Author : Aakarsh Kamra
The National Commission for Women was set up as statutory body in January 1992 under the National Commission for Women Act, 1990 ( Act No. 20 of 1990 of Govt. of India ) to review the Constitutional and legal safeguards for women; recommend remedial legislative measures, facilitate the redress of grievances and advise the Government on all policy matters affecting women .
The events that led to the establishment of the national commission for women ;
• The Committee on the Status of Women in India (CSWI) recommended nearly two decades ago, the setting up of a National Commission for women to fulfill the surveillance functions to facilitate redressal of grievances and to accelerate the socio-economic development of women.
• Successive Committees / Commissions / Plans including the National Perspective Plan for Women (1988-2000) recommended the constitution of an apex body for women.
• In the year 1990, the central government held consultations with NGOs, social workers and experts, regarding the structure, functions, powers etc. of the Commission proposed to be set up.
• In May 1990, the Bill was introduced in the Lok Sabha.
• In July 1990, the HRD Ministry organized a National Level Conference to elicit suggestions regarding the Bill. In August 1990 the government moved several amendments and introduced new provisions to vest the commission with the power of a civil court.
• The Bill was passed and received accent of the President on 30th August 1990.
• The First Commission was constituted on 31st January 1992 with Mrs. Jayanti Patnaik as the Chairperson. The Second Commission was constituted on July 1995 with Dr. (Mrs.) Mohini Giri as the Chairperson. The Third Commission was constituted on January 1999 with Mrs. Vibha Parthasarathy as the Chairperson. The Fourth Commission was constituted on January 2002 and the government had nominated Dr. Poornima Advani as the Chairperson. The Fifth Commission has been constituted on February 2005 and the government has nominated Dr. Girija Vyas as the Chairperson.
The NCW adopts a multi pronged strategy to tackle the problems of violence against the women, generating awareness among women, thus equipping them with the knowledge of their legal rights and with a capacity to use these rights.
• Assisting women in redressal of their grievances through Pre litigation services.
• Facilitating speedy delivery of justice to women by organizing Parivarik Mahila Lok Adalats in different parts of the country.
• Review of the existing provisions of the Constitution and other laws affecting women and recommending amendments thereto, any lacunae, inadequacies or short comings in such legislation’s.
• Organizing promotional activities to mobilize women and get information about their status and recommend paradigm shift in the empowerment of women .
The NCW has also started a very innovative concept of organising Parivarik Mahila Lok Adalats . The program was first started in the year 1995 with the main objectives;
• Provide speedy justice to the women;
• To generate awareness among the public regarding:
1) conciliatory mode of dispute settlement.
2) Legal sanctity of Lok Adalats.
• To gear up the process of organizing the Lok Adalat.
• To encourage the public to settle their disputes outside the formal set-up.
• To empower public especially women to participate in justice delivery mechanism
The following type of matters can be brought before the PMLA:
• All civil cases
• Matrimonial disputes including divorce, maintenance (of wife, parents, children etc.)
• Compoundable Criminal cases.
• Disputes related to Labour laws.
• Motor accident claims
The five full time members were expected to be persons with the ability integrity and standing also experienced hands in field of legislation, trade unions, management of industry or organisation dealing with the empowerment of women, women’s voluntary organisations and persons with the experience of economic development, health, education or social welfare.
Section 3 of the National Commission for Women Act, 1990, provides;
a. The national commission for women consists of the following individuals the chairperson committed to the cause of women who shall be nominated by the central government. five Members to be nominated by the Central Government from amongst persons of ability, integrity and standing who have had experience in law or legislation, trade unionism, management of an industry potential of women, women’s voluntary organisations ( including women activist ), administration, economic development, health, education or social welfare;
Provided that at least one Member each shall be from amongst persons belonging to the Scheduled Castes and Scheduled Tribes respectively;
b. a Member-Secretary to be nominated by the Central Government who shall be :-
1. an expert in the field of management, organisational structure or sociological movement, or
2. an officer who is a member of a civil service of the Union or of an all-India service or holds a civil post under the Union with appropriate experience
The provision further provides that the chairperson and every member of the commission shall hold office for a period not exceeding 3 years.
Section 8 of the act further provides to appoint committees to report and investigate on matters considered important for the welfare of women.
Section 10 of the national commission for women act provides that,
1. The commission shall perform all or any of the following functions, namely:-
a. Investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws;
b. Present to the Central Government, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguard;
c. Make in such reports recommendations for the effective implementation of those safeguards for the improving the conditions of women by the Union or any state;
d. Review, from time to time, the exiting provisions of the Constitution and other laws affecting women and recommend amendments thereto so as to suggest remedial legislative measures to meet any lacunae, inadequacies or shortcomings in such legislations;
e. Take up cases of violation of the provisions of the Constitution and of other laws relating to women with the appropriate authorities;
f. Look into complaints and take suo moto notice of matters relating to:-
i. Deprivation of women’s rights;
ii. Non-implementation of laws enacted to provide protection to women and also to achieve the objective of equality and development;
iii. Non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and ensuring welfare and providing relief to women, and take up the issues arising out of such matters with appropriate authorities;
g. Call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women and identify the constraints so as to recommend strategies for their removal;
h. Undertake promotional and educational research so as to suggest ways of ensuring due representation of women in all spheres and identify factors responsible for impeding their advancement, such as, lack of access to housing and basic services, inadequate support services and technologies for reducing drudgery and occupational health hazards and for increasing their productivity;
i. Participate and advice on the planning process of socio-economic development of women;
j. Evaluate the progress of the development of women under the Union and any State;
k. Inspect or cause to inspected a jail, remand home, women’s institution or other place of custody where women are kept as prisoners or otherwise and take up with the concerned authorities for remedial action, if found necessary;
l. Fund litigation involving issues affecting a large body of women;
m. Make periodical reports to the Government on any matter pertaining to women and in particular various difficulties under which women toil;
n. Any other matter which may be referred to it by Central Government.
o. The Central Government shall cause all the reports referred to in clause (b) of sub-section (1) to be laid before each House of Parliament along with memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any such recommendations.
p. Where any such report or any part thereof relates to any matter with which any State Government is concerned, the Commission shall forward an copy of such report or part to such State Government who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any such recommendations.
q. The Commission shall, while investigating any matter referred to in clause (a) or sub-clause (i) of clause (f) of sub-section (1), have all the powers of a civil court trying a suit and, in particular in respect of the following matters, namely :-
i. Summoning and enforcing the attendance of any person from any part of India and examining him on oath;
ii. Requiring the discovery and production of any document;
iii. Receiving evidence on affidavits;
iv. Requisitioning any public record or copy thereof from any court or office;
v. Issuing commissions for the examination of witnesses and documents; and
vi. Any other matter which may be prescribed.
Section 16 of the act mandates the central government to consult the national commission for women in matters directly affecting the women.
CONTRIBUTION OF THE NATIONAL COMMISSION FOR WOMEN IN AMELIORATING THE STATUS OF WOMEN
The national commission for women has since its conception made recommendations and acted on various issues that have made an impact on the status of women. One of the important features that make the commission special is that the commission can take suo motu action against any individual, organization, agency or any body that indulges in derogatory practices against the women. The commission takes suo motu notice of non compliance of policy decisions, guidelines or instructions aimed at mitigating the hardships of women and ensuring their welfare. The NCW has established different cells that work for the betterment of the women folk in the society. The National Commission for Women (NCW) has been instrumental in introducing fresh ideas, innovative models, training packages and models for speedy justice for women. Apart from looking into the law and legislation for effecting improvement to ensure speedy justice, the Commission has been focusing its efforts in the thrust areas mentioned below:–
(a) Organizing through NGOs, Parivarik Mahila Lok Adalats through the length and breadth of the country on a continuous basis;
(b) Launching of programs on Legal Awareness;
(c) Sensitization programs for police, NGOs, officials for better implementation of safeguards and laws for the benefit of women.
The NCW attaches great importance to efforts which trigger change in societal attitudes towards women through a partnership approach. A number of training programs on gender issues are being organized by the Commission in order to be more effective in pursuing the goals of gender justice and development of women. On International women’s Day, year 2000, the NCW and the CII (Confederation of Indian Industry) held a conference to explore ways in which strategies for sustained development of women in the urban local bodies (where there is 33 percent reservation for women) were worked out. The National Commission for Women is the primary body charged with safeguarding the interests of women in the country . The Commission has held meetings with experts belonging to Government Departments as well as NGOs from different areas of women’s development to identify thrust areas for empowerment of women. After detailed discussions on various issues, it was decided that it is important to identify crucial areas which have been neglected by both the Government and Non Government Organizations. One of the major areas identified was the sensitization of governing agencies, judiciary and the training infrastructure. A large majority of police officials and other members of the law enforcement agencies grossly misunderstand the concept of gender. There is therefore an urgent need to sensitize personnel for social change. Law has been described as a cobweb; the rich and strong would be able to break it and the poor would be entangled in it. To avoid such situations and such woeful comments, members of the law enforcement agencies must be educated and sensitized abundantly on gender so that women, particularly those from lower strata and disadvantaged groups, do not face apathy and callousness when they are seeking justice. Law should be seen as an instrument of change. In order that they may fully live up to the expectations of women in distress, administrators, police personnel, judicial persons, NGOs and the media should be trained to be gender sensitive the commission has also set up a complaint cell where a complaint can be filed by the victim and as the commission is invested with the necessary powers under the act it can either start suo motu investigations or can ask for proper enquiry and departmental enquiry by the concerned authorities. This feature of the commission is noteworthy as before the establishment of the commission women had inhibitions of making direct complaints to the police authorities. The Complaint and Counseling Cell is the core unit of the Commission. It processes complaints received by the Commission either orally or in writing or taken cognizance by the Commission suo-moto under Section 10 of the NCW Act, 1990. The complaints are processed in the following manner:
• Complaints are sent to the State Women Commission for investigation.
• Takes up a few test cases for inquiry.
• The investigation of the complaints made directly by the victims to the police is monitored.
• The complaints are also used as case studies for sensitization programs for the police.
• The states are provided with disaggregated data for facilitating action.
• Family disputes are resolved or compromised through counseling .
It is often argued that the NCW has been a mere suggestive body however it plays a very important role in providing awareness to the women folk and mostly the area of work that is targeted is the rural areas.
Amongst its various functions the commission also is involved in assessing and discussing the implementation of Supreme Court Guidelines on “Sexual Harassment on Women at Workplace”‘ the Commission has been holding meetings with Public Sector Undertakings, Public Sector Banks, Educational Institutions, Hospitals, Hotel Industry, etc. 14 such meetings have been organized which have been attended by around 400 organizations. The organizations have been urged to ensure implementation of the guidelines of the Supreme Court in the Vishakha case. The Commission has drafted a Bill on Sexual Harassment at the Work places , which would be discussed among the experts and NGOs before being sent to the Government. Some consultations have been held with Lawyers, activist, Social Scientists, Ministry of Labor, Trade Unions etc. The national commission for women also has a research and studies cell under which activities such as seminars, conferences and workshops are regularly held. There have been a plethora of laws enacted for the welfare of women. One of the functions that the national commission for women does is to review and monitor the laws that have been enacted for the welfare of the women and further give recommendations and suggestions for making them more effective and impactful for women. The commission has been instrumental in changing the position of women that has been surrounded by years of ignorance, social reluctance and evils that have prevented women from advancing and being equal to the men folk.
Some of the noticeable achievements and contributions of the commission have been as follows;
• The Commission held on the spot enquiries and investigations through duly constituted committees. The Committees comprised of persons with the expertise to handle the subject.
• The Commission received a complaint from Smt. Shanti Devi, w/o Mangelal Rao, Village Kanana, District Barmer, Rajasthan, alleging that for the last 2 years widow pension, due to her, had been stopped. She had been declared dead. She represented to the concerned department for redressal but no action was taken by the concerned authorities. On the receipt of the complaint, the matter was taken up with the District Collector, Barmer and the Collector informed the Commission that the stand of Shanti Devi had been found to be correct and necessary instructions had been issued by the District Collector to the Treasury office, Barmer. Also the concerned Patwari had been proceeded against departmentally for stopping the pension on false grounds .
• Ms. Rupali Jain had represented to the Commission that her services in a school run by a non-governmental organization were terminated without assigning any reason. She had taken leave for appearing in an examination. The Commission had taken up the matter with the District Collector, Ferozabad, who reported to the Commission that on the intervention of the Commission. Ms. Rupali Jain had been allowed to join back as her grievance was found to be genuine .
• Smt. Chanchal Bajaj, a resident of Delhi represented to the Commission that she owned a flat at Gurgaon jointly with her son. Her son got married and was residing at Gurgaon in a rented flat. Smt. Bajaj allowed her son to shift to the Gurgaon flat after getting its possession. Earlier, Smt. Bajaj was residing in government accommodation. She is now residing in a flat in Delhi on rent which she cannot afford. Therefore, she, too, wanted to shift into the Gurgaon flat. However, her son and daughter-in-law did not allow her to enter into the flat. The matter was taken up in the Commission and three counseling sessions were held. Thereafter, Sachin Bajaj, son of Chanchal Bajaj gave a cheque of Rs.5, 49,000/- to his mother after selling the flat at Gurgaon. The matter was, thus, compromised with the intervention of the Commission to the satisfaction of both the parties .
• Smt. Savitri, a resident of Kotdwar, Uttaranchal, approached the Commission regarding exploitation of her deaf and dumb daughter Sunita (name changed). Sunita was studying in a school in New Delhi. Savitri was the neighbour of Mahendra Prasad. Rohit Kumar (name changed), son of Mahendra Prasad, was also staying at the same time in R.K.Puram, New Delhi in connection with his studies. A few years ago, Savitri withdrew her daughter from the Deaf and Dumb School and brought her to her house at Kotdwar. Rohit Kumar used to visit the girl at her house in Kotdwar and during these meetings, developed physical intimacy, on account of which, Sunita became pregnant. When the complainant got to know about this development, she pressurized Rohit Kumar to marry her daughter, where upon Sunita and Rohit Kumar were married in July, 2004 in Kotdwar. The marriage was also registered. In August, 2004, Mahendra Prasad disowned his son and daughter-in-law. In October, 2004, Sunita delivered a daughter. Thereafter, Rohit Kumar deserted her. At this juncture, the complainant approached NCW. Earlier, the complainant had approached the police for obtaining justice but she was not heard by anyone. The Commission summoned SP, Pauri Garhwal to the Commission, urging him to take necessary action. After the Commission’s intervention, the police traced the husband and counselled him. He has now agreed to rehabilitate his wife and daughter .
• Mrs. Sudha Bala (name changed) was allegedly gang-raped by BSF personnel in early 2002 at Gojhadanga at Indo-Bangladesh Border under the district of North 24 Parganas. Since then the victim along with her young daughter had been passing days in the Presidency Jail at Kolkata simply because of non-submission of charge-sheet by Police although a case under section 376 I.P.C. was duly registered against the BSF personnel. The matter was taken up by the Commission for the release of rape victim from the jail and arrangement for her rehabilitation. The joint efforts of the National Commission for Women and the West Bengal State Commission for Women resulted in the release of Mrs. Das from jail, who was given into safe custody to her brother. The Commission was assisted by the Department of Social Welfare, Government of West Bengal, the SP of North 24 Parganas, advocates at Basirhat Court and the Presidency Jail authorities .
• The recommendations covered various suggestive measures. The follow up was taken up with State Governments and in few cases, compliance reports were received. Overall, NCW’s Complaints & Investigation Cell has been able to make its impact in terms of the numbers of complaints received and subsequently the desirable remedial action taken by the Commission were noticed everywhere.
The commission had suo motu taken up the case of Ms. Bhanwari Devi and extended its full support in going for appeal and also providing security to the victim. An appointment was also made for a special prosecutor to argue her case. Bhanwari Devi was raped in retaliation for her intervention in a child marriage on 22nd September, 1992 . The NCW recently took cognizance of the molestation of a woman in the Marriot Hotel in Mumbai during this year’s New Year eve party. The commission had also recommended the government to increase the powers of the commission so that it can have more authority while undertaking investigations. The NCW has been instrumental in the enactment of the domestic violence act, 2005; the commission had conducted surveys and investigations against women with regards domestic violence. As the society changes with time the laws also need to change with the changing circumstances in a milieu therefore the act had not only included wife, mother, daughter in the definition of the person against whom domestic violence could be committed but also girls living in live in relationships who were later deserted by their husbands. Some of the offences and atrocities that are carried out against women are dowry demand and consequent dowry deaths. The legislation for the same is dowry prohibition act, the NCW has in the wake of increasing demands for dowry and the atrocities that continue against women with regards dowry, one of the recommendations include that persons giving dowry are themselves victims of dowry and thus should not be punished. Similarly the commission has recommended amendments on laws such as the Indian Penal Code, 1860, Medical Termination of Pregnancy Test, 1971, Maternity Benefit act, 1963 and a plethora of other laws. The NCW has time and again given recommendations to make changes in the provisions affecting women in the IPC which has been carried on the same since the British period which is according to many jurists completely atrocious. Women have today become more and more independent and have achieved equality in almost all walks of life. Corporate culture has completely got into their systems and working late nights has become a common practice with them however such independence comes at a heavy price. There have been numerous cases of exploitation of women in one form or the other at workplaces and most cases are left unreported due to the fear of losing jobs. The women working in the call centers have been the most recent victims of rape, molestation and other atrocities. The commission has also brought out certain guidelines that have to be observed by the employers for the safety and protection of the female employees. The NCW is a body that shall research, analyze, disseminate, inform and plan immediate steps for total eradication of trafficking of humans .
The law commission in its 172nd report suggested a complete overhaul of sections dealing with rape and sexual assault in the Indian penal code including enlarging the scope of the section dealing with rape and has defined rape to bring within its definition the gravest forms of sexual assault including forced anal and oral intercourse and penetration of objects. The commission also held a convention on rape in October 92 set up an ad hoc committee to prepare a draft to suggest amendments to the law relating to sexual assault. The committee criticized the existing law on rape by pointing out that it did not incorporate the experience of women and minor children. It is suggested that the entire law of rape should be redefined in terms of varying degrees of sexual assault. The committee further suggested that the molestation should be defined as touching or using force for a sexual purpose. The commission in 1993 had recommended that if a registered medical practitioner refuses to conduct a medical examination of a victim of sexual assault he should be held responsible and punished. The committee also recommended that it must be ensured that there is a proper procedure for psychiatric examination of the accused. The NCW further recommends a change in the age of the consent from 16 -18 years and prescribes higher punishments for rape of children.
The National commission for women was asked by the government to give recommendations on the proposed amendments relating to section 497 of the Indian penal code, 1860 that deals with adultery. Lawyers Nalini Chidambram and Seita Vaidyalingan challenged the law on adultery in as early as 1985. The lawyers added that women participating in adulterous relationship should not be outside the purview of the law . The Justice Malimath committee recommended that the objective of section 497 is to preserve the sanctity of marriage. The society abhors marital infidelity. There is no reason for not meting ot similar treatment to the wife who has sexual intercourse with a man who is not her husband. The NCW however on this issue has made certain recommendations for which it has drawn a lot of flak from different groups of the society, the commission recommends that;
a) Adultery should be made a civil offence instead of criminal offence after a national consensus on this issue.
b) Women should continue to remain free from criminal action for adultery as they are now because they are always the victims and can never commit any crime.
c) Section 198 of the Criminal Procedure Code, 1973 should be amended to allow the women to file a complaint against unfaithful husband and prosecute them for promiscuous behavior .
The recent IT industry boom has brought many positives in the country it has brought in robust development generated great measures of employment however one of the biggest prices paid for is that it has become a breeding ground for violence and oppression against women in matters of employment. The sexual exploitation of women at work place and the molestation of working women have significantly increased creating roadblocks for women to work and earn their livelihood. The commission in the wake of the recent cases of rape and murder of call centre executives and journalists working in late night shifts has recommended certain guidelines that ensure the protection of women working at such departments and time shifts.
CONCLUSION AND SUGGESTIONS
The commission though has been instrumental in ameliorating the conditions of the women folk since its conception however it has been often alleged of redtapism, callousness and laidback attitude in case of investigating crimes and atrocities against the rural women. The commission has also been accused of being a toothless tiger. This is because in spite of so many legislations and a separate statutory body in the form of the commission is unable to trace crimes and investigate the same for action and grant of relief to the women. The committee was established keeping in mind 3 objectives of the Beijing platform
a) To take integrated measures to prevent and eliminate violence against women.
b) To study causes and consequences of violence against women and effectiveness of preventive measures.
c) To eliminate trafficking in women and assist victims of trafficking and prostitution .
Though any of the clauses have not been adhered to by the government or the commission has not been able to implement any of these.
The need of the hour is to give the commission more powers to deal with the ever increasing atrocities against women .
The commission has been the apex body for the protection of women for more than 16 years now , however when we look at Delhi, Mumbai and other metros of the country we find that after every seconds a rape , molestation , assault or a kidnap against a woman is carried out. Another very coherent suggestion could be to give unfettered powers in case of investigation of offences to the commission and the same should be independent of any political pressures.
It is essential that Legal-judicial system should be made more responsive and gender sensitive to women’s needs, especially in cases of domestic violence and personal assault. The existing laws must be reviewed at regular intervals to ensure that justice is quick and the punishment meted out to the culprits is commensurate with the severity of the offence as there is no dearth of legislations however the problem lies with enforcement and implementation of the plethora of laws.
Even though the National Commission is the primary body involved in protecting the interests of women however it is imperative that social conditions that restrict the development of women must also be amended, this is essential because as seen earlier women have been victims of social ostracization and neglect and in the name of religion they have been deprived their basic rights to life and personal liberty.
Therefore it is impending now that the society needs to be apprised that the protection of women is most important for a countries progress, religious leaders and god men of different religions need to be made aware that the personal laws to which they have been clinging since ages need to be changed and it is essential that women must be made a part in these discussions so that their perspectives and opinions can be considered equally.