An Analysis of Recent Amendments in Sexual Offences Laws of India
Anoop Chitkara, Advocate, High Court of Himachal Pradesh at Shimla
Date : 16/07/2015 - Location : Himachal Pradesh
An Analysis of Recent Amendments in Sexual Offences Laws of IndiaIN 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. 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' 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.
Delhi gang rape shocked the WorldThe 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. 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.
International ramifications of Nirbhaya's lossThe 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." 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.
Justice J.S. Verma CommitteeWithout 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.
Amendments came into force from February 3, 2013Guided 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. 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.
JurisprudenceCriminal 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?"
Constitutional Dharma in secular IndiaIn 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.
Constitutional obligation to make special laws for women and children"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." 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.
A survey of the amendments of 2013, in IPC, CrPC and the Evidence ActAll 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.
Amendments not to be retrospectiveUnder 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. 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. Just and effective law should be focused on the future. 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.
Treatment of victimsS. 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.
Non-treatment of victims of rape and acid attack is a penal offenceUnder 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.
FIR in sexual offences to be recorded by a woman police officer or any woman officerProviso 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. 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.
Non-recording of information of sexual office is a penal offenceUnder 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.
Statement of victim of sexual offence to be recorded by a Judicial MagistrateUnder 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 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 of Evidence Act. Resultantly, the statement of a normal person cannot be treated as substantive evidence.
No woman or a man below 15 and above 65 years of age, other than the accused, to be called in a Police StationAny 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.
Examination of victim of sexual offence by woman police officer or any woman officerAs 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 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.
Outraging of modestyUnder 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.
Sexual harassmentUnder 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. 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, 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."But the rules of Indian etiquette are simple: people of opposite sex do not touch each other.
Assault or use of criminal force to woman with intent to disrobeUnder 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, to take off ceremonial clothing; to undress; to remove clothing from (somebody), to take off one's robes. 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.
VoyeurismUnder 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. Who obtains sexual gratification by looking at other people's sexual organs, sexual acts, etc, someone who finds sexual pleasure in looking at sex acts, genital organs. According to Britannica, "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.
StalkingUnder 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. 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.
Offences of outraging the modesty, sexual harassment, disrobing, stalking viz. a viz. husbandWhether 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. 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. 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.
Plea of consent in offences under sections 354 to 354-D IPCThe 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.
Word, gesture or act intended to insult the modesty of a womanUnder 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.
Sexual AssaultsUnder 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. 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.
Character of victim of rape not relevantThe 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.
Punishment for rapeUpon 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.
When rape causes death or persistent vegetative state of victimUnder 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.
Sexual intercourse by husband with his wife during separationUnder 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.
Sexual intercourse by a person in authorityUnder 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. 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. 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. 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.
Gang rapeUnder 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.
Habitual offenders of rapeUnder 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.
Trafficking of personsUnder 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.
Exploitation of a trafficked personUnder 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.
Prosecution sanction not requiredUnder explanation to S. 197 CrPC, when public servant is arraigned as an accused, then prosecution sanction is not required to launch prosecution.
Rape trials preferably before a Woman CourtSensitized 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.
Minor victim to be protected from the gaze of accusedS. 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.
Trial to be concluded within 2 months and to go on day to day basisS. 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.
Acid attacksUnder 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 of IPC mandate that nothing is an offence which is done in the exercise of the right of private defence. As per S. 97 IPC, every person has a right to defend himself as well as any other person. A new section 100(7) 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.
Compensation to the victim of rape and acid attackS. 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. 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. 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.
Role of CourtsCourts 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."
Persons who are unable to communicate verballyS. 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.
Analysis of the amendmentsIt 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.
Social awareness: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.
Amendments shall be detrimental to love marriages: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 statutory rapes, the imposition of minimum sentence, without considering the age of age of victim, is barbaric: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.
Age of consent needs to be reduced to 15, whereas it has been increased to 18: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 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.
Prohibition of sexual intercourse in fiduciary relationship is ill-conceived: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. Sexual harassment of women at the workplace is aided by skewed gender equations in the organisational hierarchy. 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.
False prosecutions may increase manifold: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. 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. 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 minimum age of marriage for girls be brought at par with that of boys: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". 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.
Marital rape is not addressed: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. 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." 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. The National Commission for Women in India recommended the abolition of marital rape exemption. 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. 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.
S. 377 IPC must have been repealed: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." Over the past 150 years, Section 377 has been interpreted to punish penile non-vaginal sex. Moreover, despite numerous protests against S. 377, 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." Explanation. - Peneration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Archaeological adultery is still an offence in India: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 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.
Respect the witnesses: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.
ConclusionTo 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. 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." 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
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