Regarding Hundred and Fortieth Report on the Committee on Petitions of Rajya Sabha under the Chairmanship of Shri Bhagat Singh Koshyari, M.P.
8th July 2010/Bangalore
Honorable Chairman of the Rajya Sabha,
Office of Chairman, Rajya Sabha, Parliament House,New Delhi-110001
Subject: Regarding Hundred and Fortieth Report on the Committee on Petitions of Rajya Sabha under the Chairmanship of Shri Bhagat Singh Koshyari, M.P.
About National Family Harmony Society®: “National Family Harmony Society®” NFHS is a Non Governmental Organization (NGO) promoting the cause of “family harmony” and “gender equality”. It is registered under “The Karnataka Societies Registration Act, 1960” and is based in Bangalore. We have branches in more than 16 states and in abroad too. We have approximately 16500 members all over India. To know more about us please visit http://www.family-harmony.org / http://www.498a.org.in.
The Committee on Petitions of Rajya Sabha under the Chairmanship of Shri Bhagat Singh Koshyari, M.P. presented its Hundred and Fortieth Report to the Rajya Sabha on 7th September, 2011 on the petition praying for amendments in Section 498A of Indian Penal Code, 1860. The Petition was submitted by Dr. Anupama Singh, a resident of New Delhi.
The committee has given some recommendations to Rajya Sabha regarding 498A IPC. Before discussing merits or demerits or expressing our opinion on them, we would like to present different perspective of this issue because the committee has deliberated and recommended some ways and methods to “Stop the misuse of 498A IPC”.
There may not be difference of opinion in this country if the subject matter to be discussed is “protection of women”. No doubt, 498A IPC was framed to prevent cruelty on women and act as a deterrent against cruelty on women. If that is the case then the petition is submitted by Dr Anupama Singh who herself is women. The fact that the law has failed and has not solved its purpose and has been seriously misused and abused by greedy women to settle score with husband and his family members is not in dispute.
The problem is the committee has given a very technical and legal opinion to an issue which is entirely social and matrimonial in nature and has limited its scope of discussion. E.g.
In the para 13.8 of the report the committee acknowledges that measures are required to “check on false complaints”. The committee recommends that “The Committee feels that the Government should consider providing legal remedies for preventing filing of false complaints or complaints with ulterior motive to harass the husband and his relatives under Section 498A. The Committee recommends that Section 498A be amended so as to provide for specific penalty in case the complaint is found to be false or with some other ulterior motive.”
So when the misuse and abuse of the law is very clear and it is acknowledged that husbands and their family members are also victims of violence, cruelty and false cases then the scope of the discussion should not be limited to “Stop the abuse the 498A IPC”. The larger issue is “Abuse and misuse of Gender biased laws” and “Protection to husband and his family members”.
There are many laws and Acts to deal with matrimonial disputes and most of them are NOT “Gender Neutral”. Some of them are 498A IPC, Protection of women from domestic violence Act, 125 of CrPC, Hindu marriage Act, Hindu adoption and succession Act, Guardian and wards Act etc. All these Acts and IPC/CrPC section deals with “Protection to women”, “Alimony and maintenance to women”, “Divorce and child custody” etc. It is well known that all these laws are being heavily misused by greedy women to settle score and to harass the husbands and his family members.
The argument of women faces e.g. that of Ex-WCD minister Smt Renuka Chowdry that “women has been suffering from ages and now it is the turn of MEN to suffer” (In one of her TV interviews) OR that “Abuse and misuse is in small number so it is ok” OR to say that “Any law for that matter is being misused” has only aggravated the issue.
Unless the government looks at the this grave issue in its entirety and makes serious attempt to solve it by simplifying the laws rather than duplicating the laws this issue will never be solved. We think now the time has come so that Government should look at the larger issue wrt the matrimonial disputes. In view of the above discussion we strongly oppose the report which is nothing but half hearted attempt by Government which is not going to solve the issue. Hence we demand following.
- Misuse and abuse of Laws: Heavy punishment by the way of imprisonment should be introduced in case of misuse of any matrimonial laws.
- Make matrimonial disputes “Gender biased”. Government is completely ignoring the pain, harassment and torture of husband and his family’s members which they suffer at the hands of greedy women. Thousands of husbands have got divorce from wife on the ground of cruelty. This proves that women also can be cruel. Hence matrimonial laws should be made “Gender neutral” to provide protection to husbands and his family members.
- Duplication of Laws: Just to deal with the maintenance for wife there are 6 different laws. This is due to the mindset of our law makers to make a new law if there is complaint regarding old law. When Hindu marriage act was already there to deal with the maintenance of the wife then there was no need to bring CrPC 125, or Domestic violence act or HAMA.
- The definition of women is “Newly married young women”: Even though it is matter of common knowledge that daughter-in-law’s treat their mother-in-law with cruelty even then “Matrimonial laws” are only meant for “Newly married young women”. This must be amended to given protection to all without any consideration of gender or age.
- Protection to Husband and his families: Currently Husband and his family members do not have any protection from the cruelty of daughter-in-law. Laws should be made gender-neutral for their protection.
- Child custody issues: Government should bring in amendment for “Shared Parenting”.
- Never ending litigations: The litigations are so lengthy that by the time a father files for child custody and by the time matter is decided by Supreme Court, the child is ready to have his own child. And similarly once a divorce is filed by spouse, and by the time Supreme Court decides it couple are at the verge of retirement. The litigation in case of matrimonial disputes should be finished in a time bound manner of 1 year.
- Simplification of Divorce laws: What the relatives and the social circle cannot achieve is sought to be achieved that too by an over burdened presiding officer. Divorces are denied in a routine manner even when criminal cases are pending. Law should be modified keeping in mind the changed social structure.
- Try all matrimonial disputes under civil law: Involvement of police breaks any possibility of re-union between the couple.
Attempt by Government to do some temporary, ad-hoc and stop-gap arrangement by fixing some loop holes in the 498A IPC is neither going to stop the misuse of “Gender biased” laws nor it is going to provide any “protection to husband and his family members” from potential misuse and abuse of law. Government instead of taking ad-hoc and temporary steps should constitute a committee for overhaul of overall matrimonial laws rather than approaching the issue piecemeal basis which will aggravate the issue rather than solving it.
P Suresh, President
NFHS and other NGO members who deposed before Rajya Sabha commitee of petions to suggest ammendments in 498A IPC
No. RS. 6(69)/2008 – Com.II 22nd June, 2011
Shri P. Suresh,
President, National Family Harmony Society,
H-102, Raj Nagar-II,
Sub: Petition praying for amendments in Section 498A of the Indian Penal Code, 1860.
I am directed to state that the Committee on Petitions of Rajya Sabha which is examining the captioned petition, has decided to have the benefit of your views in response to your Memorandum on the petition in its meeting to be held on Wednesday, the 29th June, 2011 in Main Committee Room, Ground Floor, Parliament House Annexe, New Delhi. I am, therefore, to request you kindly to make it convenient to appear before the Committee at 11.00 a.m. on the above noted date and venue for the purpose. You may bring with you one person for assistance during the presentation. Subject to other individuals/organizations (who have also been invited) actually appearing before the Committee, one organization/individual may get around 10 minutes for making the presentation.
2. A line in confirmation of your appearance before the Committee may be sent to the undersigned at the earliest.
3. A copy each of the petition and the list of Members of the Committee on Petitions is enclosed.
PDF Version ——–> Rajya_Sabha_Petition_DV
Bangalore / 09-May-2011
The Council of States (Rajya Sabha)
The petition of Shri P Suresh an Engineer and a resident of Bangalore, Karnataka
1. That “The Protection of Women from Domestic Violence Act, 2005” [hereafter referred to as the “Act” for the sake of brevity] was passed by parliament as Act No. 43 OF 2005 on 13th September, 2005 to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.
2. That subsequent to passing of the above said “Act” there is seemingly increasingly heavy misuse of the “Act” similar to the heavy misuse of 498A IPC.
3. That the parliament has passed this “Act” with good intention to provide speedy relief to the women who are victims of “Domestic violence” but as has been seen in the recent past that this “Act” has become a tool at the hands of greedy women to use it to harass their husbands and his family members in case of matrimonial disputes.
4. That there is an urgent and immediate need to address the issues related to the abuse and heavy misuse of the said “Act” which is breaking the families and since the family is the basic unit of the society and hence there are tremors and crack already appearing on the society.
a. The “Act” is providing relief only to the “young married women” contrary to the intention of the parliament. The result is “young married women” at the drop the hat are rushing to the courts with petitions and implicating the entire family members of husband by misusing the said “Act”.
b. The “Act” is being misused by many of the young, educated & intelligent women with corrupt intentions to satisfy their greed, grudge & fantasies. This law becomes more lethal when misused along with the Dowry Law or IPC 498A. The case under “Act” is usually filed just after an FIR U/S 498A of IPC is registered for the same cause of action.
c. When there is a dispute between the spouses and when the wife files a criminal cases like Dowry Harassment (IPC 498A) against the husband, it becomes impossible for him to continue to live with the wife. And if the wife claims for Right to residence in his house under this “Act”, then husband has to vacate the house along with his aged parent, as it is impractical to even think that husband and his wife can stay under the same roof that too when the criminal cases are pending. This leads to an unbearable harassment to the husband and his age old parent. Punishing him before beginning the trail is violation of his constitutional rights. In some cases the husbands will be re-paying their house loans, but because of the residence orders husband and his parent will be staying outside their houses in spite of paying for house loans, causing a great burden and hardship to them.
d. If the husband / his parents live in the shared house they have to face harassment of police / face multiple other criminal cases as per the wish of wife’s lawyer. So invariably husband and his old parents have to run away, sometimes without belongings and stay in a rented accommodation.
e. The wife can get an order prohibiting the husband from operating his own bank accounts including his salary accounts, making it impossible for him to live. In one case, wife first used 498A to send the husband & her mother-in-law to jail. As soon as they were released on bail, wife used “Act” to lock all their bank accounts & properties including the husband’s salary account. When they went home, they were beaten up by the wife & her kin and the husband & the mother-in-law were thrown out of their own house, thus making them penniless and homeless. This is how women are misusing this “Act” resulting in violation of basic rights of the innocent husbands & aged in-laws. Even in the cases of Dowry death the husband will get a chance to prove not guilty, but this “Act” first punishes the husband and then gives the husband the chance to prove not guilty.
f. The wife can get an order prohibiting the husband from entering the shared household. This resulting in, he being thrown out of his own house without any cause. This “Act” enables the wife to capture the house of the husband and in-laws and throw them out. In many of the cases it has been observed that some women acting like goons misuse this “Act” to capture the hard-earned properties of the husband and in-laws, denying their basic rights. Once the wife gets the control over the property she can use that to accommodate her kin or bring-in her boy-friends.
g. Wife can file multiple maintenance suits for the same relief, one under this “Act” and another under Cr.P.C 125 or any other provision available just to harass the husband by making him run around different courts. This concept of misusing multiple maintenance provisions has gone beyond bearable limits. There are numerous complaints from victims and this has prompted us file a Public Interest Litigation, in Hon’ble High Court of Karnataka with Writ Pet. No. 9168/10.
h. Though this “Act” restricts the maintenance amount to be fair & reasonable, the Hon’ble magistrates in various courts are hardly giving attention to this clause. In a hurry to provide justice to the women they are passing meaningless orders with exorbitant amounts as maintenance without any justification. The high amounts of maintenance passed by the magistrates are being misused by the estranged wives for enrichment and luxury.
i. Some wives gets ex-party orders to get her belongings and come with police protection and take away all the evidences, photos, bank accounts, property documents, gold, cash, credit cards, everything what she knows and what her lawyer suggests along with important house hold items.
j. Since this “Act” assumes that whatever the women says as true, is highly vulnerable to misuse.
k. The misuse of the “Act” is so rampant that many of the parliamentarians, courts, Chief justices of various High courts have expressed their concerns over the misuse.
l. Many women are using the “Act” to settle score with husbands and to capture his properties.
m. There are instances of misuse where women had invoked the “Act” just after few days after the marriage as it was pre planed to misuse.
n. There are instances where the petitioner is well educated and capable of working and earning and in many cases working but in order to harass the husbands they resign from their jobs and invoke this “Act”.
o. The misuse is so wide and rampant that even though any order under the said “Act” is enforceable only against husband but in order to harass petitioner adds all the family members of the husband as respondent.
5. Delhi High Court in a case related to the “Act” on 13-08-2010 observed that “I therefore consider that the application filed by the petitioner under Section 12 of Domestic Violence Act was not at all maintainable. The petitioner had settled her separate house in America, her Passport was issued in America, she is doing job in America, she was adult and able to take care of herself, take her own decisions. She decided to live in America after leaving her parents here. If she has any right in her father’s property, she has already filed a suit for partition. An application under Section 12 of Domestic Violence Act was nothing but a gross misuse of the Act and I consider that she was rightly denied the interim relief of residence in the property left by her father. The petition is hereby dismissed.”
6. Even the Hon’ble Supreme court in Batra VS Batra observed that the “Act” has been drafted poorly. Terming the definition of ‘shared household’ in Section 2(s) of the Act as “not very happily worded”, the Bench said it “appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and does not lead to chaos in society,”
7. This “Act” does not provide any provision or mechanism of punishment to the petitioners who misuse the “Act” which causes to the respondents.
a. Severe damage in the society as they are branded as “wife beaters” and “dowry seekers”.
b. Loss of jobs due to filing of false case under the “Act”.
c. Bad and defamatory publication in media and loss of reputation.
d. Financial loss due to false cases.
e. Harassment to the old parent of respondents due to running around court due to false cases.
f. Prospectus of sisters of husbands not getting married due to false complaint.
8. That the petitioner prays to amend this “Act” which is being heavily misused by thousands of women across India to settle score with husbands and due to which thousands of families are breaking. It is therefore respectfully prayed to amend the “Act” to include below suggestions.
a. To make the said “Act” “gender-neutral” by providing protection to MEN as well.
b. To increase the scope of the said “Act” beyond “young married women” to a cover a much larger section of victims irrespective of their age & gender.
c. To introduce a punishment clause in the “Act” in-line with section 387 to 389 of Indian Penal Code. A new rule should be introduced to protect the rights of the accused by sufficiently compensating the accused.
d. To add a new clause for protecting the human rights of the respondent husband.
e. To remove the role of Protection officer.
f. To make the trial under this “Act” in compliance to Indian Evidence Act rather than in compliance to Criminal Procedure Code.
g. To empower magistrates to order Suo Moto perjury and contempt proceedings in respect of exaggerated or false allegation in respect of domestic violence, cruelty when such allegations are proved to be false.
h. To make time bound conclusion of trial in 60 days.
i. To do away the practice of passing high Ex-Parte/Interim maintenance under this “Act” even when there no prima facie evidence to prove Domestic Violence.
j. To not consider “sole testimony” of women as gospel truth.
Name of Petitioner Address Signature
P Suresh, Bangalore, Karnataka – 560048
Strong objection to “Protection of Women against Sexual Harassment at Workplace Bill 2010” – Fantastic Draft by Niladri
To, 20th January 2011 / Bangalore
Shri N S Walia,
Director, Rajya Sabha Secretariat,
Room No 515, 5th Floor, Parliament House Annexe,
New Delhi – 110001, Ph – 011- 23034187
To The Honorable Members of Department Related Parliamentary Standing Committee, on Human Resources Development, headed by Shri Oscar Fernandes, M. P. Rajya Sabha
Sub: Strong objection to DUPLICATION of law & EXTORTION in the name of framing “Protection of Women against Sexual Harassment at Workplace Bill 2010”. A Bill being framed in VIOLATION of Constitution, Universal Declaration of Human Rights & Apex Court Order, just to promote business and income generation for some lawyers
This memorandum is in strong objection to the bill titled “Protection of Women against Sexual Harassment at Workplace Bill 2010”.
Today India is more famous for its astronomical scams and rampant corruption. The outgoing chief of the Central Vigilance Commission openly stated that about 30% of Indians are utterly corrupt and about 50% are on the borderline corrupt and can be corrupted if presented with a situation. Hence given that over 80% of the country is corrupt, what is the justification behind creating laws which can be easily used as weapon for extortion. From the above data it can be concluded with reasonable accuracy that given that half the country is composed of women, over 40% of the Indian women are also corrupt. The media is awash on the rampant possibility of Misuse of the present bill. In this context we would like to bring to the notice of the Hon’ble Members, that our President, Her Excellency Mrs. Pratibha Patil, has repeatedly warned on the massive misuse of gender biased laws, and urged everyone to exercise extreme caution while drafting such bills. The present bill, if passed in the present format, containing numerous loopholes and open to rampant misuse, would be a serious vote bank issue in the coming elections.
Has this Bill been framed only to give employment to Women NGO members!!
Clause 19(h) states, that the Employer, shall “initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator after the conclusion of the inquiry, or without waiting for the inquiry, where the perpetrator is not an employee in the workplace at which the incident of sexual harassment took place.
Or in other words, this Bill would be applicable only for Sexual Harassment cases, when the person is an employee. In such a case, no proof is required of the alleged Sexual Harassment. The person also need not undergo any punishment and only needs to pay money to the alleged victim, which would be again deducted from his salary. For all the other cases of sexual harassment (when he is not an employee), the existent IPC laws would be very much applicable and thus he would have to undergo punishment as per IPC laws, (for which proof is required), and he does not have to need to pay any money to the victim.
Thus it is amply clear that Laws for alleged Sexual harassment already exist in the IPC and this Bill is just a Duplication of Law
The existing Sections of 509 and Section 354 are more than capable to cover all instances of sexual harassment at workplace or at any other place for that matter. The brief description of the sections are given below
Section 509 :- Word, gesture or act intended to insult the modesty of a woman
Section 354 :- Assault or criminal force to woman with intent to outrage her modesty
The three shortcomings in the Present IPC Laws of Sexual Harassment and the real agenda of some Lawyers group, in framing this Bill.
Is this Bill framed only for extortion & employment for women Activists Lawyers!!
First of all under the present IPC laws, the women does not get any monetary compensation for sexual harassment and the perpetrator also gets punished, if found guilty. Moreover, no Women NGO member gets paid for being recruited as committee members under the present IPC laws. In the present bill however, there is no punishment for the perpetrator, whereas the victim gets monetary compensation, for alleged Sexual Harassment, with an elaborate, non required, recruitments of committee members from various women NGOs, whose qualification would be “committed to the cause of women”, and thus get paid by the Government, from Tax Payers hard earned money.
Secondly in the Present IPC laws, the woman needs evidence in the court, to prove her case. In the present bill, however, there is no such requirement as the process of enquiry of the complaint has not been defined. Very special measure like blanket ban of use of RTI on the enquiry proceeding have also been proposed in this bill, making it wide open for rampant misuse.
Thirdly, the present IPC laws are again criminal in nature with the government Public Prosecutors, fighting for the women, with no scope of income generation for the women activist lawyers. In the present bill, the alleged victim would however require lawyers including women activists’ lawyers to fight her case and get monetary compensation for alleged sexual harassments. Thus the present bill would generate huge business and income for lawyers including women activists and simultaneously clog the judicial dockets with non required, multiple cases, as per the very draft of the bill itself. Such a scope of business and income generation for women activist lawyers is unfortunately absent under the present IPC laws.
Avoid duplication of law as the very bill states that remedies under present IPC are very much available for the same offense of sexual harassment and can also be easily applied when the perpetrator is not an employee. There is also no bar in the present IPC laws where it apparently states that the very same IPC laws of Sexual Harassment cannot be applicable on persons when he is an employee in any organization, and is only applicable when he not an employee. As it is out clear that the only purpose of the bill is just to give employment to Women NGO members, the government can alternatively, employ such, women NGO members, qualified as “committed to the cause of women” in various other upcoming social schemes, or give them training to upgrade their skill sets or give them easy loans under self employment schemes.
Let us now go through the other various shortcomings of the present draft of the bill, and which requires the following amendments
A. Gender Neutrality
1) All employers are committed to maintaining a workplace where each employee’s privacy and personal dignity are respected and protected from offensive / threatening behavior, irrespective of gender.
2) The Sexual Harassment at workplace policies prevalent in most of the nations today are gender neutral. According to a report on Sexual harassment at workplace by United Nations Economic Commission of Europe – Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, The Slovak Republic, Slovenia, Spain, Sweden, United Kingdom have policies for Sexual Harassment, that are gender neutral. Even neighboring Pakistan has Gender Neutral Sexual Harassment policies.
3) Surveys recently conducted by the Economic times, and Synovate across 6 Indian cities exposed the fact that men face more sexual harassment than women and must also be given protection.
4) Eminent social workers like Madhu Kishwar supported the fact that the Sexual harassment at Workplace Bill in its present from needs immediate amendment.
As per the Census of India 2001 data, men constitute 68.37% of the total workforce whereas women were 31.63%. Therefore, any effort to prevent or eliminate sexual harassment at workplace should be applicable to employees, irrespective of gender, both in terms of responsibility and liability.
Sexual Harassment at Workplace Bill should thus be made gender neutral so that it does not violate Article 15 of the Constitution which prohibits discrimination on grounds of gender. Moreover, Article 15(3) does not allow women to be exempted for punishment for committing the same crime as men, such as sexual harassment
Suggestion # 2
The Act should be made applicable to all employees, irrespective of their gender. The word woman should be replaced by the word employee in all appropriate places in the draft bill so as to render the proposed draft gender neutral.
B-I Tenure of Committees
The committees should not be permanent entities. This would help avoid any possibility of malpractice. Committees should be formed only when a complaint is received and appropriate action is warranted on it. They should be disbanded after appropriate action has been taken.
Suggestion # 3
No committee be formed unless to hear a specific complaint.
B-II Remuneration for Committee members
Section 7(2) and Section 7(4) of the draft bill propose tenure and remuneration for the Committee members. It is strongly recommended that no remuneration or allowances should be made payable to any of the Committee members as it would encourage frivolous and malicious cases to justify such payments.
Suggestion # 4
No remuneration, monetary or otherwise, be provided to the committee members or chairperson.
B. 3 Constitution of committees
B.3-I Appointment of Committee Chairperson and Internal Committee members
Section 7(1)(a) of the draft bill states :- “a Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women”
The above proposed section is based on an unjustified, untenable premise that only women are capable of arbitrating complaints of sexual harassment.
Both section 7(1)(a) and 7(1)(c) use the phrase ‘committed to the cause of women’. Even the Supreme Court, Vishakha Judgement does not use the phrase “committed to the cause of women”. This phrase in fact finds mention in several places in the draft bill and its connotation only suggests an inherent bias and prejudice against men. The committee members instead should be individuals with ‘high integrity and a judicious approach’.
Suggestion # 5
Instead of being gender biased and committed to the “cause of women”, the appointment of the Committee Chairperson and members should be on the basis of their integrity and their judicious approach. All appointments should be transparent.
B.3-II NGO Committee member
In section 7(1)(c), the bill states :- “at least one shall be a woman, to be nominated from amongst such non-governmental organisations or associations committed to the cause of women, which may be prescribed”
In section 7(1)(d), the bill states :- Provided that at least one-half of the total Members so nominated shall be women
Members external to the organization should not be allowed to arbitrate on the issues that are internal to the organization. Members of women’s groups or non-governmental organizations dealing with issues of violence against women may harbour an inherent bias against men and a fair and equitable probe may not be made available to male victims of sexual harassment. They may also encourage women who are not necessarily harassed, but have other grievances with the organization, to file sexual harassment complaints.
Another stipulation in this section requires that at least fifty per cent of the members so nominated shall be women.
Suggestion # 6 & 7
• No members, external to the employer organization, be allowed in the committee.
• Any stipulation with respect to number of women in the Committee is unnecessary and makes a prejudiced assumption that only women are capable of arbitrating complaints..
In various sections the committee has been granted various powers to make appropriate recommendations to the employer or District Officer.
i. From the proposed draft bill it is not clear if the employer is bound by the recommendations of the committee.
ii. The process of appeals too is not clearly specified.
iii. Would the recommendation of the committee be open to challenge in a court of law?
iv. Does the respondent have a right to legal counsel during the proceedings on the enquiry?
v. The power of the committee and the process of the enquiry of the complaint should be well defined.
Again Clause 11(2) of the bill states that “the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents; and
(c) any other matter which may be prescribed.
We strongly object to the subclause (c) “any other matter which may be prescribed” as such an important bill can’t give huge powers to the committee and at the same time, make clauses ambiguous and open ended.
Suggestion # 8
The powers of the committee and the appeals process should be specified unambiguously. Inadequacies mentioned in (i) to (v) above need to be addressed explicitly. Clause 11(2)c, needs to be deleted, being not specific, ambiguous, and open to various interpretations.
In section 10 (1), the draft bill states – “The Internal Committee or, as the case may be, the Local Committee, may, before initiating inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation“.
A complaint of sexual harassment is a serious complaint, and under no circumstances should the conciliation include any monetary settlements. It is an outrage to the sensibilities of all self respecting men and women that money can be considered as adequate redressal for their loss of dignity. Moreover, monetary payments would only render the proposed statute open for abuse. Various media articles have specially pointed out these serious lacunae of this bill. In fact, this is in clear violation of the Supreme Court, Vishakha Judgement, which does not speak of awarding monetary compensation to a victim of Sexual Harassment, from the respondent, as Apex Court knew very well, that then, the bill, would be open to rampant misuse.
Suggestion # 9
Monetary compensation should not be a part of conciliation proceedings. This would to a large extent help avoid potential for misuse.
C-II Time limit on Filing Complaints
A time limit within which the complaint needs to be filed from the time of alleged incident is of crucial significance in settling sexual harassment disputes. Justice should be meted out before any evidence is damaged, destroyed, rendered useless or fades away from memory. In fact the complaint should be lodged by the complainant instantaneously and spontaneously without any loss of time. Any delay on this score must be explained to the satisfaction of the concerned authority. In addition, the filing of the complaint needs to be time bound. For example, it would be ridiculous to entertain a complaint of sexual harassment after years of the alleged incident. It is also important to remember that the guilty person should be visited with appropriate reformist action at the earliest, which can be made possible only when the complaint is filed instantaneously.
Suggestion # 10
The complaint should be filed immediately on the occurrence of the alleged incident. Any complaint not filed within a stipulated time period (4 weeks) should be closely scrutinized for veracity before admission and the delay should be explained in writing by the complainant, to the satisfaction of the committee.
C.3-I Silence on action to be taken
The bill in clause 13(3)(i) states that “ to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
C.3-II Financial Responsibility
In section 13(3)(ii), the draft bill directs – “to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum of compensation to be paid to the aggrieved woman or to legal heirs, as it may determine, in accordance with the provisions of section 15:”
First of all the bill is totally silent on what action is to be taken on the respondent, in absence of service rules and states “as may be prescribed”. Or in other words, the draft bill is unfortunately silent on the main issue.
Secondly, loss of salary or wages would be a huge encumbrance on the family of the respondent, potentially including children, who would face economic hardships and could even jeopardize their future. The respondent must not be individually responsible when he/she is in employment of the organization. Rather, it is the responsibility of the organization to police its own employees and ensure they follow the service rules. If they don’t, the employer is responsible to pay the compensation to the victim. The employer can deal with the service aspects of the perpetrator separately in the best interest of their organization. In the western nations, the financial burden of a sexual harassment suit lies with the employer as it is the responsibility of the employer to provide a safe working environment to the employees.
Suggestion # 11
As prevalent in the western world, the Employer should bear the financial burden of the compensation ordered to the aggrieved person. The bill should clearly specify the action to be taken on the respondent in absence of service rules, as that it supposed to be the main purpose of this bill.
C.3-III Determination of Compensation
All incentives for filing frivolous and malicious complaints should be eliminated. No committee should be empowered to issue any monetary compensation at any stage of the complaint. All avenues for extortion and blackmail should be shut down by divesting the committee of all power to order any monetary incentive to the complainant.
The committee should be given authority only to investigate and submit a report. The question of compensation must be decided by a legal authority whose decisions are available for review by higher judiciary.
Suggestion # 12
The committee should be divested of all powers to order any monetary compensation at any stage of the proceedings.
C.4 False and Malicious complaint
In section 14(1), the bill states – “
Provided further that the malicious intent or falsehood on part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action is recommended”
When the allegations of sexual harassment cannot be proved against the respondent, then it should recommend action against the complainant immediately, within a maximum specified time limit of 30 days. The bill also states that “in accordance with the procedure prescribed”. We are all aware that most of the cases filed under this bill, would be false. And as no procedure is being spelt out, none would be punished for lodging false cases for ulterior motives. We strongly suggest the deletion of the above phrase to minimise its rampant misuse.
We would also like to humbly remind the Hon’ble Committee Members that on 7th August, 2009, some Women NGOs lobbied for deletion of the Misuse Clause from the draft bill. All the Women MPs, unanimously agreed that a Misuse Clause is very much needed to prevent misuse of this loosely worded bill. Unfortunately, after the above consensus was reached, with the Women MPs, the very misuse clause has been drastically changed to, make the bill, ironically, even more prone to misuse.
Section 14(1), of the bill states that if a complaint is found to be false, the committee “may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint”.
The phrase ‘may recommend’ should be changed to “shall recommend” to ensure justice for a respondent falsely accused of sexual harassment.
Suggestion # 13
Mandatory action must be taken against the complainant when the complaint is found to be frivolous or malicious, within a maximum of 30 days.
Falsely accused person should have the right to pursue justice in a court of law, and claim appropriate redressal as remedy for the mental trauma, pain, suffering, emotional distress and social censure caused to the falsely accused person.
D. Duties of Employer
Clause 19 (g) states that “provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force;
Comments on Section 19 (g)
The bill is totally silent on quality of assistance to be provided by the Employer.
Suggestion # 15
The quality of assistance to be provided by the Employer must be spelt out clearly and unambiguously in the bill.
E. Right to the Enquiry Report
Section 16 prohibits the publication or making known, the contents of complaint and enquiry proceedings. Interestingly the bill suggests suppression of information only when the case is False. Information on true cases can however be retrieved through RTI Act. In a report published by the Transparency International, it was found that India’s corruption index showed a marked decline and the single-most reason for the drop in corruption in government was attributed to the Right to Information Act. The RTI Act which has been hailed as a beacon of democracy in India many a times by the Honourable Prime Minister and Leader of the UPA Mrs. Sonia Gandhi cannot be allowed to be trampled in such a manner by some people having vested interest. Even the DoPT has given serious objections in writing against this Clause 16, which brutally tramples the RTI Act.
The Sexual Harassment at Workplace is an outcome of the guidelines framed by Honb’le Supreme Court of India in Vishakha Vs State of Rajasthan (AIR 1997 SC 3011). The guidelines clearly say that “These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993”. The above clause is thus a clear contempt of the Apex Court guidelines and a blatant abuse of Human Rights.
When, either the complainant or the respondent wishes to approach any court of law for justice, they should have a right to the details and proceedings of the enquiry in the enquiry report to provide context to the judiciary.
Suggestion # 16
Section 16 should be deleted. In the event the complainant or the respondent wishes to pursue the matter in judiciary, the enquiry report should be provided to concerned party.
Summary of the above recommendations:
- Avoid duplication of law as the very bill states that remedies under present IPC are very much available for the same offense of sexual harassment and can also be easily applied when the perpetrator is not an employee. There is also no bar in the present IPC laws where it apparently states that the very same IPC laws of Sexual Harassment cannot be applicable on persons when he is an employee in any organization, and is only applicable when he not an employee. As it is out clear that the only purpose of the bill is just to give employment to Women NGO members, the government can alternatively, employ such, women NGO members, qualified as “committed to the cause of women” in various other upcoming social schemes, or give them training to upgrade their skill sets or give them easy loans under self employment schemes.
- The Act should be made applicable to all employees, irrespective of their gender. The word woman should be replaced by the word employee in all appropriate places in the draft bill so as to render the proposed draft gender neutral.
- No committee be formed unless to hear a specific complaint.
- No remuneration, monetary or otherwise, be provided to the committee members or chairperson.
- Instead of being gender biased and committed to the “cause of women”, the appointment of the Committee Chairperson and members should be on the basis of their integrity and their judicious approach. All appointments should be transparent.
- No members, external to the employer organization, be allowed in the committee.
- Any stipulation with respect to number of women in the Committee is unnecessary and makes a prejudiced assumption that only women are capable of arbitrating complaints..
- The powers of the committee and the appeals process should be specified unambiguously. Inadequacies mentioned in (i) to (v) above need to be addressed explicitly. Clause 11(2)c, needs to be deleted, being not specific, ambiguous, and open to various interpretations.
- Monetary compensation should not be a part of conciliation proceedings. This would to a large extent help avoid potential for misuse.
- The complaint should be filed immediately on the occurrence of the alleged incident. Any complaint not filed within a stipulated time period (4 weeks) should be closely scrutinized for veracity before admission and the delay should be explained in writing by the complainant, to the satisfaction of the committee.
- As prevalent in the western world, the Employer should bear the financial burden of the compensation ordered to the aggrieved person. The bill should clearly specify the action to be taken on the respondent in absence of service rules, as that it supposed to be the main purpose of this bill.
- The committee should be divested of all powers to order any monetary compensation at any stage of the proceedings.
- Mandatory action must be taken against the complainant when the complaint is found to be frivolous or malicious, within a maximum of 30 days.
- Falsely accused person should have the right to pursue justice in a court of law, and claim appropriate redressal as remedy for the mental trauma, pain, suffering, emotional distress and social censure caused to the falsely accused person.
- The quality of assistance to be provided by the Employer must be spelt out clearly and unambiguously in the bill.
- Section 16 should be deleted. In the event the complainant or the respondent wishes to pursue the matter in judiciary, the enquiry report should be provided to concerned party.
श्री राकेश नैथानी,
जोइंट डिरेक्टर, राज्य सभा सचिवालय,
पार्लियामेंट हाउस अन्नेक्से,
नयी दिल्ली – ११०००१
विषय : भारतीय दंड संहिता कलम ४९८ ए के संशोधन के लिए सुझाव
मैं अहमदाबाद में रहने वाली एक वरिष्ठ महिला नागरिक हूँ. मैं स्वयं भारतीय दंड संहिता की कलम ४९८ ए के दुरूपयोग से पीड़ित हूँ और यह इच्छा रखती हूँ की इस कलम का जल्दी से संशोधन किये जाना चाहिए नहीं तो इसके ज़रिये भारत के कई मासूम परिवारों का विनाश सुनिश्चित है.
इस विषय में मेरे सुझाव इस प्रकार हैं :
1. इस कानून का दुरूपयोग करने वाली महिला को सख्त से सख्त सजा दी जानी चाहिए. ऐसी परिस्थिति में झूठे आरोप के भोगी परिवार को सरकार द्वारा मुआवज़ा एवं अभियोक्ता लड़की से भी मुआवज़ा दिलवाए जाना चाहिए.
2. जिन मामलों में ये प्रथम दृष्टि पाया जाता है की अभिभोक्ता लड़की के साथ कोई अत्याचार नहीं हुआ, उनमे पति के परिवार के लोगों को आरोपियों की सूची में से हटाये जाना चाहिए और उनपर कोई केस न चलाया जाए.
3. यदि पाया जाए की अभियोक्ता लड़की ने ससुराल पक्ष के सभी अथवा काफी सारे सदस्यों पर आरोप लगाये हैं तो उस लड़की के इरादे पर भी शक करना चाहिए. यदि उनमे से एक भी निर्दोष पुरुष या फिर महिला पर उसने झूठे आरोप लगाये हैं तो येही कारण पर्याप्त है अभियोक्ता को सजा देने के लिए. उसे कानून की किसी भी धारा में कोई भी आर्थिक सहायता नहीं दी जानी चाहिए क्योंकि किसी भी तरह का आर्थिक फायेदा उसके बुरे आचरण को बढ़ावा देगा और कई लड़कियों को झूठे केस करके माननीय कोर्ट व मासूम लोगों का समय नष्ट करने की प्रेरणा देगा.
4. एक ही तरह के आरोपों के बल पर विभिन्न केस करने क अनुमति नहीं दी जानी चाहिए. फिलहाल तो एक ही आरोप पर डोमेस्टिक वायोलेंस एक्ट व ४९८ ए किये जाना शक्य है जिसके कारण झूठे आरोपों में फसे मासूम परिवारों को काफी कष्ट का सामना करना पड़ता है. संक्षेप में कहा जाये तो यदि किसी लड़की ने एक ४९८ ए का केस किया हुआ है तो इस केस के पूरा होने तक उन्ही आरोपों पर डोमेस्टिक वायोलेंस का केस करना संभव नहीं होना चाहिए.
- क़ानून की धारा ४९८ ए बनायी गयी थी “महिलाओं” को अत्याचार से बचाने के लिए परन्तु इसके लाभ केवल बहुओं व पत्नियों को ही उपलब्ध हैं. ऐसी स्थिति में देखा जाए तो माँ एवं बहनों के लिए कोई भी कानून नहीं है जो उन्हें भाभी, बहु आदि के अत्याचार से संरक्षण दे. बल्कि देखा जाए तो ऐसे झूठे केसों में फसी महिलाओं के साथ तो पुलिस के अधिकारी भी दुर्व्यवहार करते हैं और सिफ आरोपियों की सूची में नाम होने के कारण उन्हें ये सब सहना भी पड़ता है. दुख की बात तो यह है की ऐसी स्थिति में फसी महिलाओं को तो National Commission for Women से भी कोई सहायता उपलब्ध नहीं है. इन तकलीफों को दूर करने के लिए ४९८ ए में ऐसा एक अनुच्छेद डाले जाना चाहिए की :
- ऐसे केसों में फसी महिलाओं को मुकदमें के दौरान आर्थिक सहायता उपलभ करवाइ जाए
- ऐसे केसों में फसी महिलाएं यदि बहु अथवा भाभी के द्वारा अपने खिलाफ किये गए अत्याचार का प्रमाण ले आयें तो इसी धारा के प्रावधानों का लाभ उन्हें भी मिलना चाहिए.