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Indian Penal Code

The Three New Criminal Laws: A Woman’s View

by Guest Author 08/12/2024

written by Guest Author

By Lauren Prem

The Indian criminal law system has been overhauled by the three criminal laws namely the Bhartiya Nyaya Sanhita (BNS) act, Bhartiya Nagarik Suraksha Sanhita (BNSS) act and the Bhartiya Sakshiya act (BSA) which seek to supersede the Indian Penal Code, 1860, the CrPC, 1973 and the Evidence Act, 1872 respectively. Since then, the changes introduced by these laws and their implications on the society have been a matter of discussion in the legal and political world. In addition to carrying the colonial baggage, the old penal code is premised on archaic notions of womens’ role in the society, which hindered their social progress and further rendered gender equality a far-fetched goal. An era which treats fundamental rights above all man-made social institutions, requires a change in laws to fit the growing aspirations of the people. This article seeks to evaluate the changes introduced by the two revised criminal laws, the BNS and the BNSS (as only they include changes concerning women), from a woman’s angle by exploring how these changes affect the rights of women in a male-dominated society.

What new does these laws offer women?

This part of the article aims to examine the modifications made to the criminal justice system that are significant to womens’ rights. Some writers observe that the BNS act primarily focuses on offences against women and children by consolidating them under a single chapter and by adding new provisions that fortify women rights. Firstly, section 69 of the BNS act, a new offence that did not have its place in the IPC previously, penalises consensual sexual intercourse coupled with a false promise to marry. This provision seeks to protect those women, who consent to sexual intercourse based on the man’s false promise to marry, by punishing these men for the offence of rape. The jurisprudence regarding ‘rape on the pretext of marriage’ has a judicial evolution prior to obtaining its place in the criminal laws. This judicial interpretation was further solidified into a legislative provision in the new BNS act. Secondly, section 86 of the BNS act reflects a progressive move by including mental harm within the definition of cruelty against women, an aspect which was previously missing in the IPC and left to the judiciary for interpretation. Thirdly, the BNS act has excluded adultery from the criminal code, thereby endorsing the Joseph Shine judgement, which decriminalised adultery by declaring the provision as ultra vires the constitution. This step reflects the society’s tilt towards fundamental rights and away from traditional societal norms that curb individual liberty. Fourthly, section 354C of the IPC which includes the possibility of only men being offenders of voyeurism is rectified in the new BNS act by incorporating gender neutrality. Section 77 of the BNS act uses the term ‘any person’ as opposed to the term ‘any man’ (as provided in the IPC) to refer to the perpetrator. This moderation makes a huge difference by protecting women from cases where men use women to commit voyeurism (capture images) as the IPC completely excluded the possibility of charging women for the said offence. Similarly, section 354B of the IPC which punishes assault or criminal force on a woman with the intent to disrobe her, uses the term ‘any man’ to denote the perpetrator, thereby implying that a woman cannot be a perpetrator. This mistake was rectified in the BNS act by making section 74 gender neutral. This ensures added protection to women.

Fifthly, section 183(6)(a) of the BNSS act provides that the statement of victims to the offence of gang rape, stalking, criminal force or assault, sexual harassment and other offences mentioned in sections 66, 67, 68, 71, 73, 76, 77 shall be recorded by a female judicial magistrate as far as possible and in her absence, a male judicial magistrate in the presence of a woman. This section ensures that the procedure is carried out in a sensitive manner with utmost consideration to the victim’s comfort. There is no such provision to be found in the CrPC. Section 26 of the CrPC provides that a woman shall preside over court trials pertaining to the above-mentioned offences. The BNSS act, however, goes a step further and provides for recording of statements to be presided over by a female judicial magistrate, in addition to providing that court trials must be presided over by a woman under section 21 of the BNSS act. Sixthly, section 184(6) of the BNSS act provides that the medical practitioner must send the medical examination report of the rape victim to the investigating officer within a period of seven days. Section 164A of the CrPC uses the term ‘without delay’ and does not mention the exact timeframe within which the report must be sent to the investigating officer, as opposed to the provision in the BNSS act which is more precise, thus, expediting the process.

Traces of patriarchy still found in the criminal justice system

The status of marital rape, as an exception to the offence of rape in the IPC, is retained in the new BNS act as well. The Supreme Court has, time and again, stated that such a perspective of viewing rape within marriage is obsolete as it assigns sanctity to the institution of marriage at the expense of fundamental right to reproductive autonomy guaranteed under article 21 of the Constitution. It is a disappointment that the BNS act failed to include this aspect despite the SC rendering the provision unconstitutional. Amrita Garg, an advocate from the Punjab High Court rightly calls this a ‘missed opportunity’ for the government to remedy the marital rape exception.

Conclusion

This article has engaged with the three new criminal laws– the BNS, BNSS and the BSA that have replaced three major Indian legislations that govern the course of criminal law. Within the bounds of provisions affecting women, the article first explores the differences between the old legislations and the revised laws and moves on to explain how the changes shape the position of women in the society. This article intends to make two important claims. Firstly, the laws reflect a positive undertone in the aspect of incorporating offences that have been evolved through judicial interpretation. Secondly, the laws appear to be a grave failure in the aspect of leaving the marital rape provision untouched despite several SC judgements emphasising on the outdated character of the exception. The BSA does not include any changes concerning women.

08/12/2024 0 comments 30 views

Sexually Provocative Dress: Another essential for Sexual Harassment?

by Guest Author 08/12/2024

written by Guest Author

By Meenu Padha (Advocate and Women and Child Rights Activist) and Lavanya Bhatt (Third-year law student at DME Law School, GGSIPU)

As practitioners/students of law and justice, we are all well aware of Section 354A of the Indian Penal Code (IPC). Even those who are from the non-legal areas of society are aware of the term “sexual harassment”. The basic definition of sexual harassment comes from the United States Equal Employment Opportunity Commission (EEOC): “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.”

It makes us both sad and angry at the insensitive approach of the bench of the Hon’ble Kozhikode Sessions Court towards such sensitive issues. The Session Court order passed by Judge S Krishna Kumar held that to draw in the offense under Section 354A, there should be some sort of unwanted sexual gesture. However, in the present case, the photos of the complainant showed her “exposing herself in provocative dresses”. “In order to attract this Section, there must be a physical contact and advances involving unwelcome and explicit sexual overtures. There must be a demand or request for sexual favours. There must be sexually colored remarks. The photographs produced along with the bail application by the accused would reveal that defacto complainant herself is exposing to dresses which are having some sexual provocative one (sic). So Section 354A will not prima facie stand against the accused,” were the exact words of the Bench.

The learned counsel for the victim alleged that Chandran made sexual gestures toward the de facto complainant, who is a young female writer, and attempted to outrage her modesty in a camp meeting at Nandi beach in the Kozhikode locale in February 2020. The Koyilandi police registered the case and charged the offenses under Sections 354A(2) (Sexual Harassment and Punishment), 341(Punishment for Wrongful Restraint), and 354 (Assault of criminal force to a woman with intent to outrage her modesty) of the Indian Penal Code.

This wasn’t the first case where the 74-year old accused was granted bail. Earlier, on August 2, he had obtained anticipatory bail in another sexual harassment case filed against him. The court likewise observed that the dissident is old and physically debilitated and he could never have constrained himself upon the lady. Referring to Section 354, the court additionally observed that it is exceptionally certain that there should be an intention on the part of the accused to outrage the modesty of a woman: “While granting bail to Chandran, the court also expressed disbelief that the 74-year-old physically disabled accused, Chandran, could forcefully put the de facto complainant in his lap and press her breasts.”

The citizens of India, from all genders, have raised their voices, expressing their anger and disappointment with the court for giving out such a judgement. Everyone has the same question for the Bench- “What is a sexually provocative dress?” Time after time, women have to face these atrocities. Article 19 of the Indian Constitution provides the right to each and every citizen to express themselves in whatever way they want. But, after such incidents, all these “Freedoms” seem to be gender-based. Confining women’s freedom and versatility won’t diminish the crimes against them. It will only minimize women further, slant the overall influence further towards men, and debilitate society. Would the victim have anywhere to turn to obtain justice if the courts, which we as citizens consider to be our source of justice, made such biased statements? It has been said numerous times, and we feel the need to say it again- If women’s dressing was the reason, no infant in diaper, no senior-citizen in saree, no un-married girl in a kurta-salwar or a lady in a burqa would have been assaulted. The problem lies solely in the eyes and actions of those people who objectify women and see them as a sexual-being only. In addition, somewhere down all these years, it can be observed that the judgements by some courts and the imprecise laws related to offences against women have also resulted in the increase of these crimes against women. However, as pleasantly as these opinions are phrased, they are regressive. It endeavors to fault women for the sexual assaults against them and to expect that women adjust to a way of life that makes them protected in a male-ruled society. Such retrogressive advances have never worked, and won’t work in the future.

08/12/2024 0 comments 26 views

Economic Abuse Under Domestic Violence Act

by Guest Author 08/12/2024

written by Guest Author

By Gopika G Nair
(School Of Legal Studies CUSAT)

Domestic violence against women is not uncommon in Indian society. It affects a large number of women, and the majority of them are so used to it that they don’t even report it. Nonetheless, many people continue to be victims of domestic abuse. Domestic violence is a strategy of instilling fear and servility in a person in a domestic setting, such as a household. The motivation for this violence can range from the need to maintain an individual’s power structure over another to the desire to instill/coerce another for self-gratification. Domestic violence in India primarily refers to violence by close or biological relatives to a person; however, it mainly includes abuse perpetrated against women by male family members or cousins. Domestic violence has been defined by the Protection of women from domestic violence act 2005. Before the act, the cases governing the act were dealt with by section 498-A of the Indian Penal Code. According to the Domestic violence act, domestic violence means harming or harassing women in her household. The types of economic abuse can be of different forms like physical, verbal, sexual, and economic abuse.

Domestic violence is more than physical or psychological abuse. On a deeper level, it’s about how abusers often want to take complete control over their partners. Economic or financial abuse is an effective way to get control over somebody. If you are not an earning member of your family you don’t have any money or you owe lots of money that makes limits to your options and makes it more likely to do what your partner wants. Economic abuse can occur when the abuser wants to dictate or dominate. In terms of money, the abuser restricts the victim from using their financial resources and isolates her financially so that she is bound to rely upon the abuser for her survival Section 3 of the Domestic violence act 2005, describes the economic abuse.

Economic abuse is everywhere and it can hurt. People who have experienced economic abuse can end up owing thousands or even lakhs of rupees in debt and it can hurt the credit rating. And these days good credit can be important for getting good jobs and housing not just for getting loans. So financial abuse at times can become emotional abuse.

Economic abuse may take many forms:

Coerced debt – This can happen when the credit abuser puts on non-consensual. This may include forcing the victim to sign financial documents, forcing the victim to get loans, use of physical force to make credit-related transactions, refinancing a car mortgage or any property without the victim’s knowledge, applying for loans, credit cards, etc., in the name of the victim, etc.,
Employment-related abuse – This can happen when the abuser prevents the victim from earning money. This may include situations like preventing the victim from attending the job, asking the victim to quit the job that she was doing, harassing the victim at work, preventing her from looking for jobs, etc.,
Other forms of economic abuse can include the abuser preventing the victim from using certain funds like, using the victim’s ATM cards without her knowledge and preventing her from using the same, deciding how the victim must use the money in her account, etc.,

There are a lot of reasons why economic abuse occurs in India. These can be social, historical, behavioral aspects of the human being. There is no single reason for this abuse it’s a combination of all these aspects.

Patriarchy’s inherent wickedness and the male superiority attitude that has persisted for millennia can be traced back to many events n the history
Religious divinity implies a covert, if not outright, dominion over women. As a result of this, domestic, economic violence against women has increased.
Dowry is a socio-cultural element. Nowadays there is an increase in the number of dowry-related domestic cases and dowry deaths being reported as a result of which it is given special provisions in the domestic violence act. This system of dowry shows that women can be brought by money as any other object in the market and it is this money that determines her value in society.
Economic abuse is also exacerbated by the failure to fulfill conjugal responsibilities as a result of extramarital affairs or a lack of trust. Many sociological, behavioral attitudes of the abuser due to stress or overdose of drugs, etc. can also be the reason for such trust issues which ultimately results in economic abuse
Lack of knowledge and a regressive mind can also result in economic abuse. The trashes of patriarchal practices still exist in the mind of many which make him feel that a man is to look after the house, women being his shadow. This triggers him to cause economic abuse.

Any woman who has been harmed or who has seen domestic violence can seek help from a police station, a protection officer, or a service provider under the Domestic Violence Act. To implement its instructions, the court may appoint a protection officer. The protection officer is a unique position intended to serve as a link between domestic violence victims and the system. Domestic Violence Act relief orders can also be obtained by filing a complaint directly with the magistrate. Anyone who informs the appropriate authorities about a crime has their civil and criminal liabilities waived. Within three days of filing the complaint, the court must schedule a hearing. If the court determines that the allegation is true, a protection order is issued . A complaint can also be made under Section 498-A of the Indian Penal Code, which recognizes and punishes matrimonial cruelty. The Protection of Women from Domestic Violence Act of 2005, which went into effect in October 2006, is a promising piece of legislation that combines civil and criminal punishments to provide effective remedies to domestic violence victims. The statute establishes protection officers, medical facilities, and no-fee orders, among other things, to assist aggrieved women in safeguarding themselves and their families. In India, the majority of economic abuse, sexual violence, and marital rape instances go unreported. Domestic abuse victims’ agony is exacerbated by a lack of professional counselors who can assist them, as well as limited access to legal aid. Issues like this must be resolved for women to receive the justice they deserve. Abuse thrives only in silence. By merely casting a light on the economic abuse, we can put an end to it. Sharing your experience with your loved ones can help you get out of the dark hole. Replace them as the heroes of the drama and give them the courage and plot to make a climax twist, portraying them as phoenix birds who rise from the ashes and have a bright future ahead. Understand the symptoms of economic abuse and act cautiously and quickly to deescalate the abuse. We can all work together to make our beds, dinner tables, and families the secure and pleasant havens they should be!

08/12/2024 0 comments 36 views

Stand of The Supreme Court on Rights of Sex Workers: The Story so far.

by Guest Author 08/12/2024

written by Guest Author

By Srishti Sarraf

The Indian sex workers case is making the top headline these days. The recent order dated 19-05-2022 given in the case of Budhadev Karmaskar v. State of West Bengal And Ors., popular as the sex workers case the Hon’ble Apex Court has categorically recognized that the basic protection of human decency and dignity under Article 21 of the Constitution of India extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children. Reliance has been placed on the earlier landmark judgments of the Court to emphasize & expound on the scope of the right to life under Article 21. Notably, this is not the first time when the Indian judiciary has held the dignity of the community of sex workers in its ruling. Two years back the Bombay High Court has held that “there is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution.” A few years back the Delhi High Court also ruled that “simply because the victim worked as a sex worker before the incident in question doesn’t confer any right upon anyone to violate her dignity.”In a significant ruling, the Gujarat High Court has also observed that “Section 370 of the Indian Penal Code will have no application in a case wherein sex workers are engaged in prostitution of their own volition and not according to any inducement, force or coercion.” But the factor that is making the recent Budhadev Karmaskar v. State of West Bengal and Ors. Case super buzzing is the fact that this time the Court has issued significant binding guidelines to ensure that the community is being treated with dignity and not being abused. Further, to understand the depth of the case it is important to know about the history of the case along with some categorical development that has taken place in this case which is summarized right beneath.

BACKGROUND

This case was originally filed as an appeal before the Hon’ble Apex Court against the conviction order given by the Calcutta High Court in a case of the brutal murder of a sex worker living in a red light area in Calcutta in 1999. The factual matrix of the case highlights that the accused battered the head of the deceased again and again in a hideous and barbaric manner leading to putting a period on her breath, thus the Court naturally decided against the accused and the accused chose to file the criminal appeal before the Apex Court. Considering the heinous nature of the alleged crime the Hon’ble Apex Court straightforward dismissed the appeal however it later converted the case into a Public Interest Litigation suo motu by its order dated 14th February 2011 to address the problems of sex workers in the country. In its earlier orders the Bench consisting of Hon’ble Mr Markandey Katju, and Hon’ble Ma’am Gyan Sudha Misra, JJ. equivocally stated that their aim was “to create awareness in the public that sex workers are not bad girls, but they are in this profession due to poverty”. The Bench observed that: “Sex workers are also human beings and no one has a right to assault or murder them. Sex workers are also human beings and no one has a right to assault or murder them. A person becomes a prostitute not because she enjoys it but because of poverty. Society must have sympathy towards the sex workers and must not look down upon them. They are also entitled to a life of dignity given Article 21 of the Constitution.’

REMARK ON PREVIOUS SIGNIFICANT ORDERS

The Apex Court has passed several orders issuing directions to the Central Government and the State Governments in this case. In its very initial order dated February 2014 the Apex Court directed the Central and the State Governments to prepare schemes for rehabilitation all over the country for prostitutes through Social Welfare Boards along with preparing schemes for giving technical/vocational training to them considering their right to live with dignity under Article 21 of the Constitution of India.

Subsequently, by another order, the Court constituted a panel headed by Mr Pradip Ghosh, Senior Advocate as the Chairman to discuss various aspects of the problems relating to sex workers and submit its report. It also directed the States/Union Territories and the Union of India to carry out surveys to ascertain the number of sex workers who want rehabilitation and who would voluntarily continue in the same profession. The Apex Court categorically stated that “it is important to educate the public to present the situation of sex workers in the country in the correct light, as it is ultimately the people of the country, particularly the young people, who by their idealism and patriotism can solve the massive problems of sex workers.”

Thereafter the constituted panel identified three core areas for consideration including prevention of trafficking, rehabilitation of sex workers who wish to quit sex work and conditions conducive for sex workers to live with dignity under the provisions of Article 21 of the Constitution of India and submitted various reports time to time. The Panel subsequently gave many suggestions. The emphasise was given to the point that sex workers face great difficulty in getting ration cards, voter’s identity cards or opening bank accounts thus the authorities should see to it that sex workers do not face these difficulties as they are also citizens of India and have the same fundamental rights as others. The Court confirmed that the suggestions made by the Panel shall be seriously taken into consideration by the Central Government, the State Governments and other authorities and hence all efforts shall be made to implement these suggestions expeditiously. On 14.09.2016 a final report along with recommendations of the Committee was placed on record. Meanwhile, also by its various orders the Court emphasized the gravity of the matter and urged the Government to place the draft legislation before the Parliament at the earliest. In the wake of the Covid-19 outbreak that has caused severe disruption in normal life, it was realized that the class of sex workers fall under the list of vulnerable classes being adversely hit by the pandemic. Thus, the Court issued a direction for the supply of dry rescue so that the sex workers who are in dire straits can be rescued. Similarly, by order dated 10.01.2022, the Court had directed the State Governments/Union Territories to complete the process of issuance of ration cards/voter cards to all sex workers expeditiously.

PECULIARITY OF THE RECENT ORDER

By its very recent order, the Court has taken note of the periodical adjournments so taken by the Union of India in laying down a dedicated Bill. Thus, to fulfil the existing gap in the legal framework exercising its particular powers conferred under Article 142 of the Constitution of India the Court has passed six binding directions to be in force till the legislation finally comes up. Notably, the directions so issued relate only to the rehabilitation measures in respect of sex workers and other connected issues. These directions can be summed up as follows:

Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance and proper medico-legal care.
The State Governments were directed to survey all ITPA Protective Homes so that cases of adult women, who are detained against their will, can be reviewed and processed for release in a time-bound manner.
The police and other law enforcement agencies were directed to be sensitised towards the rights of sex workers and were directed to treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity.
The Press Council of India was directed to issue appropriate guidelines to protect the identities of sex workers, during arrest, raid and rescue operations. Besides, the strict enforcement of newly introduced Section 354C, IPC which makes voyeurism a criminal offence, was directed to be extended against electronic media as well.
Measures that sex workers employ for their health and safety such as the use of condoms, should neither be construed as offences nor seen as evidence of the commission of an offence.
The Central Government and the State Governments, through National Legal Services Authority, State Legal Services Authority and District Legal Services Authority, are directed to carry out workshops for educating the sex workers about their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. It was also directed that the sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.

Notably, it was directed to the State Governments/ UTs to act in strict compliance with the above recommendations made.

HAS THE APEX COURT RECOGNIZED SEX WORK AS A PROFESSION?

The Apex Court in its recent order has categorically held “that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21. The constitutional protection that is given to all individuals in this country shall be kept in mind by the authorities who have a duty under Immoral Traffic (Prevention) Act, 1956”. Now, the controversial question here is whether the use of the term “profession” here implies recognition of sex work as a profession. Notably, the term profession has been used time and again in the earlier order of the Apex Court as well. But this cannot be termed as recognition of sex work as a profession. In this regard, the Court has clarified in one of its orders stating that “this Court should not be perceived to advocate the recognition of sex trade or promote the cause of prostitution in any form and manner.” Reportedly, on this issue, Tripti Tandon, advocate for the Durbar Mahila Samanwaya Committee and Usha Cooperative, which are parties fighting for the rights of sex workers, stated that the order “does not recognise or have the effect of recognising sex work as a ‘profession’”. Here, it needs to be clarified that from one perspective recognition of prostitution as legitimate work reinforces women’s position as subordinate or sexual objects for men. Having said this, one also needs to be mindful of the fact that the judiciary of this Country in a plethora of judgements has affirmed the stand that voluntary sex is not illegal. Thus, no reason exists to regard prostitutes as criminals and maltreat them.

THE WAY AHEAD

Notably, the matter is yet pending before the Hon’ble Apex Court and is listed on 27.07.2022. The Court has strictly directed that the Union of India file its response to the recommendations made by the panel within six weeks. Let us hope that the Government come up with some positive response and the class of sex-worker get dedicated legislation for the protection of their life and dignity super soon. May the current discussion of the law eliminate the moral hypocrisy and class discrimination surrounding the class of sex workers.

08/12/2024 0 comments 24 views

Marital Rape in India: An Outdated Legislation

by Guest Author 08/12/2024

written by Guest Author

By Prakhar Tripathi

The doors of Delhi High Court have been fluttering since last one month with voices being raised to criminalize exception 2 Section 375 of the Indian Penal Code (IPC). All India Democratic Women Association, RIT Foundation and two other organizations are behind putting forth this initiative. The Court has been going through the legality of the exception and whether it serves any purpose in modern-day India or is it just a colonial provision still draping in the books of the criminal manual.

Exception 2 to section 375 of the Indian Penal Code reads as follows: –

Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

A majority of the common law countries have already done away with the draconian provision of marital rape wherein the husband considers the wife as his chattel and performs sexual acts with her even if it is against her will. In fact, India remains one of the only 32 countries in the world where this exception remains to prevail.

England and Wales outdid this provision in the case of R v R in the year 1991 by the Appellate committee of the House of Lords. In Germany, marital rape was outlawed in the year 1997 after female rights activists for 25 years protested against it. Australia criminalized this provision in the year 1991 in the case of R v L by stating that such law was not part of the Australian Law.

Henceforth, the originators of the common law have outdone with this provision, but it still remains an evil continuing to haunt Indian society.

Let us analyse how faintly this provision stands on the footholds of the legal bedrock.

Prima facie, there are three ingredients of rape :- ‘Sexual Intercourse’, ‘Against her will’ and ‘Without her consent’ . Any act satisfying these three criteria falls into the category of Rape. But then, a stalemate has been created in the same section by giving protection to a person who is legally wedded to the victim and whose act satisfies all of these criteria. The exception gives her husband the right to have sexual intercourse with her whether she is willing or not eventually becoming a subject to his whims and fancies thus, violating every right which the women as an individual possess.

Over the years, lots of women in India have been subjected to this social evil. The National Family health survey (NFHS) 2015- 2016 states that 99.1 percent of the sexual violence cases go unreported and an average Indian woman is 17 times more likely to encounter sexual violence from her husband than from others.

The legislators of the country put forth the argument that it might be detrimental for the Indian family structure if this change in the statute is allowed almost overlooking the fact that this exception is violative of the pristine fundamental rights that our constitution provides.

Violative of Article 14 and 21

Article 14 of the Indian constitution states that there shall be equality before the law but the State has to follow an intelligible differentia wherein like should be treated alike and different treatment of people who are in different circumstances. The test of intelligible differentia has been laid down in the case of State of West Bengal vs Anwar Ali Sarkar wherein it has been held that that the differentiation or classification needs to have cogent nexus with the purpose sought to be realized by the statute in question. The exception acts as a sledgehammer in the statute wherein it creates a stark difference between women who are married and those who are unmarried. By the creation of this exception, the section fails to deny the very protection to married women for which it has been devised. The distinction so created neither has a rational nexus with the statute so created nor does it serve the purpose sought by the section.

Similar has been the view of the J.S Verma committee report constituted to recommend changes in the criminal law system which emphasised highly that the exception related to the marital rape should be done away with and that marriage is never an irrevocable consent to sexual acts and that wife is never a subservient chattel of husband.

The exception also violates Article 21 of the constitution which provides for Right to life and personal liberty. The Apex Indian court has in various cases expanded the meaning of ‘life’ in Article 21 by quoting the observation of Field J in the American case of Munn v Illinois wherein it has been stated that the term ‘life’ means much more than an animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. In the case of ‘State of Karnataka vs. Krishnappa it has been held that sexual violence is an intrusion of the right to privacy and sanctity of the female’. In the case of Suchitra Srivastav vs Chandigarh administration it has been held that Article 21 includes the right of a woman to make reproductive choices. None of these judgements differentiate between a woman who is married and the one unmarried. Also, none of the other offences mentioned in the IPC propagate such an arbitrary and repulsive differentiation between a married and unmarried woman. Section 375 is the only anomaly that remains. Henceforth, the contrast created by the section is violative of Article 14 and 21 of the Constitution.

Progressive Judicial Pronouncements

Time and again has the Indian Judiciary held that the exception is a dying provision and needs to be done away with. In the case of Sakshi vs Union of India reference was made to the case of R v R [1991] 4 All ER 481 in which it has ‘been held that a husband and wife are equal partners in a marriage, therefore a husband not being criminally liable for raping his wife if he has sexual intercourse with her no longer forms part of the law of England’

In the case of Satyawati Sharma vs Union of India it has been held that legislation that might have been reasonable and practical at the time of their enactment may become redundant, arbitrary and unreasonable with the lapse of time. Similarly, exception 2 of IPC over the years has become redundant and serves no purpose in modern day India. In the case of Nimeshbhai Bharatbhai Desai vs State of Gujrat it has been held that wilful perverted sexual acts with wife would amount to cruelty under 498A of the IPC because then the normal sexual relations which form the basis of a happy married life would come to a standstill and a husband having sexual intercourse with his wife is not using her just as her property but filling the marital consortium.

What we can discern from all these judgments is that sexual intimacy between the husband and wife is one of the major building blocks of their relationship. The kind of intimacy husband and wife want to have in their relationship needs to be thoroughly discussed and should be done with mutual consent of both of them. If the female is not willing to have any kind of perversion in their intimate life, then it is clearly her choice and she has all the rights to do so. Forcing her against her will, would amount to cruelty and eventually be violative of all the rights our virtuous constitution gives her.

The Way Forward

Therefore, it is high time that the polarity created between married and unmarried women by the statute needs to be done away with. The married daughters of our country need to have a life filled with dignity and respect; that the laws made to inoculate them do not act against them. Although, an act of caution has to be seen while enacting this provision. That is, men should not be at the receiving end of this new change in law. There has been an alarming rate of rise of false rape cases in India, because the only pre-requisite required to file a rape case is the statement of a women. Therefore, various innocent men in India suffer unknowingly that they might at the receiving end of section 375. What is to be seen is that after removal of exception 2, the section is handled with utmost care and precision which allows both men and women to be equally treated by the statute and that only genuine cases of marital rape come to the court retrenching its time and the value of the justice delivery system.

08/12/2024 0 comments 24 views

Sex Toys: Instruments Of Inclusivity Or Urban, Or Normative Status Symbols?

by Guest Author 08/12/2024

written by Guest Author

By Anuka Bachawat

“There was one problem. My wrist. When I got over the initial awkwardness of being naked just for my own pleasure, I found that a vibrator was not all you needed to achieve pleasure, you also needed another thing not as spoken about as this device – the capability to hold and move it, and the finger strength and motor ability that requires”, says the anonymous writer who suffers from chronic arthritis, as she chronicles her experience of using a vibrator for the Revival Disability Magazine.

The writer goes on to voice her apprehensions about using a vibrator as a disabled woman. Strain, she says, could mean “something as simple as bending it too much to put a vibrator in me. I could get a sprain and terrible swelling. I could dislocate my wrist. I could break my fingers.” This vivid account pushes us to ask: who are sex-toys made for and which bodies are overlooked when they are designed?

Growing sex education and intimate well-being awareness campaigns on social media, pandemic isolation, and a handful of young start-ups have ensured that the conversation around sex toys remains at an audible decibel. However, sex-toys designed for trans individuals, gender non-conforming folks and persons with disabilities, remains conspicuously absent from both the sex-toy market and discourse in India. Despite the fast-paced evolution of sex tech, the sex toys available in the Indian market are not designed and marketed in gender and disability inclusive ways. This unlike countries like the UK, where disabilities charity Enhance The UK is collaborating with sex-toy brand Rocks-Off to create toys for users with physical disabilities. Similarly, Hot Octopuss works with disabled, trans, queer and non-binary sex bloggers to make pleasure universally accessible. By contrast, in India, the conversation about sex toys and their potential to serve as instruments of a social justice movement, is relatively stilted. This is because India barely acknowledges the presence of the sex-toy industry let alone allowing them to serve as catalysts of an inclusive sexual revolution. The stigma around sex toys runs deep and is deeply embedded in the legal framework.

Can Sex Toys Be Sold In India?

The sale of sex toys in the country is a legal grey area because there are no express prohibitions against or guidelines for their manufacture, sale or purchase. India’s first legal sexual wellness chain Kamakart has stores Goa, Chennai, Bengaluru and Kochi. However, while the store has a legal certificate of recognition, it does not have a trade license.

Given such constraints on obtaining trade-licenses and their ambiguous legal status, there are very few sex toy stores in India and the market is largely online. Thatspersonal, IMBesharam, Lovetreats, ItspleaZure, Shycart, Privy Pleasures, MyMuse and Kinkpin are the main go-to sellers of sex toys in the country.

India’s Sex-Toy Economy : When Size Matters

As of 2018, the global sex toy market was worth $22 billion, of which India’s market size was worth $227.8 billion. The Indian sexual wellness industry was set to grow to Rs. 8,700 crore ($1.4 billion) by 2020.

Despite the sheer girth of the market, a large portion of India’s sex toys are imported from China (which manufactures close to 70 per cent of the sex toys in the world, according to a Mint report). Further, a YourStory report indicates a dearth of funding despite the industry’s promising growth projections.

What Does The Customer Base Look Like?

The break-up of business of ventures like ThatsPersonal and IMBesharam shows that customers from tier-II and tier-III cities account for a considerable portion of their revenue. ThatsPersonal’s revenue from tier-II and III cities stands at 52 per cent while these cities account for 46 per cent of IMBesharam’s revenues.

ThePrint traced the gendered sex toy consumption patterns to note that the initially the market was dominated by male customers. Divya Chauhan’s ItspleaZure saw men accounting for nearly 90 per cent of the transactions but is simultaneously witnessing an increased demand for women. However, purchases made by men may not necessarily imply that these sex toys are bought for the men themselves. This is because men are buying sex toys for women not in tier I and II cities but in tier III and IV cities.

These demographics do not reflect the disabilities, marital statuses, sexual orientations and gender identities of the customers. Yet visiting these websites provides a sense of who these sex-toys are targeted at. Nu, founder of Revival Disability Magazine, points out that IMBesharam’s brand ambassador is the able-bodied and conventionally femme Sunny Leone. Disabled and queer, trans, gender non-conforming individuals are not considered in the process of sex-toy marketing and advertising. Nu explains that “there is no template or guide to disabled pleasure nor are there any disabled sexual wellness role models”. They lament that “the ideal user of sex-toys is typically able-bodied and straight”. Therefore the existing sex-toy marketing strategies restrict inclusive access to sex toys.

How Do Government Agencies Use The Law To Crack-Down On Sex Toys?

In addition to the restrictions to access imposed by the sex-toy industry’s internalized biases, the government poses its own obstacles too. The Customs Office often uses the obscenity provision i.e. Section 292 of the Indian Penal Code impede the sale of sex toys. In other words, when sex toys are packaged and shipped to the buyer, the package is sometimes intercepted by the Customs Office at the port of delivery and kept with them for inspection. After inspection, the Customs Office may at its discretion, summon the vendor and buyer to court. This is done to ascertain the purpose of the product and whether it is obscene or against public morality under Section 292 of the Indian Penal Code. In 2011, in the case of Kavita Phumbhra v. Commissioner of Customs, certain goods (sex toys/adult games) that were imported by the appellant for being further sold to adults only, were confiscated by the Additional Commissioner of Customs by applying charges of obscenity under Section 292(1) of the IPC. However, the Calcutta High Court held that the order of confiscation by Customs was not illegal as given the morals of present day society, the goods in question could be called obscene as to render them prohibited articles. In addition to this, Section 377 IPC could have served as a potential ground for sex toys being illegal as they could facilitate “carnal intercourse against the order of nature” i.e. sexual intercourse that is not solely for reproduction. But after its reading down in 2018 in Navtej Singh Johar v. UoI, Section 377 IPC can no longer serve as an obstacle to the sale of sex toys.

Despite the Calcutta High Court decision and the reading of down of Section 377, the absence of clear guidelines and legislation, creates much ambiguity with respect to the legality of sex toys. Although some judicial decisions enable the sale of sex toys, there are other legal obstacles to it. For instance, in 2018 the Indian patent office had invoked Section 292 IPC and Section 3 (B) of the Patents Act (contrary to morality) to reject a Canadian firm’s plea to patent a vibrator. Further, Section 67 of the IT Act extends the obscenity Section 292 to the internet. Given the immoral and illegal connotations attached to the sale of sex toys, there has been a boom in the indirect marketing of sex toys. Vibrators sold as massagers are available in abundance on Amazon and Nykaa. This sanitized marketing allows these products to fly under the radar. In other words, the legal loophole seems to be that sex toys can be sold as long as they do not violate an arbitrary conception of obscenity.

What Is The Law In Other Countries?

Netherlands: Amsterdam is known for its Red Light District where the sex work industry functions legally and without moral undertones. The sex shops in the area are similarly legal and the only prohibition exists with respect to the sale of sex toys to minors.

Thailand: Despite its thriving sex industry, the sale of sex toys continues to be illegal in Thailand. This is because they fall within the category of obscene goods in the country’s list of prohibited items. The penalty for anyone caught peddling, buying, or possessing sex toys is up to three years jail time or a fine of up to 60,000 Thai baht ($2,000), or both. The government has kept the law banning sex toys intact as they are seen as being “against the view of Thai society”.

Australia: The sex toy industry is legal in Australia and in 2018 ISO (International Standardisation Authority) safety standards were made applicable to sexual wellness products.

UK: The trade of sex toys is legal in the UK and one needs a license from a local authority to run a sex shop i.e. any premises selling sex toys, books or videos.

USA: The legal position on sex toys is varied across different states and counties. For example, the sale and ownership of sex toys is illegal in Alabama except when purchased for medical reasons. The Obscene Device Law in Texas illegalizes the possession of more than six dildos. Similarly, New York state’s highest court ruled in 2017 that it could curb the number of sex shops, reversing a 2015 decision.

Therefore, it is evident from the prevailing laws banning sex toys in countries like India, Thailand and USA, that the basis for the illegality lies in their perceived obscenity. On the other hand, the trade of sex toys in the UK, Australia and Netherlands is not associated with obscenity and public morality.

What Does The Illegality Of Sex Toys Say About Approaches To Sexuality & Sexual Health?

Does the ban on sex toys have a correlation with reductions in sex crimes, human trafficking and the safety of marginalized genders? Or is it an arbitrary restriction that violates the constitutional rights to free trade and individual sexual autonomy? The sex-toy industry as it exists in India cannot expect to see material growth unless it is acknowledged by the government, instead of being banished to the realm of half-visibility and obscenity. The legalization of sex-toys is important for the growth of both the market as well as inclusive sexual awareness movements. The legalization of the sex-toys industry allow more people to invest in start-ups and facilitate manufacturers’ access to government support. This increased funding accompanied by increased access to sex tech, is likely to enable the development of trans, queer, non-binary and disability friendly sex-toys. Therefore, increasing access to sexual pleasure is key to inclusively de-stigmatizing sex.

08/12/2024 0 comments 31 views

Medical Termination Of Pregnancy (Amendment) Act, 2021: Progressive But Restrictive

by Guest Author 08/12/2024

written by Guest Author

By Atulendra Rathour

The Medical Termination of Pregnancy (Amendment) Act, 2021 has become operative from the 24^th of September 2021. The amendment alters the parent legislation i.e., Medical Termination of Pregnancy Act, 1971 (MTP Act 1971) which provides a legal framework regarding abortions in India. The amendment increases the gestation limit for abortions by amending Section 3 of the act. The Amendment act further widens the ambit of the legislation by replacing “any married woman or husband” with “any woman or her partner”. This piece of writing is an attempt to draw a parallel between the Amendment act and the restrictive women’s reproductive autonomy.

Abortion in India is a penal offense under Section 312 of the Indian Penal Code, 1860 (IPC, 1860) which provides imprisonment for three years. The MTP Act, 1971 provides with certain exceptions under which a woman can undergo pregnancy termination while escaping liability prescribed in IPC, 1860. With the Amendment Act, the gestation period has increased up to 24 weeks from 20 weeks. The woman can undergo an abortion within this period with the advice of medical practitioners.

The Amendment Act is praiseworthy but still fails to regard woman’s reproductive autonomy. Instead of being a “right-based legislation” the act ends up being a “Doctor centric legislation”. Opinion of Medical Practitioner remains mandatory to undergo abortion as stated in Section 3. This infers that even if a woman wants to undergo an abortion she can’t if Medical Practitioners are of a contravening opinion. Additionally, vulnerable groups such as Sex Workers fall outside the scope of legislation as “Partner” remain a decisive factor, hence restricting their rights.

The amendment seeming progressive fails to regard the precedent set by the landmark Puttaswamy Judgment in which the Hon’ble Supreme Court recognized that the ‘Right not to Procreate’ forms a part of Rights provided under Article 21 of the Constitution. The Hon’ble Supreme Court in Suchitra Shrivastava v. Chandigarh Administration observed, “There is no doubt that a woman’s right to make a reproductive choice is also a dimension of ‘Personal liberty as understood under Article 21 of the Constitution of India. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating… there should be no restriction whatsoever on the exercise of reproductive choices such as Woman’s right to refuse participation in sexual activity or alternatively on the insistence on use of contraceptives method.”

Other than this, health infrastructure followed by orthodox society possesses a serious challenge to the provisions of the amendment. India ranks 145 out of 194 countries according to World Health Statistic Report, 2018. NITI Ayog has already informed about the shortage of about 6 lakh Doctors and 20 lakh Nurses. The situation is even more alarming in rural parts; according to Rural Health Statistics Report, there is a shortage of about 80% of Surgeons, Pediatricians, and Physicians, 70% of Obstetricians and Gynecologists. Apart from medical Practitioners, lack of equipment also possesses a serious problem. It would not be surprising to know that India’s Health budget is the fourth lowest in the entire world.

Conclusively, the amendment act is progressive enough to widen the scope of Women’s reproductive autonomy with regards to abortion by increasing the time limit but still, the autonomy of women is not absolute as the Medical Practitioner has a final say about it. On the other hand, poor health infrastructure further remains a serious concern while undergoing an abortion.

08/12/2024 0 comments 36 views

Tripura: Two Journalists Detained For Covering Communal Violence

by Guest Author 08/12/2024

written by Guest Author

By Mahak Shinghal

Two journalists were granted bail on November 15, 2021 by the Gomati District Court at Udaipur.

An FIR was registered on November 14 at the Kumarghat police station in Tripura against the two Journalists – Samridhi Sakunia and Swarna Jha, of the HW News Network. Following this, they were arrested on the same day because of their reportage on Tripura Violence.

The two journalists reported on the communal violence and religious tensions which were taking place in Tripura following the instances of vandalism and attacks on mosques in the state.

The police alleged that “the reporters were creating tensions between communities and fabricating, concealing of records in furtherance of criminal conspiracy.”

In a video posted on Sunday, November 14 at 09:46 AM before her detention, Sakunia is seen detailing her detention. She said, “We are not being given any order of detention or an FIR, when asked about the orders we were not given any information, we are being taken 100 km away without any orders.” She also stated, “We are feeling helpless, no law and order are being followed, please help us restore the law and order.”

At first, the journalists were allowed to leave Tripura and then they were detained by the Assam Police and brought back to the state and arrested. Samriddhi Sakunia had tweeted, “We have been detained at the Nilambazar police station, Karimganj, Assam. We were informed by the officer-in-charge of Nilambazar PS that the SP of Gomti District gave the orders for our detention.”

The two journalists were booked under Sections 120B (punishment of Criminal Conspiracy), 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), and 504 (intentional insult with intent to provoke breach of the peace) of the Indian Penal Code, 1860.

The FIR was registered on November 14. According to the report, the complainant claimed “that the two reporters had allegedly made an instigating speech against the Hindu community and the Tripura government while meeting people from the Muslim community in the Paul Bazaar area.” The complainant also claimed that “the two journalists have blamed Vishwa Hindu Parishad (VHP) and Bajrang Dal for burning a mosque in the same area.”

Sakunia told the reporters, “We are being intimidated and threatened because we are highlighting what transpired on the ground. Is journalism a crime? I am being intimidated for doing my job and documenting the violence.”

“This is sheer harassment and targeting of the press on the part of Tripura police and Tripura government to suppress us from reporting facts of the case,” HW News stated in its statement.

Meanwhile, AltNews reported that police have maintained that no mosques were burnt and that images of the alleged incident shared on social media were fake. The police had shared the images of Rowa Jame Masjid to claim that no mosque was burned down.

08/12/2024 0 comments 26 views

Indian Judiciary on Rape Cases

by Guest Author 08/12/2024

written by Guest Author

By Pooja Bhattacharjee

Rape has been defined under Section 375 of the IPC (Indian Penal Code, 1860), which states that rape is said to have been committed when a man has sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age. Rape is a form of gender-motivated violence in India. In the case of Sakshi v. UOI, the Supreme Court shed light on the definition of rape and held that only penial and vaginal penetration will be considered as rape within the purview of Section 375 of the IPC, thus narrowing down the scope of sexual intercourse as defined in the IPC. However, in 2012, a bench of justices Swatanter Kumar and Gyan Sudha Misra held that even if there is no penetration, it does not necessarily mean that there is no rape, while upholding the conviction of a man for raping a 11-year-old girl, despite there being no evidence of penetration. (The Hindu)

The Verma Committee had recommended that non penetrative acts against women, like stalking and groping, which are also a violation of woman’s bodily integrity and sexual autonomy, should be termed as sexual assault and be punished as rape. The legislature, however, did not accept the recommendation and retained the offence of ‘outraging the modesty of a woman,’ which is the provision under which all non-penetrative sexual acts continue to be prosecuted under Section 354 of the IPC. (THE WIRE)

To prove that consent was absent, the law’s aim should be to reduce ambiguity and alter definitions to mitigate the historic imbalance of credibility afforded to males but not to females. The most important factor to be determined in a rape is whether the woman consented to the sexual act. The law presumes that the accused is innocent. The burden is on the prosecution- victim to prove beyond reasonable doubt that consent was absent. Under Section 375, ‘willingness to participate in the specific sexual act’ can be conveyed ‘through words, gestures or any form of verbal or non-verbal communication.’ The focus is more often on if these ‘gestures’ occurred and not on what they meant.

Two recent cases shows that the Indian judiciary needs to be more sensitive in dealing with rape cases and not fall back on erstwhile sexist and misogynistic views that have emerged in numerous judgments.

In the Guahati Rape Case, the Gauhati High Court granted bail to Utsav Kadam, a 21-year-old accused of rape on the ground that the he is a talented student and is the state’s ‘future asset.’ The police had arrested the accused, a student of IIT Guwahati on April 3, for allegedly sexually assaulting a female student of the institute on March 28. The bench of Justice Ajit Borthakur in an order passed on 13 August granting bail to Utsav Kadam, observed, “as the investigation in the case is completed and both the victim and the accused are the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who are young in the age group of 19 to 21 years only and further, they are being hailed from two different states, a continuation of detention of the accused in the interest of trial of the case, if charges are framed, may not be necessary”. The order was passed despite the fact that the court noted that there is a clear prima facie case against Kadam.

Last year, it was reported that a Civil Court in the Araria district of Bihar had sent a gang rape survivor to jail on grounds of disrupting court proceedings. Her only crime was having an emotional outburst and a nervous breakdown that emanated from the Court’s request to repeat her trauma over and over again. What seems to be a natural reaction for any rape survivor was misconstrued as ‘contempt of court’. The judiciary’s response to rape cases, specifically, rape survivors seem to fluctuate between insensitive and thoughtless to sexist and misogynistic. (ThePrint 2020)

In India, the class, and caste of the victim are used as means to discredit the victim. The colonizers used caste or class to gauge the reliability of the version of events stated by survivors and this is being continued to date. The rape adjudication cases in India involving a breach of promise to marry are also revealing. In Kunal Mandaliya v. State of Maharashtra.

Justice Mridula Bhatkar observed that an educated woman could not have been deceived, and thus was not raped on the pretext of marriage. The judgement read:

The prosecutrix at the time of filing the complaint was 30 years old and was nearly 25 to 26 years old when the first incident of sexual intercourse took place. Thus, she was aware of the consequences of keeping sexual relations with a man and she was also aware that there may be differences between two persons and they may find each other compatible. The girl was highly educated and also 25 years old. Therefore, the consent cannot be said to have been obtained by fraud.

The court’s comment on consent shows how in the absence of an affirmative standard, a negative standard invalidates the experience of the woman and improperly shifts the responsibility of the assault away from the perpetrator and onto the victim.

Marital rape refers to sexual intercourse with one’s spouse without their consent. Recently, the Chhattisgarh High Court held that sexual intercourse by husband does not amount to rape, even if it’s by force. (Today 2021)

The law, as inhumane as it is, however, is being defended by some eminent jurists who are in favour of leaving the provision untouched in order to protect the ‘Indian family values.’ It is important to acknowledge, however, that those assigned the female sex at birth are not the only survivors of rape in India, often, nonconformity with gender boundaries not only functions as a basis for sex crimes, including rape but also makes it harder for survivors to seek help. Section 375 of the IPC only conceptualizes the perpetrator as male and the victim as female. Its exclusivity in nature leaves out a large section of society who are being violated and are left with no discourse of getting justice.

The status quo burdens victims and exonerates perpetrators of responsibility in sexual interactions. Indian statutes, legal decisions, and commentaries condemning rape primarily focus on it as a crime that lowers a woman’s dignity and scars her reputation, rather than a crime violative of a woman’s selfhood, individuality, or autonomy.

The accounting of traditional notions of what an ‘Indian woman’ is and their defined ‘behaviors’ are, should be discarded. Even though change is visible, an overturning of the current structures will be brought about through a normative reconstruction of our laws and our social rationality only when people realize why the current laws are problematic and ancient and understand why new amendments to these laws are necessary.

It is necessary to take legal recourse if you’ve been abused of sexual harassment or have witnessed someone getting abused. Consecutively, you can register your complaint at the National Commission for Women as investigations by the police will be expedited and monitored.

08/12/2024 0 comments 28 views

Tribulation Of Innocent Hands

by Guest Author 08/12/2024

written by Guest Author

By Advocate Meenu Padha; Co- Authors – Tavleen Kaur & Vinayak Sonkar

India needs an instant nationwide awareness and campaigns against the child labour to protect and safeguard children from the economic and social consequences which has been faced due to Covid-19 crisis and lockdowns. Although some of us are practicing social distancing and actively working from home in the hope of a much better tomorrow, there are still a large number of children who may be victims of seemingly positive measures. One effect is the increase in the number of child labour. For many children, the Covid-19 crisis means little or no education due to poverty or less means of technology which will ultimately lead them to lag behind their peers. This will prompt a large number of children to stop learning even after we return to “normalcy” post COVID. Many children who are not in school will embroil themselves in child labour. In the two waves of Covid-19 in India, lakhs of men and women, many of whom did not have stable jobs and depended on daily wages, became unemployed or faced low income which had a spiralling effect on their children. Due to lockdown, the schools are unable to run physically and only a few people can access or receive online education. In the first wave of Covid19 in 2020, more than three-fourth of children did not have access to online learning facility and more than half of the children did not have access to any learning materials. The increasing anxiety of parents, shortage of learning material, low income and non-access to online education, all together has led to an increase in child labour.

The epidemic is clearly appearing to be a child rights crisis, which is increasing the risk of child labour, because more families are falling into extreme poverty. As stated by the United Nations Organisation, 160 million of child labour cases have increased to 8.4 million over the consecutive four years and Covid-19 has been a major contributor to this. Children from poor and disadvantaged families in India are now at a greater risk such as dropping out of school and being forced to work. Lakhs of families in emerging and developing countries are employed as daily workers in the informal sector (rickshaw drivers, construction workers, street vendors, workers in small factories, etc.). In particular, they have lost revenue due to the overwhelming effects of the global lockdown and the pandemic. The sharp decline in income means that families cannot afford basic necessities or money for children’s health care or education. In the formal sector as well, factory closures in countless countries have led to massive layoffs and loss of income, with major consequences being faced by lakhs of workers and their families. As adults are at a higher risk of contracting the coronavirus than children, the ultimate pressure is increasing upon children specially in poor families, to take the whole responsibility of family and bridge the gap of basic necessity. Since the production base is still looking for the cheapest labour, children are considered to be a very cheap option for such labours and work to meet their demands. Even before the epidemic, the figures for child labour in India were dismal. According to the Census 2011 statistics, the overall number of child labourers in India between the ages of 5 and 14 is 4.35 million (major workers) and 5.76 million (marginal workers), for a total of 10.11 million. Furthermore, there are 22.87 million teenage labourers in India, bringing the total (in the age bracket of 5-18 years) to about 33 million.

In addition to child labour, there are myriad facets of this problem which both result from child labour and also contribute to it. As per the National Crime Records Bureau, in India, one child disappears every eight minutes. India also has the highest child trafficking cases. Children are sometimes removed from their homes to be purchased and sold in the market. In other situations, youngsters are duped into falling into the hands of traffickers by being offered a job, only to be enslaved upon arrival. There are many children trafficked for a variety of causes, including work, begging, and sexual exploitation. Because of the nature of this crime, it is both difficult to trace these children and also prevent their exploitation effectively due to weak law enforcement. While we have an estimate of the issue, understanding its exact scope, and getting ascertainable numbers is very hard. Though the majority of child trafficking happens within the nation, a considerable number of children are trafficked from Nepal and Bangladesh.

Child trafficking is caused by a variety of factors, the most common of which are poverty, ineffective law enforcement, and a lack of high-quality public education. The traffickers that take advantage of children can be from another area in India, or could even know the child personally. Children who return home after being trafficked are typically shunned by their communities rather than welcomed. Poverty, a lack of education, and the need to financially support their family are some of the core causes of child trafficking in India. India’s unemployment rate is quite high, with the United Nations Development Programme estimating it to be 3.5 percent. Furthermore, there aren’t a lot of income opportunities. When youngsters are given the opportunity to labour, they are more likely to be exploited. Children in poverty are frequently compelled to trade sex in exchange for a place to live or food to eat. Some parents have even been compelled to sell their children to traffickers in order to get out of poverty or pay off debts. Gangs frequently traffic children and compel them to beg on the streets. Contemporary cases of begging can be seen in most of the metropolises. Not only are these children being forced to beg for money, but a significant number of those on the streets have had gang leaders forcefully remove their limbs or even pour acid into their eyes to blind them. Those children who are injured tend to make more money by invoking the empathy of the people, which is why they are often abused in this way. Organ trafficking is also widespread, with traffickers tricking or forcing minors to give up their organs.

As per UNICEF, over 300,000 children under the age of 18 are presently being exploited in more than 30 violent situations throughout the world. While the bulk of child soldiers are aged 15 to 18, some are as young as 7 or 8 years old. A huge number of youngsters are kidnapped and forced to serve as soldiers. Others work as porters, chefs, guards, servants, messengers, and spies. Many of these young soldiers have been sexually assaulted, which frequently results in unplanned pregnancies and sexually transmitted illnesses. Some youngsters have been coerced into carrying out crimes against their families and communities. A lot of children are also made to steal, snatch, kill with a mindset that it is an essential for their living .

Currently, 152 million youngsters, 64 million girls and 88 million boys, labour across the world. This represents nearly one-tenth of all children worldwide. There are about 10 million youngsters in India who are actively engaged in or pursuing employment. Despite considerable attempts done in recent years by the UN, ILO, and individual nations like India, this remains the case. Failure to minimize the number of minors exploited in job circumstances is due to the socio-cultural fabric that allows it to happen and condones the offence, as well as the enormous demand for inexpensive child labour in agricultural, mining, carpet-weaving, garment, brick kiln, and other sectors, as well as the pervasive poverty that continues to be both a cause and a function of child labour.

Selling of minor girls for prostitution is a big subject of concern. These minor girls are syndicated to enormous abuses one cannot even imagine. They are molested, harassed, raped, exploited, stalked, beaten and many more injuries are caused to those small teeny bodies which are sabotaged with cigars, burns, wounds and blood through their legs. While they feel the pain in the earlier years, in later years, girls come to accept it as their fate.

They perceive it as a way of living and consider sexual abuse as a necessary exchange for drugs, food, shelter, protection and other basics of life. Children who are exploited for commercial sex are subjected to child pornography and child prostitution transactions. Commercial sexual exploitation (CSE) of women and children earns around $400 million USD each year in Mumbai alone. According to the Ministry of Women and Child Development (MWCD), there are around three million prostitutes in the nation, with an estimated 40% of them being youngsters, since there is an increasing desire for extremely young girls to be initiated into prostitution according to customer preferences. Sexual exploitation has many serious implications for these youngsters.

Now the main question which comes up every now and then is – Will the government and general public take strong steps to prevent the abuse of the children and stop child labour and child trafficking?

On a national level, human trafficking is expressly prohibited in Article 23 of the Indian Constitution. To combat the issue of child trafficking, the Indian government has also passed further legislation and modified the Indian Penal Code (IPC). The Immoral Traffic (Prevention) Act of 1986 (ITPA) amends the Suppression of Immoral Traffic in Women and Girls Act of 1956. (SITA). Human trafficking for prostitution was deemed illegal by SITA, and legal action was detailed for anybody participating in human trafficking in any capacity. ITPA made laws friendlier towards the victim. ITPA also created a system to rehabilitate victims of trafficking and prevent them from bring trafficked again. In 2013, IPC was amended to create new provisions to address Trafficking in India that is more in accordance with the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Particularly Women and Children. State governments have also been observed taking steps to combat child trafficking by attempting to create systems and regulations at the state level. Non-governmental organisations that strive to solve various parts of this issue fill up any gaps in the execution of plans and regulations.

Although India is regarded as a centre for human trafficking, the Indian government places little emphasis on the issue. Hence the way in which the current legal system operates to address child labour in India can be considered as coming into direct conflict with the trend of independent child migration that is seen across the country. Therefore, legal measures are not enough. Every person needs to understand the gravity of this issue, make themselves aware, and keep their eyes and minds open, to help the government where ever possible in tracking the cases of child labour and preventing it.

08/12/2024 0 comments 25 views

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