Procedural Guidelines related to women

Free Legal Aid and Services

• Article 39-A of the Constitution of India provides for free legal Aid for the poor and weaker sections of the society to ensure justice thereof.
• In the year 1987, the Legal Services Authority Act was enacted by the Parliament (that came into force on 9th November, 1995) with an objective to establish a nationwide uniform network for providing free and competent legal services to the weaker sections of the society on the basis of equal opportunities.
• Article 14 of the Indian Constitution makes it obligatory for the state to ensure equality before the law and provide for a legal system which promotes justice on the basis of equal opportunities to all.
• The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authority Act, 1987 to monitor and evaluate the implementation of legal services under the Act.
• The Chief Justice of India is the Patron-in-Chief of NALSA.
• In every State, a Legal Services Authority and in every High Court Legal Services Committee has been constituted.
• Further, at each District Level, District Legal Services Authority and Taluka Legal Services Committees have been constituted to give effect to the policies and directions of the NALSA and to provide free legal services to the people and conduct Lok Adalats in States.
• The State Legal Services Authorities are chaired by Honble Chief Justice of the State and District and Taluka Legal Services Committees are chaired by Judicial Officer of the District or the Taluka.

Functions of National Legal Services Authority (NALSA)

• To provide free Legal Services to the eligible person,
• Following persons have been identified for being eligible to avail the free Legal Aid Services:
• Women and children;
• SC/STs;
• Industrial Workers;
• Victims of massive disaster/violence and natural calamities;
• Disabled persons;
• Persons in custody;
• Persons whose annual income does not exceed Rs. 1,00,000/;
• Victims of human trafficking, etc.

Free Legal Aid and Services include

• Providing of an Advocate for legal proceedings
• Payment of court fees/process fee or all other charges payable incurred in connection to legal proceedings,
• Preparation of Appeals/ Paper books, including printing and translation of documents in legal proceedings.

NALSA has also initiated Legal Aid Council Scheme to provide meaningful legal assistance to under trial prisoners who due to lack of resources or other disabilities cannot engage a council to defend them.

• Now Legal Aid Councils have been attached to each Magistrate Court to provide assistance and defend a person who is not able to engage a council right from the stage he/she is produced in the court by the police.
• The target groups are also to be informed that NALSA has also formulated a Counseling and Conciliation Scheme for the settlement of disputes through negotiation and conciliation in order to guide and motivate the migrants to resolve their disputes amicably.
• Counseling and conciliation centers are being set up in all the districts of the country.

Legal Literacy Programme

NALSA has formulated a strategy to

• Provide basic and essential knowledge to the vulnerable groups so that they can understand and know the scope of their rights provided under the law,
• Organise Legal Aid camps for educating the weaker sections of the society.,
• Settle their disputes though ADR mechanism,
• Organize meetings, seminars and workshops connected with the legal services programmes and
• To develop audio-visual spots, documentary films, etc. for publicity.

Legal Aid Clinics

• Legal Aid Clinics are being established in all Gram Panchayats similar to (primary Health Centres) by engaging competent lawyers as legal Consultants in the Clinics.
• A wide publicity is required to be given about these clinics with the help of Local Self Government.
• The Urban target groups are to be informed that legal aid clinics are available in all Law Collages and all Law Universities and students are encouraged to adopt remote village areas for providing legal assistance to the poor and needy.

Public Interest Litigation

• Public Interest Litigation is a litigation for the protection of the public interest.
• Article 32 of the India constitution contains a tool which directly joins the public with Judiciary.
• A PIL may be introduced in a court of law by the court itself (suomotu), or by public spirited citizens.
• For the exercise of the court’s jurisdiction, it is not necessary for the victim of violation rights to personally approach the court.
• In a PIL, the right to file suit is given to a member of the public by the courts through Judicial Activism. The member of the public may be Non-Governmental Organization, (NGO), an Institution or an Individual.
• The Supreme Court of India has defended Public-Interest Litigation by stating that Judiciary has stepped in to give directions because due to executive in –action, the laws enacted by Parliament and the State Legislatures for the poor since independence have not been properly implemented.
• The concept of Public Interest Litigation (PIL) is in consonance with the principles enshrined in Article 39-A of the Constitution of India to protect and deliver prompt social justice with the help of Law.
• Before the 1980 s. Only the aggrieved party could approach the courts for justice. After the emergency era the High Court reached out to the people, devising a means for any person of the public (or an NGO) to approach the court seeking legal remedy in cases where the public interest is at stake.
• Justice P.N. Bhagwati and Justice V.R. Krishna Lyer were among the first judges to admit PILS in court.
• Filling a PIL is not as cumbersome as a usual legal case; there have been instances when letters and telegrams addressed to the court have been taken up as PIL and heard.

Arrest

• A person is said to be arrested when a police officer or a citizen takes him into custody or otherwise substantially deprives him of his freedom of action so that he may be held to answer for a crime or an offence.
• The police in India do not have any power to detain anybody for questioning unless he is arrested with or without warrant.
• The most basic provision relating to arrest has been incorporated in the Article 21 of the Constitution. It lays down that no persons can be deprived of his/her right to liberty, except in accordance with the procedure established by law.
• Article 22 (1) of the constitution provides, “no persons who is arrested shall be detained in custody without being informed, as soon as maybe, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.”

Right to Arrested Women

Every woman must be aware of some basic rights relating to arrest to ensure her wellbeing while she is in custody.

• She must be informed about the grounds for her arrest and full particulars of charges levied on her for that matter of fact.
• She has right to see the warrant if arrested under warrant (Sec.75 CrPC)
• She has the right to privacy while recording statement.
• She has the right to consult the legal practitioner of her choice and to be defended by him.
• The accused must be produced before the magistrate within 24 hours of arrest.
• It is the right of the arrest to inform of her arrest to either her relatives or to her friends.
• A woman cannot be arrested before sunrise or after sunset except with the prior permission of a magistrate.
• A woman can only be taken into custody in presence of a woman police officer as far as practicable and the arrest must be affected with proper dignity.
• No beatings or force can be administered while arresting a female accused.
• The search examination of the female prisoners shall be carried out by the matron under the general or the special order of the medical officer.
• The female prisoners have the right to live separately from the male prisoners.
• All the prisoners have the basic human rights such as hygienic food, shelter, medical facilities and facilities of reading and writing.
• If arrested soon after a child birth women cannot be taken before the magistrate until they are in proper conditions to travel.
• Women prisoners have the right to speedy trial.
• Examination of body of an arrested person by a registered medical practioner at the request of the arrested person in case of torture and maltreatment in the lock ups.
• The legal assistance to a poor or indigent accused, arrested and put in jeopardy of life or personal liberty, is a Constitutional imperative mandated not only by Article 39-A but also by Articles 14 and 21 of the constitution.
• Rights of the pregnant women in jails (pre-natal and post-natal care, Gynecological examination etc.).

Arrest Warrant

• It is a written order issued by a court to a police officer to arrest and produce an offender or to search his premises for a particular thing.
• A police officer who executes the warrant shall notify the substance thereof to the person to be arrested and if he demands, shall show him the warrant.
• He is expected to bring the required person before the court without unnecessary delay.
• A warrant of arrest should be in writing, signed by the presiding officer of the court and should bear the seal of the court.
• It should also contain the name of the accused, his address and indicate the offence for which he is charged.
• If any of these factors is absent, the warrant is not in order and arrest made in execution of such warrant is illegal.
• Warrants are of two kinds:
• Bailable and
• Non-bailable

Arrest without Warrant

• A police officer has power to arrest a person without warrant if he is suspected of having committed a cognizable offence.
• Normally in non-cognizable offences a police officer cannot arrest a person without a warrant from magistrate.
• In the first schedule of the Criminal Procedure Code (CrPC) offences have been classified and enumerated as cognizable and non-cognizable. The more serious offences such as murder, rape, robbery, theft, and waging war against the state etc. are cognizable.
• When can a person be arrested without a warrant?
• If he is involved in a cognizable offence or if there is a reasonable suspicion, complaint or information that he has committed a cognizable offence;
• If he possesses implements of house breaking;
• If he possesses stolen property;
• If he is an proclaimed offender;
• If he obstructs a police officer on duty;
• If he escapes from a legal custody;
• If he is a deserter from the army, navy or air force;
• Where he is out of India, if he commits an offence punishable under any extradition;
• Under the fugitive Offenders Act;
• If he is a released convict who breaks the restrictions imposed by the court on his movements;
• If he is suspected of preparing to commit a cognizable offence; o if he is a habitual criminal;
• If he, after committing a non-cognizable offence in the presence of a police officer, refuses to give the police his name and address or has given him a false name and address;
• If he is required by a police officer of another police station who suspects that he has committed a cognizable offence.

Bailable / Non-Bailable Offences

Bailable Offences

• When any person accused for a bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in custody of such officer or at any stage of the proceedings before such court to give bail, such person shall be released on bail.
• In case of a bailable offence bail is a matter of right.
• If such officer or court, thinks it fit such person maybe released on a personal bond without sureties.
• In case of bailable offence, one has to only file the bail bonds and no application is required.

Non - Bailable Offences

• When any person accused for a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, it is a matter of discretion of the court to grant or refuse bail.
• On appearance the arrested person is brought before a court other than the High Court or Court of Session, he may be released on bail on the direction of Court if such a person is:
• Under the age of sixteen years or is a woman or is sick or infirm and gives an undertaking that he shall comply with such directions as he may be given by the Court.
• And shall not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
• And shall not be released if such offence is Cognizable Offence and he had been previously convicted of an offence punishable with death or imprisonment for life or imprisonment for seven years or more, or he has been previously convicted on two or more occasions of a non-bailable and cognizable offence.
• When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail, the court may impose any condition which the court considers necessary in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter or in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or otherwise in the interests of justice.
• An officer or a court releasing any person on bail shall record in writing the reasons for doing so.

Family Court

• The Family Courts Act, 1948 was passed to facilitate satisfactory resolution of disputes concerning the family through a forum expected to work expeditiously in a just manner and with an approach to ensure maximum welfare of society and dignity of women.
• There are cases dealing with broad spectrum of issues such as family matters and property which continue for generations (ranging from 7 years to 30 years).
• In such a scenario, the channeling of cases to different courts set up specifically for this purpose not only ensures their speedy disposal, but also ensures that the cases, being dealt with experts in courts specifically set up for this purpose are dealt with, more effectively.
• The aim of the family courts is to form a congenial atmosphere where family disputes are resolved amicably.
• There are issues like alimony which became the topic of great controversy and cause great harassment to families.
• The main purpose behind setting up these courts was to take the cases dealing with family matters away from intimidating atmosphere of regular courts and ensure that a congenial environment is set up to deal with matters such as marriage, divorce, alimony, child custody etc.
• The family courts are equipped with counselors and physiologists who ensure that the disputes are handled by experts.
• The role of the counselors is not limited to counseling but extends to reconciliation and mutual settlement wherever deemed feasible.

Procedure followed by the Family Courts

• The Family Courts are free to evolve their own rules and procedure, and once a Family Court does so, the rules so framed override the rules of procedure contemplated under the Code of Civil Procedure.
• Special emphasis is put on settling the disputes by mediation and conciliation and to give priority to mutual agreement over the usual process of adjudication.
• The most unique aspect regarding the proceedings before the Family Court are that they are first referred to conciliation and only when the conciliation proceedings fail to resolve the issue successfully, the matter is taken up for trial by the court.
• The cases are kept away from the trappings of a formal legal system.
• The Act stipulates that a party is not entitled to be represented by a lawyer without the express permission of the court.

Crimes against Women Cell

• The crimes against women cell was set up in 1983 at the central level in the Delhi Police.
• The need for a gender-specific police response had been felt for some time earlier due to the following reasons:
• Low status of women,
• Little inclination to take their problems to police stations staffed largely by male police officers who did not show sensitiveness towards female victims.
• In 1986, separate cells on similar lines were set up in each of the nine districts of Delhi. Most importantly, the central Crimes against Women Cell was provided with enhanced manpower, infrastructure and responsibilities.
• Counseling of families is an essential part of the functioning of these cells.
• Other cities and states in India have set up similar units within their police forces with some southern states experimenting with all woman police stations to provide a more enabling environment for women complaints.

Mahila Courts

• Mahila Courts are specialized courts set up to dispense justice to women.
• They speedily deal with and dispose off cases pertaining to women fighting legal battles following matrimonial discord.
• Mahila or Women Courts have been established as forums in which women, with or without their small children, seek quick relief in disputes for shelter and for financial assistance.
• Mahila Courts are headed by experienced women judges and magistrates and the staff employed in such courts is also predominantly female. They are headed by a judge of the rank of Additional Chief Metropolitan cum Assistant Sessions Judge, who too, is a woman.
• These courts deal exclusively with cases pertaining to offences against women such as cases relating to grant to maintenance, cases dealing with assault or criminal force and words or gestures intended to insult the modesty of a woman.
• At the Session level, Mahila Courts deal with the cases of Kidnapping, procuring minor girls for the purpose of prostitution, rape and cruelty by husband or in-laws.
• The Metropolitan Magistrate in these courts are assigned cases relating to molestation, rape, kidnapping and also of Domestic Violence.
• These courts serve the purpose of rendering justice in criminal matters pertaining to women victims with great sensitivity.
• The procedure followed in these courts is informal and comfortable for women. They can shed their inhibitions and depose freely in the presence of women judges, who are more sensitized towards females and their inherit nature.
• These courts also provide a platform to women where they can negotiate their claims. Mahila Courts ordinarily hold criminal trials but at times conciliation proceedings are also organized in order to preserve the family fabric.

National Commission for Women

The National Commission for Women was set up as statutory body in January 1992 under the National Commission for Women Act, 1990 with a mandate to safeguard the constitutional rights of women. It is concerned with advising the government on all policy matters affecting women.

The objective of the NCW is to represent the rights of women in India and to provide a voice for their issues and concerns.

The functions of the Commission are as follows

• Investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws;
• Present to the Central Government, annually and at such other times as the commission may deem fit, reports upon the working of those safeguard;
• Make in such reports, recommendations for the effective implementation of those safeguards for improving the conditions of women by the Union or any State;
• Review, from time to time , the existing provisions of the Constitution and other laws affecting women and recommend amendments thereto so as to suggest remedial legislative measures to meet any lacunae, inadequate or shortcomings in such legislation;
• Take up the case of violation of the provisions of the Constitution and the other laws relating to women with the appropriate authorities;
• Look into complaints and take suo moto notice of matters relating to –
• Deprivation of women’s rights;
• Non-implementation of laws enacted to provide protection to women and also to achieve the objective of equality and development;
• Non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and ensuring welfare and providing relief to women, and take up the issues arising out of such matters with appropriate authorities.
• Call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women and identify the constraints so as to recommend strategies for their removal;
• Undertake promotional and educational research so as to suggest ways of ensuring due representation of women in all spheres and identify factors responsible for impeding their advancement such as lack of access to impeding their advancement such as lack of access to housing and basic services, inadequate support services and technologies for reducing drudgery and occupational health hazards and for increasing their productivity;
• Participate and advise on the planning process of socio-economic development of women;
• Evaluate the progress of the development of women under the Union and State;
• Inspect or cause to be inspected jail, remand home, women’s institution or other place of custody where women are kept as prisoners or otherwise, and take up with the concerned authorities for remedial action, if found necessary;
• Found litigation involving issues affecting a large body of women Similarly at the state level also Commission for Women exist with the same objectives and functions. The Resource Person must appraise the target groups about the procedure to approach the Commission.

National Human Rights Commission, NHRC

• The National Human Rights Commission (NHRC) of India is an autonomous public body responsible for the protection and promotion of human rights.
• “Human Rights” means the rights relating to life, liberty, equality and dignity of an individual guaranteed by the constitution or embodied in the International Covenants and enforceable by courts in India.

Functions of NHRC

• Proactively or relatively inquire into violations of human rights or negligence in the prevention of such violation by a public servant.
• By leave of the court, to intervene in court proceeding relating to human rights.
• Visiting any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the imamates and make recommendations.
• Reviewing 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.
• Reviewing the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures.
• To study treaties and other International instruments on human rights and make recommendations for their effective implementation.
• To undertake and promote research in the field of human rights.
• To engage in human rights education among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, media, seminars and other available means.
• Encourage the efforts of NGO s and instructions working in the field of Human Rights.

Source : National Commission for Women