“It is perceived that the nonpareil methodology to explore about a civilization, culture and society is to try and understand more and more about its women.”
The word “Women” comes from the union of two words i.e. “Wo” which means “from” and Men, meaning thereby the women itself came from Men, but the male accorded himself to be superior and treated women as inferior in all walks of life. Ever since the history of India, the women in India have been striving to emulate with their male counterparts in what has been known as a conventional patriarchal society. The women always encountered rigid social ideology and expectations which lasted well into the mid-twentieth century. Most women didn’t have the opportunity to overcome this barrage of man-made obstacles and climb to the top. It thus became imperative to take certain ameliorative steps in order to improve the condition of women in this orthodox society.
Indian women have fought against the patriarchal Indian society and triumphed at many levels despite cases of rape, dowry deaths, female infanticide, sexual harassment at workplaces, female illiteracy, and similar problems are being rampant in Indian society. It was in this backdrop that the Committee on the Status of Women in India (hereinafter referred to as CSWI) led to the establishment of the National Commission for Women to fulfill the surveillance functions so as to facilitate redressal of grievances and to accelerate the socio-economic development of women. Thus, in light of the recommendations by CSWI and in order to uphold the mandate of the Constitution, in January 1992, the National Commission for Women (NCW), was set up as a statutory body under the National Commission for Women Act, 1990 (Act No. 20 of 1990 of Government of India) to carry out the mandate set out by the Act as well as CSWI.[1] Thereafter, the corresponding regulations i.e. “The National Commission for Women (Procedure) Regulations, 2005” were enacted which have added to its effectiveness.
The National Commission for Women Act, 1990 constituted the National Commission for Women as a statutory body. The first Commission was constituted on 31st January, 1992 and Mrs. Jayanti Patnaik was appointed as the Chairperson of the National Commission for Women. Section 3 of the Act enables the Central Government for the constitution of the Commission. It consists of one Chairperson, who is committed to the cause of women, five members from diverse fields and a member secretary who shall be an expert in the fields of management, organizational structure, sociological movement or a member of civil service of the Union. All the members of the Commission are nominated by the Central Government. Further, Section 4 of the Act lays down the term of office and conditions of service.
Keeping in view the mandate of the Act and regulations, the Commission has taken initiatives which brought transition in the functioning of the Commission. The NCW brought awareness amongst the women and equipped them with knowledge of their legal rights with a capacity to use these rights. One such event was legal awareness camp on “Reproductive Health Rights, Foeticide, Infanticide, PC & PNDT Act, 1994 and The Medical Termination of Pregnancy Act” held on 21-22nd September, 2012. The Commission has assisted women in redressal of their grievances through pre-litigation services involving efficacious delivery of justice to them by organizing Parivarik Mahila Lok Adalats (PMLA) in different parts of the country and free legal aid which is given through District Legal Services Authority (DLSA). Moreover, the Commission constantly reviews existing provisions of the Constitution and other laws relating to women and recommends periodic amendments thereto. The Commission reviewed laws such as Dowry Prohibition Act, 1961, PNDT Act, 1994, Indian Penal Code, 1860 and the National Commission for Women Act, 1990 to make them more stringent and effective. Apart, NCW organizes promotional activities from time to time to stimulate women and gather information about their status and recommend paradigm shift in their empowerment.
NCW through its various cells investigates and examines all matters relating to safeguards provided for women and devises a comprehensive strategy to tackle cases of violation of the fundamental rights of women under the Constitution and other laws. The Commission in numerous cases has taken cognizance of complaints made by vulnerable section of women and taken suo moto notice of such matters. Also, NCW delves for deprivation of women’s rights. The Commission has also taken cognizance of incidents relating to commission of heinous crimes against women. One of such incident was the Delhi gang rape incident which brought special attention nationwide. In this regard, the Commission with the support of members of civil society appealed the Government to amend the existing sexual assault laws. It was in this backdrop that the Criminal Law (Amendment) Act, 2013 was promulgated. Furthermore, NCW has conducted special studies and investigations into specific problems & situations arising out of discrimination and atrocities against women. It also undertakes 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. A two-day National Consultation event was organized on 27th and 28th of February, 2014 at Jaipur, Rajasthan on “Prohibition of Atrocities against Women by Dehumanizing and Stigmatizing them in public” to finalize the NCW Draft Model Central Legislation.
The Commission has published reports, magazines and articles covering contemporary issues of women. One such publication is “Rashtra Mahila”. Moreover, it advises on the planning process of socioeconomic development of women and evaluates the progress of development of women under the Union and States.
The Commission conducts inspection of jails, remand home, women’s institution or other place of custody where they are kept as prisoners or otherwise & pursue with the concerned authorities for remedial action, if found necessary. Taking cognizance of reports in the media regarding gross violation of the rights of women living in Swadhar Grehs in the country, the Commission initiated inspection of 12 such homes in the country on a pilot basis to ascertain the factual status of these homes. In an attempt to make these inspections more meaningful and with a view to cover all Swadhar Grehs in India, the Commission organized a daylong consultation with academia, NGOs and Government Departments on 13.09.2018. Lastly, the Commission endeavors to render financial assistance to women institutions, NGOs and organizations working for the upliftment of women.
The power and responsibilities of the chairperson, members and member secretary are prescribed under Chapter IV of The National Commission for Women (Procedure) Regulations, 2005. Apart, the Commission has devised an effective and expeditious mechanism in the form of NCW Cells for tackling issues pertaining to women in need of aid. They are:
1. Complaints & Investigation Cell:
It processes the complaints received orally or in writing or online via official website of the National Commission for Women. Further it deals with the complaints received from all over the country including those relating to deprivation of rights of women and involving injustice to women. It takes suo motu cognizance of incidents relating to commission of heinous crimes such as acid attack, sexual assault & rape against women under Section 10 of the Act of 1990.
2. Legal Cell:
It is responsible to consider in a wider perspective the suggestions given by expert groups, if any, for revision or amendment in laws pertaining to women with a view to coordinate and harmonise them in the existing climate of economic liberalization.
3. Policy Monitoring & Research Cell:
The PMR Cell is responsible to conduct special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women. Also, to undertake promotional and educational research in order to ensure due representation of women in all walks of life.
4. Non-Resident Indians Cell:
Since National Commission for Woman has been nominated as the Coordinating agency at the National level for dealing with issues pertaining NRI marriages by the Govt. of India therefore, it is obligated to render all possible assistance to women who are deserted by their Overseas Indian husbands.
5. North East Cell:
It is responsible to address problems faced by North East women and take special steps for their development and empowerment. Furthermore, NE Cell has been created to emphasize on problems/challenges faced by women of North East and also to intervene with the State and Central Governments whenever required.
The Commission has intervened in numerous court cases, where women rights have been transgressed. Few of the more prominent ones are:
1. Bhateri Gang Rape Case, Rajasthan
The Commission suo moto took up the case of the victim and extended its full support in going for appeal and also providing security to the victim and appointment of a special public prosecutor to argue her case. The victim was a “Sathin” associated with WDP in Rajasthan who was raped in retaliation for her intervention in a child marriage in September 22, 1992.
2. Commutation of Death Penalty (Ramshree’s Case)
Due to the timely intervention of the National Commission for Women in the Honble Supreme Court, the order of death sentence was temporarily stayed and the Hon’ble Court, later on commuted the death sentence into life imprisonment.
3. Obscenity Cases
The Hon’ble High Court of Delhi put an injunction on the launching of 21+ adult channel. The NCW approached the Hon’ble High Court of Delhi against Star TV, Zee TV, etc for showing obscene pictures on television and other media.
4. Against out dated Customs & Traditions Maimon Baskari’s Nuh Haryana Case
The NCW took up the case of Ms. Maimon Baskari who was allegedly a victim of torture and rape for marrying a person of her choice. The Honble Supreme Court has united the couple.
“There is no tool for development more effective than the empowerment of women.”
…Kofi Annan
The desideratum for a nationwide body to raise women issues and to take constructive measures at law and policy making levels with a view to ensure governmental accountability towards issues concerning women was the raison detre for the demand for a National Commission for Women. For the women fraternity, it is a mechanism that acts as a conduit between them and the government so as to effectively articulate their voice and opinions which is strongly feminist. The Government of India took the initiative to establish this Commission by keeping in view the provisions of the Constitution of India and recommendations by UN Commission on Status of Women so as to invigorate the women on addressing predicaments, repressions and other types of violence they use to encounter. The National Commission for Women also takes the initiatives for overall progression of womens community throughout the country.
[1] http://www.legalserviceindia.com/article/l318- National-Commission-For-Women.html accessed on 12th March, 2019 at 9:34 PM.
[2] http://ncw.nic.in/ncw-cells/legal-cell//important-courtinterventions- inquiries accessed on 15th March, 2019 at 4:40PM.
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“From the beginning the objective of establishing family courts was to provide speedy disposal of cases involving problems faced by women who were traumatized by marriages that had turned bitter.”
-National Commission for Women
The 1980s were a period of great upheaval in the womens movement in India. The infamous Mathura rape case led to a consolidation of womens groups at the national level, with Parliament eventually enacting the Criminal Law (Amendment) Act, 1983 in response to the outcry. The issue of womens rights stayed very much at the forefront through the decade, with movements around Sati (subsequent to Roop Kanwars immolation), environmental concerns, and the issue of dowry inter alia. The Family Courts Act, 1984 [“1984 Act”] was enacted in this context, and was in keeping with the spirit of the times. The idea was to recognize the difference in the nature of family disputes and ordinary civil suits, and facilitate resolution of the former accordingly. In Abdul Jaleel v. Shahida, 2003 (3) SCR 498, [“Abdul Jaleel”]. the apex court expounded on the underlying principles based on which the 1984 Act was drafted. It opined that the Act brought in an approach which was “radically different from that adopted in ordinary civil proceedings”.[1] Further, it observed that the statute was enacted subsequent to insertion of Order 32A in the Civil Procedure Code, 1908 as the Order was unable to bring about palpable change.
The primary positive change brought about by the 1984 Act is the introduction of conciliation in resolution of family disputes. When both parties come before the family court for the first time, they are usually referred to a counselor whose role is to carry out conciliation. In this manner, a non-adversarial procedure has been institutionalized through the 1984 Act. The report of the counselor is granted such importance, that in Perry Kansagara v. Smriti Madan Kansagara, Civil Appeal No. 1694 of 2019, decided on 15th February, 2019. the Supreme Court held that counselors report with respect to interaction with the child can be relied upon to determine custody issues. The counselor attached to the court functions on the basis of rules by the relevant state government of High Court. However, as noted by the National Commission for Women, there is no uniformity in the rules formulated by various states, thus giving rise to the potential of ad hocism.[2]
S. 9, 1984 Act also enjoins upon Family Courts the duty to make efforts for settlement and assist the parties in this regard. In R Durga Prasad v. Union of India, 1998 DMC 45, [“R Durga Prasad”]. it was observed by the Jharkhand High Court that this is a mandatory duty that is cast upon courts and case should only be posted for further steps if it is concluded that such settlement is impossible. Further, in K Srinivas Rao v. DA Deepa, AIR 2013 SC 2176, [“K Srinivas Rao”], the apex court dictated that under S. 9, mediation can be referred to (with parties consent) even if a failure report is submitted in the conciliation process. The above provision and its judicial interpretation aptly illustrate the renewed spirit that the 1984 Act has brought in the resolution of family disputes.”
It must be noted that rather than being a new substantive law, the 1984 Act is a new procedural approach for application of pre-existing substantive laws. Apart from the above procedural flexibilities, Family Courts have also been provided flexibility vis-a-vis evidentiary provisions. Further, civil and criminal jurisidiction have both been vested in such courts to enable resolution of all connected matters in a family dispute. Apart from purely legal aspects, Family courts also represent a step forward in accounting for the human angle in family disputes. For instance, the Childrens Complex set up in the Mumbai Family Court provides a comfortable environment for the child and the non-custodial parent to carry out meetings. This is unlike the traditional setup wherein parents are forced to meet their children for a brief duration in hostile courtrooms.
A significant innovation is the inclusion of suits with respect to property between parties to a marriage, as provided in Expl (c), S. 7, 1984 Act. This ensures an expeditious method for resolution of property disputes which arise in the context of marriage.
The relevance of Family Courts has now increased in light of an increased divorce rate in Indian society. A Family Court can be set up in any city or town whose population exceeds one million. As urbanization and an increased population have led to growth in residents of towns and cities, the potential areas for establishment of Family Courts have increased manifold. The state of Haryana recently decided to set up Family Courts in seven more districts, a reflection of the increasing importance of such courts.
In light of the above situation, there are certain emerging issues vis-a-vis Family Courts which require a closer analysis.
Firstly, the issue of privacy is a pressing one. Right to privacy is now included within the ambit of Article 21, as per the judgment in Justice K.S. Puttaswamy v. Union of India, 2018 (12) SCALE 1, [“Puttaswamy”]. This right could potentially be in conflict with the evidence presented in family courts, as it is often of a sensitive and private nature. For instance, subsequent to Puttaswamy, a family court in Delhi held that a recording of a private telephonic conversation is admissible in a Family Court even though it was collected by planting a recorder in the bedroom i.e. in clear breach of the right to privacy. The honorable Judge observed that consequences of violation on inadmissibility of evidence have not been discussed in Puttaswamy, thus enabling him to permit admissal of such evidence. Also relevant here are the 2015 guidelines with respect to privacy in family matters issued by the Delhi High Court.[3] Herein, the court gave directions to ensure protection of information of a private nature even prior to the holding in Puttaswamy. This issue is being given conflicting interpretations by courts across the country and deserves dedicated attention of our higher judiciary.”
Secondly, there is the issue of inclusion of Domestic Violence proceedings in the jurisdiction of Family Courts. The jurisdiction clause i.e. S. 7 of the 1984 Act does not include proceedings under Protection of Women from Domestic Violence Act, 2005 [“DV Act”]. However, S. 26 of the DV Act enables parties to seek relief before a Family Court. In light of the above, the Bombay High Court in Ambreen Akhoon v. Aditya Paudwal, 2017 (3) RCR (Civil) 645, [“Ambreen Akhoon”]. held that even relatives of the husband can be made party to proceedings before Family Courts if they are under S. 26, DV Act even though they are not parties to the marriage. This beneficial interpretation seeks to widen the ambit of jurisdiction of Family Courts and must form a model for legislative inclusion of domestic violence under the 1984 Act.
It has been seen that Family Courts have been an innovative addition to the Indian judicial system. However, emerging grey areas must be resolved to ensure their continued efficacy.
[1] Para 13, supra note 1.
[2] National Commission for Women, Report on Working of Family Courts and Model Family Courts, (Mar. 2002), available at http://ncw.nic.in/sites/default/files/Working%20of%20Family%20courts%20in%20India.pdf (last visited on February 26, 2019).
[3] Order on June 11, 2016 in Mat. App. (F.C.) 78 of 2015 & CM APP No. 11008 of 2015, Del HC.
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Gita, an immigrant from Bihar, has been working in Delhi as a domestic worker since as long as she can remember. Although 40, she is petite and looks severely malnourished. A year ago Gita sent her youngest daughter to work in her place because she was sick and couldn’t afford to miss a day’s salary. All of 15, this girl had studied till class 8, carried the latest mobile phone and had aspirations like most of us do at that age. However she was forced to drop out of school because, according to her, she could get ‘free’ education only till class 8, had to look after her younger siblings (read brothers) when they came back from school, and had been engaged to be married to another 15 year old in Bihar. To me, however, there appeared to be only one reason: our half-hearted investments in the lives of our children, whether it is their education, health, marriage or work. Today, when political parties are fighting a closely contested election in Bihar amidst another ‘development’ rhetoric, I am forced to think of Gita’s story again.
India has many such more Gita’s who are forced everyday to marry their daughters much before they attain the legal age of marriage and can choose for themselves or exercise agency. Our country has the highest number of child brides in the world and the lowest political will to confront this social evil (India’s refusal to sign global resolution on child marriage raises concern, The Hindu, October 26, 2013).
Under the Prohibition of Child Marriage Act (PCMA) 2006, 18 years is the permissible age of marriage for girls and 21 years for boys. The Act, however, has several limitations. For one, it fails to declare that all child marriages are illegal. Second, the Act makes child marriages voidable only when children or guardians seek annulment of the marriage. Third, in doing so, it (mis)places the onus on the child and the parent to seek annulment and not on the State. Given the context of child marriages and the wider culture of marginalization, parents are not used to sending their children to school and getting them married or sending them to work becomes the obvious choice. Here the State has to take on a proactive role instead of holding the parents responsible. Fourth, the Act presumes that the child is able to exercise her agency to say ‘no’ to child marriage. And last, it takes for granted the presence of appropriate support structures and institutions which are essential for a child to defy marriage and also to rehabilitate her. (National Commission for Protection of Child Rights, 2013)
In reality it is unlikely that the parent/ guardian will take the initiative and risk of terminating a marriage and as a result the numbers of child marriages reported and stopped under the Act have been negligible. For instance, in 2010 there were only 60 registered cases of child marriage under the PCMA (Ministry of Women and Child Development, 2012). Even the National Crime Records Bureau 2012 records have shown that the conviction rate concerning child marriage is low. Another reason for this is often attributed to the institution of Child Marriage Prohibition Officers (CMPO) which exists in every State to prevent child marriages, and ensure protection of the victims as well as prosecution of the offenders. “In the data received by the NCPCR from the States regarding the implementation of the PCMA, it was found that in most cases the CPMOs were officers with additional responsibilities such as the DM, SDM, CDPO or BDO and thus could not address several issues pertaining to the prevention of child marriage in the State” (NCPCR, 2013).
Further, the cash transfer schemes introduced by the Central and State governments to help in delaying the age of marriage among girls in the country by incentivizing birth and sustenance of girl children have not been adequately tested and evaluated. These programmes are mainly driven by supplies. Schemes such as the Janani Suraksha Yojana and Indira Gandhi Matritva Sahyog Yojana exclude girls below 19 from maternity benefits thereby penalizing and victimizing child brides further, which is in contravention of the PCMA, and adding to the smugness and denial of our law and policy makers.
According to the 2001 census there were 1.5 million girls in India under the age of 15 already married. Of these, 20% or approximately 300,000 were mothers to at least one child. At the national level, one in every five girls aged 15-17 years and slightly more than half of girls aged 15-24, were married. In all, 47% of India’s girls aged 20-24 were married before the legal age of 18, with 56% from rural areas. Similarly, one in every 17 boys aged 15-20, and more than 80 percent of boys aged 15-24 were married. 40% of the world’s child marriages take place in India, resulting in a vicious cycle of gender discrimination, inter-generational poverty, illiteracy and high infant and maternal mortality rates. The risk of domestic violence, abuse and exploitation inherent in child marriages is well known. Being married early they conceive at a very early stage in their life. In the three years preceding National Family Health Survey-III (2005-06), there were 90 births per 1,000 girls aged 15-19 and 209 births per 1,000 girls aged 20-24, the highest of any age group. (NCPCR, 2013)
Interestingly, the inverse correlation between the attainment of education and the odds of getting married has been pointed out by NFHS-III. An analysis done to identify the determinants of early marriage revealed that “the higher the education the lower the odds that a girl aged 15-17 would be married and the lower the odds that a girl aged 18-24 would have been married before age 18”. Similarly, the proportion of girls who had begun childbearing was about three times as high among girls who had no education as girls who had 10 or more years of education. (NCPCR, 2013)
All of this therefore points fingers at the current legislative and policy framework for child marriage prevention and prohibition. It underrates the importance of education in disrupting the link between work and marriage for young girls and the inter-generational cycle of poverty and marginalization. Parents of these young girls, especially mothers like Gita, who have experienced the impact of early (and untimely) entry into workforce on early marriage and childbirth, and vice-versa, are found to be making an unprecedented demand for education for their children. They are willing to make investments in their children’s education, provided there exists a series of social security measures which ensure the retention of children in schools, and not their sudden drop-out, and enables them to exercise agency.
The last time I met her, Gita’s daughter told me that even if she was to get married, she would make sure that her children continue to study till the time they want and marry as per their choice when they were ready. Silver lining?
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IN our beloved country India, where the cultures are varied and the religions are many, a woman personifies the ideals of purity and modesty. We Indians refer to our country fondly as “Bharat Mata” epitomizing this symbolism that derives from our age old worship of the woman as Goddess Saraswati, Laxmi and Parvati. But the dichotomy is, be it the disappointment at birth or the prying evil eyes on maturity, the woman has to walk the Indian soil in fear of terrors which she is put against by her own fellow countrymen, her brethren. Today, the women have been exposed to phenomenal changes, in all spheres of life. Still she is living a dual life, one still under subjugation and the other, where she is yet learning to cope with her newly acquired freedom. Today’s India is a knowledge centre, with female professionals not only walking shoulder to shoulder with their male counterparts but even outsmarting them and in such process, making India a manufacturing hub and the finest technology provider to the entire world. With the rapid development in the spheres of education, technology and consequential change in the standards of living, the rate of crime has increased manifold and the form of crime has intensified greatly towards the more heinous ones. The belief that a man works to earn his livelihood whereas a woman does so to supplement the family income is widespread[1]. The Nation’s surge towards being a force to be reckoned with has left a majority of the females struggling behind on the margins for dignity and self esteem. Thomson Reuters Foundation, as per the a survey ‘Trust law Poll[2]‘ concluded as follows, “Violence, dismal healthcare and brutal poverty make Afghanistan the world’s most dangerous country for women, with Congo a close second due to horrific levels of rape, and Pakistan, India and Somalia ranked third, fourth and fifth, respectively, in the global survey of perceptions of threats ranging from domestic abuse and economic discrimination to female foeticide, genital mutilation and acid attacks. The ground reality is that the overall environment in present day India is one of the most unsafe places for a woman to be.
The word rape has been derived from the Latin term ‘rapio‘ which means ‘to seize’, ‘take by force’, ‘the ravishing or violation of a woman’ and during the wars, the crimes of looting, destruction, enslavement and kidnapping. Black’s Law Dictionary defines rape as ‘the unlawful carnal knowledge of a woman by a man forcibly and against her will’. Rape is a crime against basic human rights and a violation of the victim’s most cherished of fundamental rights, namely the right to life contained in article 21 (of the Constitution of India), Bodhisattwa Gautam v. Miss Subhra Chakraborty, 15.12.1995, Supreme Court of India, Kuldip Singh and S. Saghir Ahmad, JJ., Special Leave Petition (Cri.) No. 2675 of 1995; AIR 1996 SC 922: 1995 (4) Crimes 722: 1995 (9) JT 509: 1996 (3) R.C.R. (Criminal) 786: 1995 (7) Scale 228: 1995 (Sup6) SCR 731: 1996 (1) SCC 490: 1996 SCC (Cri) 133. Rape affects privacy and self respect of a woman, sanctity of her womanhood, disorders her behaviour, alters her personality, impairs her capacity to trust men and infuses in her trauma and fear, and all these symptoms might remain with her till her last breath. The unlawful intruder who violates her right of privacy injures not only the victim, the law and order but also the abstract values of the society.
Rape has always been a major concern for the women’s rights and the human rights groups in India. In Tukaram and Ganpat, Tukaram v. State of Maharashtra, 15.9.1978, Supreme Court of India, Jaswant Singh, P.S. Kailasam and A.D. Koshal, JJ. Criminal Appeal No. 64 of 1977; AIR 1979 SC 185: 1978 CriLJ 1864: 1979 (1) SCR 810: (1979) 2 SCC 143 the rape of a teenaged orphan girl of a tribe, by two policemen in Desai Gunj police station, Maharastra, was reported on March 26, 1972. The final judgement of Supreme Court was that the sexual intercourse took place with her wilful consent. Post this decision, there was a nationwide anti-rape campaign demanding amendments in the rape laws. Sustained campaigning resulted in shifting the burden of proof onto the accused, in cases, where consent is taken as a defence. The Law Commission of India also presented its 84th report containing a set of comprehensive suggestions. In 1983, the Parliament passed the Criminal law (Amendment) Act 1983 and S. 114-A was also incorporated in the Indian Evidence Act, raising a rebuttable presumption that the Court shall presume that the woman did not consent to the sexual act if she states in her statement on oath before the trial Court that she did not so consent. Despite the amendments in law, neither was there any decrease in the incidences of rape nor was there any substantial reduction in the acquittals on the plea of consent and the victims as well as accused, found falsely implicated by Courts, continued to suffer.
The unfortunate incidence which proved to be the last straw on the camel’s back was on December 16, 2012, when a physiotherapy intern, aged 23 years, when she resisted the sexual advances to protect her dignity and freedom, was, tortured and beaten to almost a vegetative state and in the process sexually abused by a gang of five perverts. The lust of the perpetrators of the crime led to her brutal gang rape. All this took place in the heart of New Delhi, the densely populated cosmopolitan capital of India. The internal terror struck when the street lights were still on with highest beams, which reflected the routine abuse of an Indian woman and a woman, when in India.
An unparalleled revolution took place across the entire length and breadth of India, fighting for the rights of women and children. Unfortunately the said victim succumbed to the sexual assault meted out to her. These perpetrators had treated this brave heart, righty named by masses as ‘Nirbhaya’, not only as an object to fulfil their lust but without any fear of rule of law, without any gratitude towards their motherland. These were not serial sex criminals, psychopaths or brutalised men from the margins of society; their backgrounds were, perhaps more worryingly, like those of tens of millions of Indian men[5]. The upheaval of dastardly acts of sexual abuse against women pricked our conscience and this ghastly rape projected a very upsetting image of women’s protection, to the people of the country as well as to the people around the world. The revolt of the people was as strong as a tsunami and continued to erupt like a volcano. It ushered the need to protect women of all ages.
The shocked conscience of the world re-ignited debate about the insecurity the women face in our country. The United Nations Entity for Gender Equality and the Empowerment of Women, called on the Government of India “to do everything in their power to take up radical reforms, ensure justice and reach out with robust public services to make women’s lives more safe and secure.” The statement further reads, “This attack is an attack against all women in India. Violence against women is not a women’s issue but a human rights issue. UN Women join the Government and people of India in recognizing that we need to take tougher action together to change the present reality and culture of impunity.”[6] The Government of India realised that the laws protecting women have not done enough justice to the woman and failed to protect her dignity and life; hence the pulse of the nation was felt by the legislatures, ensuring the success of democracy in India, which did listen to the voice of its people. The incident brought about a convulsed Executive to highly prioritise the changes in law.
Without any further loss of time, on 22 December 2012, the Government of India, constituted a judicial committee, comprising Justice J.S.Verma (Former Chief Justice of India), Justice Leela Seth (Former Chief Justice of H.P. High Court) and Mr. Gopal Subramaniam, an eminent Constitutional lawyer to suggest amendments to criminal law to sternly deal with adequacy of penal provisions to deal with all forms of sexual assaults. The committed invited views and received close to 80,000/- suggestions, and promptly submitted its report within a month.
Guided by J.S.Verma Committee’s report, the Government of India promulgated an ordinance and subsequently the Parliament passed the Criminal Law Amendment Act, 2013, which paved the way for conversion of the ordinance into the law. These amended laws have come into force from the zero hour of February 3, 2013. Union Cabinet Minister for Home Affairs Mr. Sushil Kumar Shinde declared that the law would impact the society for years to come[7]. The objective is to protect the dignity and rights of women. However, people need to have a firm knowledge base of the laws which can protect them and which guide them not to indulge into any kind of violence against women.
Criminal jurisprudence has established ‘rape’ as not only an act of penile or other penetration, in any of her orifices, but also a long lasting experience of humiliation, degradation and violation for the victim, her family, her friends and society at large. Sufferers have described sexual assaults as the ‘beginning of a nightmare’. The aftershocks include depression, lowered self-esteem, guilt, lack of will to live, fear, suicidal tendencies, diminishing sexual interest. etc. ‘One becomes afraid of’……writes a victim, ‘half the human race’. In Sakshi, Sakshi v. Union of India, 26.5.2004, Supreme Court of India, R.C. Lahoti, CJI and G.P. Mathur, J., Writ Petition (Crl.) No. 33 of 1997; AIR 2004 SC 3566: 2004 (3) Crimes 177: 2004 CriLJ 2881: 2004 JT 405: 2004 (3) R.C.R. (Criminal) 702: 2004 (6) Scale 15: 2004 SCR 723: (2004) 5 SCC 518: 2004 SCC (Cri) 1645. (Sakshi is the name of an organisation and in English it means ‘witness’) Supreme Court referred to the passage of Susan Brown Miller, (Against Our Will 1976), wherein the author sensitized the society by conceptualising, “…in rape….the intent is not merely to “take”, but to humiliate and degrade… Sexual assault in our day and age is hardly restricted to forced genital copulation, nor is it exclusively a male-on-female offence. Tradition and biologic opportunity have rendered vaginal rape a particular political crime with a particular political history, but the invasion may occur through the mouth or the rectum as well. And while the penis may remain the rapist’s favourite weapon, his prime instrument of vengeance… it is not in fact his only tool. Sticks, bottles and even fingers are often substituted for the “natural” thing. And as men may invade women through other orifices, so too, do they invade other men. Who is to say that the sexual humiliation suffered through forced oral or rectal penetration is a lesser violation of the personal, private inner space, a lesser injury to mind, spirit and sense of self?”
In secular India, the only religion of the State being the ‘Constitutional Dharma’, it obliges the sovereign to protect the dignity and safety of all its women and children by incorporating adequate laws to protect them. Women and children have the right to be treated as the first amongst equal citizens. They have all the rights to lead dignified and peaceful lives. Nation cannot afford the honour and dignity of even a single woman being violated under its flag, by any person whom so ever he may be, how so ever he might be placed.
“In 1852, the HMS Birkenhead, a British troop ship, was wrecked at the most aptly named Danger Point, about 140 km from Cape Town, South Africa. Predictably enough, there were not enough lifeboats and soldiers aboard the ship famously enforced the first publicly recorded instance of the ‘Women and children first’ protocol that came to be subsequently called the Birkenhead Drill.”[9] The constitution given to us by, We the People of India, has bestowed a fundamental right vide article 15(3), authorising the state to make special provisions for women and children. Needless to say, ‘special provisions’ necessarily implies ‘adequate’ provisions.
Further, on December 11, 1992, India ratified ‘The United Nations Convention on the Rights of Children’, which requires the states to undertake all appropriate national, bilateral and multilateral measures to prevent the inducement and coercion of a child to engage in any unlawful sexual activity; the exploitative use of children in prostitution or other unlawful sexual practices and the exploitative use of children in pornographic performances and materials. India is also a signatory to the United Nations ‘Convention of the Elimination of All Forms of Discrimination against Women’, 1979, which requires the conferring a right upon all woman to protect her health and safety in working conditions. The ratifications of these international conventions created a legitimate expectation that India shall adhere to its international commitments as set out under the respective conventions.
On such foundations, it was expected from the Parliament to come out with new laws protecting women and children. Consequently on June 20th, 2012, ‘The Protection of Children from Sexual Offences Act, 2012’ (POCSO), came into force. This gender neutral act covered all children below 18 years of age. POCSO was enacted with a view to provide for a self contained comprehensive legislation inter alia to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process, incorporating child-friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of special courts for speedy trial of such offences.
All of the amended penal provisions are cognizable, which means, the police officer has no other option but to register FIR (First Information Report) and most of these offences are non-bailable, which implies that bail can only be granted by the courts and not by police. Post these amendments, acid attack, sexual harassment, voyeurism, stalking have also become as punitive under IPC (Indian Penal Code). Importantly, the Act further amended the IPC to criminalise the failure of a public servant to obey directions under law. It has also made the non-treatment of a rape victim by any public or private hospital an offence. These amendments have increased the sentences to the level of extreme deterrence and taken away the discretion in sentencing from the courts by providing for the minimum sentences. Similarly Code of Criminal Procedure (CrPC), Indian Evidence Act and Protection of Children from Sexual Offences Act, 2012, have also been amended.
Under criminal law, the concept of retrospectivity in terms of nullum crimes sine lege, nulla poena sine lege (no crime without law, no punishment without law), or the ex post facto prohibition means: conduct must be criminalized and penalties fixed in advance of any criminal prosecution[10]. It is a sacred tenet, and also forms an essential attribute of the principle of legality, a limitation on penalization by the state’s officials, effected by the prescription and application of specific rules.[11] Just and effective law should be focused on the future[12]. Therefore, these amendments shall not apply to the acts that had taken place on or before 2nd February 2013. This is because of the fundamental right enshrined in article 20(1) of the Constitution of India, which provides that “No person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence.” In Gian Singh, State through CBI v. Gian Singh, 14.9.1999, Supreme Court of India, G.B. Pattanaik, S.P. Kurdukar and K.T. Thomas, JJ., Death Reference Case No. 3 of 1998; AIR 1999 SC 3450: 1999 CriLJ 4315: 1999 (6) JT 575: 1999 (4) R.C.R. (Criminal) 193: 1999 (5) Scale 497: 1999 (Sup2) SCR 382: (1999) 9 SCC 312: 1999 SCC (Cri) 1512 the Supreme Court holds. “It is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribed, and no ex post facto legislation is permissible for escalating the severity of the punishment.” The jurisprudence is that the law must give a chance to every person to reform, to mend his ways and to change his behaviour, synchronising it with the change in law.
S. 357-C of CrPC mandates that all hospitals, public or private, whether run by the Central government, the State government, local bodies or any other person, shall, immediately provide the first-aid or medical treatment, free of cost, to the victims of acid attacks to whom grievous hurt is caused and to the victims of any form of rapes and further such hospital shall immediately inform the police of the incident.
Under S. 166-B of IPC it is an offence for every person, who being in charge of a hospital, public or private, whether run by the Central government, the State government, local bodies or any other person, contravenes the provisions of section 357-C of CrPC. The offence is non-cognizable & bailable. The sentence for such contravention is imprisonment for a term which may extend to one year or with fine or with both.
Proviso to S. 154 CrPC provides that when the information is given by a woman, who is a victim of acid attack or sexual offence or such offence has been attempted against her, then such information shall be recorded by a woman police officer or any woman officer. If the prosecutrix is temporarily or permanently mentally or physically disabled then such FIR shall be registered at her dwelling place or at a convenient place of her choice, in the presence of an interpreter or a special educator. A copy of the information shall be given, free of cost, to the victim. The recording of such information shall be videographed. Furthermore, the police officer, as soon as possible, shall get the statement of the victim of a sexual offence, recorded by a Judicial Magistrate under clause (a) of sub section (5A) of section 164.
When a woman, even when accompanied by her relatives or neighbours, approaches the police station, she has been encountering either hostile or indifferent attitude of the custodians of law and order. Lewd remarks, jokes, double-meaning words, weird smiles, sexist gestures and cynical laughter are used by the police force because of their upbringing as well as to generate fear and uneasiness in the minds of the victim seeking legal redress. Comments on her dress, hairstyle, looks, figure, sex-appeal, body language and overall physical attributes are considered to be a part of normal behaviour of the majority of the police officials. National Conference of Rape in 1990 declared that “A woman victim of rape is raped twice-first by the culprit and then by the criminal justice system.[14] Because of the attending social stigma, protecting someone indispensible or too powerful, implicating personal and family dishonour, the aggrieved female is usually reluctant to lodge any complaint or FIR when she is made a victim of this sexual crime. Now, a victim would feel more comfortable to reveal her trauma to a woman officer.
Under S.166-A (c) of IPC, it is an offence for the public servant who fails to record any information given to him, in relation to offences of acid attacks, outraging the modesty of a woman, using words and gestures or acts intended to insult the modesty of a woman, disrobing a woman, trafficking, exploitation of a trafficked person or any form of rape. The offence is cognizable & bailable. The sentence for such infringement shall be rigorous imprisonment for a term which shall not be less than 6 months but which may extend to 2 years and such convict shall be liable to pay fine.
A major reason why such a tiny percentage of crimes against women are reported is that the police don’t let complaints through. Now it may be risky for the police officials to turn away the victims of sexual offences or to initiate out of court settlement between the parties.
Under S. 164 (5A) CrPC, on the receipt of information of a sexual offence, police shall get the statement of such victim recorded by a Judicial Magistrate. If the person against whom such offence has been committed is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement and such statement shall be videographed. When at the time of recording of the statement of such victim during trial, the victim is temporarily or permanently mentally or physically disabled, the statement recorded under section 164 (5A) CrPC, shall be considered statement in lieu of examination-in-chief, as specified in S. 137[15] of Indian Evidence Act, such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.
Subject to the provisions of S. 164 (5A) (b) of CrPC, wherein statement of a temporarily or permanently mentally or physically disabled person, recorded under 164 CrPC (5A), deems to be admissible under section 137 of Indian Evidence Act, the law on the relevancy of a statement recorded under S. 164 CrPC appears to be that such statement can be used during cross-examination of the witness, either by the public prosecutor/ counsel for the victim or the counsel for the defence, to discredit the statement made on oath during trial, either to corroborate or to contradict, the witness, to meet the requirements of S. 145[16] of Evidence Act. Resultantly, the statement of a normal person cannot be treated as substantive evidence.
Any police officer, making an investigation, shall not call to police station, a woman or a physically or mentally disabled person, man below 15 and above 65 years of age, who are not accused in said case under investigation. Such investigation shall be conducted at the place of residence of such persons.
As per amended S. 161 CrPC, statement of victim of a sexual offence shall be recorded by a woman police officer or any woman officer.
The legislature has not taken into consideration the effect of the use of statement recorded under S. 161 CrPC by a woman officer who is not a Police officer. An accused has been put to serious prejudice because of inclusion of the words, ‘any woman officer’ because if police deliberately get the statement of the victim of sexual assault recorded by a non police officer than such statement can be proved as a fact and becomes admissible in evidence because it is not hit by S. 25[17] of Evidence Act. The investigating officers are well trained in the procedures of criminal law. Whereas the term ‘officer’ has not been defined and ‘any woman officer’ is an ambiguous insertion, which may even include any officer and even a public prosecutor or even an advocate, being the officer of the Court.
Under S. 354 IPC, it is an offence when any person, assaults a woman or uses a criminal force upon her, intending to outrage or knowing it to be likely that it shall outrage her modesty. S. 10 IPC defines a woman as female human being of any age. The word ‘modesty’ has not been defined under any statute. As per the Oxford English Dictionary, the word “modesty” means, “womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in men or women) reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions”.
Justice Mudholkar of Supreme Court of India, in State of Punjab v Major Singh, 28.4.1966, Supreme Court of India, A.K. Sarkar, C.J. (Minority view), J.R. Mudholkar (Majority view) and R.S. Bachawat (Majority view), JJ.; Criminal Appeal No. 54 of 1964; AIR 1967 SC 63: 1967 CriLJ 1; per majority view, holds, “In my judgment when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that act must fall within the mischief of this section.” In the same judgment, Justice Bachawat, per majority view, holds, “I think that the essence of a woman’s modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under Section 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as, for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the act; nevertheless, the offender is punishable under the section. Court further observed “A female of tender age stands on a somewhat different footing. Her body is immature, and her sexual powers are dormant.”
In Raju Pandurang Mahale v. State of Maharashtra, 11.2.2004, Supreme Court of India, Doraiswamy Raju and Arijit Pasayat, JJ., Criminal Appeal No. 616 of 2003; AIR 2004 SC 1677: 2004 (3) AICLR 76: 2004 (3) Apex Criminal 132: 2004 CriLJ 1441: 2004 (2) Crimes 204: 2005 (1) Cri.CC 189: 2004 (2) JT 425: 2004 (2) R.C.R.(Criminal) 936: 2004 (2) Scale 408: 2004 (2) SCR 287: (2004) 4 SCC 371: 2004 SCC(Cri) 1259, Supreme Court of India holds “the essence of a woman’s modesty is her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman.” The ingredients of Outraging woman’s modesty include firstly the assault must be on a woman secondly the accused must have used criminal force on her thirdly the criminal force must have been used on a woman intending to outrage her modesty as laid down by the Supreme court of India. Ram Kripal vs State of Madhya Pradesh AIR 2007 SCW 2198.
Prior to the amendment the offence invited sentence of imprisonment for term, which could have extended up to two years or with fine or with both imprisonment and fine. The amendment has increased the minimum sentence for a term, not to be less than one year, but may extend to five years and fine. Therefore, the discretion with the Court to let off a convict on payment of fine or a lesser sentence has been done away with. Impliedly now a person cannot be released under the provisions of the Probation of Offenders Act.
Under S. 354-A of IPC, it is an offence of sexual harassment for a man, when he makes physical contact and advances involving unwelcome and explicit sexual overtures; demands or requests for sexual favours or shows pornography against the will of the woman, the sentence shall be imprisonment for a term up to three years or with fine or with both and if a man makes sexually coloured remarks, the sentence shall be imprisonment up to one year or with fine or with both.
Except, in showing pornography, when the victim can only be a female, in other events the victim can be of any gender but in all the cases the perpetrator of the crime must be a man. Sexual actions must be unambiguous, clear cut, specific or definitive and ‘will of a woman’ would impliedly means her informed will. Unwelcomeness is a term, generally used in the United States and has been adopted by Indian Legislatures.
Sexual harassment is not restricted against women but also extends to young boys, prisoners, apprentices and other males. There is no doubt that sexual harassment undermines the dignity of women; it also implies that their working environment is less favourable than that of men[21]. Passive submission to protect her job or get a hike in salary or grades is a phenomenon where even women are also at fault In Baush & Lomb[22], it was observed, “certain biological differences exist between male and female…. it would appear that in the foreseeable future that the attraction of males to females and females to males will not soon disappear.” In Miller’s case, Judge William observed, ‘attraction of males to females and females to males is a natural sex phenomenon and it is probably that this attraction plays at least a subtle part in most personnel decisions.”[23]But the rules of Indian etiquette are simple: people of opposite sex do not touch each other[24].
Under S. 354-B of IPC, it is an offence for any man who assaults or uses criminal force on any woman or abets such act with the intention of disrobing or compelling her to be naked, the sentence shall be imprisonment for a term, which shall not be less than three years but may extend to seven years, and shall also be liable to fine.
To constitute an offence of disrobing, there must be an assault or use of criminal force by a man with intention to disrobe a woman or she is compelled to become naked or if a man abets all these acts.
Disrobe means to divest of a garment; remove clothing or covering or some possession or quality from; undress[25], to take off ceremonial clothing; to undress; to remove clothing from (somebody)[26], to take off one’s robes[27]. Publicly stripping a woman is a frequent form of assault with a caste dynamic, carried out by upper-caste men against lower-caste women mostly in backward areas of rural India, as an instrument of punishment and also to exert dominance.
Under S. 354-C of IPC, it is an offence for any man who watches, or captures the image of a woman engaging in a private act, i.e., an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim’s genitals, posterior or breasts are exposed or covered only in underwear, or the victim is using a lavatory, or she is doing a sexual act that is not of a kind ordinarily done in public, in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be sentence on first conviction with imprisonment for a term, not less than one year but may extend to three years and shall also be liable to pay fine, and on second and subsequent convictions, the convict shall be liable to sentence of imprisonment, which shall not be less than three years but which may extend to seven years and shall also be liable to pay fine. Furthermore, when the woman consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall also be an offence.
Voyeur is a person who obtains sexual stimulation from covert observation of the sexual organs or actions of others[28]. Who obtains sexual gratification by looking at other people’s sexual organs, sexual acts, etc[29], someone who finds sexual pleasure in looking at sex acts, genital organs[30]. According to Britannica[31], “voyeurism, human sexual behaviour involving achievement of sexual arousal through viewing the sexual activities of others or through watching others disrobe. To some extent voyeurism is widespread; various types of sexual display are a normal part of sexual attraction and mating behaviour in most animals, including humans, but voyeurism is considered a deviant behaviour when observation ceases to be merely one factor in sexual attraction and becomes the sole or primary source of gratification. The risk of being caught is an additional element in the excitement of the voyeur.”
In case a female model consents to the capture of her images, but selects only a few of these for dissemination, then if her those images, which she had not agreed for display, are also published, then such person, who published those images, shall have committed an offence of voyeurism. Therefore, it shall be advisable for the advertisement industry to obtain her consent for entire video or photo-session.
Under S. 354-D of IPC, it is an offence for any man, who follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking. The convict shall be liable for sentence of imprisonment for a term not less than one year but may extend to three years and shall also be liable to pay fine, and on second and subsequent convictions, shall be sentenced to imprisonment for not less than three years but may extend to 7 years and shall also be liable to pay fine. The exceptions to S. 354-D are when such act was for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or it was pursued under any law or to comply with any condition or requirement imposed by any person under any law. However no offence would be committed, if the accused is able to prove that such conduct was reasonable and justified. Thus there is a reverse burden on the accused male to disprove the acts.
It shall be an offence of stalking for a man who follows a woman and contacts, or attempts to contact such woman to foster personal interaction despite a clear indication of disinterest by such woman. It means that first time proposal may not be an offence but if the woman shows her disinterest and the man proposes her again, such interaction shall constitute an offence. Only in situations where a man repeatedly either follows a woman, physically or through the Internet and this causes her fear or distress, will the crime of stalking be recognized as such.
The section can be interpreted that monitoring the profiles or accounts of a woman in social media sites like face book, tweeter; blogs, emails, web pages, etc. or sending her SMS and calling her, would also make out an offence of stalking. The crime of stalking takes a serious toll on the life of women. Gripped by fear and anxiety due to being repeatedly followed by men, many girls and women have been forced to drop out of education, quit jobs and even change homes to escape the stalkers. If the stalkers are not stopped, they can rape and kill. Stalkers are also known to throw acid on their victims, as a way to take revenge. Sometimes, the harasser annoys the victim by persistent sexual importuning which may be accompanied by unwanted gifts, social invitations and the like[32]. A woman finds herself in a difficult situation the moment she says no to such advances and then the actions change to hostile behaviour. Now, with stalking a punishable offence, the law would also prevent rapes and other forms of aggravated sexual crimes and save innocent women from being brutally sexually assaulted or killed. The codification of this crime has filled an important lacuna in the present law.
However, the objects of these provisions seem to have been to protect women against intentional indecent behaviour of men against women, which is offensive to morality. The emphasis of the provision of stalking is swayed by public morality and decent behaviour. Under the garb of these empowerments, will women go too far? The answer is yes.
Whether a husband can be prosecuted for committing offences under sections 354, 354-A, 354-B,354-C and 354-D of IPC? In none of these provisions, the word husband has not been specifically excluded. If the husband expresses his affection towards his wife in public in an unkind manner such conduct will (a) amount to an indecent behaviour; (b) be against public morality; and (c) amount to an outrage under section 354[33]. In conjugal relationship, if before every advance, a husband is to seek his wife’s active consent, then the institution of marriage will become a mockery. However, depending upon the society to which the lady belongs to, some of the acts of love will be repulsive to some, when performed in public glare, or before certain persons. It is, however, doubtful that invocation of criminal process in case of outraging the modesty, will achieve anything in terms of improving the marital relationship, the mutual respect which husband and wife should have for each other, or the husband’s ability to understand and control his aggression[34]. Whether it is a penal offence for a husband accused of such violations? Would it not be appropriate that instead of criminal courts let it be for the specialised family tribunals, with expert members like psychologists, sociologists, to deal with all these inter-spousal disputes? As of now, the law lacks courage to acknowledge the incidents of violations by husbands and to deal with by enacting special laws instead of ambiguous drafting giving scope to interpretations favourable to wives, whenever the accusations are made and consequently bringing all such allegations in the fold of penal laws.
The woman in India has evolved, has become educated and thereby bolder, her understanding of modesty has widened, woman are opting for bohemian dresses rather than saree, woman are gesturing at men and the entertainment industry addresses on how the present generation has taken sexual favours to an another level. Each and every woman should definitely be equipped with the knowledge of what amounts to outraging woman’s modesty.
The woman of today should act boldly if any assault or criminal force is used against her consent, she should rest assured that the guilty shall be brought to the justice.
Woman consents to a sexual act when she possesses the information about such acts and she expresses her willingness, in complete consciousness, to the acts which she complies with, permits the male to perform with her or approves his aggresses. Such woman must possess and exercise sufficient reasoning to arrive at a well informed decision whereby she conveys to the acceptance of acts suggested by a man, subject to the basic condition that such acceptance or proposal must be unaffected by fear, fraud or intoxication. If a woman resists to the point where additional resistance would be futile or until her resistance is forcibly overcome, submission thereafter is not consent. Every woman should be very well aware of the consequence she might get into if she part takes in the act which legally amounts to outraging her modesty.
According to section 90 of IPC, “A consent is not such a consent as intended by any section of the Code. If the consent is given by a person under fear of injury or under a misconception of fact, and if the person doing the act knows or has reason to believe, that the consent was given in consequence of such fear or misconception; or if the consent is given by a person who, from unsoundness of mind, or intoxication is unable to understand the consequence of that to which he gives consent; of unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.”
Will justice prevail even if a woman who performs as a willing party to an act violating modesty then later moves the court accusing the man of outraging her modesty? A woman should not regard law as a weapon to set scores right with any man which would lead her to shame and resentment, no more will the sanctity of Indian or real womanhood prevail.
Supreme Court distinctly states in Pandurang Bhagwat vs State of Maharashtra, AIR 2005 SC 643 “the approach of the learned trial judge as noticed that ordinarily a woman shall not put her character at stake, may not be wrong but cannot be applied universally. Each case has to determined on the touchstone of factual matrix thereof.”
In Mt. Champa Pasin & others v. Emperor, 10.01.1998, Patna High Court, Adami and Macpherson, JJ., Cr.As 208 and 242 of 1927; AIR 1928 Patna 326 a division bench of Patna High Court, as far back as in the year 1928, after inferring the prosecutrix a person with dubious chastity, proceeded further and observed as follows, “With regard to the offence under S. 354 it is only committed when a person assaults or uses criminal force to a woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty. To my mind the incidents and the conduct of Lakhpatia are clear indications that she either had no modesty to mention or that it was not such as would be outraged by any of the acts which are attributed to Wilayat and the other male accused after the alleged sexual intercourse in the open with Wilayat. Even if she had some remnants of modesty, the credible evidence in this case, which is meagre, does not show that it was in any way outraged by the overtures to her.”
Subsequently in State Government, Madhya Pradesh v. Sheodayal Gurudayal, 23.11.1995, Nagpur High Court, K.T. Mangalmurti & Bhutt JJ., Cr. A 219 of 1954; AIR 1956 Nagpur 8: 1956 CriLJ 83, a division bench of Nagpur High Court, holds, “In the instant case, on the findings that we have arrived at, there is no offence with S. 354, Penal Code, as there can be no outrage of a woman’s modesty where she is a willing party. The presence of injuries on the person of Shanti, although indicative of the use of force, do not, in the circumstances of the case, signify her unwillingness to the act. It only indicates that the respondent, in his passion to which Shanti was also a party, had committed some excess in his excitement. Consistently with our findings, therefore, we set aside the conviction under S. 354, Penal Code and acquit him of the charge.”
In Raj Kumar v. State of M.P., the court observed “it is apparent that the prosecutrix was a consenting party. If a person teases any woman and she was a consenting party then, it cannot be said that by overt- act of the accused, any criminal force was used by him and therefore, due to consent of the prosecutrix, no offence punishable under section 354 of IPC shall be made out in such a case.
In Raghunath vs State of Maharasthra, 23.1.1987, Bombay High Court, B.G. Deo, J., Criminal Appeal No. 86 of 1982; 1987 (3) BomCR 106 Bombay High Court holds, “(9). The concept of consent given by the minor has undergone a modification in section 90. A person who is above twelve years of age can give a consent if there is no fear of injury or misconception of fact and if there is no unsoundness of mind and there is understanding of the nature and consequences to which the said person who is above twelve years of age but may be a minor gives his consent. Thus a girl of fifteen years can give a consent and thereby vitiate the prosecution of another person under section 354 of the Indian Penal Code for using criminal force calculated to outrage her modesty. (10). The criminal force which is necessary for being used under section 354 of the Indian Penal Code is therefore, under section 90 is not the one with consent which has been given by the victim who is under twelve year of age and who knows the consequences of the act and yet gives the consent.”
Therefore, when the woman is aged 12 years or above, is of sound mind and through such acts, she was not put under any kind of fear, threat or intoxication and consent is apparent on the facts, then such a plea can definitely be raised to rebut the allegations of outraging of her modesty, sexual harassment, disrobing, voyeurism and stalking.
Under S. 509, it is an offence for any person who, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman. The sentence shall be imprisonment up to 3 years and fine.
Under section 375 IPC, a man commits rape, if he penetrates his penis, to any extent, or inserts to any extent; any object or a part of the body, not being the penis, or manipulates any part of the body of a woman so as to cause penetration into or applies his mouth to the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person, against her will; without her consent, with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt; with her consent when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent; with or without her consent, when she is under 18 years of age; or when she is unable to communicate consent. Consent herein is an unequivocal, voluntary agreement, when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. The exception to this penal provision is that neither the medical procedure or intervention nor sexual intercourse or sexual acts with his wife, aged 15 or more, shall constitute rape.
Law Commission of India, in its 172nd report, submitted to the Government of India on March 25, 2000, recommended, inter alia, that the offence of ‘rape’ be substituted by the offence of ‘sexual assault’, a gender neutral phrase, and that ‘all kinds of penetration’ in the vagina, anus or urethra by a part of human body or by an object, as well as oral sex be brought within its purview. Intercourse means sexual connection[39]. Post these amendments, the law has expanded the definition of rape and says explicitly that the absence of physical struggle doesn’t equal consent and even the slightest penetration into her vaginal orifice constitutes rape because the term vagina shall include labia majora and penetration into urethra, cunnilingus, fellatio are also made offences of rape.
The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. It is not necessary to prove the completion of sexual intercourse by the emission of seed and the intercourse is deemed complete upon proof of penetration only. The slightest degree of penetration is enough. The definition of ‘sexual assault’ includes penile-vaginal penetration, penile-non-vaginal penetration and penetration with an object, amongst others. If penetration cannot be satisfactorily proved, the accused may be convicted of attempted rape. Although the rape victim i.e. a woman as a woman cannot commit rape, up to the extent of penetration, due to the biological reasons. The other forms for a woman indulging into cunnilingus and fellatio are not penal offences.
The amended S. 53A and 146 of India Evidence Act are applicable where the question of consent is in issue and the amended law mandates that the character of the victim, her previous sexual experience(s), shall not be relevant on the issue of such consent or its quality and it shall not be permissible to cross-examine the victim regarding her general immoral character and her previous sexual experience(s).
In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.
Upon conviction for the offence of rape, then sentence shall be minimum 7 years where the age of the woman is above 16 years of age and the offence falls under S. 376 (1) IPC. And when the offence falls under S. 376(2) IPC, then the sentence shall not be less than 10 years, but may extend to imprisonment for remainder of natural life and shall also be liable to pay fine. Offences under 376(2) IPC, prescribe the higher sentencing, i.e., when the accused is a police officer who commits rape within the limits of the police station of his posting, or any police officer in the premises of any police station, or at any place upon a woman in custody of any police officer or any public servant or in custody of his subordinate; or a member of the armed forces which means, naval, military and air forces, other armed forces created by law, paramilitary forces, auxiliary forces under the control either of Central Government or of a State Government, in the area of his deployment; or a member of management or staff of jail, remand home, or of an authorised place of custody, or of women’s or children’s institution which means whether such institution is called an orphanage or a home for neglected women or children or a widow’s home or called by any other name and is established and maintained for the reception and care of women or children, (e.g. waiting rooms for women and children in railways stations, airports, bus stands, girls hostels, toilets and wash rooms for women), on any of the inmates; or a member of management or staff member of a hospital on a woman in that hospital and hospital means the precincts of the hospital, its reception and treatment of persons during convalescence, or persons requiring medical attention or rehabilitation; a relative, guardian, teacher, a person in a position of trust or authority towards the woman on such woman; or any person who commits rape during communal or sectarian violence; or rape on a woman knowing her to be pregnant; or on a woman of under 16 years of age; or on a woman incapable of giving consent; or a person being in a position of control or dominance over a woman, commits her rape; or commits rape on a woman suffering from mental or physical disability; or a person while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or commits repeated rape on the same woman.
Under S. 376A of IPC, if the woman suffers any injury at the time of her rape, which causes her death or she goes into a persistent vegetative state, then the minimum sentence shall not be less than 20 years but may extend to imprisonment for remainder of natural life or the convict shall get death sentence.
However, it would be requirement of criminal jurisprudence that the opinion of doctor is necessary to determine permanent vegetative state.
Under S. 376B of IPC, it is an offence for an ex-husband to commit sexual intercourse, without the consent of his legally divorced wife or the wife who is living separately, even without legal separation, and the sentence shall be imprisonment for a term not less than 2 years but may extend to 7 years and the convicted husband shall also pay fine. However, in view of S. 198B CrPC, the Court shall take cognizance of this offence only upon prima facie satisfaction of the facts which constitute the offence, upon a complaint filed only by the wife.
Under S. 376C of IPC, it is an offence for any person who is in a position of authority or is in fiduciary relationship with a woman and commits sexual intercourse, oral sex, unnatural sex, cunnilingus or fellatio with her, provided by doing so he has abused his position of authority or of fiduciary relationship with her by inducing her or seducing her, despite the fact that such sexual connection was with will and consent of such woman. It shall further be an offence for a Superintendent or Manager of a jail, remand home or other place of custody established by law in force, whether such institution is called an orphanage or a home for neglected women or children or a widow’s home or called by any other name and is established and maintained for the reception and care of women or children and for every person on the management or staff of a hospital, if such person commits sexual intercourse with a woman present in such premises, by abusing his position of authority or that of fiduciary relationship, by abusing such position and inducing or seducing her to do aforementioned sexual acts with him.
Superintendent here means the person who by virtue of his position can exercise any authority or control over inmates. Term ‘fiduciary’ implies relationship of confidence or trust and would include children, maids, subordinates, juniors, interns, students, trainees etc. Under S. 376C, the sexual intercourse shall be construed to be rape as defined in S. 375 (a) to (d). The convict shall be sentenced to imprisonment that shall not be less than 5 years but may extend to 10 years and fine shall also be imposed.
Although incest specifically is still not made a separate offence, but a large number of sexual intercourses wherein the male is in position of authority, shall be an offence under 376-C IPC and thus incest in some forms, shall constitute an offence. Sexual intercourses within degree of consanguinity is rightly been not made an offence because such would have been moral policing and venturing into the permitted ethos of some societies, in a large country where various cultures co-exit. One of the potent arguments against incest is that there is certain risk of genetic damage in the offspring of incestuous unions but hardly people indulge in sex to produce children and in societies where marriage in consanguinity has sanction of society then behind it is time tested checks of zero defects in humans born of such unions. Incest between consenting adults committed in private, does not, in the opinion of critiques, fit into the theoretical as well as operational paradigm of criminal law as it is neither ‘offensive or injurious’ nor does it involve ‘exploitation and corruption’ of a ‘specially vulnerable’, ‘weak’ or ‘inexperienced’ individual, none of the parties, therefore, they argue need protection of criminal law and such a legislative restriction, in their perception, amounts to an unauthorised encroachment upon sexual freedom and an unjustified interference with the privacy of the parties involved in incestuous act.[40] Other plausible reason for the non-criminalisation of incest in India could be the fact that law of marriages, influenced by religious tenets of the given community, invariably recognises customary marriages, and some of the communities in India, as a custom, do permit marriages between some customarily identified categories of relatives[41]. However, the Scottish Law Commission, opines, ‘Incest can and often does ’cause psychological harm not only to the actual participants but to the other members of the family, either at the time of the incident or later[42]. Notwithstanding the fact that incest would create a havoc on the family whose sanctimonious laxman rekha must never be crossed, it has disastrous effects on members who are not participating, arouses horror and disgust in them and incest must remain an anathema from the social point of view but criminalisation of incest in all forms shall amount to intervention of individual’s free choice of social sanctions to such matrimonial relations, sexual enjoyment and privacy and it was never the business of criminal law to intervene in the private lives of citizens to enforce standards of morality in sexual behaviour by encroaching upon social norms and consensual acts of evenly placed consenting adults.
Under S. 376D, the offence of rape shall fall in the definition of gang rape, when one or more person, constituting a group or acting in furtherance of a common intention and each of the convict shall be sentenced to imprisonment for a term not less than 20 years but may extend to imprisonment for remainder of natural life and convict shall also be liable to pay fine, which shall be just and reasonable to meet the medical expenses and rehabilitation of the victim.
Under S. 376E, a person previously convicted under sections 376, 376A or 376 D, again commits rape punishable under these sections, then on second or subsequent conviction he shall be sentenced to imprisonment for remainder of natural life or with sentence of death.
Under S. 370, whoever, for the purpose of exploitation (meaning thereby physical or any form of sexual exploitation, slavery, or practices similar to slavery, servitude, or the forced removal of organs), recruits or transports, or harbours, or transfers, or receives, a person by using threats, or using force, or any other form of coercion, or by abduction or by practising fraud, or deception, or by abuse of power, or by inducement, including giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking. Under explanation 2 of S. 370, the consent of the victim is immaterial in determination of the offence of trafficking. The sentence shall be imprisonment not less than 7 years but may extend up to 10 years and the convict shall also be liable to pay fine. When more than one person is trafficked or the person trafficked is a minor, then apart from fine, the minimum sentence shall not be less than 10 years but may extend to imprisonment for life. When more than one minor is trafficked, then apart from fine, the minimum sentence shall not be less than 14 years but may extend to imprisonment for life. When a person convicted for trafficking a minor repeats the offence of trafficking a minor, or when a public servant or a police officer is involved in the trafficking of any person, then apart from fine, the minimum sentence shall be to imprisonment for remainder of natural life.
Under S. 370A, whoever, knowingly or having reason to believe that a person has been trafficked, engages such minor for sexual exploitation in any manner, then the sentence shall be imprisonment for not less than 3 years but may extend to 5 years and the convict shall also be liable to pay fine and when such trafficked person happens to be a minor than apart from fine, the sentence shall be imprisonment not less than 5 years but may extend to 7 years.
Under explanation to S. 197 CrPC, when public servant is arraigned as an accused, then prosecution sanction is not required to launch prosecution.
Sensitized approach towards the victim of rape has enacted for S. 26 in CrPC, which provides for a trial of rape cases, as far as practical, by a Court presided over by a woman.
S. 273 CrPC provides that at the time of recording of the statement of victim of sexual offence, who happens to be a minor, the Court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.
This provision is applicable when the woman is below 18 years of age and the Court may ensure that the accused has an opportunity to see the prosecutrix in such a way that victim is not confronted by him. The prosecutrix is able to identify the accused in Court and is able to make such statement on oath. Once identification is complete, there is no necessity that accused and prosecutrix face each other. However, it is requirement of law that accused is able to hear the statement of the prosecutrix.
S. 309. CrPC provides that the inquiry or trial for offences of rape shall as far as possible, be completed within a period of two months from the date of filing of the charge sheet. All the witnesses, who are present, are to be examined on day to day basis. Adjournment beyond the next day only by the reasons to be recorded;
Without comprehensive expansion of the criminal justice system it’s unclear how fast rape and assault trials will be, but there’s a hope.
Under S. 326-A of IPC, it is an offence when act of throwing acid, causes grievous hurt, results in permanent or partial damage or deformity to, or burns or maims or disfigures, any part(s) of any person and the convict is liable to be sentenced to imprisonment which shall not be less than 10 years but may extend to life. Further the Courts shall impose fine upon the convict and such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim. On the realisation of the fine, the Court shall pay the same to the victim. When the acid has not resulted into grievous hurt, then the offence falls under S. 326-B and the sentence shall not be less than 5 years but it may extend to seven years, apart from fine.
While the amendments have made both the perpetrator and the survivor of acid attacks gender neutral, i.e., it could be a man, woman or a transgender person. The pattern of acid attacks in the last couple of years has shown that the victim is mostly a woman, the perpetrator a man and the acid is thrown with the aim of disfiguring the face and causing other bodily injury to the woman and thereby perpetuating the exercise of power by the man. Many of these attacks were acts of revenge because a woman had spurned sexual advances or rejected a marriage proposal these attacks are often driven by the mentality “If I can’t have you, no one shall.”
This is particularly relevant in case of transgender persons and gay men who are often victims of hate crimes, on account of their gender identity or sexual orientation. Although in India, a pattern of systemic acid attacks on women by men are in order to control the former’s sexuality, one cannot rule out the possibility of the gendered nature of crime surfacing in same sex relations and amongst transgender persons.
S. 96[43] of IPC mandate that nothing is an offence which is done in the exercise of the right of private defence. As per S. 97[44] IPC, every person has a right to defend himself as well as any other person. A new section 100(7)[45] has been introduced which states that if acid is being thrown or administered or attempted to be thrown or administered, upon any person and there is an apprehension that grievous hurt will otherwise be consequence of such act, then the right of private defence or to defend the body of the victim, extends, to the voluntarily causing the death or of any harm to the assailant. It implies that if any person is throwing, administering or attempting to throw or administer acid on any person, then not only the person on whom such acid is being thrown but any other person, who notices such action, and is of the opinion that grievous hurt will be caused if such acid is actually thrown, then preventive measures can be taken and while taking such preventive measures, if death of the assailant is caused then it would not be an offence against the person causing such death. The word ‘administer’ by necessary implication includes, to forcibly putting acid in ear, eye, mouth or any other orifice. However, this right is preventive in nature and would not apply if the acid has already been thrown. Further, more harm than necessary to ward off such attack, must not be caused.
S. 357 CrPC provides for compensation to victims and 357-A provides for victim compensation schemes to be prepared by every State Government in co-ordination with Central Government. A new S. 357-B has been introduced which states that compensations paid to a victim shall be in addition to the compensation paid to a victim of acid attack who suffers grievous hurt and also to the victim of gang rape.
Except for S. 326-A and 376-D IPC, where legislature mandates the fine must commensurate to meet the medical expenses on treatment of the victim, the other provisions do not lay down any guidelines for assessment of compensation. The mandate of legislation for awarding compensation to the victims of crime is not mandatory, except when returning a verdict of conviction under sections 326-A and 376-D of IPC and under any circumstance, it does not create a legal right upon the victim to claim the compensation under the criminal laws. It entirely leaves it to the sweet will of a criminal court to compensate victims of crime and to initiate and move legal machinery to recover the fine, out of which compensation is ordered, or the specified amount of compensation from the offender to pay it to the victims of the offence[46]. The realisation of compensation from accused is a difficult task, unless the convict on his own deposits the amount of fine imposed. S. 421 CrPC provides for realisation of fine from the accused if expenses or compensation has been ordered to be paid to the victim.
The concept of restitutive justice with the idea of payment of compensation to the victims of crime was revised in the 19th Century by some eminent criminologists like Garofelo and Ferri in Italy and Sentham in England[47]. In Delhi Working Women’s Forum v. Union of India; (1995) 1 SCC 14, Supreme Court of India recognised the right of compensation. In Chairman, Railway Board v. Chandrima Das (Mrs.), 28.1.2000, Supreme Court of India, S. Saghir Ahmad and R. P. Sethi, JJ., Civil Appeal No. 639 of 2000; AIR 2000 SC 988: 2000 CriLJ 1473: 2000 (1) JT 426: 2000 (1) R.C.R. (Criminal) 803: 2000 (1) Scale 279: 2000 (1) SCR 480: 2000 (2) SCC 465, Supreme Court held Indian railways and the Union of India vicariously liable to pay compensation to a woman, who was a citizen of Bangladesh and was raped by railway employees.
The past decades were dedicated to the rehabilitation and correction of offender but now the trend has changed to assist, help and compensates the victims of the crime. Victim Assistance Programmes (VAS) are the need of the hour to provide for counselling to cope with the emotional, social and personality disorder due to crime. Since compensation is to be assessed on the facts of each case and after assessing the loss caused to the victim and paying capacity of the convict, as such compensation pools must be created by establishing a special purpose vehicle account, wherein all compensation and fine be deposited and disbursed equally to all victims, irrespective of the fine and compensation recovered from the convicts.
Courts must deal with sexual assault cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case however, the false allegations do exist and there is no presumption that the version of every victim will be nothing else but a gospel truth. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility of doing justice to both the victim as well as the accused.. The effect emanating from the decision of a case affects the life of a person in ways that at times have far-reaching and epoch-making impact, especially because as Dworkin says, “law often becomes what judges say it is.”[50]
S. 119 of Evidence Act, provides that a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence. Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement and such statement shall be videographed.
It is commendable that the Criminal Law Amendment Act has included disrobing, voyeurism and stalking as penal offences. It is aimed at changing attitudes and mindsets, social perspectives, gender sensitization and institutional cultures. The “two finger” test or PV test, which was never the requirement of law but a practice adopted by doctors, at the instance of insensitive police, is no more required. Providing for the minimum sentence would reduce the rampant disparity while sentencing. This is an effort to combat rape and violence against women in India. It also reflects the government’s desire to be seen as tough on crimes against women. It has laid out a comprehensive roadmap for women’s constitutional equality. Various provisions introduced to safeguard the dignity and the honour of the women in India, and various things not done, which ought to have been done, have their own specific advantages and disadvantages.
Due to social repercussions, trend in India is that the victims of sexual offences inform the incident firstly to the family and then it is for the family to decide whether to report the matter or not. The family may, due to a variety of factors, may also not make it public, whose knowledge of sexual abuse is often worst for the abused than for the abuser; however, the time is ripe for the women and her families, to speak up against all forms of sexual harassment and it is high time for the society to stand with them. A social awareness is required to understand that the sexual act is not shameful for the victim but for her perpetrator; it shall never bring disgrace to her family but to the family of the perpetrator and time is to empathise with the victim of sexual assault and let her narration be not reduced to gossips.
In a culture of communal and moral policing, raising the age of consent to 18 years, gives the parents of a young girl, who falls in love and elopes to get married to a boy of a different caste, class, religion or community, an easy tool to prosecute him and members of his family once they are able to bring the girl back to their fold. It only serves to increase societal control over the lives and decisions of young persons, both young men and women.
There are so many instances where the false cases have been filed by the families of girls, who had voluntarily eloped with or married outside the community or the caste or class, or of the girls noticed by the people in compromising positions. It is such incidences which cause the rise in the filling of the false cases to showcase the parental control over a girl and to put forth a strong message to other members of the society.
In the Criminal Law Amendment Act, 2013, the hoisting of mandatory minimum sentence in almost every amended penal provision, will eventually prove to be its own petard because even when the girl was a consenting party to the sexual intercourse, but was just one day under the age of 18 or 16, still, the convict shall be liable for minimum sentence of 10 years or 7 years, whereas in the cases of statutory rapes, the prudent and rational recourse was to provide for reducing sentence with increasing age.
We must reduce the age of consent for coitus to 15 because neither the previous age of 16 nor the increased age of 18 would be in tune with the changed times and under no circumstances the higher age provides additional protection to young women against rape or sexual assault. The Indian Penal Code[51] was drafted by the First Indian Law Commission of which Lord Macaulay, was the President and was passed on October 6, 1860. After one and a half century, the women now are better informed and have information at tap and increasing the age to 18 negates the ground reality that as on now a girl is times ahead of the girl of 1860s. Even now, a wife aged 15 or above, can accord consent for sexual intercourse with her husband but strangely an unmarried girl cannot till she attains the age of 18 and it shows the sorry state of affairs of parental control over their daughters because if parents want to marry her at an age lesser than statutory age of 18 years, then her parents can authorise her to indulge into coitus and the marriage will automatically infuse into her all the information about sex, which in the absence of marriage, she remains immature till she is eighteen.
In India, the role a politician play is to appease the voters and not to educate them. Now the women as a class are fast emerging as a pressure group and every political party wants to take mileage by pretending to be its well wishers. S. 376-C is a result of mad rush to please women groups and render assurance to them as their saviours and all this for their votes. In the entire process, we have miserably failed to understand that it would be travesty of justice to males and to their family members, who also comprise of females, when men shall be imprisoned for doing a natural thing with a consenting adult woman, who at that time had no issues but subsequently due to failed objectives, chose to allege exploitation and simply later on she states that she was exploited because of the position of his authority or the fiduciary relationship, the man would be termed as a criminal and sent to jail. The introduction of S. 376-C, shows the indifference of the government, the legislature and the political parties to work in harmony to bring prudent legislatures instead of rushing to pass laws for political mileage, bringing distrust between man and woman, forcing men to reconsider employing the woman or working with women, befooling the media and playing with social harmony. Proverb that the people who dig trenches for others are the first to fall in them shall again be substantiated now. The rhetoric of the euphoria of enactment of S. 376-C, tougher than which may never be seen any time in future, is revengeful, apocalyptic and irrational; crucifying the alpha male having coitus with an informed consenting adult female, shall implode earlier than the State would have imagined, giving way to lesser interference by the penal laws in the personal lives of the subjects.
In today’s competitive world where people spend most of their time at their work place, often intimacy arises between the colleagues and with opening cultures, people living in sprawling metros, where a person does not know the next door neighbour, there is every possibility of people taking a step ahead and establish sexual relationship. The possibility of sexual abuse looms large in any fiduciary relationship, in any industry and at any workplace[52]. Sexual harassment of women at the workplace is aided by skewed gender equations in the organisational hierarchy[53]. S. 376C though may appear to be deterrent in its approach but in pursuit to deter the society the legislation has restricted ‘something natural’ and put fetters on so many intimate relationships because on relationships turning sour there may be a great risk of false complaints looming large. A very large number of adults, married or single, do indulge into consensual sex with those females, who technically will be falling in fiduciary relationship or to whom the male will be a person in authority. The literal meaning of the word ‘position of authority’ shall include every boss over his subordinate. It is quite natural for a woman to be impressed by a successful man, who can be her boss, her teacher, her employer and in the process it would be very natural for her if she intimates with him and may like to go physical with him. To make all such sexual connections as penal offence amounts to interference of state in the social orders and moralising the orgasms when the female has coitus with a male in the position of authority or in fiduciary relationship with her. Women today are sensible enough to see through men seeking to cheat them.
The looseness and vagueness of drafting of these amendments will certainly make life very miserable for the people who would face false prosecutions. The fear of false complaints is always present and it cannot be undermined. The safeguards made by law to protect the innocent and the humble women, is today also being used by some self serving women and their protegees, to fulfil their own personal agendas. Judiciary and police are being used as tool to take revenge by a large number of vested interests. There are always chances of filing of false complaints by women or at the behest of some vested interests, who have some form of enmity against the man or the persons he is concerned with. Deciding which of the allegations are true is a very difficult task and it puts a lot of pressure on the investigators and the judges to determine the true nature of an offence. Indian legal system owes its origins to common law. The maxim ubi jus ibi remdium means wherever there is a right, there is a remedy. To ensure that these indispensible rights and remedies are aptly redressed, CrPC needs to be amended in a pragmatic way. So far as administration of criminal justice is concerned, it is undoubtedly the duty of every State to ensure that criminal justice is administered even-handedly; Justice should be done to both, i.e. to the accused as well as to the victim[54]. The people, who are acquitted on the grounds that the allegations were false or the case was disproved, very rarely go for malicious prosecution or claim compensation or file complaints. Legislatures need to consider automatic initiation of enquiry against the maker of false allegations and commencement of proceedings for payment of compensation to the person accused of. When false allegations are levelled, it is not only traumatic to the person accused of but also brings disrepute to his entire family, friends and neighbourhood. It has been rightly said that a Judge, who has never committed an error is yet to be born[55]. The solution is to amend the laws relating to perjury and punish and impose hefty fines on the women bringing false complaints while ensuring genuine cases get redress.
The age of marriage of women must be increased to 21 from the present 18 years, bringing it at par with men. A woman, who can marry at the age of 18, is discriminated as against man, who would marry only on attaining 21 years. The anti-female social taboos, harsh religious injunctions, serious educational handicaps and unwarranted economic discrimination have cumulatively manipulated “a sex apartheid”[56]. The ground reality is that when a woman consents to marry on completion of 18, then such consent lacks information about the consequences of marriage, wherein she has grown up in an environment of a girl’s only role in the family of her birth is to leave that family by getting married and she does not know that being still immature, she may be overpowered by masculine authoritarianism. Marriage is a serious commitment and entails many long-term responsibilities of life. There is merit in keeping one uniform legal age of marriage for every human being.
IPC exempts marital rape in two situations, one when the wife is under 15 years of age and second with ones wife, who is living separately, under a decree of separation or otherwise. Feminists had demanded that marital rape should also be considered a punishable offence, but this demand was rejected and thus the government supported the popular social belief that a married man has the right to have sexual intercourse with his wife, with or without her consent, retaining marital rape, a reminder of colonial hangover of familial and sex ethos, as an exception to rape. The rejection certainly means that the law did not meet the aspirations of the women’s movement. In spite of this limitation, popular debate on the subject enhanced self-confidence and sense of solidarity within the women’s movement. It must be recalled here that the idea of marital rape exemption and the consequential immunity from liability of a husband for ‘raping’ his wife is premised on the assumption that a wife does by the fact of marriage give an implied consent in advance for the husband to have sexual intercourse with her[57]. The statement of common law of England, to which Indian law owes its origin, reads, “But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”[58] However, in 1991, a Court of United Kingdom, somersaulted and observed, “Hall’s proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed” R v. R (1991) 4 All E R 481 at p. 483-484 it was further observed, “One of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Hale’s proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable.” The law simply echoes what social mores often take for granted, that women have no right to their own bodies and that their will is subject to that of their husbands[60]. The National Commission for Women in India recommended the abolition of marital rape exemption[61]. A person to whom one entrust her life, eventually starts raping her for his lust, betraying the very trust of marriage, has to be taken note of by law makers, who can no more remain intransigent. On reluctance to sexual intercourse by wife, a husband may enforce it under civil law but it shall never give any right to him to forcibly indulge in sexual intercourse with his wife, against her will or against her consent. However, the difficulty would be of false allegations on sour relations and remedy can be very strict law of limitations to take cognizance of such allegations.
The new amendments which have been made do not really grapple with the complex aspects of reality and the subtle dimensions of investigation and prosecution of offences relating to women. In the process, while the most important need of protection to women is to some extent taken care of, the scope for abuse which can easily built into the amendments has been lost sight of. Prevention of crime is the principal object of punishment and the measure of punishment consequently varies from time to time according to the prevalence of a particular form of crime and other circumstances[62]. Instead of providing for stringent sentencing, a middle path could have been adopted, which would have not been brutal, inhuman, cruel; leaving no scope for reform of the perpetrator of crime. Law need to be amended that before the convicting court pronounces the sentence, reports of diagnosis of accused by psychologists and sociologists shall be taken into consideration and while undergoing sentence, the nature of duties in prisons, must also be as per the periodic diagnostic reports of the prisoner.
Despite major amendments, the infamous section 377 of the Penal Code penalises “carnal intercourse against the order of nature” is not repealed. “Much gratitude is due to that great clairvoyant Henry VIII for having realized in 1533 that almost 600 years later, the subjects of the Indian subcontinent would need protection from these debauched adults who dare to engage in private and consensual acts of sex. He pushed through the Buggery Act, describing it as an ‘unnatural sexual act against the will of God and man’ and provided the lenient sentence of death by hanging. The appropriately named Indian Penal Code enacted as recently as 1860 traced the origins of Section 377 to this wonderful act of legislation, but some misplaced generosity ensured that the sentence would only be imprisonment for life.”[63]
Over the past 150 years, Section 377 has been interpreted to punish penile non-vaginal sex.[64] Moreover, despite numerous protests against S. 377[65], that is the sex against the order of nature, the notorious section still subsists, ignoring the international trends in the globalised society when the existence of forms of sex like lesbians, gays, bisexuals and transgender sex (LGBT) is an acknowledged fact. The new laws only protect women from rape and sexual assault and not men and transgender people is a major failure. Sodomy performed against the males by the males need to be dealt with on the lines of rapes. The recent verdict of Supreme Court upsetting the land mark judgment of Delhi High Court in Naz, has put the ball in the court of the legislature. “If only the Supreme Court judges had read the story of the woman who marries another woman while being married to a man, they would have understood that a single sexual identity is impossible. If only they had understood that they cannot understand, let alone legislate, how desire works, their verdict would have been very different.”[66]
Explanation. – Peneration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Surprisingly the most archaeological penal offence of adultery still remains a penal offence when there is no justification of it to be of penal servitude and objective can be achieved on adultery being a ground for divorce. Adulterous relations leave deep scars on the faithful spouse but to make it penal, do not offer any solution to the problem of breaking marriages. In the present form, s. 497[67] IPC, makes consensual sexual intercourse between married woman with her consent but without the consent or connivance of her husband, continues to be an offence, which inter alia permits husband to have complete sexual control over his wife and not visa-versa.
The current situation in which bystanders do not help victims of crime reflects a sad state of societal affairs and must be addressed. The investigating officer, while recording the statement of a witness would rarely apprise such witness of the narration of the statement recorded by him under S. 161 CrPC. There is a need to provide for a specific provision wherein the witnesses are treated as guests of the Courts. In Court, when the witness speaks the fact, then such fact not being the revelation under S. 161 CrPC, he is declared hostile witness. In the trial Court, some of the public prosecutors, in the full public glare and in the presence of Judges have a tendency to snub such witnesses and the attitude of some of the presiding officers towards witnesses is also not very cordial. There is a recent trend that the some of the courts would issue notice to such a witness accusing him of siding with the accused. All these scary experiences tend people not to become witnesses. The law needs to ensure availability of a process of investigation and trial, particularly a court environment which promotes dignity and respectability of each and every individual engaged or called upon to be part of dispensation of Justice.
To conclude, in view of these amendments complaints against sexual offences will definitely be registered and investigated and swift justice is likely to reduce crime against women. Now the security blanket that protected misogynist police officers and other public servants who failed to register complaints and compromised victim’s rights during investigations has been removed. All healthcare providers must also now give survivors of sexual violence or acid attacks free and immediate medical care. But the needed a complete overhaul, which was not done, probably due to political urgency to carryout the amendments. Loosely worded laws enacted in haste as fire fighting measures or social change agents are routinely abused[68]. A member of the National Human Rights Commission wrote, “Men forced to live like brutes will kill like brutes. When these men, society’s victims, find a victim, they take a lifetime’s frustrations out on him or her. Their murders and rapes are unlikely to be refined. Their brutality might appal a court and nauseate the middle class, by whose standards they are judged, but it is a product of what the community has made of them. This is what should shock the collective conscience of the community.[69]”
Prosecution and punishment is only a small part of the solution and it comes after the commission of the offence. The goal of law is to sustain life and not to support its destruction. The challenge is to prevent sexual assaults in the first place.
Acknowledgments to: Advocates Divya Sood, Vibhuti Nagta, Parul Verma, Garima Kuthiala
© Chawla Publications (P) Ltd.
Trafficking in human beings is not a new phenomenon. Trafficking in women and children for commercial sexual exploitation and other abusive purposes is rampant in India. Women, children and men have been captured, bought and sold in market places for centuries. Human trafficking is one of the most lucrative criminal activities. It is estimated by the United Nations (UN) that 1 to 4 million people are trafficked worldwide each year[1]. Trafficking in women and children is an operation which is worth more than $10 billion annually. The NHRC Committee on Missing Children has reported that about 12.6 million (Governmental sources) to 100 million (unofficial sources) are stated to be child labour; 44,000 children are reported missing annually, of which 11,000 get traced; about 200 girls and women enter prostitution daily, of which 20 per cent are below 15 years of age Bachpan Bachao Andolan v. Union of India and Ors. (Writ petition [C]no. 51 of 2006, Supreme Court of India, decided on 18th April 2011).
Trafficking of women and children for commercial sexual exploitation is one of the most inhuman issues existing in our society. Internal trafficking of women and children for purposes of sexual exploitation, domestic servitude, bonded labour, and indentured servitude is highly widespread across the country, either because their husbands deserted them, or have had broken marriages and are into trafficking through coercion and deception or due to traditional compulsions like Devadasi.[1] Indian women are subjected to several forms of sexual exploitation on the pretext of economic security.
According to estimates by the United States Government, trafficking involving one million people is going on across international borders every year.[1] India, along with Thailand and the Philippines, has 1.3 million children in its sex- trade centres. The children come from relatively poorer areas and are trafficked to relatively richer ones.[2] According to an International Labour Organization (ILO) estimate, 15 per cent of the country’s estimated 2.3 million prostitutes were children, while the U. N. reported that an estimated 40 per cent were below 18 years of age. A large proportion of the women forced into sexual exploitation were tribal’s and Dalits[3] Sixty per cent of prostituted women in Mumbai’s red-light district areas are infected with Sexually Transmitted Diseases (STDs) and Acquired Immuno Deficiency Syndrome (AIDS). More than half of Mumbai’s 1, 00,000 prostitutes are infected with Human Immune deficiency Virus (HIV).[4]
Within the country, women from economically depressed areas often move into the cities seeking greater economic opportunities, and once victimized, traffickers force or coerce them into the sex trade. In some cases, family members sell young girls into the sex trade to sustain their family. Extreme poverty combined with the low social status of women often result in the handover by parents of their children to strangers of what they believe is employment of marriage.
Many indigenous tribal women are forced into sexual exploitation. According to the Indian Centre for Indigenous and Tribal Peoples (ICITP), more than 40,000 tribal women, mainly from Orissa and Bihar, were forced into economic and sexual exploitation. Press reports indicate that children were routinely trafficked from Assam into Haryana and other North Indian states for sexual slavery under the pretext of entering into arranged marriages. Similar to this, many Dalit women also face the triple burden of caste, class and gender. Dalit girls have been forced to become prostitutes for upper-caste patrons and village priests. Hotel Priya v State of Maharashtra & Ors Decided on 6th May, 2011 [Bombay High Court].
Besides inter-state trafficking, inter-country trafficking from Nepal, Bangladesh and Ukraine has substantially promoted immoral trafficking in India.[1]
The National Commission for Women (NCW) reported that organized crime plays a significant role in the country’s sex trafficking trade and that women and girls who were trafficked in the brothels frequently were subjected to extortion, physical beating or assault and torture, rape and sexual abuse, starvation, isolation in dark rooms, injuries, beating with hot iron rods, forced to use drugs and drink, multiple rape, mental torture, forced abortions, burning with cigarette butts and terrorised by gangs and criminals.[1]
Several factors force women and girls to fall into trafficking. The socio-cultural domain is entangled with traditions, superstitions and male chauvinist concepts. These encourage discrimination against women. The caste system and lack of social awareness give rise to degrading social status of women and exploitative traditional practices like dowry and child marriage practice give a neglected status of the girl children. Other reasons include economic exploitation, unfair distribution of wealth, lack of economic justice, unequal land holding system, no role for women in economic decision, denial of women’s rights to parental property, lack of training, skill education and employment. Similarly, lack of political commitment, i.e., issues related to women and children are not prioritised into the political programme. In addition, the lack of adequate laws for the protection and prevention of children who are victims of trafficking and selling complicate the situation. Ineffective implementation and enforcement of the laws and policies regarding the rights or women and children and lack of implementation of national, regional and international commitments on human rights issues are also responsible.
A study of gender reality over the years reveals how violence has always been used as a means to subjugate women and keep them in a position of subordination. Gender-based violence may take different forms and there may be distinctive patterns or manifestations of gender violence. Gender violence is present in all societies; it is a structural phenomenon embedded in the context of culture, socio-economic and emotional dependency. It is produced within class, caste and patriarchal social relations in which male power dominates. A narrow definition of violence may define it as an act of criminal use of physical force. But this is an incomplete definition. Violence also includes exploitation, discrimination, upholding of unequal economic and social structures, creation of an atmosphere of terror, threat, or reprisal and forms of religio-culture”. Varsha Kapoor v Union Of India & Ors on 3rd June, 2010 Delhi High Court, http://www.indiankanoon.org/doc/1107375
International conventions exist to punish and suppress trafficking especially women and children[1] Trafficking is now defined as an organized crime and a crime against humanity. The convention being an international convention is limited to cross border trafficking but does not address trafficking within the country.
The malady of prostitution is not only a social but also an economic problem and, therefore, the measures to be taken in that regard should be more preventive rather than punitive. This devastating malady can be suppressed and eradicated only if the law-enforcing authorities in that regard take very severe and speedy action against all the erring persons such as pimps, brokers and brothel keepers.
In spite of the stringent and rehabilitative provisions of law contained in the Constitution of India, 1950; The Immoral Traffic (Prevention) Act, 1956; The Indian Penal Code, 1860 and The Juvenile Justice Act, 2000; it cannot be said that the desired result has been achieved. It cannot be gainsaid that a remarkable degree of ignorance or callousness or culpable indifference is manifested in uprooting this cancerous growth despite the fact that the day has arrived demanding an objective multi-dimensional study and a searching investigation into the matter relating to the causes and effects of this evil and requiring the most rational measures to weed out the vices of illicit trafficking. Vishal Jeet v Union Of India (AIR 1990 SC 1412).
Article 23 of the Constitution of India which is a Fundamental Right and which has been put under the caption ‘Right against exploitation‘ prohibits ‘traffic in human beings and beggar and other similar forms of labour’ and provides that any contravention of Article 23(1) shall be an offence punishable in accordance with law. The expression ‘traffic in human beings’ is evidently a very wide expression including the prohibition of traffic in women for immoral or other purposes.
Article 35(a) (ii) of the Constitution reads that “Notwithstanding anything in this Constitution, Parliament shall have, and the legislature of a State shall not have, power to make laws for prescribing punishment for those acts which are declared to be offences under this part. The power of legislation, under this article, is given to the Parliament exclusively, for, otherwise the laws relating to fundamental rights would not have been uniform throughout the country. The power is specifically denied to the state legislatures.
In implementing of the principles underlying Article 23(1), The Suppression of Immoral Traffic in Women & Girls Act, 1956 (SITA) has been enacted under Article 35 with the object of inhibiting or abolishing immoral traffic in women and girls.
In this connection, it is significant to refer to Article 39 which relates to ‘Directive Principles of State Policy‘ under Part IV of the Constitution. Article 39 particularizes certain objectives. Clause (f) of Article 39 was substituted by the Forty- Second Amendment Act, 1976. One of the objectives under Clause (e) of Article 39 is that “The State should, in particular, direct its policy towards securing that the tender age of children are not abused”. One of the objectives under Clause (f) is that “The State should, in particular, direct its policy towards securing that childhood and youth are protected against exploitation and against moral and material abandonment”. These objectives reflect the great anxiety of the Constitution-makers to protect and safeguard the interests and welfare of the children of our country. The Government of India has also, in pursuance of these constitutional provisions of Clauses (e) and (f) of Article 39, evolved a national policy for the welfare of the children.
It will be apposite to make reference to one of the principles, namely, principle no. (9), formulated by the Declaration of the Rights of the Child adopted by the General Assembly of the United Nations on November 20, 1959. The said principle reads:
“The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form.”
Before the adoption of SITA, there were enactments in some of the states for suppression of immoral traffic, but they were not uniform, nor were they found to be effective. With the growing danger in society to healthy and decent living with morality, the world public opinion congregated at New York in a convention for suppression of traffic in persons for exploitation for immoral purposes. Pursuant to the signing of that convention on May 9, 1950, our Parliament has passed an Act called “Suppression of Immoral Traffic in Women and Girls Act, 1956 which is now changed as “The Immoral Traffic (Prevention) Act, 1956” to which certain drastic amendments were introduced by the Amendment Acts of 46 of 1978 and 44 of 1986. This Act aims at suppressing the evils of prostitution in women and girls and achieving a public purpose viz, to rescue the fallen women and girls and to stamp out the evils of prostitution and also to provide an opportunity to these fallen victims so that they could become decent members of the society.
Besides the above Act, here are various provisions in the Indian Penal Code, 1860 such as Sections 366-A (dealing with procreation of minor girl), Section 366-B (dealing with offence of importation of girl from foreign country), Section 372 (dealing with selling of minor for purposes of prostitution etc.) and Section 373 (dealing with 367 the offence of buying minor for purposes of prostitution etc.).
The Juvenile Justice Act, 2000 which provides for the care, protection, treatment, development and rehabilitation of neglected or juveniles in conflict with law contains a specific provision namely Section 12 which empowers a police officer or any other person or organization authorized by the State Government in this behalf to take charge of any neglected juveniles and bring them before the board constituted under this Act. The board under Section 33 has to hold an enquiry and make such orders in relation to the neglected juveniles as it may deem fit.
The Immoral Traffic (Prevention) Amendment Bill, 2006 was introduced in The Lok Sabha on May 22, 2006. The Bill has been referred to the Parliamentary Standing Committee on Human Resource Development.
The Immoral Traffic (Prevention) Amendment Bill, 2006 amends the Immoral Traffic (Prevention) Act, 1956 to combat trafficking and sexual exploitation for “commercial purposes“. The Bill deletes provisions that penalised prostitutes for soliciting clients. It penalises any person visiting a brothel for the purpose of sexual exploitation of trafficked victims. All offences listed in the Bill would be tried in camera, i.e., the public would be excluded from attending the trial. The term “trafficking in persons” has been defined with a provision for punishing any person who is guilty of the offence of trafficking in persons for the purpose of prostitution. The Bill constitutes authorities at the centre and state level to combat trafficking.
While prostitution is not an offence, practising it in a brothel or within 200 m of any public place is illegal. There seems to be a lack of clarity on whether prostitution ought to be a legitimate way of earning a living if entered into by choice.
The trafficking of women and children seems to be a journey from marginalization to stigmatization and ostracism via exploitation and torture. This paper in its conclusion would like to provide certain suggestions in order to combat trafficking.
International organizations should support research institutions and non-governmental organizations to undertake state-specific research into the trafficking phenomenon in order to disseminate credible information for public consumption.
Both State Government and the Central Government should be assisted to train, equip and empower personnel who are charged with overseeing the in and out migration of its people with the aim of protecting them against the nefarious activities of the traffickers.
The government should be well equipped to provide better rehabilitation facilities to women during natural disasters. The problem of trafficking does not end with the return of the survivors. There should, therefore, be proper rehabilitation and reintegration programmes for those who return to their homeland.
© Chawla Publications (P) Ltd.
The History of mankind is a history of repeated injuries and usurpations on the part of man towards woman, having in direct object the establishment of tyranny over her.[1]
Discrimination all over the globe remains an ultimate reality. She is discriminated against by law and by custom, rendering her among the most vulnerable disabled and disadvantaged social groups. However, the emergence of women’s voice on law led to the convening of the First World Conference on Women in Mexico in 1975. The World community accepted the Declaration that ‘women have a right to equal treatment as men. No restrictions can be imposed on the eligibility of men and women to participate in any capacity and under conditions of equality in its principle and subsidiary organs.’ The Convention on Elimination of All Forms of Discrimination Against Women too provided for giving equal rights to women on equal terms. It concentrated on 3 core areas…..
1. The rational underlying international instruments which have been adopted relating to the status of women.
2. The motivation of states in adoption of such text.
3. The likely success of international law as a means of providing women with solutions to the problem which they face in exhibiting their role in the society.
The Fourth World Conference on Women at Beijing emphasized on women’s vision of a transformed world <196> a world where equality, peace, well-being for all may reign supreme.
Women’s empowerment emerged as a commonly used terminology at a world summit for social development at Copenhagen in 1995. Empowerment is a manifestation of redistribution of power that challenges the patriarchal ideology and male dominance and of gaining control over the sources.[1] Women empowerment is thus, an ideology which helped in breaking down the social, economic, educational, cultural and psychological barriers to upgrade their status from passive recipients to active participants and thus, ensure gender equality.
The agenda for women’s empowerment called upon to protect and promote equal rights and inherent dignity of women, removal of obstacles, to women’s participation in public life and decision making at all levels and to ensure equal access in their struggle for self-actualization and promotion of autonomy to ensure access to productive resources.[1]
Social empowerment implies promotion of social capabilities such as education, health, cultural aspects and women’s honour. Economic empowerment implies entitlement to employment, income, property, productive resources and equal distribution of benefits of development.
Despite the Constitutional guarantee of ‘Equality Before law’ and ‘Equal Opportunities for All’ prohibition on discrimination, gender inequities are among the most pervasive though deceptively subtle forms of inequality the world over. Socially, she is referred to as the ‘Better half of man’, ‘a futile giver’, ‘a sustainer of life’, without whose presence the survival of the world is impossible yet she is designated as weak, subordinate and second fiddle to man. She is defined in relation to men not in relation to themselves. ‘She is protected by the father in her childhood, by the husband in her adulthood and by the son in her old age’. She is never fit for independence. The patriarchal value system, the prevailing power structure and the traditional mind set of men wrapped with and rooted in the notions of inherent inequality between men and women restricts women’s empowerment. The social scenario perpetuates practices derogatory to the dignity of women, deny them free and equal access to ‘opportunity structure’ for self growth and development. She remains socially and economically invisible.
Educational Empowerment is a key to secure equality, justice and economic empowerment. It is self sufficient to make them cognizant of their legal and constitutional rights, opportunities of self expression and growth, welfare programmes for economic productivity and autonomous existence and a self- fulfilling life in he family and community.[1] Though, education has been made a fundamental right under Article 21-A of the Constitution yet it is not free from bias against women. They are viewed as passive recipients of development and emphasis is on their reproductive role while men assume productive role. They are denied opportunities to participate in decision making even if they are for her well being. She has no right to decide the matrimonial home, number of children, when and how her body is to become a vehicle of procreation and whether she would like to retain or abort the female foetus. Her consent is presumed. Social empowerment of women appears to be myth when the social patriarchs exercise exclusive power to declare that the parties would no longer be treated as husband and wife but brother and sister since they were from the same gotra and marriage is prohibited. The societal bias has multiplied the crime of female foeticide resulting in upsetting the male female sex ration. In Punjab there is 793 females per thousand males. Equality appears to be diminishing as at every platform she is discriminated. The Hindu Succession Act, 2005 merges the difference between son and daughter as it gives birthright to both son and daughter but this initiative of law has deprived the women love and affection of her brothers as she is viewed as a grabber of property who will claim her share.
Gandhiji had once remarked ‘I were born a women, I would rise in rebellion against any pretension on the part of man that women is born to be his plaything Man is born of a women, he is flesh of her flesh and bone of her bone’.
Women are overburdened. They constitute half the world’s population, perform nearly 2/3rd of its working hours, receive 1/10th of the world’s income and less than 1/100th of the world’s property are still regarded as passive participants, unproductive, even though they contribute more to the family income and play the dual role of baking the bread and earning it too.[1] Still her contribution to the economy is undermined. They are engaged in the rural and urban areas, in agriculture, domestic, organized and unorganized sector as skilled and unskilled laborers and are usually underpaid and exploited ,forced to work in low perks low status with no future prospects of security tenure ,gratuity, pension, paid leave ,old age care etc.in contrast to their male counterparts .They are victims of unemployment, job insecurity, social insecurity, sexual harassment at workplace. Though, women’s work participation increased from 22.7% in 1991 to 25.6% in 2001 but women’s status has neither improved nor have they gained economic independence. She continues to be a disadvantaged group as they are concentrated and segmented as wage earner, casual labourer, domestic servant while no legal safeguards are available to protect and promote her. Though innumerable laws have been enforced to ensure healthy working conditions and equal pay for equal work without discrimination, Equal remuneration to men and women for the same work , ensuring Maternity Benefits to women, still empowerment is restricted to a marginal group. The government introduced a number of schemes to economically empower women such as Sampoorna Grameen Rojgar Yojna for families below the poverty line where women were employed as wage earners, Swavlamban where woman were trained in non-traditional areas like electronics, garment making, watch making, computer etc, Swaymsidha <196> where aim was to ensure direct access to and control over the resources through a process of mobilization etc. It is the gender which determines her disadvantageous position with respect to men. Women suffer because they are women.
Constitution guarantees freedom, liberty and equality to women but its perceptions still appear to be beyond the reach of a common woman, who are poor unemployed, economically strained, less visible in the authority structure, suffer from barriers of patriarchal norms, physically and mentally abused, assaulted and treated as an appendage to man. These inequalities are a sad reflection of the gap between theory and practice. Women as a class is never a subject of legislation but appears as constituent element of religion, class, caste, community and family. The nexus between woman and law is still culture, caste and religion. This is a sufficient evidence to substantiate the claim that women are subjected to harassment extending from home to workplace and women’s empowerment is a slogan not a reality.
Social cultural divide which has split the country into nearly two contagious halves that is anti female bias in natality and post natality mortality. The patriarchal values are so deeply embedded in the culture that women themselves are not immune. As a second subordinate group in the society, women have idealized and internalized self-sacrificing roles and have developed a false consciousness which includes belief in appropriate lower wages and secondary leadership position.
With growth and advancement of society and development of new ideals of liberty, equality, fraternity and justice have generated social awareness. Women’s empowerment can be a success if following suggestions are implemented.
1. Women’s empowerment calls for gender perspective, where women is to be viewed as a human being worthy of self respect, dignity consistent and in conformity with the Constitutional legal provisions of equality and development. This will inculcate the ability to redefine oneself and to act effectively for oneself.
2. There is a need to create an environment through social and economic policies for complete development of women to enable her access to new information and skills to realize her potential.
3. Freedom is indivisible so is justice. The legal system should be strengthened and modified, altered, amended and regulated to restrict all forms of discrimination and to deduce measures to bail out women from their deplorable conditions .To empower women laws should be implemented in letter and spirit .
4. Social Engineering is required to empower women. There is a need to balance the working women’s interests in maintaining social morality and the institution of family in order to overcome the conflict with certain social institutions which still adhere to the patrilineal norms.
5. To ensure empowerment there is a need to create an awakening and awareness among women to question those perceived values rather than to humbly submit and accept them as a way of life. Woman by economic sustenance can project the notions of gender justice in every sphere so that equality in status and dignity can be realized.
6. To bring empowerment women should be mobilized to organize themselves so that they know their rights and are able to obtain support to exercise them. They should be involved in decision-making in enforcement machinery to protect the interests of women employed in various sectors where large-scale discrimination exists.
Thus, there is a need for a change from qualitative to quantitative. Empowerment of women would result in new understanding of power and experiment with way of democratizing and sharing power building new mechanisms for collective responsibility, decision making and accountability .The real challenge is to convert women’s empowerment rhetoric into reality that is to realize the substance of a slogan which has kindled hope in the hearts of woman all over the world. Thus, a holistic approach is required to empower woman practically.
© Chawla Publications (P) Ltd.