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Report No. 146

1.2. The Social evil.-

The social evil of sale of women and children has been growing in India during recent years1. While the Indian Penal Code contains a few provisions designed to deal with the disposal of persons below a certain age by way of sale or other mode of transfer, those provisions are confined to cases where the transaction is entered into, for one of the purposes specified in those sections. Where such a purpose does not exist or cannot be proved at the trial, these sections cannot be pressed into service. The Law Commission felt that the matter needed an examination, with a view to remedying any deficiency in the existing law that might be discovered as a result of such examination.

Truly speaking, no human being can be allowed to be treated as a chattel, in this twentieth century. Women and children, however, particularly need the protection of the law, because they are peculiarly vulnerable to exploitation. The Constitution of India specifically declares "rights against exploitation" as a part of the fundamental rights guaranteed by the Constitution, see in particular Article 23. The right against exploitation has figured before the Supreme Court in several cases2.

The right has been recognised and its provision for punishing its contravention laid down in several statutory provisions. Of course the fact that such prohibitions against specific practices were considered necessary does not mean that in legal theory those practices are regarded as valid. At the same time if the penal law is found to be defective in any respect it is obviously desirable that the position be looked into and such reforms as may be found necessary be considered. Accordingly, the present Report devotes itself to an examination of the law relating to sale of women and children and transactions analogous thereto with a view to suggesting reforms, if needed.

1. See Nihal Singh v. Ram Bai, AIR 1987 MP 126.

2. People's Union of Democratic Rights v. Union of India, AIR 1982 SC 1473; Sanjit Roy v. State of Rajasthan, AIR 1983 SC 328; Salal Hydroelectric Project v. State of J&K, AIR 1984 SC 177; Bandua Mukti Morcha v. Union of India, AIR 1984 (802) and Neeraja Chowdhury v. State of Madhya Pradesh, AIR 1984 SC 1099.

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