually get a certificate from theRegistrar of the concerned High Court, whowill have the opportunity to contact andestablish from the database that theaverments which have been made in theaffidavit are correct and true to judicialrecord.24. We are therefore of the opinion that there needs tobe an amendment by which there is compulsion onthe candidates to disclose truth<strong>full</strong>y under Section33A the true facts failing which disqualificationwill issue. In our opinion, Section 8(1) of the361


Representation of People Act, 1951 must contain aprovision for disqualification in respect of everycase where a person has been accused of theoffences listed therein where a the court has takencognizance.25. We are indeed surprised that Parliament haschosen not to describe the heinous offences. A listof these offences is produced in the proposedSchedule 1 to the Representation of People Act,1951, which may be found in the appendices tothis report.26. We also notice the following answer of theElection Commission:“There are more than 1400 political parties registeredwith the Election Commission under Section 29A ofRepresentation of People Act, 1951. Under theprovisions of the law, there is no requirement that aparty should have any in-built mechanism to filter outcandidates accused/facing criminal charges. TheCommission, therefore, does not have the desiredinformation about the internal policies/code of conductof political parties in this regard. Also, there is no recordof instances where political parties may have refusednomination for candidates on the ground of criminalbackground. The Commission has, however,recommended to the Govt. that there should be acomprehensive law regulating, inter alia, the internalfunctioning of political parties”27. In view of the above, we are of the opinion that alaw along the lines of UK Political Parties,Elections and Referendums Act, 2000 should beenacted, with the aim of enforcing the followingprinciples:(i)(ii)Criteria for admission into the parties.Internal democracy362


(iii)(iv)(v)(vi)Code of conduct of the political party.Transparency in receiving donations.Accounting the expenditure which is spenton political electionsWhether the political party will refusenomination for candidates on the ground ofcriminal background.28. The Election Commission has been unable to dealwith corruption which may exist through themedium of political parties because of the fact thatit does not have any authority in law and nor doesany party have any statutory requirement offollowing certain internal checks and balances.Imposing a barrier upon people who have criminalrecords from entering politics would be the easiestway to cleanse lawmaking bodies of the presentday malady. However, this requires thecooperation of political parties for its translationinto an effective law and then into consistent,reliable practice. We can only request politicalparties to take all steps necessary in this light.29. In fact, the Commission itself on 15.6.1998 hasnoted that:“The whole country is now expressing serious concernover the anti-social and criminal elements entering theelectoral arena. Even Parliament in the debates in 50years of independence and the resolution passed inspecial session in August, 1997 had shown a great dealof concern about the increasing criminalization ofpolitics. It is widely believed that there is a growingnexus between the political parties and anti-socialelements which is leading to criminalization of politicswhere the criminals themselves are now joining theelection fray and often even getting elected in theprocess. Some of them have even adorned ministerial363


erths and thus law breakers have become lawmakers....”30. We are of the opinion if this is the opinion of theElection Commission of India – not ours– we needsay nothing more. It is clear that a Parliamentwhich consists of persons with criminal records isunlikely to pass any effective Criminal LawAmendment reform. There is a distinct conflict ofinterest and we do hope that those Members ofParliament who have been charge sheeted ofcriminal offences specified in the proposed section8(1) and where cognizance has been taken, will, asa mark of respect for the Parliament and thehistory of the Indian people, demit their offices asa leading and shining example of transformation.We can do no more than appeal.31. Further in the analysis which has been madeavailable to us which we have attempted to checkand verify the data of the elections which havebeen held in the last ten years. We asked theAssociation for Democratic Reforms to makeavailable the information. We were provided withtwo startling charts that displayed the totalnumber of candidates with criminal records in allParliamentary and Legislative Assembly electionsover the past 10 years, and the total number ofelected candidates in such elections, respectively.1. Analysis of criminal cases declared by thecontesting candidates in most (Parliamentary andLegislative Assembly) of the elections held inpast 10 years364


ElectionsGoa2012Gujarat2012HimachalPradesh2012Manipur2012Punjab2012UttarPradesh2012Uttarakhand2012AssamNo. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)CandidateswhodeclaredCriminalscases(C)%candidateswithcriminalcases(D=C/B)Candidateswhodeclaredheinouscrimes(E)%candidateswithcriminalcases(F=E/B)40 215 215 38 18% 17 8%182 1666 1666 288 17% 49 3%68 459 459 71 15% 21 5%60 279 274 3 1% 2 1%117 1078 1057 116 11% 79 7%403 6839 6722 1322 20% 1013 15%70 788 766 109 14% 68 9%126 981 962 98 10% 67 7%365


Elections2011Kerala2011Puducherry2011TamilNadu2011WestBengal2011Bihar2010AndhraPradesh2009ArunachalPradNo. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)CandidateswhodeclaredCriminalscases(C)%candidateswithcriminalcases(D=C/B)Candidateswhodeclaredheinouscrimes(E)%candidateswithcriminalcases(F=E/B)140 971 433 181 42% 73 17%30 187 190 26 14% 12 6%234 2748 738 143 19% 99 13%294 1792 1333 277 21% 212 16%243 2135 2490 874 35% 612 25%294 3655 3181 398 13% 273 9%60 157 155 4 3% 1 1%366


Electionsesh2009Haryana2009Jharkhand2009Maharashtra2009Orissa2009Sikkim2009Chattisgarh2008Delhi2008Jammu &No. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)CandidateswhodeclaredCriminalscases(C)%candidateswithcriminalcases(D=C/B)Candidateswhodeclaredheinouscrimes(E)%candidateswithcriminalcases(F=E/B)90 1222 858 92 11% 76 9%81 1491 1443 400 28% 284 20%288 3559 3530 853 24% 548 16%147 1288 1288 295 23% 222 17%32 167 167 23 14% 3 2%90 1066 897 83 9% 43 5%70 875 782 119 15% 85 11%87 1354 1041 45 4% 32 3%367


ElectionsKashmir2008Karnataka2008MadhyaPradesh2008Meghalaya2008Mizoram2008Nagaland2008Rajasthan2008Tripura2008No. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)CandidateswhodeclaredCriminalscases(C)%candidateswithcriminalcases(D=C/B)Candidateswhodeclaredheinouscrimes(E)%candidateswithcriminalcases(F=E/B)224 2242 1867 235 13% 127 7%230 3179 3049 463 15% 295 10%60 338 341 5 1% 3 1%40 206 205 6 3% 3 1%60 218 226 4 2% 3 1%200 2194 2109 243 12% 145 7%60 313 309 8 3% 5 2%368


ElectionsGoa2007Gujarat2007Himachal2007Manipur2007Punjab2007UttarPradesh2007Uttarakhand2007Assam2006No. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)369CandidateswhodeclaredCriminalscases(C)%candidateswithcriminalcases(D=C/B)Candidateswhodeclaredheinouscrimes(E)%candidateswithcriminalcases(F=E/B)40 202 168 30 18% 20 12%182 1268 583 132 23% 87 15%68 336 344 63 18% 30 9%60 308 304 5 2% 5 2%116 1043 527 70 13% 51 10%403 6086 1892 526 28% 432 23%69 785 263 47 18% 26 10%126 997 251 16 6% 11 4%Keral 140 931 279 125 45% 67 24%


Electionsa2006Pondicherry2006TamilNadu2006WestBengal2006ArunachalPradesh2004Bihar2005Haryana2005JharkhandNo. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)CandidateswhodeclaredCriminalscases(C)%candidateswithcriminalcases(D=C/B)Candidateswhodeclaredheinouscrimes(E)%candidateswithcriminalcases(F=E/B)30 218 148 15 10% 10 7%234 2586 783 167 21% 93 12%294 1654 571 133 23% 114 20%60 168 114 2 2% 0 0%243 3523 918 358 39% 253 28%90 983 179 37 21% 31 17%81 1390 148 61 41% 47 32%370


Elections2005Maharashtra2004Orissa2004LokSabha2004LokSabha2009RajyaSabhaNo. ofconstituencies (A)Total 8120CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)CandidateswhodeclaredCriminalscases(C)%candidateswithcriminalcases(D=C/B)Candidateswhodeclaredheinouscrimes(E)%candidateswithcriminalcases(F=E/B)288 2678 576 251 44% 160 28%147 802 163 63 39% 40 25%543 5435 3290 473 14% 328 10%543 8070 7811 1160 15% 761 10%243 N.A 336 62 18% 27 8%83125584011061818% 7065 12%2. Analysis of criminal cases declared by the electedmembers in most of the elections held in past 10years371


ElectionsGoa2012Gujarat2012HimachalPradesh2012Manipur2012Punjab2012No. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)ElectedMembers(MPs &MLAs)whodeclaredcriminalcases (C)%ElectedMembers(MPs &MLAs)withcriminalcases(D=C/A)ElectedMembers(MPs &MLAs)whodeclaredheinouscases (E)%Electedmemberswithheinouscases(F=E/A)40 215 215 12 30% 6 15%182 1666 1666 57 31% 7 4%68 459 459 14 21% 2 3%60 279 274 0 0% 0 0%117 1078 1057 22 19% 16 14%Uttar 403 6839 6722 189 47% 146 36%372


ElectionsPradesh2012Uttarakhand2012Assam2011Kerala2011Puducherry2011No. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)ElectedMembers(MPs &MLAs)whodeclaredcriminalcases (C)%ElectedMembers(MPs &MLAs)withcriminalcases(D=C/A)ElectedMembers(MPs &MLAs)whodeclaredheinouscases (E)%Electedmemberswithheinouscases(F=E/A)70 788 766 20 29% 13 19%126 981 962 13 10% 8 6%140 971 433 69 49% 24 17%30 187 190 10 33% 5 17%Tamil 234 2748 738 70 30% 50 21%373


ElectionsNadu2011WestBengal 2011Bihar2010AndhraPradesh2009ArunachalPradesh2009No. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)ElectedMembers(MPs &MLAs)whodeclaredcriminalcases (C)%ElectedMembers(MPs &MLAs)withcriminalcases(D=C/A)ElectedMembers(MPs &MLAs)whodeclaredheinouscases (E)%Electedmemberswithheinouscases(F=E/A)294 1792 1333 103 35% 92 31%243 2135 2490 141 58% 91 37%294 3655 3181 81 28% 51 17%60 157 155 2 3% 0 0%Hary 90 1222 858 15 17% 13 14%374


Electionsana2009Jharkhand2009Maharashtra2009Orissa2009Sikkim2009Chattisgarh2008No. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)ElectedMembers(MPs &MLAs)whodeclaredcriminalcases (C)%ElectedMembers(MPs &MLAs)withcriminalcases(D=C/A)ElectedMembers(MPs &MLAs)whodeclaredheinouscases (E)%Electedmemberswithheinouscases(F=E/A)81 1491 1443 60 74% 44 54%288 3559 3530 146 51% 94 33%147 1288 1288 48 33% 37 25%32 167 167 1 3% 0 0%90 1066 897 9 10% 7 8%375


ElectionsDelhi2008Jammu &Kashmir2008Karnataka2008MadhyaPradesh2008Meghalaya2008No. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)ElectedMembers(MPs &MLAs)whodeclaredcriminalcases (C)%ElectedMembers(MPs &MLAs)withcriminalcases(D=C/A)ElectedMembers(MPs &MLAs)whodeclaredheinouscases (E)%Electedmemberswithheinouscases(F=E/A)70 875 782 33 47% 24 34%87 1354 1041 7 8% 4 5%224 2242 1867 48 21% 26 12%230 3179 3049 59 26% 41 18%60 338 341 1 2% 1 2%376


ElectionsMizoram2008Nagaland2008Rajasthan2008Tripura2008Goa2007Gujarat2007No. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)ElectedMembers(MPs &MLAs)whodeclaredcriminalcases (C)%ElectedMembers(MPs &MLAs)withcriminalcases(D=C/A)ElectedMembers(MPs &MLAs)whodeclaredheinouscases (E)%Electedmemberswithheinouscases(F=E/A)40 206 205 4 10% 1 3%60 218 226 0 0% 0 0%200 2194 2109 30 15% 21 11%60 313 309 3 5% 2 3%40 202 168 9 23% 7 18%182 1268 583 50 27% 34 19%Hima 68 336 344 28 41% 13 19%377


Electionschal2007Manipur2007Punjab2007UttarPradesh2007Uttarakhand2007AssamNo. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)ElectedMembers(MPs &MLAs)whodeclaredcriminalcases (C)%ElectedMembers(MPs &MLAs)withcriminalcases(D=C/A)ElectedMembers(MPs &MLAs)whodeclaredheinouscases (E)%Electedmemberswithheinouscases(F=E/A)60 308 304 1 2% 1 2%116 1043 527 21 18% 16 14%403 6086 1892 148 37% 124 31%69 785 263 18 26% 8 12%126 997 251 7 6% 6 5%378


Elections2006Kerala2006Pondicherry2006TamilNadu2006WestBengal 2006ArunachalPradeshNo. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)ElectedMembers(MPs &MLAs)whodeclaredcriminalcases (C)%ElectedMembers(MPs &MLAs)withcriminalcases(D=C/A)ElectedMembers(MPs &MLAs)whodeclaredheinouscases (E)%Electedmemberswithheinouscases(F=E/A)140 931 279 69 49% 39 28%30 218 148 6 20% 5 17%234 2586 783 77 33% 38 16%294 1654 571 45 15% 37 13%60 168 114 2 3% 0 0%379


ElectionsNo. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)ElectedMembers(MPs &MLAs)whodeclaredcriminalcases (C)%ElectedMembers(MPs &MLAs)withcriminalcases(D=C/A)ElectedMembers(MPs &MLAs)whodeclaredheinouscases (E)%Electedmemberswithheinouscases(F=E/A)2004Bihar2005Haryana2005Jharkhand2005Maharashtra2004Orissa2004LokSabh243 3523 918 117 48% 82 34%90 983 179 28 31% 23 26%81 1390 148 31 38% 25 31%288 2678 576 132 46% 81 28%147 802 163 58 39% 36 24%543 5435 3290 128 24% 88 16%380


Electionsa2004LokSabha2009RajyaSabhaNo. ofconstituencies (A)CandidateswhocontestedelectionsCandidatesAnalyzedbyADR(B)ElectedMembers(MPs &MLAs)whodeclaredcriminalcases (C)%ElectedMembers(MPs &MLAs)withcriminalcases(D=C/A)ElectedMembers(MPs &MLAs)whodeclaredheinouscases (E)%Electedmemberswithheinouscases(F=E/A)543 8070 7811 164 30% 95 17%243 N.A 336 62 0.26 27 0.11Total 8120 83125 58401 2468 31% 1611 20%32. The charts produced above clearly shows that outof a total of 7877 constituencies where 83125candidates contested elections, the record of 58401was analysed and 2468 elected members hadcriminal cases. This constitutes 31% of theElectoral College. We are of the opinion that if31% of the Electoral College has either beencharged with or convicted of a criminal offence, a381


fundamental attribute of morality which isinherent in discharging public functions standsseriously impaired. We may add that on thedefinition of heinous cases which list we havesupplied, 20% of all elected candidates have acriminal record involving such heinous offences.33. We therefore would suggest an amendment to theprovisions of the Comptroller and AuditorGeneral’s (Duties, Powers and Conditions ofService) Act, 1971 to permit a deeper investigationof assets/liabilities declared at the time of filing anomination paper or, as soon as may be practicalthereafter. The assets and liabilities of eachsuccessful candidate – at the very least, if not allcandidates – contesting elections to theParliament/State Legislature may be verified by adivision of the Comptroller and Auditor Generalof India. If this were so, then the law can beamended that a certificate from the office of theComptroller and Auditor General of India will benecessary which will certify that the assets whichhave been declared have been correctly declared.This would guarantee probity in public life andwould ensure that any candidate who stands forelection will have the requisite moral authority tobe able to engage the people. We must express ourtotal satisfaction at the representation and positiveattitude of the Election Commission during thepublic hearing. It has fairly conceded that womencannot effectively exercise political rights whencandidates who are in the electoral fray have acriminal record.382


CHAPTER FOURTEENEDUCATION AND PERCEPTION REFORMPreventing Stereotyping“Male silence response to female expression of emotions orappeal to group solidarity can also serve to reinforcemessages of female inferiority encouraging further femalesilence…One reason little boys become inexpressive is notsimply because our culture expects boys to be that way –but because our culture expects little boys to grow up tohold positions of power and prestige.” 2051. There is a similar expectation upon the girl whenwe commonly use the phrase that ‘girls maturefaster than boys’. This expectation is symbolic ofwomen merely being made aware of theirsexuality at an early age and at an age when theirmale counterparts have relatively more freedom atleast physically, while having their freedom ofexpression curtailed.2. This process of blinkered acculturation iscompounded by the other social hierarchies wherethe girl child is brought up to believe that she isnot just the repository of the ‘honour’ of her ownfamily but also that of her community/ caste etc.False morality is administered from childhood andpatriarchy makes women accomplices in itsinstitutionalization and women themselvesreinforce patriarchal norms over generations.There is, what Delige explains in a caste con<strong>text</strong>, aculture of ‘replication and consensus’, there certainpractices are replicated over generations havingbeing normalized in a society and the consensus205 Andrew E. Taslitz, Extracts From Rape And The Culture Of TheCulture Of The Court Room, New York University Press (1999) P71383


on such a normative values is a corollary of thefirst principle. 2063. Shekhar Seshadri and Viay Chandran, inRethinking Masculinities write about patriarchy andsocialisation; “The perpetuation of patriarchythrough socialisation begins early on with thecelebration of a male child’s birth. Particularly inSouth Asia, the way children are brought upthrows light on how knowledge about genderroles is constructed within families and in society.Children internalise this socialisation and reproducetraditional gender roles. Socialisation alsogenders children’s play by providing notions ofappropriateness, which exclude girls and boysfrom each other’s experiences. Boys areconditioned to believe that power and violenceresides unchallenged in their bodies and girls arebrought up to uphold notions of traditional valuesand virtues to protect family honour. Boys are alsoexpected to protect that honour and control girlsand women. The construct of virginity or thatpurity resides in one part of the female body (thathas no scientific, philosophical or biologicallegitimacy) only enables further control ofwomen’s bodies and female sexuality. All these areconstructs of patriarchy, which men use tonegotiate power or dishonour somebody else.” 2074. Further, they recommend that one must ensurechildren’s experiences are not gendered i.e., “acertain way of playing or relating cannot be constructedas masculine or feminine, but merely as an experience.Once socialisation ceases to be about gender-biased206 Deliege, R. 1992. 'Replication and consensus: Untouchability, casteand ideology in India', Man, Volume: 155-73.207 Andrew E. Taslitz, Extracts From Rape And The Culture Of TheCulture Of The Court Room, New York University Press (1999) P71384


expectations, children’s experiences can naturally teachthem about inequalities and rights of others.”5. ‘Power and entitlement’ are also acquired throughsocialisation processes and later naturalised, ratherthan vice versa;“Everyone experiences power differently in society.Men may be powerful in many con<strong>text</strong>s, but powerlessin situations.” 2086. Here the authors also observe the identities thatare built through class or caste and have a directbearing on ‘power’ being categorised byhierarchies.7. Additionally, the experience of power is oftenabout entitlement of power. The construct ofentitlement is also part of the socialisationprocesses. Male children are conditioned to believethat they are entitled to opportunities or access tofacilities over female children. This is notchallenged, even in later years, but there is veryclear knowledge that such an entitlement is beinggained at the cost of women. There is a commonassumption and ‘an oft-repeated public debate’aims at attempting to understand if men areinherently more aggressive than women.8. “Nature and biology are consistently blamed for maleaggression and uncontrolled raging hormones areblamed for violent outbursts in men. The constructbeing that men are incapable of controlling these, whichis in effect a complete abdication of will andresponsibility.” 209208 Ibid209 Seshadri, S., Chandran, V., Leach, F. and Mitchell, C. 2006.'Reframing masculinities: using films with male adolescents to addressgender-based issues', F. Leach and C. Mitchell (eds.)385


9. These ideas emanate from a biased history andreinforce the notion that ‘men are always morepowerful’, assuming them to be able to makebetter leaders, who indirectly also characterisegood leaders as ones who are naturally aggressive,making men appear better decision-makers, andconsequently better equipped to be the sole breadearners.10. Conflicts arise here because a simple examinationof male experience shows that boys are expected toachieve masculinity at all odds to prove theirmanhood through a process of social orpsychological evolution using various messages.“If manhood is biologically ordained, why is therea need to constantly prove it or achieve it? Suchexercise of power and violence against women andother men not only structure man-womanrelationships, but also among men themselves insociety…” 210 The need, as feminist activism hasexpressed before us, is to gender every sector insociety and explore the ways that institutionsdiscriminate and marginalise women. Institutions,like individual experiences, cannot be dominatedon the basis of a perception of biologicalsuperiority; this is simply sexism in practice.11. Stereotyping plagues the functioning of a numberof social institutions. Professions like law,medicine, politics are considered predominantlymale professions and patriarchal structures inthese areas remain largely unchallenged. Women’smerit is repeatedly questioned with respect tohandling responsibilities within these institutions.210 Andrew E. Taslitz 1999386


12. The necessity is to not just allow for but alsopromote alternate forms of masculine expressionand encourage expression and engagement withemotions of anger, frustration and other intensefeelings. “Constructing tenderness and caring aslegitimate emotions across all sectors of society isone such important alternative.” Caring andnurturing attitudes are largely understood asfeminine virtues, thus one also has to be carefulupholding another stereotype, but this wouldcertainly help deconstruct the culture ofsuperiority that pervades the society and isdetrimental to all genders.Recognising Discrimination13. A study by Mairead Dunne, Sara Humphreys,Fiona Leach, 2003 is instructive understanding onthe evidence of gender based violence in schoolsand developing countries and also the measureswhich have been taken to address them. Mostoften, gender violence is not considered differentlyfrom other forms of school violence. 211 As a result,an appropriate gender sensitive frameworkrequired to observe and intervene does not exist sothat these least desirable aspects of school life areleft unreported. Cases of gender based violence inschools can be characterised and reporteddifferently and without reference to gender. Usinga gender sensitive frame of reference, genderbasedviolence can be broadly clustered into twooverlapping categories – (a) explicit gender (sexualviolence), which includes sexual harassment,intimidation, abuse, assault and rape and implicit211 Leach, F. and Humphreys, S. 2007. 'Gender violence in schools:Taking the ‘girls-as-victims†discourse forward', Gender &Development, Volume(1): 51-65.387


gender violence, which includes corporalpunishment, bullying, verbal and psychologicalabuse, teachers unofficial use of pupils for freelabour and other forms of aggressive orunauthorised behaviour which is gender specific.14. It is important for us to note that the internationalefforts to increase participation in schools havetended to assume that the institution of the schoolis somewhat neutral. However, the Leach studyreveals a large number of reports which seem tosuggest to the contrary. Thus, the school is animportant venue where the development ofsexuality, access and participation with studentsand teachers, curriculum, examinations andteaching quality all play a certain part in genderdifferentiation. We understand that the schoolcon<strong>text</strong> affords a very dynamic experience andbearing on the extent to which gender violence canbe reduced.15. The school as a social arena is also marked byasymmetrical power relations. In a certain sense,the entire purpose of law is to correct theasymmetry of power. If that asymmetry of powerbegins in the arena of a school, we need toconsider this closely. This asymmetry is enactednot only through gender but through age andauthority. Additional social indicators such asethnicity, disability and language are additionalfactors contributing to such an asymmetry. Theseare fundamental to school experiences and thequality of school life. We also therefore notice thatwithin the school, the gender regime is constructedthrough every day, taken for granted routinepractices. In many schools, girls are responsiblefor cleaning and boys for digging the school388


grounds. In some class rooms, girls may sit at thefront of the class and boys at the back. The genderboundaries which are drawn within an institutionhelp to construct and reinforce feminine andmasculine identities within the school. Thus theschool is an important area where ‘femininity’ and‘masculinity’ is attributed. It is necessary that theattribution must take place in a rational, correct,egalitarian and sensible way. We notice that therights of passage to adulthood are the most criticalto students. Transgressions across the boundariesof accepted gender behaviour are discoveredthrough peer pressure, and sometimes by physicalassault, intimidation, verbal abuse anddeprivation. Among students, violence isperpetrated more often by boys and on both girlsand other boys. In other words, violence isperpetrated on boys who do not conform todominant forms of masculinity and on girls whoare not sufficiently modest and retiring in theirfeminine demeanour. In other words, there is aninternal policing which takes place of theboundaries of gender relations in schools.16. We also notice that by using age/authority, powerposition, teachers normalise certain aspects ofmale and female behaviour. We also notice thatthe use of disciplinary sanctions can sometimeslead to abuse by those in positions of authority.Control through physical strength or economicadvantage by male pupils over female pupils oryounger male pupils is a case in point. Genderviolence which is engaged in schools is sexualabuse. It can be aggressive and intimatingbehaviour, unsolicited physical contacts such astouching and groping, assault, coercive sex andrape all of which constitute abuse. In the event of389


a teacher forming a sexual relationship with apupil, the same too constitutes abuse. We also areaware of hostel wardens and other social workerswho are alleged to exploit their position ofauthority and perpetrate sexual abuse.17. We live in a “cult of masculinity”, a cult ofaggression. The term refers not so much to thequantity of aggression, although there is ampleevidence that at least physical aggression(violence) is primarily a male dominion, as to thediffering meanings men and women give toaggression.“For most men, aggression, whether physical or verbalis instrumental, a way of controlling others, attainingsocial or material benefits, dominance, and self-esteem.For most women, aggression is expressive, a release offrustration or anger, viewed as a loss of self-control anda danger to relationships. So conceived, femaleaggression is more likely to be private, angry and asource of guilt. Male aggression may be unconnected toanger and more often is public; it is necessaryprerequisite for attaining self-esteem, social dominance,and closer male bonding. This is not to say that thereare no limits on acceptable male aggression. To thecontrary, for public aggression to serve as aninstrumental means of distributing social and economicresources rather than social chaos, it must be governedby rules. And on overriding rule is that excessive publicaggression is directed towards an opponent who has noreal chance of winning is bullying and henceunacceptable.” 21218. Education on gender for young men and adultswill need to be distinct from education on genderfor children. ‘Gender’ (and the associated idea of‘masculinity’ and ‘femininity’) is a social (not212 Andrew E. Taslitz, Extracts From Rape And The Culture Of TheCulture Of The Court Room, New York University Press (1999) p25390


iological) construct. By young adulthoodperceptions of gender are more fixed. 21319. Touching, harassment and forced intercourse areall seen as normal to masculinity. There is aprevalence of a misplaced belief by young menthat a ‘real woman’ was meant to resist sexualadvances. Thus the use of force becomes not onlynormal, but (if a real women resists) also essential andideal. These notions carry over to sexualrelationships, and there combine with notions ofmasculinity that involve explosive sexuality,sexual success, independent from relationships,physical toughness, and loss of empathy.20. The most crucial question in the con<strong>text</strong> of childsexual abuse is: why is male perpetration of abuseso high? Abuse cannot be looked at in isolation asone related only to sexual harassment but rather asan issue related to children and to childhood; sexand sexuality, violence and violation; and at adeeper level, power and domination, gender andpatriarchy and so on.“One construct, related to masculinities, is theassociation of potency and virility with having sex withvirgins or children. Resolution: It is important not toessentialise the experience of abuse to the extent thatmore psychological scarring results from disclosureacknowledging personal abuse experiences. Opendialogues need to be held on abuse and exploitation withchildren and adults. Children need to be able to havechild-friendly environments in which to express openlyany abusive experiences. Above all, the experience ofabuse does not determine the rest of the individual’s life,213 Verma et al, Challenging and Changing Gender Attitudes amongYoung Men in Mumbai, India391


eclaiming sexual desire after abusive experiences is justas important an agenda in the healing process.” 21421. In view of the underreporting of rape or offencesagainst children, it is not possible to have anexactly accurate figure of how many seriousoffences against children have actually takenplace. In the Lancet, a 1998 study of the frequencyof rape among a nationally representative sampleof 11,735 South African women aged 15-49 foundthat, of the 159 women who had been the victimsof child rape, 33% had been raped by teachers. Weare therefore of the opinion that it is not simplyenough to speak against child rape but it isimportant that there must be strong, psychologicalorientation for teachers to create conditions withinthe school by which gender mainstreaming isachieved and also to ensure that counselling andcorrections take place at the earliest whenaberrations are visible. Obviously, this wouldinvolve a certain degree of unbiased, matureschool teachers who ought to be able tounderstand the nature of such a sensitive subject.22. We have noticed that in United Kingdom, theprinciple against gender violence is based on whatis called the marking of zero tolerance. Thus, weneed to bear in mind that one of the initial causesfor gender violence in schools may also be onaccount of discriminatory behaviour on thegrounds of ethnicity, religion, age or disability aswell as gender. This is the first aberration that ateacher must recognise and immediately correct.Once non-discriminatory attitude and214 Andrew E. Taslitz, Extracts From Rape And The Culture Of TheCulture Of The Court Room, New York University Press (1999)392


temperament is developed in schools, genderequality will follow normally as a matter of course.23. We are also concerned with implicit genderviolence. We need to also consider that genderviolence is an important cause of poorperformance and drop out. Forms of sexualintimidation, verbal abuse and physical assault canlead to irregular attendance and underachievement of girls. Thus, we need to considerwhether there is a manipulation of gender spaceby boys both inside and outside the classroomwhich constricts the participation of girls inlessons while boys themselves are distracted bythe need to confirm their masculinity byperformances of disrupting the lesson anddemanding attention and distraction. These areserious issues.24. Teacher’s wide spread use of verbal abuse cangenerate low-esteem and is more hurtful thancorporal punishment. In other words, there is anintrinsic connection between gender identity andself-worth. Gender discrimination violates theevolution of a strong identity. It is true thatnotwithstanding this generalisation, there areinstances of women who have catapulted andovercome adverse circumstances by sheerdetermination, extraordinary will power and by atremendous instinct of survival. But these are notthe measures by which we judge the fundamentalbasis of a prevalent climate in society. Theexceptions do not prove the rule nor are theexceptions ever supposed to dictate whatcorrective steps are necessary for attitudinalchanges.393


25. Dr. Sheshadri summaries the psycho-social effectsof child abuse, diagrammatically below: 215When abuse occurs, as in the case of child abuse the followingwould take place.Experiences - Internal representation/internalisation - BehavioursSexual abuseby a relative/incest.Internalisationcauses the childto have atraumatic internalrepresentation ofthe incident in hermind. Thisrepresentationhas an innervoice, which isnegativeregarding theabuse.This can lead tonegative behavioursorCause the child tomisinterpret normaldevelopmentalexperiences asoccurring due to theabuse. E.g.menstruation can bemisinterpreted as ‘Iam dirty because Ibleed’ incident.Fig.1215 Seshadri, S., Chandran, V., Leach, F. and Mitchell, C. 2006.'Reframing masculinities: using films with male adolescents to addressgender-based issues', F. Leach and C. Mitchell (eds.)394


Since the child has no background to understand the abuse, theinner voice which develops (within one day, one week orseventeen years) after the abuse is a negative inner voice, whichis stuck/halted.Fig.2 21626. However, simply acknowledging the socialsystems that influence child’s psychology andeven his response to abuse would be insufficient.But rather transforming a child’s perceptions ofthe stereotypes through sensitisation would yieldmuch greater benefits. “Such a rethinking of basicassumptions of male, female or other identities”Sheshadri warns, “is not only useful, butessential.”Building an Alternative Framework27. Most children’s education in South Asia accordingto findings of Leech et al have focused primarilyon lecturing children about what they should do216 Women's Research, C. and Bc 1989. Recollecting our lives:Women's experience of childhood sexual abuse. Press GangPublishers; in Dr. Sheshadri’s Submissions to the Committee.395


without encouraging them to express theiropinions about perceived needs. Kumar (1994)suggests that schools have to act as countersocialisersto tackle gender bias anddiscrimination. Therefore, methodologies that canset up such counter-socialisation have to beexplored. 21728. Dr Shashi Kiran, pertinently observes:“In India and indeed across the world, the steering ofeducation seems to have shifted from academicians tocorporate industrialists.” 21829. This corporatisation impinges on the autonomy ofeducation and its functioning. This is accompaniedby the decline in standards of education and thepromotion of higher education at the expense ofprimary education, contributing to its neglect.Educational curricula are encouraging ‘cut-throatcompetition’; newly-emergent information basedsocieties exhibit elitism compounding the existinginequities existing in education. In such anatmosphere, education seems inadequatepreparation for developing students’ “capabilitiesto face, understand and negotiate the complexitiesof real life situations” This is evidence that schoolsare not geared to providing an education for life:they do not seem to focus on the realm of ideasand moral dilemmas critical thinking, all factorsthat influence a child’s development andcapabilities.217 Seshadri, S., Chandran, V., Leach, F. and Mitchell, C. 2006.'Reframing masculinities: using films with male adolescents toaddress gender-based issues', F. Leach and C. Mitchell (eds.)218 Kiran. S et al, “Development of a life skills program foreducationalists using experiential methodologies”, (2007) TheInternational Journal on School Disaffection p22, 23396


30. Life skills programmes have been piloted, used,consolidated in different parts of the world by theWHO and crystallized into pragmatic andworkable rubrics. Some of these are listed below: 219a. Decision-making (assessing options andwhat effects different decisions may have)b. Problem solvingc. Creative thinking (consequences of bothaction and non-action, looking beyonddirect experience)d. Critical thinking (factors that influenceattitudes and behaviour)e. Effective communication (to express notonly opinions and desires but also needsand fears)f. Interpersonal skills (to develop and nurturesupportive networks, to be able to endrelationships constructively)g. Self-awareness (recognition of our self, boththe positives and negatives)h. Empathy (understanding unfamiliarsituations and diversity, being nurturingand tolerant)i. Coping with emotionsj. Coping with stressDespite these findings, life skills instruction hasremained largely theoretical.31. Schools being one of the primary sites where socialconditioning can take place, it is important toengage in discussions about life skills since thisbroadens horizons and also determines ‘comfortlevels’ between peers as well as between adults219 Ibid397


and children. Discussing experiences in suchenvironments help establish life skills; whichfurther provides a window to conflicts andproblems; including those specific to gender itsconstruction/practices/ stereotyping; discussinggender provides a window to sexuality and so on.Allied with this, other innovative and creativemethods such as group learning and theatre-ineducationare being used as teaching methods tofacilitate these discussions.32. Borrowing from the International Journal onSchool Disaffection, the model below indicates thepriorities on which the workshops are modelled:Fig.3 220“The focus of each workshop was equally distributedbetween activities and the con<strong>text</strong> for them: feedback,facilitation skills, micro-skills acquisition, processevaluation of logistical problems encountered.”Such workshops can be used as case studies to beapplied in the Indian con<strong>text</strong>.33. About 26 people took part in the program:secondary school and college teachers, student220 Women's Research, C. and Bc 1989. Recollecting our lives:Women's experience of childhood sexual abuse. Press GangPublishers; in Dr. Sheshadri’s Submissions to the Committee.398


counsellors, a religious figure, professionals whosework concentrates on the development ofinterpersonal skills. The common factor betweenthem was that all were engaged in pedagogy insome form or other. The participants had threeassignments to complete in between theworkshops: process reports, session outlines andprogram development. Each workshop activitywas deconstructed and attempts were made to linkthem with existing theories of educationalpsychology and classroom practice. One of themost exciting activities centred on the groupgiving itself a name, which led to an analysis ofissues around identity and self-awareness. At theend of these two days the group wrote a projectreport to be presented at the next session.The format for this report was:1. The group2. The gathering of the group and the arranging ofphysical space3. Intention of the sessions4. Introductory remarks/lines5. Flow of the session and the exercises used6. Children’s responses – generic and specific7. Own experiences8. What worked and what did not (outcome andfeedback)9. Limitations encountered10. Powerful moments during the session”34. The themes varied from geographical location andrestrictions in training to the scope, coverage andcontent of the training, level of training vis-à-visage, skills to be learnt and con<strong>text</strong>s etc.An example of this in relation to abusive situationswas discussed.399


Fig. 4 22135. The complexities of this situation weredeconstructed using a windows approachexplained earlier. This was arguably the situationwhere the triangulation process was used tooptimum effect. Using this approach, it waspossible to explore the process of internalising andexpressing experiences both in the generic andpersonal realms. The framework was ‘generalexperiences contribute to problem experiences’.This was approached by looking at con<strong>text</strong>s ofexperience such as school, family etc; institutionsin which they occur – family, friendships; andfinally, the feelings this evoked.Sex Education:36. Sexuality education is the process of assistingyoung people in their physical, social, emotionaland moral development as they prepare foradulthood, marriage, parenthood and ageing, aswell as their social relationships in the con<strong>text</strong> offamily and society. The need to impart appropriateeducation on sexuality is an important issue thatparents and teachers must acknowledge and221 Kiran. S et al, “Development of a life skills program for educationalistsusing experiential methodologies”, (2007) The International Journal onSchool Disaffection p22, 23400


address if they want to make sure that theirchildren are well adjusted and safe, and will growup to be mature and balanced individuals. 222Problems with the existing system:37. Evidence from rural Bangladesh showed gettingmore girls to school did not necessarily transformattitudes to women, including the objectification ofwomen, or the acceptability of violence againstwomen. 223 Instead discriminatory attitudes becameworse. This is because schools are reproductive,not just productive: they reflect prevailingstructures, not only provide vehicles to changethem. 224 ‘Educating’ more people means nothing –attitudes will not necessarily transform with ‘moreeducation.’38. Whilst children may not have formed fixedconceptions of gender, ‘masculinity’ or‘femininity,’ it is important to remember adultsaround them may have, and can and do counteractchildren being taught things different to‘perceived norms.’ Thus training teachers alonemay not even be enough. The school structure allowsfor, and requires, a more multi-faceted approach:1. Teacher training – Demand for teaching faroutstrips supply of teachers, causing a tradeoffbetween teacher quality and quantity. Obvious222 Sheshadari. S and Rao .N, 2012 Parenting The art and science ofnurturing, Byword Books Private Limited.223 Chisanya et al, 2011 Gender and Education for All: Progress andProblems in Achieving Gender Equity, International Journal ofEducational Development224 Ibid, and Stromquist, 2006 Gender, Education and the Possibilityof Transformative Knowledge, A Journal of Comparative andInternational Education.401


solution is for more gender-sensitive trainingduring the training process, but the obviousdifficulty lies in ensuring gender-sensitivetraining is to a high standard.2. The curriculum – Sexual and personaleducation (must be taught sensitively to avoidmore damage than benefit being done);stripping out the language of sexism frombooks/materials, eliminating different lessons forgirls and boys (i.e. sewing v sports)3. Pedagogy – This can involve practical lessonsthrough running the school. Bajaj cites example ofboys cooking and cleaning in school, whichhelped them to normalize these activities asgender-neutral. 2254. Administration – Male dominated: educationboards, civil service, and politics. Greater inputfrom women’s NGOs needed in developinggender-transformative schools.5. School leadership – Male dominated,particularly in higher and secondary education.6. Data-management – e.g. Gender-inequitableneed for ‘father’s details’ for school admission.39. Structural factors:1. A W.H.O. meta-study, based on an extensiveprogramme review, argues “the existingevidence suggests that social factors explainmost variation in men’s violence and sexualbehaviour”.2. Explanations of sexual violence that resort tothe ‘depratvity’ of perpetrators, or explanationof perpetrators as ‘aberrations,’ are, at best,225 Bajaj, 2012 Human Rights Education in Small Schools in India, AJournal of Social Justice.402


naïve. We must view perpetrators of sexualviolence in the con<strong>text</strong> of social hegemoniesand dominant structural pressures.3. There are statistically significant relationshipsbetween individual propensity to sexualviolence and: propensity for general violence;lack of ‘close’ friends or positive supportnetworks; less than twelve months earnedincome. The relationship between earnedincome (unemployment) and propensity tosexual violence show that the governmentmust not forget the relationship betweeninclusive growth and social advancement.Further it must be noted, from various surveysthat that sex is a sensitive issue of discussion inIndia and other developing countries. The primaryconcerns seem to be:a. Sexuality education leads to childrenindulging in sexual intercourse at an ‘earlyage’;b. Sexuality education deprives children ofinnocence;c. Sexuality education is against culture orreligion;d. It is the role of parents and the extendedfamily, and not of the State or the formaleducation system, to educate our youngpeople about sexuality;e. Parents will object to sexuality educationbeing taught in schools;f. Sexuality education may be good for youngadults but not for young children.We find that research does not indicate earlysexual initiation on account of sexuality education.403


On the contrary, there is better and moreresponsible sexual behaviour. Secondly, theinformation being available in a scientificallyaccurate, non-judgmental, age appropriate and ina care<strong>full</strong>y phased process is something which willbenefit young children. Thirdly, parents andfamilies also play an important role in shaping theidentity of children’s sexual identity and mustcreate an appropriate environment. We notice thatthere is adequate basis for the view that there wasincreased cognition of consequences as a result ofwhich risky sexual behaviour as well as repressioncould well be avoided. We are of the opinion thaton account of repression, the element of increasedaggression leading to violent behaviour would bewell avoided.40. Recommendations1. The Committee is therefore of the opinion thatthere should be an introduction of sex introductionin a clinical manner in schools since the processesof growing up as well as absorption of knowledgehas increased. The children and young peoplehave to be prepared in order to be able totransition into adulthood. In view of humansexuality and relationships at its core, it isimportant that the attitudes of society and lawsmust not stifle discussion of sexuality and sexualbehaviour. On the contrary, it is important thatsexual and social identities of women must becorrectly understood as equal in character. Parentsmust be able to address the physical andbehavioural aspects of sexuality and children needto be informed and equipped with the knowledgeand skills to make responsible decisions aboutsexuality and relations with the opposite sex.404


2. In our view, it is the duty of the State to provideclear, well informed and scientifically groundedsexuality education based on the universal valuesof respect for human rights. We are also of theopinion that the formal curriculum in Indianschools must be drastically revamped, and sexeducation must be made an integral part of eachIndian student’s curriculum. It should bedelivered by well trained and competent teachersand must necessarily involve the participation ofcounsellors who are trained in the field of childpsychology.3. We are indeed surprised to note thatnotwithstanding the outstanding work which hadbeen undertaken by UNESCO, which hascompiled a 2-volume “International TechnicalGuidance on Sexuality Education”, the Indianeducation framework has not adopted any of thesesalutary practices in being able to propound theintroduction and clear transmission of knowledgerelating to sex, choices, respect, avoidance ofconflicts and understanding of the consequences ofchoices made by children and young adults. Thesaid UNESCO guidance pithily points out thenecessity of imparting sexuality education at anearly age to students:“The challenge for sexuality education is to reach youngpeople before they become sexually active, whether thisis through choice, necessity (e.g. in exchange for money,food or shelter), coercion or exploitation. For manydeveloping countries, this discussion will requireattention to other aspects of vulnerability, particularlydisability and socio-economic factors. Furthermore,some students, now or in the future, will be sexuallyactive with members of their own sex. These aresensitive and challenging issues for those with405


esponsibility for designing and delivering sexualityeducation, and the needs of those most vulnerable mustbe taken into particular consideration.”4. The Committee further notes that–a. Sexuality is a fundamental aspect of humanlife;b. It covers physical, psychological, spiritual,social, economic, political and culturaldimensions;c. Sexuality can be diverse; andd. The rules which govern sexual behaviourdiffer widely across, and within, culturesand individuals.f. Children need to be able to access informed,non-prejudiced sources on sexuality.Challenging the perception of sexuality asbeing purely heterosexual is an ongoingagenda for lesbian, gay, bisexual andtransgender (LGBT) activism and forcounter-socialisation efforts. Collaboratingor networking with LGBT activists is abeginning to understanding differentsexuality experiences. 2265. We are of the opinion that –a. There must be a reduction ofmisinformation, be it through internet ofmisleading advertising;b. Correct knowledge must be disseminated inrespect of sexuality and sexual choices,without enforcing gender stereotypes;226 Seshadri, S., Chandran, V., Leach, F. and Mitchell, C. 2006.'Reframing masculinities: using films with male adolescents to addressgender-based issues', F. Leach and C. Mitchell (eds.)406


c. The skills of children and young adults tomake informed decisions need to benurtured;d. Perceptions and social norms need to berelooked at and revamped;e. Children and young adults must beencouraged to increase communicationwith and within peer groups.f. The use of theatrical resources and films inschool workshops has proved to beextremely effective in gauging students’responses towards understanding of genderrelations and we recommend use of audiovisualmaterial to encourage respect andunderstand for all genders/sexes. 2276. We strongly recommend that the Governmentconsider the clear enunciation of young peoplesexual and reproductive health as contained inChapter 2.1 of the “International TechnicalGuidance on Sexuality Education”. We also noticethat schools provide a practical means of reaching227 These workshops focused on assessing whether films were usefulfor raising issues about gender, masculinity and other concerns withchildren. All the participants responded enthusiastically in favour ofusing the films... Though the major focus was on boys, a few girlrespondents were also included. Children were drawn both fromschools that catered to a wide socio-economic class and from the outof-schoolsector, coming from an NGO that worked with childrenfrom under-privileged circumstances. After the screening, thefacilitator used questions from the discussion guide to elicitchildren’s reactions to the film. At both the workshops, childrenengaged with the films completely. Given here is an example of theirresponses to two of the films (Nepal’s Listen to the Wind andBangladesh’s Our Boys).(Extract from response of a fifteen-year-old girl in the workshop)“I find this movie very useful. It teaches us many things. The boy who issent to school is very different from other boys. He likes nature, flowers andhe is also a quiet boy. We think boys are not so sensitive as girls but now Ithink there are also boys who are sensitive. I feel everyone should be treatedequally since boys and girls can do the same things.”407


large numbers of young people from diversebackgrounds in ways which are sustainable andtheir systems can use<strong>full</strong>y impart age appropriatesexuality education.7. Further for adult education we feel thatcommunity projects were made more effectivewhen occurring alongside a broader engagemente.g. through national government campaigns,which for example made use of celebrity figures ofauthority.We acknowledge that adult education schemeswould be more complex as the engagement is withindividuals who are already fairly routed inexisting patriarchal set-ups and therefore theseprograms will face the following limitations:a. Cannot end patriarchy; are, inthemselves, only more pragmatic andtargeted attempts to make patriarchymore benign.b. Difficulties / costs in finding suitablytrained /gender-aware facilitators /leaders of the programYet we are hopeful that adult literacy programmesare necessary and may have long standing benefitsuch as:a. Gender empowerment may havepositive consequences by decreasingfamily sizes, lowering mortality; 228b. Focused adult literacy programmescould account for problems specificto religions communities, since there228 Warner, 2012. Girls’ Education, Empowerment and Transition toAdulthood, International Centre for Research on Women.408


will be a greater awareness ofeconomic resources and prevalentinstitutions of a region among adults.A maximal, integrated policy: school programmes,alongside community based programmes foradults and young men, alongside a nationallyintegrated programme that utilizes figures ofauthority/entertaining media would truly amountto a collective community effort involving citizensand transforming from within rather than throughmere legislations.41. As E. Andrew suggests:“Law is naturally conservative; it relies on precedentand background assumptions and seeks interpretationsconsistent with those assumptions. Legal change is,accordingly, generally incremental. It is just enoughreform to look good to large segment of the public, topreserve the system from collapse, and to make everyonefeel proud, but not enough reform as to wreak radicalchange. Because of that, the nature of legal training islikely to perpetuate historically dominant cultural talesthat have previously penetrated the law and are a breakon rapid change in the master narrative. Patriarchalrape tales will not give up the ghost easily.” 22942. Thus while placing the onus of socialtransformation on the society we would also liketo state that our Constitution, however, is notsimply utopia – it is pragmatic – it is psychological– it promotes attitudes – it promotes equality – itpromotes a sense of self – a Constitution whichenables a definition of an identity on suchrationally strong psychological parameters of the229 Andrew E. Taslitz, Rape And The Culture Of The Court Room, NewYork University Press (1999) p42.409


‘self’ is indeed an extraordinary sense ofachievement.43. We believe that the Indian Constitution is rightlyrecognised as the leading Constitution of theworld because the concept of dignity, liberty aswell as the freedom of thought and choice which isso strongly embedded in the Constitution is aprimary respect for the principle of self-autonomy.If self-autonomy is encouraged as a constitutionalcreed, indeed it is true for all psychologically,liberating and emancipating experiences, we thinkthat such an opportunity must be available forboth men and women on equal terms. The abilityof educational institutions to be able to adequatelyfilter the truthfulness of information includingbiological, evolutionary, socio, physical and moralinformation is vital to true education. We thereforethink that transparency and non-discriminatoryattitude is indeed vital. We think that right toeducation under the Constitution includes theright to gender mainstreaming as a part of Article21A of the Constitution. The right to educationmeans education of quality and substance, andeducation with a certain degree of transformativepotential.410


CONCLUSIONS ANDRECOMMENDATIONSIn view of the above, we come to the followingconclusions and make the following recommendations:Part I – Conclusions1. The existing laws, if faith<strong>full</strong>y and efficientlyimplemented by credible law enforcementagencies, are sufficient to maintain law and orderand to protect the safety and dignity of the people,particularly women, and to punish any offenderswho commit any crime. This is not to say that thenecessary improvements in the law, keeping inmind modern times, should not be enacted at theearliest.2. Speedy justice is not merely an aspect of the rightto life with dignity, but is essential for efficacy ofthe law and its desired impact, as well as forprevention of its violation.3. Available personnel of the judiciary and theinfrastructure, with a few systemic changes can, atleast, reduce half the burden of arrears in courtscontributing to delays in enforcing the law of theland. Judge strength can be increased in phaseswithout diluting their quality. Our suggestion ofeminent retired judges being appointed as ad hocjudges will solve this problem.4. More effective control of the subordinate judiciaryby the responsibility vested in the High Courtswould ensure improved performance of thesubordinate judiciary, which is the cutting edge ofthe justice delivery system. The High Courts havethe pivotal role in the administration of justice by411


virtue of Article 235 of the Constitution. They haveto lead by practice in addition to precept. Therestatement of values of judicial life is a charter offaith for every judicial functionary at all levels.5. Police reforms that are recommended and directedfor the autonomy and better quality of the policeforce must be urgently implemented for thepreservation of the rule of law, which is a basicfeature of our Constitution 230 .6. Law enforcement agencies must be insulated fromany political or other extraneous influence, whichimpedes their performance. Law enforcementagencies must not become tools at the hands ofpolitical masters.7. Transparency in the performance by allinstitutions of governance is necessary to enablethe ‘people’ to discharge their participatory role ingovernance of the republic, and to enforceaccountability of the public functionary whenneeded.8. Performance appraisal for career progression mustbe objective, i.e. based on commitment to theconstitutional values and to prevent the upwardmobility of the undeserving.9. Practically every serious breach of the rule of lawcan be traced to the failure of performance by thepersons responsible for its implementation. Theundisputed facts in public knowledge relating tothe Delhi gang rape of December 16, 2012unmistakably disclose the failure of many publicfunctionaries responsible for traffic regulation,maintenance of law and order and, more230 See, infra Police Reform.412


importantly, their low and skewed priority ofdealing with complaints of sexual assault.10. Disputes relating to the jurisdiction of the policeover the area of the crime are often a cause ofdelay in initiating the process of taking cognizanceof the crime and providing medical aid to thevictim.11. Delay in giving the necessary medical aid to thevictim/injured person in a medico-legal case isalso because of the practice of approaching only agovernment hospital and not the nearest availablehospital. This continues in spite of the clear duty ofevery medical doctor (even a private practitioner)to attend to an injured person and to save suchperson’s life.12. The peculiarity of the Government of NCT ofDelhi not having any control over the police force,which control vests only in the Ministry of HomeAffairs of the Government of India (through theLieutenant Governor) is the reason given publiclyby the Chief Minister of Delhi for the absence ofresponsibility of her government. This ambiguitymust be removed forthwith so that there is nodivided responsibility in Delhi in respect ofmaintenance of law and order. Such a step is alsoessential to maintain accountability.13. The apathy of civil society is evident from theinaction of passers-by and bystanders, who failedin their citizenship duty of rendering help to thevictim of the December 16 gang-rape and hercompanion, who were both lying badly injuredand disrobed on the roadside for a considerableamount of time. The misbehaviour of the policetowards any samaritan is often the cause for suchapathy. But this must not deter citizens from doing413


their duty. A change in the behaviour of thecitizenry will also improve the conduct of thepolice. This effort must be promoted.14. It is clear that denial of political rights to womenwill cast a shadow on democratic right to a freeand fair election.15. The nation has to account for all its missingchildren.16. The lathi charge on peaceful demonstrators afterthe December 16 gang rape has scarred the Indiandemocracy.17. The brutalities of the armed forces faced byresidents in the border areas have led to a deepdisenchantment, and the lack of mainstreaming ofsuch persons into civil society. Serious allegationsof persistent sexual assault on the women in suchareas and conflict areas are causing morealienation.18. The nation has to account for the tears of millionsof women and other marginalized sections of thesociety which has been ignored owing toinstitutional apathy. At this closing juncture wewish to reiterate the promise of a ‘tryst withdestiny’ that Pandit Nehru made to the nation onthe eve of independence:“Freedom and power bring responsibility. Theresponsibility rests upon this Assembly, a sovereignbody representing the sovereign people of India. Beforethe birth of freedom, we have endured all the pains oflabour and our hearts are heavy with the memory of thissorrow. Some of those pains continue even now.Nevertheless, the past is over and it is the future thatbeckons to us now. That future is not one of ease orresting but of incessant striving so that we might fulfilthe pledges we have so often taken and the One we shall414


take today. The service of lndia means the service of themillions who suffer. It means the ending of poverty andignorance and disease and inequality of opportunity.The ambition of the greatest man of our generation hasbeen to wipe every tear from every eye. That may bebeyond us but as long as there are tears and suffering,so long our work will not be over.”19. Unless the promises made at the birth of the nationare fulfilled, the India that our founding fathersdreamt of will never become a reality. Recentevents indicate that the patience of thedisillusioned youth is running out.Part II – Recommendations1. The equality of women, being integral to theConstitution, its denial is a sacrilege and aconstitutional violation. Sustained constitutionalviolations mean that governance is not inaccordance with the Constitution. A fortiori, alllimbs of the State - the executive, the legislature aswell as the judiciary - must respect women’s rightsand must treat them in a non-discriminatorymanner.2. As a primary recommendation, all marriages inIndia (irrespective of the personal laws underwhich such marriages are solemnised) shouldmandatorily be registered in the presence of amagistrate, which magistrate will ensure that themarriage has been solemnised without anydemand for dowry having been made and that themarriage has taken place with the <strong>full</strong> and freeconsent of both partners.415


3. The manner in which the rights of women can berecognised can only be manifested when they have<strong>full</strong> access to justice and when the rule of law canbe upheld in their favour. The proposed CriminalLaw Amendment Act, 2012, should be modified assuggested, and to secure public confidence, bepromulgated forthwith. Since the possibility ofsexual assault on men, as well as homosexual,transgender and transsexual rape, is a realitytheprovisions have to be cognizant of the same.4. In respect of certain categories of cases, such asthose where the victim is in custody of persons inauthority including police and armed personnel,certain statutory presumptions must apply underSection 114A of the Indian Evidence Act, 1872.Every complaint of rape must be registered by thepolice and civil society should perform its duty toreport any case of rape coming to its knowledge.5. Any officer, who fails to register a case of rapereported to him, or attempts to abort itsinvestigation, commits an offence which shall bepunishable as prescribed. We have also taken intoaccount offences of eve teasing, voyeurism,stalking as well as sexual assault and unsolicitedsexual contact.6. A special procedure for protecting persons withdisabilities from rape, and requisite procedures foraccess to justice for such persons is also an urgentneed. Amendments to the Code of CriminalProcedure, which are necessary, have beensuggested.7. The protocols for medical examination of victimsof sexual assault have also been suggested, which416


we have prepared on the basis of the best practicesas advised by global experts in the fields ofgynaecology and psychology. Such protocolbased,professional medical examination isimperative for uniform practice andimplementation.8. The insensitivity of the police to deal with rapevictims is well known. The police respect apatriarchal form of society, and have been unableto deal with extraordinary cases of humiliationand hardship caused by the khap panchayats, as isevident from various judgments of the SupremeCourt. The police are involved in trafficking ofchildren (including female children) and in drugtrade. To inspire public confidence, it is necessarythat there must not only be promptimplementation of the judgment of the SupremeCourt in Prakash Singh, but also police officerswith reputations of outstanding ability andcharacter must be placed at the higher levels of thepolice force. In the present con<strong>text</strong>, and in view ofthe facts revealed to us, it is necessary that everypolice commissioner and director general of policeof this country must be selected in accordance withthe directions of the Supreme Court in PrakashSingh’s case, who can lead by example. The leadermakes all the difference. As such, all existingappointments need to be reviewed to ensure thatthe police force has the requisite moral vision.9. It is settled law that every policeman is bound toobey the law and any order of a superior officer,which is contrary to law, is no defence for hisillegal action, which may be a punishable offence.Accordingly, any political interference orextraneous influence in the performance of the417


statutory duty by a policeman cannot becondoned. This principle has to be clearlyunderstood by every member of the police force -their accountability is only to the law and to noneelse in the discharge of their duty. Dereliction ofthis duty has to be punished according to theservice rules and applicable law.10. Authentic figures of missing children in India arenot available for obvious reasons of the complicityof law enforcement agencies. Children have beendriven into forced labour, sex abuse, sexualexploitation as well as made victims of illegalorgan trade. Our report includes the testimoniesof children (whose identities have been concealedfor their safety) to verify facts from their personalexperience. As a small gesture, this Committee has(at its own cost) taken necessary steps for properrehabilitation and education of one of thesechildren, payment of the minimum wages due tothe said child, her safe passage and reintegrationwith her family, psychotherapeutic intervention,and to fulfil her educational aspirations. TheCommittee expects similar treatment by the Stateof all such deprived children.11. Every District Magistrate is responsible forcarrying out a census of missing children withinhis district. Having regard to the apathy shown bythe district magistrates and the police in the matterof missing children, evident from advisories issuedby the Ministry of Home Affairs as late as on 30 thJanuary 2012, this issue needs immediate attention.This is necessary also for the credibility of thepolitical establishment.418


12. The judiciary has the primary responsibility ofenforcing fundamental rights, throughconstitutional remedies. The judiciary can take suomotu cognizance of such issues being deeplyconcerned with them both in the Supreme Courtand the High Court. An all India strategy to dealwith this issue would be advisable. The ChiefJustice of India could be approached to commenceappropriate proceedings on the judicial side. TheHon’ble Chief Justice may consider makingappropriate orders relating to the issue of missingchildren to curb the illegal trade of their traffickingetc. Social activists involved in curbing thismenace could assist the court in the performanceof this task. The question of award ofcompensation and rehabilitation could also beconsidered in such cases by the court.13. Juvenile homes in the country, i.e. child homes,and observation homes, are not being run in amanner consistent with the spirit of the JuvenileJustice Act. To ensure that the constitution of theChild Welfare Committee, Juvenile Justice Board,the infrastructural facilities in a home, the qualityof food, the quality of counselling andpsychotherapy required for a child to wipe out thescars of abuse and deprivation in early childhoodand to mainstream him/her in society and toeducate him/her <strong>full</strong>y requires a deeper andprofound engagement of the State and civilsociety. This is the primary duty of the State,which is found wanting. We are shocked to notethat so many of these children have been forcedinto bonded labour and beggary, which is inviolation of Article 23 of the Constitution. Indiashould not permit cheap child labour to be an419


incentive for foreign investment to boost oureconomy.14. It is time for the judiciary to step in to dischargethe constitutional mandate of enforcingfundamental rights and implementation of the ruleof law. In performance of this obligation, the ChiefJustice of the High Court in every State coulddevise the appropriate machinery foradministration and supervision of these homes inconsultation with experts in the field. For thesafety and physical security of children, women,persons with disabilities, inmates of mental homesand widows, monitoring by the judiciary isnecessary. The immediate and ultimateguardianship of such persons has to be with thecourt, founded on the principle of parens patriae.15. To augment the police force, there is a need todevelop community policing by involving thelocal gentry, which would also motivate them toperform their duty as citizens. Respectable personsin each locality could also be appointed SpecialExecutive Magistrates under Section 21, Cr.P.C.and invested with powers to deal with the trafficoffences and other minor offences. In addition, toassisting the maintenance of law and order in thelocality, their presence would inspire greaterconfidence of safety in the locality.16. Street lighting everywhere would provide moresafety since dark areas are more prone to facilitatecrimes. There is great wisdom in the words of theAmerican Judge Louis Brandeis, that "Sunlight issaid to be the best of disinfectant; electric light the mostefficient policeman".420


17. Street vending should be encouraged to make thebus stops and footpaths safe for communities andpedestrians, in addition to providing street foodfor the common man.18. We recommend the creation of a newconstitutional authority akin to the Comptrollerand Auditor General for education, nondiscrimination,in respect of women and children.19. Reforms in respect of the political establishment:(a) Reforms are needed in the Representation ofPeople Act, 1951 to deal with criminalisation ofpolitics and to ensure true representation ofpeople by elimination of those with criminalantecedents. This is also essential to avoid anyconflict in the discharge of their legislativefunctions.(b) Having regard to the fact that there is noverification of the affidavits which are filed bycandidates under Section 33A of theRepresentation of People Act, 1951, we havesuggested amendments to the said Section 33Arequiring the making of a declaration about thependency of any criminal case, whethercognizance has been taken of it. A certificatefrom the Registrar of the High Court should benecessary for the validity of the nomination.(c) We also suggest that, in the event cognizancehas been taken by a magistrate of an offencementioned in Section 8(1) of the Representationof People Act, 1951, the candidate ought to bedisqualified from participating in the electoralprocess.421


(d) We further suggest that Section 8(1) of theRepresentation of People Act, 1951 be amendedand should include all heinous offences assuggested.(e) A candidate who fails to disclose a charge orthe commission of an offence should bedisqualified subsequently. It is alleged that aminister of the Andhra Pradesh Cabinet hadfailed to disclose an offence and there ispresently a complaint pending against suchminister under Section 125A of theRepresentation of People Act, 1951. We requestthe Chief Minister of Andhra Pradesh todismiss the minister immediately from theCabinet if it is correct that he did not disclosethe offence for which he was charged.(f) Scrutiny and verification of the disclosuresmade by candidates in respect of their assetsmay be made by the CAG with necessaryfollow up action in the case of such disclosuresbeing found to be incorrect or false. Suchdiscrepancies should be a ground forsubsequent disqualification under theRepresentation of People Act, 1951.(g) If all those in Parliament and State Legislatures,who have any criminal case pending againstthem in respect of heinous offences, vacatetheir seats as a mark of respect to Parliamentand to the Constitution (which they havesworn to uphold), it would be a healthyprecedent and would raise them in publicesteem. This would be consistent with theprinciple of institutional integrity emphasised422


y the Supreme Court in the P.J. Thomas casejudgment 231 .(h) It is the least to expect that political parties donot nominate any candidates for election whohave any criminal antecedents. Failure to do sois likely to set in motion social urges ofinestimable dimensions. It has been establishedin the oral interactions of the Committee withthe stakeholders that the fielding of suchcandidates leads to women being deterredfrom exercising their right to vote.(i) Legislation be enacted for compulsoryregistration of all political parties as indicatedearlier.20. Even though the scope of the terms of reference ofthis Committee was to look at all criminal lawsincluding laws relating to aggravated sexualassault, we have also studied the related lawswhich have a bearing upon the administration ofcriminal justice, including the exercise of enactinglegislation.21. These recommendations are to be read along withthe various other recommendations contained inthe body of the report relating to specific matters.22. The recommendations made in this report, unlessurgently implemented, will end the exerciseconducted by this Committee in futility.231 Centre for PIL & Another v. Union of India. Judgment dated March 3,2011 in Writ Petition (C) No. 348 of 2010.423


We pay our tribute to the departed soul of Nirbhayawhich has occasioned this exercise.Leila Seth J. S. Verma Gopal Subramanium(Member) (Chairman) (Member)New DelhiJanuary 23, 2013424


APPENDICES


425


APPENDIX 2LIST OF PERSONS INTERACTED WITH BY THE COMMITTEE1. Akkai Padmashali (Sangama).2. Albertina Almeida, Lawyer.3. Amarjeet Kaur (National Federation of Indian Women).4. Amod Kanth (Prayas).5. Amba Salelkar (Inclusive Planet Centre for Disability Law and Policy).6. Anand Grover (UN Special Rapporteur for Mental Health)7. Anil Bairwal (ADR).8. Prof. Anita Ghai (Jesus & Mary College).9. Anju Talukdar (MARG, Delhi)10. Prof. Anup Surendranath (NLU, New Delhi)11. Anuradha Kapur (Swayam, Kolkata)12. Arvind Narrain (Alternative Law Forum).13. Asha Kotwal (NCDHR).14. Atiya Bose (Aangan India).15. Prof. Ayesha Kidwai (JNU).16. Babloo Loitongbam (Human Rights Alert, Manipur).17. Bhuwan Ribhu (Bachpan Bachao Andolan).18. Bikramjeet Batra, Law Researcher.19. Bondita Acharya (WinG, Assam).20. Chayanika Shah (FAOW/LABIA, Assam).21. Colin Gonsalves, Senior Advocate.22. D. Nagasaila, Advocate (People’s Union for Civil Liberties, Chennai).23. Prof. David Wilkins (Harvard Law School).24. Prof. Diane Rosenfeld (Harvard Law School).25. Farah Naqvi, Writer.26. Flavia Agnes (Majlis, Mumbai).27. Gagan Sethi (Centre for Social Justice, Ahmedabad)28. Prof. Hameeda Nayeem (Kashmir University, Srinagar)29. HarshitaYalamarti (Saheli, Delhi)30. Haseena Khan (Aawaz-e-Niswaan, Mumbai).31. Helam Haokip (WinG, Manipur)32. Her Excellency Navanethem Pillay (Office of UN High Commissioner for HumanRights).33. Prof. Ilina Sen (Tata Institute of Social Sciences, Mumbai).34. Indira Chakraborty (WSS)35. Indira Jaising, Additional Solicitor General of India.36. Indu Aghniotri (AIDWA, New Delhi)37. Indu Prakash (Action Aid / SHELTER).426


38. Dr. Jagdish Reddy (CEHAT).39. Jasjit Purewal, Lawyer.40. Dr. Kalpana Kannabiran (Council for Social Development/Asmita Collective,Hyderabad)41. Kalpana Vishwanath (Jagori, New Delhi)42. Kavita Srivastava (People’s Union for Civil Liberties, Rajasthan).43. Kavitha Krishnan (AIPWA-Agricultural Workers)44. Kiran Bedi (ex-IPS officer).45. Kriti Singh (AIDWA).46. Prof. Laura Hoyano (Oxford University)47. Lenin Vinober (JNUSU).48. Madhu Bhushan (Vimochna, Bangalore).49. Madhu Kishwar (Manushi/ CSDS).50. Madhu Mehra (Partners for Law in Development).51. Maharukh Adenwalla, Lawyer.52. Maja Daruwala (CHRI).53. Manohar Elavarthi (Sangama, Bangalore).54. Mary John (CWDS, Delhi).55. Meena Sheshu (National Network of Sexworkers).56. Michael Kirby (former justice, High Court of Australia).57. Monisha Behal (North East Network, Delhi).58. Murlidharan.59. Mukund Upadhyay (ex-IPS officer).60. Naina Kapur, Lawyer.61. Prof. Nandini Sundar, Delhi University.62. Nitya Ramakrishnan, Advocate.63. Nawaz Kotwal (CHRI, Delhi).64. P.M. Nair, ex-IPS officer.65. Padma Deosthali, (CEHAT).66. Poonam Natarajan (National Trust).67. Prasad Sirivella, (NCDHR)68. Prof. Pratiksha Baxi, (JNU)69. Praveen Swamy, (The Hindu)70. Prof. Ved Kumari, Delhi University71. Pushpa, (Vanangana, Uttar Pradesh)72. R Vaigai, (Forum for Judicial Accountability)73. Rajeev Ratur (HRLN)74. Ranjana Kumari (Centre for Social Research)75. Rebecca John, Advocate.76. Rita Manchanda (SAFHR)77. Roma (NFFPFW)78. Rosemary Dzuvichu (Naga Mothers Association, Nagaland)427


79. Ruchira Sen (JNUSU)80. Ruth Manorama (NAWO)81. Dr. Sagarpreet Hooda, IPS.82. Sameer Malhotra (AIIMS, New Delhi).83. Sandra Fredman (Oxford University).84. Saptarishi Mondal (National Platform for the Rights of Disabled Persons).85. Schlomit Wallerstein (Oxford University).86. Seema Baquer Disability Rights Activist.87. Seema Misra (AALI, Lucknow).88. Shamim Modi (TISS, Mumbai).89. Shampa Sengupta (Sruti Disability Rights Centre).90. Sheeba George (Saharwaru, Ahmedabad).91. Dr. Shekhar Sheshadri (NIMHANS).92. Dr. Shobana Sonpar, Clinical Psychologist.93. Suneeta Dhar (Jagori).94. Tapan Bose (SAFHR).95. Trupti Panchal (TISS).96. Uma Chakravarti, Feminist Historian.97. Usha Ramanathan, Advocate.98. Vahida Nainar, (WRAG, Mumbai).99. Vrinda Grover, Advocate.100. Dr. Yatan Balhara (AIIMS, New Delhi).LIST OF GOVERNMENT INSTITUTIONS INTERACTED WITH BY THECOMMITTEE1. Election Commission of India.2. Chief Secretary, Delhi Government.3. Commissioner of Police, Delhi, (Mr. Siddharth Luthra, Additional SolicitorGeneral).4. Director, Central Bureau of Investigation.5. Ministry of Health and Family Welfare (Jagdish Prasad).6. Ministry of Home Affairs, (J.N. Chugh).7. Ministry of Women and Child Development, (Prem Narain).8. National Commission for Protection of Child Rights, (Shanta Sinha).9. National Commission for Women (Kirti Singh, Advocate).428


APPENDIX 3Bill of RightsStatement of Objects and ReasonsA charter to set out the rights guaranteed to women under the Constitutionof India, and to provide for justiciability of the various rights;And in consideration of India’s commitment to international conventionsincluding Convention on the Elimination of All Forms of Discriminationagainst Women and the International Covenant on Civil and PoliticalRights.And to recognize the historical distinctions, exclusions and restrictions onthe basis of gender, while also taking note that certain practices includingcultural, social, political, religious and customary norms are patriarchaland impair the agency, dignity and equality of women.And being firmly convinced that any practice that hinders or endangers thenormal growth and affects the physical and psychological development ofwomen and girls should be condemned and eliminated;And being determined to ensure that the rights of women are promoted,realised and protected in order to enable them to enjoy <strong>full</strong>y all their humanrights;Part IRight to Life, Security, and Bodily Integrity1. Every woman shall be entitled to respect for her life and the integrity andsecurity of her person. All forms of violence, exploitation, cruel, inhuman ordegrading punishment and treatment targeting women are prohibited.2. Every woman as the right to dignity inherent in a human being and to therecognition and protection of her human and legal rights.3. Every woman has the right to be respected as an independent person and to thefree development of her personality.4. Every woman has the right to express and experience complete sexual autonomyincluding with respect to her relationships and choice of partners.429


5. Every woman has the right not to be subjected to medical or scientificexperiments without her informed consent; with an exception in the case of anemergency;6. The State shall ensure to every woman protection from all forms of violencewhether the violence takes place in private or public, including unwanted orforced sexual intercourse or activity;7. The State shall protect, rescue and rehabilitate every woman who is at the risk ofor has been a victim of trafficking and all other forms of such treatment.8. The State shall promptly provide effective mechanisms and accessible servicesfor information, redressal, rehabilitation and reparation of every woman being avictim of violence.Part IIDemocratic and Civil Rights9. Every woman should have the right to participative governance throughparticipation without discrimination in all elections; representation at all levels inelectoral processes; equal opportunity for partnership in decision making andimplementation of development and economic programs.10. Every woman has the right to freedom of thought, conscience, religion, andbelief, including the right to adopt, convert, and to hold opinions withoutinterference.11. Every woman has the right to manifest that person’s religion or belief in worship,observance, practice, teaching, ideas, or opinions of her own choosing, eitherindividually or in community with others, both, in public or private.12. Every woman has the right to freedom of expression, including the freedom toseek, receive, and impart information and opinions of any kind in any form.13. Every woman has the right to freedom of peaceful assembly.14. Every woman has the right to freedom of association.430


Part IIIEquality and Non- Discrimination15. Every woman shall have the right to equality before the law and equal protectionof all the laws.16. No woman shall be unfairly discriminated on grounds of gender including-(1) Preventing women from inheriting family property.(2) (b) Any practice including traditional, customary or religious practice thatimpairs dignity of women and undermines equality between women andmen, including the undermining of the dignity and wellbeing of the girlchild.(3) Any policy or conduct that unfairly limits access of women to land rightsand finance and other resources(4) Discrimination on grounds of pregnancy(5) Limiting access to health care, education and other social welfare.(6) Denying access to opportunities including services or contractualopportunities or failure to accommodate diversity.(7) Systematic inequality in access of labour, contractual opportunities etc.(8) Systemic inequality to opportunities by women as a result of sexualdivision of labour.(9) Or discrimination by virtue of a woman belonging to another sub-sect ofcaste, religion, region or race.17. Every woman shall have the freedom to marry any person of her choice and beregarded as an equal partner in the marriage.18. Every woman shall have the same rights in case of separation, divorce andannulment of marriage.19. Every woman shall have the Right to Free Education until under-graduate level.20. Every woman especially the girl-child must be protected from all forms of abuse,including sexual harassment in schools and other educational institutions andprovide for sanctions against the perpetrators of such practices;21. Every woman who suffers abuses and sexual harassment must have access tocounseling and rehabilitation services to women who suffer abuses and sexualharassment;22. Every woman shall have the Right to Reproductive and Sexual Health.431


23. Every woman shall have the right to nutritious and adequate food as well asaccess to clean drinking water.Part IVRight to Secured spaces24. Every woman shall have the right to equal access to housing/shelter and toacceptable living conditions in a healthy environment.25. Every woman, whatever her marital status has access to adequatehousing/shelter.26. Every woman should have access to Public Transport facilities without fear of therisk of violation of her dignity in any form by means of teasing, molestation,stalking etc.Part VSpecial protections27. Every elderly woman must have specific measures commensurate with herphysical, economic and social needs as well as her access to employment andprofessional training;28. Every elderly woman must have the right to freedom from violence, includingsexual abuse, discrimination based on age and the right to be treated withdignity.29. Every woman with disability must have special protection and specific measurescommensurate with their physical, economic and social needs to facilitate theiraccess to employment, professional and vocational training as well as theirparticipation in decision-making;30. Every woman with disability must have freedom from violence, including sexualabuse, discrimination; and the right to be treated with dignity.432


Part VISpecial Protection of Women in Distress31. Every woman below poverty line; and women heads of families includingwomen from marginalized population groups must be able to fulfil their specialphysical, economic and social needs;32. Every pregnant or nursing women or women in detention must be provided withan environment which is suitable to their condition and should be guaranteed theright to be treated with dignity.*****433


APPENDIX 4The Committee has taken note of the Criminal Law (Amendment) Bill, 2012, which wastabled in the Lok Sabha on December 4, 2012.The Criminal Law (Amendment) Bill, 2012 uses the term sexual assault in lieu of rape tocover a wider gamut of offences including penetrative sexual assault which has thus farbeen called rape in the Indian Penal Code. However, the Committee found that theProtection of Children from Sexual Offences Act (PoCSOA), 2012 defines the term sexualassault in a limited con<strong>text</strong>. Section 7 of the said Act confines sexual assault to acts thatinvolve physical contact without penetration. Hence if rape were to be redefined as‘sexual assault’ in relation to the IPC then there would be a clear contradiction betweenthem and the PoCSOA. Hence the Committee recommends that the term rape beretained in the IPC to denote the highest categorisation of sexual assault, i.e. penetrativesexual assault. This and other modifications in the Bill as being suggested are as under:CHAPTER 1 : PROPOSED AMENDMENTS TO THE INDIAN PENAL CODE1. Section 100 of the Code shall be modified as follows:When the right of private defence of the body extends to causing death:The right of private defence of the body extends, under the restrictions mentioned in thelast preceding section, to the voluntary causing of death or of any other harm to theassailant, if the offence which occasions the exercise of the right be of any of thedescriptions hereinafter enumerated, namely:-Firstly, Such an assault as may reasonably cause the apprehension that death willotherwise be the consequence of such assault;Secondly, Such an assault as may reasonably cause the apprehension that grievous hurtwill otherwise be the consequence of such assault, which shall include a crimepunishable under Section 326A of the Indian Penal Code.Thirdly, An assault with the intention of committing rapeFourthly, An assault with the intention of gratifying unnatural lust;Fifthly, An assault with the intention of kidnapping or abducting;Sixthly, An assault with the intention of wrong<strong>full</strong>y confining a person, undercircumstances which may reasonably cause him to apprehend that he will be unable tohave recourse to the public authorities for his release.434


2. Addition of Section 166A:After section 166 of the Indian Penal Code the following section shall be inserted,namely:—“166A. Public Servant knowingly disobeying direction of lawWhoever, being a public servant,—(a) knowingly disobeys any direction of the law which prohibits him from requiring theattendance at any place of any person for the purpose of investigation into an offence orany other matter, or(b) knowingly disobeys, to the prejudice of any person, any other direction of the lawregulating the manner in which he shall conduct such investigation, or(c) in relation to an offence punishable under Section 354, Section 354A, Section 354B,Section 354 C(2), Section 376(1), Section 376(2), Section 376(3), Section 376A, Section376B(1), Section 376B(2), Section 376C, Section 376D or Section 376F does not recordinformation given to him under Section 154(1) of the Code of Criminal Procedureshall be punished with imprisonment for a term which may extend to five yearsrigorous imprisonment and fine.3. After section 326 of the Penal Code, the following sections shall be inserted,namely:—‘326A. Voluntarily causing grievous hurt through use of acid etc:Whoever causes permanent or partial damage or deformity to, or burns or maims ordisfigures or disables any part, or parts of the body of a person, or causes grievous hurt,by throwing acid on, or administering acid to that person, or by using any other meansto achieve a similar purpose and effect, with the intention of causing, or with theknowledge that he is likely to cause such injury, or hurt, shall be punished with rigorousimprisonment for a term which shall not be less than ten years but which may extend tolife, and shall also be liable to pay compensation to the victim, adequate to meet at leastthe medical expenses incurred by the victim.Explanation 1: “Permanent or partial damage” for the purposes of this section shallinclude forced circumcision of a female or mutilation of her genitalia.Explanation 2: For the purposes of this section, permanent or partial damage ordeformity shall not be required to be irreversible.435


326B. Voluntarily throwing or attempting to throw acid etc.Whoever throws, or attempts to throw acid on any person, or attempts to administeracid to any person, or attempts to use any other means to achieve the purpose of causingpermanent or partial damage to any part or parts of the body of a person, shall bepunished with rigorous imprisonment for a term which shall not be less than five yearsbut which may extend to seven years, and shall also be liable to pay compensation to thevictim adequate to meet at least the medical expenses incurred by the victim.Explanation 1: —For the purposes of sections 326A and 326B, “acid” includes anysubstance which has acidic or corrosive character or burning nature, that is capable ofcausing bodily injury leading to scars or disfigurement or temporary or permanentdisability.Explanation 2: “Permanent or Partial Damage” includes deformity, or maiming, orburning, or disfiguring, or disabling any part or parts of the body of a person.Irreversibility will not be a precondition for damage or deformity to be considered aspermanent or partial damage.4. Section 354 of the Indian Penal Code shall be replaced by the following:354. Sexual Assault and Punishment for sexual assault(1) The following acts shall constitute the offence of sexual assault:-(a) Intentional touching of another person when such act of touching is of a sexualnature and is without the recipient’s consent;(b) Using words, acts or gestures towards or in the presence of another person whichcreate an unwelcome threat of a sexual nature or result in an unwelcomeadvance.Explanation: For the purposes of this section, ‘acts’ shall include the display anddissemination of pornographic material.(2) Any person who commits the offence described in sub-clause (a) of sub-section (1)above shall be punishable with rigorous imprisonment that may extend to five years, orwith fine, or both.(3) Any person who commits the offence described in sub-clause (b) of sub-section (1)above shall be punishable with imprisonment of either description that may extend toone year, or with fine, or both.436


5. After Section 354, the following new sections shall be introduced:354A. Assault or use of criminal force to woman with intent to disrobe her –Whoever assaults or uses criminal force to any woman or abets such act with theintention of disrobing or compelling her to be naked in any public place, shall bepunished with imprisonment of either description for a term which shall not be less thanthree years but which may extend to seven years and shall also be liable to fine.354B. Voyeurism –Whoever watches a woman engaging in a private act in circumstances where she wouldusually have the expectation of not being observed either by the perpetrator, or by anyother person at the behest of the perpetrator shall,be punished on first conviction with imprisonment of either description for a termwhich shall not be less than one year, but may extend to three years, and with fine, andbe punished on a second or subsequent conviction, with imprisonment of eitherdescription for a term which shall not be less than three years, but may extend to sevenyears, and also with fine.Explanation 1: 'Private act', in the con<strong>text</strong> of this provision, is an act carried out in a placewhich, in the circumstances, would reasonably be expected to provide privacy, andwhere the victim's genitals, buttocks or breasts are exposed or covered only inunderwear; or the victim is using a lavatory; or the person is doing a sexual act that isnot of a kind ordinarily done in public.Explanation 2: If the victim consented to capture of the images or other material, but notto their dissemination to third persons, such dissemination shall be considered anoffence within this section.354C (1) – Stalking: Whoever follows a person and contacts, or attempts to contact suchperson to foster personal interaction repeatedly, despite a clear indication of disinterestby such person, or whoever monitors the use by a person of the internet, email or anyother form of electronic communication, or watches or spies on a person in a mannerthat results in a fear of violence or serious alarm or distress in the mind of such person,or interferes with the mental peace of such person, commits the offence of stalking.Provided that the course of conduct will not amount to stalking if the person whopursued it shows:i. that it was pursued for the purpose of preventing or detecting crime and theperson accused of stalking had been entrusted with the responsibility ofprevention and detection of crime by the state; or,437


ii.iii.that it was pursued under any enactment or rule of law, or to comply with anycondition or requirement imposed by any person under any enactment; or,that in the particular circumstances the pursuit of the course of conduct wasreasonable(2) Whoever commits the offence described in Section 354C(1) shall be punished withimprisonment of either description for a term which shall not be less than one year butwhich may extend to three years, and shall also be liable to fine.6. Section 370 shall be replaced with new Sections 370 and 370A, defining andpunishing the offence of trafficking, and the offence of employing a traffickedperson, respectively.Section 370: Trafficking of a Person(1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d)transfers or (e) receives, a person or persons, byFirstly, using threats, orSecondly, using force, or any other form of coercion, orThirdly, by abduction, orFourthly, by practising fraud, or deception, orFifthly, by abuse of power, orSixthly, by inducement, including the giving or receiving of payments or benefits, inorder to achieve the consent of any person having control over the person recruited,transported, harboured, transferred or received,commits the offence of trafficking.Explanation I: The expression ‘exploitation’ shall include, prostitution or other forms ofsexual exploitation, forced labour or services, slavery or practices similar to slavery,servitude, or the forced removal of organs.Explanation II: The consent of the victim is immaterial in a determination of the offenceof trafficking.(2) Whoever commits the offence of trafficking shall be punished with rigorousimprisonment for a term which shall not be less than seven years, but which may extendto ten years, and also with fine.438


(3) Where the offence involves the trafficking of more than one person, it shall bepunishable with rigorous imprisonment for a term which shall not be less than ten yearsbut which may extend to imprisonment for life, and also with fine.(4) Where the offence involves the trafficking of a minor, it shall be punishable withrigorous imprisonment for a term which shall not be less than ten years but which mayextend to imprisonment for life.(5) Where the offence involves the trafficking of more than one minor at the same time,it shall be punishable with rigorous imprisonment for a term which shall not be less thanfourteen years but which may extend to imprisonment for life.(6) When a public servant or a police officer is involved in the trafficking of a minorthen such public servant shall be punished with imprisonment for life, which shall meanthe rest of that person’s natural life.(7) If a person is convicted of the offence of trafficking of minors, on more than oneoccasion, then such person shall be punished with imprisonment for life, which shallmean imprisonment for the rest of that person’s natural life.Section 370A: Employing a Trafficked person(1) Whoever, despite knowing, or having a reason to believe that a child has beentrafficked, employs such child in any form of labour, commits the offence of forcedlabour of a trafficked child, and shall be punished with rigorous imprisonment for aterm which shall not be less than five years but may extend to seven years, and with afine.(2) Whoever, despite knowing, or having a reason to believe that an adult has beentrafficked, employs such adult for labour, commits the offence of forced labour of atrafficked adult, and shall be punished with rigorous imprisonment for a term whichshall not be less than three years but may extend to five years.7. Section 375 shall be replaced as suggested below:Section 375: Rape375. A man is said to commit rape if he—(a) penetrates the vagina or anus or urethra of a person with—(i) any part of his body including his penis or,(ii) any object manipulated by him, except where such penetration is carried out forproper hygienic or medical purposes; or,(b) manipulates any part of the body of a person so as to cause penetration of the vaginaor anus or urethra of another person; or,439


(c) engages in “cunnilingus” or “fellatio”,under the circumstances falling under any of the following six descriptions:—Firstly.—Against the person’s will; or,Secondly.— Without the person’s consent; or,Thirdly, With the person’s consent, where such consent has been obtained by putting theperson, or any other person in whom the person is interested, in fear of death or of hurt;or,Fourthly.— With the person’s consent, when the man induces the person to consent tothe relevant act by impersonating another man to whom the victim would haveotherwise knowingly consented to; or,Fifthly, With the person’s consent, when at the time of giving such consent, by reason ofunsoundness of mind or intoxication or the administration by the man personally orthrough another of any stupefying or unwholesome substance, the person is unable tounderstand the nature and consequences of the action to which he/she gives consent; or,Sixthly, When the person is unable to communicate consent either express or impliedly.Explanation I.— For the purposes of this section, “penetration” means penetration of thevagina, anus or urethra to any extent.Explanation II.—For the purposes of this section, “vagina” shall also include labiamajora.Explanation III: Consent will not be presumed in the event of an existing maritalrelationship between the complainant and the accused.Explanation IV. - Consent means an unequivocal voluntary agreement when the personby words, gestures or any form of non-verbal communication, communicateswillingness to participate in the specific act.Provided that, a person who does not offer actual physical resistance to the act ofpenetration is not by reason only of that fact, to be regarded as consenting to the sexualactivity.8. In place of the existing section, Section 376 will be amended in the followingmanner:376. (1) Punishment for RapeWhoever, except in the cases provided for by sub-section (2), commits the offence ofrape shall be punished with rigorous imprisonment for a term which shall not be lessthan seven years but which may extend to imprisonment for life, and shall also be liable440


to pay compensation to the victim, which shall be adequate to meet at least the medicalexpenses incurred by the victim.(2) Whoever,—(a) being a police officer, whether on duty or otherwise, commits rape —(i) within the limits of the police station to which such police officer is appointed; or,(ii) in the premises of any station house; or,(iii) on a person in such police officer’s custody, or in the custody of a police officersubordinate to such police officer; or,(b) being a member of the armed forces is in the area by virtue of deployment by theCentral or a State government, and commits rape; or(c) being a public servant, commits rape of a person in his custody or in the custody of apublic servant; or(d) being on the management or on the staff of a jail, remand home or other place ofcustody established by or under any law for the time being in force or of a women’s orchildren’s institution, commits rape on any inmate of such jail, remand home, place orinstitution; or(e) being on the management or on the staff of a hospital, commits rape on a patient inthat hospital; or(f) commits rape on a woman knowing her to be pregnant; or(g) being a relative, guardian or teacher of, or a person in a position of trust or authoritytowards the person assaulted, commits rape; or(h) commits rape, where the person assaulted is incapable of giving consent includingin circumstances defined under Section 375Thirdly, Fifthly and Sixthly.(i) while committing rape causes grievous bodily harm or maims or disfigures orendangers the life of the person assaulted; or(j) commits rape repeatedly on the same person,shall be punished with rigorous imprisonment for a term which shall not be less thanten years but which may extend to imprisonment for life, and shall also be liable to paycompensation to the victim which shall be adequate to meet at least the medicalexpenses incurred by the victim.Explanation 1.—For the purposes of this Section, “rape” shall mean any of the actsmentioned in clauses (a) to (c) of section 375.441


Explanation 2.—For the purposes of this Section, “women’s or children’s institution”includes an institution, whether called an orphanage or a home for neglected women orchildren or a widow’s home or an observation home, beggar home or a halfway home oran institution called by any other name, which is established and maintained for thereception and care of women or children;Explanation 3.—For the purposes of this Section, “hospital” means the precincts of thehospital and includes the precincts of any institution for the reception and treatment ofpersons during convalescence or of persons requiring medical attention orrehabilitation.Explanation 4: In sub-clause (a) of clause (2), “police officer” shall have the same meaningas the word “Police” under The Police Act, 1861.Explanation 5: For the purposes of this section ‘custody’ includes any form of physical,mental or psychological restraint to inhibit the exercise of free will by the person incustody.Explanation 6: For the purposes of this section, ‘armed forces’ means the naval, militaryand air forces and includes any member of the Armed Forces enumerated in theSchedule, including the paramilitary forces and any auxiliary forces that are under thecontrol of the Central or State Government.9. A new Section, Section 376(3) providing for increased punishment for death causedin the course of committing rape shall be addedSection 376(3): Punishment for causing death or a persistent vegetative state in thecourse of committing rapeWhoever, commits an offence punishable under Section 376(1) or Section 376(2) and inthe course of such commission inflicts an injury which causes the death of the person orcauses the person to be in a persistent vegetative state, shall be punished with rigorousimprisonment for a term which shall not be less than twenty years, but may be for life,which shall mean the rest of that person’s natural life.10. Section 376A shall be repealed11. Sections 376B, C and D shall be replaced as follows:Section 376A: Intercourse by a person in authority, public servant etc.Whoever being,—(a) in a position of authority or in a fiduciary relationship or(b) a public servant ; or442


(c) a superintendent or manager of a jail, remand home or other place of custodyestablished by or under any law for the time being in force, or a women’s or children’sinstitution, an observation home, beggar home, or an institution called by any othername, which is established and maintained for the reception and care of women orchildren; or(d) on the management of a hospital or on the staff of a hospital,abuses such position or fiduciary relationship to induce any person in their custody tohave sexual intercourse with them, the act not amounting to rape, shall be punishedwith rigorous imprisonment for a term which shall not be less than five years but whichmay extend to ten years and shall also be liable to a fine.Explanation 1.—In this section, “sexual intercourse” shall mean any of the actsmentioned in clauses (a) to (c) of section 375.Explanation 2.—“Superintendent”, in relation to a jail, remand home or other place ofcustody or a women’s or children’s institution includes a person holding any other officein such jail, remand home, place or institution by virtue of which such person canexercise any authority or control over its inmates.Explanation 3.—For the purposes of this Section, “women’s or children’s institution”includes an institution, whether called an orphanage or a home for neglected women orchildren or a widow’s home or an observation home, beggar home or a halfway home oran institution called by any other name, which is established and maintained for thereception and care of women or children.Explanation 4.—For the purposes of this Section, “hospital” means the precincts of thehospital and includes the precincts of any institution for the reception and treatment ofpersons during convalescence or of persons requiring medical attention orrehabilitation.12. A new Section 376B defining and punishing rape of an underage person shallbe added:Section 376B(1): Rape of an underage person: If a man has sexual intercourse with aperson below sixteen years 1 of age with or without that person’s consent, he shall be1 The Preamble to The Protection of Children from Sexual offences Act, 2012 states “And whereas, theGovernment of India has acceded on the 11 th December, 1992 to the Convention on the Rights of theChild, adopted by the General Assembly of the United Nations, which has prescribed a set ofstandards to be followed by all State Parties in securing the best interests of the child…and whereasthe State Parties to the Convention on the Rights of the Child are required to undertake allappropriate national, bilateral and multilateral measures to prevent – (a) the inducement or coercionof a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitutionor other unlawful sexual practices; (c) the exploitative use of children in pornographic performancesand materials; That further to the above, the Parliament earmarked eighteen as the age of consent forthe purposes of Section 375, thereby achieving the result of criminalising all sexual activity whether443


deemed to have committed rape of an underage person, and shall be punished withrigorous imprisonment for a term which shall not be less than ten years, but which mayextend to imprisonment for life.Provided that the existence of a marital relationship between the accused and theunderage person shall not be a valid defence.Explanation: For the purposes of this section, sexual intercourse shall mean any of theacts specified in Section 375 (a) to (c).Section 376(B)(2): Punishment for causing death or a persistent vegetative state in thecourse of committing rape of an underage person.Whoever, commits an offence punishable under Section 376B(1) and in the course ofsuch commission inflicts an injury which causes the death of the person, or causes theperson to be in a persistent vegetative state shall be punished with rigorousimprisonment for a term which shall not be less than twenty years, but may be for life,which shall mean the rest of that person’s natural life.13. The offence of gang rape shall be defined and punished by a new Section 376C376C. Gang rapeWhere a person is raped by one or more in a group of persons acting in furtherance of acommon intention, each of these persons shall be deemed to have committed the offenceof gang rape, regardless of their gender, and shall be punished with rigorousimprisonment for a term which shall not be less than twenty years, but which mayextend to life and shall also be liable to pay compensation to the victim which shall beadequate to meet at least the medical expenses incurred by the victim.Explanation: For the purposes of this section, imprisonment for life shall meanimprisonment for the rest of that person’s natural life.14. A new offence of Gang Rape causing death or a persistent vegetative state shall beadded:376D. Gang Rape followed by death or a persistent vegetative stateWhoever commits gang rape, and in the course of such commission inflicts injury uponthe victim which causes the victim’s death or causes the victim to be in a persistentvegetative state, shall be punished with imprisonment for life.consensual or non-consensual where one person is below the age of eighteen. That the aboveConvention was aimed inter alia to protect children from sexual assault and abuse and not tocriminalise consensual sex between two individuals even if they are below eighteen years of age. Thaton the basis of the interpretation of Article 34 of the Convention along with the representation madeby various groups this Committee recommends that the age of consent be reduced to sixteen, andnecessary amendments be made in the Protection of Children from Sexual Offences Act, 2012 (No. 32of 2012), in order to avoid contradictions with the Indian Penal Code.444


Explanation: For the purpose of this section “imprisonment for life” shall meanimprisonment for the rest of that person’s natural life.15. A new section providing for increased punishment for offenders with a priorconviction for rape shall be added:376E: Punishment for repeat offenders: Whoever has been previously convicted of anoffence punishable under Section 376 (1), or Section 376 (2), or Section 376(3), or Section376 A, or Section 376B(1), or Section 376B(2) or Section 376C or Section 376D and issubsequently convicted of an offence punishable under any of these sections shall bepunished with imprisonment for life, which shall mean the rest of that person’s naturallife.16. A new section defining and punishing the offence of breach of commandresponsibility shall be added:Section 376F: Offence of breach of command responsibility:(1) Whoever, being a public servant in command, control or supervision of the police orarmed forces, as defined in Explanations 1 and 2 to this section, or assuming commandwhether law<strong>full</strong>y or otherwise, fails to exercise control over persons under his or hercommand, control, or supervision and as a result of such failure offences under Section354, Section 354A, Section 376(1), Section 376(2)(a), Section 376(2)(b), Section 376(2)(c),Section 376(2)(d), Section 376(2)(e), Section 376(2)(h), Section 376(2)(i), Section 376(2)(j),Section 376(3), Section 376B(1), or Section 376B(2) or Section 376C or Section 376D of theIndian Penal Code are committed, by persons under his or her command, control orsupervision, shall be guilty of the offence of breach of command responsibility, where:-(i) such public servant either knew or owing to the circumstances should haveknown that the persons under his or her command, control or supervisionwould commit such offences; and(ii) such public servant failed to take necessary and reasonable measures within hisor her power to prevent or repress the commission of the said offences.(2) Whoever is guilty of the offence of breach of command responsibility shall bepunished with rigorous imprisonment for a term which shall not be less than sevenyears, but may extend to ten years.Explanation 1: For the purposes of this section, “police officer” shall have the samemeaning as the word “Police” under The Police Act, 1861.Explanation 2: For the purposes of this section, ‘armed forces’ means the naval, militaryand air forces and includes any member of the Armed Forces enumerated in theSchedule, including the paramilitary forces and any auxiliary forces that are under thecontrol of the Central or State Government.445


17. Section 509 of the Indian Penal Code shall be repealed.Schedule(See Explanation 2 to Section 376F)Armed Forces and Security Forces Constituted Under(a) The Air Force Act, 1950 (45 of 1950)(b) The Army Act, 1950 (46 of 1950)(c) The Assam Rifles Act. 2006 (47 of 2006)(d) The Bombay Home Guard Act, 1947 (3 of 1947)(e) The Border Security Force Act, 1968 (47 of 1968)(f) The Central Industrial Security Force Act, 1968 (50 of 1968)(g) The Central Reserve Police Force, 1949 (66 of 1949)(h) The Coast Guard Act, 1978 (30 of 1978)(i) The Delhi Special Police Establishment Act, 1946 (25 of 1946)(j) The Indo-Tibetan Border Police Force Act, 1992 (35 of 1992)(k) The Navy Act, 1957 (62 of 1957)(l) The National investigation Agency Act, 2008 (34 of 2008)(m) The National Security Guard Act, 1986 (47 of 1986)(n) The Railway Protection Force Act, 1957 (23 of 1957)(o) The Sahastra Seema Bal Act, 2007 (53 of 2007)(p) The Special Protection Group Act, 1988 (34 of 1988)(q) The Territorial Army Act, 1948 (56 of 1948)(r) The State Police Forces (Including Armed Constabularies) constituted under theState laws to aid the civil powers of the State and empowered to employ forceduring internal disturbances or otherwise including armed forces as defined inclause (a) of Section 2 of the Armed Forces (Special powers) Act, 1958 (28 of 1958)446


CHAPTER IIAMENDMENTS OF THE CODE OF CRIMINAL PROCEDURE, 19731. The following amendment shall be made to Section 39(1) of the Code:Clause (vb) that reads as follows to be added:Sections 326A, 326B, 354, 354A, 354B, 354 C, 376(1), 376(2), 376A, 376 B(2),376C, 376D or376F of the Indian Penal Code.2. Section 40A that reads as follows shall be added:Every officer employed in connection with the affairs of a village, and every person whois part of a village panchayat shall forthwith communicate to the nearest Magistrate or tothe officer in charge of the nearest police station, whichever is nearer, any informationthat he may possess in respect of the commission of, or intention to commit an offencepunishable under Sections 326A, 326B, 354, 354A, 354B, 354 C, 376(1), 376(2), 376(3),376A, 376 B(1), 376B(2), 376C and 376D of the Indian Penal Code.3. Amendment to Section 54A:The following proviso shall be added to Section 54A:Provided that, if the person identifying the arrestee is mentally or physically disabled,such process of identification shall take place under the supervision of a JudicialMagistrate who shall take appropriate steps to ensure that such person identifies thearrestee using methods that the person is comfortable with.Provided further, that if the person identifying the person arrested is mentally orphysically disabled, the identification process shall be videographed.4. The following proviso shall be introduced to Section 154 of the Code of CriminalProcedure, 1973.Proviso to Section 154: “Provided that if the information is given by a woman againstwhom an offence under Section 354, Section 354A, Section 354B, Section 354 C, Section376(1), Section 376(2), Section 376A, Section 376B(1), or Section 376 C of the Indian PenalCode is alleged to have been committed or attempted, then such information shall berecorded, as far as possible, by a woman police officer and such woman shall beprovided legal assistance and also the assistance of a healthcare worker, and/ orwomen’s organisation.Provided further that:447


(1) in the event that the person against whom an offence under Section 354, Section354A, Section 354B, Section 354 C, Section 376(1), Section 376(2), Section 376A, Section376B(1) or Section 376C of the Indian Penal Code is alleged to have been committed orattempted is temporarily or permanently mentally or physically disabled, then suchinformation shall be recorded by a police officer, at the residence of the person seekingto report such offence or at a convenient place of such person’s choice, in the presence ofa special educator or an interpreter, as the case may be.(2) The recording of such information shall be videographed.(3) The police officer shall get the statement of the person recorded by a JudicialMagistrate under Section 164(5)(a) of this Code as soon as possible.5. Amendment to the proviso to section 160.The proviso to section 160 of the Code of Criminal Procedure, shall be amended asfollows: Provided that no male person under the age of eighteen years or above the ageof sixty five years, a woman or a physically or mentally disabled person shall berequired to attend at any place other than the place in which the person or womanresides.6. Amendment to Section 164 Cr.P.CSub-sections (5)(a) and (5)(b) shall be added. It shall read as follows:Section 164(5)(a):In cases punishable under Section 354, Section 354A, Section 354B, Section 354C(2),Section 376(1), Section 376(2), Section 376A, Section 376B(1), or Section 376C of theIndian Penal Code of 1860, a Judicial Magistrate shall record the statement of the personagainst whom such offence has been committed in the manner prescribed in sub-section(5) of this Section, as soon as the offence is brought to the attention of the police.Provided that if the person making the statement is temporarily or permanentlyphysically or mentally disabled, the Magistrate shall take the assistance of an interpreteror a special educator in recording the statement.Provided further that if the person making the statement is temporarily or permanentlyphysically or mentally disabled, the statement made by the person, with the assistanceof an interpreter or special educator, shall be videographed.Section 164(5)(b)A statement recorded under Section 164(5)(a) of a person who is temporarily orpermanently physically or mentally disabled shall be considered a statement in lieu ofexamination-in-chief, as prescribed in Section 137 of the Indian Evidence Act, 1872 such448


that the maker of the statement can be cross-examined on such statement, without theneed for re-asserting the same at the time of trial.7. Amendment to Section 197(1):The following amendment shall be made to Section 197(1) of the Code:“When any person who is or was a Judge or Magistrate or a public servant notremovable from his office save by or with sanction of the Government, is accused of anyoffence, alleged to have been committed by him while acting or purporting to act in thedischarge of his official duty, except offences punishable under Section 354, Section354A, Section 354B, Section 354C(2), Section 376(1), Section 370, Section 376(2), Section376(3), Section 376A, Section 376B(1), Section 376B(2), Section 376C, Section 376D andSection 376F and Section no Court shall take cognizance of such offence except with theprevious sanction ...”8. Insertion of Section 198B:No Court shall take cognizance of an offence under Section 376(1) of the Indian PenalCode where the persons are in a marital relationship, except upon a police report of thefacts which constitute an offence or a complaint having been filed or made by the wifeagainst the accused husband.9. Amendment to Section 273In section 273 of the Code of Criminal Procedure, before the Explanation, the followingproviso shall be inserted, namely: — “Provided that where the evidence of a personbelow the age of eighteen years who is alleged to have been subjected to an offencepunishable under Sections 354, Section 354A, Section 354B, Section 354C(2), Section376(1), Section 376(2), Section 376A, Section 376B(1), Section 376C or Section 376F, is tobe recorded, the court may take appropriate measures to ensure that such person is notconfronted by the accused while at the same time ensuring the right of crossexamination of the accused.”.10. Amendment to Section 327In section 327 of the Code of Criminal Procedure, in sub-section (2), for the words,figures and letters “trial of rape or an offence under section 376, section 376A, section376B, section 376C or section 376D of the Indian Penal Code”, the words, figures andletters "trial of an offence punishable under Sections 354, Section 354A, Section 354B,Section 354C(2), Section 376(1), Section 376(2), Section 376A, Section 376B(1), or Section376C " shall be substituted.11. Amendment to Section 357Sub-section(4) shall be added to Section 357 and the existing sub-sections (4) and (5)shall be renumbered as (5) and (6). The new Section 357(4) shall read as follows:449


(4) When a Court imposes a sentence in a case punishable under Section 326B, Section376(1), Section 376(2), Section 376B(1) or Section 376C, the Court shall when passingjudgment order the convicted person to pay by way of compensation an amountadequate to meet at least the medical expenses incurred by the victim.12. Amendments to the First ScheduleThe First Schedule to the Cr.P.C. shall be modified to incorporate the effect of theamendments proposed. All offences defined and made punishable by virtue of thisAmendment Bill shall be cognizable and non-bailable.450


1. Addition of Section 53ACHAPTER IIIAMENDMENTS OF THE INDIAN EVIDENCE ACT, 1872After section 53 of the Indian Evidence Act, 1872 the following section shall be inserted,namely:—“53A. In a prosecution for an offence under Section 354, Section 354A, Section 354B,Section 354C, Section 376(1), Section 376(2), Section 376A, Section 376B(1) or Section376C of the Indian Penal Code or for attempt to commit any such offence, evidence ofthe character of the victim or of his or her previous sexual experience with any personshall not be relevant.2. Amendment to Section 114AFor section 114A of the Evidence Act, the following section shall be substituted,namely:—‘114A. (1) In a prosecution for rape under sub-section (2) of section 376 or for gang rapeunder Section 376C of the Indian Penal Code, where sexual intercourse by the accused isproved and the question is whether it was without the consent of the other personalleged to have been raped and such other person states in his/her evidence before thecourt that she or he did not consent, the court shall presume that she or he did notconsent.Explanation.—In this section “sexual intercourse” shall mean any of the acts mentionedin clauses (a) to (c) of section 375 of the Indian Penal Code.3. Amendment to Section 119In section 119 of the Act the term “dumb witness” shall be substituted by “persons whoare unable to communicate verbally.”The following proviso shall be added:Provided that if the witness is unable to communicate verbally, the Court shall take theassistance of a special educator or interpreter in recording the statement, and suchstatement shall be videographed.4. Amendment to Section 146In section 146 of the Evidence Act, for the proviso, the following proviso shall besubstituted, namely:—451


“Provided that in a prosecution for an offence under Section 376(1), Section 376(2),Section 376A, Section 376B(1) or Section 376C or for attempt to commit any such offence,it shall not be permissible to adduce evidence or to put questions in the crossexaminationof the victim as to his or her general moral character, or as to his or herprevious sexual experience with any person.452


CHAPTER IVAMENDMENT TO THE ARMED FORCES (SPECIAL POWERS) ACT, 19581. The following amendment shall be made to Section 6 of the Armed Forces (SpecialPowers) Act, 1958:No prosecution, suit or other legal proceeding shall be instituted, except with theprevious sanction of the Central Government, against any person in respect of anythingdone or purported to be done in exercise of the powers conferred by this Act.Provided that, no sanction shall be required if the person has been accused ofcommitting an offence under Section 354, Section 354A, Section 354B, Section 354C,Section 376(1), Section 376(2), Section 376(3), Section 376A, Section 376B, Section 376C,Section 376D, Section 376D or Section 376E of the Indian Penal Code, 1860.453


APPENDIX 5PROPOSED AMENDMENTS TO THE REPRESENTATION OF PEOPLE ACT, 1951The following amendments shall be made to the Representation of the People Act, 1951.1. A new sub-section (e) shall be introduced in section 4 (Qualifications formembership of the House of the People) as follows:“(e) in all cases, if prior to the conduct of the election he is found to be disqualified underChapter III.”2. A new sub-section (d) shall be introduced in section 5 (Qualifications formembership of a Legislative Assembly) as follows:“(d) in all cases, if prior to the conduct of the election he is found to be disqualified underChapter III.”3. A new sub-clause (e) shall be introduced in sub-section (1) of section 5A(Qualifications for membership of Legislative Assembly of Sikkim) as follows:“(e) in all cases, if prior to the conduct of the election he is found to be disqualified underChapter III.”4. Further, a new sub-clause (e) shall be introduced in sub-section (2) of section 5A(Qualifications for membership of Legislative Assembly of Sikkim) as follows:“(e) in all cases, if prior to the conduct of the election he is found to be disqualified underChapter III.”5. In place of section 8 (Disqualification on conviction for certain offences), a newsection 8 shall be introduced as follows:“8. Disqualification on cognizance or conviction for certain offences.(1) A person, in respect of whose acts or omissions a court of competent jurisdiction hastaken cognizance under section 190(1)(a),(b) or (c) of the Code of Criminal Procedure,1973 (Act 2 of 1974) or, who has been convicted by a court of competent jurisdiction,with respect to an offence punishable under—(a) the Indian Penal Code, 1860 (Act 45 of 1860) listed in Schedule I ; or(b) the Protection of Civil Rights Act, 1955 which provides for punishment for thepreaching and practice of “untouchability", and for the enforcement of any disabilityarising therefrom; or454


(c) section 11 (offence of importing or exporting prohibited goods) of the Customs Act,1962 (52 of 1962 ); or(d) sections 10 to 12 (offence of being a member of an association declared unlawful,offence relating to dealing with funds of an unlawful association or offence relating tocontravention of an order made in respect of a notified place) of the Unlawful Activities(Prevention) Act, 1967 (37 of 1967 ); or(e) the Foreign Exchange (Regulation) Act, 1973 (76 of 1973 ); or(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985 ); or(g) Section 3 (offence of committing terrorist acts) or section 4 (offence of committingdisruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987(28 of 1987 ); or(h) Section 3 (declaration of an association as unlawful) or any offence enumerated inChapter IV of the (punishment for terrorist activities) of the Unlawful Activities(Prevention) Act, 1967; or(i) any provision of the Prevention of Terrorism Act, 2002; or(j) any offences enumerated in chapter III of the Prevention of Corruption Act, 1988; or(j) section 7 (offence of contravention of the provisions of sections 3 to 6) of the ReligiousInstitutions (Prevention of Misuse) Act, 1988 (41 of 1988 ); or(k) section 125 (offence of promoting enmity between classes in connection with theelection) or section 135 (offence of removal of ballot papers from polling stations) orsection 135A (offence of booth capturing) of clause (a) of sub- section (2) of section 136(offence of fraudulently defacing or fraudulently destroying any nomination paper) of thisAct;[ or](l) section 6 (offence of conversion of a place of worship) of the Places of Worship (SpecialProvisions) Act, 1991 , or(m) section 2 (offence of insulting the Indian National Flag or the Constitution of India)or section 3 (offence of preventing singing of National Anthem) of the Prevention ofInsults to National Honour Act, 1971 (69 of 1971 ); or(n) any law providing for the prevention of hoarding or profiteering; or(o) any law relating to the adulteration of food or drugs; or(p) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961 ); or(q) any provisions of the Commission of Sati (Prevention) Act. 1987 (3 of 1988),shall be disqualified from the date of such taking of cognizance by a court of competentjurisdiction under section 190(1)(a),(b) or (c) of the Code of Criminal Procedure, 1973(Act 2 of 1974) or conviction, as the case may be, and shall continue to be disqualified fora further period of six years from the date of his release upon conviction. It is clarified455


that, in the event of acquittal of the candidate, disqualification shall continue to operatefrom the date of taking cognizance under section 190(1)(a),(b) or (c) of the Code ofCriminal Procedure, 1973 (Act 2 of 1974) till the date of acquittal.(2) A person convicted of any offence and sentenced to imprisonment for not less thantwo years other than any offence referred to in sub- section (1) shall be disqualified fromthe date of such conviction and shall continue to be disqualified for a further period of sixyears from his release.(3) Notwithstanding anything to the contrary in any law for the time being in force, adisqualification under either sub-section (1) or (2) of this section 8 shall, in the case of aperson who on the date of the taking of cognizance by a court of competent jurisdictionunder section 190(1)(a),(b) or (c) of the Code of Criminal Procedure, 1973 (Act 2 of1974), or on the date of conviction as referred to in either sub-section (1) or (2) of section8, is a member of Parliament or the Legislature of a State, take effect immediately uponthe taking of cognizance, or upon conviction as referred to in sub-section (1), orconviction as referred to in sub-section (2), as the case may be.Explanation. —In this section, —(a) "law providing for the prevention of hoarding or profiteering" means any law, or anyorder, rule or notification having the force of law, providing for—(i) the regulation of production or manufacture of any essential commodity;(ii) the control of price at which any essential commodity may be bought or sold;(iii) the regulation of acquisition, possession, storage, transport, distribution, disposal,use or consumption of any essential commodity;(iv) the prohibition of the withholding from sale of any essential commodity ordinarilykept for sale;(b) "drug" has the meaning assigned to it in the Drugs and Cosmetics Act, 1940 (23 of1940);(c) "essential commodity" has the meaning assigned to it in the Essential CommodityAct, 1955 (10 of 1955);(d) "food" has the meaning assigned to it in the Prevention of Food Adulteration Act,1954 (37 of 1954).”6. A new section 8B. Disqualification for false declaration as to assets and liabilitiesshall be introduced as follows:“8B. Disqualification for false declaration as to assets and liabilities(1) Upon the receipt of a report from the Comptroller and Auditor General by the ElectionCommission of India under Chapter III-A of the Comptroller and Auditor General Act,1971, the case of every person who is found to have provided false information undersection 75A(1) as per the said report, shall be submitted by the Election Commission ofIndia to the President for the taking of consequential action of disqualification;456


(2) Before giving his decision on any question mentioned in sub- section (1), thePresident shall obtain the opinion of the Election Commission of India on theconsequential action of disqualification to be taken and shall act according to suchopinion.Provided that the period for which any person may be disqualified under this section shallin no case exceed six years from the date on which the President conveys the decision todisqualify such person.”6. In sub-section (1) of section 11A. (Disqualification arising out of conviction andcorrupt practices) after the words “for a period of six years from the date of theconviction or from the date on which the order takes effect” the words “whichever islater in time,” shall be inserted7. A new sub-section (2A) shall be introduced in section 33 (Presentation ofnomination paper and requirements for a valid nomination) as follows:“(2A) Where the candidate stands disqualified under the provisions of section 8, section8-A or section 8-B and the period of disqualification under any of the applicableaforementioned sections has not elapsed, such person shall not be deemed to be dulynominated as a candidate unless his nomination paper is accompanied by a certificateissued in the prescribed manner by the Election Commission of India certifying that theperiod of disqualification under any of the applicable aforementioned sections has elapsedor that the said candidate has been acquitted.Provided that prior to the issuance of a certificate as prescribed by sub-section (2A) inrespect of disqualification under section 8, the Election Commission of India shall firstreceive a certificate from the Registrar of the concerned High Court within whoseterritorial jurisdiction any trial in relation to offences referred to in section 8 is beingconducted against such candidate. The certificate to be provided by the Registrar shallstate the date on which cognizance under section 190(1)(a),(b) or (c) of the Code ofCriminal Procedure, 1973 (Act 2 of 1974) was taken or the date on which such candidatewas convicted in respect of any offence referred to in sub-section (2) of section 8 or thedate of acquittal, as may be applicable.”7. A new sub-clause (i) shall be introduced after sub-clause (h) in sub-section (7) asfollows:“(i) in the case of election to either House of Parliament or Legislature of a State where adeclaration on affidavit is made or ought to have been made in respect of offences referredto in section 8, without a certificate by the Registrar of the concerned High Court within457


whose territorial jurisdiction any case is pending in relation to the offences referred to insection 8 against such candidate. Such certificate shall state the date on which cognizanceunder section 190(1)(a),(b) or (c) of the Code of Criminal Procedure, 1973 (Act 2 of 1974)was taken in respect of any offence referred to in sub-section (1) of section 8 or the date onwhich such candidate was convicted in respect of any offence referred to in sub-section (1)or (2) of section 8 or the date of acquittal, as the case may be.”8. A new sub-clause (iii) in sub-section 1 of section 33A (Right to information) shallbe introduced as follows:“(iii) a court of competent jurisdiction has taken cognizance under section 190(1)(a),(b)or (c) of the Code of Criminal Procedure, 1973 (Act 2 of 1974), or a conviction hasoccurred, in respect of the offences referred to in sub-section (1) of section 8.”9. In sub-section (1) of section 75A (Declaration of assets and liabilities) after thewords “Every elected candidate for a House of Parliament” the words “or anyLegislature of a State” shall be inserted. Further after the words “to the Chairman of theCouncil of States or the Speaker of the House of the People, as the case may be” thewords “and to the Election Commission of India” shall be inserted.10. A new sub-section (6) shall be introduced in section 75A (Declaration of assetsand liabilities) as follows:“(6) The Election Commission of India shall forward all information it receives undersub-section (1) in respect of each candidate seeking to contest any election for eitherHouse of Parliament or Legislature of a State to the Comptroller and Auditor General ofIndia for the preparation of a report in accordance with Chapter III-A of the Comptrollerand Auditor General of India Act, 1971, which report shall be submitted to the ElectionCommission of India in accordance with Chapter III-A of the Comptroller and AuditorGeneral of India Act, 1971. The findings of the report received by the ElectionCommission of India from the Comptroller and Auditor General of India shall be bindingon the Election Commission of India of India in respect of the matters that it covers,including for the purpose of giving its opinion to the President in accordance with theprovisions of section 8-B.”11. A new sub-section (ii) shall be introduced in section 125A (Penalty for filing falseaffidavit, etc.) shall be introduced as follows:“(ii) fails to furnish information relating to sub-section (1) of section 75A”12. 13. In sub-section (iii) of section 125A (Penalty for filing false affidavit, etc.)after the words “in his affidavit which is required to be delivered under sub-section (2)458


of section 33A” the words “or in the information to be provided under sub-section (1) ofsection 75A” shall be inserted. Further, in sub-section (iii) of section 125A (Penaltyfor filing false affidavit, etc.) after the words “for the time being in force, bepunishable with imprisonment for a term which may extend to six months, or with fine,or with both” the words “and shall forthwith stand disqualified from nomination for anelection to either House of Parliament or Legislature of a State or from the membership ofeither House of Parliament or Legislature of a State, as the case may be.” shall beinserted.13. A new Schedule I shall be introduced at the end of the Act as followsSee Section 8(1) (a)“SCHEDULE INote: Section titles and numbers include suggestions for amendment to the IndianPenal Code made by the Justice J. S. Verma Committee.1. Section 115: Abetment of offence punishable with death or imprisonment for lifeifoffence not committed2. Section 120A and 120B: Criminal Conspiracy3. Section 146 and 147: Rioting and punishment for rioting4. Section 148: Rioting, armed with deadly weapon5. Section 153A: Promoting enmity between different groups on grounds ofreligion, race, place of birth, residence, language, etc., and doing acts prejudicialto maintenance of harmony6. Section 157: Harbouring persons hired for an unlawful assembly7. Section 171E: Punishment for Bribery8. Section 171F: Punishment for undue influence or personation at an election9. Section 212: Harbouring offender10. Section 216: Harbouring offender who has escaped from custody or whoseapprehension has been ordered11. Section 216A : Penalty for harbouring robbers or dacoits12. Section 302: Punishment for murder13. Section 304: culpable homicide not amounting to murder14. Section 304B: Dowry death15. Section 305: Abetment of suicide of child or insane person16. Section 306: Abetment of suicide17. Section 307: Attempt to murder18. Section 312: Causing miscarriage19. Section 313: Causing miscarriage without woman’s consent459


20. Section 314: Death caused by act done with intent to cause miscarriage21. Section 315: Act done with intent to prevent child being born alive or to cause itto die after birth22. Section 316: Causing death of quick unborn child by act amounting to culpablehomicide23. Section 324: Voluntarily causing hurt by dangerous weapons or means24. Section 325: Punishment for voluntarily causing grievous hurt25. Section 326: Volunatrily causing grievous hurt by dangerous weapons or means26. Section 326A: Volunatrily causing grievous hurt through use of acid etc.27. Section 326B: Throwing or attempting to throw acid etc.28. Section 343: Wrongful confinement for three or more days29. Section 344: Wrongful confinement for ten or more days30. Section 346: Wrongful confinement in secret31. Section 353: Assault or use of criminal force to deter a public servant fromdischarge of his duty32. Section 354: Sexual Assault33. Section 354A: Assault or use of criminal force to woman with intent to disrobeher34. Section 354B: Voyeurism35. Section 354C: Stalking36. Section 357: Assault or use of criminal force in an attempt wrong<strong>full</strong>y to confine aperson37. Section 363: Punishment for kidnapping38. Section 363A: Kidnapping or maiming a minor for purposes of begging39. Section 364: Kidnapping or abducting in order to murder40. Section 364A: Kidnapping for ransom etc.41. Section 365: Kidnapping or abducting with intent secretly and wrong<strong>full</strong>y toconfine person42. Section 366: Kidnapping, abducting or inducing woman to compel her marriage,etc.43. Section 366A: Procreation of minor girl44. Section 366B: Importation of girl from foreign country45. Section 367: Kidnapping or abducting in order to subject person to grievous hurt,slavery, etc.46. Section 369: Kidnapping or abducting child under ten years with intent to stealfrom its person47. Section 370: Buying or disposing of any person as slave48. Section 371: Habitual dealing in slave49. Section 372: Selling minor for purposes of prostitution, etc.50. Section 373: Buying minor for purposes of prostitution, etc.51. Section 374: Unlawful compulsory labour52. Section 376: Punishment for rape460


53. Section 376A: Intercourse by a person in authority, public servant etc.54. Section 376B: Rape of an underage person55. Section 376C: Gang rape56. Section 376D: Gang rape followed by death or persistent vegetative state57. Section 376E: Punishment for Repeat Offenders58. Section 376F: Offence of command responsibility59. Section 384: Extortion and Punishment for extortion60. Section 385: Putting person in fear of injury in order to commit extortion61. Section 386: Extortion by putting a person in fear of death or grievous hurt62. Section 387: Putting person in fear of death or of grievous hurt, in order tocommit extortion63. Section 388: Extortion by threat of accusation of an offence punishable with deathor imprisonment for life, etc.64. Section 389: Putting person in fear of accusation of offence, in order to commi<strong>text</strong>ortion65. Section 392: Punishment for robbery66. Section 393: Attempt to commit robbery67. Section 394: Person voluntarily causing hurt in committing or attempting tocommit robbery, or any other person jointly concerned in such robbery68. Section 395: Punishment for dacoity69. Section 396: Dacoity with murder70. Section 397: Robbery, or dacoity, with attempt to cause death or grievous hurt71. Section 398: Attempt to commit robbery or dacoity when armed with deadlyweapon72. Section 399: Making preparation to commit dacoity73. Section 400: Punishment for belonging to a gang of persons associated for thepurpose of habitually committing dacoity74. Section 401: Punishment for belonging to wandering gang of persons associatedfor the purpose of habitually committing thefts75. Section 402: Assembling for purpose of committing dacoity76. Section 403: Dishonest misappropriation of property77. Section 404: Dishonest misappropriation of property possessed by deceasedperson at the time of his death78. Section 406: Punishment for criminal breach of trust79. Section 409: Criminal breach of trust by public servant, or by banker, merchant oragent80. Section 413: Habitually dealing in stolen property81. Section 419: Punishment for cheating by personation82. Section 420: Cheating and dishonestly inducing delivery of property83. Section 449: House- trespass in order to commit offence punishable with death84. Section 450: House- trespass in order to commit offence punishable withimprisonment for life461


85. Section 451: House- trespass in order to commit offence punishable withimprisonment86. Section 452: House- trespass alter preparation for hurt, assault or wrongfulrestraint87. Section 454: Lurking house- trespass or house- breaking in order to commitoffence punishable with imprisonment88. Section 455: Lurking house- trespass or house- breaking after preparation forhurt, assault or wrongful restraint89. Section 457: Lurking house- trespass or house- breaking by night in order tocommit offence punishable with imprisonment90. Section 458: Lurking house- trespass or house- breaking by night afterpreparation for hurt, assault, or wrongful restraint91. Section 459: Grievous hurt caused whilst committing lurking house trespass orhouse-breaking92. Section 460: All persons jointly concerned in lurking house-trespass or housebreakingby night punishable where death or grievous hurt caused by one ofthem93. Section 489A: Counterfeiting currency- notes or bank- notes94. Section 498: Enticing or taking away or detaining with criminal intent a marriedwoman95. Section 498A: Husband or relative of husband of a woman subjecting her tocruelty96. Section 505: Statements creating or promoting enmity, hatred or ill- will betweenclasses in place of worship, etc.97. Section 506: Punishment for criminal intimidation98. Section 511: Punishment for attempting to commit offences punishable withimprisonment for life or other imprisonment”462


APPENDIX 6PUBLIC EMERGENCY RESPONSE SYSTEMHistory:In India historically we have had different numbers to call police, fire and ambulatoryservices namely 100,102,103. This system was designed at the time of a regulatedtelecom sector with only one telecom provider across India and one in each metro.Hence any call to these emergency numbers were routed to a dispatcher of thatparticular emergency service and handled by the emergency service themselves more sothe system was not designed for emergency response but as an emergency contact.Over time in response to changing environment the three services have tried to evolvethe emergency contact into an emergency response system with mixed results alsoadditional numbers have been provided for specific emergency situations which are notrouted to a central emergency response dispatcher. Thus leading to a lot of confusion inthe minds of the public at large.Need:The need of the hour is to have a system that puts accountability of the emergencyresponse on to the Police and other ER services. The system should be auditable andhave a public oversight to see its effectiveness and rectify the shortcomings of thesystem.Solution:It is recommended that we have a one central ER number so that there is no burden onan average person on the street to remember different numbers for different kinds of ERsituations. This is necessary in the con<strong>text</strong> of India as a lot of our population is notadequately literate but they are telephony users.The system envisages a central ER control centre for a geographical cell which willmanage all ER within that cell. We should eventually have multiple Geo cells acrossIndia. One Geo cell should typically cover one metropolitan city.The ERCC will handle all the ER situations within the Geo cell like police, fire,ambulatory etc. All calls to the ER number made by a user of any telephony serviceprovider for all kinds of telephony services will mandatorily be routed to the ERCCdesignated for that Geo cell. While such a call is forwarded the telephony serviceprovider will also forward the triangulated location of the handset or the GPS coordinatesof the handset in the case of any wireless telephony service. In the case of afixed line call the current installed address of the Landline will be forwarded. With allcalls irrespective of telephone service type the KYC information of the originator has tobe forwarded, this will help in two ways 1.) The ERCC worker can cross check thecaller’s id and location for the ER services to reach them 2.) Prank callers can be kept atbay as hoax calling can lead to punitive action thus not overburdening the system.To ensure that the Police and other ER services respond, the ERCC will have to be givenoverall control of the Police patrolling vehicles, fire engines and ambulances etc. All463


vehicles which are earmarked for ER services will mandatorily have to be GPS hotjackedand given identification numbers which are clearly and boldly printed anddisplayed on the vehicle for easy identification of the ER unit. This GPS data with thespecific ER unit number will be made available to the ERCC on geospatial map data.This data will be in real-time be plotted on to a central Geo cell map so displaying all theER unit locations.The control of the ERCC over these vehicles will only be with respect to dispatch of theER unit and closing the ER call.Thus in case of an emergency call the ERCC worker at the time of receiving the callrouted from the telephony provider will have the location of the caller which will beplotted onto the same Geospatial map data which has the ER units plotted. Based on thetype of emergency the ERCC worker can dispatch the closest ER unit to assess thesituation and report back to the ERCC for appropriate action or the ERCC worker candispatch a suitable ER service unit.The ERCC should be run as an independent service as a civil contracted agency whichdoes not report to the Police but to the civil administration of the city. The ERCC shouldbe monitored and audited every month to ascertain is effectiveness in redirecting anddispatch of the ER units. The ER units of the ER services providers should in turnmaintain their own logs and dairies which can be correlated to the data of the ERCC.The ERCC audit data should be published every month in terms of statistical data forthe knowledge of the public.A possible funding for this PERS could come from a nominal surcharge on the existingand future telephony users thus not burdening the exchequer.464


APPENDIX 7SUGGESTED GUIDELINES FOR MEDICAL EXAMINATION OF SEXUALASSAULT SURVIVORPART A: CHECKLIST/PRINCIPLES FOR FORENSIC EVIDENCE COLLECTION1. Based on Locard's principle of exchange there may be a possibility of exchange ofbodily evidence between accused and survivor.2. Before you begin, make an assessment of the case and determine what evidenceneeds to be collected. This procedure cannot be done mechanically and willrequire some analysis. This assessment will have to be made on a case-to-casebasis.3. The nature of forensic evidence collected will be determined by three mainfactors - nature of assault, time lapsed between assault and examination andwhether the survivor has bathed/washed herself since the assault.4. If a woman reports within 96 hours (4 days) of the assault, all evidence includingswabs must be collected without fail, in keeping with the history of assault.5. The likelihood of finding evidence after 72 hours (3 days) is greatly reduced,however it is better to collect evidence upto 96 hours in case the survivor may beunsure of the number of hours lapsed since the assault.6. Please keep in mind that spermatozoa can be identified only upto 72 hours afterassault. So if a survivor has suffered the assault more than three days ago, pleaserefrain from taking swabs for spermatozoa and instead only take swabs forsemen. In such cases swabs should only be sent to FSL for tests for identifyingsemen.7. Evidence on the outside of the body and on materials such as clothing can becollected even after 96 hours.8. The nature of swabs taken is determined to a large extent by the nature of assaultand the history that the survivor provides. The kinds of swabs taken should beconsistent with the history. For example, if the survivor is certain that there is noanal intercourse, anal swabs need not be taken.9. Request the survivor to stand on a large sheet of paper, so as to collect anyspecimens of foreign material e.g. grass, mud, pubic hair or scalp hair etc. whichmay have been left on her person from the site of assault or from the accused.This sheet of paper is care<strong>full</strong>y folded and preserved in a bag to be sent to theFSL for trace evidence detection.10. Clothes that the survivor was wearing at the time of the assault are of evidentiaryvalue 2 if there are any stains/tears/trace evidence on them. Hence they must bepreserved. Please describe each piece of clothing in a table.2 Kindly ensure that the person is offered hospital robes. Absence of alternate clothing should not be aground to delay medical testing.465


11. Presence of stains - semen, blood, foreign material etc - should be properlynoted. Also note if there are any tears or other marks on the clothes. If clothes arealready changed then the survivor must be asked if s/he has the clothes thatwere worn at the time of assault and these must be preserved.12. Always ensure that the clothes and samples are air dried before storing them intheir respective packets.13. Ensure that clothing is folded in such a manner that the stained parts are not incontact with unstained parts of the clothing.14. Pack each piece of clothing in a separate paper bag, seal and label it duly.15. If a woman reports with a pregnancy resulting from an assault, she is to be giventhe option of undergoing an abortion, and protocols for MTP are to be followed.The products of conception (PoC) may be sent as evidence to the forensic lab(FSL) for establishing paternity / identifying the accused.16. The products of conception (PoC) may be collected under appropriate medicalprotocols, and handed over immediately to the police, or preserved at -4 degreeCelsius. It is to be transported by the police to a forensic lab in an ice-box,maintaining the temperature at sub-zero at all times.17. All the envelopes containing the samples should be labelled.PART B: PATIENT INTERVIEW 31. The date, time and location of the assault, including a description of the type ofsurface on which the assault occurred;2. Number of assailants (if more than one);3. The nature of the physical contacts and detailed account of violence inflicted;4. Whether weapons and restraints were used;5. Whether medications/drugs/alcohol/inhaled substances (if known) were used;6. Information on activities like bathing, washing genitals (in all cases) and rinsingmouth, drinking, eating (in cases of oral sexual assault);7. History of injury marks that the survivor may state to have left on the assailant'sbody as it can be matched eventually with the findings of the assailant'sexamination.8. Whether physical violence was inflicted;9. Whether verbal threats were issued with respect to the survivor or her near anddear ones. (Threats to divulge information regarding occurrence of the assault toothers will also amount to a threat).10. Information regarding attempted penetration or completed penetration bypenis/ finger/object of vagina/anus or penis of mouth should be properlyrecorded along with information about emission of any bodily fluid.3 In case of children, illustrative books, body charts or a doll can be used if available, to elicit thehistory of the assault. When it is difficult to elicit history from a child, please call an expert.466


11. Information regarding other acts such as oral sex by the assailant on the survivoror sucking, licking, biting, kissing of body parts etc.12. Information about emission of bodily fluids outside the orifices but on her personor clothing.13. Whether condom was used during the assault.14. Whether sexual intercourse, other than the one for which the survivor is beingexamined had taken place in 96 hours 4 preceding the assault? 515. Was the survivor was menstruating at the time of the examination? 616. Whether the survivor bathed, douched, defecated, urinated, used spermicideafter the assault. 717. Details of any symptoms that have developed since the assault, including: genitalbleeding, discharge, itching, sores, or pain; urinary symptoms; anal pain orbleeding; abdominal bleeding.PART C: FORENSIC EVIDENCE GATHERING CHECKLIST• Collect oral swab for detection of semen and spermatozoa 8 .• Collect loose scalp and pubic hair by combing. Intact scalp and pubic hair is alsocollected from the survivor so that it can be matched with loose hair collectedfrom the accused. All hair must be collected in the catchment paper which is thenfolded and sealed.• Examine nail scrapings and nail clippings for epithelial cells. Clippings andscrapings must be taken for both hands and packed separately. 9• Collect blood and urine for grouping, matching blood stains with the scene ofcrime and detection of drugs/alcohol.• To test for seminal deposits on the pubic hair of the woman, clip an appropriateportion of the pubic hair 10 , allow to dry in the shade and place in an envelope.• Pubic hair of the survivor is then combed for specimens of the offender's pubichair. A comb must be used for this purpose and a catchment paper must be usedto collect and preserve the specimens. Cuttings of the pubic hair are also takenfor the purpose of comparison or to serve as control samples.4 Page 43 WHO guidelines states that semen traces remain upto 96 hours post sexual intercourse.5 While seeking such history, explain to the survivor why this information is being sought, becausethe survivor may not want to disclose such history as it may seem invasive.6 If the survivor is menstruating at the time of examination then a second examination is required on alater date in order to record the injuries clearly. Some amount of evidence is lost because ofmenstruation. Hence it is important to record whether the survivor was menstruating at the time ofassault/ examination.7 Some amount of evidence is lost because of the activities named. Hence it is important to recordwhether any of them took place.8 Oral swabs should be taken from the posterior parts of the buccal cavity, behind the last molarswhere the chances of finding any evidence are highest.9 Ensure that there is no underlying tissue contamination while clipping nails.10 If pubic hair has been shaved the same may be noted as the reason for absence of this evidence.467


• Take two swabs from the vulva, vagina, anal opening for ano-genital evidence. 11• One vaginal smear is to be prepared on a glass slide provided, air-dried in theshade and placed in an envelope. This extra wet smear prepared should beexamined for spermatozoa under the microscope.• Relevant swabs must be taken for detection of lubricant in the event ofpenetration with finger or object.• Other pieces of evidence such as tampons (if in use by the survivor at the time)should be preserved.• Swabs for microbiological tests for infections may be sent as per institutionalpolicy and availability.• Always ensure that all the envelopes containing the samples are labelled.• In the case of any suspected seminal deposits on the pubic hair of the woman,clip that portion of the pubic hair, allow to dry in the shade and place in anenvelope.• Pubic hair of the survivor is then combed for specimens of the offender's pubichair. A comb must be used for this purpose and a catchment paper must be usedto collect and preserve the specimens. Cuttings of the pubic hair are also takenfor the purpose of comparison or to serve as control samples. If pubic hair hasbeen shaved, do not fail to make a mention of it in the records.• Take two swabs from the vulva, vagina, anal opening for ano-genital evidence.• Swabs must be collected depending on the history and examination. Swabs fromorifices must be collected only if there is a history of penetration. One vaginalsmear is to be prepared on a glass slide provided, air-dried in the shade andplaced in an envelope. This extra wet smear prepared should be examined forspermatozoa under the microscope.• Relevant swabs must be taken for detection of lubricant in cases of penetrationwith finger or object.• Other pieces of evidence such as tampons (if being used by the survivor) shouldbe preserved.• Swabs for microbiological tests for infections may be sent as per institutionalpolicy and availability.PART D: GENERAL EXAMINATION• General Mental Condition of the Survivor: Restless/Agitated/Numb/Anxious. 1211 Swabs must be collected depending on the history and examination. Swabs from orifices must becollected only if there is a history of penetration. Swabs must be air dried, not dried in direct sunlight.Drying of swabs is absolutely mandatory as there may be decomposition of evidence which canrender it un-usable.12 A doctor can also record her feelings in her words for ensuring accuracy.Note: Survivors may respond in different ways to such traumatic events. Please note thatobservations such as "the patient is indifferent, detached or controlled" should not be used.468


• Are there any signs of intoxication, either by ingestion of alcohol or drugs:Yes/No.• Are there bruises, scratches, bites, and injuries on the body of the survivor,specifically on the face, neck, shoulders, breasts, upper arms, buttocks, and thighsof the survivor? 13• Note and describe injuries: Abrasions, Lacerations, Incisions etc. 14• Possible weapon used to inflict injuries: Hard, Blunt, Rough, Sharp etc.• Actual measurements, site, shape, with time since injury should be described.Time since injury calculation is as follows: 15Abrasion:Fresh Bright Red12 to 24 hours Reddish scab2 to 3 days Reddish brown scab4 to 7 days Brownish black scabAfter 7 days Scab dries, shrinks and falls off from peripheryContusion:Fresh RedFew hours to 3 days Blue4th day Bluish-black to brown (haemosiderin)5 to 6 days Greenish (haematoidin)7 to 12 days Yellow (bilirubin)2 weeks NormalNote: This is a reference chart only, as many external and internal factors contribute inthe healing of injuries.If there is deep bruise or contusion, signs of injury will usually show after 48 hours. Incase you see signs of injury on the follow-up, please record them and attach thedocumentation to medico legal case papers. 1613 Note: Absence of injuries does not imply consent. Doctors should not conclude that since injuriesare absent, consent is implied. Absence of injuries or negative laboratory results may be due to:a. Inability of victim to offer resistance to the assailant because of intoxication or threatsb. Delay in reporting for examinationc. Healing of injuries with passage of time14 If survivor consents, photographs shall be taken. Injuries shall also be marked on a body chart.15 Note: This is a reference chart only, as many external and internal factors contribute in the healingof injuries.16 Please do not mention old scars as they are identification marks rather than new injuries due toassault. If mentioning those seems pertinent, add a note on when they were acquired.469


Laceration: It becomes difficult to estimate exactly the time since injury based onthe size and contamination. However a rough estimate can be done based onsigns of healing.Incised injury:Fresh Haematoma formation12 hours Edges - red, swollen24 hours Scab of dried clot covering the entire areaAfter this rough estimate can be based on signs of healing.• Note the stains on the body: Describe the type of stain - blood, semen, lubricant, etc. Describe the actual site and size and colour. Mention the number of swabs collected and their sites.PART E: GENITAL EXAMINATION 17• A careful observation of the perineum is to be made for evidence of injury,seminal stains and stray pubic hair.• The vulva, labia, fourchette, hymen and introitus are inspected likewise andrecent injuries, swelling and bleeding (insofar as they appear to arise out of theact complained of) documented.• Bleeding/swelling/tears/discharge/stains/warts around the anus and analorifice must be documented.• Per-rectal examination to detect tears/stains/fissures/haemorrhoids in the analcanal must be carried out and relevant swabs from these sites should be collected.• Bruises, redness, bleeding and tears, which may even extend into the perineumshould be noted.• If there is vaginal discharge, comment on the characteristics ie. <strong>text</strong>ure, colour,odour, etc.• As with general examination, genital findings must also be marked on bodycharts and numbered accordingly.17 The examination and treatment as needed may have to be performed under general anaesthesia incase of minors and when injuries inflicted are severe.470


APPENDIX 8PSYCHOLOGICAL INTERVENTIONS IN SEXUAL ASSAULT/ RAPEA. The Committee has recommended that a counselor be present during the interview/medical examination of the person assaulted/ rape. This is to ensure that the trauma thathas already occurred is not compounded and to also set the pace for a subsequentcounseling/ psychological intervention session. The counselor should ensure that themedical examiner follows a semi-structured interview which begins with an open-endedquestion-e.g., “Please tell us in your own words what happened”.B. At the beginning of the interview a rapport must be developed with the survivor. Theinterviewer must listen care<strong>full</strong>y to the description of the incident and use follow-upquestions to detail specific aspects of the assault through the relevant questions whichare included in the medical protocol. The counselor should ensure this and also observethe nonverbal cues of the survivor.C. It is most important that the interviewer be non-judgmental. The crucial approach is toavoid blaming the victim and to prevent the survivor from blaming herself/ himself forthe attack. The counselor’s most important job is to ensure this.D. There should be an independent witness present as a patient advocate. This individualwill be concerned with the manner in which the survivor is treated. The report hasrecommended the presence of a health worker/ social organization worker with thesurvivor if there is no next friend/ family available. The survivor should always betreated with respect.E. It should always be remembered that survivors have varying ways of coping with sexualassaults, and survivors who do not appear distressed may be in denial or use forgettingas a coping mechanism. Research has shown that there may be many diverse physicaland psychological effects of rape. Physical consequences may include physical injuries,pain, substance abuse, and sleep disruptions among other symptoms. Commonpsychological consequences include clinical depression, generalized anxiety, panicdisorders and posttraumatic stress disorders (PTSD). Some of these symptoms,particularly PTSD, develop over a long time, so survivors should receive treatment forshort-term and long-term consequences.F. The emotional experience of rape and sexual assault – the following range of reactionscould occur in the event of a rape/ sexual assault:• Fear• Distress• Pain471


• Anger• Sadness• Anxiety• Feeling Violated• Shame• Grief• Confusion• Feeling Dirty• Powerlessness• Embarrassment2. Psychological reactions to Rape – The psychological responses vary from the timeof the rapeA. Acute phase or initial phase – is the time period immediately after the rape• Shock/disbelief/numbness are the immediate psychological responses• Recurrent flashbacks are also something that the woman tries to dealwith• Shame & guilt are major reactions• Increased fear & anxiety• Depressed• Feeling suicidal• Loneliness• Confusion• Anger• Loss of memory• Feeling dirty or contaminated by the rapeB. Subsequent reactions – second phase – is the weeks & months that followsthe rape/sexual assault:• Somatic symptoms reflecting effects of physical violation & emotionaltrauma472


• Fear is pervasive• Some experience it in all situations, while for others the experience offear is more in particular situations• Fear about being re-victimized• Anxiety, mood swings, feelings of depression• Recurrent flashbacks, dreams with violent content, pre-occupationwith thoughts of assault• Survivor avoids intrusive demands which may again make her feelvulnerable• “Why me” response is prevalent• Suicidal ideation• Self-blame/guilt about not having tried enough to resist the attemptstarts setting in now• There is also a struggle to discover the reason for assault• Attempt is made by survivor to do things that will give her/ him asense of control• Un-accepting, criticizing attitudes of others around will increase thedistressed psychological responses rather than help in coping3. A cluster of reactions experienced by a survivor who experienced rape iscalled Rape Trauma Syndrome. The various phases of this are:1. ATTACK – these are responses like flight, fight or freeze that the survivorexhibits during the attack to survive.2. ACUTE REACTIONS – these are responses that occur after the rape. Some ofthe symptoms are shock, disbelief, pain/irritation, crying spells, withdrawn,confusion, tension.3. REORGANIZATION REACTIONS – these are symptoms exhibited by thesurvivor when they are working on re-building themselves after the rape -Symptoms include intrusive thoughts, images, flashbacks, panic attacks,avoiding thinking about the incident, feeling depressed, withdrawal,difficulty in everyday functioning, confusion, hyper vigilance, disturbances insleep & appetite, startle responses, muscle tension, anger/rage4. The most common mental health issues faced by survivors after rape/ sexual assaultare:• Post traumatic stress disorder473


• Depression• Generalized anxiety• Phobic anxiety• Sexual dysfunction• Substance use/abuseThe counsellor should be able to assess for symptoms of these disorders5. The counsellor should provide psychological safety – by reassuring thesurvivor that s/he is safe:• The counsellor should be calm & respectful of the survivor• Validate the emotions that the survivor is going through• Provide information about the hospital procedures, medical examinationresults & provide options for the her to make appropriate decisions• Assure the survivor that it is not their fault• Clarify any misattributions that the s/he may have• Be empathetic• Allow them to talk• Educate the person about the symptoms he/she may experience becauseof the rape• The counselor should always have a non-judgmental attitude &unconditional support6. Specific medical information post rape/ sexual assault when the survivor isfemale:• She needs to be educated about the risk of pregnancy & importance ofemergency contraception• It is also essential to inform her that a risk of pregnancy may also be thereeven after emergency contraception• The more the delay in receiving emergency contraception the more thechances of pregnancy7. General medical information on HIV, prophylaxis, STDs post rape/ sexualassault irrespective of the gender of the survivor:• Pre-test counseling – benefits of taking the test, implication ofpositive/negative result• Post-test counseling:-474


o If positive – psychosocial support, clinical assessment, treatmentplan, precaution to be takeno If negative – preventive counseling, emotional support, preventivemeasures to be taken in future, post-exposure prophylaxis (PEP),safe sex, education about use of condomso Care has to be taken to inform survivor about side effects of postexposureprophylaxis8. When should the survivor be referred to a mental health professional?• When Suicide risk is high• Presence of any major mental disorders• Prolonged grief reaction• Post Traumatic Stress Disorder• History of mental illness prior to the rape9. Discussing triggers that cause the person to re-experience trauma:• Crossing the place where the incident occurred• Specific time/day/date when the incident occurred• If the abuser works in the same place or is someone known• Programs or reports of similar incidents in the media• Any other stressful situation that can evoke similar responses• Frequent dreams/flashbacks about the incident• If somebody talks to her about the incident10. Discussing relationship issues with the survivor’s partner or family:• Helping the family/partner understand that the rape is not the fault of thesurvivor• Educating the family/partner about her symptoms to avoid them frommisinterpreting her/ his behaviour• Discuss areas that the family/partner can help the survivor with in theprocess of recovery• Helping the family/partner to deal with their emotions/distress becauseof the rape475


• Involving the family/partner in the treatment process4. The Rape Trauma syndrome5. Assessment of mental health- what should the counselor look for6. The role of a counselor in the acute stage or immediately after rape –a.Psychological Safety -support, ventilation, validationb. Information about emergency contraceptionc. Information about Post exposure HIV prophylaxis, STDsd. Sensitive Discussion about medical and forensic examination7. Education and preparation for the police report, physical examination8. How women may respond to a physical exam or intense probing/policeinterview?9.Handling the acute consequences of trauma – believe what the patient says,educate about normal reactions, reassure that she is not at fault, reassure that she isnot going crazy, encourage normal activities, encourage interaction with family,decrease shame and guilt10.When should the survivor be referred to a mental health professional?- severeemotional reactions, dissociation, psychosis, suicidality, substance use, earlierhistory of a mental health problem11.Discussing triggers of re experiencing trauma12.Discussing relationship issues including sexual relationships13. Working with friends and relatives14. Ongoing counselling- support in reintegration, healing and recovery; emotionalsupport during court appearances15. Handling special situations- sexual assault in women with physical, intellectualand psychological disabilities16. Training, Supervision and support for staff handling sexual assault and theimportance of working in a team17. Helping health facilities in developing mental health intervention services fortrauma476


APPENDIX 9TRANSCRIPT OF INTERVIEW OF A TRAFFICKED GIRLQ: csVk vkidk D;k uke gS\Girl: xaxk (name changed)Q: rks vki -----dh gSAGirl : gk¡ thAQ: vkSj ----------------- esa csVk rqe dgk¡ ds gksAGirl: …… esa esajk xkWo dk uke esjs --------------- gSAQ: --------------- oks dgk¡ ----- ds ikl gSAGirl: ugha] ---------- dh lkbZM esa gSaAQ: --------dk eryc ;s ----- ds iklAGirl: ugha eSa rks---- dh gwW ysfdu T;knk ?kqeh fQjh ugha gwWAQ: fQj rks rqEgs ekywe Hkh ugha gSAGirl: ugha ekywe ugha gSA bruk gh irk gS fd Fkkuk dgk iMrk gS ;s ftyk dgk¡ iMrk gS ;s gh lc irkgSAQ: bruk irk gSA ftyk D;k gS\Girl: -------------Q: -----------vPNk vPNkQ: rks csVs rqEgkjs eryc ekrk firk gS\Girl: gk¡ thAQ: vkSj rqEgkjs HkkbZ cgu gSAGirl: gk¡ thAQ: fdrus HkkbZ gS csVk\Girl: gekjs rks pkj HkkbZ pkj cgu gSAQ: pkj HkkbZ o pkj cguAGirl: gk¡ thAQ: vkSj csVk firkth D;k djrs gS\Girl: yksgs dk dke djrs gSAQ: gS\Girl: yksgs dk dke djrs gSAQ: yksgs dkAGirl: thAQ: yksgs dk eryc oks [kfjnrs gS ykSgkA yksgs dk dke eryc ykSgkj dk dke djrs gSAQ: rks csVk vc eq>s ;s crkvks fd tc rqe ?kj esa tc Fkh NksVh cPph Fkh rc crkZo rqEgkjs ek¡ cki dkrqEgkjs izfr dSlk Fkk csVk\Girl: vPNs yxrs FksAQ: vPNs djrs Fks\Girl: gk¡ thAQ: vkSj fQj rqe Ldwy xbZa\Girl: gkW¡a th Ldwy tkrh FkhAQ: Ldwy Hkh tkrh FkhA vPNk dkSu ls Ldwy eas xbZ csVk\Girl: eSa ljdkjh Ldwy esa i


Girl: thAQ: vPNk eq>s crkvksa ogkW is vkids tks Vhpj Fks ;k v/;kid Fks oks dSls yxs rqEgsa\ vPNs yxsAGirl: vPNs yxsAQ: vPNs yxs\Girl: g¡wWAQ: vPNk ogk¡ [kwc [ksyrh Fkh rqe\Girl: ugha i


feysaxsaA vPNh txg jgus dks feysxhAGirl: gk¡ thAQ: vPNh txg feysxh] vPNs diMsa feysaxsa] vPNs lkFkh feysaxsa ,slk dqN dgk\Girl: gk¡ th] mu yksx eryc lc ?kj esa gh lc dqN dke djuk iMrk gS ?kj esa gh jguk iMrk gS lcyksx vPNs yksx jgrs gSA lc yksx ,slk cksykAQ: ,slk cksyk] vPNk rks fQj ;s csVk ;s tks vkneh gSA bldk uke crk ldrh gks rqeAGirl: tks esjs dks fnYyh ls ysds vk;k gS]Q: ughaGirl: tks esjs dks xk¡o ls ysds vk;k gSA mldk rks foØe uke gSAQ: foØe uke gS\Girl: gk¡ thAQ: vkSj ;s foØe eryc rqedks ysds x;k ;k vkSj Hkh yMfd;ksa dks ysds x;k\Girl: vkSj Hkh yMfd;ksa dks yxk;k Fkk ij esjs dks fnYyh vkus ds ckn esa oks yMdh ykrk gS irk pykeq>sAQ: eryc] rqedks oks vdsys ysds vk;kAGirl: gk¡ thA ogkW ls eq>s vdsys ysds vk;kAQ: vPNk rks xkWo ls rqedks oks vdsys ysds vk;k rks D;k ;s jsy esa ysds vk;k\Girl: gk¡ thAQ: Vªsu esaAGirl: ***s fnu yxrs gS Vªsu esaAQ: gk¡----- ;s rks yEck lQj gSAGirl: gk¡ thAQ: gk¡ rks rqeus jkLrs esa [kkuk okuk [kk;k ;k ughaAGirl: [kkuk okuk rks f[kyk;k mu yksx usAQ: mu yksxks us eryc oks vdsyk Fkk ;k vkSj Hkh yksx Fks\Girl: muds lkFk esa ,d yMdk Hkh FkkAQ: dkSu oks foØe ds lkFk\Girl: foØe ds lkFk irk ugha mldk Hkfrtk Fkk] D;k Fkk mldks eSa ugha tkurh dkSu FkkA ysfdu lkFk esaFkk oks yM+dkAQ: yMdk\Girl: gk¡ thAQ: vPNk foØe vkSj ;s tks Hkfrtk tks gSA jsy esa tc vkidks ys vk jgs Fks rks rc D;k dksbZ cqjh crkZooxSjkg fd;k bu yksxks usAGirl: ughaA dqN cqjk ugha fd;k ij vkrs VkbZe ftl fnu geus fnYyh vkus ds fy, Vªsu idM+Ukk Fkk mlfnu Vªsu NwV x;k vkSj ge yksx ogkW LVs’ku ij :ds Fks ogkW is muds fj’rsnkj yksx jgrs FksA oksyMdk dk nhnh yksx jgrs FksA rks mlds ?kj esa :ds Fks fQj lqcg mB ds ge yksx nwljh Vªsu idM+ds vk;saAQ: vPNkA tc fnYyh vk;sa fQj D;k gqvk\Girl: fnYyh ykds mUgksus esjs dks vkWfQl ugha NksM+k **** ds ?kj is NksM+kAQ: ****\Girl: gk¡ thAQ: **** D;k djrk gS\Girl: vkWfQl IyslesaV pykrk gSAQ: vPNk IyslesaV ,tsalh gS mldh\Girl: gk¡ thA mldk lxk NksVk HkkbZ gSAQ: dkSu\Girl: foØe dkAQ: vPNk vPNk foØe dk NksVk HkkbZ **** gSA vkSj **** tks gS IyslesaV ,tsalh fnYyh esa pykrk gSAGirl: gk¡ th] fnYyh esa ugh ¼xqMxk¡ok½ esa pykrk gSA479


Q: ¼xqMxk¡ok½ esa pykrk gSa\ rks csVk oks **** us rqels D;k iwNk\Girl: esjs dks dqN ugha iwNk mUgksus cl dke yxk;k FkkAQ: oks dke dgk is yxk;k csVk rqEgsa\Girl:***** esa yxk;k FkkAQ: **** ;s gS dgk¡ fnYyh eas\B: ;s ***** ds ikl gSaAQ: ***** ds ikl\Girl: eq>s ugha irkAQ: vPNk vPNk pyksaA ***** esa csVk D;k dke Fkk rqEgkjk fdl dke is yxk;k\ dkSu ysds x;k rqedksogkW is\ ****AGirl: **** us ogk¡ is NksM+us ds fy, x;k fQj ogkW ls dfe’ku iSls ysds vk;kA fQj ogk¡------Q: eryc tc ogkW is x;k] mlus rqedks ogkW is NksM fn;k- vkSj muls iSls ys fy,s\Girl: gk¡ ogkW is mu yksx oks eSMe yksx iwNsa ds dke djsxh ;k ugha djsxhA eSa bruk nwj ls vkbZ gwW xkWols rks dke rks d:Waxh ukA rks eSa cksyh gk¡ eSa dke d:WaxhAQ: vPNk oks eSMe FkhAGirl: gk¡ thA ogkW is tks dke djus ds fy, j[k jgs FksAQ: vPNk vPNk oks eSMe FkhAGirl: gk¡ thAQ: vPNk oks eSMe eryc oks D;k djrh Fkh dke eSMeAGirl: eSMe dqN dke ugha djrh Fkh] lkgc djrs FksAQ: lkgc D;k dke djrs Fks\Girl: oks rks eq>s ugha irkA lqcg oks 10-00 cts pys tkrs Fks jkr dks vkrs FksAQ: vPNkA jkr dks vkrs FksAGirl: gk¡ thAQ: fQj rqe ogkW is D;k dke djrh Fkh ?kj esa] ?kj esa dke djrh Fkh\Girl: gk¡ thAQ: vPNk ?kj esa D;k dke djrh Fkh rqe csVk\Girl: MLVhax] >kMw iks;k vkSj diM+s e’khu ls /kksrh FkhAQ: vkSj----Girl: diM+s vk;ju djrh FkhAQ: gS\Girl: diM+s vk;ju djrh FkhAQ: vk;ju djrh Fkh\ rks rqEgsa ;s lc ekywe Fkk dke ;k ogk¡ is lh[kk\Girl: lh[kkAQ: ogk¡ is\Girl: gk¡ thAQ: fdlus lh[kk;k\Girl: /khjs /khjs lh[k xbZA cl ,d gQrk rks yxrk gS dksbZ Hkh dke dks djus easAQ: cl flQZ ,d gQrs esa lh[k xbZ fQj rks rqe cgqr prqj gksA gSa cgqr prqj gks csVkA vkSj fQj ,dgQrs lh[k ds rqEgs tks gS oks [kkuk okuk nsrs Fks ;k ughaAGirl: [kkuk okuk rks nsrs FksA tc mu yksx [kkrs Fks rks mlh VkbZe is nsrs FksAQ: mlh VkbZe is nsrs Fks\Girl: gk¡ thAQ: vkSj [kkuk rqEgsa de nsrs Fks ;k Bhd nsrs Fks\Girl: [kkuk rks nsrs Fks mu yksx ,slk dksbZ ckr ughaA nsrs Fks ij nksckjk ugha iwNrs Fks vkSj [kk;sxh ugha[kk;sxhAQ: gw¡Girl: nsrs Fks cl ,d ckj mu yksx Mky ds nsaxsa vkSj clA480


Q: vkSj cl] vkSj rqEgsa vyx txg is fcBk ds fdpu esa ;k----Girl: gk¡ th] fdpu esa cSBkrs FksA ckgj cSBrh Fkh ysfdu oks yksx rks vius MªkbZax :e esa cSBrs Fks ukAQ: gk¡ gkW rks rqe ckgj cSB ds [kkrh FkhAGirl: gk¡ thAQ: rks fQj rqe vius /kks nsrh Fkh crZu\Girl: crZu rks vyx ls /kksrh Fkh ckdh lkjk ?kj rks /kksuk iMrk FkkAQ: muds crZu rqe /kksrh Fkh\Girl: gk¡ th] MLVhax >kMw ikspk] crZu---Q: lc rqe djrh Fkh\Girl: gk¡ thAQ: rks rqEgsa fdrus iSls efgus ds fy, mUgksus j[kkAGirl: ogkW dk rks eSa Hkwy tk jgh gwW ysfdu oks pkj vkl ikl yxk;k Fkk mu yksxAQ: gS\ 4000 ds vkl iklAGirl: 4000 yxk;k Fkk ,slk yx jgk gS ysfdu eSa ogkW ------- okyk Hkwy tk jgh gwWA fdruk esa yxk;k Fkk vkSj---Q: ysfdu rqEgsa dqN Hkh iSls fn;sa ;k ugha fn;k-\Girl: ugha ------ okyk ,d Hkh iSlk ugha fn;kAQ: ,d Hkh ughaAGirl: ughaQ: vkSj oks- oks- tksGirl: esajs lkeus mUgksus tkds] esjs lkeus mUgksus tkds ysds vk;k cksyk ds esjs dks dke gS t:jh dke gScksy ds ykrk FkkA nks] rhu ckj ysds vk;k fQj---Q: ugha ugha erycA lcls igys ------ dh ckr crkvksa ftl ?kj esa rqe FkhAGirl: gkW gkW mlh ?kj dh crk jgh gWWWWwAQ: ogkW is eryc rqEgs rks rqEgs rks ;s yxrk gksxk efguk gks x;k eq>s iSls feysaxsaA rks rqeus iwNk ughaekrk th lsA fd ekrk th iSls dc nksxhAGirl: oks rks cksyrh Fkh eSMe ds lkjs iSls bDVBs ys tkbZ;ksaaA vxj iSls ns nwWaxh rks Hkkxus dk Mj gksrk gSuk mu yksx dks ’kd djrs gS fd yMdh dks iSls ns nsaxsa rks Hkkx tk;sxhA blfy, mu yksx esjs dksiSls ugha nsrs Fks efgus esaAQ: rks dgrs Fks fd lc bDVBs djds ysds tkvksaAGirl: gk¡ thAQ: ,d lkFk tc tkvksaxh rc ns nsaxsaAGirl: gk¡ thA tc tkvksxh rc nsaxsaAQ: rc nsasaxs\Girl: gk¡ thAQ: ysfdu rqEgsa fn;k gh ugha\Girl: eSMe yksx rks lkgc yksx rks fn;s FksA lkjs iSls nsaxsa cksys Fks ij **** esjs lkeus rhu ckj ds pkj ckjysds vk;k esjs lkeus iSlsAQ: oks tks rqEgkjs iSls Fks oks **** ys x;kAGirl: gk¡ thAQ: vkSj ysfdu oks rqEgsa dqN ugh fn;k\Girl: ugha fn;kAQ: rks rqEgs cqjk yxk gksxk\Girl: oks rks Hkqxruk gh iMkAQ: Hkqxruk iMk uk\Girl: thAQ: rks oks **** us rqels D;k dgk fd eSa ;s iSls rqedks ns nwWaxk\Girl: ns nwWaxk cksykAQ: fd tc rw tk;sxh ogkW is rc eSa ns nwWaxk\481


Girl: ml VkbZe is lkjs iSls ugha yk;k FkkA rhu ckj esjh lsyjh mBk ds yk;k FkkAQ: D;k\Girl: rhu ckj tkds lsjyh mBk ds yk;k Fkk esjkAQ: lsjyh eryc\B: Salary..Q: Salary ysds vk tkrk Fkk\Girl: oks esjk efgus ds iSlsAQ: ysfdu rqEgsa ugha fn;k\Girl: ugha fn;k vkSj esjs dks fudkyk 10 efgus ds cknA 10 efgus es esjs dks fudkykAQ: fdlus\Girl: **** us vkSj---Q: fudky fn;k\Girl: fudkyk ogkW ls vkSjQ: oks eryc ;s tks eSMe vkSj oks Fks mUgksus ugha fudkyk\Girl: ugha mu yksx NqVVh ns fn;k cksyk fudky jgs gS rqedksAQ: fdUgksus cksyk\Girl: **** us eq>s ogkA mu yksx eSMe us NqVVh ns fn;k uk eq>sA rks eS fnYyh vk xbZA eryc eSa vkfQl vkxbZAQ: eryc oks NqVVh fn;k mUgksus rqedks vkKk----Girl: tkus ds fy, cksy fn;kAQ: fd rqe vc tkvksa\Girl: rqe tkvksa ugha] oks ysus ds fy, vk;k Fkk **** ysus ds fy, vk;k Fkk ?kjQ: vPNk] ?kj\Girl: gk¡ thAQ: vks vPNk] rqEgsa ?kj okil ys tkus ds fy, tSls\Girl: ugha] vkWfQl ys vkus ds fy,A dksBh x;k Fkk eq>s vkWfQl ys vkus ds fy,B: **** basically bldks ?kj ls fudky ds dgk fd eSa bldks okil ,tsalh ys tk jgk gwW IyslesaV,tsalhAQ: ysfdu IyslesaV ,tsalh eryc bldh employment oks vaDy vkWaVh ls [kRe gks xbZAB: vaDy vaVh eryc budk ,d flLVe gksrk gS fd eS ;s yMdh ns jgk gwW vkSj eS bldks cny Hkhldrk gwW vkSj ;s esjh xkjUVh gS vxj ;s cny xbZ rks eS nwljh yMdh ns nwWaxkA Like contractlabourQ: Bhd eryc cny xbZ rks eS nwljh ns nwWaxkA rks mUgksus dgk gksxk fd ilUn ugha gSaAB: ugha ugha ,slk ugha gqvk ljAQ: ,slk ugha gqvk\B: blds dsl es D;ksfd yxHkx ,d lky gksus yxk FkkAQ: gk¡B`: rks blfy, oks ;s dgds yk;k fdQ: dh HkbZ tS ls ;s okil ysds tk jgk gSAB: gk¡ thA As we will progress we will also narrate that he had said that Iam taking you home but he didn’t take herQ: gk eSa le> x;k] ,sls fd budks fd tSls rqe okil ?kj tkvksxh] rks blfy,s oks rqedks ogkW ysdjvk;k ,tsalh esGirl: gk¡ thAQ: ,tsalh esa ysds vk;kA cksyksAGirl: esjs dks ogkW ls ysds vk;k vkWfQl esaAQ: vkWfQl esaAGirl: thA482


Q: xqMxkWaok esaAGirl: xqMxkWaok esa ysdj vk;k fQj eSus cksyk ds eq>s ?kj tkuk gSA eq>s iSls ns nksA rks cksyk fd vHkh geyksx xkWao tk,saxsa DVBk eryc ,d efgus ckn ge lkjs ?kj tk jgs gSA rks rqe Hkh ,d efgus dkedj yks fQj lkjs ?kj tk;saxsa rqe Hkh gekjs lkFk pyh tkukAQ: lkjs eryc vkSj Hkh Fks rEgkjs tSls cgqr yksxAGirl: ugha] mudk choh cPps Fks ukAQ: vPNk vPNk] ,sls dgk Fkk mUgksusAGirl : gk¡] rks choh cPPks Fks mu yksx] lkjs tk,saxsa ge yksx rks rw Hkh ,d efguk dke dj ysa fQj rqEgs Hkh ystk,saxsa ge gekjs lkFk esaAQ: Bhd gSA fQj D;k gqvk\Girl: fQj esjs dks ,d efgus cksy djds dke yxkus ds fy, iatkc ys x;kAQ: oks iatkc ys x;k\Girl: gkW thAQ: flQZ ,d efgus ds fy,AGirl: ,d efgus ds fy,A esjs dks cksyk ,d efgus dke yxkÅ¡xkA eSus Hkh cksyk fd ,d efgus ds fy, dkeyxk jgs gks esjs dks rks esjs dks xqM+xk¡o ds vUnj gh dke yxk nks eSa vkidks dksbZ f’kdk;r ughaigqWpkÅWaxhAGirl: rks mUgksus cksyk fd Bhd gS eS xqMxk¡ok ds vUnj gh yxk nwWaxkA igpku esa gh yxk nw¡xk cksykA vkSjesjs dks ogkWa itakc ys x;kAQ: iatkcGirl: gk¡ th] eq>s ugha irk Fkk fd mUgksus esjs dks iatkc ysdj tk jgs gSAQ: vPNk] rks rqe eryc jsy esa xbZ ;k cl esa\Girl: cl esaAQ: vkSj fQj iatkc esa dgk¡ xbZ\Girl: cl esa x,s] ogk¡ vEckyk cksyrs gSAQ: vEckykAGirl: gkWa th] ogkW LVs’ku gS ogkW mrjs Fks] ogkW jkr gks xbZ fQj esjs dks jLrs is taxy esa lqyk;k Fkk jkr dksfQj-----Q: dkSu **** us\Girl: **** usA fQj lqcg mBds 4-00 cts esjs dks dksBh igqWapk;k tkya/kjAQ: tc taxy esa lqyk;k rks **** us dqN rqEgkjs lkFk cykRdkj ;k dqN ,sls djus dh dksf’k’k dh\Girl: dksf’k’k ugha mUgksus fd;kA xyr fd;kAQ: xyr fd;k! dkSu **** us\483


Girl: **** us]Q: [kqnAGirl: thQ: gwWA vkSj rqe dqN dg ugha ikbZAGirl: eSa rks vdsyh Fkh vkSj vxj dqN cksyrh rks oks dqN dj nsrk rks eq>s rks Mj FkkAQ: gkWa] gkWaA vkSj fQj rqe dks jkr dks ;s djus ds ckn tks gS fQj oks losjs dksBh dgkW ys x;k\Girl: tkyU/kjAQ: tkyU/kjGirl: thaA xqtjky uxjAQ: gSa\ xqtjky uxjAGirl: gkWQ: vPNkA vkSj ;s xqtjky uxj esa fQj csVk fdl dksBh esa rqEgs yxk;k] D;k dke\Girl: edku uEcj rks--------Q: ;kn ugha gS---Girl: ;kn ugha gS] fy[k ds j[kk gqvk gS ?kj is vkWfQl esaAQ: vPNk]Girl: eryc HkS;k ds ?kj esaAQ: HkS;k ds iklAGirl: gWwW th rks Mk;jh esa fy[kk gqvk gSA vHkh ;kn ugha vk jgk gS uEcj fdruk FkkAQ: gwWA vkSj fQj rqe ogkW is tc ml ?kj esa D;k ogkW ij dkSu jgrs Fks ml ?kj esaAGirl: ml ?kj esa vaDy vaVh vkSj nks HkS;k vkSj nks HkkHkh ,d cPpk FkkAQ: vPNk vkSj iwjk dke rqEgs djuk Fkk ?kj dk dkeAGirl: eS MLVhax vkSj NksVk eksVk dke djrh Fkh ckgj ls MLVhax eS [kqn djrh FkhA oks dHkh vkrh Fkh ikspkyxkus okyh vkSj dHkh ugha vkrh Fkh rks lkjk dke dHkh eq>s gh djuk iMrk FkkAQ: vPNk vkSj [kkuk&okukAGirl: [kkuk okuk oks yksx [kqn djrs FksAQ: vPNk--- oks rqEgsa [kkuk f[kykrs Fks\Girl: gkWa th]Q: vPNk rks ogkW is ml ?kj esa rqEgkjs lkFk dksbZ cykRdkj dqN ,sls gqvkA484


Girl: ugha] ogkW vPNs FksAQ: vPNs FksAGirl: thaQ: vPNkQ: fQj D;k gqvk csVk] ogkW is dksbZ ckr gqbZ\Girl: ugha ogkW dksbZ ckr ,sls ugha gqvk gSA ogkW eSa vPNs ls dke fd;kA vPNs ls ,d lky dke fd;kA vPNsls dke fd;kAQ: ,d lky------ fdruk\Girl: ,d lkyAQ: ,d lkyAGirl: gkW th]Q: vkSj ogkW is fdrus iSls fn,s FksGirl: 3000-00Q: iSls rqEgs nsrs Fks os yksx\Girl: ugha mu yksx bDVBs nsaxsa cksysA ogkW dk rks lkjk iSlk esjs lkeus fxurh djds oks **** ds gkFk esa iSlsidMk,sAQ: eryc igys gh idM+k fn,sAGirl: igys ugha tc lky iwjk gqvk rksAQ: ,d lky ds ckn oks bDVBk ns fn;kAGirl: gkW thAQ: vkSj rqe--- rks rqe losjs fdrus cts mBrh Fkh csVkAGirl: 8-00 ctsAQ: 8-00 cts ls dke djrh Fkh\Girl: mu yksx ysV mBrs Fks uk blfy,AQ: vPNk] vkSj jkr dks fdrus cts rd dke djrh Fkh csVk\Girl: 11-30 cts rdAGirl: dHkh 12-00 Hkh ct tkrk FkkA ysV [kkuk [kkrs Fks rks 12-00 ct tkrk FkkAQ: vPNk tks ;s HkS;k HkS;k Fks mudh D;k mez Fkh ogkW is\Girl: ,d rks esjs tkus ds ckn ’kknh gqvkA eSa xbZ mlh efgus ’kknh gqvk vkSj nwljk dk ,d cPPkk Fkk


Q: vPNk] rks oks tks nksuks HkS;k Fks oks rqEgkjs lkFk dksbZ cqjk crkZo ugha fd;kAGirl: ugha]Q: oks vPNs FksAGirl: vPNs FksA esjk rks cMk okyk tks csVk Fkk eryc ftldk csVk Fkk oks gh esjk lkgc cuk gqvk FkkAQ: vPNk vPNkGirl: gkWa]Q: ftldk cPpk Fkk\Girl: gkWQ: ml cPps dh Hkh ns[kHkky rqe gh djrh Fkh\Girl: ugha] gkWa dHkh dHkh ns[krh Fkh ysfdu mldk ns[kuk esjk dke ugha FkkAQ: vPNkQ: vPNk tc ,d lky [kRe gks x;k fQj D;k gqvk\Girl: fQj ,d lky [kRe gks x;k esjs dks ysus ds fy, x;k **** vk;kQ: x;k **** AGirl: thaaAQ: rks fQj **** us D;k fd;k\Girl: **** us ogkW ls lkjs iSls mlh VkbZe fxuok ds] lkjs iSls fxuok ds mUgksus gkFk es ys fy;kAQ: vius gkFk esa\Girl: vius gkFk es ys fy;kA esjs dks lkgc us cksyk fd irk ugha ;s vkneh nsxk fd ugha nsxk rks 6000 rqenks efgus dk 6000 rw vius gkFk es j[k ysA bls er crkuk fd rsjs gkFk esa 6000 iSls gSAQ: vPNk vPNk rks rqeus vius ikl j[k fy;kAGirl: vius ikl 6000 iSls j[k fy,s nks efgus dkA fQj ckdh iSls **** ds gkFk esa x;kAQ: Bhd gS fQj D;k gqvk\Girl: fQj mUgksus esjs dks ysds vk;kA xqMxkWaokAQ: okil ,tsalh esaAGirl: th] ,tsalh esaAQ: vPNk rks rqe tSls x;s oSls gh vk,sAGirl: thA tS;s x;s oSls gh vk;sAQ: fQj :duk iMk jkLrs esa dghaA486


Girl: ugha vkrs VkbZe dgha Hkh ugha :duk iM+kAQ: vPNk rks lh/ks vk x,sAGirl: th] lh/ks vk x,sAQ: fQj x;k gqvk xqMxkWaok esa\Girl: fQj xqMxkWaok] esjs dks xqMxkWaok esa dksBh ls fudkyk vkSj ml VkbZe mUgksus tkucw> djds Hkst fn;kFkk vius choh cPps dks ?kj fQj vkWfQl esa eS vdsyh FkhA xqMxkWok esa eryc ?kj is eS vdsyh Fkh vkSj dksbZ Hkhugha FksAQ: rks rc D;k djrs Fks ;s\Girl: eSa muds ?kj is 17 fnu FkhA 17 fnu esa ls 10 fnu ds djhc esjs lkFk mUgksus xyr fd;kAQ: 10 fnu\Girl: thAQ: gj jkst] dkSu ;s **** us\Girl: th **** usAQ: vkSj ;s ,d ckj djrk Fkk jkr dks ;k 2&3 ckj\ dksbZ ?kcjkvksa ugha blesa D;k ckr gSA D;k ’keZ dhckr gS ,sls er ?kcjkvksa] fgEer j[kksAB: ge mls tsy HkstsaxsA Bhd gSA rqe fpUrk uk djks fcYdqyAQ: rqe fpUrk gh uk djksA bu lcdks rks lcd lh[kkuk gS ukA rqe crkvksa csVk 2&3 ckj djrk FkkAGirl: thQ: vkSj fQj dgrk Fkk fd pqi jgks fdlh dks crkuk ughaAGirl: th] dgrk Fkk fd vxj fdlh dks crk,sxh rks eS rqEgsa ?kj Hkh ugha igqWpkÅ¡axk rqEgsa iSls ugha nwWaxkA ,slscksyrk FkkAQ: Mjkrk Fkk\Girl: Mjkrk FkkAQ: fQj D;k gqvk 17 fnu ds cknAGirl: fQj 10 fnu ds ckn mldh choh dks eSus Qksu djds crk;k lkjh ckr ds ,sls ,sls dj jgk gS cksydsA rks mldh choh rks xkWao ls vk xbZAQ: oks vk xbZAGirl: th] xkWao ls vk xbZA fQj mlds ckn es nksuks fey djds esjs dks yM+kbZ djrs FksA mudh choh xyrlksprh Fkh eq>s fd esjs ifr dks rqe viuh rjQ [khap jgs gksaA ,sls cksy ds oks ekjihV djrh FkhAQ: rqEgsaA487


Girl: eq>ls fQj mlds ckn esa tc choh vk xbZA mlls igys Hkh **** us eq>s] muds lkFk eS yMrh Fkh uk esjslkFk xyr djrk Fkk rks eS yMrh Fkh muls rks esjs dks /kedh nsrk Fkk fd dgha is ekj nwWaxk ;k rqEgkjs ?kjtkvksxh rks--- Hkst ugha---- igqWpus ugha nwWaxkA cksyrk FkkA igqWpus ugha nwWaxkAQ: fQj D;k gqvk\Girl: fQj mldh choh vk xbZA fQj 10 fnu NksM ds ckdh jkst yMh oks eq> ls jkst ekjihV pyrk Fkkgekjs rhuks ds chpA mu nksuks fe;k choh ,d lkbZZM gks tk,saxsa eq>s ekjihV djrs FksA mlds ckn esa eS ,d fnuNr esa xbZ FkhA rc----Q: Nr esa\Girl: th] ,d fnu muds ?kj is esageku vk,s gq,s FksA rks mldk NksVs okyk cPPkk Fkk rks mldks xksn esaysdj eSa Åij xbZA fQj eSa jks jgha Fkh fd eq>s ?kj tkuk gS eq>s ?kj HkstksA jkst jkst ,sls ekjihV dj jgs gkseq>s A blls vPNk gS eq>s ej tkuk pkfg,sA rks mUgksus cksyk fd ejus dk ’kkSd gS rks rqEgsa vHkh /kDdk nsdsA/kDdk ns nwWaxk rks vHkh fxj ds ej tk,sxhA ,sls cksyk FkkA eq>s gkFk yxk;k Fkk ij /kDdk ugha fn;k FkkAQ: fQj D;k gqvk\Girl: fQj esjs dks cksyk dh tkvks uhps esgeku vk,s gS rks uhps lcdks [kkuk cukds f[kykvksaA eSus dgkW eSugha cukÅWaxh [kkuk esjk fj’rsnkj ugha gS vkidk fj’rsnkj gSA esjs dks [kkuk ugha cukuk vkSj uk gh [kkuk eq>sArks mUgksus gkFk esjs dks idMk vkSj dgk fd tkvks [kkuk cukus ds fy,A fQj eS uhps vk xbZ [kkuk cuk;kAmlds nwljs rhljs fnu mu yksx jkst yMkbZZ >xMk ns[k ds mu yksx pys x,s tks esgeku vk,s Fks rks mUgksusesjs dks cksyk fd rqe ;gkW ls pyh D;ks ugha tkrh gS jkst jkst yMkbZ >xMk esa dSls jg jgh gS rwW buds ;gkWArks eq>s rks tkuk gS ij eS dSls tkÅWaxh\ esjk nks lky dk iSlk [kk;k gqvk gSA fQj esjs dks iSls ugha nsxk eSdgkW tkÅWaxhA esjs dks fnYyh ysds vk,s gS esjs dks uk txg dk irk gS uk tkus dk irk gS dqN Hkh eq>s ughairk gSA eq>s ugha irk gS dgkW tkÅWaxh D;k d:WaxhA rks mu yksx cksys dgkW dh jgus okyh gS rwW\ eS cksyh eS rks¼jkT; dk uke½dh jgus okyh gwWA rks mu yksx Hkh ckssys ge yksx Hkh ¼jkT; dk uke½ds gS rks gekjh txg dqNjkst dke djsxhA fQj ge lkFk esa ?kj tk,saxsA mu yksx Hkh ,sls cksysA fQj Qksu uEcj fn,s cksys fd **** dkser crkuk fd gekjs Qksu uEcj rqEgkjs ikl gSA fQj gekjs ikl vk tkuk ,sls cksys FksA rks Bhd gS eSa vktkÅWaxhA eS vk tkÅWaxh cksyhA fQj Qksu uEcj fn,s Fks mldks Nqik ds j[kh Fkh **** ls cpk dsA fQj eSa ,l-Vh-Mh- ls dkWy fd;k rks mldh choh us ihNs ihNs xbZ ml fnu dkWy ugha dj ikbZA irk ugha dkSu lk R;kSgkj Fkkrc mUgksus cksyk fd pyks ?kwekus ys tkrk gwW **** usA rks esjs dks Hkkxuk Fkk ogkW ls fd mu yksx cqyk,s Fks ukgekjs b/kj vk tkus ds fy,A rks Bhd gS m/kj tkus ds fy, eS cksyh ?kweus ugha tkÅWaxh ?kj is jgwWaxh mu yksxdks cksyhA rks le> x;k **** us fd HkkxsxhA vkSj ckgj ls eq>s rkyk ekj ds viuh choh] vius choh cPps dks?kqekus bf.M;k xsV dh rjQ ys vk;k Fkk A fQj ’kke gks x;k Fkk fQj eS a vUnj gh Fkh dejs ds vUnjA vkdsnjoktk [kksysA mlds 2&3 fnu gks x,ss ds 4&5 fnu gks x,sA fQj eSus ,l-Vh-Mh- ls dkWy fd;k fd esjs dkstkuk gS ;gkW ugha jguk gSA rks mu yksx us cksyk fd Bhd gS fQj gekjs rjQ vk tkvksaA ml fnu **** us esjsdks lqcg lqcg ftn fd;k dh pyks iatkc pyrs gSA oks tgkW tkrk Fkk ogkW ys tkrk Fkk fd tgkW yMdhNksMus tk,sxk rks mlds lkFk es ys tk,sxkA vkSjQ: ;kuh ds cgqr ,sls yMfd;ksa dks djrk Fkk ;s gh dke\Girl: esjs dks rks ugha irk ij ,d yMdh Fkh mlls Hkh ,sls gh djus dh dksf’k’k dj jgk FkkA ij eq>s ughairk D;k djrk FkkAQ: ugha ugha ij oks dke ;s gh djrk Fkk fd yMfd;ks dks ys vkuk dke is yxkuk\Girl: th]Q: yMfd;ks dks ys vkuk dke is yxkuk muds iSls gMi ysuk vkSj fQj mudks ,sls cykRdkj djuk\Girl: th]Q: fQj D;k gqvk fQj D;k gqvk\488


Girl: fQj eSus euk fd;k fd vkt rks eS iatkc ugha tk ikÅWaxh rks vkt eSa ?kj is jgwWaxh vkt eSA diM+soiM+s /kksÅWaxh vkt eSa ?kj is jgwWaxhA dgha Hkh ugha tkÅWaxh cksyh mudks rks eq>s 10 :i;s iSls nsdstkvksa rks esjs gkFk eS iSls ugha nsrk Fkk ukA rks 10 :i;s iSls nsds tkvksa eq>s ?kj esa gh jguk gS dqN[kkuk gS eq>s fcLdqV oxSjkgA rks fQj 10 :i;s eSus mlds gkFk ls fdlh rjg fudky fy;kA fQjmlh 10 :i;s ls eSus ,l-Vh-Mh- ls dkWy fd;k m/kj eq>s tkus ds fy,A eS m/kj tkÅWaxh cksy djdsA,l-Vh-Mh ls rks mu yksx us eq> ls dgkW fd vk tkvksa ge yksx ’kadj pkSd esa jgsaxsA rks ’kadj pkSdogkW rd gS fjD’kk esa vk tkvksaA rks eSa fjD’kk esa pyh xbZ ogkW is ’kadj pkSd ds iklAQ: fQj D;k gqvk\Girl: fQj **** dk lkyk---- fQj eS ?kj ls fudyh uk xqMxkWo ls fudyh rks ml VkbZe dks xqMxkWao ds vklikl ds lkjs yksx eq>s ns[ksA vkSj tks **** dk lkyk Fkk mUgksus esjs dks Vksdk mu yksx esjs dks Vksdkfd D;ksa tk jgh gS er tk vdsays dgk tk,sxhA vkt ?kj is **** ugha gS vxj ugha pkgrh gks rks ercrkuk **** dks fd eS tk jgh gwW dgkW tk jgh gwW mldks eq>s ugh irk ij eS tk jgh gwWA **** dks ughacrkuk vxj eS jkst jkst ,sls djrh jgwWxh rks eS ?kj Hkh ugha igqWp ikÅWaxhA vkSj **** dks crkvksxs rksesjs dks fQj ls ys vk,sxk vkSj fQj irk ugha fdrus lky j[ksxkA fQj eS pyh xbZ ogkW ls eS ’kadjpkSd es cSBh Fkh vkSj mu yksx dks dkWy fd;kA esjs gkFk es eksckbZy Fkk rks mu yksx ls Nqik ds j[khFkhAQ: eksckbZy fdlus fn;k\Girl: **** us fn;kAQ: rqEgsa eksckbZy fn;kAGirl: thAQ: vPNk bl eksckbZy ls rqe vius ekW cki ls ckrphr dj ldrh Fkh\Girl: ughaQ: D;ksafd muds ikl dksbZ eksckbZy ugha FkkAGirl: ugha eEeh ikik ds ikl dksbZ eksckbZy ugha FkkA vkSj dksbZ Qksu Hkh ugha vkrk Fkk eSus nks lky dkefd;k ysfdu --iatkc esa ,d ckj ds nks ckj vk;k Fkk eEeh yksx dk Qksu vkSj ugha vk;kAQ: rks fQj ;s eksckbZy ls rqe fdlls ckr djrh Fkh fQj-\Girl: **** ls cl mlh dk uEcj Fkk eksckbZy is vkSj fdlh dk uEcj ugha FkkA gj ,d----- dgha Hkh tk,sxk rksdkWy djrk jgsxk gj ,d lSds.M ds cknA vxj lkeus vk,sxk rks ckj ckj eksckbZy ls pSd djrkjgsxkA oSls NksMrk ugha FkkA ckFk:e tk,sxk rks ckFk:e lkFk ysds tkrk Fkk ckgj eq>s [kMk djs fQjoks vUnj tk,sxkA fQj dgha Hkh nqdku tk,sxk nw/k ysus] dqN ysus] lfCt ysus tk,sxk rks Hkh lkFk ysdstk,sxkA ,d ,d lSds.M ds fy, eq>s ugha NksM+rk FkkA lkFk ges’kk ?kqekrk FkkAQ: fQj D;k gqvk\Girl: fQj eSa ’kadj pkSd----Q: **** us rqels dHkh---------------- **** us rqels dHkh ;s dgk fd eS rqels ’kknh djuk pkgrk gwW\Girl: th dgkAQ: dgkWAGirl: th dgk489


Q: cgqr ckj dgk\Girl: mUgksus cksyk fd eSa ’kknh d:Waxk vkSj tc gekjs ,d cPpk gks tk,sxk rc eS rqEgs ?kj tkus nwWaxk cksykAesjs dks rqels ’kknh ugha djuk gSA eq>s ?kj tkuk gS esjs dks iSls ns nksA oks cksyk fd eS rqedks iSls ughanwWaxk tc rd ’kknh ugha djxh rc rd eS rqEgs iSls ugha nwWxk vkSj ’kknh ugh djsxh rks eS rqEgs uk rks’kknh djus nwWxk fdlh vkSj ls vkSj uk fdlh vkSj dk uke rqEgkjs ekRFks ij flUnwj yxkus nwWaxkA vxj,ssls djsxh rks eSa rqEgs ekj nwWaxk] ugha rks dkV ds Qsad nwWaxk] ugha rks rqEgkjs ?kj dks tyk nwWaxk eSA eSarks ,e-lh-lh- okyk gwW eS rqEgsa NksMwWaxk ughaA vc rd oks s ugha irkAQ: vPNk oks dgrk gS ,slsAGirl: th dgrk gSAQ: fQj D;k gqvk\ fQj rqe ’kadj pkSd vk xbZAGirl: fQj eSa ’kadj pkSd vk xbZ vkSj ogkW ls muds--- jathr uke dk Fkk **** dk lkyk mUgksus esjs dks cksykfd **** dks crk fn,s gS fd rw Hkkx jgh gSA eryc yksx >wB cksys esjs lsA **** dks fdlh us ugha crk;kFkk ij mudk lkyk jathr esjs dks tkdj cksyk fd **** dks crk fn,s gS ;s yksx us vkSj rqEgs s ugha eSa vki yksx ds lkFk ugha tkÅWaxhA eq>s m/kj ls ysus vk jgs gS cksys dh5 feuV esa igqWapus okys gS ’kadj pkSdA rks eS m/kj tkÅWaxh ysus ds fy, vk jgs gSA rks mUgksus jathr uscksyk fd ugha mu yksx ds igqWprs igqWprs rks b/kj ls igqWp tk,saxsA fQj mu yksx vk jgs gS rks BhdgS vkus nks mudks cksy nsaxsa fd ge /kksyk dWqvk esa igqWp x,s gSA /kkSyk dqWvk cqyk,saxsa mu yksx dkscksysA jathr us cksyk ,slsA rks Bhd gS /kkSyk dqWvk cqyk,saxsa rks esjs dks mu yksx dk jathr dk ckrlquds /kkSyk dqvWk vk xbZAQ: jathr ds lkFk xbZ rqe\Girl: **** dk lkyk Fkk ukA Hkkx ds fudyhAQ: tc Hkkx jgha Fkh--------Girl: rks ns[kk mu yksxks us----Q: rks jathr vius lkFk ysds x;k rqEgsa\Girl: lkFk esa ugha eSa /kkSyk dqWvk esa cSBh FkhAQ: cSBh FkhAGirl: th] fQj b/kj ls esjs dks ysus ds fy, vk jgs Fks fd gekjh rjQ vk tkukAQ: vPNk fQj\490


Girl: thQ: fQj D;k gqvkAGirl: fQj oks cksys rks rks eS mudk bUrtkj dj jgha Fkh mudk /kkSyk dqWvk esaA rks ;s yksx esjs ihNs ls buyksx jathr yksx vk x,sAQ: fQj D;k gqvk\Girl: fQj ;s yksx esjs dks cksys dh **** dks crk fn,s gS rqEgs ekj ihV djsxkAQ: fQj D;k gqvk\ fQj D;k gqvk\Girl: fQj eS mldk bUrtkj d:WaxhA eS vki yksx ds lkFk esa ugha tkÅWaxhAQ: fQj D;k gqvk\Girl: fQj cksyk fd mu yksx ds igqWprs igWprs cgqr VkbZe Hkh gks tk,sxk rks cksyk pyks /kkSyk dqWvk esaSorry D;k cksyrs gSA /kkSyk dqWvk esa pyks ogkw is ge cSBsaxsa mudks cqyk,saxsa fd ge /kkSyk dqWvk esa cSBsgSA rks Bhd gS mu yksx dk ckr lquds eSa vk xbZ /kkSyk dqWavkA /kkSyk dqWvk esa vk/kk& ,d ?k.Vk cSBsFks fQj eSus Qksu feyk ds mu yksx ls ckr fd;k fd ge rks /kkSyk dqWvk igqWp x,s gSA rks fQj iwNkfd ge yksx rks /kkSyk dqvk igqWp x,s gS rqe dgk ij gS lkWjh ’kadj pkSd igqWp x,s gS rqe dgkW ijgksA rks eSus cksyk fd eq>s rks b/kj ysds vk,s gS /kkSyk dqWvk esaA rks /kkSyk dqWvk esa vk tkvksa eSa ;gkW ijgwW rks eSus jathr ls ckr djk;k ;s yks eq>s rks ugh irk /kkSyk dqWvk dkSu lk txg cksyrs gSA rks vkickr djks muls eSus Qksu feyk;k rks mldks ckr djk muls rks jathr dks ckr djus ds fy, ns fn;kAfQj jathr us Qksu dkV ds nwljk uEcj feyk;kA mlls ftlls ckr djus ds fy, fn;k mlls ckrugha fd;k fQj nwljk uEcj Mk;y djds mUgksus nwljk yksx ls ckr fd;kA fQj ,d xkMh vk;k rksml xkMh es eq>s cSBk djds dksBh ys x,sAQ: dksbZ vkSj dksBh\Girl: dksbZ vkSj dksBh ys x,sAQ: dkSu jathr \Girl: thAQ: ----vkSj oks tks nwljs vkneh FksAGirl: thAQ: vPNk oks dSlh xkMh Fkh\Girl: OgkbZV dyj dk ekjkrh FkhAQ: ek:rh FkhAGirl: thQ: vkSj dkSu lh dksBh dgk Fkh ;kn gS rqEgsaGirl: olUr] olUr fogkj FkhQ: olUr fogkjGirl: dh lfjrk fogkj] irk ugha gSaA491


Q: vPNk dksbZ ckr ugha csVk] fQj D;k gqvk\Girl: fQj dksBh igqWpk,s oks yksx esjs dks cksys fd dke djsxh eSMe yksx esjs dks iwNsa fd D;k rw dkedjsxhA ugha jkLrs es eq>s lcls igys esjs ls loky fd,s fd rqEgkjk ?kj dgkW gS jathr yksxA rqEgkjk?kj dgk gS\ eSus lkjk crk fn;k fQj mu yksx esjs dks isij esa Hkj ds dksBh igqWpk,s vkSj fQj esjs dkseSMe us iwNk dh dke djsxhA rks gkW rks cksy fn;k fQj rqEgkjk D;k uke] crk;k esjk ;s uke gS xaxkA rks fdrus lky dke fd;k gSA nks lky dke fd;k fnYyhA dgkW dgkW dke fd;k\ ;s loky fd;kmUgksus ds D;k D;k dke fd;k] dgk dgk dke fd;k] rks eSus cksyk eSus iatkc esa fd;k vkSj n;kuUnfogkj esa fd;kA rks D;k D;k dke tkurh gS oks Hkh eSus crk fn;kA fQj mu yksx eSMe j[kus dkseq>s rS;kj gks xbZ fQjA mUgksus iwNk fd rsjs gkFk esa eksckZbZy gSaA eSus cksyk fd gkW esjs gkFk esa rkseksckbZy Hkh gS vkSj esjs ikl 8000 iSls gS cksyhA rks 8000 iSls gS vkSj eksckbZy gS rks ikl iSls vkSjeksckbZy nksuks jgsaxsa esjs ikl rks eS dke d:xhA vkSj eksckbZy vkSj iSls ugha jgsxk rks eS dke ughad:axh cksyhA rks bu yksx dks jathr yksx dks Hkh eS fo’okl ugha djrh Fkh uk D;ks vxj mu yksxdks eS eksckbZy iSls ns nwWaxh----------Q: vPNkAGirl: eSus euk fd;k iSls vkSj eksckbZy ugha NksMwWaxh rks eSMe badkj fd;k eSMe dke is ugha j[khAQ: fQj\Girl: fQj mu yksx us esjs dks fQj ls ?kqek fQjk dj xkMh esa dgk dgk ?kqek;s irk ugha eq>s ugha irkAdgk dgk ?kqek,saA fQj jkr dks 12-30&1-00 cts esjs dks ,d ?kj esa NksMs FksA ,d ?kj esa NksMs vkSj muyksx us cksys fd lqcgA ugha jkLrs esa tkrs VkbZe eSus cksyk fd eq>s ?kj tkuk gS dke ugha djuk gS rkseSus ftn fd;k fd esjs ikl brus iSls gS rks tkus ds fy,s eS gh fdjk;k nwWxh vkidks ysfdu eq>s ?kjNksM nks ¼jkT; dk uke½ NksM nks eq>saA rks mu yksx Bhd gS eku x,s fQj ,d ?kj esa ysds x,s jkrdks 12-30 &1-00 ct x;k FkkA rks ml ?kj esa nksuks jathr dk choh Hkh Fkk vkSj mlds lkFk esa ,dvkneh Hkh Fkk jathr ds lkFk esaA rks mu yksx eq>s ogkW is ml ?kj esa NksM ds x,s ogkW is ,d fe;kchoh Fks vkSj ,d cPpk FkkA ml ?kj esa esjs dks NksM ds mu yksx cksys fd----Q: dkSu yksx cksys\ jathrAGirl: jathrA mUgksus cksyk fd ge ¼jkT; dk uke½rq>s NksMus rks tk,saxsA ysfdu gekjs ikl rks cSx [kfjnusds fy, iSls ugha gS rks gesa 1000-00 iSls pkfg,sA jathr us cksykA rks eSus cksyk 1000 esa rks cSx ughavkrk gS oks rks 2&3 lkSa eas vk tkrk gS rks eS rks vkidks 1000 ugha 500 iSls nwaxh cksykA fQj eSusjathr dks 500 iSls fn;k] 1000 ugha fn;kA fQj mUgksus cksyk fd lqcg 6-00 cts mB dj rS;kj gkstkuk 8-00 ctsa Vªsu gS cksys mu yksx us jathr usA rks Bhd gS eSa lqcg mB tkÅaxh 8-00 cts rS;kj gkstkÅWaxhA fQj mu yksx cksys fd ge vk tk,saxs tYnh 6-00 cts rd rS;kj jguk gSA ugha rks 8-00 ctsdk Vªsu fudy tk,saxk fQj ge fdl Vªsu esa tk,saxsA rks Bhd gS eSa lqcg--- mu yksx eq>s NksM dj pysx,sa xqMxkWok] xqMxkWaok esa gh jgrs Fks uk oks yksx] jathr yksxA rks fe;k choh pys x,s vkSj eS ;gkW ijFkh ?kj is] fdlh ds ?kj esa NksMk FkkA rks lqcg eS mB ds ns[k jgh gwW 6-00 cts rks dksbZ vk;k gh ughaA;s yksx eq>s NksM x,s] eq>s Mj yx jgk gS eq>s NksM ds dgkW pys x,sA vk;k ugha AQ: ml le; ml ?kj esa dksbZ Fkk ugha\Girl: nks tu Fks uk fe;k choh Fks vkSj ,d cPpk FkkAQ: fQj D;k gqvk\ losjs dksbZ vk;k ughaAGirl: losjs 6-00 cts dksbZ vk;k gh ugh jathr Hkh ugha vk;k mldh choh Hkh ugha vk,sA fQj 8-00 cts vk,mu yksx usA fQj 8-00 cts esjs dks cksyk fd vHkh rd rS;kj ugha gqbZ gSA rks eSus cksyk fd eS rksrS;kj rks gks xbZ FkhA ij gqbZ gwWA ij vki yksx vk,s ugha lqcg 6-00 cts esjs dks cqyk,s FksA rks tYnhpyks Vªsu fudy tk,sxk 8-00 rks ct gh x,sA rks mu yksx esjs dks LVs’ku ys x,sA LVs’ku es oks yksxesjs dks tkrs tkrs cksys fd vHkh rks cgqr VkbZe gks x;k Vªsu rks fudy xbZ ge fdlesa tk,saxs cksysAfQj rks esjs fy, rks dksbZ jkLrk gh ugha fn[k jgk gSA Vªsu Hkh fudy x;k vkSj eS dke ij Hkh ugha492


yxh gwWaA mu yksx xqLlk Hkh dj jgsa gSA vc eSa dgha ykSV Hkh ugha ldrh dgha tk ugha ldrhA fQjmu yksx us ge 12-00 cts dk Vªsu gS rks ge fVdV djus ds fy, tk jgs gSA cksysA rks eS vkSj mldhchoh xkM+h esa Fks] xkM+h esa FksAQ: jathr dh choh\Girl: thAQ: jathr dh choh vkSj oks xkMh esa Fks rqEkAGirl: eS vkSj ml jathr dh choh xkMh esa FksAGirl: fQj mu yksx us ml MªkbZoj vkSj jathr nksuks pys x,s fVdV dkVus ds fy,sA rks esjs dks rks cksys Fks¼jkT; dk uke½ ys tk,saxsaA ¼jkT; dk uke½ NksM nsaxsa rks eq>s yxk ¼jkT; dk uke½ tkus ds fy, fVdVdkV jgs gksaxsaA ysfdu mu yksx us esjs dks] esjs dks vkSj ml MªkbZoj ,d tks Fkk mlds lkFk cEcbZHkstus ds fy, fVdV dkVk vkSj nksuks vius fe;k choh ds fy, ¼jkT; dk uke½ tkus ds fy, fVdVdkVkA fQj fVdV gks x;k gS cksysA fQj mlds nwljs fnu eryc fVdV rks gks x;k Fkk ogha LVs’ku isHksS;k feysA fQj HkS;k us esjs l iwNk fd dgkW ;gkW dgkW ?kwe jgh gSA HkS;k dks tkurh gwW uk ogkW gekjsxkWo ds fj’rs ds ---Q: dkSu ls HkS;k\Girl: tks vHkh cSBs Fks vaDyQ: oks dkSu FksQ: vPNk rks oks HkS;k vkidks feysAGirl: thQ: rks fQj D;k gqvk\Girl: HkS;k mldks tkurs Fks gksaxsa uk & jathr dks rks mu yksx Hkh HkS;k yksx ls ckr fd,s gksaxsaA fd muyMdh dks ge cEcbZ Hkst jgs gS rks crkuk ughaA ysfdu HkS;k us eq>s crk fn;k fd rqEgs rks cEcbZ Hkstjgs gSA rqEgsa rks dqN irk ugha gSa vxj cpuk gS rks esjs dguk ekuukA fd eS ugha tkÅaxh cksEcs eq>s¼jkT; dk uke½tkus ds fy,s cksyds cksEcs Hkst jgs gks ,sls cksyuk gSA ugha rks cksEcs Hkstsaxas rks irk ugha8&10 lky m/kj gh jgsxhA fQj esjs dks HkS;k us cksyk ,sls esjs dks irk yx x;k fd esjs dks cksEcs Hkstjgs gS oks yksxA rks eSa ugha xbZ eq>s ugha tkuk eq>s cksEcs Hkst jgs gks rks eSa HkS;k ds ?kj pyh xbZ mlfnuA vkSj HkS;k us eq>s lkjk crk fn;k tks HkS;k dks cksys FksA oks jathr vkSj oks vkneh HkS;k ls tkscksys FksA esjs dks ugha crkus ds fy,s fd esjs dks cksEcs Hkst jgs gSAQ: thAQ: vkil esa ckr fd esjs dks Hkstus ds fy,AQ: fQj D;k gqvkAGirl: fQj HkS;k us eq>sAQ: fQj tc HkS;k vkidks ysds x,s rc jathr us >xMk fd;k HkS;k ls\Girl: ughaAQ: vkidks tkus fn;kAGirl: esjs dks Hkxk jgs Fks uk rks esjs dks irk py x;k rks dSls >xMk djsxk ok A493


Q: ugha rks eryc oks HkS;k ds lkFk >xMk dj ldrk Fkk uk jathr A dksbZ tcjnLrh ugha dh fQjAGirl: tcjnLrh ugha dhA mu yksx us rks eSa HkS;k ds ?kj vk Hkh xbZ ml fnu mu yksx us fVdV dVkbZ eSavkSj MªkbZoj tkuk Fkk uk cEcbZA vkSj mu fe;k choh dk fVdV mu yksx rks fudy x,s ¼jkT; dkuke½AQ: vPNk vPNkAGirl: mu yksx fudy x,s ¼jkT; dk uke½ vkSj eSAB: He was not there.Q: Only the driver was there.B: This fellow basically sold her to this other gentleman the driver.Q: He sold her to the driver?B: ActuallyQ: for a certain sum of money.B: actually as per our understanding, because he was a driver, she was toldthat he was going to (Name of State)Q: ?kcjk ugha csVkAB: actually being taken to Mumbai the same principle as she was earliertaken to Punjab and then she said that i am not going to go with youthen at the Railway Station it was very difficult for him to say, that ishow it was.Q: That is how she went with that guy?B: YesQ : And then mlds lkFk pyh xbZA and then he protected her.B: YesQ: And then once he protected her, then fQj tc buds HkS;k ds ?kj esa pyh xbZ csVkAlquks xaxk fQj D;k gqvk\Girl : fQj eSA ml MªkbZoj us vk;k Fkk HkS;k ds ?kj esa cksyk fd pyks cksEcs eryc fVdV rks gks x;k gS rksges rks tkuk gSA rks eq>s ugha tkuk gSA eS rks vkidks tkurh Hkh ugha gwW dkSu gks dgkW ds jgus okys gksvkiAGirl: fdlh Hkh MªkbZoj ds lkFk eS ,sls gh FkksMs uk pyh tkÅaxhA mu yksx rks esjs dks cksys jathr yksx dh¼jkT; dk uke½NksMsaxsa fQj mu yksx dgkWA rks mu yksx rks pys x,sa ml vkneh us tks MªkbZoj FkkAmu yksx rks ¼jkT; dk uke½pys x,sA rks esjs dks ckn es irk pyk fd eq>s D;ks ugha crk;k fd eq>scksEcs Hkst jgs gksAQ: vkSj tks ;s jathr dk tks MªkbZoj Fkk oks dkSu Fkk\Girl: oks b/kj laxe fogkj esa jgrk gSA pUnu uke dk vknehA494


Q: oks vkneh D;k djrk gS\Girl: irk ughaAQ: rks pUnu dk irk ugha gS D;k gSAGirl: ugha irkAQ: vPNk vPNkA fQj D;k gqvk csVk\Girl: fQj eSa ugha xbZ rks pUnu Hkh xqLlk gqvk fd fVdV Hkh bruk dk gks x;k rks eSa iatkc esa gh dgk fdjathr eq>s NksMus ds fy, tkuk Fkk uk jathr vks lksjh pUnu usA oks fQj eq>s NksMus ds fy, tkuk Fkkrks eS ugha uk pUnu rks mldk Hkh dSaly gqvk fVdV nksuks dk fQj lkjs iSls bruk lkjk fVdV dkVds dSaly djok;s cksy ds mUgksus esjs dks xqLlk dj jgk Fkk eq>s ek:axk eq>s FkIIM ls ek:axkA rks HkS;kus] HkS;k Fks rks dSls ekjrk oks] eq>s FkIiM+A fQj oks dqN ugha dj ik;kA mlds ckn esa eS HkS;k ds ?kjesa jghA fQj chp esa ogkW yqf/k;kuk esa esjs HkS;k HkkHkh jgrs ukA iatkc esa gh rks ogkW chp esa pyh xbZFkh vkSj vHkh eSa oks ?kj ls ykSV ds HkS;k ds ikl esa gwWAQ: eryc rqe] fQjA rqEgkjs HkkbZ vkSj HkS;k yqf/k;kuk esa jgrs gS\Girl: thAQ: oks Hkh ,sls gh tks rqEgkjh fLFkfr gS tks rqEgkjh ifjfLFkfr gS oSlh gh mudh Hkh gSAGirl: ughaAQ: oks D;k djrs gS yqf/k;kuk esa\Girl: HkS;k ckgj M;wVh tkrs gS uk oks QSDVªh esa dke djrs gSA cMs HkS;kAQ: Its like child labour and fQj oks tks csch budh nhnhAB: HkkHkhAQ: HkkHkh] vPNk ’kknh’kqnk gSAGirl: th] muds rks cPPks gSA yMdh gSAQ: rks rqe muds ikl xbZAGirl: th xbZAQ: rks dSls xbZ rqe ;gkW fnYyh ls yqf/k;kuk vdsys xbZAGirl: ughQ: fQj\Girl: rks ysus ds fy, vk,s Fks uk vk/kk nwj rd eS Hkh xbZ FkhAQ: D;k\Girl: vk/kk nwj rd ysus ds fy, vk,s Fks u yksx Hkh vkSj eSa xbZ FkhA eq> NksMus ds fy, vk/kk nwj rd x,sFksAQ: dkSu\495


Girl: HkS;k] rks eSa pyh xbZ FkhA rks ogkW dqN fnu Fkh] dqN efguk Fkh fQj ogkW ls vkds eS HkS;k ds ?kj isjgh vkSj mUgksus bruk ,dA ,d lky gks x;k HkS;k ds ;gkW ij vk,s gq,sA eryc xqMxkWo ls Hkkxs gq,seq>s ,d lky gks x;kA rks ,d lky ds vUnj eSus 12 SIM psat fd;k Qksu dkA 12 fle psat fd;kysfdu 12 fle esa ,d ,d fle dk uEcj **** ds ikl irk dSls pyrk Fkk oks eq>s ugh irkA oks eq>sQksu-- uEcj mlds ikl igqWprk FkkA eq>s dkWy djds cksyrk Fkk fd rqe dgkW ij gks crk nks eS ysusds fy, vktkÅaxk rks eS cksyrh Fkh mldk fd ysus ds fy, D;ksa vkvksaxsA esjs dks rks ekjihV djdsHkxk,s gks rks eS vc D;ks vkÅ vkids ?kjA eq>s rks iSlk pkfg,s Fkk rc rwus esjk 2 lky dk iSlk Hkh[kk;k vc D;k dke ugha iwjk gks jgk gS tks eq>s Qksu djds ijs’kku dj jgs gksaA eSa rqEgs j[kuk pkgrkgwW eSa rqEgs ’kknh d:WaxkA rqEgkjs flok fdlh vkSj rqEgkjs flokA eryc rqEgs esjs flok fdlh vkSj ls’kknh djus ugha nwWaxk ,sls cksyrk FkkA rks eSa ’kknh ugha d:Waxh rks cksyrk Fkk fd Bhd gS fQj eSa xkWaotkÅaxk rks rqEgkjs ekW cki dks ekW cki dks ek:Waxk] ;s d:WaxkA vxj rw esjs ls ’kknh ugh djsxh rksAcksyrk Fkk fd rqEgkjsA ,d ckj cksyk Fkk fd rqEgkjs firk th dks taxy is ckW/k ds j[kk gqvk gS ns[kukgS rks vk tkvksa ugha rks mls ekj ds [kRe dj nsaxsaA rqEgkjk ?kj dks tyk nsaxsaA rqEgkjk ftruk Hkh HkkbZgS cgu gS lc yksx ty tk;saxsa ej tk;saxsaA rks re vdsyh jg tk;sxh ej tk;sxh] dgk jgsxhA bllsvPNk vk tkvksaA eq>s ugha vkuk vxj fgEer gS rks tyk ds ns[kks cksyh Fkh eSA rks rqe] cgqr yMkbZgksrk Fkk Qksu isA oks rks cksyrs Fks fd tgkW feyksxh rks ogkW ekj nw¡axk rks rqe esjs dks NksM ds D;ks xbZfdlds lkFk esa jg jgh gS ,sls cksyrk FkkA mus yxrk Fkk fd eSa fdlh yMdk ds lkFk esa gwW& ****cksyrk FkkA rks ugha eSa fdlh ds lkFk esa ugha gwW eSa ,d HkS;k ds ?kj esa jgrh gWWwa ysfdu eSa vkidks ughacrkÅWaxh fd dgkW jgrh gwW D;k djrh gwWA vkSj dksbZ vkidks eryc tkuus dk dksbZ oks ugha curk gSvkidks iwNrkN djus ds fy,sA rks oks vkneh dkSu gS mldk uke crk nks ml vkneh dks Hkh ge ekjds [kRe dj nsaxsa tgkW feyksxs ogkW ftlds ?kj esa jgrs gks mldk ?kj Hkh ugha NksMsaxsa ge ml vknehdks Hkh ekj nsaxsaA rqEgs Hkh ekj nsaxsaA bDVBs [kRe dj nsaxsa nksuks dks ,sls cksy jgk FkkA rks eSus mldksvyx vyx txg crkrh FkhA Qksu esa Qksu] ijs’kku djrk Fkk rks fle dks rksM nsrh FkhA esjk uEcjmuds ikl igqWprk Fkk rks eSa fle rksM nsrh FkhA fQj nwljk u;k uEcj fudky ds oks pykrh Fkh oksHkh 1&2 efgus cknA fQj ls mlds ikl uEcj igqWprk FkkA irk ugha dSls igqWprk Fkk eq>s ugha irkAQ: How did it reach to him?B: There are two possibilities Sir, The first and the easier option is that hecontact the people in the village, the actual persons in the village whoable to find out from the family or the parents, somehow from thevillage. The other option is that she has not changed the hand set yet.Q: IMEI NumberB: IMEI Number lsQ: rks mlus ogkW mlus dksbZ VsfyQksu dEiuh dh mldks ekywe gksxk dkSu lk dEiuh dk gS vkSj ogkW lsmlus irk yxk;kAB: th ogkW ls oks irk djk ysrk gSA vkSj vHkh bldk vHkh geus dy gh bldks ;s le>k;k Fkk fd vkiQksu] Qksu dk ;s instrument vkSj fle nksuks cny nksA vkSj vc tc Hkh tkvksxsA DelhiCommission for Woman esa bldk dsl ysdj tkuk gSA ;s gh bdohiesaV gS gekjsA rks ogkWls mlds ckn tc dksbZ Protection dh ckr gksxh rksAQ: rks vPNk csVk ;s crkvksa vHkh rqe ;gkW is HkS;k ds ;gkW is gksAGirl: thAQ: rks ogkW ij rqe dqN dke djrs gks muds ?kj esaAGirl: vHkh eSa dke yxh gwW ogk¡ rqxydkckn esa djrh gwWAQ: rqxydkckn esaA496


B: She is basically staying in ****** which is next to ******** rks ****** vkSj****** ,d nwljs ds lkeus gSA Like left and rightGirl: gkW vkeus lkeus gSAQ: ogkW D;k dke djrh gksa\Girl: ogkW Hkh ;s gh dke djrh gwWAQ: D;k ?kj dk dkeAGirl: thAQ: rks oks yksx iSls ns jgs gS ;k ughaAGirl: oks----rks **** tSls rks oks rks HkS;k rks ugha gksaxsa rks ogkW rks eS gj efgus iSls ywWxh cksyh gwW gj efgusmBkÅWaxhAQ: vHkh ’kq: fd;k bldk erycAGirl: th vHkh rks ’kq: gqvk gSAB: vHkh ’kq: fd;k gS vkSj ;s ---- ;s---- eryc ds---- ,d ubZ pht fudy ds vk jgh gS Its very veryfast moving organized plan I was also talking to this gentleman whowas sitting here yesterday. 2008 esa ;s dg jgs gS fd tc budh iksfLVax bl bykds esa Fkh’kdwj iqj ds bykds esa rks ogk¡ is dksbZ IyslesaV ,tsalht ugha Fkh vkSj bdk nwdk ’kq: gqbZ FkhA vktogk¡ is 500&700 ls T;knk IyslesaV ,tsaflt gSAQ: In Shakurpur BastiB: th ’kdwjiqj cLrhQ: Because that is an area where they all being stuffed.B: Yes, and they are all sourced from pretty much the same area.Q: Very much the same areaGirl: ‘’kdqj iqj dk ,d yMdh eS ogWk n;kuUn fogkj esa dke dj jgh Fkh uk rks ml VkbZe dks ’kdqjiqjdh ,d yMdh ogk¡ is esjs ls Åij dke dj jgh FkhA eSa uhps dj jgh Fkh ukA rks oks yMdh mijdke dj jgh FkhA oks yMdh eq>s Hkxk ds ’kdqjiwj ys xbZ FkhA fQj ckn esa oks yMdh mij dj jghFkh nksuks eq>s Hkxk ds ys xbZ oks yMdhA yMdh Hkh ugha gSa eS Hkh ugha gWW rks esjs eSMe yksx vkSj mijokys eSMe lkgc yksx tkds ’kdwj iqj s rks Hkkxuk Hkh ugha vkrk dHkh Hkxkugha rks eq>s irk ugha Fkk ;s yMdh tks cksyh eSus oks gh fd;kA fQj esjs dks fQj ls ogkW ’kdwj iqjvkWfQl ls yksVk ds dksBh is] dksBh esa dj jgh FkhA oks yMdh eq>s Hkxk ds ys xbZ Fkh uk] dksBh lsAQ: rks csVk fQj vki tks dke dj jgh gks] AGirl: thAQ: ;gk is dke dj jgh gks ;s ****** ;k tks ?kj is dke dj jgh gks ogkW yksx dSls gS Bhd gSA vPNsgS\Girl: th vHkh rks ’kq:A ’kq: ’kq: rks lHkh yksx Bhd gh jgrs gSA rks 3&4 efgus ;k 5&6 efgus ds ckn ghmu yksx erycAQ: vlyh vlyhA497


Girl: vlyh utj vkrk gSAQ: vlyh jax ckgj vkrk gSAGirl: gkW thAQ: gSA rc mudk vlyh vlyhAGirl: rc rks mu yksx dSls gS ge Hkh vPNh rjg ls tkurs gSA tku tkrs gS uk fd dSls mBrs cSBrs dSls[kkrs ihrs gSaA D;k djrs gS mudks Hkh ges vPNh rjg ls irk py tkrk gS vkSj rc rd ge Hkh iqjkusgks tkrs gS mu yksx Hkh gesa vPNh rjg ls tku tkrs gS fd dSls dj jgh gS eryc yMdh yksx tSlsfd dksbZ rks Qksu esa fpidh jgrh gS Qksu esa yxs jgrs gS ckr djus esa rks dbZ rks Hkkxus esa jgrs gSAdbZ pksjh djus esa jgrs gS rks mu yksx Hkh tku tkrs gS vPNh rjgk ls brus fnu ds vUnj dhyMdh dSlh gSAQ: vPNk vc ;s crkvks csVk fd rqe vc rqe ogk¡ is dke dj jgh gksaAGirl: thAQ: vc rqe D;k pkgrh gks vkSj vc D;k gksxkAGirl: vc eS rks ;s pkgrh gw¡ fd ;s tks mUgksus ;s fd;k eq>s iSls ugha fn;k] esjs ekjihV fd;k] esjs ek¡&cki dks/kedh fn;kA cksyk xkWo esa dh xaxk rks ej xbZ gSA xkWao es cksyk Fkk eEeh ikik dks fQj eSus ,d ckjQksu fd;k Fkk rks cksyk fd **** us rks cksyk fd rqe rks ej xbZ gSA rks Qksu dSls ;s lc dSls rks eEehikik dks ;s ,sls ,sls cksy ds crkbZA rks eEeh ikik yksx Hkh dqN ugha dj ldrsA vHkh xk¡o tkrk gS**** us rks m/kj lc dks eryc eEeh] ikik rks FkksMk ’kjkc ihrs gS uk rks ikik rks mldks rks fiyk nsaxsaAikik rks ,sls cws Mj gS fd oks dqN Hkh bruk /kedh ns jgk gS yksxks dks eSMe lcdks rks oks gekjs ?kj tkds oks dqN Hkh dj ldrk gS rks blfy, eq>s Mj yxrk gS ml vkneh dkAvkSj eSa vc pkgrh gw¡ fd bruk lkjk lcdks /kedh fn;k fd eSa ej xbZ gwW vkSj vc rks eS rks ftUnk gwWvkSj eEeh ikik dks cksy fn;k fd ej xbZ gSaA vkSj ekj ihV fd;k mlds fy, mUgs dMh ltk feysAltk feys rks Hkh mlds fy, de gh gksxkA vkSj eSa esjk ftruk Hkh iSlk mUgksus [kk;k gS oks lkjs iSlsesjs gkFk esa vk,sa eSa ?kj is igqWpkÅ lkjs iSls vkSj xkWo igqWpkÅA eSa cl ;s pkgrh gwWAB: csVk nks ckr vkSj crk nksAGirl: thAQ: rqe ysfdu okil tkuk pkgrh gks ?kj csVkAGirl: thA ?kj tkuk pkgrh gwW ysfdu vc eq>s dksbZ eryc dksbZ **** ;s **** dk dys’k [kRe gks tk;sxk rkseq>s Mj [kRe gks tk;sxkA esjk Mj [kRe gks tk;sxkA eS rks HkS;k Hkh gekjs xkWo dh rjQ ds gS vc eSAHkS;k ds ikl vk xbZ gwW rks vc eq>s dksbZ Mj ugha gS ,slsA cl eq>s blh ckr dk Mj gS **** dk vkSjeq>s dksbZ Mj ugha gSAQ: rqe rks bruh fgEer okyh gks] gSaA rqEgkjh fgEer is rks eS bruk gSjku gw¡ fd eS rqEgsaA bruh vPNhcksyrh gks rqeA rqe i


Girl: vHkh rks esjk cksyrs gS 17 py jgk gS ij eS rks lc txg dksBh esa fy[kokrh gwW 18 lkyA blfy,lkjh txg cksyrh gwW 18 lkyAQ: ysfdu gks rqe mlls cgqr deA vlfy;r esa 17 Hkh gks ;k mlls Hkh de gksAGirl: eq>s ugha irkAQ: rqe rks eq>s 15 lky dh fn[krh gksAGirl: ugha eS rks 14 lky esa ;gkW vkbZ FkhAQ: 14 lky esa vkbZ FkhAGirl: ugha 14&15 lky esa vkbZ Fkh fnYyh 2009 esa A rks 2009 ls vHkh rd eSA ?kj ugha xbZAQ: rks 4 lky gks x,sAB: lj 17 py jgk gSAQ: 17 py jgk gSAB: ;kuh 16 dh gS oks vHkhA rks blus vHkh rd basically 5oh rd 6Bh rd ’kk;n ik;k x;k gS fd 18 gh fy[kokuk gS vkSj 18 gh cksyuk gS ;s ,d ckr gSAB: vPNk ,d ckr vkSj crkvksaA ,d ckr vkSj crk nks csVkAGirl: thAB: ;s **** tc rqedks ysds tkrk Fkk txg txgAGirl: thB: vyx vyx txg tc yMdh NksMrk FkkAGirl: thAB: yxHkx fdruh yMfd;k NksMrk gksxkA 1]2]---10Girl: ugha bruk ls rks mlds ikl T;knk yMfd;k¡ gksaxhA fxurh rks ugha dj ikÅ¡Waxh ysfdu de ls de150 ls mij gksaxh yMfd;kW mlds iklAQ: vPNk lc ogha dh gSA ¼jkT; dk uke½dh ;k dgha dgha ls ykrk FkkAGirl: dgha dgha ls vkrs gS oks rks eq>s ugha irk Fkk uk txg txg ls vkrs gS yMfd;k¡ rksAB: rqEgkjs xkWo ds rjQ ds dgk ls ysds gS ukGirl: --------------dk Hkh vkrk gS] mfMlk dk Hkh vkrk gS] NfRrlx< dk Hkh vkrk gS txg txg ds vkrs gS ukA499


Q: vPNk vPNkB: cgqr cf


Q: You mean to say that if this Girl was to go and make the statement inthe Delhi Police Station it will be impossible to get the FIR registered.Correct?B: Sir,Q: Now I have understood the picture.B: Yes Sir. It is not one she is not one we deal with 100s of cases.Q: No. no, she is very young Girl, goes either in Gurgaon. First of allGurgaon may have the territorial jurisdiction.B: We were actually in these cases what we try and do, is that we say thatthis is a case of abduction, for illicit intercourse, so that the territorialjurisdiction ......Q: Territorial jurisdiction is in Delhi.B: YesQ: ij vc fnYyh … but who will listen in Delhi.Q: This Girl, who I see here who will listen to her in Delhi and whichNational Commission for women is going to listen to this chlid---Q: csVk ;s rqEgkjs fy, gS vjs yks ;s rqEgkjs fy, gSAB: ,d ugha nks [kk ds fn[kkvks tYnh lsAQ: gkW xaxk vkSj rqe bruh vPNh cksyrh gksA fgUnh bruk vPNk cksyrh gks eS rks cMk] eSa cgqr eSa cgqrgh [kq’k gwW yks [kkvksaA vc ge fcLdqV ys vk,sa gS csVk [kkvksa [kkvksaA pk; fi;ks ge Hkh] ge Hkh [kk;saxsaAfQj vc NowB Sir,Q: rks ;s ckr gS rks So what is the justice this Girl will get in this legal system.BNo no …Our entire idea of justice unfortunately even our idea ofjustice....Q: is also very weak.. even your idea of justice with great respect is veryvery weak. It is very watery, it is looking like and ….B If i will actually going to say weak is also an under statement. I wasgoing to say that we have narrowed it down to such a level that wecannot get hope to go beyond the back wages. We cannot even hopethat we will get more than that.Q: I mean, if a child like this is trafficked. She is traffickedB: YesQ: Correct?B: Yes,Q: The traffic plus identity is low and I am sure that there are aboundinglike this in so many places.B Absolutely sir, in every cluster of 2-3 villages in Jharkhand,Chhatisgarh, West Bengal and the North Eastern parts.Q: So this applies to North East, Jharkhand, Chhatisgarh and Orissa501


B Yes Sir,Q: Jharkhand andB Orissa also.Q: OrissaB Yes Sir, for Girls specially, So this is the very serious situation sir andthe Girls are being taken to South India, to Bangalore, to Tirupur, to...Q: For what in TirupurB For garment industry as well as domesticQ: vkSj rqe rks ;s pk; es tks rqe phuh feyk jgh gks eq>s cMk vPNk yx jgk gSA rqe rks cgqr vPNsrfjds ls [kwclwjrh ls rqe bruk vPNkA cgqr lqUnj cgqr lqUnjA vPNk csVk ns[kks vc rqe ?kcjkukughaA lcls igys rks ;s rqEgs iSls rks ge fnyok;saxsa gh----- this is I am very shocked,Girltc eS ogkW is xqMxkWo es Fkh uk rks chp esa tc eS ogkW ls iatkc ls ykSVk ds yk;sA uk rks mldk HkkbZeq>s ysus ds fy, vk;k Fkk ftUgksus xk¡o ls ysds vk;k FkkA foØe us eq>s ;gkW fnYyh ysus ds fy,vk;k Fkk rks mUgksus eq>s cksyk fd pyks eSa rqEgs ysus ds fy, vk;k gwW rks eSus cksyk fd vHkh rd rkseq>s nks lky rks gks x;k ysfdu nks lky ds vUnj eq>s iSls ugha fn;k gS **** us rks eq>s iSls ekax nksAmldk HkkbZ Fkk ukA rks eq>s vius HkkbZ ls iSls ekax nks eq>s iSls pkfg,s rc eS ?kj tkÅaxhA rks mldsHkkbZ us xqLlk gqvk fd vc rd fd mUgksus vius vkil esa nksuks HkkbZ ds chp irk ugha fdl ckr dksysdj yMkbZ gks xbZ esjs ckjs esa gh ckr gksrk Fkk mu yksxks esaA mldk cMk HkkbZ xqLlk gks x;kA fQjmUgksus esjs gkFk esa iSls Fkk 100 :i;s Fkk T;knk ugha FkkA rks esjs gkFk ls fNu fy;k 100 :i;s iSlsvkSj mUgksus mlds vius HkkbZ ls fdjk;k iSlk ysds pyk x;k eq>s FkIiM ekj dsAQ: dkSu foØe\Girl: mldk HkkbZ oks Hkh eq>s FkIiM ekjds x;kA eq>s ysus vk;k Fkk oks eq>s ysus NksM ds eq>sQ: FkIiM ekjds oks x;k\Girl: FkIiM ekj ds 100 :i;s] gkFk ls iSls 100 :i;s Fkk mls fNu ds mlus FkIiM ekj ds pyk x;kA vcrks esjs dks ys tkus okyk Hkh dksbZ ugh vkSj b/kj **** Hkh ,sls crkZo dj jgk FkkA rks esjs dks Hkkxus dkjkLrk vkSj dksbZ fn[kkbZ ugha ns jgk Fkk rks blfy, eS xbZ vkSj m/kj Hkh fey x,s fd gekjh rjQ vktkvksa fd ge Hkh ¼jkT; dk uke½ds gSAQ: dkSu\Girl: oks mlds **** dk fj’rsnkj Fks mldks rks eS ugh tkurhA ysfdu **** ds ,sls---BThe person who basically said you come to my place, ran away fromGurgaon,Q: ysfdu oks Hkh oks Hkh We don’t know they may also be of the same type of asManoj and RanjeetBfcYdqy fcYdqy ;s ljA vxj bldks FkksMk lk blh dks blh dsl dks vxj ge ns[ks oks tks vknehTrafficker gS oks ,d vkneh gSA ;gkW is ftlds ;gkW is j[k jgk gS oks nwljk vkneh gSAGirl: D;ksfd eq>s xqMxkWok ls tgkW tkrk Fkk ogkW is ys tkrk Fkk ysfdu oks rks chp chp esa ikdZ esa ys tkrkFkkA ikdZ Hkh ts tkrk FkkA ikdZ esa xyr rks ugh djrk Fkk ysfdu cSBk ds nk: fiykrk FkkAQ: dkSuGirl: **** us]Q: rqedks\502


Girl: thArks oks MkWVrk Fkk uk ds ek:Waxk rks ihuk rks iMrk Fkk rks esjs dks tcjnLrh fiykrk Fkk rks ihrh FkhfQj u’kk rks cgqr ps NksM nks ?kj eq>s fdlh xkMh esa ugha cSBuk gSfdlh vkVks esa ugh cSBuk gSAQ: csVk rqEgs lcls igys rks ge tYnh ls tYnh tks gS ;s iSls fnyok;saxsa vkidksGirl: th] oks rks vc rd eq>s


Q: And how do they know that it has been assaulted and disposed off.B: They said that, the letter claim that theQ: They have reliably learnt.B: No no it is from the Girl’s mother, it has a thumb impression sayingthat I am the Girl’s mother and they did not know that the Girl was stillin Delhi and her case is still going on.Q: O……Ohh....B: So they thought that the Girl must have gone back home afterdeposing before Delhi Commission for Women. The Girl was from…………a Village in ………………and we would not have even able togo to this place, but the person who was fighting for. The main man hewould have gone to jail for assault and disposing off the body becausethe Girl could not be found and they could have easily done anythingback home. So its a very serious problem.Q: So there is multiple problem here.B: Yes Sir,Q: which is the traffic itself here is an offenceB: YesQ: more importantly the safety of these children.B: YesQ: I am now getting even more alarmed when we are talking about safetyof women. Women at least can use at least pepper spray. What can thisyoung Girl do...B: No., No, they are the worst situations that they are slaves. They are inabsolutely slavery. They have no right of anything and they actuallycannot go anywhere, they cannot seek justice. Their idea of justices isno longer there, they don’t understand something wrong has happened.Q: Ya.. i think the only.... csVk xaxk le>ksa fdGirl: th ljQ: ge rqedks ;s tks iSls fnyokds ;s tks jathr gS ;k tks Hkh gSA blls ge rqEgkjk iSls fnyk ds rqEgkjkru[okg tks nks lky dk gS fQj rqe xkWo tkvksxh\Girl: eSa ,d lky dj ywWaxh dke fQj tkÅaxhA vHkh eSa dke yxh gwW uk rks eS lky mldk d:¡xhAQ: ysfdu rqEgkjs ekrk firk dks eEeh ikik dks rqeus ns[kk gh ugha brus lkyAGirl: tkÅaxh rks ns[k ywWaxhA504


Q: ugha] rqe tkds vk tkvksa igys tkds iSls nsds vk tkvksaAGirl: gkW oks Hkh Bhd gS ij eS ,d lky djds tkÅWaxh vHkh tks dj jgh gwW uk mls iwjk djds gh tkÅaxhAQ: D;ksa rqEgsa ,sls D;ks yx jgk gS fd rqEgs i


Q: In a very systematic, progressive, uplifted society.B Absolutely sir absolutely.So when you are talking about the NGOs. My concern that I kept in theback of my mind was that it is the NGOs for what ever racket of their own.They are not taking any concrete such steps to actually send any of thesechildren back. there isQ: Which means is it possible ....B: Sir…Q: That there is some kind of a racket.B: YesQ: Between the NGOs and placement agencies also.B: 100% sir 100% most definitely there is. Most definitely there is. There isabsolutely no doubt to the extent that how these Placement Agencypeople become so smart that they have make registered with the suchand such societies and become NGOs.Q: That means the placement agencies themselves have become NGOs.B: Yes, Yes- They are saying I am an NGO and i am providing... this thevocational training center.Q: So these children are entitled to only Vocational Training only, they areentitled to lesser training, they are not entitled to anything which isguaranteed under the constitution. They will not be able to study, thisGirl is so intelligent.B: Sir the biggest question is not a question of what they are entitlement.But when organized crimes starts taking the shape of the main streamsociety in such a manner that they are incorporating themselves as trustand societies and getting away with it, that is the big problem.Q: No No this is a very serious... it is very clear to me nowB: Yes Sir,Q: That the de-sensitization and de-humanization has taken place in sucha profound manner in society that the presence of these young Girls.Now suppose what would happen if this young Girl is seen loitering inJama Masjid in that park,B: Absolutely sir,Q: What will happen. Let us, ask her, just ask whether she has ever seenanyone being picked by, her observation I want to see, just seepoliceman or anyone, just ask her I want to know.B: csVk ;s crkvksa506


Girl: thB: tgk¡ ;s rqe jgrs Fks dHkh -----------------esa] tgkW rqe jgrs Fks vks lksjh -----------------esaA tgk¡ rqe jgrs Fks tc,d vk/k fnu b/kj m/kj jgsA -----------------es dksbZ iqfyl okyk vkrk Fkk mlls feyus **** lsAGirl: ughaB: dHkh tgkW rqe jgrs Fks fdlh iqfyl okys dk dksbZ ftdz gqvk gks dHkh ,slk rqeus ns[kk gks fd dksbZlEca/k gks iqfyl okyks ls ;kA oks **** dqN yksxks dks iSlk nsrk Fkk dHkh ns[kk rqeus **** dks iSlk nsrsgq, yksxks dksAGirl: ugha] ugha ns[kkAB: pyks dksbZ ckr ughA D;kasfd ge ;s tkuuk pkgrs Fks dsoy dgha ,slk rks ugha fd ge vxj ogha tk,savkSj irk pys fd **** fd muls nksLrh gksA iqfyl okyks lsAQ: gks ldrk gSAB: dgk¡ dqN mlus ,slkAQ: ughaAB: ugha dgkAQ: iqfyl okys dk dHkh uke ugha fy;k\Girl: iqfyl okyks dk dHkh uke ugha fy;k gS vkSj yksxks ls rks ;s gh lquh gw¡ fd **** us lcdk gh gekjkbruk iSlk [kk;k] mruk iSlk [kk;kA ge dsl djsaxsa] ;s djsaxsaA rks lcds ftlds ftlds eq¡g ls lqukrks **** ds ckjs eas tks **** dks tkurs rks lkjs cksyrs ds gekjs brus iSls fy,s gekjs mrus iSls fy,s gS gedsl djsaxsAB: xaxk AGirl: thAB: ckdh yMdh yksx tks cksyrs gS dsl djsaxs vkidks irk gS fdlh us dsl fd;k gS\Girl: vkt rd rks fd,s ugh gS vxj fdlh us fd,s gS rks eq>s ugh ekywe] ij cksyrs gS ,sls A lHkh **** dks,sls cksyrs gSAQ: vPNk crkvksa xaxk rqEgkjs tSls ,sls cgqr lkjs cPps ,sls gSAGirl: **** ds ikl\Q: **** ughaA rqeus ,sls cgqr lkjs ns[ks gksaxs\Girl: th ns[kk gSAQ: ;s dgk ns[kk gS csVk rqeus ,sls\ lc txg rqe ,sls ns[krs gks cPpks dks AGirl: lc txg ugh eryc fd **** us gh tgkW dke yxk;k Fkk ogkW vxy cxy esa tks jgrs Fks mu yksxHkh cksyrs Fks fd dke rks yxkrk Fkk rks ,sls muds eryc muds cxy esa -----------------esa muds ?kj dsvxy cxy esa tks jgrs gS iMkSlA rks mu yksx crk;s fd **** rks ,sls ,sls xyr dke djrk gSA rkstks esjs ls Hkh NksVh Fkh rks mldk Hkh ,sls muds Hkh diMs mrkjus dh dksf’k’k dj jgk FkhA rks cPph jksjgh Fkh ckgj cSBh rks jkr dks rks ,sls crk jgs Fks yksxA rks ;s lquds rks vPNk rks ugha yxrk gSA fdoks cPph ds lkFk esa fdlh ,d ls djs rks pyks djsa ,d tu dks fd;k oks rks ckdh vaVh yksx eryc507


cqs,slsAB: PathologicalQ: No No No No NoB: Nothing to do with Pathological, it is a thing it is a state of mind wherethis man is in absolute control and is getting access to Girls, unlimitednumber of times.Q: Unlimited number of timesB: YesQ: Unlimited Girls, and unlimited number of timesB: And there is absolutely no way that he can be brought to justice.Q: I think that... I personally think that I am trying to see what can I do forthis Girl which can give her immediate relief. What I would suggest isthat please give her, I am not sure there is any person I can think of,you sure this gentleman is secure.B: Sir, this is actually right next to our office also, so we are right there,she actually stays 200 meters from my house and 300 meter from the office. SoI am, she is not the only one there are others like her are there. So I, I mean weare dealing with 3-4 of such cases simultaneously in the last 4 days.Q: See you do one thing you take care of her.B: YesGirl: tc esjs dk *****s NksMus ds fy, dke NksMus ds fy, x,s Fks mu yksx us rks jathr yksx dks Hkhirk ugha Fkk fd esjs cSx es a iSls gS 8000A rks eSMe dksAQ: vPNk oks 8000 iSls oks eSMe us j[k fy;kAGirl: ughaA eSa ogk¡ is dke is ugh jgh ukAQ: rks vc Hkh gS rqEgkjs ikl oks 8000A th eSus **** dks ugha crk;k FkkAQ: vHkh rqeus dgk j[kk gS oks 8000\Girl: mldksA tc eSa dksBh is crkbZ eSMe yksxA rks jathr yksx dks irk ugha Fkk fd esjs ikl iSls gSA rksml VkbZe eSus dksBh is jgus ds pDdj esa eSMe ds ikl crk fn;k fd esjs ikl 8000 iSls gS vkSjeksckbZy gS rks iSls vkSj eksckbZy jgsxk rks dke d:Waxh vkSj ugha rks ughA rks eSMe us cksyk fd gekjsikl iSls NksM nks vkSj tc tk,sxh rks tk,sxh rks ys tkukA rks ,d lky ckn irk ugha dSls djsaxsaD;k djsasaxsA uk ;gk¡ ls eSa Qksu dj ikÅ¡axh vkSj uk fdlh dks crk ikÅ¡axhAQ: gk¡ ysfdu vHkh oks 8000 rqEgkjs ikl gS\Girl: gkW crk jgh gwWAQ: gkW crkvksa crkvksa crkvksaGirl: rks ogk¡ ls eSa dke ugh d:Waxh cksyh uk rks mu yksx dks irk py x;k esjs ikl 8000 iSls gS jathryksx dksA rks ogk¡W ls vkrs vkrs jkLrs esa cgqr /kwi Fkk xehZ FkkA rks HkS;k Hkh fey x,s Fks mlh fnuftl fnu oks yksx esjs dks LVs’ku esa HkS;k feys rc FkksMk lk ckr djus ds fy, xkMh ls uhps vk;s rksisVªksy Myokuk Fkk uk xkMh esa [kRe gks x;k Fkk rks HkS;k cksys dh cgqr ykbZu yxk gqvk gSA jathrlc ls cksys dh cgqr ykbZu yxk gqvk gS rw iSVªksy Mky ds vk] ge FkksMk lk Nk;k esa bldks ys tkrkgwW HkS;k us cksysA fQj mlh txg HkS;k us lkjh ckr esjs ls iwNk dSls dSls vk jgh gSA dgk dgk ij Fkhrks lkjk eSus [kksy ds crk fn;k tks vHkh crk;k oSls ghA508


Q: ;s HkS;k dks\Girl: gk¡a th HkS;k] dks crk fn;kA rks ckn esa oks mruh cl FkksMk lk nsj esa oks iSls dks cSax ds vUnj Fkkrkyk ekjh FkhA jathr vkSj MªkbZoj nksuks feydj esjs cSx dks QkM dj mlesa ls 4500 iSls Hkh pqjkfy,sA ml] cl FkksMk lk ds fy, uhps mrjh vkSj mrus esa mu yksx iSls ys fy,sAQ: oks 8000 Hkh x;kAGirl: x;kAQ: rqe dg jgh gks 4500AGirl: th] 8000 esa ls mu yksx dks 4500 feyk vyx vyx fd;k Fkk uk rks pkj lk


APPENDIX 10TRANSCRIPT OF INTERVIEW OF FOUR TRAFFICKED CHILDREN WHO ARE ALSOVICTIMS OF SEXUAL VIOLENCE AND DRUG ABUSEChild-1Child-1:B: cPps ,slk gS ;gk¡ is fd ----- lkgc rks vius fe= gSA vHkh ljdkj us ,d dfeVhcukbZ gS ftlesa fd oks tkuuk pkg jgs gS iwjs ns’k esa yksxks ls vkSj [kkl rkSj is vkitks ;gkW is vkt vk,s gks fd oks tks vHkh fnYyh esa vk,s gksA tks vHkh fnYyh esa gqvkFkk oks yMdh ds lkFk cl ds vUnj oks lc & le>rs gks uk iwjkAgk¡B: rks csVk ,slk Fkk fd ;s pht dsoy yMfd;ks ds lkFk gh ugha gksrk gS cPpks ds lkFkHkh gksrk gSAyMdks ds lkFk Hkh gksrk gSAB: ge yksx tks QqVikFk is ns[krs jgs gS dke djrs jgs gS ;s f’kdk;r gedks gesa’kkcPpks ls yMdks ls yMfd;ksa ls lcls feyrh Fkh ;sA rks vkt ge yksx tks ;gkW cSBsgS oks vki yksxks ls Hkh tkuuk pkgrk gS vki yksxks dks vxj dksbZ experience oksshare djuk vki vius ckjs esa tks vuqHko gS oks crkuk vkiA lkFk esa ;s dqN tks gStSls vki iz;kl x;s Fks uk remember oks tks NksVs yksx Hkkx ds vk x, Fks vkSj cPpksdks Hkh ysds vk x,s Fks lkFk esa ge ,d NksMrs Fks rhu ckgj vkrs , Fks rhu ckgjHkkxs FksA So this is used to be one they came out with 3. oks D;k Fkk dSlk Fkk D;ksHkkxrs Fks ogkW is D;k gqvk Fkk ge csVs oks lc tkuuk pkgsaxsa vkilsA Bhd gS ;gkW ijT;knkrj uk ge iqjkus lkFkh gS ge yksxAQ: Bhd gSA csVkAChild-1:gkW Bhd gSAQ: vki fcYdqy csfQØ jgh;saA gkW fcYdqy fcuk fdlh Mj ds] fcuk fdlh Hk; ds vkSjvki ;s Hkh le> yks fd HkbZ ge ;s blfy,s iwN jgs gS D;ksfd ,d rks tks gS iwNusls lgh pht irk pyrh gS vkSj fQj tks eryc tks tqYe gksrk gS yksxks ds lkFk oksfQj dHkh ugha gksxk vkSj fQj bruk gh ugha ge ;s djus okys gS fd tks ftUgksusgedks ;g fn;k gS gks lds rks rks ge tks ;s le; fyft,s fd vki tSls pkj yksx gSvkSj vkius ges ;g ckr crkbZ rks ge ckn esa ;s recommendation Hkh nsaxsa fd HkbZdksbZ uk dksbZ fdlh uk fdlh rjg vkidks ,d fu;qfDr dgh is dksbZ tksc dksbZ phtge ,slh djsaxsa blfy,s rkfd vkius fgEer fn[kkbZ vkius lR; crk;k vkSj vkidks510


ge fdlh rjg ls oks Hkh djsxsaA rks eSa vkidks Li"V vkt crkuk pkgrk gwWA le>x,s rqe lcA vc rqe crkvksaA [kqy ds crkvksa] ;kj D;k ckr gS\ rqe ’kq: igys rqegks dgkW ds\ ----------- ds gks\Child 1: eSa ----------- dk gwWQ----------- esa dkSu lh txg ds gks csVs\Child-1 : ----------- + lsAQ----------- lsChild-1 ----------- + ds ikl ,d gS ----------- mldk gwWAQvkSj fQjAChild-1 ogk¡ ls eSa vius eEeh ikik ds lkFk gh vk;k FkkAQdgk¡ isAChild-1 fnYyh esaAQdkSu ls lky esa vk,s rqe\Child-1 dkQh NksVk Fkk eSa rc vk;k Fkk fnYyh eEeh ikik ds lkFk esaA dkQh NksVk Fkk rc vk;k FkkeSAQfdruh mez Fkh rqEgkjh ml le; tc vk,s FksAChild-1 ml le; eSa 8 lky dk FkkAQvPNk vPNk eEeh ikik D;k djrs FksAChild-1 ikik dh nqdku FkhAQdgk¡ fnYyh esa\Child-1 gk¡] fnYyh esaQD;k djrs Fks fnYyh esa\Child-1 fnYyh esa ekfdZV lfCt e.MhAQgk¡ gk¡ ogk¡]Child-1 ogkW is ’kki FkhAQD;k djrs Fks\Child-1 lfCt csprs FksAQlfCt csprs Fks\Child-1 eEeh eryc gkmolokbZQ Fkh eryc ?kj isjgrh FkhA rks oks ;gkW is ysds vk,s vkSj mldsckn tc eSA cMk gqvk 7&8 lky dk gqvk tcA rc esjs tks ikik gS mUgksus nwljh ’kknh dhAQfnYyh esa dh511


Child-1 ugha] ----------- ls ysds vk,s FksA rks ;gkW ’kknh dhA rks oks Fkk fd esjh eEeh dk rykd gks x;kFkk igyh okyh dkA tks esjh lxh eEeh gS mudk rykd gks x;k vc oks vyx jgus yxxbZA ge tc eEeh ds ikl tkrs Fks rks ikik cgqr ekjrs Fks ge yksxks dksAQtjk nqckjk crkbZ;sa tc vki] tc vkiAChild-1 eEeh ls feyus tkrs FksAQChild-1 gk¡Qvki\rks tc vki iqjkuh eEeh ds ikl tkrs FksChild-1 viuh lxh eEeh ds ikl tkrs FksAQgkWA rc oks fiVkbZ djrs FksAChild-1 eq>s Hkh ekjrs Fks vkSj esjh eEeh dks Hkh ekjrs FksA fd D;ks feyrk gS tc ukrk rksM+ fn;k gSmlus rks D;ks tkrk gS feyus ds fy,A rks ogk¡ ls oks ysds vk tkrs FksA ;gkW is tc ysdsvkrs FksA bl eEeh ds ikl ysds vkrs Fks rks D;k gksrk Fkk fd dqN Hkh [kkus ds fy, ekWaxrkFkk dqN Hkh pht ds fy, [kkuk eaxk;k nks jksVh ns nh FkksMh lh lfCtA mrus esa isV ughaHkjrk FkkA [kkfy;k] [ksy ds vkrs fQj nksckjk ls jksVh ekaxh mBk;k dqN Hkh M.Mk o.MkmBk;k cgqr ekjkAQfdlus\Child-1 lksrsyh ekWa usAQBhd gS fQj\Child-1 mlds ckn tks gS ,sls pyrk jgk pyrk jgkA eSa cksyrk eEeh ;s ikik eq>s [kkuk ugha nsrh gS;s gS oks gSA mYVk lh/kk cksyrk Fkk eSa D;ksfd cgqr xqLlk vkrk FkkAQfcYdqy tk;t gSAChild-1 rks oSls gh cMk gks x;k Fkk eSa 10 lky ds dfjcA 10 lky dk gks x;k Fkk eSA rks D;k gqvkfd esjh cguA ge pkj cgu HkkbZ gSA ,d cgu gS vkSj rhu HkkbZ gSA ,d tks cgu gS okslcls cMh gSA esjk HkkbZ gS esjs ls cMk gSa A mlds ckn eSa gwWA esjs ls NksVk ,d vkSj gSA rksesjh cgu jksVh cuk jgh FkhA jksVh cuk jgh Fkh ros is rks mUgksus D;k fdA esjk oks tkslksrsyk HkkbZ gS mlus mlis maxyh j[knh rks mldh maxyh tks gS oks FkksMh lh ty xbZ FkhAros ls ty xbZ Fkh rks mlus ns[kk eEEkh usA maxyh tyk nh esjs csVs dhA gkFk ,sls j[kkmBk;k vkSj ros is j[k fn;k mldkA lksrsyh ek¡ usA esjh cgu dkAQfQjChild-1 ’kke dks eS vk;k eSus ns[kk iwNk D;k gqvkA eq>s vk;k xqLlkA eq>s Hkh lqukus yxh eq>s Hkhdjus yxhA bruk cMk rks Fkk ugh eSA eq>s Hkh ekjus yxh fd rw dkSu gksrk gS ;s gS oks gS512


Qesjh ethZ eSa dqN Hkh d:WA rks esjs dks dqN Hkh fn[kkbZ ugha fn;kA rks eSus mBk;k iRFkj bZVQsad ds ekjkAlgha fd;kA Qsad fn;kAChild-1 iwjk QksM+ fn;kAQQksM fn;kAChild-1 gWWA lj oj QksM fn;k iwjk [kwu owu fudy x;k rks ogkW ls Hkkxk rks mRre uxj esa eS jgrkFkk vius nksLrks ds lkFk esaAQtc HkkxsAChild-1 rks mRre uxj esa eSa vius nksLrks ds lkFk esa 3 gQrs jgk FkkA ogkW ls fQj esjs ikik vk,seq>s fQj ls idM ds ys x,s ?kj ijAQfQj mUgsa irk dSls pyk rqe ogk¡ gks\Child-1 crk fn;k nksLrks usAQnksLrks us fQjAChild-1 nksLrks us crk fn;k ;s gS ;gk¡ is gSA fQj ekjk idM ds A cgqr ekjk fd rw ;s lj QksM djD;ks ekjk rwsuA D;ksa QkMk lj rwus D;k xyfr dj nh Fkh blus\ ikik iwNrs gSaAQgkWAChild-1 fQj eSus cksyk fd eEeh us gkFk tyk fn;k ;s de FkkA rks fQj ml VkbZe ls eq>s ?kj esQjgus dh bPNk gh ugha gqbZAChild-1 gk¡ bPNk gh ugha gqbZ]Qyxk ds NksM nks ml txg dks\Child-1 gkWa] dHkh jgus dks oks yksx dqN Hkh ugha eglql ugha gksrk Fkk fd dksbZ viuk gSAQgwW] gwWChild-1 eryc Hkkxus dk cgqr ‘’kksd gksrk Fkk ml fnu ls esjs dks ,d vkSj ‘’kksd yx x;k fdeS ‘’kknh ikVhZ x;kA ‘’kknh ikVhZ esa x;kAQ?kql x,sAChild-1 ?kql x,s vkSj [kkus ihus dh phtsa ysds vk x;kA dHkh guqeku efUnj dHkh dgha dghaA gfjuxj esa] gfj uxj ?k.Vk ?kj esa ,d larks"kh ekrk efUnj gSA eSA gj QzkbZMs ogkW is tkrk Fkk[kkuk [kkus ds fy,A ogkW is x;k [kkuk okuk [kk;kA ogkW is Hkh rhljh ckj ugha nwljh ckjAesjs ikik ogkW is vk,s eq>s idMk fQj ysds vk,saA esjs nksuks gkFk ckWa/ksA g.Vj ls eq>s ekjkAQgwWChlid-1 vkSj /kedh nh fd vcdh Hkkxk rks rsjh Vkaxs dVok nwWxkAQBhd gSA513


Child-1 fQj mlds ckn eSa ?kj is jgk ,d efguk T;knk ls T;knkA mlds ckn eSa fQj Hkkxk mRreuxj x;kA vius nksLrks ds lkFkA nksLrks ds ikl x;kA nksLrks ds ikl x;k vkSj ogkW ls ,desjk nksLr FkkA ftxjh nksLr Fkk rks oks eq>s ogkW ysds vk;kA xq:}kjsA xq:}kjsABcaxyk lkfgcChild-1 caxyk lkfgc xq:}kjs ysds vk;k rksA QLVZ VkbZe Fkk esjk xq:}kjs esaA eSus ns[kk vPNk gS;gkW rks jksVh f[kykrs gS lc dqN djrs gS ;gkW is jgrs Hkh gSA vPNh txg gS ;s vkSj dkQhnwj Hkh gS rks ogkW ls cl idMrk Fkk mRre uxj ls rks ;gkW is vkrk FkkA rks esjk eu dgkfd ;kj jkst jkst vkus tkus ls Qk;nk D;k gS ;gh jgrs gS ukA xq:}kjs is jgk nks gQrsAogkW is jgk rks muds tks ogkW is lsok tks djrs gsAQlsoknkjAChild-1 mUgksus ekj ds Hkxk fn;kA fd ;gkW lksuk ugh gSAQgwWAChild-1 fQj ogkW is x;kA rks ogkW is eq>s irk yxk fd ;gkW is ikl esa guqeku efUnj gSA rks ogkWns[kk eSausA oks Hkh eq>s vPNk yxk fd lcds lkFk ’fu dk dke djrs gSA ’kfu dh nsgkM+hyxkrs gSA ’kfu dk eryc rsy gksrk gS ’kfu ds mij Mkyrs gS vkSj tks rsy gksrk gS vkSjcRrh gksrh gS mldh oks 15 :0 dh gksrh gS ,d nh;s esaA eSaus lkspk Fkk fd vPNh ckr gSbrus :i;s cl tjk lh pht ds fy, fey jgs gS vPNh ckr gS ukA rks mlh us fdlh useq>s mlh pht is j[k fy;k eq>sAQD;k\Child-1 ’kfu dh nsgkMh ij erycAQBQeryc oksnqdku is j[k fy;kAnqdku is j[k fy;kAChild-1 nqdku is esjs dks nh;s yxkus gS vkSj rsy Mkyuk gS clAQBhd gSAChild-1 oks fQj fd;k eSusA iwjh dk Hkh dke fd;kAQBgw¡\dpkSjh ds ;gkW nqdku isAChild-1 iwjh lfCtAQlfCt Hkh cukrs FksAChild-2 ugha tSlsA514


QBQckWVukAtSls nqdku gksrk gS vkSj xfjc yksx dks ck¡Vrs gS ukAvPNk] fQjChild-1 mlds cknA dkQh fnu chr x;sA eSa 5 lky gks x;s eq>s jgrs jgrsA eryc dkQh dqNcgqr lkjh phts ns[kh ogkW ijAQChild-1 gw¡AQChild-1 gwWAQChild-1 lqys’ku]ogkW is tks phts ns[kh vkiusA tSls fd mu phts esaA NksVk lk elyk ns jgk gwW vkidksAvki eq>s crk ldrs gS fd ;s Fkk ;k ugha FkkAge lc yksxks dks ekywe gS fd ogkW rks u’kk gksrk Hkh FkksMk csprs Hkh gSaABEraser, fluid,CThey put it on the cloth and they smell it.Child-1 vkrk gwWA vkrk gwWA mlh is vkrk gw¡ACBCIts the cheapest form of drug. You know white fluid.Correction fluid.Ya ya correction fluid. That comes in two bottles, one is the white fluid other thinner. When itthickens you use the thinner, they use the thinner to get high, what happens you don’t alwaysuse the thinner, so people throw it. When fluid gets over so that’s how it starts, you find thethinner on road then you put drops of it on your clothes and inhale.BCThat gives you a high.Those who graduate to next level, use smack.B All cushioned by police, all supplied by police.Child-1 esjk ,d nksLr Fkk dju uke dkA dju uke dkA dju uke dk ,d nksLr Fkk esjkA djuuke dk ,d nksLr Fkk esjkA rks tc eSa igys igyh ckj vk;k Fkk ;gkW ij guqeku efUnj esarks eq>s irk ugha Fkk fd D;k pht gksrh gSA rks cl eq>s irk Fkk fd flxjsV gksrh gS chMhgksrh gS vkSj dqN irk gh ugh FkkA dqN lqyks’ku Hkh dqN pht gksrh gSA rks tc eSa guqekuefUnj is vk;k rks dqN yMds xksynkjk cukdsA OgkbZV QywM tks gksrh gSA QywM dks diM+sesa Mky ds ,sls lwWa?krs FksAChild-2 pwuk ikuh vkSj ikuhAChild-1 rks eSa ns[kk ;s D;k dj jgs gSA eSa muds ikl x;k cksyk ds D;k dj jgs gks\ eryc viuheLrh esa eLr gSA vftc vftc lk dj jgs Fks eSus dgkW ikxy rks ugh gks x;s gks rqeA irkugha D;k dj jgs gSACLady story talks.515


Child-1 rks fQj mlus cksyk] rw lgh gSA dgk ls vk;kA vcs dSls ckr dj jgk gS ;sA crk ukA ;ghdk jgus okyk gS rw D;kA gkW ;gh is gwW cgqr fnu ls ;gh is jg jgk gwWA rsjs dks ns[kk ugheSausA vc cksyk lkFk esa r Hkh py dke dj;ksa gekjs lkFkA j[k fy;kA vc ,d ckj mlusesjs dks D;k fn;k ihus ds fy, fn;kA ;s yxk ys dqN ugha gksxkA fi;sxk rks vPNk gksxkAtc yxk;k rks pdjk [kk x;kA iwjk cgqr flj esa nnZ vkSj mfYV mfYV gks xbZ A eSus dgk eSugh fi;wWaxkA ij irk ugha D;k gqvk ,d rMi lh gksrh gS gqMd lh gksrh gS oks fQj pkyw;kj dj fn;kA D;k eqWg yx x;k esjs A fQj Mkyk vkSjihuk pkywA ih;kA ogkW is ,d yMdkvkSj Fkk jkgwy uke dk yM+dk A rks oks esjk [kkl Qzs.M Fkk esjk A rks ge yksxA oks ysdjvkrk Fkk mlds bf.M;k xsV lsA bf.M;k xsV ls tks vkfQl dke gksrs gS ogkW ij A fclysjhcsp jgs gksrs gSA ogkW ij QywM ysds vkrk FkkA oSls rks 22 :i;s dh vkrh FkhA ij tks dpjses Qsadus okyk gksrk Fkk oks 2 :0 dh ,d ’kh’kh nsrk FkkA rks mlls [kfjn ysrs Fks geAdkQh fnu ,sls gh djds eq>s eqEcbZ ?kqeus dk cgqr ’kksd FkkA gfj}kj Hkh ?kqeus dk cgqr’kksd FkkA blfy, ns[kus ds dkj.k eSA igyh ckj gfj}kj x;kAQBogkW ij Hkh csVs u’kk dkQh gksrk gSAgkWChild-1 ogkW is ;s lc pht rks gksrh gS ij ogkW is lcls T;knkABiRrhAChild-1 xkWatkABiRrh Hkkax dhAChild-1 Hkk¡x vkSj xkWatk ihrs gSA D;ksfd lkjs ds lkjs ckck yksx gksrs gS uk blhfy,sAQChild-2 pjlrks ;s ckck yksx HkkWax vkSj xkWtk ihrs gSAChild-1 pjl] xkWatkAChild-2 gkFk ekj ds fudkyrs gSAChild-1 rks eS oSls rks ihrk FkkA rks gedks ,d ckck feykA gfj}kj esa A oks xksrk yxkrk FkkAChild-2 xksrk[kksjAChild-1 xksrk yxkrk FkkAChild-2 gkW gkW xksrk[kksjAChild-1 xksrk yxkrk Fkk vkSj iSls


Child-1 rks mlds ckn mlusA mlh ds lkFk eSA jgkA mlds ckn fQj fnYyh vk;kA rc ,slk Fkkesjk dh xehZ xehZ eSa gfj}kj esa gksrk Fkk D;ksfd ogkW B.M gksrh gSA B.M esa vPNk Hkh yxrkFkk ukgus esa mij ls xeZ /kwi vkSj gj dh ikSMh esa tkvksa xaxk esa ugkvksa ugkyksA fQj ckgjfudyks fQj xehZ yxs rks xaxk esaA ,sls vPNk yxrk FkkA fQj eSa x;kA esjk ,d nksLr FkkAesjks dks ,d ukA gfj}kj esa esjk ,d nksLr cu x;k FkkA eksVk lk yMdk FkkA oks esjs dkscksyk dh rw dgkW is jgrk gSA mldks lc dqN crk;k fd ;s ;s gSA cksyk dh rw esjs lkFkeqEcbZ pysxkA eqEcbZ cgqr vPNk gSA eSa cksyk Bhd gS pywWaxkA ?kqqeuk Hkh gSA eqEcbZ esa rks pyaeSa rsjs dks ysds pyrk gwWaa oks esjs dks ysds eEcbZ py fn;kA esjs ikl iSls ugha Fks dqN Hkh ughaFkk rks mlus D;k fd;k fd xkMh dk tks TokbzV gksrk gS ukA rks mlis ,d pnnj fcNhgksrh gSA mlls ysds x;k eq>s ogkW ysds x;kACerycAChild-2 tSls eSSMe TokbaV gksrk gS FkksMk lk [kqyk jgrk gSAChild-2 gkW gkW Vªsu dh ckr dj jgs gksa gkW gkWA vPNk vPNkAChild-1 tSls TokbaV gksrk gS ukCgkW le> xbZAChild-1 TokbZV gksrk gS uk mlds ikl tks pnnj fcNh gksrh gSa ogkW is cSB ds x;kA ogkW is ns[kk ;sVªsu py jgh gS ;s dgk is ysds tk jgk gS eSus dgkW fd ;kj eq>s dgha vkSj ugha ys tkuk eq>sdgha ugha tkukAC;g LVksjh eq>s Hkh ugha irk FkhA gkW fQjAChild-1 mlds ckn fQj eSa x;k eqEcbZ x;kA ogkW is jgk esa A igys fnu tc x;k rks mlus eq>seqEcbZ cl ?kqek;k ?kqek;kA cgqr lkjh txg ?kqekbZA tqgw pkSikVh ysds x;kA ekfge ysds x;kAvkSj gkth vyh ys ds x;kA vkSj ppZ xsV ys x;k] ckanzk lc dqN ?kqek;kA nwljs fnu D;kgqvk mlds lkFkaA mldk ,d nksLr Fkk ckck FkkA mlus D;k fd;k oks mlds lkFk es jgrkFkkA vkSj mlh ds lkFk esa lksrk FkkQoks yMdkAChild-1 oks yMdk vkSj oks Hkh ogha lksrk Fkk eSA Hkh ogha lksrk Fkk vkSj oks Hkh ogha lksrk FkkA rks ckrgksus yxh mldks T;knk u’kk djk;k yMds dks AQmldks\Child-1 mldks yMds dks eksVs dks T;knk djk;kA erycBckck us u’kk djk;k mldksAChild-1 eryc cgqr dqN djk fn;k mldksAChild-2 fMzt] fozt] lqyks’ku] flfjatA517


Child-1 ugha flfjat ughaABu’kk djk;kAChild-1 lqyks’ku] HkkWax] xkWtk oxSjkg ihyk fn;k mldks Qqy dj fn;k mldksABgwWAChild-1 bl rjQ eSa lks;k gqvk Fkk] ml rjQ oks lks;k gqvk Fkk vkSj b/kj eSa lks jgk Fkk vkSj tSlsgh vkW[k [kqyh esjh rksA rks mlds lkFk ckck xUnk dke dj jgk FkkABgWWAQ rks ckck eryc oks D;k Lokeh Fkk ;kChildBQugha ,sls gh] ,sls gh uke mldk Fkknk


Child-1 oks feyrk gS rks ogkW is [kk;k fi;kA mlds ckn ge twgw pksikVh vk,sA mlh ds jkLrs esaiMrk gS oks LVs’kuA rks ogkW is lqcg lqcg oks bMyh lkacj feyrs gSA dksbZ ckWVus vkrk gSArks bZMyh lkacj ckWaVus vk;k& geus [kk;kA rks gedks ml ikj tkuk Fkka tgkW iRFkj iRFkjyxs gq, gS ukA rkjs flrkjs okys iRFkj rks ml ikj tkuk Fkk gedksA rks vkius ns[kk gksxk,d ,sls jksM vk jgk gS vkSj uhps ls Hkh ,d jksM vk tkrk gSA lh/ks tks tkrk gSA rks D;kgqvk gS fd igys gh eSus ikj dj fy;k FkkA igyk jksM eSus ikj dj fy;k Fkk tks lh/kklh/kk tkrk gSA nwljk Hkh eSus ikj dj fy;kA rks mlus D;k fd;k mlus ,d xUnh irk ughafdlh dh flxjsV ih vkSj ,d jksM ikj dj fy;k rks nwljh jksM ikj dj jgk Fkk rks mij lstks xkMh vk jgh Fkh cgqr LihM is FkhA cgqr LihM esa xkMh Fkh rks oks HkkxkA tSls gh Hkkxkyky xkMh us mMk fn;kA ogh phr gqvk ogh csgks’k gks x;kA irk ugha ej x;k irk ughaD;k gqvkA ogkW ls eSa Hkkx x;kA oks flfoy okys iwNus yxs D;k gSA fdlds lkFk es gS ;sAeq>s ugha irkA ml fnu eSa D;k djrkA eq>s ugha irkA fQj eSa vk x;kA fQj tc oks] vc eSaHkh dgkW tkÅA eSa ogkW is u;k gwWA esjs dks Hkh ugha irk D;k gS D;k ugha gSA rks eSa ogkW x;kmlh ckck ds iklA cgqr lkjk leku Fkk esjs iklA ml yMds dk tks leku Fkk vks


Child-1 vkSj D;k gksrk gS fd tks Hkh pyrk gS mldh pIiy Mwcrh ugha gS cg tkrh gSA vc oksmldh pIiy idMks rks iSls feyrs gSaA eryc rSj dsAQle> x;kAChild-1 fudkyks nks rks iSls feyrs gSA rkS eSus tc ml yMds dks ns[kk fd oks ;s djrk Fkk ikuh esadwnk pIiy idMh okil ys ds vk x;kA ,d pIiy ds oks 40&45 :i;s ysrk FkkA vkSjges’kk pIiy fdlh uk fdlh dh Mwcrh FkhA rks eSus Hkh ;s dke ’kq: dj fn;kA esjk D;kgqvk fd mlh esa ,d ygj vkbZ vkSj eq>s Mwcks fn;k vkSj ikuh eSus ih fy;k FkkA ikuh ihfy;k] cgqr eryc cgqr T;knk ikuh ih fy;kA vkSj cgqr mfYV;k vkbZ vkSj cgqr T;knkrfc;r [kjkc gks xbZ esjhA vc eS D;k d:¡ cksyk dgk tkÅ] D;k d:Wa dksbZ tkuus okyk gSgh ughA ij bruh gsYi ugha dj ldrk esjh A esjk nksLr Fkk bruh Hkh enn ugha djldrk fd nokbZ fnyk nsA eSa D;k djrk rc eSa fQj ls fnYyh vk x;kA cgqr iryk gks x;kFkk eSa eryc fnYyh vk;k guqeku efUnjA dacy tks vkss rks eq>s ogkW ysds x,s ^-----------*] ----------- ysds x,sA vkSjogkW is esjk bZykt gqvk vkSj mlds ckn iwjk bZykt ogkW is djk;k lc dqN djk;k eSusA ogkWis ,d lky ds djhc jgk gwWaxk eSAQBogk¡ vkids lkFk D;k rtqZck D;k gqvk]oks crk] oks crk ns csVkA -----------esa D;k gksrk Fkk D;k ugha gksrk Fkk] oks lquuk pkgsaxsaa oks crkns csVkAChild-1 ogk¡ isAQ***** esa D;k gksrk Fkk\Child-1 ***** esa oks gh [kkuk f[kykrs FksA [kkuk nsrs Fks vkSj is ysds tkrs FksA vkSj ogkW is D;k gksrk Fkk tks Hkh leku vkrk Fkk dqN Hkh vkrkFkk j[k ysrs Fks nsrs ugha Fks cPps yskxks dksABiwjk dk iwjk j[k ysrs Fks oks\ dkSu j[k ysrs Fks oks\520


Child-1 ogkW dk LVkQADogkW dk LVkQ] vki yksxks ds fy, vkrk Fkk j[krs Fks oks yksxA dHkh Hkh ugha nsrs Fks vkidksAtSls D;k djrs Fks\Child-1 tSls ml fnu oks] QaD’ku gqvk vkSj QaD’ku esa eq>s ,d Nrjh feyh Fkh vkSj ,d uk cM+kxqyLrk feyk Fkk bruk cMkADCdk¡p dkAvPNkAChild-1 bruk cMk dkWp dk oks feyk gqvk FkkA oks j[k fy;kA tc eSus tc& dk¡p dk feyk rksÅij ,d vUVh jgrh FkhA vUVhADgwWAChild-1 muds ikl jgrk FkkA vkSj muls eSus ek¡axk fd ;s esjk gSA cgqr lkjk leku tks nhnh Hkh nsdstkrs Fks eq>sAnD’khyk nhnhAChild-1 gkW] nhnh Hkh nsds tkrs Fks oks ys ysrs FksACrqeus rks dHkh crk;k ugha eq>sAChild-1 D;k crkrk oks fQj --ekjrsAD- ekjrsAChild-1 gkWa]DBQekjrs Fks oksAoks lc tkuuk pkgsaxsAdkSu ekjrs Fks oks tks vUVh\Child-1 ugha ugha lj]BChild-1 gkWDQtks lj FksAdkSu Fkk csVk D;k uke gS mudk\Fks dkSu oks\Child-2 th (one man)Child-1 ugha ughaAChild (other name), (Other name)Child-1 ugha oks] -----------,sls dksbZ uke Fkk mldkAQvPNkAC -----------521


Child-1 -----------;k -----------,sls gh dqN uke Fkk mldkABgkWaAChild-1 ,sls gh futkeqnnhu ;k futke uke Fkk rks oks ekjrs Fks gesADekjrs Fks dSls gkFk okFk ekjrs Fks iwjkAChild-1 gkW erycAChild-2 M.Mk ekjrs FksADgS\ fdldks M.Mk ekjrs Fks\Child-2 lcdks tks Hkh ckr ugha lqurk ukA M.Mk T;knk ekjrk gS oksADdgk¡ gkFk isAChild-2 gk¡] eSa [kqn jgk dsA ,d fnu jgk] Hkkx x;k ekSdk ns[kdsAQChild-2 gk¡]Qdksu ;s futkeqnnhu ekjrs Fks\vkSj eryc ;s D;ks] fd HkbZ] oks fdlfy, ekjrs Fks\Child-2 tSls FkksMk lk] mldk FkksMk lk ckr Hkh ugha lquksxs uk lj rks ekj nsrs FksADtSls dkSulk ckr ugha ekuk mldk\Child-2 tSls dg fn;k fd ;s mBk ds j[kns vkSj u;k u;k vk;k gS le> es rks ugh vk;sxkA oksvk;k fy;k M.Mk!HkV!A ekj nsaxsADrks gkFk is ekjsaxsa dgha vkxs ihNs dgha Hkh ekj nsaxs\Child-2 dgha Hkh ekj nsaxsaA gkFk is Hkh ekj nsrs Fks M.MkADChild-2 gkWAflj is Hkh] gkFk is Hkh] ihB is Hkh\Child-1 ,d rks esjk Fkk ?kqeus dk yRrA eSa ’kkSfdu FkkA ?kj esa ugh jgkA eS [kqYyk ekgkSy pkgrk FkkeSA tc eSa Bhd gks x;kA vc eSa [kqYyk ekgkSy pkgrk Fkk fd ;kj dc rd ckWa/k ds j[kwWaxkeSA dc rd ;s nfj;k vkSj ;s lc dqNAD?kqVu gksrk Fkk\Child-1 gkW ?kqVu gksrk FkkAB (name of organization) esaAQChild-1 gk¡AQysfdu Dykl esa tSls es le> yks rqe losjs mB x;sArks eryc ogkW is dksbZ VkbZe Vscy tSls dqN gksrk Fkk ;k ugh\Child-1 gk¡ VkbZe Vscy gksrk FkkA lqcg mBrs Fks------Another child6-00 cts mBrs FksA522


Child-1 5-00 ctsDQ5-00 ctsaAvPNk fQj\Child-1 5-00 cts mBkrs Fks] uk’rk djkrs FksA uk’rk gksrk FkkAAnother child 8-30Child-1 ugha ugha] 7-30 cts ds dfjcQlk


Child-1 cgqr] eryc cgqr lkjs cPps FksADCDfdrus FkslkSa ds dfjc FksAfQj Hkh uEcj ds fglkc ls fxus tk,sa rksAChild-2 mij FksACgwWAChild-2 lkS ls Hkh mij FksACQgkW oks gh dg jgh gwW lkS ls Hkh mij FksA mudh xSnfjax lkS ls mij FksAvkSj lkS ls mij lc\Child-2 tSls 150QvkSj ;s 150 cPps ----------gh ns[krk FkkAChild-1 ugha ugha vkSj Hkh cgqr lkjs LVkQ FksAQLVkQ FksA ysfdu ;fn ;s] ;s tks Fks] ;s tks LVkQ Fks tks vkius ekjihV dh ckr crkbZAysfdu tSls fdlh us eryc le> yks NksVk yMdk gS fdlh ds lkFk dksbZ eryc tSls xUnkdke] dke djus dh ;s Hkh dksf’k’ks dqN gksrh gksaxhA dqN gqbZa fdlh ds lkFk\Child-2 ugha ogkW is ugha gksrk FkkAChild-1 ogkW is lc vyVZ jgrs FksAChild-2 D;kssfd M;wVh is M;wVh is tks gksrs gS uk jkr dks M;wVh is] oks ?kwers jgrs gS pDdj ekjrsjgrs gSAChild-1 pDdj ekjrs gS dkSu lks;k gS dkSu ugha lks;k gSAQChild-1 gkWaQugha ugha vki gekjh ckr ugha le>saAvkil esa ugh djrs Fks oks ckr vyx gSA tks cPps Fks oks vkil esa ugh djrs FksA ysfdu dksbZtks ;s tSls fd -------------Fks ;k mldk tks vkSj dksbZ ds;jVsdj Fkk ;k dksbZ ,slk LVkQ FkkAmlus dksbZ csvnch djus dh dksf’k’k dhsAChild-2 ugha ,slk dqN ughaAQrks fQj D;k gqvk\Child-1 mlds ckn] oks fcLdqV foLdqV nsrs FksA vkSj ’kke dks cl [ksyuk gksrk FkkA [ksyks tks HkhAQvkSj fQjAChild-1 cSV ckWy] dqN Hkh gksrk FkkAChild-2 vark{kjhQ vkSj fQj mlds cknA524


Child-1 ugha 7-00 cts [kkuk gksrk FkkAQfQjChild-1 mlds ckn :e esa dqN Hkh djks] [ksyks dwnks lks tkvksA 8-00 cts lks tkrs FksAQ fQjA rks fQj vkidks ogkW is D;k pht cqjh yxh\DQD,d ckr lj eS iwNuk pkgwWxkA tks lj iwN jgs Fks vHkh vkids lkFk uk gqvk gksAfdlh vkSj ds lkFk gqvk gks\fdlh vkSj dk lquk Fkk D;k dHkh Fkk ,slk dqNAChild-1 ugha ughaAQfdlh ds Åij tcjnLrh dhAChild-1 ugha ughaADbl :e esa fdlh vkSj :e esa dqN ,slkAChild-1 ugha ughaAChild-2 eSa ***** esa Hkh jg pqdk gwWADth csVkAChild-3 *****gkse esa] eathr gS] ghjk flag gS vkSj Bkdqj lj gS] v;adk eSMe gS] ehrk eSMe gSA ehrkeSMe ds ikl esjh QkbZy FkkA nwljk----Qysfdu dqN mUgksus fd;k ugha] eryc oks tcjnLrChild-2 esjs dks oks Hkst fn;k Fkk iVukA ogkW QWalk jg x;k FkkA 4 lky jgk Fkk fnYyh ds ***** esacanAQoks cUn D;ks fd;k Fkk ogkW vyhiqj esaAChild-2 oks esjk vyx dsl FkkAQvPNk eSa vHkh ns[krk gwWA vPNk vc vki crkvksa vkxs D;k gqvk\Child-1 mlds cknA ;s gh pht eq>s vPNh ugh yxrh Fkh VkbZe Vscy ls pyuk iMrk gSAQvkSj fQjAChild-1 mlds ckn esjs nks ,d nksLr Fks] nks rhu nksLr Fks esjsA mlus dgkW ;gkW ls fudyrs gSaAQvkSj fQj] HkkxsAChild-1 ogkW ls Hkkx vk;sQfQj Hkkx ds dgkW vk;sAChild-1 fQj guqeku eafnj isAChild-2 fQj ogha ij] nqckjk ogha ijA525


Child-1 vjs HkS;k vPNk ugha yxrk gSAQvPNk fQjAChild-1 fQj Hkst fn;kAQfQjChild-1 fQj Hkkx vk;kAQfQjChild-1 ,sls djds 4&5 ckjh HkkxkAQfQjChild-1 oks ijs’kku gks x,sA oks ijs’kku gks x,s fd ge ugha j[ksaxsAQeSa vkils ;s iwNuk pkg jgk Fkk fd tSls ;s NksVs cPps gS budh mez ds gS buds lkFkeryc dHkh dHkh Hkh tks gSA vkiA eryc bl rjg dh tcjnLrh tks dh tkrh gS tks lsDlosDl djrs gSA ,sls esa] blesa dHkh vkidks dqN irk pykAChild-4 No Sir, ugha gqvk gSAQgSAChild-4 No Sir,Q vki yksxks ds lkFk fdlh ds lkFk ,slk gqvk ugha gSA u gha vkius fdlh ds nksLr ds ;kfdlh ckjs esa lquk gS ,slsADcsVk vxj lquk gS rks ;s tkuuk t:jh gS ge yksxks ds fy, csVkAChild-1 ,d ckjh vHkh 2000 dqN dh ckr gSADgkWChild-1 2000 gkW 2000 dh ckr gSChild-2 ugha 2000 ls igys fd ckr gSADgwWAChild-1 tkek efLtn is ,d xSax jsi gqvk FkkAQgkWaChild-1 cPph ds lkFkAQDthAgkW gkWChild-1 12 lky dh yMdh FkhQthAChild-1 mlds lkFk esa gqvk Fkk xSax jsiADdkSu fd;k Fkk csVs ;sA526


Child-1 efV;kegy ds yMds Fks oks 4&5 yksxChild-3 efV;kegy ds 6 yksx Fks cgqr ls yksx FksAChild-4 ePNqvkjsAChild-1 oks ghADoks yksx fd,s FksAChild-1 gkW oks rc cl D;k uke Fkk mldkAQCysfdu rqe tks ;s guqeku efUnjA eryc ge vkils ;s iwNuk pkg jgs Fks tSls fd ;s u’kko’kk djrs FksA blesa D;k dqN iqfyl okyks dk Hkh gkFk Fkk\iqfyl okys gh rks Pimps FksAChild-1 iqfyl okys gh rks esu gSAQgS\Child-1 iqfyl okys gh rks esu gSADdSls esu gS] tjk crkuk tjk crkuk csVs dSls\Child-2 tSls lj ge yksx u’kk djrs gSDthAChild-2 tks pksjh djus yxs ;k dqN djus yxsA rks iqfyl okys gels iSls ysrs gSAQeryc rqe u’kk djrs gks rks iqfyl okys rqels iSls ysrs gS\Child-2 gkW idM fy;kQ Bgjks BgjksA fQj u’kk iqfyl nsrk gS ;kChild-2 ugh u’kk rks ge ysdj vkrs gS dgha vksj lsAQChild-2 gkWQvPNk tc u’kk djrs gks rks iqfyl okys rqels iSls ysrs gS\fd HkbZ rqedks ihVsaxsa ;k vUnj cUn dj nsaxsAChild-2 tSls idMk x,s rks le>kus ds ctk,s uk iSls ysrs gS vkSj NksM nsaxsA tSls iSls fy;k pyfudy tk iryh xyh ls nksckjk b/kj er vkbZ;ksa] m/kj tkAQvkSj mlds cknAChild-3 vkSj tks ges csprk Fkk mlls Hkh iSls ysrs FksADgk¡] ;s ckr gSAChild-3 tkek efLtn esa Hkh fdrus yksx csprs jgrs gSA iqfyl okys ,l-,p-vks] osl-,p-vks lc tkrsjgrs gS ns[krs gS [kqys vke fcd jgk gSA fQj Hkh dqN ugha cksyrs gSAQBiSls ysrs gSAyk ns] yk ns]527


Dyk ns] yk ns] iSlk yk nsA iSls iSlsA gSA gQrk ns nsChild-4 vkSj iqfyl okys yksx gh lrkrs gSACD----vkSj ,d pht crkA ml VkbZe is tgkW rd eq>s ;kn vk jgk gSA iqfyl esa ,d dksbZ Fkktks LeSd nsrk FkkA;s rks ------gqvk djrs FksAChild-4 gkWa-----------DChild-1 gk¡] gk¡ACgkW oks gh Fkk uk tks ekjrk Fkk cPPkks dks] lcdks djrk Fkk uk oks gh lc dke uk oks rksAoks tks cPPkks dks ekjrk FkkA mlds ,xasLV dsl ntZ gqvk FkkA oks Lesd nsrk Fkk rqEgsa cPpksadksAChild-2 oks Lesfd;ksa ds lkFk feyk gqvk FkkACDCQChild-1 gkWQfeyk gqvk FkkAoks Lesfd;ksa ds lkFk feyk gqvk FkkAfeyk gqvk FkkA I think that’s a pointvc tSls fd le> yks fd LeSd tks nsrs Fks mlls Hkh iSls ysrs Fks tks vki crk jgs gSAvkSj fQj vkSj fQj eryc ge ;s irk yxkuk pkg jgs gS ;g le> yks fd tSls tks iqfylokys gS vki tSls cPps gS fdlh ds lkFk tcjnLrh oxSjkg dksbZ dqN dksf’k’k dh\Child-1 rc Hkh oks dqN ugha djrs ns[krs gS fudy tkrs gSAQCgS\ugha dHkh iqfyl okyks us dHkh dqN djus dh dksf’k’k dhAChlid-1 dHkh dqN djrs gh ugh gSAQvki esjh ckr le> x,sa tSls oks ckck us fdlh dks u’kk o’kk ihyk ds fQj mlds lkFkfd;k] ,sls dksbZ iqfyl okyks us Hkh fd;k vki yksxks ds lkFk\Chlid-1 ugha lkgcAQDCDeryc vki yksxks ds ;k fdlh nksLr ds lkFkdHkh lquk gS vki yksxks us ,slh ckrAeryc guqeku efUnj ;ktkek efLtn esa tksdgha gqvk gksxk\Child-2 ekjrs gS Hkxk nsrs gS ge yksx dks] u’kk djrs FksA vkSj tSls ge batsD’ku yxkrs FksA eSAbatsD’ku xksyh okyh djrk Fkk528


Child-3 vkSj lj tks oks tkek efLtn is djrs gS uk oks ns[krs gS vkSj lh/ks pys tkrs gSA tSls dksbZijns’kh vk x;k lks jgk gS cSx esa mlds iSls oSls gS mldks dksbZ pksjh djrk gS rks iqfylokys oks yksx ns[krs jgrs gSAChild-2 mlh dk xse djok nsrs gSAChild-3 oks fudy tkrk gS vkSj vkxs tkds mls idMrs gS cksyrs gS vk/kk eky eq>s nsA ugha rks pyvUnj rwAChild-2 gkW gQRkkADcsVk vHkh ;s iwN jgs Fks fd iqfyl okys vxj yMdks ds lkFk ugha rks yMfd;ks ds lkFk rksdjrs gksaxsa mYVk dke ;sAChild-2 djrs rks gksaxsa ;sA fMªad djrs gS pkSdh esaA ,slk ysfMl ds lkFk Hkh djrs gS oksADQgk¡fdu ds lkFk\Child-2 ysfMl ds lkFk tSls ckgj ?kqerh jgrh gSABmldks idM ysrs gSAChild-1 mldks iVk ds yk;k iSls fn;k vksj dj ysrs gSAQdgk¡ dj ysrs gS\Child-2 pkSadh esa dkSu ns[k jgk gSA x;k dke cu x;kAQdgkW pkSdh es ys x,sAChild-2 pkSdh esa HkhQyMdh dks\Child-2 vkSj D;k] ehuk cktkj esa cgqr ,sls gh gksrk jgrk gSAQeryc oks ] oks tks iqfyl okyk gS oks iSls ysrk gS] oks iSls nsrk gS ;k oks oSls gh oks oks--Child-2 iSls nsrk gS oks tSls gks x;k 100&50 ns fn;kAQChild-2 gkWAoks tks yMdh dksAChild-3 vxj dksbZ NksVh yMdh jgrh gS mls ys tkrs gSA xyr dke djokrs gSAQeryc mldks tcjnLrh ys tkrs gSAChild-3 iSls dk ykyp fn[kk dsADiqfyl okys ys tkrs gSAChild-3 gkWa] iSls dk ykyp fn[kk dsAQiqfyl okys iSls dk ykyp fn[kkds mldks ysds tkrs gSA vkSj fQj mldks] mldks fQjmlds lkFk xyr dke djds mldks NksMrs gS\529


Child-3 gk¡A iSls rks ekaxrh gS vxj oks cksyrh eq>s bl dke ds fy, yk,s Fks vkSj ;s djk jgs gks okseuk djrh gS rks fQj mldks ekj ds Hkxk nsrs gSA 100 :i;s ns nsrs gS mls dHkh 10 :-Child-4 mldk dksu vdhu djsxk D;ksfd oks gS ckgj jgus okysA oks gS iqfyl okyk onhZ dk jksctekrk gSAQrks dHkh rqEgs ;s eryc tSls fd rqEgs ,slk yxk tSls yMfd;ks dks iVk ds ys vkrs gS pkSfdesa] ,sls dHkh yMdks dks Hkh]NksVs yMdks dks Hkh djrs Fks dHkh dHkhAChild-3 yMdks dks rks T;knk ;s yksx ugh djrs gSA ckgj ds daxys yksx gks x;k tSls ;s jgrs gSu’kk djrs gS batsD’ku tSls rks lkFk esa tSls batsD’ku ysrs gS tc djrs gSAQeryc iqfyl okys batsD’ku ysrs gS\Child-4 ugha iqfyl okys ughaACother homeless peopleD Other homeless people might be doing.QChild-4 gk¡AQvPNk dHkh ;s ,sls Hkh gksrk Fkk fd NksVh yMdh tSls fn[k xbZ]iqfyl okyk pkSdh ys x;k ;k oks mldks Fkkus ys x;k\Child-4 gkW ;s Hkh gksrk gSQChlid-4 gkWdHkh dHkh Fkkus Hkh ys tkrs gksaxsAQdHkh dHkh Fkkus ys tkrs gksaxsa vkSj ogkW ij mlds lkFk tks Hkh eryc xyr dke gS djdfQj mldks dHkh dHkh ,slk Hkh gqvk fd oks yMdh ckgj ugha vkbZ mldks dgha is tSls fdDQle> yks dksbZ oS’;k ds ?kj esa ;k tks fd D;k dgrs gS oks---What do you call.th-ch-jksM] th-ch-jksMgkW¡] ogk¡ is fHktok nsrs gSAChild-4 gk¡] ,sls Hkh djrs gS iqfyl okysAQgS\Child-4 gk¡] gk¡ djrs gSAChild-3 th-ch-jksM+ gS uk ogkW ls iSls [kkrs gS oks yksx] tks vUnj tkrs gS uk muls iSls Hkh ys ysrs gSoks yksxAQtks eryc tks vUnj tkrk gSAChild-3 gk¡] xyr dke djus ds fy, rks muls iSls ys ysrs gS oks yksxQChild-3 gk¡iSls] iqfyl okyk ysrk gS\530


QvPNk] vkSj dHkh] ugha] tSls fd le> yks tkek efLtn esa NksVh yMdh gS mldks lMd lsmBk fy;k igys mldks mldks ykyp fn[kk nhA ys x;k ogk¡ iqfyl LVs’kuA mlds lkFkxyr dke dj fy;kA ckn esa oks lh/kk th-ch-jksM Hkst nsrk gSAChild-3 gk¡ cgqr tu dj nsrs gS fcpok nsrs gSQfcpok nsrs gS\Child-4 esjh vk¡[kks ds lkeus-----Child-3 gk¡] fcpok nsrs gS-----Child-4 ;s fcpok nsrs gS vkSj iqfyl okys gh tks gS oks cPpks dks fcpok nsrs gSAChild-3 ugha rksa viuk tSls tks cUnk gSA iqfyl okyks dk tks eq[kfcj gksrk gS oks nwljs nyky dsgkFk es fn;kA nyky iSlk mldks fn;k eq[kfcj dksA eq[kfcj us iqfyl okys dks fn;kA nykyrks dHkh Hkh tkds csp nsxk tSls gks x;k t;iqj] esjBAQDQChild-3 gk¡AQChild-3 gk¡AQvPNk csVk vkjke ls crkvksaA csVs /khjs /khjs crkvksaAgk¡Afd igys tks gS iqfyl okyk yMdh dks mBk ysrk gSAeryc ;s tks yMdh gS tks ogkW is oks tks cPph gS ogkW isAeryc mldk ogk¡ is tkek efLtn is dksbZ gS gh ughA ykpkj gS oks\Child-3 gk¡] le>ks tSls mldk dksbZ ugh gS] ysfMl] yMdh dsQgk¡AChild-3 rks oks ckgj vkbZ] iqfyl okyk fd;k igys xyr] djds----Qoks dgk¡ djrk gS xyr] oks pkSdh is\Child-3 pkSdh is Hkh dj ldrk gS vkSj tgkW lqulku lh gks] ogk¡ is Hkh dj ldrk gSAQgk¡] gk¡ vkSj fQj djus ds cknAChild-3 vius eq[kfcj dks tkds nsrk gS oksQgS\Child-3 eq[kfcj eq[kfcjDQeq[kfcj eryc buQkeZjA tks buQkeZj gksrs gS buds iqfyl ds uk--gk¡AChild-3 D;ksfd] oks onhZ esa tk;sxk rks lcdksAQgk¡] gk¡AChild-3 ehfM;k okys] rc lcdks irk py tk;sxkA531


Qgk¡AChild-3 rks blfy, oks vius eq[kfcj dks nsrk gS mldk irk Hkh ugha pysxk fdlh dksADeq[kfcj bt buQkeZj] who inform the police fd HkbZ ;s gks jgk gS oks gks jgk gS ,sls policeQkeeps informers with them.gk¡] rks eq[kfcj dks crkrk gSAChild-3 nsrk gS handover dj nsrk gSAChild-4 gk¡ handover yMdh dksAChild-3 fd vc rw vc nyky ds gkFk es ns ds vkAQChild-3 gk¡AQbl yMdh dks rw nyky ds gkFk es ns ds vkAvkSj nyky dgk¡ jgrk gS\Child-3 nyky] jgrk gh gS muds lkFk jgrk gS oks rks iqfyl okyks ds gQrk rd esa lkFk jgrk gSAQChild-3 gk¡]oks nyky]Q oks nyky fQj ml yMdh dks mBk ds] –Child-3 gk¡] nwj nwj csp nsrk gSAChild-4 vHkh dh vHkh dh ckr gSA gekjs lsUVj esa vaVh dke djrh gSAQChild-4 ---------rqEgkjh dkSu lh lsaVj gSCQWhere they work now, they works with the children there.vks vPNkAE This shelter sir that we are running voluntary without govt. support or all.Qgk¡ ogkW is D;k gqvk crkvksa\Child-4 mudh yMdh gS] rks mlus D;k fd oks ,d vkneh mldks feykA gw¡A vkneh feyk] mlusD;k fd;k mldks csp fn;kA dgk¡ is cspk& gfj;k.kk esaAQdkSu eryc tSls fd ;s tks vki crk jgs gSAChild-4 gkW] ughAQ ugha ugha] tSls dhAChild-4 iqyhl us ughaAQgk¡Child-3 vkSj dksbZ Hkh djrs gS uk]Qgk¡532


Child-4 fdlh us] eryc ,d vkneh Fkk tkuus okykAQgSa\Child-3 ysfMl Hkh djrh gS uk]QgS\Child-4 ysfMl Hkh djrh gS tsUVl Hkh djrk gS vkSjQChild-4 gk¡]eryc ;s cspus ckpus dk dkeChild-1 tSls vkSj dksbZ Hkh gksrk gS] eSa crkrk gwWA] tSls vkSj dksbZ gksrk gS ckgj esa ysfMl jgrh gS rksmldks ekywe gS fd ;gk¡ is esjs dks cspus ls iSls feysxkAQgwWAChild-1 mldks dke ds cgkus ls ys x;k fd ;s dke djuk gS >kMw ikspk] 350 feysxk] 500 feysxkefguk rks mldks D;k irk A oks rks xbZ dke djus ds fy, lkspk iSlk feysxkA ogk¡ is NksMds vk jgs gS cspdsAChild-4 oks gh] oks gh mlds lkFk esa oks gh gqvkA oks xbZA gSA mlds lkFk esa xbZ] mlus ’kknh djyh] mlds lkFk esa ’kknh dj yhA mlus dgk fd ;gkW is dke gS dke dj yh] fdlh ?kj esaAmlus iSls ys fy,sA eryc 50] oks crk jgh Fkh 80]000 :i;s mlus vkneh ls ys fy, FksAQfdlus\Child-1 oks vkneh usAChild-4 ml nwljs vkneh ls] mlls mlls ys fy,s FksA vc oks D;k djrk Fkk fd :e esa can djdsj[krk Fkk oksAQgk¡Child-4 ges’kk :e esa can djds j[krk FkkAChild-1 ckgj ugha fudyus nsrk Fkk] D;ksfd ckgj fudy tk;sxh rks Hkkx tk;sxh] rks iqfyl okys lcdks QSy tk;sxkAChild-1 dksbZ uk dksbZ rks iqfyl okyk bZekunkj gksrk gSChlid-4 tSls x;s oks D;k gqvk fd ckydksuh FkhA ckydkuh esa can djds j[kk FkkA irk ugha dSls[kksy fy;k mlusA oks tks yMdh Fkh oks ikbZi ds lgkjs uhps mrjh vkSj Hkkx ds vkxbZAvkds crkrh gS oks& mldks tks gS gks x;k FkkA rhu efgusA rhu efgus ckn vkbZ Fkh ;syMdh viuh ekW ds iklA oks cgqr eryc vkW[k esa x


Child-4 rks mlls iwNk x;k fd dSls dSls D;k gqvk\ rks mlus crk;k fd ,d vkneh feykA eSusmlls ‘’kknh dj yh vkSj mlus eq>s ogkW is csp fn;kAChild-3 mldks tyk fn;kA eryc iSj oSj tyk fn;kChild-4 iSj oSj tyk fn;k mldkAQeryc blesa eSa ;s iwNuk pkgrk gwW fd tks ;s nyky gS ogkW is tks ;s le> yks tks yMfd;ksadk vigj.k djrs gSA NksVs NksVs cPPkks dk vigj.k djrs gSAChild-4 yMdk rd dks csprs gSADQyMdk dks Hkh csprs gS\yM+dk dks Hkh csprs gS\Child-4 gk¡] ;gk¡ lkgjuiqj ds vkxs pys tkvksA ,d lkgjuiqj dk cktkj yxrk gS ,d txg isAQgk¡Child-4 ogk¡ ij yMdk yMdh lc fcd tk,xkA lj le>ks eSa [kM+k gw¡ ogk¡ is cktkj eas [kM+k gw¡AdksbZ ns[ksxk ihNs ls ;s gS yM+dk ns[k yks vkdsA ns[k fy;kA gSaA nke yxk nsxkA tSls nkeyxk nsxkAQgw¡AChild-4 fd ;s gS uk] 30 yk[k dk gSAQgw¡AChild-4 Bhd gSA xkMhA iSlk fn;k lkeus ls xkMh ysxkA QVs ls uh vUnj Hkjsxk vksj eq¡g cUn djdsj[k nsxk mldksAQChild-4 gk¡Qrks ;s rks lkgjuiqj fd ckr gqbZ ukAysfdu ogkW ij Hkh iqfyl okyk ns[krk gSAChild-4 ogk¡ is cktkj gh yxrk gSA ogk¡ D;kAQogk¡] is cktkj yxrk gS\Child-4 gk¡] cgqr cM+k cktkjAQrks eryc ogkW is cktkj esa cPpks dks csp jgs gS\Child-4 cPpk gks] ysfMl gks dksbZ Hkh gksAQogk¡ ij lkgjuiqj esaAChild-4 gk¡ ogk¡ isAQrks ogkW is iqfyl ns[krh ugh gS ns[krh ugh gS ;s lcAChild-4 cktkj es tk Hkh ugh ldrkA iSls feyrs gS ukAQdkSu\534


Child-4 iqfyl okys dks iSls feyrs gS rks D;k tk;sxkAQChild-4 gk¡QChild-4 gk¡QChild-4 gk¡QChild-4 gk¡Qeryc ns[kks] eryc nks phts gSA ,d rks gS fd nyky csprk gS\vkSj oks gQrk ;k dqN iSlk nsrk gS iqfyl okys dks\nwljk gS fd iqfyl okyk tks gS oks [kqn csprk gS eryc nyky ds tfj;saA eryc oksidMrk gSAeryc nks rfjds gq,sA,d gS fd HkbZ fdlh us [kfjn fy;k gS ;k cspk vkSj mlus iSls mldks fn;s iqfyl okys dksAChild-4 ,d pht vkSj gksrk gSAQChild-4 gk¡QChild-4 gk¡]Qlquks] ,d rks mlus iqfyl okys dks fn;sAnwljk gS fd iqfyl okyk cPps dks idM ysrk gS vkSj fQj oks tkds nyky ds gkFkks easigqWpkrk gSA nksuks pht gksrh gS\Child-4 gk¡ ljAQChild-4 gkDnksuks pht gksrh gS\rks eryc iqfyl okys Hkh ;s mBkdj csprs gS\iqfyl okys eryc dke ds ugh gS eryc tks gS gekjs tks gSAChild-4 ugha ughaADgS\Child-4 dksbZ dke ds ugh gSADgS\Chlid-4 vk/ks ls T;knk tks gSAChlid-3 feys gksrs gS cgqr lkjsAChlid-4 bZekunkj Hkh gksrs gS T;knk gQrk [kkus okys gksrs gSAQeryc tks bZekunkj gS oks Hkh gQrk [kkus okys cu tkrs gSAChlid-4 gk¡ mlds lkFk jgrs jgrs oks Hkh cu tkrk gSA535


QChlid-4 gk¡AQoks Hkh cu tkrk gS] ysfdu blesa ls tks vk/kk gS oks rks oks rks csVk cspus ckpus esa yx tkrkgSAvk/kk rks cspus ckpus esa djrk gSAChlid-1 eSa crkrk gwW tc eSa NksVk Fkk tc eSa vius nksLrs ds lkFk jgrk FkkA -------ds ikl ;s----D-------------- esa---Chlid-4 Area, place of worship.CArea, place of worship.Chlid-1 Area, place of worship.Cugha oks rks area esa gSA He could have in----Chlid-4 (area)] esa tks ,d efUnj iMrk gS efUnj ds lkeus ,d cgqr lkjh txg [kkyh gSA eryc[k.Mj gh [k.Mj gSAQgk¡] gk¡Chlid-4 rks esjs dks mlus crk;k] eq>s irk ugh Fkk D;k gks jgk gSA mlus crk;k fd cl rw ns[k dqNer cksfy;ksaAQvPNk Bhd gSAChlid-4 rks ,d xkMh vkbZA ,d yMdh cSx ysds tk jgh Fkh rks iqfyl okys us idM yhADyMdh dksChlid-4 gk¡ yMdh dks iwNk rkNk D;k D;k irk ughaA mldks fcBk fy;kADfdlus\Chlid-4 iqfyl okyks usADviuh xkMh esa\Chlid-4 gk¡] vkSj tgk¡ is taxy Fkk] taxy ds vUnj xkMh ?kqlsM nhAQgS\Chlid-4 lHkh ns[kus yxs D;k dj jgs gS] ge mlds ihNs ihNs x,s ns[kk rks yMdh fpYyk jgh gS vkSj,d us eqWg nck j[kk gS vkSjAQDQDQugha ugha iqjh ckr crkvksaAiqjh csVk]iqjh ckr crkvksAiqjh ckr crkvksaA blesa dksbZ ,sls eryc ugh gSAgk¡] gk¡ns[kksa blesa ’keZ er djksA blesa ’keZ er djksAChlid-4 rhu yksx FksA536


QDQlqu yks csVsA blesa ’keZ er j[kksA iqjh ckr crkvksA dksbZ fnDdr ugh gSAgk¡] gk¡Aiqjh ckr crkvksAChlid-4 rhu iqfyl okys FksA ,d MªkbZoj Fkk vkSj nks vkSj FksAQDChild-4 gk¡]DQDgk¡Aiqyhl dh xkM+h Fkh ih-lh-vkj oSu gksrh gSAih-lh-vkj oSu ljAih-lh-vkj vkSj ;s ih-lh-vkj oSu tks gS oks ysds x,s yMdh dkstaxy esaAChild-4 taxy esa ys ds x,s vkSj ge Hkh mlds ihNs ihNs x;sAQgk¡AChild-4 ns[kus ds fy,AChild-2 ns[kus ds fy,AChild-4 tks MªkbZoj FkkAChild-2 tks ih-lh-vkj dk MªkbZoj FkkAChild-4 rks mlus eqWg nck j[kk Fkk vkSj tks nks Fks oks mldk jsi dj jgs FksAQgS\Child-4 oks mls jsi dj jgs FksAQoks jsi dj jgs Fks\Child-4 jsi dj jgs FksAQgk¡A vkSj fQjChild-4 eryc fQj tks yMdk FkkA oks eq>s Hkh ns[ks tks eSus mldks ns[kk rks eS Hkh cgqr Mj x;k fdiqfyl okys gsS vxj dqN HkhChild-3 idM fy;k rksAChild-4 vxj ’kksj Hkh epk fn;k rks gedks rks ekj----QfcYdqy ekj nsaxsa rqEgs tku lsAChild-4 gk¡] ekj Mkysaxsa D;ksfd iqfyl okys gSAQgk¡AChild-4 rks mlus esjs dks cksyk fd tks Hkh ns[k jgk gS cl rw vius lhus esa jf[k;ksa fdlh dks crkbZ;ksaerA ugha rks vxjA vHkh irk py x;k uk budksA fd geusA rks ;gh is xksyh ekj nsaxsAQvkSj fQj mlus mlds lkFk cykRdkj fd;kA537


Child-4 cykRdkj fd;kAQvkSj fQjAChild-2 ns[krs jgs eryc oks 9-00 cts dh ckr FkhA jkr dksA 9-00 cts ls muds gks x;s 11-00 &11-30 ctsAQDeryc 9-00 ls 11-30 cts rd bUgksus tks gS ;s yMdh ds lkFk dke fd;kA fQj MªkbZoj usHkh fd;k gksxkArhuks us fd;k gksxkAChild-4 rhuks us fd;kA mlds ckn mlus oks irk ugha yMdh dks D;k fn;kA irk ugha D;k fd;kAyMdh dks oks uhps Qsad fn;kA mlls xkMh lsA xkMh ls uhps QsadkChild-4 fQj mlds ckn oks xkMh mlus eqMkbZ vkSjChild-3 Hkkx x;kAChlid-4 ihNs pyk x;kAQChild-4 ughaAQeryc xkMh yMdh ds mij ugha p


Child-4 ge NksVs NksVs jgs erycAQvc rqe ;s crkvks fd ;s tks rqeus gknlk ns[kkA ,slk vkius vkSj Hkh ns[ks dgha\Child-4 ughaA ,d ns[kk FkAQysfdu oks tks rqEgkjs nksLr us dgk fd vc rw nsf[k;ksa tc mlus dgk rqels rks mlus igysdHkh ;s pht ns[kh gksxhAChild-4 ns[kh gksxh t:j ns[kh gksxhAChild-3 gk¡A ns[kh gksxh cpiu esaAQDQmlus Hkh ns[kh gksxh fd taxy esa ;s tk jgs gS iqfyl oSu esafdruh ckj ns[kk vkSj\dkQh ckj ns[k gksxk] rHkh rks rqe dks ysds x;kAChild-3 rHkh rksAQeryc tks rqe dg jgs gks fd iqfyl okys le> yks eryc eksVk eksVh eSa viuh Hkk"kk es iqNwdh le> yks dksbZ yMdh budks dgha fey tk,s rksAChild-4 ekSdk ns[k ds ekSdk dk Qk;nk mBk ysaxsAQeryc eksVk eksVh ckr gS fd yMdh dgha budks fn[k tk;sa rks mldks&mldks gMius esabudks nsjh ugh ysxhxhAChild-4 nsj ugh yxsxhAQ;s lgh ckr gS fd xyr ckr gSAChild-4 lgh ckr gSAChild-2 iqfyl okys dk rks xyr ckr gSAChild-4 oks gh irk gS iwNrkN djsaxsaA dgkW ls vkbZ gS\ D;k gS\ bruh jkr dks dgkW xbZ Fkh\ ;s gS]oks gSA QWlk;saxsa eryc ckrks ckrks esa QWalk ysaxsa oks yksxA mlds ckn dgsaxsa fn[kk viuk izwQfn[kk ;s fn[kk oks fn[kkAChild-2 gk¡Child-4 xkMh esa cqyk;k xkMh pkyw dhAQeryc mldks /kdsyrs gS ;k D;k\Child-2 ugha mldks ,sls rfjds ls ys tkrs gSADgk¡AChild-2 ugha tSls le>ks ge rhu iqfyl okys gS fn[k x;k jkr ds le;A rks iwNsxk fd izsQ dgkW gSA dgk¡ ls vkbZ gS D;k djus xbZ FkhA bruk nsj dSls gqvkA izqQ ozqQ fn[kk ugha rks FkkuspyA fn[kkA ,sls djrs djrs xkMh esa can djsxk vkSj mldks taxy ds lkbZM esa ys tk;sxkAQ rks eryc ,slh pht tks rqe dg jgs gks iqfyl okyks dh eryc ;s] eryc ;s -----539


Child-2 gk¡AQdksbZ [kkl ckr ugh gS fnYyh esaAChild-2 ugha vke gS] vke gS ;sQChild-2 gk¡QChild-2 gk¡AQChild-2 gk¡Qvke gS djrs gS;s eryc cMs ’kksd lsAeryc rks ;s tks jkr dks tks iqfyl oSu lc ;s ih-lh-vkj ?kqerh gS A tSls fd HkbZ lcdhlqj{kk dj jgh gSdgha budks yMdh fn[ktk;sa-----Child-2 rks ;s Hkh ekj ysrs gSAQgSa\Child-2 ekSdk dk Qk;nk ekj ysrs gSaAQChild-2 gk¡QChild-2 gk¡ gk¡QekSdk dk Qk;nk ekjrs gSArks dHkh dHkh ;s iqfyl okys ,sls Hkh djrs gS fd tSls ihlhvkj tSls fd le> yks fd yksxksdh cLrh gSA futkeqnnhu tSlk bZykdk gSA cLrh gSA yksxks dh cLrh gSA dbZ ,sls gS tSlscaxykns’kh vkSjrs oxSjkgA ;s le> yks dh dgha tks QykbZ vksoj ds uhps tks etnwj gSChild-2 gk¡] gk¡aAQogk¡ is tks vkSjrs vkrh gSa ysVh jgrh gSA rqe le> x;sfd eryc ;s tks gS uk daLVªD’ku odZ dk dke djrh gSA ;s tks ---Bsys gks x;kAChild-2 gk¡] gk¡a] ot+u mBkus dk dke djrs gS] tSls lhesUV mBkuk ;s lc----Qoks djrs gSAChild-2 gk¡] gk¡aAQtSls lhesUV mBkuk vksj tks gS ogkW is Hkh tkds ;s iqfyl okys tkds mudks idM+ ysrs gSAChild-2 idM+ rks ugh ldrs ,sls ij tc ns[kk dksbZ ugh gSA ,d gh tu gS rc oks Qk;nk mBkrs gSAQeryc FkksM+k lk oks ns[krs gSAChild-2 ns[k ysrs gSAQChild-2 gk¡] gk¡aAle> yks fd le> yks tSls oks vkneh tks gS oks lks jgk gS ckr le> x;s ukA540


Qvkneh lks jgk gS ysfdu oks mUgksus Iyku cuk fy;k fd HkbZ ;s vkSjr ;gkW is ysVh gS mldksFkksMk lk mBk ds mldks u’kk nsxs QVd ls thi esa fcBk ysrs gSA ;s Hkh gksrk gS\Child-2 gk¡] fcYdqyQgwWAChild-2 gk ljAChild-3 Yes Sir gksrk gSAChild-3 geus cgqr ns[kk gS b/kjAQdgkW ns[kk gS csVk rqeusAChild-3 cokus cokus dh lkbZM uk tks jkLrs es tks ekaxus okys yksx gksrs gS ukAQChild-2 tks----dkSu ls ekWaxus okys\Child-3 oks cokus dh lkbZM lks tkrs gS b/kj m/kj lMdks is rks ---- txg gS ogkW is rks dkbZ ?kwerkugh lc ekaxus okys lksrs jgrs gSAQgk¡] gk¡aAChild-3 ftrus tks vke ifCyd yksx gksrs gS u’ks o’ks es gksrs gS rks tks vkSjrs vkSj cPPks oPps gksrs gSu’ks djds muds lkFk xyr gjdr dj nsrs gSA ge ,d ckj tc vius ikik ds lkFk tk jgsFks ukA pkj cts lqcg tkrs gSA rks geus ns[kk Fkk ,d cPps dks],d cPpk fpYyk jgk Fkk oksvkneh cPps dk eqWg nkck gqvk Fkk ’kkSpky; esaAQChild-3 gk¡]Q’kkSpky; esa\iqfyl okykAChild-3 iqfyl okyk ugha Fkk dksbZ vke vkneh FkkAQvke vkneh FkkA ysfdu iqfyl okys Hkh ;s djrs gSChild-3 oks m/kj ls iqfyl dh Hkh xkMh -----Qiqfyl okys Hkh ,sls djrs gSAChild-4 gk¡] gk¡a fcYdqyAChild-3 iqfyl dh Hkh xkMh tk jgh Fkh lj rks mUgksus vkokt lqukA 2&3 feuV xkMh jksdk fQj HkhdqN ugh cksyk pys x,s oks lh/kkACDQcrkvksaAThat should be issue.eryc tc iqfyl okys us ns[kk fd ;s xyr gks jgk gS rc Hkh oks vkxs ns[k ds Hkkx dsx;kA541


Child-3 oks ns[kk tSls xkMh [kM+h gSAChild-3 rks jkr dk VkbZe Fkk ges rks Mj yx jgk FkkA ikik Fks eSus cksyk ikik ;gkW ij :dks erpyksAQrks eq>s crkvksa fd tSls ;s eryc ;s tks cPps dks cspuk] yMdh dks cspuk] yMds dks cspukAbu lc esa iqfyl dk gkFk gSAChild-2 gk¡] gk¡aAQDQDQDbu dkeks esADrug supply esa ljAgS\Drug supply esa budk [kkl gkFk gSAeryc ;s u’kk Hkh-----u’kk Hkh csprs gS ;s----Child-2 vHkh irk gS vHkh vHkhQgSa\Child-2 vHkh] tks vHkh vkt gh dh ckr gS fd vHkh vHkh tkek efLtn ds vkxsA tks LeSd dh tksiqfM;k gksrh gSAQgk¡] gk¡aAChild-2 mldk Hkh gQrk ysrs gS vkSj tks xkWtk gksrk gSA xkWatk is Hkh oks gQrk ysrs gSA tks Hkh ;scsprk gSA ftrus Hkh yksx gSA tks ;s lqykslu csprk gS u’kk csprk gS vkSj ;s--- - bu lclsgQrk ysrs gS ;s yksxAChild-4 vkSj tSls dksbZ cMk lj vk x;k uk ljAQgSa\Child-4 tSls dksbZ cMs dksbZ lj vk x;s uk rks cksysxk ;gkW ls tYnh gVk yksA 5&6 feuV ds fy,gVk ysA vk jgs gS cMs ljA fQj ?kiyk djds dksbZ tehu ds uhps [kksn fn;k AfeVVh esaQeSa le> x;kA rks ;s tks yMdh cspuk ;k yMdk cspuk ;k ;s tks cspus dh tks izfØ;k gSAblesa iqfyl dk ;k gQrk ysus dk gS ;k ugha rks ;s [kqn csp nsrs gSAChild-2 eq[kfcj ls T;knk djds djokrs gSAQChild-2 gk¡] gk¡aAQChild-2 gk¡] gk¡aAQgk¡ eryc eq[kfcj lsA gk¡ ysfdu ;s tks gS idM ysrs gSAtks ykpkj gS oks idMds bldh ctk;s fd mldh enn djsa mldks csp nsrs gSAmldks cqyk ysrs gS fd ys rw ys tkA542


Child-2 gk¡] gk¡aAQD;k eksVk eksVh ckr lgh gS ;k xyr gS\Child-2 lgh gS ljAChild-4 lgh gS ljAQrks le> yks fd ;s eryc csVs eryc ;s csVs ;s ds fdrus erycA le> yks ds ;s fdruhijlsUV ;k fdruk izfr’kr ,sls gksrk gksxkAChild-2 cgqr gksrk gSAQcM+k [kqye [kqyk gksrk gSAChild-3 lj [kqye [kqyk gksrk gSA ,sls ehuk cktkj esa Hkh ,sls yMdh oMdh ?kqerh gS ukAQgk¡] gk¡aAChild-3 mudks cksyrs gS vkvks pysA brus :i;s nwWaxkA ,d jkr ds fy, pyksAQgk fQjChild-3 dksbZ tkek efLtn dk Hkh cgqr LVkQ gksxk ukA ogk¡ yMdh yksx dks cksyrk gS brus :i;snwWaxkA pyks esjs ?kj isAQgk¡] gk¡aAChild-3 muls Hkh eSus cgqr yksxks ls lquk gSADChild-3 ughaALVkQ dkSu csVk iqfyl LVkQ\Child-2 M;wVh djus okysA tSls lsUVj esa dksbZ M;wVh djrs gS uk oks Hkh vkt dy gks jgk gSAQlsUVj esa erycAChild-2 ,u-th-vks esaAQgkW oks Hkh djrs gS\Child-2 gk¡] ikdZ ds ,u-th- vks esa tSls gks x;kA rks ogkW is M;wVh djus okys HkhChild-3 lj oks tks ikdZ esa vHkh gksl cuk gS uk Cyw dyj dkADgk¡]Child-3 mu yksx esa T;knk gksrk gSA ,sls gh yMdh;ksa ls oks eLrh ysrs jgrs gSA xyr gjdr Hkhdjrs jgrs gSAQ Which Park?D Sir, this is Urdu Park. Urdu Park es There is a shelter for homelessQ Urdu Park gk¡] gk¡aAChild-2 ----------esa jgrk gwW lj eSa vHkhAQgk¡] gk¡aA ogkW is\543


Child-2 ogk¡ is gekjs tks gekjk ----------- gSA ogk¡ is ugh gksrk gS lj ;s vHkhA eSa dHkh dHkh ----------- esavkrk gwWAQgk¡]Child-2 igys eryc ----------- esa gh jgrk Fkk eSAQChild-2 gk¡AQChild-2 gk¡AQDrks eryc ,sls HkbZ ,sls dkQh phts gksrh gSAvc tSls dh jSu clsjk gS ogkW is Hkh gksrk gS\;s tks jSu clsjk gSAlj tks crk jgs gS ogkW dh ckr crkvksa tks LVkQ gSA rks jSu clsjk dk LVkQ rqe crk jgsgks mij tks nks gS cus gq,aA ogkW is djrs gS xyr dke\Child-3 ugha dgha vkSj ys tkds djrs gSADQysfdu mlds yksx djrs gS ogkW isAdqN yksx ogkW is vkds djrs Hkh gSAChild-3 gk¡A dqN yksx djrs gS tSls jtkbZ ds vUnj djrs gSAQgk¡] le> x;kAChild-2 vkSj tSls lj ,d vkSj ckr gksrh gSA tSls lqyslu ihrh gS yMdh LeSd ihrh gSA rks muyksx dks Hkh T;knk djds f’kdkj cukrs gSA igys ls f’kdkj cuuk jg tkrk gS fQj vkSj cuknsrs gS f’kdkjAQDQrks eryc rqeus dHkh ,sls Hkh ns[kk gS fd tgkW is eryc vPNs ?kj dh yMdh gSA dksbZ tSlsvkius crk;k fd oks tks yMdh tks fczt ds uhps tk jgh Fkh ml fnu oks tksAiqfyl us idM fy;kAoks eryc rqEgs ,sls dksbZ oks xyr VkbZi dh yMdh rks rqEgs fn[kh ughAQQeryc gS.M cSx ds lkFk tks tk jgh FkhAgk¡AChild-2 eryc cSx yVdk j[kk Fkk ftUl igu j[kh Fkh vkSj Cyw dyj dh Vh’kVZ igu j[kh FkhAQgk¡A oks eryc oks eryc ,sls ugh yx jgh Fkh dksbZ xyr gksaAChild-2 ugha ugha ughaAQChild-2 gkWQoks cl py jgh FkhAvkSj bUgksus oks tks gS xkMh esa mBk yhA544


Child-2 jksdh vkSj ys ds iwNrkN dh vkSj mlds ckn pyks vUnj pyks vkSj ys ds x,s vanjADQChild-2 gk¡AQChild-2 gk¡QFkkus ds cgkusAFkkus ds cgkus djds vkSj ys ds oks taxy esa ys ds vkSj fQj ;s fd;kArks eryc ,sls gS fd rqe vkSj rqEgkjs lkFkh tc gks tks gS vkil es rks ckrphr gksrh gh gSfd ;s iqfyl okys djrs D;k gS rks vki yksxks dks ;s ,sls eryc yxrk gS\eryc iqfyl okys ;s ,sls ’kSrkuh es pwdrs ugh gSAChild-2 ugha ughaQChild-2 gkWaAQChild-2 gk¡AQgS\] ;g tgkW rd ;s yMdh okyk ekeyk gS\eryc nks phts gS ,d rks gS fd oks tks gS taxy esa ysds x,s vkSj jsi fd;kA;k tks fd;k] nwljk gS fd rqeus NksVh yMdh dks mBk;k] fdlh ds gkFk fn;k] ds HkbZ cspks;k th-ch- jksM esa Hkst nksAChlid-2 ;s djrs gSAQChild-2 gk¡AQChild-2 gk¡AQeryc ;s lc Hkh djrs gSA th-ch-jksM ds tks lIyk;j gSA vki le> jgs gS tks lIykbZ djrsgS ogkW os tks cPps oPps\Child-2 gk¡AChild-3 Yes Sir.QChild-2 gk¡AQChild-2 gk¡AQrks mlesa tks gS ;s esu budh iqfyl okys gS\ ;s gS\;s gh gS tks lIykbZ djrs gS\gS tks mBk dsrks eryc bruk rks ns[kks\ rqe ------ds gks\rqe dk; ftys ds gks\Child-2 eSa] ---------------ftyk dkAQrqe ---------------ds gks\Child-3 ---------------ls ge gSA545


QChild-3 gk¡AQvkSj rqe\ rqe Hkh ---------------ds gks\vkSj rqe csVk\Child-4 ---------------ftyk] ---------------QChild-4 gk¡AQrqe ---------------ds gks\vkSj vkiChild-1 ---------------QD ---------------QChild-2 gk¡AQvPNk rqe --------------- ds gks\vPNk vc vki eq>s ;s crh;kvks fd ;s tks iqfyl okys gS ;gkW ds] le> yks cPps ckgj lsvkds mudks f’kdkj cuk jgs gS rks mudks ;s Hkh rks dksbZ uk dksbZ rks bRrykg gksxhA erycckgj ds iqfyl okys ls ;k mudk tks dksUVsDV eSu gksxk ckgj ds iqfyl okys dk ds HkbZ;gk¡ is ;s cPpk ?kqe jgk gS >iVksa\eryc ,sls FkksMh gS fd oks okfdax dj jgk gS iqfyl okyk vkSj ,d cPps dks >iV ds oksmBk ds ys ds tk,sxk\Child-2 ,sls rks ugh gSA mldks eryc CySdesy djsQ,sls ugh gS] mldks erycChild-2 Iysfuax djdsQgS\Child-2 Iysfuax ds lkFk----QChild-2 gk¡QChild-2 gk¡iySfuax ds lkFk djrk gS vkSj mldks igys gh ekywe gksrk gS fd ;s nwljk iqfyl okyk tksgS ogkW dk nwljk LVsV dk ;k tks Hkh gS] oks dgrk gS ;s cPpk ;gkW is---] mldks irk ugh ;kmldks ekywe gksxk fd oks ;gkW ?kwe jgk gS ;k ’kk;n tks mldk tks tgkW is NksMk gSA tSlsle> yks tkek efLtn ds ikdZ esa NksMk gSArks fQj tks NksMrk gS oks buQkeZ djrk gS\QCQiqfyl okys dks] ;s cPpk ;gkW is ?kqe jgk gS] ;k ;s yM+dh ;gk¡ is ?kwe jgh gSASir generally the beat policeman.---ugha bUgs] bUgsa ou lsds.M] ;s ,sls gksrk gSA546


Child-2 gk¡] ,sls Hkh gksrk gS lj] T;knk djds ns[kksAQT;knkrj dSls gksrk gS\Child-2 gk¡] tSls xkMh esa ?kqe jgs gS oSu ysdsAQDgk¡iqfyl okys\Child-2 gk¡] rks dksbZ ?kqerk gqvk utj vk x;k yM+dk tSls tk jgk gS ;s D;k dke djrk gS D;k gS]Child-3 mldk ihNk djus yx tkrs gSAChild-2 ihNk djds fQj] vius ikl igys cqyk,sxkA rks oks rks Mj ds ekjs rks vk,sxk gh vk,sxkAvk,sxk uk yMdk fd iqfyl okyk gS ugha rks fcxSj Qkyrw esa cUn djsxkA fQj cksysxk D;kgSA cksysxk D;k djrk gS dgk¡ jgrk gSA rw oks gh rks ugh gS tks pksjh djds Hkkxk gSAQvkSj fQjAChild-2 fQj cksysxk gk¡ gk¡ rw oks gh yx jgk gS py cUn djrk gwWA ,sls ys tkrs gSAQvkSj fQj ml yMds dks D;k djrs gS\Child-2 xyr Hkh djrs gS csp ckp Hkh-----QChild-2 gk¡Qugha xyr Hkh djrs gS yM+dks ds lkFk\iqfyl okys\Child-2 vkSj D;k--QgS\Child-2 gk¡QvkSj fQj mldks Hkh] mldks Hkh csgks’k djds NksM+ nsrs gSAChild-2 gk¡] vc tSlsA ugha rks----QChild-2 gk¡Child-3 Yes Sir,Qmldks Hkh oks csgks’k djds NksM+ nsrs gS\gSa\Child-2 gk¡QChild-2 gk¡Qoks tks tSls ml yMdh dk fd;k\ gS\mldks Hkh csgks’k djds NksM nsrs gS yMds dks\ gS\Child-2 gk¡] fcYdqy] ljChild-4 ,sls rks djrs gSa547


Child-3 vkSj lj fdRrs iqfyl okys rks ;s Hkh djrs gS tSls fdChild-2 ugha rks iSls gksaxk uk iSls] iSlsDcsVk ,d feuV oks dqN dg jgk gSaA gk¡AChild-2 tSls iSls gksrk gS uk iSlsACChild-2 gk¡ gk¡AQCtks rqEgs irk gS lgh oks gh crkvksaA flQZrqeus [kqn tks ns[kk gksa\tks ns[kk gS oks gh crkvksaA [kqn tks ns[kk gS flQZ ;s gh cksyukAChild-2 gk¡] tSls iSls oSls gksrs gS rks iSls Hkh ys ysrs gSA ,sls ugh rks iSls ds mij T;knk djdsAQmldks >iV ysrs gS\Child-2 tSls iSls fy;kA rks cksyrk gSAQgk¡Child-2 Hkkx tk vc vkbZ;ksa er bZ/kjA rks fQj cp x;k oksAAQrks oks cspkjk cp x;k ysfdu tks gS mlds lkFk cykRdkj gks x;k dkeChild-2 ugh iSlk gksrk gS uk rks iSlk gksds Hkh NksM nsrs gSAQChild-2 gk¡oks dHkh dHkh ,sls Hkh djrs gS\Child-3 fdRrs cPpks dks uk vLirky esa Hkh csp nsrs gS tks fdMuh foMuh vkWr okWar fudky ysrs gSAChild-2 gk¡Child-3 eryc fd tks cMs cMs vLirky gksrs gS ukAQgk¡] gk¡AChild-3 vLirky esa Hkh csp nsrs gS iqfyl okys ds oks tks gksrs gSA vLirky eas csp nsrs gS rks fdMuhfoMuh fudky ysrs gS MkDVj yksxAQChild-2 gk¡Qrks eryc] ;s vLirky esa ;s cPps erycA tSls fd oks ukVd djrk gS iqfyl okyk fd HkbZeSa cPps dks vLirky ysds tk jgk gwWAfd HkbZ eSa bldh ns[kHkky ds fy, bldks ysds tk jgk gwWAChild-2 Fkkus ls ys tk jgk gwW]QChild-2 gk¡Qoks Fkkus ls] tSls oks esfMdy bxlkfeus’ku tks gksrk gS vkSj fQj ogk¡ is mldh lsfVax gksrhgS\MkDVj ds lkFkA548


Child-2 gk¡Child-3 mldh ,d fdMuh fudyok nsrs gS fdlh dh vkWa[k dVok nsrs gS vk¡[k fudyok nsrs gSAQCgk¡rqEgs irk gS fd ,sls gh cksy jgs gksAChild-2 gk¡] yesChild-3 lj] gekjs tks nksLr yksx gS uk ;s yksx cgqr yksx cksyrs gS fd ,sls ,sls----CQvxj fdlh dks lpeqp irk gS rks ns[kks-----ugha csVk rqe cksyks] rqe cksyks] ge lqusaxsa iwjh rjg ls dksbZ fnDdr ugh gSAChild-3 mudh fdMuh foMuh fudy ok nsrs gS cspok nsrs gSA cksyrs gS bRrs dh fdMuh fcdsxhAbrus yk[k :I;s esaA brus gtkj :i;s eq>s nksA brus vkW[k ds brus jsV gS brus es ls bruseq>s ns nks rqeAQChild-2 gk¡rks ;gk¡ fnYyh esa le> yks fdlh vkneh dks fdMuh dh t:jr gksa ;k dksbZ vk¡[k dht:jr gks dksbZ ckr gksA eryc iqfyl okyks fd eryc mudh LVkWy gSA eryc mudh’kkWi gS eryc mudk nqdku gSAChild-2 ugha eryc] dqN] dqN iqfyl okys dqN dqN djrs gksaxsAChild-4 ,sls-----CQugh ge lcdk ugh dg jgs gSAugha ge ,sls ugh dg jgs gSAChild-2 MkDVj Hkh feys gksrs gSaQysfdu cspus ckpus dk gS tks yMfd;ksa dk ;k yMdks dkAChild-2 ;s esu gSAQChild-4 gk¡ADCQChild-2 gk¡Q;s esu gSlj fnYyh esa dksbZ Hkh ØkbZe iqfyl dh uksyst ds fcuk ugh gksrk gSA ljfcYdqyAvPNk] nwljh ckr ;s crkvksa tks ;s Hkh[k ekaxrs gS tks ;s cSxj gkse tkrs gSAmuds lkFk Hkh cykRdkj gksrk gSAChild-2 gk¡ fcYdqy gks tkrk gS ljAQChild-2 gk¡;s tks iqfyl okys djkrs gSA549


CQChild-2 gk¡Qlj ;s tks fcV iqfyl gS tks--- -- ogkW tks gksrk gS----,d ,d ,fj;k dkugha] ugha ugha] cSxj okys] rqe le> x,s uk\mudks Hkh ogk¡ is oks muds lkFk djrs gSChild-2 gk¡] vk/ks ls T;knk tks lq/kjs gksrs gS tks xyr ugh djuk pkgrsA tSls Fkkus esa can djukAtSls nwljs dk yEck dsl gS mldks dsl cuok nsuk T;knk fd tSls pksjh eSus fd;k bldsmij QWlk fn;kAQgk¡Child-2 ;s gksrk gS Hkh ,sls HkhAQblesa Hkh oks iSls ysrs gSAChild-2 gk¡] fd tSls eSus eMZj fd;k vkSj blds mij uke vk x;kAQChild-2 gk¡QChild-2 gk¡Qoks rks vyx ckr gks xbZA ysfdu ge tks lksp jgs gS nks phtksa esa lksp jgs gSA,d rks D;k iqfyl okys] yMdh le> yks dgha is tkrh gS oks dksbZ Hkh VkbZi dh gksaAle> yks fd oks xyr VkbZi dh gks fdl VkbZi dh Hkh gks oksA rks ekSdk oks NksMrs ughAChild-2 gk¡] ugha NksM+rsAQ;fn oks ekSdk FkksMk Hkh fn[ks rks oks ykbZu ekjrs gSAChild-2 gk¡] fcYdqy ljQChild-2 gk¡ykbZu ekjrs gS oks\ gS\Child-1 dHkh dHkh tks gS ,slk Hkh gksrk gS fd tSls dqN yMdh fn[k xbZ vkSj lkFk esa iqfyl okys gSvkSj vxj ,d bZekunkj gS] ,d bZekunkj gS vkSj nks csbZeku gS tksfdQdjuk pkg jgs gSAChild-1 xUnh utj ns[krs gSQgk¡Child-1 rks oks D;k djsaxsa fd rw mldks igys ns[ksaxsa fd ;s yMdh tks jkst ;gh ls tkrs gSA tcblds lkFk gekjh M;wVh ugh gksxh ukA rc bldks ncksp ysaxsaAChild-2 rc ekSdk dk Qk;nk mBk;saxsAQChild-2 gk¡rc ekSdk mBk;saxsaAtc oks bZekunkj iqfyleSu ugh gksxk rc ekSdk dk Qk;nk mBk;saxsaA550


QQysfdu rks bldk eryc ;s gS fd yMdh tks tkrh gS tks le> yks fd geus tks gS cl esaHkh iqfyl okys dks fcBk fn;k fd HkbZ dksbZ cykRdkj uk gksA le> yks tSls ge desVh gSlq>ko ns jgs gS fd oks cl gS oks Mh-Vh-lh cl gS }kjdk tk jgh gS] jksfg.kh tk jgh gS irkugh fdl txg tk jgh gSA gS yMdh ogkW is le> yks vdsyh ,d yMdh iSlsatj gSAMªkbZoj gSA vkSj oks iqfyleSu ,d cSBk gSA rks oks ekSdk NksMsxk ;k mldh lqj{kk djsxkAekSdk NksMsxk ugha\Child-2 tSls Mh-Vh-lh esa] vdsyk gS] Mh-Vh-lh okyk gS cl okyk gS rks fQj oks dqN ugha dj ik,sxk]QChild-2 gk¡Qysfdu tc ih-lh-vkj oSu gSrc rks oks dj ldrk gS\Child-2 gk¡ fcYdqyAQChild-2 gk¡QChild-2 gk¡AQgS ;k ugh\rks ;s tks rqeusA bl rjg ls tks jkr dks tks ;s ih-lh-vkj oSu tks ?kqers gSA;s eryc fn[kus esa rks ?kqers gS fd lqj{kk ds fy,Child-2 gk¡ lqj{kk dj jgs gSAQysfdu FkksMh cgqr ;s viuh blds fy, Hkh yMdh oMdh iVkus ds fy, Hkh mBkrs gS\Child-4 iSls dekus ds fy, HkhAQiSls dekus ds fy, Hkh\Child-1 lj] esjs lkFk Hkh ,slk gqvk gSA tc eSa guqeku efUnj is jgrk Fkk NksVk FkkA fQYe ns[kus tkjgk FkkAQvPNk ;kj ,d ;s iwNuk FkkA fdtks ;s rqEgs tks ;s LeSd oeSd fnykrs Fks rks eryc ;s iqfylokys [kqn fnykrs Fks\ ;kChild-2 ugha QywM tks gksrk gS] tks OgkbZVujA lqyks’uQgk¡] gk¡Child-2 lqykslu] rks oks ekfdZV tks gS uk ’kki tks gksrh gSAQtks csprk gS] ysfdu mlls oks iSls ysrs gS\Child-4 iSls ysrs gS------Qugha] esjh ckr le> yks eSa ;s le>uk pkg jgk gwWA fd ;s iqfyl okyks fd erycA ;s iqfylokys tSls fd le> yks fd iqfyl okys us oks eky nqdkunkj dks fn;k fd tks ;s 200fMCch;k gSA551


Child-2 ugha] ,sls ughaAChild-1 ugha ,sls ugh oks D;k djrs gS fd tSls gekjs ‘’kWki gksrh gSA dkWih] isfUly] jcM dh tks’kkWi gksrh gSAQgk¡Child-1 gk¡Child-4 feVkus okyk gksrk gSAChild-1 mlesa QywM rks mlds fMCcs gksrs gsA vc ysvk geus] geus u’kk fd;k] vc mldks dqN ughansuk gksrk gSA oks rks dqN ugha tkurk D;ksfd oks rks esfVfj;y csp jgk gS dkWih isfUly dkD;ksfd oks LVs’kujh ’kkWi gS] mlis ge dsl rks dj ugh ldrsA fd D;k dj jgk gS D;k djjgk gS ;sA D;ksfd oks rks ------Child-1 mlesa dke vk jgk gSAQgk¡ le> x;kAChild-1 rks geus ,d pht ;s Hkh fd;k fd D;ks uk ge lqykslu dks gh cUn djk nsAGsChild-2 gk¡QCChild-2 tSls------,d rks ;s gS] ysfdu tSls iqfyl okyk gS mldks ekywe gh ugh dh lqykslu ls---- ;s fcdjgk gS vkSj fQj ;s yksx u’kk dj jgs gS rks fQj oks mlls gQrk ysrk gSmlls iSlk ysrk gS nqdkunkj lsugha] ugha ughaC Sir what happens is the scrap dealersChild-1 dckM+h okysCD;k gksrk gS fd when people throw it, like you know the Govt. buildings or what when theythrough it, excess gets thrown with the scrap, so what happens sir the rag pickers pickedQCQCthem up, right,gk¡ eSa le> x;kASo these guys buy from the rag pickers, they not buy from the shop for 20 RS.gk¡ Bhd gS eSa le> x;kA ysfdu oksRag pickers says, I mean so if there is a rag picker ogkW ls D;k gksrk gS it gets sorted, thenthere comes a middleman, from the middle man either they get it directly from the rag pickeror there is middle man who gets the solution, so every one knows that this person has acess tosolution, the policeman takes gQrk from the middleman.QCgk vPNk oks gQrk eryc feMy eSu] oks nyky eryc oks tks csprk gSANo one get the solution, so that is the guy who will be selling smack at the other higher level.552


QQChild-2 gk¡] gw¡Qrks eryc tks Hkh dgrs gS fd pjl gS xkWatk gSArks eryc rks ,slk Hkh gksrk gS le> yks tSls rqeus crk;k fd ih-lh-vkj oSu gSrks tSls fd oks yMdh feyhA >iVk mlis]A taxy esa ys x;k cykRdkj fd;k rks jkr dsVkbZe tks ;s ih-lh-vkj oSu tks ?kwers gS A bu lcdk eryc ;s iSls oSls bl rjg ls ysusdkA ;k fQj tks yMdh oMdh ?kwerh gS mldks mBk ysrk gSA ;k ugh rks tgkW tSls rqeuscrk;k cspus ds fy,s ;s mBk ds fQj oks tks mldks D;k crk;k rqeus----Child-2 nyky nyky]QChild-2 gk¡]Qnyky ds gkFk igq¡pkukA oks eryc lsfaVax gksrh gSAlsfVax rks iwjh gksrh gS] ;k gQrk ysus esa ;k cspus esa] nksuks esa\Child-2 rhu pht esaAQrhu pht es] dkSu ls rhu pht esa csVsAChild-2 tSls gks x;k ,d rks jiVuk ,d gQrk ysukAQChild-2 gk¡]jiVuk eryc tks jsfiLV gSAChild-2 ;k tks nyky ds gkFk esa nsuk rhu phtQDQjiVuk] vkSjgQrk ysukAgQrk ysuk ugha rks cspuk] vkSj rks tks vLirky esa ;s tSls fd le> yksChild-2 fdMuh cspuhAQfdMuh&foMuhChild-2 ;s pkSFks esa vkrk gSQChild-2 gk¡]Q;s pkSFks esa vkrk gSAfd HkbZ fdMuh mldh fudky yksA tcfd ml cPps dks ekywe Hkh ugha gksxk fd ;s fdMuhfudy jgh gSAChild-2 D;ksfd ;sDQcsgks’k dj nsrs gSAcsgks’k dj nsrs gS lqu dj nsrs gSA553


Child-2 D;ksafd tSls ;s ogkW tkdj] gkWfLiVy tc igqWprs gSA rks ,d batsD’ku gksrk gSA rks oks ;gkWyxk;sxk ;gkW ckWMh is rks oks iwjk QSy tkrk gS cnu esaA rks vc mldks uhUn vkus yxsxkAlqUu gks tk;sxkA mldks dqN Hkh djsxk dqN irk ugh yxsxkAQgk¡] vPNkAChild-2 mlesa ls] ,d vkWijs’ku CysM vkrk gSA pkdw ds tSlk NksVk lk gksrk gSAQgk¡]Child-2 oks iwjk cnu ds lhus esa ?kksirs gS oks phj nsrs gSAQvkSj fQjChild-2 fny] dysth] QsQMk] osQMk ns[krs gS dkSu lgh gS] tks lgh okyk gS mldks csprs Hkh gSAQChild-2 gk¡]Qtcfd vPNk tcfd ;s tks yMdk gS] ftldks ;s esfMdy ,Xtke ds fy,A vPNk fQjmldksA Stitch djds c gks’k esa vktkrk gS rks nksckjk ysds tkrk gSAvkSj oks tks cPpk gS mldks ekywe rd ugh gksrk gS D;k gqvk gS mlds lkFkAChild-2 ugha] dqN ugh ekywe pysxk mlsAQmldks ;s gh ugha ekywe gksxk fd HkbZ esjh ,d fdMuh pyh xbZ\Child-2 gk¡] vkSj mlds fQj ,sls gksus yxsxk fd fQj u’kk o’kk djk djsxk] rks ckgj ne Hkh rksMldrk gSAQDQvPNk u’kk o’kk\djsxk rksdjsxk rks gVZ vVSd gks ldrk gSAChild-2 rks fdlh dks ’kd Hkh ugha gksxk fd ,slk gqvk gSAQvPNk rks fQj ;s u’kk dkSu nsxk\Child-2 u’kk tSls oks djrk FkkA cl rc Hkh oks u;k u;k--- u’kkQeSa le> jgk gwW ysfdu tks ;s iqfyl okys ysds tkrs gS ogkW ij vLirky esa rks tks ;s cPpsgS ftuds ;s vkW[k ;k tks pht ;s fudkyrs gSA rks ;s oks cPps gksrs gS tks eryc ØkbZe okysgS ftUgksus dksbZ xqukg fd;s gq,s gks mlds fy, mudks Medical Exam dks ysds tkrs gS \Child-2 ugha tSlsAChild-1 ugha ,sls rks dHkh lquk ugh gS ds esjs dks dkQh lky gks x;s LVªhV is eSus ,slk dHkh lqukugh gSA ij ,d pht lquh gS eSus tSls ftl fdlh dk Hkh ,sfDlMsUV gqvkA tSls ,sfDlMsUVgqvkAQgk¡ gk¡AChild-2 rks mldk rks fudkyrs gSA554


Child-1 rks x;k ysdsA rks mudk tks MkDVj gS oks fQfDl gksrk gSAQMkDVj ds lkFk fQfDlax gksrh gSChild-1 fQfDlax gksrh gS oks dgrk gS fd vc D;k djs ;kj bldk rks dke gksus okyk gSAChild-2 tks cpus okyk gksrk gSChild-1 tks fudy jgk gS fudky ysQtks fudy jgk gS fudky ysrs gSAChild-1 D;ksfd uke rks fQj tks dqN vxj fudky ysrs gS rks oks rks ---QgSa\Child-2 oks rks ,fDlMsaV esa gh vk;sxk ukAQgSa\Child-2 tSls dqN gks x;k rks oks lkjk pht rks ,fDlMsUV esa gh vk;sxk ukAQChild-2 gk¡Qeryc ,fDlMsUV esa gh fudy x;k] gSa\vks gks] vPNk vPNk vPNk----Child-2 rks ;s gksrk gSAQChild-2 gk¡AvPNk tc ,sfDlMsUV gksrk gS rc ,sls gksrk gSChild-1 ,slk ugha gS fd dksbZ mBk;k cPps dks vkSj mBk ds gksfLiVy ysds x;k vkSj---,slk dqN ughagksrkAChild-2 oSls djok Hkh nsrs Hkh gS---QvPNk djok Hkh nsrs gSAChild-2 gk¡] tSls djokrs----QChild-2 gk¡Q;s tks cykRdkj ckr gqbZ uk ih-lh-vkj oSu okyh tSls yMdh fn[kh gS.M cSx okyh fn[kh]Jeans iguus okyh Fkh vkSj mUgksus iwNrkN dqN dhA vkSj fQj mldks /kdsyk] fcBk;k vkSjfQj ogk¡ taxy esa ysds x,saA MªkbZoj us eq¡g gkFk yxk;k vkSj fQj rhuks us dke fd;kfQj mldks csgks’k djds NksM fn;kAChild-2 D;ksfd mldk psgjk rks utj lkeus ugh gS uk u’ks esa gSQvkSj fQj tc u’kk mrj tk;sxkA oks cspkjh yMdh rc mBds tk;sxh oks tgkW tk;sxhAChild-2 vxj Fkkus tk;sxh rks cs’keZ] bTtr mldk tk;sxhAQfdldh\Child-2 yMdh dh bTtr tk;sxh ukA555


QChild-2 gk¡QgkW¡] eryc ;s pht iqfyl okyks dks ekywe gksrh gSAfd HkbZ dksbZ Hkh yMdh tks gS rqe tks pkgs djks mlds lkFkA mldh fgEer gksxh gh ughfd HkbZ oks tkds iqfyl esa fjiksVZ djk;sAChild-2 nksckjk djk;sAQChild-2 gk¡QChild-2 gk¡GsjiV djk;sAvPNk dHkh ,slk Hkh gksrk gS fd le> yks fd ;s /kedh Hkh nsrs gS iqfyl okys yMdh dksfd HkbZ rqeus eq¡g [kksykA rks lqu yks tc tSls fd csgks’k ugha fd;k ysfdu le> yks] eq¡gdgha rqeus [kksyk [kRe dj nsaxsa rqedksAChild-2 gk¡ gk¡AChild-1 iatkc] eSa crkrk gw¡A vHkh eSaus dqN fnu igys dh ckr gS eSaus ------- esa ,d oks ns[kh Fkh] U;wtns[kh Fkh fd ,d iqfyl okys us mlds ?kj tkds yMdh ds ?kj tkds jsi fd;k rks mlus iwjsifjokj dks /kedh nh fd vxj fdlh ls Hkh rqeus crk;k uk rks iwjsa ifjokj dks [kRe djMkywWaxk A dkV MkywaxkA rks ml yMdh us fgEer djds mlds f[kykQ dEiysaV fy[khAQfjiksVZ fy[khAChild-1 vkSj oks vHkh tsy esaAQDQoks yMdh tsy esa gS\ugha oks vkneh tsy esa gSAtc fgEer fn[kk;sa rc rksA ysfdu vc le> yks tc yMdh dks


QfefMy Dykl dh tks yMdh gS oks Msatj esa gSChild-2 gk¡] vc tSls lj ;s tks tkWc djrs gS jkr ds VkbZe b/kj tkrs gSChild-1 tks dkWy lsUVj esa dke djrh gSQgk¡ gk¡Child-2 dksbZ dgh nwljh txg tkWc djrs gS dgha nwljh txg tkWc djrs gSA rks mudk Hkh vkxsihNs okys gksrs gS dksbZ feys Hkxr Hkh gksrs gS fd vkWfQl esa tks dke dj jgs gS m/kj ls Hkhgks tkrs gSAQChild-2 gk¡Qeryc feyh Hkxr gksrh gSAeryc vkfQl esa ls oks crk nsrk gS iqfyl okys dks\Child-2 gk¡W dksbZ nq’euh Hkh cuk ysrk gS ukAQgS\Child-2 nq’euh Hkh cuk ysrs gS fd cnyk ysds NksMwWaxkA blus esjs FkIiM ekjk vkSj oks djkA ;s Hkhgksrk gSAQrks rc tc ;s tc mlus FkIiM ekjk vkSj ;s djk mldk cnyk ysus ds fy, mldks mldslkFk cykRdkj djrs gSA iqfyl okysAChild-2 iqfyl okys ugha vke---QChild-2 gk¡Qvke vknehAugha ysfdu ;s tks gS cykRdkj tks gS iqfyl okys ;s [kkldj ;s tks ihlhvkj oSu okys ghdjrs gS ;k eksVj lkbZfdy is tks pykrs gS ;s okys Hkh djrs gS\Child-2 ;s Hkh djrs gSQChild-2 gk¡QvPNk] eksVj lkbZfdy esa\vc tSls ysfdu oks eksVj lkbZfdy esa yMdh dks dgkW fcBkdj ysds tk;saxsaAChild-2 eksVj lkbZfdy esa tSls cksysxk Fkkus ys tk jgk gwWA Fkkus esa dgk ys tk;sxk lh/kkA lksp jgkgksxk Fkkus ysds tk jgh gS Mj oj x;kAQugha oks eksVj lkbZfdy esa Fkkus ysds tkrs gS yMfd;ksa dks\Child-2 tSls taxyAQugha oks iqfyl okyk dHkh eksVj lkbZfdy es ns[kk gS iqfyl okys dks] yMdh dks ysds tkjgk gSAChild-2 gk¡ ,sls cgqr ckj ns[kk] lj eSa bf.M;k xsV dh rjQ ?kqerk jgrk FkkA igys u’kk djrk FkkA557


Qgk¡Child-2 rks eSus cgqr ns[kk LdwVj is eksVj lkbZfdy is cSBkds dHkh b/kj ys tk jgs dHkh m/kjA ikdZes ?kql x,s iVkoVk dsAQvPNk ikdZ esa fQj oks cykRdkj djrk gSAChild-2 gk¡ dke oke fd;k] ogk¡ rks bf.M;k xsV is T;knk jksd Vksd Hkh ugh FkkA vc gS jksd Vksdgks jgk gSAQChild-2 gk¡Qysfdu oks yMdh tks tkrh gS eryc mldks /kedk nsrk gSA/kedk nsrk gS ;k oks iSls ds fy, djrh gS\Child-2 /kedk nsrs Hkh gSA iSls ds fy, Hkh djrh gS cgqr tuA ,sls gksrk gS ’kk;nAQChild-2 gk¡QChild-2 ughaQChild-2 gk¡Qysfdu ;s cspus okyh ckr is vki ;s dg jgs gS fd budh [kkl gkFk gS\buds fcuk rks dksbZ pht py gh ugh ldrhA;k gQrk ns ;k ;s [kqnAvPNk le> yks tSls eSus yMdh dk dgkW tkek efLtn esa ,slk gksxk fd dgha oks tks] tksmldks iqfyl okys dks dgha ls [kcj vkbZ gksxh fd HkS;k ;s yMdh geus ;gkW NksM nh gS blikdZ ds ikl gS\Child-2 gk¡] ;gkW is vk tkbZ;sAQ;gkW is vk tkbZ;sa] Bhd gS ukAChild-2 rks oks Hkh idMkrk gSA rks yMdh vc tSlsA lj ,sls Hkh cgqr gksrk gS] ,sls Hkh lj cgqr gksrkgS ?kj ls tSls yMdh Hkkx ds vkrh gSA dksbZ vius ?kj ls Hkkx ds vk xbZ ;k dksbZ ijs’kkuhgqbZA oks u;k u;k vk;k rks u’ks okys ds gkFk eas x;k rks u’ks es djds cykRdkj oykRdkjdj nsrs gS vxj dksbZ ,sls iqfyl okys ds gkFk esa iM xbZ rks oks Hkh djds NksM fn;kA vcMj ds ekjs oks D;k dj ldrh gS D;ksfd oks ?kj dks NksM ds vkbZ gSA nwj lsA tSls gks x;kdksbZ dgkW ls vkbZA dksbZ le>ks dh dksbZ yksuh dh gSA dksbZ ogkW dk gSA dksbZ mRrjk[k.M dkgS A b/kj b/kj ls Hkh ?kj ls Hkkx ds vkrh gSA u’ks ijs’kkuh crkbZA u’ks es iM xbZA fdlhlkFkh laxr esa iM xbZA dksbZ vPNs gkFk esa iM xbZ rks ’kknh ’kqnk Hkh gks x;k vPNk cuxbZAQysfdu yMfd;kW ,sls Hkkx ds D;ks vkrh gS vius ?kj ls\Child-2 Ikjs’kkuh gksrh gS558


Qijs’kkuh dh otg ls\Child-1 izksCye esa gS cgqr lkjhAQrks HkbZ blhfy, fd HkbZ tSls vkids lkFk gqvk ds HkbZ dksbZ uk dksbZ dgha dqN dke feytk,sAChild-2 tkWc fey tk,sAQ;k dgha etnwjh fey tk,sAChild-1 dgha ukSdjh fey tk,sAQrks tks ;s ykpkjh gS vkSjr dh tks ,sls ;s eryc iqfyl okyk ihlhvkj oSu es mldks >iVds vkSj fQj mldh utj-----Child-2 gk¡] T;knk djds] vHkh Hkh pkWnuh pkSd gS] caxyk lkfgc xq:}kjk m/kj ds lkbZM T;knk vkrkgS Hkkx ds yMdh yksxAQm/kj\Child-2 gk¡ m/kj ds lkbZM vHkh Hkh cgqr vkrh gS yMdh yksx Hkkx dsAQChild-2 gk¡]Q?kj lsAvkSj ogk¡ is ;s mBk ysrs gSAChild-2 gk¡ vkSj ogkW is ls eq[kfcj Hkh gS ,d --------eq[kfcjA vc rks irk ugh dgk jg jgk gSAQgk¡Child-2 oks T;knk djds eq[kcjh iqfyl okys dk FkkA oks T;knk djds crkrk FkkAQDQrks bldk eryc eqWg[kksjhAeq[kcjh eq[kcjhA informerInformer eryc nykyAChild-2 gk¡ iqfyl okys dk nyky AC Dalal is the next stage after eq[kchjAQChild-2 gk¡gk¡ ysfdu eq[kcj tks gS iqfyl okys dk gksrk gSAChild-1 lj ,sls eq[kcj dk eryc gqvk psykA iqfyl okyk xq: gks x;k vkSj eq[kcj tks gS psyk gksx;kAQpsykAChild-2 gk¡] rks mldks eq[kchj dgrs gSA oks iqfyl okys dk eq[kcjh dj jgk gS fd ogkW is ;s ;s ckrgS ogkW is okqs yMdh vkbZ gS Hkkx dsA mlls ;s eS djok jgk gwW ogkW is eq>s bruk iSlk feyjgk gS vk/kk rqEgjk lj vk/kk esjk gS ;s ckr gSA559


Child-2 gWwA ;s ckr gSAQ;s ckr gSAChild-3 dqN fnu dh ckr gS uoEcj ds l.Ms dh ckr gS ge FksA eS Fkk] bldk HkkbZ Fkk vkSj ,d vkSjgS gekjk ,d nksLrA ge uk l.Ms dks eksckbZy ysus x,s FksA eksckbZy fcdrs gS pksj ctkjyxrk gSA l.Ms cktkjAChild-2 l.Ms cktkj esa Hkh cgqr gksrk gSAChild-3 ge ogkW is eksckbZy ysus x,s rks esjs ikl dqN iSls oSls dqN Hkh ugh Fks A ;s nksuks HkkbZ dsikl iSls Fks rks bu nksuks us cSVªh ns[kh eksckbZy dh cSVªh ugha FkhA rks bUgksus tc cSVªh yh ukrks iqfyl dk dksbZ Fkk oks iqfyl dks iSlk f[kykrk FkkA rks mlus lj idM fy;k xkyh nsusyxk cksyk xkyh nsus yxk bls cksyk rqe pksj gks eS rqEgkjh brus fnu ls ryk’k dj jgk FkkAoks dj jgk Fkk vkSj budk eksckbZy fNu fy;k iSlk fNu fy;kA blds HkkbZ dks /kedh nsusyxk eS oks dj nwWaxk pkdw ekj nwWaxk oks dj nwWaxkA rks fQj ge Mj x,s Fks ge pys x,s HkS;kds ikl rks ge vius HkS;k dks cqyk ds yk;s jktw HkS;k dksA fd HkS;k ns[kks bUgksus gekjs iSlsfNu fy,s eksckbZy fNu fy;s vkSj ;s ns ugh jgs gSA rks iqfyl HkS;k us iqfyl dks Qksu fd;kvkSj iqfyl okys tc vk,s rks ges ysds x, Fkkus esa rks ogkW is ml vkneh dks uk---QChild-3 gk¡QFkkus Hkh ys ds x,sAdkSu Fkkus esa ys ds x,s csVk\Child-3 oks tks iqfyl okys NksVs eksVs gksrs gSA rks ---QChild-3 gk¡QChild-3 gk¡Qoks Fkkus esa ysds x;sAfdldks bldks vkSj blds HkkbZ dks\vkSj rqe Hkh lkFk x;s\Child-3 gk¡] vkSj ge Hkh lkFk x;s vkSj bls Hkh ysds x;sA rks ge lc tks us Fkk HkS;k yksxA ges vyxHkst fn;k vkSj tks oks vkneh FkkA tks ,l-,p-vks gS mlds ikl mldks [kMk dj fn;kAmlls iSls oSls [kk fy;k rks blfy, geus cksyk gekjk iSlk oSlk fNuk gS rks mlus dqN Hkhugha cksyk mYVk gekjs HkS;k dks MkWV jgs Fks oksA cksyk rqe er cksyks cksyks oks er djksA rqevius cPPks dk /;ku ugh j[krs gks oks ugh djrs gksA mYVk oks gekjs HkS;k dks MkWVus yx x;sFksAQEvki iwNksa dqNAugha ljA560


QEQEDDEDCQugha vki iwNks vki dqN iwN jgs FksA ;s rks geus iwN fy;k uk eryc rqEgkjh Hkh ugh ugharqe lquks you can ask those specific questions which will be enlightening for us eryc tksge ugha iwN ik;s eryc because of lack of knoweldge.rqe FkksMk lks iwNksAoks eS cl ;s gh iwNuk pkgrk gwWAvki iwN yks iwN yks cs f>>d iwNks ;kjA ;s lc gekjs gh HkkbZ gSAoks tks ihlhvkj okyh ckr gS uk mldks FkksMk lk bl rjgk ls crkvks fd tks vkius [kqnns[kk gksA Bhd gS ukAbUgksus bUgksusA;s crk;sxk] ;s crk;sxkAih-lh-vkj okykA D;ksfd ;s tks iSls okyk gSA iSls fNus iqfyl okyks us Fkkus esa oks rks gelHkh dks ekywe gS fd iqfyl okys ys tkrs gSA vkSj vkidh f’kdk;r ugha lqursA vkSj blesatks mudk vki dg jgs gS uk eq[kfcj gS ;k nyky gS mlh dk iz;ksx djrs gSA vkSj mllsHkh iSls ysrs gS ;s rks ges lcdks ekywe gS ;s tks cPps dks mBkds fdlh vkxs nyky dks nsuhokyh ckr ihlhvkj ds LVkQ] D;ksfd ihlhvkj dk LVkQ jkr dks jgrk gS vkSj muds iklxkMh Hkh oks gS ysds tk ldrs gSA ,d rks ;s FkksMk lk gfddr tks vkius ns[kh gSAvkius ns[kh gS---vkius tks ns[kh gSAigys vki crkvksa] fQj vki crkvksa] fQj vki crkvksaAChild-1 eSa cgqr NksVk Fkk 11] 11 lky dk Fkk vkSj esjs lkFk ,d yMdk jgrk Fkk esjs ls cMkA rksge yksx tks -------- gSAD--------dh rjQChild-1 --------dh rjQ tks lkbZM esa tks guqeku] ,d efUnj iMrk gS lkbZM esaA bl lkbZM esa cgqrlkjh oks [kkyh txg iMh gqbZ gSA taxy taxy gS ogkW isA rks ge yksx mlh jsM ykbZV is]ogha is jgrs Fks mlh jsM ykbZV ds ikl esaA rks ogkW is geus ns[kk fd ,d oSu [kMh gqbZ Fkhiqfyl okys fd mlesa rhu yksx FksA rks ,d yMdh cSx VkWaxs gqbZ Fkh vkSj Cyw ftUl dh isUVvkSj ;wyks dyj dh Vh-‘’kVZ iguh gqbZ Fkh rks mlls dqN iwNrkN dhA irk ugha D;k ckrdh ;s irk ugha cgqr ckrs crkbZA ge ns[krs jgsA eSa Hkh u’kk djrk Fkk rks ns[kkAQChild-1 gk¡Qysfdu rqEgkjs nksLr us dgk fd vc rw nsf[k;ksa\mlus igys ns[kk gqvk gS\Child-1 ugha] lqykslu ih;k Fkk eSus mlus Hkh ih;k Fkk fd vc ns[k D;k gksrk gSA ns[krk jgk ns[krkjgk ns[krk ns[krkA mlus D;k fd;k iqfyl okys usA yMdh dks vUnj fcBk;k vc mlds561


Qckn xkMh ?kqekbZ vkSj tks jkLrk Fkk oks tks taxy taxy Fkk mlesa xkMh ysds x,sA ge HkhihNs ihNs x,s mldsA ihNs ihNs x,sA eryc dkQh nwj vUnj vUnj rd ys x;k Fkk dkQhvUnjA ogkW ys x;kA ge ihNs ihNs mlds Mj Mj ds x,s vUnj fd D;k gksxk] ge ns[kusx;sA vc ns[kk rks tks esjk oks lkFk okyk Fkk mlus cksyk cl pqi pki ns[k dqN ercksfy;ksaA vxj cksy fn;k uk rks oks xksyh ;s xksyh ekj nsxk gedks cl ns[krk jgA rks tks,d MªkbZoj Fkk uk vkxs okyk mrjkA mlus yMdh dk eqWg nck fy;kA mlus yMdh dk eqWgnck fy;kA vkSj tks nks iqfyl okys Fks mUgksus mlds diMs oiMs QkMs vksj tks Hkh fd;kdke djA cykRdkj fd;kA cykRdkj djdsA fQj tks nwljk yMdk Fkk tks vkneh FkkAftlus idM j[kk Fkk mlus fd;kA fQj mlus irk ugha D;k fd;k dh yMdh dks /kdsyfn;k uhps iVd fn;k] Qsad fn;k uhps xkMh ls A xkMh ls uhps Qsadk oks csgks’k irk ughaD;k ej xbZ Fkh ;k irk ugh mlds ckn ml yMds us tks esjk nksLr Fkk mlus cksy fn;kpyrs gSA vc T;knk nsj :duk ugh vcAvc rqEgs ;s Hkh ugha ekywe gksxkA oks ejh ;k csgks’k Fkh ;s Hkh ugha dg ldrsAChild-1 ugha ljA D;ksafd lj ikl esa ugha Fkk cgqrA eSa cgqr Mj x;k Fkk eryc fd D;k gks jgk gSesjs lkFk ns[k jgk gwW eSa fd dj D;k jgs gS ;s yksxAEQShock esa Fks vkiA vPNk cPPks dks dgha nsus okyh ckrA fd fdlh dks vkxs gSa.Mvksoj djfn;k bl rjg dh dksbZ ckrAvki crkvksa csVkA tSls dh cPps dks dSls nsrs gSA cPps dks igys dSls fu’kkuk djrs gSAChild-2 tSls lj] ,d ckj eS Fkk ;s vtesj dh lkbZM esaA eSa vkxs tkrk Fkk lyokj ‘’kfjQ njxkgdh rjQAQdgk¡ isAChild-2 ;s vtesj ’kfjQ ls vkxs gS lyokj ’kfjQAQvPNk vPNkAChild-2 m/kj dh lkbZM eSa ,d fnu tk jgk Fkk iSny njxkg tkrs gS ge 6&7 fd-eh- iSny tkrs gSrks ,d vk;k igys ,d iqfyl okyk vk;k rks ns[kk fd ,d vknehA vk;k iqfyl okykAQgS\Child-4 cPps yksxAChild-2 gk¡] rks iqfyl okyk vk;k cksyk dgk¡ tk jgk gS D;k dj jgk gS vkSj fQj xkMh esa fcBk dsirk ugha fd/kj dh lkbZM ys x;k fQj taxy dh lkbZM ls djdsA fQj ,d vkneh ,dvkSj Fkk mlds lkFkA vkxs [kMk dj j[kk Fkk fQj mlds gkFk esa fn;kA vkSj gkFk ckW/k dspsih fpidk ds ge nwj ls ns[k jgs FksAQpsih eryc\562


Child-2 Vsi Vsi]QvPNkChild-2 gSA fQj gkFk okFk ckW/k ds fQj ys x;k nwljh txg irk ugha dgkW ys x;k] D;k fd;kAChild-4 oks cspus gh ys x;k gksxk gekjs fglkc ls oksAQcspus ys x;kAChild-2 gekjs fglkc ls rks D;ksfd lkFk okyk nwljk tks Fkk rks mlds gkFk esa gS.Mvksoj fd;kA ;sckr gSAQ;s vtesaj dh ckr gSAChild-2 lyokj ’kfjQ] lyokj ’kfjQAQlyokj ’kfjQ rks jktLFkku esa gSAChild-2 jktLFkku ls vkxs gS FkksM+k lkA 62 fd0eh0QChild-2 gk¡E62 fdyksfeVjA jktLFkku dh ckr gSA;gkW Hkh bl rjg dk dqNAChild-2 ogh Hkh ?kVuk ns[kk FkkA b/kj ,sls Hkh cgqr gqvk gSA ,sls rks ge yksxA cpiu ls 5 lky dhmez ls eSa u’kk dj jgk gwWWA ;s esjk iqjkuk Qzs.M FkkA rks eSa A ;s esjs lkFk es jgk gSA cl eSviuk gkyrA MªXl Hkh ysrk Fkk] batsD’ku foatsD’ku] lc dqN dk u’kk fd;k eSusA ,slk ughgS tks pht tks eSus NksMk gksA esjh cl ,d gh uQjr gS ?kj ls fd cpiu esa tc esjh cguxqtj xbZ FkhA rc ls eq>s ?kj ls uQjr gks x;k gSA tc ls dHkh Hkh esjh vEeh idM ds ystkrh Fkh eSa ?kj ls Hkkx tkrk FkkA fofM;ks xse [ksyrk Fkk ;s lc djrk Fkk ge yksxA dHkhnwj nwj tSls cEcbZ oEcbZ b/kj m/kj tkrk FkkA vyhiqj esjs dks pkj lky can djds j[kkAEcyjke iqj okys esaAChild-2 vyhiqj okys esa] xksy pDdj ogkW is can djds j[kk A rks vPNk [kklk jg jgk Fkk ckgjtkrk Fkk vkrk FkkA gjehr FkkA gjehr FkkA ogkW dk ns[kks eathr dk ftldks psyk cukrkFkk mlls ikWo ncokrk FkkA gjehr vHkh Hkh gSA ikWo ncokrk FkkAEvPNk ;s crkvksa fd tSls vki fnYyh esa dbZ lky jgs gksaAChild-2 esjk iSnkbZ’k fnYyh dh gSA eNyh okyk gksfLiVyEdbZ lky ls jg jgs gksAChild-2 gk¡ eS gj gkse es jgk gwW --------ds gkse es Hkh jgk gWWAErks tks gkse gS ogkW is fdl rjg dk O;ogkj gksrk gSAChild-2 oksgh crk jgk gWwWW ljAQcrkvks crkvks csVsA563


EiSj ncokrk FkkAChild-2 gjehr uke dk Fkk iSj ncokrk FkkA ,d jkeiky uke dk FkkA ;s u’kk eqfDr -------------------------Amles jkeiky uke dk Fkk] ,d iIiw uke dk vHkh Hkh u’kk djrk gSA;s iqLrs ds vUnj ghtgkW ge jgrs gS rks mlls viuk ikWo ncokrs ncokrs xyr djuk pkgk rks mlus iwjk crkfn;k FkkAEDfdlus djokuk pkgk tks ogkW is mldk eSustj Fkk oks ;k dksbZ nwljk vkneh ,sls djrk FkkALVkQChild-2 ugha LVkQ dk vkneh FkkAEogk¡ ls cPpks dks dgha ckgj Hkh Hkstrs Fks jkr dksAChild-2 ugha] ckgj rks eSa gh tkrk FkkA dke ls tc ikuh Mkyuk gksrk Fkk Qwy ikS/ks es rks eS ghtkrk FkkA lkjs cPps lsA u;k vk;k Fkk rc HkhA D;ksfd esjs dks bruk NwV fey x;k Fkk fdeSa gj dHkh Hkkxus dk ugha lkspkA tgkW fVdrk FkkA eSa bZekunkjh ls jgrk FkkA cl ogkW lsesjs dks eSa vk;k Fkk 9 efgus dk uke ysdsA bldks fHktok fn;k Fkk eSus tYnh eSus lkr&lk


Child-2 ;s uEcj gS ogk¡ dkAChild-3 cgqr yksx jgrs gSAChild-2 D;ksafd eSa gksfLiVy oksfLiVy Hkh tkrk gwW gj txg tkrk gwWAChild-3 rks lj ogkW is pkjh cgqr gksrh gSAQrks rqe csVs dgkW is jgrs gks\Child-3 eSa vius ikik ds lkFk jgrk gWWWwAQvPNkChild-2 ---------------esa ---------------esaAE---------------esaAChild-3 igys ckgj lksrs Fks ukA rks eSa jkr dks cgqr xyr gjdr lc ns[krk jgrk FkkA tks ekaxusokys gS ---------------ds tks oks yksx vkrs Fks ogkW dsAChild-2 vkSj dqN lj etcwjh ls Hkh djokrh gS yMdhA etcwjh ls Hkh djokrh gS dksbZ dksbZ yMdhAEg¡wAChild-2 ,slk gksrk gS tgkW ---------------gS mij ds lkbZMA rks lksrs gS uk jtkbZ xnnk ys ds rks jkr dksyMdh Hkh vk tkrh gSAEg¡wAChild-2 fcLrj esaADdgkW ls vkrh gS\Child-2 tSls u’kk djus okyh vkbZA ?kql xbZ xnns esaA vc dksbZEChild-2 gk¡AEfNuk >iVh Hkh gksrh gS m/kjvkil esa] u’kk djus ds cknAChild-2 gk¡] phjkQkMh] phjk QhjkA lc dqN gksrk gSA pyrk gSA dksbZ CysM ekj nsrk gS dksbZ D;kdj nsrk gSA tsc drjs Hkh cgqr gSAQrks ;s tks ---------------gS bles rks rqeus ,slk ugh ns[kk\Child-2 ugha ,slk ugha gSA cl esjs dks nks gh lsaVj fn[kk gSA ,d ---------------esa] ,d ---------------esaAQChild-2 gk¡AQnksuks txgAgjdr gSAChild-2 gk¡] ,sls rks eS cgqr gkse es jgk gwW ---------------‘’kgj dk uke] vkSj ---------------dk tsy es jgk gwWAogkW cPps dks fpYyj dgrs gSA ogkW dk Hkk"kk gS dgkW ls vk;k gS cs] [kMk dj nsxk ;gkW isAiap oap ekj nsxkA dk js ;s dj b/kj vkA esjs nksLr ;kj FksA esjs nksLr dk ?kj Hkh gS ogkW isA565


Qgw¡AChild-2 u’kk o’kk eS Hkh cgqr gh djus yxk Fkk ,slk ugh MªXl rd fy;k nksLr ;kj ds lkFkesaANksMk ;s bl ckj NksMk gSAQChild-2 gk¡AQysfdu MªXl ozXl rqeus tgkW ls Hkh [kfjnk gS ogk rqEgs ekywe Fkk fd ;s iqfyl okyk gQrkys jgk gSAeryc mldks ekywe gS fd ;s Mªx ys jgk gS LeSd gS pht gSAChild-2 rks oks gekjs ls ugh ysrk gS ukA tks csprk gS ukAQgkW gkW tks csp jgk gS mlls ysrk gSAChild-2 rks ge rks tkrs Fks nqcd ds tSls ns[kk gkW iqfyl okyk vHkh m/kj ns[k jgk gSA ge x,s fn,siSls vkSj ys vk,sA 2&3 gtkj 4 gtkj dk ,slk ykrs FksADvkSj oks iqfyl okykAChild-2 iqfyl okys mlls ysrs FksA D;ksfd ge yksx rks ---------------esa nksLr ;kj ds pDdj esa iap oapHkh j[krs Fks geA iap Hkh j[krs FksA ;s Hkh geus j[ksA ---------------esa [kqYyk jgrs Fks Mjrs ugha Fksfdlh lsAQCHkbZ rqEgkjh [okfg’k D;k gS ftUnxh esa crkvksa D;k djuk gS\ HkS;k D;k rqEgkjh [okfg’k gSftUnxh esa rqe D;k pkgrs gks crkvksA vjs gedks cfr;kvksa D;k djuk gS\D;k djuk gSAChild-2 eSa lj cPps dh enn djuk pkgrk gwWAQgSAChild-2 eS] lj ’ksyVj esa jguk pkgrk gwWQugha ysfdu rqe i


Child-1 eS vHkh ;s lksp jgk gWWwWA esjk tks fMªEl Fkk oks eSus psat dj fn;kgSAQgk¡] gk¡Child-1 eS tks] tgkW ij gwW A eS lksp jgk gwW fd eS viuh ,d vksjxsukbts’ku [kksyw vkSj mUgh cPpksdks lkFk esa ysdj pyw tksfd LVªhV ij gSA vHkhQgk¡]Child-1 vkSj eSus fMlkbZM dj fy;k gS vxys efgus ls 3&4 efgus esa eS [kksy ywWaxkA eq>s liksZVj Hkhfey x,s gSA vkSj esjh tks ,u-th-vks gS mldk uke -------------gSAQokg cgqr cfwB ugha cksyrk A fdlh esa rksbruh fgEer gksuh pkfg,s fd eS u’kk esa Fkk eSus ;s fd;k vkSj vkius lc ckrs crkbZA blls;s irk pyrk gS fd vkids vUnj fdruk gkslyk gS fdruk bZeku gSA vkSj ;fn fdlh vkneh567


esa bZeku gks rks ;s cgqr gh cMh ckr gSA vki le> jgs gSA lcls cMh ckr tks gS bZeku gSAbZeku tks gS ;s cgqr cMh ckr gSA vki yksx gedks cgqr ilUn vk,sA ge vkids cgqr ’kqØxqtkj gSAvkSj bruk gh ugh tks Hkh gels gks ldsxkA*****568


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Justice VermaFrom:Sent:To:Subject:Sensitivity:Justice Verma [justice.verma@nic.in]Tuesday, January 15, 2013 11:43 PM'Justice Verma'; 'abhishek@atlaw.co.in'; 'shantha.sinha@nic.in'RE: Sub-Poena from Justice Verma CommitteeConfidentialJanuary 15, 2013The ChairpersonThe National Commission for Protection of Child Rights5th Floor, Chanderlok Building, 36, Janpath, New Delhi - 110 001Fax: +91 11 23724026, +91 11 23731584 (Fax)Email: shantha.sinha@nic.inDear Madam,I am writing to you upon directions of and on behalf of the Justice J.S. Verma Committee headed by Hon’ble Mr. Justice J.S. Verma (aformer Chief Justice of India), and has Hon’ble Ms. Justice Leila Seth (a former High Court judge) and Mr Gopal Subramanium, Sr.Advocate.I also refer to the email below.As you are aware that the Justice Verma Committee constituted, consequent to the widespread expression of public protest, isproposing to inter alia review the existing laws which are connected with the offences of rape and sexual assault on women. We haveviewed, in our internal deliberations, that the terms of reference are sufficiently wide for us to consider what additional amendmentsneed to be made, so that laws which may have a bearing on the rights of women could be revisited to promote non-discrimination andgender justice.In this con<strong>text</strong>, I request that the following information may kindly be provided to the Committee within 2 days of the receipt of thisemail:(1) Is the NCPCR aware of a raid carried out in June 2012 at “Apna Ghar” – a children’s home in Rohtak, Haryana in respect ofa complaint of abuse of girl children at the said home? If yes, please provide details of the same.(2) If such a raid has indeed occurred, have any FIRs been registered in respect of the said offence? Please provide details ofthe same.(3) Have NCPCR officers visited the said institution (Apna Ghar) prior to the said raid, as well as post such raid to ascertain theconditions of the children living in the home? If this has not been done, please provide reasons.(4) Is the NCPCR aware that a media channel reported the involvement of certain police officers in the aforementioned offence?If yes, please provide details of such police officers and whether any cases have been registered against them.1629


(5) Please furnish testimonies, if any, of the abused girl children from Apna Ghar in respect of the abuse suffered by them.Please note that failure to provide the documents/information shall be treated as non-cooperation.Yours faith<strong>full</strong>y,Abhishek TewariCounsel to the Committee2630


From: Justice Verma [mailto:justice.verma@nic.in]Sent: Saturday, January 12, 2013 4:58 PMTo: 'shantha.sinha@nic.in'Cc: 'abhishek@atlaw.co.in'Subject: Sub-Poena from Justice Verma CommitteeImportance: HighSensitivity: ConfidentialDear Ma’am,Please find attached a direction from the Committee for your urgent action.Regards,Abhishek TewariCounsel to the Committee3631