|Summary of the report (1999-2000) and of the principal recommendations|
|OPINION in regard: The Prevention of Terrorism Bill, 2000|
|Regarding Child Marriage Restriant Act, 1929|
|Recommendations of the Workshop on Maternal Anaemia|
|Conclusions/Recommendations of the National Conference on HIV/AIDS on 24-25 November, 2000|
|Comments/suggestions on the draft long term Action Plan(2000-2005) for implementation of the National Policy on Older Persons|
SUMMARY OF THE REPORT (1999-2000) AND OF
THE PRINCIPAL RECOMMENDATIONS
The Commission has repeatedly drawn attention to the delay in the placing of its
Annual Reports before Parliament. The time lag between the submission of the Report and
placing it before Parliament was more than nine months in respect of the Annual Report for
the year 1996-97, while it was twelve months for the Report of 1997-98 and 13 months for
the Report of 1998-99. It has been observed that the Reports of the Commission are an
essential source of information to the people of this country and to all who are connected
with human rights and that there is need to place the reports promptly before Parliament
along with the Action Taken Report. It has also been recommended that this shall be
done not later than the session immediately following submission of the Report. The
Commission has further urged that the Reports of the Commission should be allowed to be
released to the public, if for any reason they cannot be placed before Parliament in the
session immediately following the submission of the report. It would like to repeat this
2. The Commission is compelled to observe that successive Action Taken Reports have been less than clear in respect of whether recommendations of the Commission will be implemented or what the timeframe will be for the implementation of recommendations. Further when recommendations pertain to the States, the Commission expects that the Central Government will use its best efforts to secure compliance at the earliest. Too often, however, the Action Taken Reports simply indicate that the recommendation in question falls within the competence of the States and does not indicate what, if anything, will be done thereafter. The Commission urges the Central Government and State Governments to respond with greater precision to the recommendations of the Commission and to endeavour to comply them within clearly defined time-limits.
3. The Commission has the following recommendations to make at this stage, in regard to the issues of Gender discrimination:
Justice Shri J.S. Verma Chairperson
Justice Dr. K. Ramaswamy Member
Justice Smt. Sujata V. Manohar Member
Shri Sudarshan Agarwal Member
Shri Virendra Dayal Member
1. Media reports indicate that the Law Commission of India has submitted the draft Bill together with its 173rd Report to the Government of India and that the Bill is likely to be moved in the next session of the Parliament for its enactment as a law to deal with terrorism in the country. There has been a debate in the country for some time about the need of enacting such a stringent law as well as its form in case of its enactment. The debate has also focussed on the experience of the working of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and the fact of it being permitted to lapse. Divergent views have emerged in the debate and the Law Commission of India has recommended enactment of the law in terms of the proposed Bill.
2.1 Functions of the Commission specified in Section 12 of the Protection of Human Rights Act, 1993, particularly those in clauses (d), (f) and (j) are relevant in this context. These functions include : to review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation; study treaties and other international instruments on human rights and make recommendations for their effective implementation; and such other functions as it may consider necessary for the promotion of human rights. It is, therefore, an essential function of the Commission to formulate its opinion on the desirability and need of enacting such a stringent law and to give public expression to it for consideration by the Parliament and all those involved in the making of the laws so that due weight is given to the Commissions opinion in the performance of this exercise.
2.2 It may be recalled that in discharge of this statutory obligation, the Commission had earlier opposed the continuance of the TADA Act and a letter dated 20 February, 1995 to this effect was sent by the then Chairperson to all Members of Parliament and it is also included in the Annual Report of the Commission for the Year 1994-1995 as Annexure-I. The earlier opinion of the Commission is relevant at this juncture not merely as the historical background but also because of its relevance in the formation of the opinion of the Commission in the present context.
3.0 It is in the performance of this statutory responsibility that the Commission has examined the need for enactment of such a law in its meeting held on 11 July, 2000. The matter has been considered not strictly from the point of view of the constitutional validity of the proposed new law and its provisions which, if necessary, would be a matter for the courts to decide, but on the need and wisdom of enacting such a law particularly in the light of the earlier experience with the TADA, the adequacies of the existing laws and the provisions of international covenants to which India is a party. Even though absence of need to enact the law and its un-wisdom are not grounds of constitutional invalidity, yet they are relevant for the performance of the functions of the Commission and of the Parliament. This is the occasion for examination of this question.
In the above background, the issues which arise for consideration in this context are the following, namely:
1. Is there any need for the enactment of the above new law?
2. If yes, then the kind of new law which needs to be enacted.
It may here be mentioned that the Chairperson of this Commission was invited by the Law Commission to inaugurate its seminar on 20 December, 1999 to discuss the proposed Bill. In his inaugural address, the Chairperson identified these two issues which arose for discussion in the seminar and while refraining from expressing any opinion on the first issue, he said that in the event of such a law being found necessary, it must have a human face as indicated in decisions of the Supreme Court and also because of the past experience.
The considered unanimous opinion of this Commission is that there is no need to enact the above new law (Prevention of Terrorism Bill, 2000) and, therefore, the need does not arise to answer the other question.
Brief reasons for the Commissions unanimous opinion are indicated here after:
6.1 Existing Laws
The Prevention of Terrorism Bill, 2000 under Section 3 sets out the kind of actions which are proposed to be dealt with under the Bill. These actions are substantially taken care of under the existing laws. For example, any action which threatens the unity, integrity, security or sovereignty of India is covered by Section 153-B of the Indian Penal Code (I.P.C.). Chapter VI of the IPC deals with Offences against the State. Section 121-A which forms part of this Chapter deals with conspiracy to overawe by means of criminal force or the show of criminal force, the Central or State Government and the offence is punishable with imprisonment for life. Section 122 deals with collecting arms and ammunition with the intention of waging war against the Government of India. Section 124-A deals with sedition. Under Chapter VIII dealing with Offences against Public Tranquility, Section 153-A deals with promoting enmity between two groups on grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony. Chapter XVI deals with Offences affecting the Human Body. It includes causing hurt or grievous hurt, wrongful confinement, kidnapping, abduction and so on. Apart from the Indian Penal Code, there is the Arms Act, 1959, Explosives Act, Explosive Substances Act and the Armed Forces (Special Powers) Act, 1958 the last of which gives powers to the armed forces in disturbed areas to use force even leading to death against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting assembly of five or more persons or carrying of weapons or things capable of being used as weapons or fire-arms, ammunition or explosive substances. There is also the power to arrest without warrant in the circumstances set out in the Act.
6.2 There is also on the statute book Unlawful Activities (Prevention) Act, 1967 which can be suitably modified if required. We have also enacted the Suppression of Unlawful Activities against the Safety of Civil Aviation Act, 1982 to deal effectively with offences against the safety of civil aviation. This was pursuant to India ratifying the Hague Convention of 1970 for dealing with hijacking and Montreal Convention of 1971 for the suppression of unlawful acts against civil aviation. This Act provides the necessary legal provisions for giving effect to these Conventions.
6.3 In addition, there are at present in force at least four Central Preventive Detention Acts and a number of Preventive Detention Acts enacted by various States. The Preventive Detention Acts enacted by the Union of India include the National Security Act, 1980, the Prevention of Black Marketeering and Maintenance of Supplies Act, 1980, the Prevention of Narcotic Drugs and Psychotropic Substances Act, 1988 and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Between these legal measures, all the "terrorist acts" contemplated under the new Bill appear to be covered. If necessary, the Indian Penal Code or any provisions of any other Act can be amended to cover any specific action which at present may not be covered, though, it does not appear to be so. The punishments provided under these Acts can be increased where necessary. But there does not appear to be any need to have a separate new bill for the purpose of creating new offences.
6.4 Avowed justification for the new law
The avowed justification for these provisions appears to be (i) it is difficult to secure convictions under the criminal justice system; and (ii) trials are delayed. Hence special courts will speed up trial. Undoubtedly, the main problem which the country is facing today, relates to proper investigation of crimes and efficient prosecution of criminal trials. Adjudication and punishment of crimes also take a long time before the Courts. The problem, however, cannot be solved by enacting laws that do away with the legal safeguards that are designed to prevent innocent persons from being prosecuted and punished.
The problem cannot also be solved by providing for a different and more drastic procedure for prosecution of certain crimes, for making confessions before the police admissible in evidence, contrary to the provisions of the Evidence Act, and for raising presumption of guilt as set out in the Bill, and creating special courts. These provisions seriously affect human rights guaranteed under the Constitution and violate basic principles of criminal jurisprudence as internationally understood.
There are three stages at which remedial measures need to be taken on an urgent basis by the Government to strengthen the criminal justice system:
6.5.1 The stage of investigation : Unless investigation is carried out speedily and efficiently, it is not possible to have a speedy and effective trial leading to conviction. The investigation machinery must be independent and free from political or any other kind of interference, an imperative to which NHRC has drawn attention in successive Annual Reports to the Parliament. Unfortunately, as various Police Commission Reports and the experience of the NHRC have shown, constant political interference with the police force has seriously impaired the ability of the police to investigate crimes freely and efficiently. There is also a need for giving proper training for efficient and effective investigation, including improvement of forensic skills and laboratories, another matter to which the National Human Rights Commission has repeatedly drawn attention. Such training and facilities are at present sadly lacking. In the case of Vineet Narain & Ors. Vs. Union of India & Ors., (1998) 1 SCC 226, the Supreme Court has observed:
"There is another aspect of rule of law which is of equal significance. Unless a proper investigation is made and it is followed by an equally proper prosecution, the effort made would not bear fruition."
The Supreme Court in that case, has also observed:
" there is urgent need for the State Governments also to set up credible mechanism for selection of the Police Chief in the States. The Central Government must pursue the matter with the State Governments and ensure that a similar mechanism, as indicated above, is set up in each State for the selection/appointment, tenure, transfer and posting of not merely the Chief of the State Police but also of all police officers of the rank of Superintendent of Police and above. It is shocking to hear, a matter of common knowledge, that in some States the tenure of a Superintendent of Police is on an average only a few months and transfers are made for whimsical reasons. Apart from demoralizing the police force, it has also the adverse effect of politicising the personnel. .."
There is, therefore, an urgent need to have independent and well-trained investigation machinery to investigate crimes, particularly, crimes related to terrorism.
6.5.2 There must also be efficient prosecution on behalf of the State, of all such crimes. Once again in the above case, the Supreme Court has observed:
"The recent experience in the field of prosecution is also discouraging. .. discharge of the accused on filing of the charge-sheet indicates, irrespective of the ultimate outcome of the matters pending in the higher courts, that the trial court at least was not satisfied that a prima facie case was made out by the investigation. These facts are sufficient to indicate that either the investigation or the prosecution or both were lacking ..Investigation and prosecution are interrelated and improvement of investigation without improving the prosecution machinery is of no practical significance."
It is, therefore, essential that experienced Public Prosecutors are appointed to prosecute crimes involving terrorism and that they are appointed in sufficient numbers.
6.5.3 The delays in criminal courts are also undermining the criminal justice system. One of the main causes of delay is shortage of courts. It is necessary to create many more Sessions Courts, provide the necessary infrastructure to these Courts and to appoint many more Sessions Judges who are competent and possess integrity. The judiciary can be requested to give training or refresher courses to these Sessions Judges at the various Judicial Academies of the various States for speedy disposal of cases before them without undermining judicial adjudication. Criminal trials especially those dealing with serious offences, which are tried by the Court of Sessions, need to be speedily conducted and disposed of. There can be no doubt that amongst these cases, those dealing with acts of terrorism must be given preference for early disposal (preferably within six months). But, for this purpose, it is essential that depending upon the number of such crimes in each State, and bearing in mind the average disposal per Judge, adequate numbers of additional Sessions Judges are appointed in each State, along with adequate numbers of Public Prosecutors who will prosecute the cases before them and additional courts are accordingly set up with the necessary infrastructure. This has to be done on an urgent footing. When this is done, crimes connected with terrorist activities should be given priority before the Sessions Courts in those States where such additional Sessions Courts are set up along with all the above concomitants. Obviously in those States where terrorism is rampant, additional courts will have to be set up as early as possible and the Union Government should, wherever necessary, assist the State Government in financing such additional courts.
The correct remedy for speedy trial and punishment of crimes connected with terrorism in India is proper strengthening of the crime investigation and prosecution machinery and criminal justice system. If there are a large number of acquittals today, it is not for lack of any laws but for lack of proper utilisation of these laws, lack of proper investigation and prosecution, and lack of adequate number of courts to try the offences. Unless this root problem is redressed, adopting draconian laws will only lead to their grave misuse, as has been the case with the previous TADA law.
6.6 Obligations of the State under International Covenants etc.
In pursuance of its statutory responsibility the Commission has examined the Prevention of Terrorism Bill 2000 and, in particular, sought to form an opinion as to whether the Bill will increase, or decrease, the effective implementation of treaties and other international instruments on human rights. In pursuing this responsibility, the Commission has also had in mind the opinions of the Supreme Court, notably in Vishaka & Others vs. State of Rajasthan & Others (1997(6)SCC 241 and Apparel Export Promotion vs. A.K. Chopra (1999(1)SCC 759) in respect to this matter. In the former case, the Court took the view that it was
" .. now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law."
In the latter, the Court held
"In cases involving violation of human rights, the courts must ever remain alive to the international instruments and conventions and apply the same to a given case where there is no inconsistency between the international norms and the domestic law occupying the field."
6.7 The Commission has concluded that, set against these observations, the Prevention of Terrorism Bill, 2000 would hinder, rather than enhance, the effective implementation of treaties and other international instruments on human rights and that, in particular, the provisions of the Bill would not be in consonance with many provisions of the International Covenant on Civil and Political Rights (ICCPR) to which India is a State Party. Moreover, the meaning of the right to life with dignity in Article 21 of the Constitution of India must include the provisions of the international instruments on the subject because there is no inconsistency between them and the domestic law.
6.8 As in the case of the Terrorist and Disruptive Activities (Prevention) Act, 1987, this is especially so in respect of the following:
6.8.1 Raising of the presumption of guilt, and shifting the burden to the accused, to establish his innocence.
o Art. 14(2) of the ICCPR expressly requires that
· "Everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty."
6.8.2 Making confessions before a police officer admissible in evidence.
o The Commission is of the view that this would increase the possibility of coercion and torture in securing confessions and thus be inconsistent with Article 14(3) (f) of the ICCPR which requires that everyone shall be entitled to the guarantee of not being compelled to testify against himself or to confess guilt." This provision is consistent with Article 20(3) of the Constitution of India.
o It would also imperil respect for Article 7 of the ICCPR which categorically asserts "no one shall be subjected to torture or to inhuman or degrading treatment or punishment .." It may be recalled that this right is non-derogable under any circumstances, including times of war and public emergency that India has already signed the Convention against Torture on 14 October 1997, though ratification is still awaited.
6.8.3 Modifying the provisions of the Code of Criminal Procedure, particularly in regard to the time set for investigation and grant of bail.
o Article 14(3) (a) of the ICCPR requires that an accused
" . be informed promptly and in detail .. of the nature and cause of the charge brought against him," while
o Article 14(3)(c) of the ICCPR asserts the right
"to be tried without undue delay."
Further, Article 9(2) of the ICCPR states
"Anyone who is arrested shall be informed, at the time of his arrest, of the reasons for his arrest and shall be promptly informed of any charges against him;" while
o Article 9(3) asserts:
"Anyone arrested or detained on a criminal charge shall be promptly brought before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody ."
6.9 There are a number of other provisions of the Bill that would have a chilling effect on human rights, notable among them being Section 3(8) which provides for punishment for those in possession of information of material assistance in preventing the commission of a terrorist act. Read with Section 14, which gives powers to investigating officers to require individuals to furnish information in their possession, the Bill could gravely jeopardize the work of professionals such as journalists. The provision would also run counter to Article 19 of the ICCPR dealing with the right to the freedom of expression, which includes the right "to seek, receive and impart information and ideas of all kinds .." subject to certain restrictions, "but these, shall only be such as are provided by law and are necessary," inter alia, "for the protection of national security or of public order (ordre public), or of public health or morals".
6.10 Furthermore, the provisions of Section 37(1) of the Bill, which provide for immunity from legal proceedings and prosecutions against the Central and State Governments and officials acting "in good faith," are inconsistent with the provisions of Article 2(3) of the ICCPR, under which
"Each State Party to the present Covenant undertakes
a. To ensure that any person whose rights or freedoms are herein recognized as violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity."
The proviso to Section 37(1) of the Bill carries this inconsistency yet further, in that it provides a blanket immunity for
"any serving member or retired member of the Armed Forces or other para-military forces in respect of any action taken or purported to be taken by him in good faith, in the course of any operation directed towards combating terrorism."
Clearly, too, such a provision would adversely affect the already limited jurisdiction of the National Human Rights Commission under Section 19 of the Protection of Human Rights, 1993 to deal with complaints alleging the violation of human rights by members of the Armed Forces and, in consequence, further militate against the express purpose of that Act that the Commission should ensure the "better protection" of human rights in the country.
6.11 It is worthwhile to recall in this overall connection that, since the World Conference on Human Rights, held in Vienna in June 1993, the international community has been categoric in its assertion that
"The acts, methods and practices of terrorism in all its forms and manifestations .. are activities aimed at the destruction of human rights" (Paragraph 17 of the Declaration and Programme of Action).
Further, in a series of resolutions in recent years on "Human Rights and Terrorism", and in its 1994 Declaration on "Measures to Eliminate International Terrorism," the General Assembly of the United Nations has consistently taken the view "that terrorism, in all its forms and manifestations, wherever and by whomever committed, can never be justified in any instance, including as a means to promote and protect human rights." The General Assembly has also observed that "Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them." The General Assembly has therefore urged States to "enhance international cooperation at regional and international levels in the fight against terrorism in accordance with relevant international instruments, including those relating to human rights, with the aim of its eradication." Of these instruments, the International Covenant on Civil and Political Rights and the Convention against Torture, referred to above, are surely among the most important.
6.12 At a time when India is itself urging support for the adoption of a comprehensive International Convention on Terrorism, it is essential to recall these developments, and the stated need to abide by the international instruments on human rights, even while combating terrorism with view to eradicating this menace. It is also essential to recall that while an overall Convention on this subject is yet to be adopted, ten multilateral conventions have already been adopted on various aspects of terrorism, and that India is a State Party to each of these Conventions. These are the:
Convention for the Suppression of Unlawful Seizure of Aircraft, done at the Hague on 16 December 1970,
Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971,
Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973,
International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979,
Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 3 March 1980,
Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 24 February 1988,
Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on 10 March 1988,
Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, done at Rome on 10 March 1988,
International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997,
International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999.
6.13 It is important, both to the cause of human rights and to the fight against terrorism, that the measures required to be taken by the Government of India under each of these Conventions are fully and meticulously undertaken, both in terms of appropriate legislation, where this may still be needed, and in terms of other practical arrangements essential to the effective implementation of these Conventions.
6.14 CHECK ON FINANCING OF TERRORISM
One area where suitable law needs to be enacted is the area of financing of terrorism. The U.N. General Assembly in its resolution of 17 December, 1996 called upon States to take steps to prevent and counteract through proper domestic laws, the financing of terrorists and terrorist organisations whether such financing is direct or indirect through organisations which may be camouflaged as charities or which are engaged in unlawful activities such as illicit arms trafficking, drug-dealing and racketeering including the exploitation of persons for purposes of funding terrorist activities. Article 4 of the International Convention on the Suppression of Financing of Terrorism enjoins each State Party to adopt such measures as may be necessary to establish as criminal offence under its domestic law, the offence relating to financing of terrorism as set out in Article 2 and to make these offences punishable by appropriate penalties which take into account the grave nature of the offences. It is in this area that there appears to be a lack of appropriate legislation. Unfortunately, the present Bill is silent on this aspect. The Government needs to frame appropriate legislation in the light of this international convention.
For the above reasons, and consistent with the view that it took in respect of TADA, the Commission is now unanimously of the considered view that there is no need to enact a law based on the Draft Prevention of Terrorism Bill, 2000 and the needed solution can be found under the existing laws, if properly enforced and implemented, and amended, if necessary. The proposed Bill, if enacted, would have the ill effect of providing unintentionally a strong weapon capable of gross misuse and violation of human rights which must be avoided particularly in view of the experience of the misuse in the recent past of TADA and earlier of MISA of the emergency days.
This Commission regrets its inability to agree with the opinion of the Law Commission in its 173rd Report and recommends that a new law based on the Draft Prevention of Terrorism Bill, 2000 be not enacted. Such a course is consistent with our countrys determination to combat and triumph over terrorism in a manner also consistent with the promotion and protection of human rights.
New Delhi, 14 July, 2000
the existence of the Child Marriage Restraint Act, 1929, child marriages are still quite
rampant. The incidence of child marriages seems to be widely prevalent in the states
of Rajasthan and Madhya Pradesh and to a lesser extent, in the other States also.
Mean age of marriage for females has arisen from 13.2 years at the beginning of the
twentieth century to an average age of 19.4 years for both men and women combined, in 1994
(Women and Men in India 1996-97, Central Statistical Organisation, Department of
Statistics, Ministry of Planning and Programme Implementation, Government of India (dt.
29.1.98). Since the latter figure is an average of the combined ages of men and
women, the average for women is much lower than 19.4 years. In fact, some of the
private studies show that in Rajasthan in 1997, 60 per cent of girls were married before
the age of 14 and in the slums of Delhi, 77 per cent women were married before the age of
15 (See Vandana : Abolition of Child Marriage under Hindu Law : A plea for Protection of
Reproductive Rights of the Girl Child Delhi Law Review Vol. XXI 1999 p.
117). If at the end of a hundred years, this is the rise in the age of marriage for women,
a serious examination is required of the causes for the persistence of child marriage and
more particularly, about the effectiveness of the Child Marriages Restraint Act, which
came on the statute book as far back as in 1929.
The bad effects of a child marriage are obvious. First of all, it is a violation of the rights of the child, particularly the girl child, depriving her of opportunities and facilities to develop in a healthy manner, to obtain education and to lead a life of freedom and dignity. It also has disturbing consequence for the reproductive health of a child bride. It leads to a vicious circle of early pregnancy, malnutrition, maternal mortality and high infant mortality. Therefore, a child marriage not only denies the girl child control over her reproductive rights and damages her health but also prevents her from getting education and employment. In early maternity there are also greater chances of fetal deformity and there is a high risk to the mothers life. At the national level, child marriages create a longer legitimate reproductive life span and contribute to population explosion.
Various cultural factors have led to the persistence of this practice. These include low status of women in society and the anxiety of the parents to get the unwanted girl child married as early as possible to be relieved of the burden of looking after her. It is also believed that the more mature a girl gets, there are greater chances that she may not accept the choice made by her parents, or that she will not conform to the traditional norms regarding marriage, thus creating social problems for parents. Child marriages are an easy way out for parents who want their daughters to obey and accept their choice of a husband for them. There is also a belief that child marriage is a protection for the girls against unwanted masculine attention or promiscuity. Unless these beliefs are tackled, child marriages will continue to take place since they are seen as protecting parents and absolving them of all responsibilities towards their young daughters even though such marriages may do considerable harm to the young daughters. This is an area where the rights of the girl child need urgent protection.
The reason why the Child Marriage Restraint Act, 1929 has proved ineffective is because it has not seriously tackled the issue of child marriages, and has adopted an equivocal stand in that connection. Although originally, a child under this Act was defined as a male below 18 years, and a female below 14 years, this age has been revised upwards and all marriages where a male is below 21 years and a female below 18 years are considered as child marriages. While there is a rising of the age bar against child marriages, the remedies under the Act to prevent or punish such marriages remain as weak as before. The marriage is valid. The punishments are nominal. The punishment to a male over the age of 21 years marrying a child is simple imprisonment of three months and a fine. The punishment for solemnizing a child marriage is also the same and the punishment for a parent or guardian of a child for arranging such a marriage is also the same. Although offences under the Act are now to be treated as cognizable for the purpose of investigation, they are not to be treated as cognizable for other purposes. Even the power to issue an injunction prohibiting the marriage in contravention of the Act is circumscribed by the requirement that no injunction shall be issued unless the Court has previously given notice to such person and has given him an opportunity to show cause.
It is necessary, first of all, to provide for registration of all marriages whether religious or civil. Just as there are registers of births and deaths, there must be registers of marriages where any marriage in any form, performed within the area, must be registered. This would provide an authentic record of a marriage and would put an end to all disputes regarding the performance of a marriage. The register must have columns regarding the names of parties marrying, their age, their status (unmarried, divorced etc.), names of both parents of both sides, their addresses, method of performing the marriage (Hindu rites, Muslim marriage, civil marriage, etc.), the name of the person solemnizing the marriage, the date of marriage and the venue.
(1) The Child Marriage Restraint Act must be recast. In the first place, a responsibility must be placed under the Act on local administrative officers to prevent impending child marriages whether singly or in groups.
On certain days such as Akshaya Trutiya, it is well known that mass marriages take place. The local official should be empowered to move the court for prevention of such mass marriages by a general court order that may be communicated to the villages over the media, by publication or by beating of drums. For single marriages a specific injunction order can be obtained.
(2) All marriages that breach such an injunction will be void ab initio.
(3) There should be a provision in the Child Marriage Restraint Act (as in the State of Gujarat) for the appointment of Child Marriage Prevention Officers either for the whole State or for districts where it is known that child marriages are more prevalent.
(i) The Child Marriage Prevention Officer should be entrusted with the duty to prevent marriages being performed in contravention of the Act by taking such action as he might think appropriate, including initiation of proceedings in a Court for obtaining an injunction. This should be in addition to the duty imposed on the local administration to prevent such marriages and not in substitution of it.
(ii) It should also be his or her duty to collect evidence for the effective prosecution of persons contravening the provisions of the Act.
(iii) The Child Marriage Prevention Officer should also be entrusted with the duty of creating awareness of the evils which result from child marriages and educating people about the detrimental effects of such marriages on the health and wellbeing of children. In fact, an obligation should be cast on each State to set up a proper machinery in each of its affected districts for dissemination of proper information and for education being given to the people to wean them away from child marriages.
(4) In case of urgency, ex parte ad interim injunction can be granted without notice.
(5) It should also be open to others friends, well-wishers, NGOs, public spirited and respectable citizens to move the Court for an injunction.
(6) While a marriage in violation of an injunction order should be void, all other Child marriages should be voidable. A boy or a girl who was below the prescribed age at the time of his/her marriage should have the right to avoid that marriage at any time upto completion of one year after attaining the minimum age prescribed under the Act. For this purpose, a matrimonial petition will have to be filed through the next friend if the petitioner is a minor. He/she should have the right to engage his or her own lawyer for this purpose. Such a petition can also be filed by the guardian of the petitioner if he/she is a minor. But the minor will have a right to be independently represented and heard.
(7) When a girl seeks to avoid such a marriage, she should nevertheless be entitled to get maintenance from her husband as well as his parents or guardians until she remarries. This should be without prejudice to her right to be maintained by her parents/guardians and to live in the parents family home. The Court while granting a declaration should grant her appropriate reliefs in this connection.
(8) Any male who wishes to avoid such a marriage must deposit in court in advance at the time of filing the petition the full amount received by him/his family from the brides side in connection with that marriage, as also the marriage expenses incurred by the brides family. He must also pay maintenance to the wife until she remarries.
(9) No person who was of the prescribed age or above at the time of marriage can ask for avoiding the marriage under this Act.
(10) The punishment for contravening the provisions of the Act should be more stringent, particularly the punishment for those who solemnize such a marriage such as the priest. It will be the duty of the solemnizer to satisfy himself/herself regarding the age of the bride and the bridegroom before performing the marriage.
(11) The punishment of the parents or the guardians concerned should be more deterrent, but in the form of heavy fines.
(12) The offence should be made cognizable in every respect.
Right to health, a right inherent in every human being and integral to the dignity of the
person assured in Article 24 of UDHR, Article 12 of International Covenant on Economic,
Social and Cultural Rights, Articles 4 & 5 of CEDAW and the Directive Principles in
Articles 39 (f), 41, 43, and 47 of the Constitution, be expressly transformed and declared
as a fundamental right, in an expansive manner with an inclusive definition to encompass
within its ambit all facets of health touching human dignity, in Part III of the
Constitution. It is therefore recommended that right to health be declared as a
fundamental right and a suitable amendment to the Constitution be made to this effect.
2. While the right to health should be made a fundamental right, a co-relative duty also be cast on the State under Article 47 to be enforced through legislative or executive measures.
3. A comprehensive legislation be enacted covering all facets of health with specific emphasis on health rights of women during pregnancy and thereafter, as well as the childs right to nutrition and a healthy environment.
4. Considering that women's literacy plays a crucial role in spreading awareness about maternal anaemia and the remedial actions to be taken, the Commission recommends the setting up of a National Literacy Mission for women for improving the literacy of women at all levels in the country within a specified time-frame.
5. As the citizen will be able to realise his rights only through full awareness of what he is entitled to as also the factors contributing to healthy living, education of all children be made a fundamental right, in particular upto primary level and upto the age of 14 years. It is further recommended that girl children who are more vulnerable would need special care and be made eligible to free and compulsory education upto graduation.
6. The shares of education in the budgets of most States have declined significantly from 4.1% in 1990-91 to 3.8% in 1995-96. The NHRC recommends increase in the share of public expenditure on education, especially education of women in the budget.
7. Since awareness cannot come without education on human rights, human rights education be made part of the curriculum both in formal and non-formal education at all levels.
8. Awareness programmes on maternal anaemia should be taken up through the ICDS programme by organising workshops and training programmes covering all panchayats. The ICDS blocks may be categorised into groups based on the high incidence of maternal anaemia and levels of women literacy and their performance monitored closely.
9. The subjects of maternal health and anaemia should form a part of all educational / vocational training and employment programmes specially designed for women both by the Central and State Governments.
10. As effective participation at the grassroots level is necessary for the success of the programme of anaemia eradication, the programme should be extensively decentralised.
11. It was unanimously recognized on the basis of comprehensive scientific reviews presented in the Workshop that prevalence of Iron deficiency anaemia was alarmingly high in the country. Maternal mortality rate for all India is 408 per 100,000 births. However, in the larger northern states, it is almost twice as high. In mothers anaemia causes high maternal mortality, high incidence of low-birth weight of children and related high infant mortality among the newborns. It is also recognised that the surviving low birth weight babies may end up with compromised mental and physical development. Iron deficiency anaemia in its worst form is prevalent among pregnant and adolescent women as well as pre-school children. The populous northern states, and particularly the poorer sections of these states, are the most severely affected and these vulnerable areas and sections of the society require immediate attention.
12. There is urgent need to promote the out-reach of ante-natal care to the rural community. Prevention of maternal anaemia, the single most important cause of maternal mortality, is the most effective way to reduce maternal mortality rapidly in the country. The groups agree unanimously with the professional and scientific opinion that supplementation with iron-folate tablets is the most effective and urgently actionable method for anaemia prevention in the country.
13. The bio-availability of iron in Indian diet is poor. There are a number of Iron absorption inhibitors present and further iron absorption promoters like Vitamin C are deficient in Indian diet. Currently, cereals account for 56% of the iron intake in the Indian diet, while only 5% is accounted for by green leafy vegetables. Widespread dissemination of all relevant information is an urgent need to improve public awareness. There is also a need to promote iron fortification of the peoples diet through additional/alternative measures such as double fortification of salt (with iron and iodine) as well as iron fortification of popular and widely consumed food items such as pickles, condiments, wheat-flour, etc. The feasibility of the technology developed by CFTRI for wheat-flour fortification be examined on an immediate basis. The technical and scientific feasibility of using pickles and chutneys as vehicles of iron fortification in the Indian context be examined in-depth for early implementation.
14. Prevention of anaemia using some approaches developed in Ayurveda seems promising. Therefore it is recommended that research and development work may be undertaken to promote these approaches. If successful, it will provide culturally preferable and popular anaemia prevention methods to the people at large. Research work is also to be undertaken to enhance the bio-availability of iron in popular cereals like rice as a long-term solution to this problem. Due notice has to be taken of certain of the traditional methods of preparing and processing foods such as soaking, malting, baking, etc. which are scientifically known to enhance the bio-availability of iron. These practices need to be promoted and knowledge about these practices needs to be disseminated far and wide as they will have easy acceptability with the public at large. It is also necessary to undertake detailed studies to establish the role and relevance of haemopoitic factors (Vitamin B12) in anaemia prevention as a large population of the country has vegetarian diet habits and this research can benefit the vegetarians.
15. The anaemia prevention programme needs not only to be decentralised but non governmental organisations should be involved extensively to secure widespread peoples participation so that this programme is made into a truly peoples movement.
16. The Conference recommends organisation of workshops, seminars in all colleges for women/high schools for girls with a view to create awareness on health issues relating to women, with special reference to maternal anaemia.
17. The Conference suggested that a data bank may be specially set up in the NSSO for collection and maintenance of data of women's health including that relating to maternal anaemia along with the percentage of literacy of the women, village/panchayat/district-wise in the country which will enable effective monitoring of maternal anaemia on the basis of data collected directly from the fields.
18. The National Human Rights Commission may play an active role through continuous interaction with government agencies, NGOs and other interested citizens through periodic consultations and reviews.
19. Media campaign needs to be undertaken against the ill effects of fast food and for the propagation of healthy, indigenous and time tested food habits.
20. The Commission also recommends taking measures for ending all types of discrimination against girl children especially relating to their health and education.
Clear link between Human Rights, HIV/AIDS, and Development
Harmonization between individual rights
and community interests
Consent and testing
Discrimination in Health Care
Discrimination in Employment
Women in vulnerable environments
Children and Young People
HIV/AIDS may not be treated only as a health problem, but should be recognized as a social
problem too. Therefore, a holistic approach is required.
2) There should be wide publicity about the causes and spread of HIV/AIDS especially at the grass root level as most of the people, even the educated, are not aware of the full facts.
3) Wide publicity is needed for testing facilities available at various places in the country.
4) After testing positive, most people do not know what to do further. There should be publicity also for medical facilities available at various places in the country.
5) Setting up research-cum-rehabilitation centers with the help from public/private sector by voluntary organizations, public/private institutions.
6) Government to encourage research on alternate medicines available within indigenous systems; public sector drug companies may take up research for development of cheaper vaccines/medicines for treatment of the disease.
7) Prescription of best medical practices for medical professionals and health workers dealing with the problem.
8) Protection of medical professionals and health workers.
9) Spread of information through media and cinema, training/awareness programmes amongst panchayats, schools and universities about the HIV/AIDS.
10) Close net-working amongst the NGOs and the hospitals dealing with the problem.
Issue of guidelines to hospitals, NGOs, medical professionals, experts, social workers etc. dealing with the problem.
Annexure - VIII
Comments/suggestions on the draft long term Action Plan [2000-2005] for implementation of the National Policy on Older Persons