The phrase Special Legislation
connotes a piece of legislation which
applies to a particular class of person, class or thing. Special Legislation is
enacted when the uniform or general law is unable to control the consequences that challenge the social order.
Hence Special Legislation
has a well defined intent and an extent of
operation on a specific person, class or thing it seeks to fortify. The term
women's rights encompasses many different areas, making it among the most
difficult areas of law to define.In India the criminal jurisprudence came
into existence at the time of Manu.Crime against women can take different
forms, depending on the socio-cultural context of different societies.
In India, a wide extent of crime is committed against women in several domains.
The paramount convention which for the first time recognized such discriminatory
crimes was The Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) adopted by the United Nations General Assembly 1979 which
is often described as International Bill for Rights of Women. India ratified the
aforementioned convention on 9th July, 1993. The cardinal principle that
followed was that now Special Legislation could be enacted to bring the
convention in operation in pith and substance.
The stance of Supreme Court was unveiled in C. MasilamaniMudaliar and Others
v. The Idol of Swaminathaswami Thirukoli and Others
 when it reiterated a
United Nation Report 1980 Women constitute half of the world population,
perform nearly two-third of the work hours, receive 1/10th of the world income
and own less than one-hundredth percent of world's property.
This international picture was not only astonishing for a modern world but also
demanded stern action to end such order prevalent in the society. With the state
of affairs goingawry, the government decided to legislate over some specific
areas like domestic violence against women, indecent representation of women and
consent when terminating a child. The above-mentioned are just some domains to
name a few which have incidental effects.
The Universal Declaration of Human Rights also emphasized on equality in dignity
and rights which are endowed. Article 1 of the Universal Declaration of Human
Rights states that All human beings are born free and equal in dignity and
rights.Hence the plight of equality is well recognized internationally but
the problem which subsists is ratification of the same.
Need For Special Legislation(S)
The Constitution of India enshrines Article 15 Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth. (2) No citizen shall,
on grounds only of religion, race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or condition with regard to.
The Special Provision for women is made to improve women's participation in all
activities under the supervision and control of the State.
Hence Special Provision for women is protected by Article 15(3) which does not
prevent State from making any special provision for women and children. The word
'discrimination' under Article 15(1) involves a connotation of unfavorable
biasness. The word unfavorable biasness was explained in the case of Narasapa
in the context that discrimination based any grounds which
infringe any single or multiple fundamental rights such any act shall be deemed
bad in law. The validity of the impugned acts is to be adjudged by the method of
its operation and its effect on the fundamental right involved.
Increasing cases of Domestic Violence against women:
could be noted in several reports published by the government or any private
research entity. The constant increase in cases reported is a sign of awareness.
The apex court had recognized domestic violence as a ground for divorce way back
but the criminalization of the same was done only at a later stage. The
226th Report of the Law Commission of India was a great leap forward in
expanding the scope of Domestic Violence Act with inclusion of examination why
criminal liability is necessary.
The National Crime Records Bureau has recorded the highest number of crimes
committed against women during 2011-2015. There are two primary reasons
affixed to it, firstly the ambit of the specific and general legislations which
are increasing day by day because of judicial activism and secondly, the
awareness amongst women in rural India which has increased manifolddue to the
efforts of the government and Non-Government Organizations. Hence to control,
bifurcateand expedite such cases specific technical legislations are much
Surge cases of Dowry Death:Crime Clock 2005
 stated that in every 77 minutes one dowry death is
reported. This appalling fact depicted the poor implementation of Dowry
Prohibition Act, 1961 which was prevalent for over four decades. In 1986, a new
offence of Dowry Death was inserted in the Indian Penal Code as section 304B
by the Dowry Prohibition (Amendment) Act, 1986 (43 of 1986). The flaw which
was adjudicated in the case of Raju v. State of Haryanathat 304B of the
Indian Penal Code should be supplemented with S. 302. Hence a special provision
could be parallel to a general provision under the Indian Penal Code.
Denial and revocation of job on basis of gender:
The argument for anti-discrimination law can be traced from the innate provision
of Article 15 of the Indian Constitution. The Apex Court in Air India v.
NargeshMeerzaheld that the impugned provision that an Airhostess shall
retire at the age of 35 unless the Managing Director extends the term of
employment up to 10 years was held unconstitutional. The primary reasoning
surfaced by the court was that it was an arbitrary, cruel and callous
clause, which infringes Article 15(1) of the Indian Constitution.
has been a cornerstone of our Indian Judiciary, women too face such
unprecedented delays. To avoid such delays special legislation has a bar of
limitation and provision for additional specialized courts dealing that subject
only. The Supreme Court has defined the limitation period in which the aggrieved
party is required to file a complaint. For instance under the Domestic Violence
Act an aggrieved party cannot file a complaint when an alternate relief is
already filed. Such alternate relief could be divorce or judicial separation.
The Supreme Court has often condoned such delays; in the case of Ram NathSahu v.
Gobardhan Sao and Othersa reference to PRS Legislative Research was
highlighted in which the pendency of cases was shown. Furthermore, pendency of
cases in the Supreme Court till March 2016 was around 59,595 cases.
Specifics Of Some Special Legislation
Every legislative action has a motive to complement, in the arena of protection
of women there are various legislative actions with a specific effect. The
primary function of such legislations is to provide special protection to women
from a specific gender sensitive crime.
Some important enactments to regulate gender sensitive crimes:
- The Protection of Women From Domestic Violence, 2005
The comprehensive enactment describes domestic violence as actual or threat
to abuse physical, sexual, verbal, emotional and economic. Every woman who
is living in a domestic relationship is entitled to bring a claim under this
Act. Domestic Relationship is defined under section 2(c) of the act whereas it
states a relationship between two person who live or have, at any point of time,
lived together in a shared household, when they were related by consanguinity,
marriage, or through a relationship in the nature of marriage, adoption or are
family living together as a joint family.
In Preetam Singh v. State of Uttar
Pradesh the Allahabad High Court explained the term Domestic Violence in
the pretext of this enactment, any act, omission or commission or conduct of the
respondent shall amount to domestic violence if it constitutes physical, sexual,
emotional or even economic abuse on the 'aggrieved party'.
This enactment has clearly outlined the functions of Police officers, Service
Providers and Magistrates under section 5 of the Act. Another corner stone of
this enactment is the power and authority which the Protection Officers exercise
under section 8. The appointment of Protection Officers is to be made by the
State Government in adherence of the Guidelines issued by the Central
Government. Certain conduct which the government should employ is publicity,
training and protocol by advertising this act through public media.
Alternate Reliefs which could be contested by the aggrieved party:
- Claim for compensation or damages by the aggrieved party under section
12(1). The claim has to be disposed within 60 days; this speedy method is
often lauded by the higher courts which pleas for revision of such decrees
are being contended. Often in the hastiness to dispose the application
within 60 days the merits of the case is not given due consideration.
- Women's right to reside in the shared household. The aggrieve party may
continue to cohabit in the shared household as a matter of right, guaranteed
by section 17 of the Act.
In Nishant Sharma v. State of Uttar Pradesh the court adjudicated upon the
ambit of section 17 and held that it shall extend to the joint family residence
which is stated as 'Shared Household'.
- Application for matrimonial relief under section 20 of the Act. The
aggrieved party through an application may demand the costs incurred by loss
of earnings, medical expenses and loss of property. Furthermore nothing
shall restrain the aggrieved party to claim maintenance under section 125 of
Criminal Procedure Code, 1973.
The Immoral Traffic (Prevention) Act, 1956The Apex court in Vishal Jeet v. Union of India explained the term Immoral
Traffic in the pretext of this enactmenta flesh trade which is an attempt to
malign the moral and societal values.
The objective of this act is to curb
and abolish traffic of women and children who are compelled to enter into flesh
trade as an organized means of living.
This act has distinctly made comprehensive provisions about punishment of
keeping a brothel and earning a living by practice of prostitution. Section 3 of
the Immoral Traffic Act dwells with the same, any landlord, owner or lessor who
has adequate knowledge that his/her premise is being used for such immoral
purpose shall be punished in accordance. However, knowledge and willful gainmust
be proved in such allegations leveled.
A provision of corrective institution is also instilled in the act. Section 10
of the act specifies about offenders who are charged under section 7 and 8 have
a stipulated period of2 years but not more than 5 years to stay at a corrective
institution. The primary intent to set up a corrective institute is to
rehabilitate and empower the women with a skill set which suffices her living
and for children secondary or higher secondary education is given utmost
Dowry Prohibition Act, 1961The dowry system can be traced back to the seventh form of Hindu marriage known
as Brahma Marriage. Lord Brahma explained the concept of dowry as a gift of
personal belongings to the newly wed girl.
This gift of her personal belonging
would make her feel comfortable in her matrimonial home and help her to initiate
a bond with the new vicinity. Though the interpretation changed with the changing
times, in the late 20th Century dowry meant the valuable security which the
newlywed girl brings from her parental home. The enactment contains only ten
sections with specifically deal with dowry and the punishment for abetting or
committing such crime. The act prohibits giving or taking of dowry.
- Supplement of Indian Penal Code S.406& 498A with S. 3 & 4 of Dowry
Prohibition Act, 1961.
The State often levies the abovementioned sections in a complaint of dowry
and prosecutes the accused parties accordingly. These supplementary sections
are imposed because there is a presumption that harassment for dowry is
equivalent to solicit taking of dowry.
Hence every complaint of dowry will fall within the ambit of this act. The
statement of objects and reasons for the enactment of the Dowry Prohibition
Act, 1961 would reflect that the Act is enacted to prohibit the evil
practice of giving and taking dowry.
However, while dealing with the salient features of the Act that introduced
the amendment, it has been stated that the statement made by the person
aggrieved by the offence shall not subject him to prosecution under the
These are some enactments which specifically deal with women and crimes to which
they are subjected.
Low Conviction Rate In Crimes Committed Against Women
The social wrong theory
 postulates that criminal law originated as
a rational process of unified society. In 2016, all the crimes reported against
women resulted in a miniscule 19% conviction rate.The Ministry of Home
Affairs, Government of India had furnished the specifics on 8th August, 2017
while answering an unstarred question. The total cases registered by women
were 3,40,826 and the conviction rate was mere 21.3% which even drops down when
a convict contests an appeal.
The low rate of conviction raised few concerns about the high pendency of cases,
low pace of trails and poor assistance provided to women. The Legal Service
Authorities Act, 1987 envisages special emphasis towards women who seek legal
aid. In spite of such efforts by the State the implementation is deficient.
Some grey areas were addressed by the J. S. Verma Committee while prescribing
certain amendments were the onus of proof was to shift and presumption of the
crime was to be presumed.
The Indian Evidence Act, 1872 was amended by inclusion of S. 114A which
presumed absence of consent in case of prosecution for rape. Furthermore the
amendment prohibited character assassination of the prosecutrix in cases of
rape under section 376 of the Indian Penal Code, 1860.
The Special Legislations have undoubtedly supported a framework which mitigates
special support to women in reporting such crimes.
The foremost difficulty woman in India face is pursuing a matter in court,
specifically once the report/complaint is filed. Statistically, out of every 10
cases relating to Dowry only 1 case is sentenced. These numbers depict the
flaws in implementing the ease that such legislations promise. The severity of
the crime against women is not given due weightage as the misuse of such
provision is often speculative.
The plight of women in criminal justice system has undoubtedly empowered women
to file and contend all of her causes including a cause in which the State is
also a party.
Specific Contrivance Or More Enactments?
Specific contrivances mean scope for implementation of various existing
provision, specifically contemplated for protection of women. According to the
Criminal Belief System, crime is a never ending interaction. The main cause
for such interaction is an ill motive supplemented with an action which society
deems more than a civil wrong. Certainly, in India not many gender specific laws
were enacted prior to independence essentially because the stature of women was
widely accepted by the society. The perception of the society evolved through
judicial activism, when the Judges encompassed the meaning of dignity and
fraternity inscribed in our constitution.
Such interpretations came in the light of social evils like dowry, child
marriage, immoral traffic etc, which violated dignity and fraternity of women
who ought to be protected by the constitution of India. Then slowly and
steadily more such provisions to uphold their dignity were framed and enacted.
Such legislations had a specific purpose which was to be achieved. Till, 2016
there are 7 primary specific legislations and several specific provisions
contained in the general legislations added through Criminal Amendments.
Though the Supreme Court in the case of Rajesh Sharma &ors v. State of Uttar
Pradesh & Anr
, stated in clear terms the misuse of 498A of the
Indian Penal Code which was rampant. Therefore to prevent such misuse the Apex
Court framed guidelines and specified the ill-use by the women and her relatives
as a tool for extorting a demand.
The foremost problem with more such enactment would be an implementation of the
same; the clear motive of the legislature may sway in helping the mala fine
intention of the victim
who prima facie appears to be the aggrieved
party. Hence the need for the hour is more such guidelines and rules of
procedure in implementing the existing special provisions for the protection of
women which specifies the method of trial and relief under such special
Special Laws in India have undoubtedly helped in addressing the crimes committed
against women, which were increasing in spite of exhaustive legislation which
subsisted throughout. The general legislations like the Indian Penal Code, 1860
are age old and does not inculcate the special needs of women like bar of
limitation and legal aid because of such lacuna's in general legislation the
special laws are preferred.
The reason for such special treatment and consideration towards women lie in the
plight of women in criminal justice system which is much feeble when compared to
men. However, there still exists a wide gap between the goals enunciated in the
Constitution, legislation, policies, plans, programmes, and related mechanisms
on the one hand and the situational reality of the status of women in India, on
The Criminal Guilt, states that committing a crime is one thing and proving the
same is entirely another thing. The primary flaw which thrives in Indian Lower
Judiciary is proving a crime through the trial and error mechanism which could
be influenced by various factors, to control such factors and to give due
benefit of doubt to the aggrieved party we have special legislation. Special
legislations cannot be replaced or repealed in such newfangled times, though the
judiciary needs to ensure that the ambiguity which leads to intentional
misuseceases. Such an ideal could only be achieved by judicial activism and a
restraint on judicial overreach.
Special laws like Protection of Women from Domestic Violence Act, 2005, Sexual
Harassment of Women at Work Place Act, 2013 are much needed in contemporary
times as it prioritizes the concerns of the society towards such social evils.
Collaterally, the amendments in general laws should have a specific procedure,
as any ambiguity could benefit the party guilty of such offence.
Award Winning Article Is Written By: Mr. Suyash Rastogi
- Diane Rosenfled, Women Right's Guide, Harvard Law School's, p-4 (2007).
- See Manu Institutes of Hindu Law Chapter VIII, on 'Judicature' and on
'Law, Private and Criminal', pp. 44, 380.
- MANU / SC / 0441 / 1996.
- Office of the United Nations High Commissioner for Human Rights, Article
1,(16th Dec., 2017). http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf
- M.P. Jain, Indian Constitution Law, 7th ed. 2010, p. 940.
- AIR 1960 Mys. 59.
- M.P. JAIN, INDIAN CONSTITUTION LAW, 7TH ed. 2010,p. 933.
- Law Commission of India, Report No. 226, (17th December, 2017, 04:22
- National Crime Records Bureau, Report 2015, (17th December, 2017,
- National Crime Records Bureau, Crime Clock 2005, (17th December, 2017,
- K.D. Gaur, INDIAN PENAL CODE, 5TH ed. 2013, p. 552.
- AIR 2011 SC 568.
- VikramShroff, Indian Laws on Employee and Workplace Discrimination and
Harassment, Volume 16 No. 2, 15
- AIR 1981 SC 1829.
- Dr S.C. Tripathi, WOMEN AND CRIMINAL LAW, 1ST ed. 2015, p. 17.
- Civil Appeal No. 1110 of 2006.
- The Supreme Court of India, Court News, Vol. XI Issue 1, Jan.-Mar.,2016.
- 2012 (8) A.D.J. 744 (All).
- The Protection of Women from Domestic Violence, s. 2, cl. a.
- Dr S.C. Tripathi, WOMEN AND CRIMINAL LAW, 1ST ed. 2015 p. 144.
- 2012 (6) A.D.J. 759 (All).
- AIR 1990 (3) SSC 318.
- Id at 7.
- Dr S.C. Tripathi, WOMEN AND CRIMINAL LAW, 1ST ed. 2015 p. 216.
- Ram Kali v. A.C. AgarwalAndAnr, 1964 CriLJ 722.
- The Dowry Prohibition Act, 1961, The Preamble.
- Act 43 of 1986(Amendment).
- Ajita David v. State, Crl. R. C. No 600 of 2008, p. 7.
- Sutherland,op.cit.,pp. 9-11.
- Shreya Shah, India Spend, http://www.indiaspend.com/viznomics/in-2016-19-of-crimes-reported-against-women-ended-in-convictions-79650(19th December,
- LokSabhaUnstarred Question No. 3619http://22.214.171.124/loksabhaquestions/annex/12/AU3619.pdf (19th December,
- S. 4(m), The Legal Services Authorities Act, 1987.
- The Criminal Law (Amendment) Act, 13 of 2013.
- Section 146 of the Indian Evidence Act, 1872: Questions in Lawful
Examination: when a witness is cross examined, he may be asked any question
(Provided if the offence under section 376(1), 376(2), 376(A), 376(B) or
376(C) it shall not be permitted to adduce evidence or to put such questions
in cross examination.
- Supra note 33.
- Criminal Belief System: An Integrated And Interactive Theory Of
- National Commission for Women, http://ncw.nic.in/frmllawsrelatedtowomen.aspx (20th December,
- Provisions in the Indian Penal Code,1860, 304B, 326A, 326B, 498A etc.
- Criminal Appeal No. 2013 of 2017.
- 498A. Husband or relative of husband of a woman subjecting her to
cruelty.�Whoever, being the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be punished with imprisonment
for a term which may extend to three years and shall also be liable to fine.
- Dr.SabaYunusandDr.SeemaVarma, Legal Provisions for Women Empowerment in
India, Vol. 3 Issue 5, International Journal for Humanities and Management
-Student, Amity Law School, Noida, Final
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