PRESERVATION OF WOMEN’S RIGHTS UNDER PENAL LAW IN THIS ERA OF GLOBALISATION, DO WOMEN STAND AT PAR?
– Kajal Verma
KIIT University, School of Law,
This research expresses the various steps taken for the fortification of Women’s Rights in India which has been evolved through a numerous amendments in the many of the legislatures but specifically emphasising on the aspects of Penal Law. Considering from the viewpoint of an ordinary citizen, almost 68% of adults out of 781 million are still illiterate in India which has a direct impact on their awareness and understanding of their legal rights. This study critically examines the laws regarding the upliftment and the betterment of Women’s Rights and explores the ways in which the Criminal Law has been enforced and structured in India. The modifications done in the Law system through the introduction and amendments of various Women related Legislation and Women specific Legislation have brought a remarkable change in the society. But then simply adopting the mechanism of Law is not sufficient until there is proper execution of it and some of the crucial reasons for this ineffectiveness is the women’s incapacity to reach the proper legal proceedings, or the orthodox view of minority representation of women and even the socio-economic factors. To controvert this proper administrative and judicial methodology needs to be in reach of this so-called minority section. Moreover Women’s rights has been considered as a fundamental right and they are entitled to live with dignity and without any fear or repercussion of inequality. In the light of these traits, this research scrutinises and links the various provisions under the Penal Law in India relating to the constructive standing of women’s in India and explicit recommendations for ensuring Women’s Rights in the present-day state.
From the time immemorial, women have been speculated as the weaker or the minority section of our society and the struggle for social justice and equality still continues even today. Even in the course of the historical time, the womankind was subjected to the malevolent and immoral practices which were termed as the societal culture in the society like sati, female infanticide, out casting the widows from the community, child marriage and other callous customs. While some of these corrupt practices were
abolished by the Britishers during their regime in 19th and 20th century, some still continue to be rampant in the rural areas of the developing India. Post-Independence when the Constitution of India came into force on 26th January, 1950 it brought with it the principle of gender quality which is enshrined in the Preamble of our Constitution along with the various Fundamental Rights, Fundamental Duties and the Directive Principles of State Policies which directs the State not to discriminate Women on the basis of their gender and sex and equal protection of law is the fundamental right of every citizen of this country. The inscription of these provisions in the Constitution of India which is treated as the supreme law has still not brought the desired effect which the Constituent Assembly had intended to achieve as still after the 68 years of Independence women are subjected to physical as well as sexual violence. According to data from the National Crime Records Bureau the government agency that keeps track of the country’s crime rate cases of violent abuse of women have steadily increased since 2009. By 2013, the number of such cases has increased by over 50 percent. That’s over 848 women who are either harassed, raped or killed after abduction every single day. A sizeable portion of the rape survivors over 13 percent are under the age of 14 years. If you count all the women who are raped by the time they turn 18, that’s almost 40 percent of the entire demographic of women rape survivors. Worse, almost all of these women are raped by their neighbours, parents, a close family member or other relatives. Rapes in 15 out of India’s 35 states and Union Territories are only committed by people known to the
And this is not the end, the crime rate is increasing at such a speed in spite of
so many safeguards being provided for women under Penal Law.
Legal Safeguards under the Indian Penal Code, 1860
A total of 3,37,922 cases of crime against women (both under various sections of IPC and SLL) were reported in the country during the year 2014 as compared to 3,09,546 in the year 2013, thus showing an increase of 9.2% during the year 2014. The year 2014 has increased by 9.2% over the year 2013 and by 58.2% over the year 2010. The IPC component of crimes against women has accounted for 96.3% of total crimes and the remaining 3.7% were SLL crimes against women. These crimes have continuously increased during 2010 – 2014 with 2, 13,585 cases reported in 2010, which increased to
2, 28,649 cases in 2011, which further increased to 2,44,270 cases 2012 and 3,09,546 cases in 2013. In 2014, a total of 3, 37,922 such cases were reported.2
1 Indrani Basu, 848 Indian Women Are Harassed, Raped, Killed Every Day, Huff Post India, December 16, 2014.
2 Statistics from National Crime Records Bureau, 2015
A total of 36,735 cases of rape under section 376 IPC were reported during 2014 including custodial rape, attempt to commit rape (excluding the Protection of Children from Sexual Offences Act, 2012). A cumulative inclination in the incidence of rape has been perceived during the periods 2010 – 2014. These cases have shown an escalation of 9.2% in the year 2011(24,206 cases) over the year 2010 (22,172 cases), an increase of 3.0% in the year 2012 (24,923 cases) over 2011, with further increase of 35.2% in the
year 2013 (33,707 cases) over 2012 and 9.0% in 2014 (36,735 cases) over 2013. 14.0% of rape cases were reported in Madhya Pradesh (5,076 out of 36,735 cases) followed by Rajasthan (3,759 cases), Uttar Pradesh (3,467 cases), Maharashtra (3,438 cases). Mizoram reported the highest crime rate of 23.7followed by Union Territory of Delhi at
23.2 as compared to national average of 6.13
The Criminal Law (Amendment) Act, 2013 which came into force on 3rd April, 2013 brought massive change in the several sections relation to the clauses of Rape and Sexual Assault under the Indian Penal Code after the outpouring of Nirbhaya Rape Case4. The Justice Verma Committee suggested the major 10 points for swotting the whole of Criminal Law including Criminalisation of Voyeurism, Stalking and Intentional Touching, amendments to the Rape clauses under IPC, revising the Armed Forces Special Powers Act (AFSPA) which stated a no. of sexual offences cases in the area of Kashmir and Northern Eastern areas, scrutinising the prohibited measures of Khap Panchayat and honour killing of women, reviewing the medical procedure of Rape victims by scrapping off the two-finger test, improving the Police and the Electoral reforms, the Gender sensitisation through education, endorsement for incorporating the Bill of Rights for women, along the lines of similar bills in South Africa and New Zealand, the bill would set out the rights guaranteed to women, which would include the right to life, security, bodily integrity, democratic and civil rights and equality and lastly altering the Human trafficking offences under IPC.
The Supreme Court in Sakshi v. Union of India5 had accredited the deficiencies in the law relating to Rape and had commended that the legislature should bring about the prerequisite changes. The Bill, drafted by Ms. Kirti Singh advocate and legal convener of AIDWA, is based on 172nd report of the Law Commission to modify the laws relating to sexual assault in Section 375, 376, 354 and 509 IPC and the appropriate sections of the
3 Statistics from National Crime Records Bureau, 2015
4 SC No. 114/2013
Code of Criminal Procedure 1973 and the Indian Evidence Act 1872. The acclamations are based on the national consultation on the issue organized by the national commission for women.
The cases of dowry deaths have increased by 4.6% during the year 2014 over the previous year (8,033 cases). A total of 8,501 victims were reported under 8,455 dowry deaths cases in the country during the year 2014. 29.2% of the total cases of dowry deaths were reported in Uttar Pradesh (2,469 cases) alone followed by Bihar (1,373 cases). The highest crime rate in respect of dowry deaths was reported in Bihar (2.8) followed by Uttar Pradesh (2.5) as compared to the national average of 1.4.6
Section 304B of the Indian Penal Code would be pertinent if cruelty or harassment was perpetrated by the husband on any of his relative for, or in linking with demand for dowry, immediately foregoing the death by bodily injury or by burning (irregular circumstances) within seven years of the marriage. In such situations the husband or the relative, as the case may be, will be believed to have caused her death and will be accountable to punishment. The prosecution under section 304B of Indian Penal Code cannot escape from the burden of proof that the harassment to cruelty was related to the demand for dowry and such was caused “soon before her death”. To invite the necessities of section 304B, one of the main elements of the offence which is required to be established is that “soon before her death” she was endangered to cruelty and harassment “in connection with the demand of dowry”. The expression ‘soon before her death’ used in the practical Section of 304B, I.P.C. and section 113B of the Evidence Act is present with the idea of propinquity text. The Dowry Prohibition (Amendment) Act of 1984 acclaims a minimum punishment of two years imprisonment and fine to anyone demanding dowry. This Act is forbidden to give or to agree to give, directly or indirectly, any property or valuable security, in construction with a marriage. The giving of or agreeing to the giving of any amount either in cash of kind, jewellery, articles, properties, etc. in respect of a marriage is absolutely barred by the Dowry Prohibition Act. Even the making of a demand for dowry is also now prohibited and it is punishable with imprisonment of 5 years and a fine of Rs.10, 000/-
Assault on woman with intent to outrage her modesty
Occurrences of assault on women with intent to outrage her modesty in the country have
6 Statistics from National Crime Records Bureau, 2015
amplified by 16.3% during 2014 over the previous year (from 70,739 cases in 2013 to 82,235 cases in 2014). Delhi Union Territory has stated the highest crime rate of assault on women with intent to outrage her modesty cases (47.9) as compared to the national average of 13.7. A total of 82,620 victims were reported under 82,235 cases of assault on woman with intent to outrage her modesty cases in the country during the year 2014. Statistics on carnal nuisance under section 354A IPC is collected individually for the first time in 2014. A total of 21,938 cases were registered under sexual harassment during 2014. Maximum cases under sexual harassment were registered in Uttar Pradesh (4,435 cases) followed by Maharashtra (4,052 cases) and Madhya Pradesh (3,163 cases). Data on assault or usage of criminal force to women with intent to disrobe (section 354B IPC) is collected separately for the first time in 2014. A total of 6,412 cases were registered under this crime head. Maximum cases under assault or use of criminal force to women with intent to disrobe were registered in Odisha (1,142 cases) followed by Uttar Pradesh (1,066 cases).7
Section 354A, IPC, has been ratified with a view to shield a woman against licentious assault. The object of the provisions as contained in Sections 354A, 354B and 509, IPC is to safeguard a woman against offensive conduct of others which is offensive to morality. In fact, these offences are as much in the awareness of the woman as in the interest of public morality and decent behaviour. These offences are not only offences against individual but against public morals and society as well. The felony of outraging the modesty of a woman has been dealt with under the Indian laws in a soft manner. “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 possess a modesty capable of being outraged. From the very birth she possess the modesty which is the attribute of her sex.” stated by Justice Bachawat in the case of State of Punjab v. Major Singh8 The legislation provides a hoary area wherein it does not deliver exact definitions as to what modesty is and what would constitute outraging of modesty. Therefore it is mandatory upon the courts to look at the facts of the case and the intention of the accused carefully before holding a person guilty or letting him go scot-free.9
Domestic Violence was acknowledged as a criminal offence in India in 1983. The offence imputable under Section 498-A of the Indian Penal Code that relates to domestic
7 Statistics from National Crime Records Bureau, 2015
8 AIR 1967 SC 63
9 Lihaslegal, Molestation under the Indian Penal Code, In Law of Crimes, August 8, 2012
violence is any act of cruelty by a husband (or his family) towards his wife. However, until recently, there was no single civil law speaking the precise intricacies allied with domestic violence, including the entrenched nature of violence within matrimonial networks, the requirement for fortification and conservation of mistreated women, and the fact that punishment and imprisonment for the husband may not be the best resolution in every case. Accordingly, after a decade-long process of consultations and reconsiderations, a comprehensive domestic violence law, known as the Protection of Women from Domestic Violence Act 2005, took effect in 2006. Key rudiments of the law include the prohibition of marital rape and the provision of protection and maintenance orders against husbands and partners who are fervently, bodily, or frugally abusive. March 3, 2015 was the press release by India’s Ministry of Women and Child Development reports that over the previous three years, the number of cases registered under The Protection of Women from Domestic Violence Act, 2005, which came into force in 2005, has decreased. The same source specifies that 531 cases were registered in 2014, 4,204 in 2013 and 16,351 in 2012. The Hindu reports that, according to domiciliary analyses conducted in India by the United Nations Office on Drugs and Crime (UNODC), 10 percent of women in India reported that they have experienced sexual violence by their husbands in their lifetime. Reuters reported in June 2012 that, according to the Health and Programme Development Adviser at Save the Children UK, an international NGO that works in 120 countries to “save children’s lives” despite India’s Domestic Violence Act, “women and girls continue to be sold as chattels, married off as young as 10, burned alive as a result of dowry-related disputes and young girls exploited and abused as domestic slave labour”. Documenting information could not be found among the sources referred by the Research Directorate within the time constraints of this response.10 The Domestic Violence law has made a transformation is clear from the fact that some organisations now believe that the law is often tainted by women and their families to settle scores with a husband or live-in partner they may have fallen out with. The short point, however, is that wives are not that helpless in the case of marital rape they can seek the help of a magistrate under the Domestic Violence law whereas under the IPC only separated women can complain against rape by their own husbands.11
10 Canada: Immigration and Refugee Board of Canada, India: Violence against women, including domestic violence, homelessness, workplace violence; information on legislation, state protection, services, and legal recourse available to women who are victims of violence (2013-April 2015), 15 May 2015, IND105130.E, available at: http://www.refworld.org/docid/55681b04a.html
11 S Murlidharan, Law on marital rape: Why the Domestic Violence Act is a reasonable substitute, May 3, 2015
Facts and figures on Human Trafficking under Section 370 and 370A of IPC has been collected for the first time in 2014. A total of 720 cases of human trafficking under section 370 and 370A of IPC were reported in the country during 2014. Jharkhand has reported 150 such cases followed by Maharashtra with 108, Assam (68 cases), West Bengal (55 cases) and Madhya Pradesh (50 cases). However, maximum victims (2,605 persons) against 1,106 such cases were recovered or reported in Kerala during 2014. A total of 82 cases of selling of minors for prostitution were reported in the country during 2014 as against 100 such cases in 2013, thus indicating a decrease of 18.0% over 2013. West Bengal has reported 67 such cases accounting for 81.7% during 2014. Cases registered an increase of 1.5% during the year 2014 as compared to the previous year (2,579 cases). 509 cases were reported in Tamil Nadu followed by Karnataka (392). There were 3,351 victims (consisting of 595 males and 2,756 females) for 2,617 cases reported under the Immoral Traffic (Prevention) Act. Cases have increased by 65.0% during the year 2014 as compared to the previous year (1,224 cases). 852 cases with equal number of victims were reported in West Bengal followed by Assam (303 cases & 303 victims). There were 2,025 victims for 2,020 cases. Maximum cases of procuration of minor girls were reported in West Bengal (852 cases) followed by Assam (303 cases), Bihar (280 cases) and Haryana (277 cases) during 2014.12
The Immoral Traffic (Prevention) Act, 1956 explains child as any person who has completed eighteen years of age. The first section of the act has provisions that outline the illicitness of prostitution and the punishment for owning a brothel or a similar establishment, or for living of earnings of prostitution as is in the case of a pimp. To guarantee that the people in the chain of trafficking are also held responsible the act has a provision that states that any person involved in the recruiting, transporting, transferring, harbouring, or receiving of persons for the purpose of prostitution if guilty of trafficking. In addition any person attempting to commit trafficking or found in the brothel or visiting the brothel is punishable under this law. If a person if found with a child it is presumed that he has detained that child there for the purpose of sexual intercourse and hence shall be punishable to seven year in prison up to life imprisonment, or a term which may extend to ten year and also a maximum fine of one lakh rupees. If a child is found in a brothel and after medical examination has been found to have been sexually ill-treated, it is assumed that the child has been incarcerated for the purpose of prostitution. If prostitution of a child is being committed with knowledge of
12 Statistics from National Crime Records Bureau, 2015
an establishment owner such as a hotel the license of the hotel is likely to be cancelled along with the given prison sentence and/or fines. Any child found in a brothel or being abused for the purpose of prostitution can be placed in an institution for their safety by a magistrate In 2006, the Ministry of Women and Child Development proposed an amendment bill that has yet to be passed. The amendment does not really concern any of the provisions related to the child but has many important benefits for the right of women sex workers.13
For Indian women, sexual harassment is nothing new. Every day they come across stories, or rather dare say witness stories of women (including themselves) being stalked, eye raped, or going through verbal and physical attacks. Their biggest brawl, every single day, is to maintain their inviolability at their homes, on road, in their educational institutions, as well as at their workplace. Women aren’t even spared in their dreams, as their stalkers often manage to enter their private zone mind that is and scare them. According to one of the recent surveys conducted, Indian women don’t feel safe at their workplace. The survey, titled Nimbuzz – Pulse of the Nation, reveals that “47% of women feel their top issue at work is sexual harassment vis-a-vis inequality in pay and unequal opportunities”14 In 1997, the Hon’ble Supreme Court of India, in Vishaka and Others v. State of Rajasthan and Others15 accepted the severity of sexual harassment of the working women at the workplaces and laid down guidelines making it mandatory for employers to prevent the commission of acts of sexual harassment and to provide the measures for the resolution, settlement or prosecution of acts of sexual harassment. The guidelines issued by the Hon’ble Supreme Court were treated as law declared by the Hon’ble Supreme Court under Article 141 of the Constitution of India. It was held by the Hon’ble Supreme Court that the guidelines framed by the Supreme Court would be strictly observed in all work places for the deterrence and implementation of the right to gender equality of the working women. It was observed by various courts from time to time in the past that the guidelines and norms framed by the Hon’ble Supreme Court in Vishaka Judgment have not been followed in workplaces strictly. The increasing work involvement rate of women made it overbearing for enacting a comprehensive legislation focusing on preclusion of sexual harassment as well as providing a redressal machinery.
14 Richa Sharma, 47% of Indian Women Find Sexual Harassment at The Workplace a big Issue, Business Insider India, Nov 7, 2014
15 AIR 1997 SC 3011
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 after a span of 16 years, for prevention of sexual harassment against women at the workplaces. The Act is enacted by the Indian Parliament to provide defence against sexual aggravation of women at workplace and prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto. Sexual harassment is termed as a defilement of the fundamental rights of a woman to equality under Articles 14 and 15 of the Constitution of India and right to life and to live with dignity under Article 21 of the Constitution of India. Sexual harassment is also considered a violation of a right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment under Article 19 of the Constitution of India. The Act has adopted the definition of “sexual harassment” from Vishaka Judgment and the term sexual harassment includes any unwelcome acts or behaviour such as physical contact and advances, demand or request for sexual favours, making sexually coloured remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature. As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 in case the distressed woman is unable to make a complaint on account of her physical incapability, a complaint may be filed inter alia by her relative or friend or her co-worker or an officer of the National Commission for Woman or State Women’s Commission or any person who has knowledge of the incident, with the written consent of the aggrieved woman.16
Pre and Post-Independence there were massive improvements, introductions, repealing of many laws but still there is there is a void which the Government hasn’t been able to fill up till now. At present there are innumerable laws that have been implemented and executed but still woman are dominant and minority to our society. Those concerned in females’ issues may like to glance the enumerated Articles in the Constitution and the requirements they make for women’s access to power resources. To elucidate them in this article would take up too much space. Firstly, non-punishable provision in respect of spouses for their actions. Instead of proactively antagonising and limiting marital rape, it simply provides a conservative opportunity of escape. Secondly abovementioned shields if the sexual abuse committed was nasty or dangerously harmful. These conditions fail to put women in a position of authorisation and strip women of their freedom of choice and consent. Thirdly marital rape is at no time unambiguously
16 Rajdutt S. Singh, India: Overview of The Sexual Harassment of Women at Workplace, October 21, 2014
defined. Therefore the formation of The National Commission for Women which is a statutory body with a specific instruction to study, improvise and display all matters