The recent death of key accused in the Rs 23-crore Ghaziabad PF scam, Ashutosh Asthana, at UP’s Dasna district jail under highly mysterious circumstances reopens the debate of protection issues of key witnesses in the criminal justice system.
Ashutosh Asthana a man of ordinary standing had been instrumental in disbursement of PF in connivance with judicial officers and sitting judges of High Court and Supreme Court as has been alleged. He was well aware of the illegalities involving persons of high stature and standing in public life. BUt his sudden demise has sent a jolt to the investigation. It is indicative of several things:
1. The failure of the Criminal Justice System to provide protection and security to key suspects and witnesses
2. The power demonstrated by the invisible classes who have been successful in eliminating the accused and prematurely throttling the justice delivery system
The country needs to improve and modenise its systems and processes in order to stop a repetition of the incident. In the past, there has been numerous incidents of suspects being found dead or unavailable or witnesses turning hostile. In majority of the situations, the accused involved were people of high standing in society- the so called powerful class. This unholy nexus between the powerful and the criminal justice machinery must be put to an end.
The Criminal Justice must be brought out of the controls of the political class,
and most importantly, the suspects and witnesses must be provided adequate security and protection by the system itself.
Tuesday, October 20, 2009
Tuesday, October 13, 2009
Marital Rape : The Indian Viewpoint
John and Greta Rideout were in their early twenties. They were married for 21/2 years and had a daughter. But on 9th October, 1978, John woke up from a nap and demanded to have sex. In her words, “He was highly obsessed with sex; he wanted it two or three times a day. No matter what I gave him, he was never totally satisfied”. Violent sex, including slapping and slugging, seemed to give John the most pleasure. Greta refused on that particular occasion. John attacked her, dragged her when she tried to escape and began to ‘rape’ her. She submitted out of fear that he might further injure her. Greta managed to escape after this incident and filed charges against her husband under the Oregon laws of rape. John was arrested and charged with (marital) rape.
The above is not an isolated incident of marital rape. Such instances are numerous ; the only difference being that they are, more often, confined within the four walls and buried as normal course of matrimonial behavior. The law even does not attach enough culpability to such deviant conduct describing these instances of marital rape as strictly falling within the domestic arena where criminal law has no entry. Thus, though John Rideout was tried for rape, the jury found him not guilty of first-degree rape of his wife. (The reasons for such leniency, perhaps, lie in the historical evolution of the concept of rape. )
Marital Rape: Meaning
The term ‘marital rape’ refers to unwanted intercourse by a man on his wife obtained by force, threat of force or physical violence or when she is unable to give consent. The words ‘unwanted intercourse’ refers to all sorts of penetration (whether anal, vaginal or oral) perpetrated against her will or without her consent.
There are principally three kinds of marital rapes:
• Force-only Rapes- The husband uses only enough force to coerce the wife to intercourse.
• Battering Rapes- Women are raped and simultaneously battered by their husbands- beaten, slapped, pushed, shoved etc. In battering rapes, women experience both physical and sexual violence.
• Sadistic/ Obsessive Rape- These involve torture and/or other perverse sexual acts. Pornography is frequently involved in sadistic forms of rape.
Historical Background
The concept of marital rape was unknown in history; most societies, considered it acceptable for men to force their wives to sex. Even the concept of ‘rape’ as an invasion of the physical and psychological integrity of woman was non prevalent. History reveals that there were direct ties between law, property and rape. ‘Raptus’ in the sense of violent theft, applied to both property and person. It was synonymous to abduction. If a woman was abducted and sexually molested, even violently, the crime was not against her body, but merely the theft of a woman against the consent of her guardian or those who had legal power over her. The harm was treated as a wrong against her father or husband. As Susan Brownmiller asserts , “The ancient patriarchs who came together to write their early covenants had used the rape of woman to forge their male power- how then could they see rape as a crime of man against woman? Women were wholly owned subsidiaries and not independent beings. Rape could not be envisioned as a matter of female consent or refusal; nor could a definition acceptable to males be based on a male- female understanding of a female’s right to her bodily integrity.” In other words, rape laws originated to safeguard the ‘masculine pride in the exclusive possession of a sexual object.’
Not surprisingly, therefore, married women ravished at the hands of their partners never formed the subject of rape laws. Infact, the laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of marital relations. It asserted the husband’s unquestioned right to sexual intercourse with his wife and her duty to submit. The latter’s right to freedom of choice in marital relations and the husband’s duty to respect that right was completely overshadowed by the patriarchal laws. As emphasized by Sir Mathew Hale -“The husband cannot be guilty of rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract, the wife hath given up herself unto her husband which she cannot retract.”
Ultimately, it was in the 1970s in America that women activists raised their voices for elimination of the marital rape exemption clause and extension of the guarantee of equal protection to women.
Legislative Framework in India
Thomas Babington Macaulay, the architect of the Indian Penal Code, adopted the same line of thinking while drafting the provisions of rape. Under the heading “Offences against human body”, clauses 359 and 360 dealt with the offence of rape. The former read as under:
“ A man is said to commit rape who, except in the circumstances hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:
First: Against her will.
Secondly: Without her consent while she is insensible.
Thirdly: With her consent when her consent has been obtained by putting her in fear of death or of hurt.
Fourthly: With her consent, when the man knows her consent is given because she believes that he is a different man to whom she is, or believes herself, to be married.
Fifthly: With or without her consent when she is under nine years of age.
Exception: Sexual intercourse by a man with his wife, is in no case rape.”
Clause 360 stipulated the punishment for rape to be not more than fourteen years and not less than two years, with or without an additional fine.
Thus, in Macaulay’s draft, there was clear preference of the rights of the husband over his wife against the wife’s right to herself. The wife was not entitled to accuse her husband of rape, whatever the circumstances. But this provision, based on common law was not suitable to Indian conditions, especially at a time when child marriages were rampant. The low age of marriage should have necessitated the Law Commissioners to afford protection to child brides from sexual assaults. But Macaulay was much engrossed with the English Criminal Law system and Victorian notions of morality emphasizing the low status of women in society and thereby, failed to realize the injury which such provisions could do to the female populace.
The final version of rape in Section 375 of the Indian Penal Code, 1860 , differed little from Clause 359. The only amendments effected were in clause fifthly, wherein the age was fixed at ten years, and the exception which read as:
“Sexual intercourse by a man with his own wife, the wife not being under ten years of age is not rape”.
The subsequent years witnessed further changes with regard to the marital rape exemption clause and it now reads as:
“ Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376(1) thereafter spells out that, “Whoever, commits rape… unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years or with fine or both.”
The Penal Code therefore spells out the offence of marital rape in a very restricted sense . It specifies a statutory age limit of 12 years for married women, beyond which the offence does not extend. In other words, to constitute the offence of rape within the marital bonds, the wife must be less than 12 years. If she is between 12 and 15, an offence is committed which is less serious in nature , attracting mild punishment. However, once the age crosses fifteen, the rape legislation affords absolute immunity to the husband to impose himself on his wife and exercise complete sexual control over her body, in direct contravention to Human Rights regulations.
Efforts of Law Commission
The Law Commission of India in its 42nd report put forward the necessity of excluding marital rape from the ambit of Sec. 375. In their words , “Naturally the prosecutions for this offence are very rare. We think it would be desirable to take this offence altogether out of the ambit of Sec. 375 and not to call it rape even in a technical sense. The punishment for the offence may also be provided in a separate section.”
The subsequent Law Commission however disagreed with the restructuring suggested by the former. They felt that such arrangement would “produce uncertainty and distortion” and hence Sec. 375 should “retain its present logical and coherent structure.” With regard to age, however, they were of the opinion that it should be increased to 18 years. In their words , “ the minimum age of marriage now laid down by law (after 1978) is eighteen years in the case of females and the relevant clause of Sec. 375 should reflect this changed attitude. Since marriage with a girl below eighteen years s prohibited (though this is not void as a matter of personal law) sexual intercourse with a girl below 18 years should also be prohibited.” The recommended section thus read as:
“Exception: Sexual intercourse by a man with his own wife, the wife not being under 18 years of age is not rape.”
Even the latest report of the Law Commission has preferred to adhere to its earlier opinion of non-recognition of “rape within the bonds of marriage” as such a provision “may amount to excessive interference with the marital relationship.” The only suggestion made is (again) with regard to age that may be enhanced from 15 to 16 years.
Marital rape: The Opposition
Marital rape has never received the attention of the lawmakers. It has never been discussed, debated or deliberated upon. It has simply been eluded; perhaps due to certain obvious reasons.
• In the first place, Indian societal structure do not approve of women who ‘take up arms’ against their families, especially husbands. The wife’s role is traditionally defined as a homemaker, soft and obedient by nature and who regards her husband as next to God (the concept of pati parameshwar ).
• Secondly sex (even though forced) within marriage is viewed as a marital obligation. Few would recognize ‘forced sex’ as amounting to rape. The vast population including its intelligentsia would perhaps regard it as sex ‘being stretched too far’ or ‘just one extension of domestic violence’ .
• Thirdly, sex is a taboo in Indian society. What is meant, is not the practice, for it remains widespread amongst all sections of people, whether consensual or non- consensual; but the awareness of sexual rights amongst Indian women. “Their right to say no” has never been talked of- their obligation to obey has only been stressed upon.
• Economic resources play a significant role in women’s ability to reinforce her rights and the society’s obligation to respect it. In India, majority of the women do not enjoy economic independence. They are dependent on their husbands for food, clothing and shelter. Recognition of the offence of marital rape, may in such a situation, pose greater difficulty.
• Lastly, the legislators have perceived of the problem as not deserving adequate attention for certain reasons:
o Poverty, unemployment, illiteracy etc. have been their primary cause of concern, not the hapless victims of ‘forced rapes’ by husbands.
o They believe that even if marital rape is recognized, it would prove to be a mere cosmetic provision in the Penal Code. Indian women would hardly dare to accuse their husbands of rape and launch prosecutions to convict them.
o Legitimizing the offence of marital rape might tantamount to challenging the existing social ethos. It might break the notions of power, control and dominance and open a whole range of issues having difficulties and perplexing implications.
Marital Rape- The Arguments
The myths related to the act of marital rape must be shirked off . Marital rape is no less an offence than murder, culpable homicide or rape per se. It denigrates the honor and dignity of a human being, and reduces her to a chattel to be utilized for one’s self-convenience and comfort. It reduces a woman to a corpse, living under the constant fear of hurt or injury.
Medical evidence proves that rape has severe and long lasting consequences for women.
o Physical injuries to vaginal and anal areas, lacerations, soreness, bruising, fatigue, vomiting
o Broken bones, black eyes, bloody noses etc.
o Anxiety, shock, intense fear, depression and suicidal thoughts.
o Gynecological effects include miscarriage, still-births, bladder infections, STDs and infertility.
o Long drawn symptoms of marital rape include disordered eating, insomnia, intimacy problems, negative self-image and sexual dysfunction.
o Research has also indicated that marital rape survivors often report flashback, sexual dysfunction and emotional pain, even after years of violence.
The menace is further worsened by the fact that in marital rapes the victim continues to live with the rapist. The risk of her being assaulted again remains high and the fear drives her into a state of deep emotional and psychological imbalance.
Additionally the belief that women would prefer to remain silent than go public with the story of sexual assault by her husband affords no reason for adhering to the exemption. Criminal law cannot turn a deaf ear towards the injustice and inhumanity perpetrated in society. It must interfere and impose the stamp of criminality to unlawful acts that occur, irrespective of the fact as to whether such recognition bears the desired fruits. Complaints against marital rape may be few, yet it is of utmost necessity that the law declares it to be a penal offence.
Concluding Remarks
The time is ripe for the Indian Legislature to awake from its years of slumber and make amendments to the Indian Penal Code. Several jurisdictions of the world have either recognized marital rape as an offence or else set in motion the task of breaking the shackles of traditionalism. Even the Supreme Court of Nepal has ruled that forced sex within marriage constitutes marital rape. Unfortunately, India is lagging behind. But there is nothing to believe that marital rape does not happen in Indian families. It is prevalent in every city, every town, every village of India. It is happening in our very neighborhoods; the only difference is that we have turned a blind eye to the issue. The lawmakers must realize that if the sanctity of the Constitution is to be maintained, the dignity and honor of the womenfolk must be vindicated. The fundamental duty of every citizen of India to denounce practices derogatory to the dignity of women as well as to value and preserve the rich heritage of our composite culture is pointer to that very fact. The culture and tradition of India emphasizes on strength not abuse, equality, not power and control. If such heritage is to be reinstated in Indian life, women must find a place of respect. As said by Manu , “ Where females are honored, there the deities are pleased; but where they are dishonored, there all religious rites become useless. Women must be honoured…”
The above is not an isolated incident of marital rape. Such instances are numerous ; the only difference being that they are, more often, confined within the four walls and buried as normal course of matrimonial behavior. The law even does not attach enough culpability to such deviant conduct describing these instances of marital rape as strictly falling within the domestic arena where criminal law has no entry. Thus, though John Rideout was tried for rape, the jury found him not guilty of first-degree rape of his wife. (The reasons for such leniency, perhaps, lie in the historical evolution of the concept of rape. )
Marital Rape: Meaning
The term ‘marital rape’ refers to unwanted intercourse by a man on his wife obtained by force, threat of force or physical violence or when she is unable to give consent. The words ‘unwanted intercourse’ refers to all sorts of penetration (whether anal, vaginal or oral) perpetrated against her will or without her consent.
There are principally three kinds of marital rapes:
• Force-only Rapes- The husband uses only enough force to coerce the wife to intercourse.
• Battering Rapes- Women are raped and simultaneously battered by their husbands- beaten, slapped, pushed, shoved etc. In battering rapes, women experience both physical and sexual violence.
• Sadistic/ Obsessive Rape- These involve torture and/or other perverse sexual acts. Pornography is frequently involved in sadistic forms of rape.
Historical Background
The concept of marital rape was unknown in history; most societies, considered it acceptable for men to force their wives to sex. Even the concept of ‘rape’ as an invasion of the physical and psychological integrity of woman was non prevalent. History reveals that there were direct ties between law, property and rape. ‘Raptus’ in the sense of violent theft, applied to both property and person. It was synonymous to abduction. If a woman was abducted and sexually molested, even violently, the crime was not against her body, but merely the theft of a woman against the consent of her guardian or those who had legal power over her. The harm was treated as a wrong against her father or husband. As Susan Brownmiller asserts , “The ancient patriarchs who came together to write their early covenants had used the rape of woman to forge their male power- how then could they see rape as a crime of man against woman? Women were wholly owned subsidiaries and not independent beings. Rape could not be envisioned as a matter of female consent or refusal; nor could a definition acceptable to males be based on a male- female understanding of a female’s right to her bodily integrity.” In other words, rape laws originated to safeguard the ‘masculine pride in the exclusive possession of a sexual object.’
Not surprisingly, therefore, married women ravished at the hands of their partners never formed the subject of rape laws. Infact, the laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of marital relations. It asserted the husband’s unquestioned right to sexual intercourse with his wife and her duty to submit. The latter’s right to freedom of choice in marital relations and the husband’s duty to respect that right was completely overshadowed by the patriarchal laws. As emphasized by Sir Mathew Hale -“The husband cannot be guilty of rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract, the wife hath given up herself unto her husband which she cannot retract.”
Ultimately, it was in the 1970s in America that women activists raised their voices for elimination of the marital rape exemption clause and extension of the guarantee of equal protection to women.
Legislative Framework in India
Thomas Babington Macaulay, the architect of the Indian Penal Code, adopted the same line of thinking while drafting the provisions of rape. Under the heading “Offences against human body”, clauses 359 and 360 dealt with the offence of rape. The former read as under:
“ A man is said to commit rape who, except in the circumstances hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:
First: Against her will.
Secondly: Without her consent while she is insensible.
Thirdly: With her consent when her consent has been obtained by putting her in fear of death or of hurt.
Fourthly: With her consent, when the man knows her consent is given because she believes that he is a different man to whom she is, or believes herself, to be married.
Fifthly: With or without her consent when she is under nine years of age.
Exception: Sexual intercourse by a man with his wife, is in no case rape.”
Clause 360 stipulated the punishment for rape to be not more than fourteen years and not less than two years, with or without an additional fine.
Thus, in Macaulay’s draft, there was clear preference of the rights of the husband over his wife against the wife’s right to herself. The wife was not entitled to accuse her husband of rape, whatever the circumstances. But this provision, based on common law was not suitable to Indian conditions, especially at a time when child marriages were rampant. The low age of marriage should have necessitated the Law Commissioners to afford protection to child brides from sexual assaults. But Macaulay was much engrossed with the English Criminal Law system and Victorian notions of morality emphasizing the low status of women in society and thereby, failed to realize the injury which such provisions could do to the female populace.
The final version of rape in Section 375 of the Indian Penal Code, 1860 , differed little from Clause 359. The only amendments effected were in clause fifthly, wherein the age was fixed at ten years, and the exception which read as:
“Sexual intercourse by a man with his own wife, the wife not being under ten years of age is not rape”.
The subsequent years witnessed further changes with regard to the marital rape exemption clause and it now reads as:
“ Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376(1) thereafter spells out that, “Whoever, commits rape… unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years or with fine or both.”
The Penal Code therefore spells out the offence of marital rape in a very restricted sense . It specifies a statutory age limit of 12 years for married women, beyond which the offence does not extend. In other words, to constitute the offence of rape within the marital bonds, the wife must be less than 12 years. If she is between 12 and 15, an offence is committed which is less serious in nature , attracting mild punishment. However, once the age crosses fifteen, the rape legislation affords absolute immunity to the husband to impose himself on his wife and exercise complete sexual control over her body, in direct contravention to Human Rights regulations.
Efforts of Law Commission
The Law Commission of India in its 42nd report put forward the necessity of excluding marital rape from the ambit of Sec. 375. In their words , “Naturally the prosecutions for this offence are very rare. We think it would be desirable to take this offence altogether out of the ambit of Sec. 375 and not to call it rape even in a technical sense. The punishment for the offence may also be provided in a separate section.”
The subsequent Law Commission however disagreed with the restructuring suggested by the former. They felt that such arrangement would “produce uncertainty and distortion” and hence Sec. 375 should “retain its present logical and coherent structure.” With regard to age, however, they were of the opinion that it should be increased to 18 years. In their words , “ the minimum age of marriage now laid down by law (after 1978) is eighteen years in the case of females and the relevant clause of Sec. 375 should reflect this changed attitude. Since marriage with a girl below eighteen years s prohibited (though this is not void as a matter of personal law) sexual intercourse with a girl below 18 years should also be prohibited.” The recommended section thus read as:
“Exception: Sexual intercourse by a man with his own wife, the wife not being under 18 years of age is not rape.”
Even the latest report of the Law Commission has preferred to adhere to its earlier opinion of non-recognition of “rape within the bonds of marriage” as such a provision “may amount to excessive interference with the marital relationship.” The only suggestion made is (again) with regard to age that may be enhanced from 15 to 16 years.
Marital rape: The Opposition
Marital rape has never received the attention of the lawmakers. It has never been discussed, debated or deliberated upon. It has simply been eluded; perhaps due to certain obvious reasons.
• In the first place, Indian societal structure do not approve of women who ‘take up arms’ against their families, especially husbands. The wife’s role is traditionally defined as a homemaker, soft and obedient by nature and who regards her husband as next to God (the concept of pati parameshwar ).
• Secondly sex (even though forced) within marriage is viewed as a marital obligation. Few would recognize ‘forced sex’ as amounting to rape. The vast population including its intelligentsia would perhaps regard it as sex ‘being stretched too far’ or ‘just one extension of domestic violence’ .
• Thirdly, sex is a taboo in Indian society. What is meant, is not the practice, for it remains widespread amongst all sections of people, whether consensual or non- consensual; but the awareness of sexual rights amongst Indian women. “Their right to say no” has never been talked of- their obligation to obey has only been stressed upon.
• Economic resources play a significant role in women’s ability to reinforce her rights and the society’s obligation to respect it. In India, majority of the women do not enjoy economic independence. They are dependent on their husbands for food, clothing and shelter. Recognition of the offence of marital rape, may in such a situation, pose greater difficulty.
• Lastly, the legislators have perceived of the problem as not deserving adequate attention for certain reasons:
o Poverty, unemployment, illiteracy etc. have been their primary cause of concern, not the hapless victims of ‘forced rapes’ by husbands.
o They believe that even if marital rape is recognized, it would prove to be a mere cosmetic provision in the Penal Code. Indian women would hardly dare to accuse their husbands of rape and launch prosecutions to convict them.
o Legitimizing the offence of marital rape might tantamount to challenging the existing social ethos. It might break the notions of power, control and dominance and open a whole range of issues having difficulties and perplexing implications.
Marital Rape- The Arguments
The myths related to the act of marital rape must be shirked off . Marital rape is no less an offence than murder, culpable homicide or rape per se. It denigrates the honor and dignity of a human being, and reduces her to a chattel to be utilized for one’s self-convenience and comfort. It reduces a woman to a corpse, living under the constant fear of hurt or injury.
Medical evidence proves that rape has severe and long lasting consequences for women.
o Physical injuries to vaginal and anal areas, lacerations, soreness, bruising, fatigue, vomiting
o Broken bones, black eyes, bloody noses etc.
o Anxiety, shock, intense fear, depression and suicidal thoughts.
o Gynecological effects include miscarriage, still-births, bladder infections, STDs and infertility.
o Long drawn symptoms of marital rape include disordered eating, insomnia, intimacy problems, negative self-image and sexual dysfunction.
o Research has also indicated that marital rape survivors often report flashback, sexual dysfunction and emotional pain, even after years of violence.
The menace is further worsened by the fact that in marital rapes the victim continues to live with the rapist. The risk of her being assaulted again remains high and the fear drives her into a state of deep emotional and psychological imbalance.
Additionally the belief that women would prefer to remain silent than go public with the story of sexual assault by her husband affords no reason for adhering to the exemption. Criminal law cannot turn a deaf ear towards the injustice and inhumanity perpetrated in society. It must interfere and impose the stamp of criminality to unlawful acts that occur, irrespective of the fact as to whether such recognition bears the desired fruits. Complaints against marital rape may be few, yet it is of utmost necessity that the law declares it to be a penal offence.
Concluding Remarks
The time is ripe for the Indian Legislature to awake from its years of slumber and make amendments to the Indian Penal Code. Several jurisdictions of the world have either recognized marital rape as an offence or else set in motion the task of breaking the shackles of traditionalism. Even the Supreme Court of Nepal has ruled that forced sex within marriage constitutes marital rape. Unfortunately, India is lagging behind. But there is nothing to believe that marital rape does not happen in Indian families. It is prevalent in every city, every town, every village of India. It is happening in our very neighborhoods; the only difference is that we have turned a blind eye to the issue. The lawmakers must realize that if the sanctity of the Constitution is to be maintained, the dignity and honor of the womenfolk must be vindicated. The fundamental duty of every citizen of India to denounce practices derogatory to the dignity of women as well as to value and preserve the rich heritage of our composite culture is pointer to that very fact. The culture and tradition of India emphasizes on strength not abuse, equality, not power and control. If such heritage is to be reinstated in Indian life, women must find a place of respect. As said by Manu , “ Where females are honored, there the deities are pleased; but where they are dishonored, there all religious rites become useless. Women must be honoured…”
SOCIAL JUSTICE AND SOCIAL ENGINEERING THROUGH LAW IN THE FIELD OF BONDED LABOR
Bonded labor is a social evil. It is an unfortunate and painful relic of our feudal past. Although feudalism itself has been destroyed, the system of bonded labor has continued to exist in many forms in different parts of our country and has assumed serious magnitude in the world human rights in recent years. As observed by Will Moore Kendall - entering into the society was the necessity of the time, but human being was not prepared to surrender his inherent virtues provided by the nature- freedom and dignity. But the concept of ‘Bandhua Mazdoor’ is inconsistent to these basic virtues guaranteed to citizens as well as non-citizens under Art 21 of the Indian Constitution.
Bonded Labor: Conceptual Analysis:
According to the Statesman Dictionary- Labor under Bondage has been defined as “ a legal deed by which a person engaged himself and his representative to fulfil specific condition or pay money.” The Royal Commission on Labor (1931) has defined it as follows- “ The labor borrows money from the landlord under a contract to work until the debt is repaid. The debt tends to increase rather than diminish and the man, and sometimes his family, is bound for life”.
The Bonded Labor System (Abolition )Act 1976 has defined the term to mean-“ A laborer who incurs or has or is presumed to have incurred a bonded debt.” It is a system of forced labor under which the debtor enters into an agreement with the creditor to the effect that he would render, by himself or through any member of his family or any person dependant upon him, labor or service to the creditor for a specified period or for an unspecified period, either without wages or for nominal wages, or
• Forfeit the freedom of employment in other means of livelihood for a specified period or unspecified period or
• Forfeit the right to move freely throughout the territory of India or
• Forfeit the right to appropriate or sell at market value any of his property or product of his labor or that of a member of his family or any person dependant on him.
The National Sample Survey Organization (June, 1977) has viewed bonded labor as
“working with an employer under obligation but work not specifically compensated by any wage/ salary.”
The above definitions reveal that a bonded laborer has virtually no bargaining power. He has no right to refuse to work except under the terms set by his master. He can neither quit nor take up work of another employer. By virtue of economic compulsions or customary needs, the bonded laborer is tied to his master and subject to his whims and fancies. As pointed by the apex court of the country “ They are non- beings, exiles of civilization living a life worse than that of animals, for the animals are at least free to roam around about as they like and they can plunder or grab food whenever they are hungry, but these outcasts of society are held in bondage, robbed of their freedom and they are confined to an existence when they have to live either in hovels or under the open sky and be satisfied with whatever little unwholesome food they can manage.. Not having any choice they are driven by poverty and hunger into a life of bondage to a dark bottom less pit in a cruel exploitative society from which they cannot hope to be rescued.”
Constitutional and Statutory Prohibition:
The Constitution of India, a humane document which directs every organ of the state to strive for the fullest development of the personality of every individual , enacts in Art 21 that- “ No person shall be deprived of his life and personal liberty except according to the procedure established by law.’
The fundamental right to life has many attributes. It includes the right to live with human dignity, and all that goes along with it, namely, the bare necessities of life viz, adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about, mixing and commingling with fellow human beings, right to protect against torture or cruel or inhuman treatment. In Maneka Gandhi v. Union of India the Supreme Court held that the expression ‘personal liberty’ is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and includes the right to eat or sleep when one likes or to work or not work as and when one pleases and several such other rights.
Art 23 of the Constitution deals with Right against Exploitation. ‘Exploitation’ means the utilization of person for one’s own ends. It is opposed to the dignity of the individual, to which the preamble of our constitution refers. It is also opposed to the Directive Principles of State Policy, for example, Art 39(e) and (f) which provides respectively that the state shall ensure that the health and strength of workers, men and women and the tender age of children are not abused and that citizens are not forced by economic necessity to enter into avocations unsuited to their age or strength; that childhood and youth are protected against exploitation and against immoral and material abandonment.
Art 23(1) prohibits traffic in human beings and beggar and other similar forms of forced labor and provides that any contravention shall be an offence punishable in accordance with law.
The word ‘begar’ has not been defined in the Constitution but it may be defined as ‘labor or service exacted by government or a person in power without giving remuneration for it.’ The word ‘other similar forms of labor’ has been held to include every form of forced labor and it makes no difference whether the person who is forced to give his labor or service to another is remunerated or not.
In Bandhua Mukti Morcha v. Union of India , Justice Bhagwati classified bonded labor under Art 23. The learned judge stated, ‘The system of bonded labor stood prohibited by Art 23 and there could be no more solemn and effective prohibition than the one enacted in the Constitution.’
To give the Constitutional provisions a true shape, it was essential that the Government enacted a law so as to put an end to this gruesome system of exploitative labor. The most sincere attempt came on July 1, 1975 when our late Prime Minister, Smt. Indira Gandhi, in her 20 point program stated- “The practice of bonded labor is barbarous and will be abolished. All contracts and arrangements under which services of such bonded labor are now secured will be declared illegal.’ This announcement was followed the promulgation of the Bonded Labor System (Abolition) Ordinance, 1975 which was later replaced by a duly enacted law in 1976.
The main thrust of the 1976 legislation is on the abolition of any form of forced labor. In other words, the practice of bonded labor has been declared illegal and all such laborers have been freed and discharged from any obligation to render bonded labor immediately after the commencement of the Act. The principal features of the Act may be summarized as follows:
The Bonded Labor System stands abolished.
Every obligation to repay any bonded debt or any part of it, if remain unsatisfied, shall be deemed to have been extinguished.
No suits or proceedings shall be brought in the civil court or before any other authority for the recovery of the bonded debts.
Any decree or order for the recovery of the bonded debt shall be deemed to have been fully satisfied.
Any attachment made for recovery of bonded debt shall stand vacated.
Any attachment of movable or immovable property shall stand vacated and such property shall be restored to the bonded laborer.
The bonded laborer shall not be evicted from any homestead land which he is in occupation under any obligation.
Any person who compels another to render any bonded labor shall be punished with imprisonment for three years or fine upto two thousand rupees.
Every offence under the Act shall be cognizable and bailable.
The task of implementation of the provisions of this Act is cast on the District Magistrates. The latter as well as every officer authorized by him has duty to take such action as may be necessary to eradicate the system within his jurisdiction .
The law further envisages people’s cooperation by constituting Vigilance Committees in each district and subdivision by the State Government. The functions of the committee, inter alia, are as follows :
To advice the District Magistrate to ensure that the provisions of the Act and the rules made there under are properly implemented.
To provide for the economic and social rehabilitation of the freed bonded laborers.
To coordinate the function of rural banks and cooperative societies with a view to canalizing adequate credit to the freed bonded laborers.
To keep an eye on the number of offences to which cognizance has been taken under the Act.
To make a survey as to whether there is an offence to which cognizance ought to be taken under the Act.
To defend a suit instituted against a freed bonded laborer
Implementation of the Act:
The passing of the Bonded Labor System (Abolition) Act has not been of much consequence. Very little achievements have been made over the years. As revealed by statistics, upto April 1989, 242618 bonded laborers had been identified. Out of these, 231559 had been released. Only 210091 such laborers had been rehabilitated upto January, 1988 and only 11344 cases had been registered against the keepers of bonded laborers.
Another statistics on child labor states that ‘India has some 44 million workers under the age of thirteen, with 300,000 in the carpet making industry alone…By conservative estimates, there are thought to be at least 5 million children in bonded labor in India’.
A recent incident of brutality perpetrated against bonded laborers caught the attention of the present writers . Herein, a laborer borrowed a sum of Rs. 300 from an affluent person of his village and later repaid the amount with the interest agreed upon. But the lender insisted that he still owed Rs. 150 as interest which the laborer could not pay. To treat him a lesson, few persons, at the instance of the moneylender, poured acid on the laborer and his family, comprising of his wife and son. The three have been admitted to the hospital and is presently undergoing treatment.
The above suggests the prevalence of the system of bonded labor till today. It also illustrates the deplorable condition of the modern day slaves, on the one hand and the extreme apathy and non-committal approach of the governmental officials on the other. As observed by Justice P.N.Bhagwati -
“ The process of identification and release of bonded laborers is a process of discovery and transformation of non-beings into human beings and what is needed is determination, dynamism and the sense of social commitment on the part of the administration to free bonded laborers and rehabilitate them and wipe out this ugly inhuman practice, which is a blot on our national life.”
Judicial Approach:
The problem of bonded labor has also received the attention of the highest court of the land. In Bandhua Mukti Morcha case the Supreme Court expressed dissatisfaction for the indifferent and callous attitude of the Government in handling the problem of bonded labor. It stressed on the need for rehabilitation of the freed laborers and added that the concept of rehabilitation should have the following four features:
a) Psychological rehabilitation must go side by side with physical and economic rehabilitation b) the physical and economic rehabilitation should include all major components like agriculture, animal husbandry, promotion of traditional arts and craft, wage employment, health, education, medical care and protection of civil rights c) the different components of the rehabilitation schemes sponsored by the Central and state governments require integration so as to avoid duplication d) the bonded laborers selected for rehabilitation should have a choice between the various alternatives so that they do not slide back to debt bondage.
Neeraja Chowdhury v. State of Madhya Pradesh is another momentous decision of the Supreme Court. Based on a letter addressed to a judge, narrating the woeful condition of about 135 laborers in the stone quarries of Faridabad, the Supreme Court took serious view of the lax attitude of the State in identifying, releasing and rehabilitating the bonded laborers. It held that- It would be cruel to insist that a bonded laborer in order to derive the benefits of the social welfare legislation should have to go through the process of trial with the normal procedure. That would be a totally futile process because it is obvious that a bonded laborer cannot stand the rigidity and formalism of the legal process due to poverty, illiteracy and socio- economic backwardness. Whenever it is shown that a laborer is made to provide forced labor, the court would raise the presumption that he is required to do so in consideration of an advance received by him and is therefore a bonded laborer. The court further pointed out that- it is not enough merely to identify and release bonded laborers, but it is equally and perhaps more important that after identification and release they must be rehabilitated because without it they would be driven by poverty, helplessness and despair into serfdom once again. The Court suggested the following steps to be taken in this regard:- a) the officers appointed should be properly trained and sensitized so that they feel attached to the misery and suffering of the poor b) there should be constant check and supervision over the activities of these officers c) intensive study of the areas traditionally prone to the system of debt bondage should be undertaken by Vigilance Committees with the help of social action groups.
Social Engineering, Social Justice And Bonded Labor System- An Impact Analysis
“ Looked at functionally, the law is an attempt to satisfy, to reconcile, to harmonize, to adjust…overlapping and often conflicting claims and demands, either through securing them directly and immediately or through delimitation or compromises of individual interests so as to give effect to the greatest total of interest or to the interests that weigh most in our civilization with the least sacrifice of the scheme of interest as a whole.” Thus law is an instrument which controls interest according to the requirements of the social order. It represents the consciousness of the whole society. Pound viewed law as some ‘ brooding omnipresence in the sky operating outside of particular interests.’
The bonded labor system involves the relationship of the master or employer with his laborer. The interests of two classes of individuals are therefore involved – the employer, who needs laborers to carry out his business or trade, the ultimate motive being to earn more and more profits; and the laborer who needs to satisfy his basic necessities of life. The latter is compelled by circumstances to pledge his life and labor in the hands of the former who, in turn, exploit him to serve his own selfish interests.
This being the picture on one side, on the other stands the society which hopes to bring about a just social order in which life, liberty and equality reign supreme. Infact, all modern societies are founded on these basic pillars of ‘social justice.’ As observed by Justice Krishna Iyer , “ Struggle for social justice throughout the history centred around some demand for equal rights, that is, struggle against slavery, monarchy, economic exploitation etc. The concept of social justice is based on the idea that all men are equal in society without distinction of caste, color, creed.” Since the modern society is in continuous pursuit of this concept of social justice, it strives to bring about a balance or equilibrium between the social interests on the one hand and the individual interest on the other. Infact, it suppresses the individual interest to the extent to which it is in conflict with the larger interest, that is, the well being of the society. Such being the case, the state views the interest of bonded laborers who are deprived of their basic human rights- life, liberty, dignity, as a social interest which must prevail over the interest of employers. As Pound enumerates in his concept of social engineering that laws serve only those interest that conduce to the good of the whole society; similar is the case of bonded laborers who are weak, vulnerable and unable to safeguard themselves against the exploitation by their masters. The state strives to protect their interests in order to achieve social welfare and ensure them the sacrosanct rights of life and liberty and thereby establish a sort of social justice.
Thus it is clear that the state enacts laws to secure the claims or interests of the downtrodden and such laws, in turn, protect the interests of society. The Bonded Labor System (Abolition) Act, 1976 is one such legislation. It has declared the system of bonded labor as illegal and unconstitutional being contrary to the provisions of Art.21 and 23 of the Constitution. It has attempted to free the laborers from the clutches of their cruel masters. The Act has ensured them the freedom of life and work and most importantly, the freedom of choice. The Act has made every possible provision to secure the social interest or the well being of the society by curtailing the narrow interests of the employers and upholding those of the laborers. It has sought to engineer the society towards a new social order where justice, social, economic and political, shall inform all institutions of national life.
Leo N. Tolstoy had once observed- “the abolition of slavery has gone on for a long time. Rome abolished it, America abolished it and we did, but only the words were abolished, not the thing.” In the words of Justice Krishna Iyer, “the great pledge to protect social justice as a fact of national life and underwrite its triple components of equality, dignity and the basic minima of human needs to every Indian was made at the historic hour before midnight when India awoke to Freedom. But the midnight continues and the masses caught in the darkness ask in agony, where is the dawn?” “ Social justice, the ideological signature of our constitution is Vasudhaiva Kutumbakam or Lokah Samasthou Sukhino Bhavatu. But the goal is too far away to be achieved.”
The mere passing of the Bonded Labor (Abolition) Act has not put an end to the miseries of the poor laborers. Even after several years of its passing, the bonded laborers have not become free- socially, economically or psychologically and a large number of them are still found in stone quarries, stone crushers, firms, brick kilns, construction projects etc., working under the most inhuman conditions. Law as a reconciler of conflicting interests and an instrument for the fulfillment of social well-being has failed in its basic objectives. It has also failed to bring about the desired goal of social justice ‘which brings within its sweep the objective of removing all inequalities and affording equal opportunity to all citizens in social affairs as well as economic activities.’
CONCLUDING REMARKS:
The system of bonded labor is amongst the oldest and most pervasive economic institutions prevalent in India. It has survived over ages primarily because of the poverty and caste structure of the society. The central theme of the bonded labor system has been the conflict between the individual employers and the bonded labourers . The interests of the latter class of persons, characterized as primary social interest, have been safeguarded by the State. It has made endeavors to fulfil the claims or demands of the poverty stricken masses and passed the Bonded Labor System (Abolition) Act 1976, which, however, has met with little success. The Supreme Court in Asiad workers case, Bandhua Mukti Morcha etc. also adopted a positive attitude and tried to render assistance to these poor and deprived laborers so that they can come out of the clutches of their masters. But yet the goal is far fetched. Mere passing of laws is probably not sufficient to eradicate the social evil. A multi- dimensional or holistic approach is needed to tackle the problem. First, suitable alternatives of employment should be generated by the Government so that the poverty stricken people are not compelled to opt for a life of servitude. Secondly, the administration should be more vigilant and feel their social commitment for freeing and rehabilitating the bonded laborers. Thirdly, there is the need of involvement of social action groups operating at grass root level in the task of identification and release of bonded laborers. This should be backed by strong political will. Constant check and supervision over the activities of officers charged with the task of rehabilitation of bonded laborers is another important step in this regard. Fourthly, education is an important vehicle of social change. Compulsory education should be provided to the laborers or workers. It would make them aware of their rights and benefits- that they are entitled to various benefits under the social welfare laws. Fifthly, judicial activism through public interest litigation could be used as a useful medium to liberate the downtrodden and provide a new ethos in the judicial system. Lastly, legal aid clinics run by young lawyers and senior law students should be started for the deprived sections of people in society.
The destination is yet to be reached. It is far away and the nation has a long way to go before it reaches the ultimate goal of social justice- a new just social order where all the competing interests of society will converge and meet to produce a greater good- the good or happiness of the entire state. The achievements till now are only the early steps towards redemption of the social justice tryst with destiny: this is not the end- it is not even the beginning of the end; but it is perhaps the end of the beginning .
Bonded Labor: Conceptual Analysis:
According to the Statesman Dictionary- Labor under Bondage has been defined as “ a legal deed by which a person engaged himself and his representative to fulfil specific condition or pay money.” The Royal Commission on Labor (1931) has defined it as follows- “ The labor borrows money from the landlord under a contract to work until the debt is repaid. The debt tends to increase rather than diminish and the man, and sometimes his family, is bound for life”.
The Bonded Labor System (Abolition )Act 1976 has defined the term to mean-“ A laborer who incurs or has or is presumed to have incurred a bonded debt.” It is a system of forced labor under which the debtor enters into an agreement with the creditor to the effect that he would render, by himself or through any member of his family or any person dependant upon him, labor or service to the creditor for a specified period or for an unspecified period, either without wages or for nominal wages, or
• Forfeit the freedom of employment in other means of livelihood for a specified period or unspecified period or
• Forfeit the right to move freely throughout the territory of India or
• Forfeit the right to appropriate or sell at market value any of his property or product of his labor or that of a member of his family or any person dependant on him.
The National Sample Survey Organization (June, 1977) has viewed bonded labor as
“working with an employer under obligation but work not specifically compensated by any wage/ salary.”
The above definitions reveal that a bonded laborer has virtually no bargaining power. He has no right to refuse to work except under the terms set by his master. He can neither quit nor take up work of another employer. By virtue of economic compulsions or customary needs, the bonded laborer is tied to his master and subject to his whims and fancies. As pointed by the apex court of the country “ They are non- beings, exiles of civilization living a life worse than that of animals, for the animals are at least free to roam around about as they like and they can plunder or grab food whenever they are hungry, but these outcasts of society are held in bondage, robbed of their freedom and they are confined to an existence when they have to live either in hovels or under the open sky and be satisfied with whatever little unwholesome food they can manage.. Not having any choice they are driven by poverty and hunger into a life of bondage to a dark bottom less pit in a cruel exploitative society from which they cannot hope to be rescued.”
Constitutional and Statutory Prohibition:
The Constitution of India, a humane document which directs every organ of the state to strive for the fullest development of the personality of every individual , enacts in Art 21 that- “ No person shall be deprived of his life and personal liberty except according to the procedure established by law.’
The fundamental right to life has many attributes. It includes the right to live with human dignity, and all that goes along with it, namely, the bare necessities of life viz, adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about, mixing and commingling with fellow human beings, right to protect against torture or cruel or inhuman treatment. In Maneka Gandhi v. Union of India the Supreme Court held that the expression ‘personal liberty’ is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and includes the right to eat or sleep when one likes or to work or not work as and when one pleases and several such other rights.
Art 23 of the Constitution deals with Right against Exploitation. ‘Exploitation’ means the utilization of person for one’s own ends. It is opposed to the dignity of the individual, to which the preamble of our constitution refers. It is also opposed to the Directive Principles of State Policy, for example, Art 39(e) and (f) which provides respectively that the state shall ensure that the health and strength of workers, men and women and the tender age of children are not abused and that citizens are not forced by economic necessity to enter into avocations unsuited to their age or strength; that childhood and youth are protected against exploitation and against immoral and material abandonment.
Art 23(1) prohibits traffic in human beings and beggar and other similar forms of forced labor and provides that any contravention shall be an offence punishable in accordance with law.
The word ‘begar’ has not been defined in the Constitution but it may be defined as ‘labor or service exacted by government or a person in power without giving remuneration for it.’ The word ‘other similar forms of labor’ has been held to include every form of forced labor and it makes no difference whether the person who is forced to give his labor or service to another is remunerated or not.
In Bandhua Mukti Morcha v. Union of India , Justice Bhagwati classified bonded labor under Art 23. The learned judge stated, ‘The system of bonded labor stood prohibited by Art 23 and there could be no more solemn and effective prohibition than the one enacted in the Constitution.’
To give the Constitutional provisions a true shape, it was essential that the Government enacted a law so as to put an end to this gruesome system of exploitative labor. The most sincere attempt came on July 1, 1975 when our late Prime Minister, Smt. Indira Gandhi, in her 20 point program stated- “The practice of bonded labor is barbarous and will be abolished. All contracts and arrangements under which services of such bonded labor are now secured will be declared illegal.’ This announcement was followed the promulgation of the Bonded Labor System (Abolition) Ordinance, 1975 which was later replaced by a duly enacted law in 1976.
The main thrust of the 1976 legislation is on the abolition of any form of forced labor. In other words, the practice of bonded labor has been declared illegal and all such laborers have been freed and discharged from any obligation to render bonded labor immediately after the commencement of the Act. The principal features of the Act may be summarized as follows:
The Bonded Labor System stands abolished.
Every obligation to repay any bonded debt or any part of it, if remain unsatisfied, shall be deemed to have been extinguished.
No suits or proceedings shall be brought in the civil court or before any other authority for the recovery of the bonded debts.
Any decree or order for the recovery of the bonded debt shall be deemed to have been fully satisfied.
Any attachment made for recovery of bonded debt shall stand vacated.
Any attachment of movable or immovable property shall stand vacated and such property shall be restored to the bonded laborer.
The bonded laborer shall not be evicted from any homestead land which he is in occupation under any obligation.
Any person who compels another to render any bonded labor shall be punished with imprisonment for three years or fine upto two thousand rupees.
Every offence under the Act shall be cognizable and bailable.
The task of implementation of the provisions of this Act is cast on the District Magistrates. The latter as well as every officer authorized by him has duty to take such action as may be necessary to eradicate the system within his jurisdiction .
The law further envisages people’s cooperation by constituting Vigilance Committees in each district and subdivision by the State Government. The functions of the committee, inter alia, are as follows :
To advice the District Magistrate to ensure that the provisions of the Act and the rules made there under are properly implemented.
To provide for the economic and social rehabilitation of the freed bonded laborers.
To coordinate the function of rural banks and cooperative societies with a view to canalizing adequate credit to the freed bonded laborers.
To keep an eye on the number of offences to which cognizance has been taken under the Act.
To make a survey as to whether there is an offence to which cognizance ought to be taken under the Act.
To defend a suit instituted against a freed bonded laborer
Implementation of the Act:
The passing of the Bonded Labor System (Abolition) Act has not been of much consequence. Very little achievements have been made over the years. As revealed by statistics, upto April 1989, 242618 bonded laborers had been identified. Out of these, 231559 had been released. Only 210091 such laborers had been rehabilitated upto January, 1988 and only 11344 cases had been registered against the keepers of bonded laborers.
Another statistics on child labor states that ‘India has some 44 million workers under the age of thirteen, with 300,000 in the carpet making industry alone…By conservative estimates, there are thought to be at least 5 million children in bonded labor in India’.
A recent incident of brutality perpetrated against bonded laborers caught the attention of the present writers . Herein, a laborer borrowed a sum of Rs. 300 from an affluent person of his village and later repaid the amount with the interest agreed upon. But the lender insisted that he still owed Rs. 150 as interest which the laborer could not pay. To treat him a lesson, few persons, at the instance of the moneylender, poured acid on the laborer and his family, comprising of his wife and son. The three have been admitted to the hospital and is presently undergoing treatment.
The above suggests the prevalence of the system of bonded labor till today. It also illustrates the deplorable condition of the modern day slaves, on the one hand and the extreme apathy and non-committal approach of the governmental officials on the other. As observed by Justice P.N.Bhagwati -
“ The process of identification and release of bonded laborers is a process of discovery and transformation of non-beings into human beings and what is needed is determination, dynamism and the sense of social commitment on the part of the administration to free bonded laborers and rehabilitate them and wipe out this ugly inhuman practice, which is a blot on our national life.”
Judicial Approach:
The problem of bonded labor has also received the attention of the highest court of the land. In Bandhua Mukti Morcha case the Supreme Court expressed dissatisfaction for the indifferent and callous attitude of the Government in handling the problem of bonded labor. It stressed on the need for rehabilitation of the freed laborers and added that the concept of rehabilitation should have the following four features:
a) Psychological rehabilitation must go side by side with physical and economic rehabilitation b) the physical and economic rehabilitation should include all major components like agriculture, animal husbandry, promotion of traditional arts and craft, wage employment, health, education, medical care and protection of civil rights c) the different components of the rehabilitation schemes sponsored by the Central and state governments require integration so as to avoid duplication d) the bonded laborers selected for rehabilitation should have a choice between the various alternatives so that they do not slide back to debt bondage.
Neeraja Chowdhury v. State of Madhya Pradesh is another momentous decision of the Supreme Court. Based on a letter addressed to a judge, narrating the woeful condition of about 135 laborers in the stone quarries of Faridabad, the Supreme Court took serious view of the lax attitude of the State in identifying, releasing and rehabilitating the bonded laborers. It held that- It would be cruel to insist that a bonded laborer in order to derive the benefits of the social welfare legislation should have to go through the process of trial with the normal procedure. That would be a totally futile process because it is obvious that a bonded laborer cannot stand the rigidity and formalism of the legal process due to poverty, illiteracy and socio- economic backwardness. Whenever it is shown that a laborer is made to provide forced labor, the court would raise the presumption that he is required to do so in consideration of an advance received by him and is therefore a bonded laborer. The court further pointed out that- it is not enough merely to identify and release bonded laborers, but it is equally and perhaps more important that after identification and release they must be rehabilitated because without it they would be driven by poverty, helplessness and despair into serfdom once again. The Court suggested the following steps to be taken in this regard:- a) the officers appointed should be properly trained and sensitized so that they feel attached to the misery and suffering of the poor b) there should be constant check and supervision over the activities of these officers c) intensive study of the areas traditionally prone to the system of debt bondage should be undertaken by Vigilance Committees with the help of social action groups.
Social Engineering, Social Justice And Bonded Labor System- An Impact Analysis
“ Looked at functionally, the law is an attempt to satisfy, to reconcile, to harmonize, to adjust…overlapping and often conflicting claims and demands, either through securing them directly and immediately or through delimitation or compromises of individual interests so as to give effect to the greatest total of interest or to the interests that weigh most in our civilization with the least sacrifice of the scheme of interest as a whole.” Thus law is an instrument which controls interest according to the requirements of the social order. It represents the consciousness of the whole society. Pound viewed law as some ‘ brooding omnipresence in the sky operating outside of particular interests.’
The bonded labor system involves the relationship of the master or employer with his laborer. The interests of two classes of individuals are therefore involved – the employer, who needs laborers to carry out his business or trade, the ultimate motive being to earn more and more profits; and the laborer who needs to satisfy his basic necessities of life. The latter is compelled by circumstances to pledge his life and labor in the hands of the former who, in turn, exploit him to serve his own selfish interests.
This being the picture on one side, on the other stands the society which hopes to bring about a just social order in which life, liberty and equality reign supreme. Infact, all modern societies are founded on these basic pillars of ‘social justice.’ As observed by Justice Krishna Iyer , “ Struggle for social justice throughout the history centred around some demand for equal rights, that is, struggle against slavery, monarchy, economic exploitation etc. The concept of social justice is based on the idea that all men are equal in society without distinction of caste, color, creed.” Since the modern society is in continuous pursuit of this concept of social justice, it strives to bring about a balance or equilibrium between the social interests on the one hand and the individual interest on the other. Infact, it suppresses the individual interest to the extent to which it is in conflict with the larger interest, that is, the well being of the society. Such being the case, the state views the interest of bonded laborers who are deprived of their basic human rights- life, liberty, dignity, as a social interest which must prevail over the interest of employers. As Pound enumerates in his concept of social engineering that laws serve only those interest that conduce to the good of the whole society; similar is the case of bonded laborers who are weak, vulnerable and unable to safeguard themselves against the exploitation by their masters. The state strives to protect their interests in order to achieve social welfare and ensure them the sacrosanct rights of life and liberty and thereby establish a sort of social justice.
Thus it is clear that the state enacts laws to secure the claims or interests of the downtrodden and such laws, in turn, protect the interests of society. The Bonded Labor System (Abolition) Act, 1976 is one such legislation. It has declared the system of bonded labor as illegal and unconstitutional being contrary to the provisions of Art.21 and 23 of the Constitution. It has attempted to free the laborers from the clutches of their cruel masters. The Act has ensured them the freedom of life and work and most importantly, the freedom of choice. The Act has made every possible provision to secure the social interest or the well being of the society by curtailing the narrow interests of the employers and upholding those of the laborers. It has sought to engineer the society towards a new social order where justice, social, economic and political, shall inform all institutions of national life.
Leo N. Tolstoy had once observed- “the abolition of slavery has gone on for a long time. Rome abolished it, America abolished it and we did, but only the words were abolished, not the thing.” In the words of Justice Krishna Iyer, “the great pledge to protect social justice as a fact of national life and underwrite its triple components of equality, dignity and the basic minima of human needs to every Indian was made at the historic hour before midnight when India awoke to Freedom. But the midnight continues and the masses caught in the darkness ask in agony, where is the dawn?” “ Social justice, the ideological signature of our constitution is Vasudhaiva Kutumbakam or Lokah Samasthou Sukhino Bhavatu. But the goal is too far away to be achieved.”
The mere passing of the Bonded Labor (Abolition) Act has not put an end to the miseries of the poor laborers. Even after several years of its passing, the bonded laborers have not become free- socially, economically or psychologically and a large number of them are still found in stone quarries, stone crushers, firms, brick kilns, construction projects etc., working under the most inhuman conditions. Law as a reconciler of conflicting interests and an instrument for the fulfillment of social well-being has failed in its basic objectives. It has also failed to bring about the desired goal of social justice ‘which brings within its sweep the objective of removing all inequalities and affording equal opportunity to all citizens in social affairs as well as economic activities.’
CONCLUDING REMARKS:
The system of bonded labor is amongst the oldest and most pervasive economic institutions prevalent in India. It has survived over ages primarily because of the poverty and caste structure of the society. The central theme of the bonded labor system has been the conflict between the individual employers and the bonded labourers . The interests of the latter class of persons, characterized as primary social interest, have been safeguarded by the State. It has made endeavors to fulfil the claims or demands of the poverty stricken masses and passed the Bonded Labor System (Abolition) Act 1976, which, however, has met with little success. The Supreme Court in Asiad workers case, Bandhua Mukti Morcha etc. also adopted a positive attitude and tried to render assistance to these poor and deprived laborers so that they can come out of the clutches of their masters. But yet the goal is far fetched. Mere passing of laws is probably not sufficient to eradicate the social evil. A multi- dimensional or holistic approach is needed to tackle the problem. First, suitable alternatives of employment should be generated by the Government so that the poverty stricken people are not compelled to opt for a life of servitude. Secondly, the administration should be more vigilant and feel their social commitment for freeing and rehabilitating the bonded laborers. Thirdly, there is the need of involvement of social action groups operating at grass root level in the task of identification and release of bonded laborers. This should be backed by strong political will. Constant check and supervision over the activities of officers charged with the task of rehabilitation of bonded laborers is another important step in this regard. Fourthly, education is an important vehicle of social change. Compulsory education should be provided to the laborers or workers. It would make them aware of their rights and benefits- that they are entitled to various benefits under the social welfare laws. Fifthly, judicial activism through public interest litigation could be used as a useful medium to liberate the downtrodden and provide a new ethos in the judicial system. Lastly, legal aid clinics run by young lawyers and senior law students should be started for the deprived sections of people in society.
The destination is yet to be reached. It is far away and the nation has a long way to go before it reaches the ultimate goal of social justice- a new just social order where all the competing interests of society will converge and meet to produce a greater good- the good or happiness of the entire state. The achievements till now are only the early steps towards redemption of the social justice tryst with destiny: this is not the end- it is not even the beginning of the end; but it is perhaps the end of the beginning .
Right to Shared Household- The Debacle of Taruna Batra and Aftermath
Statistically it is safer to be on streets after dark with a stranger than at home in the bosom of one’s family, for it is there that accident, murder and violence are likely to occur.”
Domestic Violence is one of the key concerns of feminist movement all over the world. It is directly linked to the unequal position of women in a patriarchal society across both class and community. Violence may be addressed as an act of aggression that crosses the boundary of another person’s autonomy and identity. It is a coercive instrument to “assert one’s will over another, to prove or feel a sense of power.” The term domestic violence implies the incidents of familiar or intimate battering having reference to an idealized family unit functioning in a protected and secluded manner, appropriately shielded from the public. It has been defined as a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner. It is a broad term encompassing child abuse, spouse abuse, sibling abuse, elder abuse etc. However, in general, it is broadly focused on spousal violence or domestic violence against women.
The United Nations Committee on Convention of Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No. XII (1989) recommended that State parties should act to protect women against violence of any kind especially that occurring within the family. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) also acknowledged domestic violence as a serious human right issue. “It was therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society” .
The Protection of Women from Domestic Violence Act, 2005 has accordingly been passed. It aims to provide increased protection to women as victims of domestic violence. It is designed to help women during the most intense phase of abuse. It not only provides a support mechanism but also acts as a tool for women to negotiate for their rights from a position of equality.
A significant right conferred by way of the Act is a woman’s right to matrimonial home. Strange, though it may seem, but a woman, who is a victim of domestic violence, has the right to continue residence in the shared household and may even retain the residence with an order from the Magistrate. This is indeed a positive step towards the recognition of her rights and control over the matrimonial domain. But in reality, how far it is practicable continues to bother our minds. The article attempts to probe into the boundaries of such recognition and denial and critically questions the judicial decision making in Taruna Batra’s case.
Shared Household: Meaning
Household refers to a place where the aggrieved person lives or have lived in a domestic relationship. Such household may be owned or tenanted, jointly or severally, and includes a joint family holding, irrespective of whether the aggrieved person has an right, title or interest in the shared household.
Section 2(s) of the PWDVA 2005 defines the term as "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
A plain reading of the definition indicates that an aggrieved person (meaning, the wife) is entitled to her rights in a shared household irrespective of whether the shared household is in the name of the respondent(husband) or his relatives. For the same reason, a joint family household has been included within the meaning of shared household. A beneficial interpretation of the term ‘shared household’ should therefore, recognize a woman’s right to reside in the shared household, irrespective of the nature of ownership. As has been held in Amrendra Pratap Singh v Tej Bahadur Prajapati by the Hon’ble Supreme Court, where the object of the legislation is to prevent a mischief and to confer protection on the weaker sections of the society, the Court would not hesitate in placing an extended meaning, even a stretched one, on the word, if in doing so the statute would succeed in attaining the object sought to be achieved.
However, interpreting s 2(s) of the Protection of Women from Domestic Violence Act, 2005, the Supreme Court has held that the definition of shared household as including a household where the person aggrieved lives or at any stage had lived in a domestic relationship, will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places, e.g. with the husband's father, husband's paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. All these houses of the husband's relatives will be shared households and the wife can well insist in living in all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.
Right to Reside in Shared Household:
Section 17 of the Act, 2005 emphatically asserts that:
(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
The Protection of Women from Domestic Violence Act, 2005 by Section 17 enacts the right of a woman, to reside in a shared household. It creates a statutory right in favor of "every woman in a domestic relationship", an expression, given the wide meaning assigned to "domestic relationship" by Section 2(f), including not only the wife or a female blood relative, but also a female friend who has shared, even for a short period, the same residence with the man. In Vimalben Ajitbhai Patel v Vatslabeen Ashokbhai Patel & Ors and Ajitbhai Revandas Patel & Anr v State of Gujarat & Anr .(per S.B. Sinha J.) it was opined that the Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also there under acquires a right of residence. The right of residence is a higher right.
Section 19 furthermore provides that the Magistrate may on being satisfied that domestic violence has taken place pass a residence order restraining the respondent from dispossessing or disturbing the possession of the aggrieved person from the shared household, directing the respondent to remove himself from the shared household, restraining the respondent or his relatives from entering the shared household, restraining the respondent from alienating or disposing of or encumbering the shared household, restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate, or directing the respondent to secure alternate accommodation for the aggrieved person of the same level as enjoyed by her in the shared household or to pay rent for the same. However, no such order shall be passed against any person who is a woman directing her to remove herself from the shared household. Sub-section (2) empowers the Magistrate to impose additional conditions and pass any other direction in order to protect the safety of the aggrieved person or her child. Sub-section (3) provides for execution of a bond by the respondent for prevention of the domestic violence. Sub-section (5) empowers the Magistrate to pass an order directing the officer-in-charge of the concerned police station to give protection to the aggrieved person or to assist in implementation of the residence order.
Extent and Scope of the Right: Taruna Batra and After
In S.R. Batra and Anr. v Smt. Taruna Batra Smt. Taruna Batra was married to Amit Batra, son of the appellants. After the marriage Taruna Batra started living with her husband in the house of the appellant in the second floor. Subsequently, Amit Batra filed a divorce petition against his wife. The latter shifted to her parent’s house. Thereafter, however, she broke open the locks of the appellant’s house to take possession of the second floor where she resided, even though the husband in the mean time had shifted to another place. In an application for temporary injunction, the trial court restrained the appellants from interfering with the possession of Smt. Taruna Batra. On appeal before the Senior Civil Judge, Delhi it was held that Smt. Taruna Batra was not residing in the second floor of the premises in question. The matrimonial home could not be said to be a place where only wife was residing. Smt. Taruna Batra had no right to the properties other than that of her husband. Hence, he allowed the appeal and dismissed the temporary injunction application.
On a petition under Art 227 of the Constitution, the learned Single Judge of the High Court held that the second floor of the property in question was the matrimonial home of Smt. Taruna Batra. He further held that even if her husband Amit Batra had shifted to Ghaziabad that would not make Ghaziabad the matrimonial home of Smt. Taruna Batra. The Learned Judge was of the view that mere change of the residence by the husband would not shift the matrimonial home, particularly when the husband had filed a divorce petition against his wife. On this reasoning, the learned Judge of the High Court held that Smt. Taruna Batra was entitled to continue to reside in the second floor of her matrimonial home.
The Supreme Court speaking through Markandey Katju, J. however held: “There is no such law in India, like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law. Here, the house in question belongs to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house. The mother-in-law of Smt. Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. Furthermore, Taruna Batra was not residing in the premises in question and cannot claim any injunction for the simple reason that she was not in possession at all of the said property and hence the question of dispossession does not arise.”
Interpreting s 2(s) of the Protection of Women from Domestic Violence Act, 2005, the court held that the definition of shared household as including a household where the person aggrieved lives or at any stage had lived in a domestic relationship, will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places and therefore saying that all these will be shared households would be chaotic and absurd. It is well settled that any interpretation which leads to absurdity should not be accepted. The wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. Furthermore, a claim for alternative accommodation under S 19(1)(f) of the Act can only be made against the husband and not against the husband's in-laws or other relatives.
An evaluation of the judicial dictum presents a somewhat clear picture- where the husband has right, title and interest in the property, his wife or aggrieved party may claim a right of residence therein; but where it is in the name of the in laws or other relatives, as the case might be, the wife acquires no right whatsoever, even though she might have stayed therein being in a domestic relationship. But while this may be an unambiguous statement, it is somewhat erroneous in its interpretation and application.
First, the accepted principle of interpretation is that between two possible views, the
interpretation that furthers the intention of the legislature and the object of the legislation, particularly in social welfare laws, is the one that should be preferred by the courts. The object of the Domestic Violence Act is "to provide for more effective protection of the rights of women". However the Supreme Court, in the face of the clear definition of 'shared household', rejected the submission that the second floor premises of Ashok Vihar were the shared household of the wife Taruna Batra.
Another sound principle followed by the courts is to give decisions based on the concrete facts and circumstances of the case before them. In the present case, the issue before the court was whether Taruna Batra, who had admittedly stayed on the second floor of the house of the husband's mother, had a right to stay there under the Domestic Violence Act, as it constituted her 'shared household' under the law. Instead of interpreting the law based on the concrete facts of the case, the court ventures into hypothetical and imaginary situations that the husband and wife may have lived in dozens of places like the husband's parents, grandparents, uncles, aunts, nieces, nephews, etc. Therefore, according to the judgment, if places where the husband and wife lived together were to be accepted as 'shared household' then it would lead to chaos and would be absurd. On the basis of this specious reasoning, the judgment declares that "any interpretation which leads to absurdity should not be accepted".
Thirdly, while a prudent and careful scrutiny of the above interpretation of law by the apex court may sound good and practicable to guard against unscrupulous wives, it may well in reality fail in its objective. The reasons for this are varied:
1. In the Indian societal set up, it is not uncommon for sons to reside with their parents and other family members in a common household. The concept of nuclear households, though on a rise, is yet to gain its stronghold on Indian soil and even therein as well, the parents residing with the son, is taken as an acceptable and appreciable conduct.
2. Purchase of property in the name of parents, and especially mothers, is not unknown in our traditional social set up. Infact, many a times, the son fulfills his moral obligation by purchasing property from his income in the name of his parent, or jointly.
3. Another possibility which is equally reflected is the existence of joint household, being run on the income and other earnings of all the male members therein. Acquisition of property is joint from the combined family earnings.
In all the above situations, an aggrieved woman is left with no option but to return to her parental abode, if at all, it exists or its doors are open.
Fourthly, even though a woman’s household after marriage is her in-laws place, even though her marriage is solemnised with the consent and blessings of the families (as in common in India) and even though she has to respect, care for and maintain the husband’s family members, as if they were her own, she gains no right whatsoever over the same. Her rights are limited only to that which is and lawfully belongs to the husband and over which she has a legal claim. It is somewhat a travesty of justice for the woman who, though responsible for love, nurture and protection of family bonds, are left at the receiving end when it comes to assertion and acceptance of their rights. A contrary question may be posed at this juncture: why a married woman should at all bother, lest take care, of her husband’s parents or siblings, when in fact she has no legal relationship existing? She is the wife of the man and has her rights, duties and other liabilities arising therefrom and ending therewith. No further responsibility or obligation may be put on her. But would the same be acceptable, without raising eyebrows? No, for our traditions, our culture and our patriarchal structure demands the same from every woman who is married and a fall from duty is termed as a vice.
Next, as has been rightly asserted , the position may prove detrimental for women married to NRIs, since in all such cases, the woman continues to reside with the husband’s family and may indeed be turned out without the least flutter.
Lastly, Batra has provided an alternative line of thought as well as a means of escape for all those who intend to deprive the woman of her rights. An illustration may be seen in the case of P. Babu Venkatesh, Kandayammal and Padmavathi v Rani . Invoking the provision under Section 23(2) of Protection of Women from Domestic Violence Act, 2005, the respondent sought for an ex-parte residence order. In the affidavit filed by the respondent, she stated that she was driven away from the matrimonial home in the mid of night and had been living without any food, cloth and shelter. Therefore, she sought for an ex-parte residence order which was granted by the Magistrate. The respondent thereafter filed a petition invoking Section 31 of the Protection of Women from Domestic Violence Act, 2005 alleging therein that the petitioners have locked the premises dishonoring the residence order passed by the learned Judicial Magistrate.
The Court held that “both of them had resided in the subject house, which is now in the name of the second petitioner. Further, after the dispute had arisen between the parties, the first petitioner, who was the original owner of the property, alienated the same in favour of his mother, the second petitioner herein. Therefore, factually, the ratio laid down by the Supreme Court in Taruna Batra’s case can be distinguished. If the contention of the petitioners is accepted, every husband will simply alienate his property in favour of somebody else after the dispute has arisen and would take a stand that the house where they last resided is not a shared household and therefore the wife is not entitled to seek for residence right in the shared household. The wife has a right to residence and the same has to be enforced as per law.”
Later day cases, have somewhat tried to distinguish itself from Batra and undo the damage done, but the precedent has continued to haunt all decision making where women have been thrown out of their houses in the middle of the night and left to fend for themselves in the streets.
In Smt. Shumita Didi Sandhu v Mr. Sanjay Singh Sandhu & Ors , the question for consideration was whether the plaintiff has any right to stay in the suit property in which her husband has no right, interest or share and belongs to her father-in-law and mother-in-law. Incidental question for determination was whether it could be treated as matrimonial home of the plaintiff?
In the instant case, the plaintiff had strained relations with the defendant No 1, her husband. She was residing along with him and in laws in the ground floor of the suit property. Subsequently, however, unable to bear the torture and abuse of the defendants she left the place. After a period of time, she returned back to take possession of the first floor of the suit property. In the present case, she claimed for permanent injunction restraining the defendants from forcibly dispossessing her from suit property.
Referring to Taruna Batra’s case, the Delhi High Court held that the legal position which emerges is that the husband has legal and moral obligation to provide residence to his wife. Therefore, wife can claim right of residence against her husband. If the house in question where she lived after marriage belongs to her husband, it would certainly be treated as matrimonial home. Likewise, if the house in question belongs to HUF in which her husband is a coparcener, even that can be termed as matrimonial house. However, where the house belongs to parents-in-law in which husband has no right, title or interest and they had allowed their son along with daughter-in-law to stay in the said house, it would be a permissive possession by the daughter-in-law but would not give any right to her to stay in the said house. What would be the position if there is no dispute between the husband and wife but the parents of the husband do not want their son and son's wife to stay in the said house for certain reasons. Obviously, their son, who is only a permissive licensee and staying in the house with his wife cannot claim legal right therein. If son cannot claim any such right against his parents to stay in a house which belongs to his parents, his wife obviously would also have no case to claim such a right.
Certain other instances may however be quoted where the Batra judgment has been relied upon by the respondents but the Magistrates have granted residence orders by successfully distinguishing the case at hand from the Batra judgment on facts and have interpreted the law in favor of the aggrieved woman. Two such instances are stated below.
In an order passed by the Metropolitan Magistrate (NCT Delhi) dated 03.01.07, wherein the shared household was in the name of the mother-in-law, it was held that:
“It is an admitted position in this case that the premises…., (presently in which the complainant is staying due to order….) is jointly owned by respondents no 2 and 3, i.e. the father-in-law and elder brother-in-law of the complainant and that it is not a joint family. As the husband is not the owner of the above said property, therefore in view of the judgment of the Hon’ble Supreme Court, this property cannot be termed as shared household property and therefore due to change of circumstances in view of the said Judgment of the Hon’ble Supreme interim order..... is vacated. However, as the complainant is living at present at the given address and is in possession of one room of the ground floor of the same, therefore by way of abundant caution, it is directed that the respondents shall not dispossess the complainant without due process of law .
The Second case is from Madhya Pradesh , where a residence order was granted despite arguments based on the Batra judgment were relied upon by the counsel for the respondent. In this case, the house was in the name of the mother-in-law. The court held that just because the house was in the mother-in- law’s name did not indicate the source of income used to acquire the property. In such circumstances, where the source of income could not be ascertained, a residence order could not be denied to the woman.
“In SR Batra., the Supreme Court has interpreted the shared household and has decided that the shared household is the home of the husband or one rented by him or home that is of a joint family of which the husband is a member. Property of the mother in law cannot be called a shared household. Rights accruing from a matrimonial home can be obtained against the husband and not the father in law or the mother in law. The private residence of the mother in law cannot be called a shared household. But in the instant pleading the respondents have not produced any documents to show that this residence belongs exclusively to respondent, they have not revealed the appropriate source of income for acquiring such property. In such a situation, it seems that the residence at ...... belongs to the joint family and hence the complainant has a right in it. Hence the right to residence under Section 19 is being ordered in favor of the complainant”.
Conclusion
“The facts stated in the Preamble and the Statement of Objects and Reasons appended to any legislation are evidence of legislative judgment. They indicate the thought process of the elected representatives of the people and their cognizance of the prevalent state of affairs, impelling them to enact the law. These, ….will be taken into consideration by the Courts …” Another basic rule of interpretation of statute is that“[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Furthermore, "[E]very part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." That being so, the judicial outburst in Taruna Batra’s case with regard to “shared household”, being absurd and chaotic, was unwarranted and uncalled for. It is indeed a negation of the interpretative principles which are in vogue. It is also in clear variation of the purpose and object of the statute. Law catalyses the progression of human society and in this, such judgments are bound to stall the curve of human development. A more rationalistic, thoughtful and progressive judicial mind is called for to make the statute a reality.
Domestic Violence is one of the key concerns of feminist movement all over the world. It is directly linked to the unequal position of women in a patriarchal society across both class and community. Violence may be addressed as an act of aggression that crosses the boundary of another person’s autonomy and identity. It is a coercive instrument to “assert one’s will over another, to prove or feel a sense of power.” The term domestic violence implies the incidents of familiar or intimate battering having reference to an idealized family unit functioning in a protected and secluded manner, appropriately shielded from the public. It has been defined as a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner. It is a broad term encompassing child abuse, spouse abuse, sibling abuse, elder abuse etc. However, in general, it is broadly focused on spousal violence or domestic violence against women.
The United Nations Committee on Convention of Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No. XII (1989) recommended that State parties should act to protect women against violence of any kind especially that occurring within the family. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) also acknowledged domestic violence as a serious human right issue. “It was therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society” .
The Protection of Women from Domestic Violence Act, 2005 has accordingly been passed. It aims to provide increased protection to women as victims of domestic violence. It is designed to help women during the most intense phase of abuse. It not only provides a support mechanism but also acts as a tool for women to negotiate for their rights from a position of equality.
A significant right conferred by way of the Act is a woman’s right to matrimonial home. Strange, though it may seem, but a woman, who is a victim of domestic violence, has the right to continue residence in the shared household and may even retain the residence with an order from the Magistrate. This is indeed a positive step towards the recognition of her rights and control over the matrimonial domain. But in reality, how far it is practicable continues to bother our minds. The article attempts to probe into the boundaries of such recognition and denial and critically questions the judicial decision making in Taruna Batra’s case.
Shared Household: Meaning
Household refers to a place where the aggrieved person lives or have lived in a domestic relationship. Such household may be owned or tenanted, jointly or severally, and includes a joint family holding, irrespective of whether the aggrieved person has an right, title or interest in the shared household.
Section 2(s) of the PWDVA 2005 defines the term as "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
A plain reading of the definition indicates that an aggrieved person (meaning, the wife) is entitled to her rights in a shared household irrespective of whether the shared household is in the name of the respondent(husband) or his relatives. For the same reason, a joint family household has been included within the meaning of shared household. A beneficial interpretation of the term ‘shared household’ should therefore, recognize a woman’s right to reside in the shared household, irrespective of the nature of ownership. As has been held in Amrendra Pratap Singh v Tej Bahadur Prajapati by the Hon’ble Supreme Court, where the object of the legislation is to prevent a mischief and to confer protection on the weaker sections of the society, the Court would not hesitate in placing an extended meaning, even a stretched one, on the word, if in doing so the statute would succeed in attaining the object sought to be achieved.
However, interpreting s 2(s) of the Protection of Women from Domestic Violence Act, 2005, the Supreme Court has held that the definition of shared household as including a household where the person aggrieved lives or at any stage had lived in a domestic relationship, will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places, e.g. with the husband's father, husband's paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. All these houses of the husband's relatives will be shared households and the wife can well insist in living in all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.
Right to Reside in Shared Household:
Section 17 of the Act, 2005 emphatically asserts that:
(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
The Protection of Women from Domestic Violence Act, 2005 by Section 17 enacts the right of a woman, to reside in a shared household. It creates a statutory right in favor of "every woman in a domestic relationship", an expression, given the wide meaning assigned to "domestic relationship" by Section 2(f), including not only the wife or a female blood relative, but also a female friend who has shared, even for a short period, the same residence with the man. In Vimalben Ajitbhai Patel v Vatslabeen Ashokbhai Patel & Ors and Ajitbhai Revandas Patel & Anr v State of Gujarat & Anr .(per S.B. Sinha J.) it was opined that the Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also there under acquires a right of residence. The right of residence is a higher right.
Section 19 furthermore provides that the Magistrate may on being satisfied that domestic violence has taken place pass a residence order restraining the respondent from dispossessing or disturbing the possession of the aggrieved person from the shared household, directing the respondent to remove himself from the shared household, restraining the respondent or his relatives from entering the shared household, restraining the respondent from alienating or disposing of or encumbering the shared household, restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate, or directing the respondent to secure alternate accommodation for the aggrieved person of the same level as enjoyed by her in the shared household or to pay rent for the same. However, no such order shall be passed against any person who is a woman directing her to remove herself from the shared household. Sub-section (2) empowers the Magistrate to impose additional conditions and pass any other direction in order to protect the safety of the aggrieved person or her child. Sub-section (3) provides for execution of a bond by the respondent for prevention of the domestic violence. Sub-section (5) empowers the Magistrate to pass an order directing the officer-in-charge of the concerned police station to give protection to the aggrieved person or to assist in implementation of the residence order.
Extent and Scope of the Right: Taruna Batra and After
In S.R. Batra and Anr. v Smt. Taruna Batra Smt. Taruna Batra was married to Amit Batra, son of the appellants. After the marriage Taruna Batra started living with her husband in the house of the appellant in the second floor. Subsequently, Amit Batra filed a divorce petition against his wife. The latter shifted to her parent’s house. Thereafter, however, she broke open the locks of the appellant’s house to take possession of the second floor where she resided, even though the husband in the mean time had shifted to another place. In an application for temporary injunction, the trial court restrained the appellants from interfering with the possession of Smt. Taruna Batra. On appeal before the Senior Civil Judge, Delhi it was held that Smt. Taruna Batra was not residing in the second floor of the premises in question. The matrimonial home could not be said to be a place where only wife was residing. Smt. Taruna Batra had no right to the properties other than that of her husband. Hence, he allowed the appeal and dismissed the temporary injunction application.
On a petition under Art 227 of the Constitution, the learned Single Judge of the High Court held that the second floor of the property in question was the matrimonial home of Smt. Taruna Batra. He further held that even if her husband Amit Batra had shifted to Ghaziabad that would not make Ghaziabad the matrimonial home of Smt. Taruna Batra. The Learned Judge was of the view that mere change of the residence by the husband would not shift the matrimonial home, particularly when the husband had filed a divorce petition against his wife. On this reasoning, the learned Judge of the High Court held that Smt. Taruna Batra was entitled to continue to reside in the second floor of her matrimonial home.
The Supreme Court speaking through Markandey Katju, J. however held: “There is no such law in India, like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law. Here, the house in question belongs to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house. The mother-in-law of Smt. Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. Furthermore, Taruna Batra was not residing in the premises in question and cannot claim any injunction for the simple reason that she was not in possession at all of the said property and hence the question of dispossession does not arise.”
Interpreting s 2(s) of the Protection of Women from Domestic Violence Act, 2005, the court held that the definition of shared household as including a household where the person aggrieved lives or at any stage had lived in a domestic relationship, will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places and therefore saying that all these will be shared households would be chaotic and absurd. It is well settled that any interpretation which leads to absurdity should not be accepted. The wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. Furthermore, a claim for alternative accommodation under S 19(1)(f) of the Act can only be made against the husband and not against the husband's in-laws or other relatives.
An evaluation of the judicial dictum presents a somewhat clear picture- where the husband has right, title and interest in the property, his wife or aggrieved party may claim a right of residence therein; but where it is in the name of the in laws or other relatives, as the case might be, the wife acquires no right whatsoever, even though she might have stayed therein being in a domestic relationship. But while this may be an unambiguous statement, it is somewhat erroneous in its interpretation and application.
First, the accepted principle of interpretation is that between two possible views, the
interpretation that furthers the intention of the legislature and the object of the legislation, particularly in social welfare laws, is the one that should be preferred by the courts. The object of the Domestic Violence Act is "to provide for more effective protection of the rights of women". However the Supreme Court, in the face of the clear definition of 'shared household', rejected the submission that the second floor premises of Ashok Vihar were the shared household of the wife Taruna Batra.
Another sound principle followed by the courts is to give decisions based on the concrete facts and circumstances of the case before them. In the present case, the issue before the court was whether Taruna Batra, who had admittedly stayed on the second floor of the house of the husband's mother, had a right to stay there under the Domestic Violence Act, as it constituted her 'shared household' under the law. Instead of interpreting the law based on the concrete facts of the case, the court ventures into hypothetical and imaginary situations that the husband and wife may have lived in dozens of places like the husband's parents, grandparents, uncles, aunts, nieces, nephews, etc. Therefore, according to the judgment, if places where the husband and wife lived together were to be accepted as 'shared household' then it would lead to chaos and would be absurd. On the basis of this specious reasoning, the judgment declares that "any interpretation which leads to absurdity should not be accepted".
Thirdly, while a prudent and careful scrutiny of the above interpretation of law by the apex court may sound good and practicable to guard against unscrupulous wives, it may well in reality fail in its objective. The reasons for this are varied:
1. In the Indian societal set up, it is not uncommon for sons to reside with their parents and other family members in a common household. The concept of nuclear households, though on a rise, is yet to gain its stronghold on Indian soil and even therein as well, the parents residing with the son, is taken as an acceptable and appreciable conduct.
2. Purchase of property in the name of parents, and especially mothers, is not unknown in our traditional social set up. Infact, many a times, the son fulfills his moral obligation by purchasing property from his income in the name of his parent, or jointly.
3. Another possibility which is equally reflected is the existence of joint household, being run on the income and other earnings of all the male members therein. Acquisition of property is joint from the combined family earnings.
In all the above situations, an aggrieved woman is left with no option but to return to her parental abode, if at all, it exists or its doors are open.
Fourthly, even though a woman’s household after marriage is her in-laws place, even though her marriage is solemnised with the consent and blessings of the families (as in common in India) and even though she has to respect, care for and maintain the husband’s family members, as if they were her own, she gains no right whatsoever over the same. Her rights are limited only to that which is and lawfully belongs to the husband and over which she has a legal claim. It is somewhat a travesty of justice for the woman who, though responsible for love, nurture and protection of family bonds, are left at the receiving end when it comes to assertion and acceptance of their rights. A contrary question may be posed at this juncture: why a married woman should at all bother, lest take care, of her husband’s parents or siblings, when in fact she has no legal relationship existing? She is the wife of the man and has her rights, duties and other liabilities arising therefrom and ending therewith. No further responsibility or obligation may be put on her. But would the same be acceptable, without raising eyebrows? No, for our traditions, our culture and our patriarchal structure demands the same from every woman who is married and a fall from duty is termed as a vice.
Next, as has been rightly asserted , the position may prove detrimental for women married to NRIs, since in all such cases, the woman continues to reside with the husband’s family and may indeed be turned out without the least flutter.
Lastly, Batra has provided an alternative line of thought as well as a means of escape for all those who intend to deprive the woman of her rights. An illustration may be seen in the case of P. Babu Venkatesh, Kandayammal and Padmavathi v Rani . Invoking the provision under Section 23(2) of Protection of Women from Domestic Violence Act, 2005, the respondent sought for an ex-parte residence order. In the affidavit filed by the respondent, she stated that she was driven away from the matrimonial home in the mid of night and had been living without any food, cloth and shelter. Therefore, she sought for an ex-parte residence order which was granted by the Magistrate. The respondent thereafter filed a petition invoking Section 31 of the Protection of Women from Domestic Violence Act, 2005 alleging therein that the petitioners have locked the premises dishonoring the residence order passed by the learned Judicial Magistrate.
The Court held that “both of them had resided in the subject house, which is now in the name of the second petitioner. Further, after the dispute had arisen between the parties, the first petitioner, who was the original owner of the property, alienated the same in favour of his mother, the second petitioner herein. Therefore, factually, the ratio laid down by the Supreme Court in Taruna Batra’s case can be distinguished. If the contention of the petitioners is accepted, every husband will simply alienate his property in favour of somebody else after the dispute has arisen and would take a stand that the house where they last resided is not a shared household and therefore the wife is not entitled to seek for residence right in the shared household. The wife has a right to residence and the same has to be enforced as per law.”
Later day cases, have somewhat tried to distinguish itself from Batra and undo the damage done, but the precedent has continued to haunt all decision making where women have been thrown out of their houses in the middle of the night and left to fend for themselves in the streets.
In Smt. Shumita Didi Sandhu v Mr. Sanjay Singh Sandhu & Ors , the question for consideration was whether the plaintiff has any right to stay in the suit property in which her husband has no right, interest or share and belongs to her father-in-law and mother-in-law. Incidental question for determination was whether it could be treated as matrimonial home of the plaintiff?
In the instant case, the plaintiff had strained relations with the defendant No 1, her husband. She was residing along with him and in laws in the ground floor of the suit property. Subsequently, however, unable to bear the torture and abuse of the defendants she left the place. After a period of time, she returned back to take possession of the first floor of the suit property. In the present case, she claimed for permanent injunction restraining the defendants from forcibly dispossessing her from suit property.
Referring to Taruna Batra’s case, the Delhi High Court held that the legal position which emerges is that the husband has legal and moral obligation to provide residence to his wife. Therefore, wife can claim right of residence against her husband. If the house in question where she lived after marriage belongs to her husband, it would certainly be treated as matrimonial home. Likewise, if the house in question belongs to HUF in which her husband is a coparcener, even that can be termed as matrimonial house. However, where the house belongs to parents-in-law in which husband has no right, title or interest and they had allowed their son along with daughter-in-law to stay in the said house, it would be a permissive possession by the daughter-in-law but would not give any right to her to stay in the said house. What would be the position if there is no dispute between the husband and wife but the parents of the husband do not want their son and son's wife to stay in the said house for certain reasons. Obviously, their son, who is only a permissive licensee and staying in the house with his wife cannot claim legal right therein. If son cannot claim any such right against his parents to stay in a house which belongs to his parents, his wife obviously would also have no case to claim such a right.
Certain other instances may however be quoted where the Batra judgment has been relied upon by the respondents but the Magistrates have granted residence orders by successfully distinguishing the case at hand from the Batra judgment on facts and have interpreted the law in favor of the aggrieved woman. Two such instances are stated below.
In an order passed by the Metropolitan Magistrate (NCT Delhi) dated 03.01.07, wherein the shared household was in the name of the mother-in-law, it was held that:
“It is an admitted position in this case that the premises…., (presently in which the complainant is staying due to order….) is jointly owned by respondents no 2 and 3, i.e. the father-in-law and elder brother-in-law of the complainant and that it is not a joint family. As the husband is not the owner of the above said property, therefore in view of the judgment of the Hon’ble Supreme Court, this property cannot be termed as shared household property and therefore due to change of circumstances in view of the said Judgment of the Hon’ble Supreme interim order..... is vacated. However, as the complainant is living at present at the given address and is in possession of one room of the ground floor of the same, therefore by way of abundant caution, it is directed that the respondents shall not dispossess the complainant without due process of law .
The Second case is from Madhya Pradesh , where a residence order was granted despite arguments based on the Batra judgment were relied upon by the counsel for the respondent. In this case, the house was in the name of the mother-in-law. The court held that just because the house was in the mother-in- law’s name did not indicate the source of income used to acquire the property. In such circumstances, where the source of income could not be ascertained, a residence order could not be denied to the woman.
“In SR Batra., the Supreme Court has interpreted the shared household and has decided that the shared household is the home of the husband or one rented by him or home that is of a joint family of which the husband is a member. Property of the mother in law cannot be called a shared household. Rights accruing from a matrimonial home can be obtained against the husband and not the father in law or the mother in law. The private residence of the mother in law cannot be called a shared household. But in the instant pleading the respondents have not produced any documents to show that this residence belongs exclusively to respondent, they have not revealed the appropriate source of income for acquiring such property. In such a situation, it seems that the residence at ...... belongs to the joint family and hence the complainant has a right in it. Hence the right to residence under Section 19 is being ordered in favor of the complainant”.
Conclusion
“The facts stated in the Preamble and the Statement of Objects and Reasons appended to any legislation are evidence of legislative judgment. They indicate the thought process of the elected representatives of the people and their cognizance of the prevalent state of affairs, impelling them to enact the law. These, ….will be taken into consideration by the Courts …” Another basic rule of interpretation of statute is that“[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Furthermore, "[E]very part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." That being so, the judicial outburst in Taruna Batra’s case with regard to “shared household”, being absurd and chaotic, was unwarranted and uncalled for. It is indeed a negation of the interpretative principles which are in vogue. It is also in clear variation of the purpose and object of the statute. Law catalyses the progression of human society and in this, such judgments are bound to stall the curve of human development. A more rationalistic, thoughtful and progressive judicial mind is called for to make the statute a reality.
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