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TABLE OF CONTENTS
INTRODUCTION 3
RESEARCH
Methodology
4
Unveiling the meaning of crimes against women
A general gibbet of law
The Indian penal code
5 6 6
Verma Committee Report an aftermath of the Jyoti Singh Pandey/
Nirbhaya
Case
14
Conclusion
16
2
1.
Introduction
In the ancient Indian women held a high place of respect in the society as mentioned in Rigveda and other scriptures. Volumes can be written about the status of our women and their heroic deeds from the vedic period to the modern times. But later on, because of social, political and economic changes, women lost their status and were relegated to the background. Many evil customs and traditions stepped in which enslaved the women and 1
tied them to the boundaries of the house.
It is pertinent that there has been a lag in the sex ratio with respect to women. Where the literacy rate, health rate and work participation rates are on a constant decline. While on the other hand the spread of social evils like dowry deaths, child marriage, domestic violence, rape, sexual harassment, exploitation of women workers are rampant in different parts of India. Humiliation, rape, kidnapping, molestation, dowry death, torture, 2
wife-beating etc. have grown up over the years.
We are living in twenty first century. Also all our faiths teach us that the interests of 3
society are more important than those of the individual. Although Women may be victims of any of the general crimes such as „Murder‟, „Robbery‟, „Cheating‟, etc, only the crimes which are directed specifically against Women are characterised as „Crimes
1
Aruna Goel, Violence and Protective Measures for Women Development and Empowerment, Deep & Deep Publications, New Delhi, 2004, 3-4 2 Awadhesh Kumar Singh and Jayanta Choudhury, Violence against Women and Children-Issues and Concerns, Serials Publications, New Delhi, 2012, 1 3 Dr. Syed Zafar Mahmood, President at Interfaith Coalition for Peace, Crimes Against Women: Punishment and Preemption (Unpublished manuscript). 3
Against Women‟. Various new legislations have been brought and amendments have been made in existing laws with a view to handle these crimes effectively. These are broadly classified under two categories. The categories maybe highlighted as that of crimes under the Indian penal code; such as rape, abduction for specific purposes, homicide for dowry or the attempt, physical and mental torture, molestation, harassment and importation of girls. The second category can be that of crimes under special or local laws. In case of crimes against women, the national crime records bureau has categorized crimes such as rape, abduction and kidnapping, homicide, dowry death or their attempts, torture- both mental and physical, molestation, eve-teasing, importation of girls, commission of sati, dowry prohibition, immoral traffic and indecent representation of women. Out of these culpable homicide for dowry, rape kidnapping and abduction are 4
considered as violent crimes.
OBJECTIVES
To seek the meaning of crimes against women
To search the provisions that seek to provide justice to women for crimes committed towards them under the Indian penal code.
To delve into recent changes brought about by the legislations passed.
RESEARCH METHODOLOGY This project is based on the method which requires research from secondary sources like books, articles and online sources. The method of writing followed in the course of this research paper is primarily analytical and descriptive. A variety of books, articles and trusted websites have been referred to. Sources have been acknowledged wherever felt.
4
Doel Mukherjee, Women and Urban Crimes, 74 4
2. Unveiling the Meaning of Crime against Women On a semantic or psychological level the term pertains to any injury inflicted directly or indirectly causing physical or mental infliction upon women. Crimes which are directed specifically against women and in which only women are victims are characterized as 5
“Crime Against Women”. It is equally important to clarify the concept of “Violence against women”. Violence is also known as abuse and include any sort of physical aggression or misbehave. When violence is committed at home it becomes domestic violence and involves family members such as children, spouse, parents or servants. Domestic violence may involve different means such as hitting, kicking, biting, shoving, restraining, throwing objects. In broad terms, it includes threats, sexual abuse, emotional abuse, controlling or domineering, intimidation, stalking, passive/covert abuse and economic deprivation, rape, abduction, kidnapping, murder (all cases of criminal violence, dowry death, wife battering, sexual abuse, maltreatment of a widow and for an elderly women (all cases of domestic violence) and eve-teasing, forcing wife/daughter-inlaw to go for foeticide, forcing a young widow to commit sati, etc (all cases of social 6
violence), are issues which affect a large section of society. Also an inevitable facet of violence is that when a kind or form of abuse is specifically directed against women and
5 6
Supra note 2 at 2. Supra note 2 at 3. 5
therefore constitute a violation of the convention on the elimination of all forms of 7
discrimination against women is treated as an offence of crime against women. There can also be found an internationally accepted connotation of Violence or offences against women. It could be traced back to United Nation‟s given definition in the 1993 Declaration on the Elimination of Violence against Women. It defines it as any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or 8
arbitrary deprivation of liberty, whether occurring in public or private life.
3.
A General Gibbet of Law
The principle of gender equality is enshrined in the Indian Constitution in its Preamble, 9
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Fundamental Rights albeit Articles 14 , 15 , 16 , Fundamental Duties enshrined in 12
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Article 39(a)(d) and Directive Principles as in Article 42 . The Constitution not only grants equality to women, but also empowers the State to adopt measures of positive discrimination in favour of women for counterbalancing the cumulative socio economic, education and political disadvantages faced by the women. Within the framework of a democratic polity, our laws, development policies, Plans and programmes have aimed at women‟s advancement in different spheres. India has also ratified various international conventions and human rights instruments committing to secure equal rights of women. 7
Gabriel Kirk McDonald, Substantive and Procedural Aspects of International Criminal Law, V II Part 1, Kluwer Law International, 398. 8 Guruappa Naidu, Violence Against Women in India, Serials Publications, New Delhi 2011, 23. 9 Article 14, confers on men and women equal rights and opportunities in political, economic and social sphere. 10 Article 15, prohibits, discrimination against any citizen on grounds of religion, race, caste, sex etc. 11 Article 16, provides for equality of opportunities matters relating to employment or appointment to any office under the state. 12 Article 39(a)(d), mentions policy security of state equality for both men and women the right to a means of livelihood and equal pay for equal work for both men and women. 13 Article 42, Direct the State to make provision for ensuring just and humane conditions of work and maternity relief. 6
Key among them is the ratification of the Convention on Elimination of All Forms of 14
Discrimination Against Women (CEDAW) in 1993.
4.
The Indian Penal Code
The bedrock of our penal system is the Indian penal code which is a combination of western scientific outlook and oriental sensitivity. The code covers a vast range of anti social behaviour in relation to the state of society as it was enlisted more than a hundred years ago. The IPC makes broad classification of crimes against property person and 15
state. There are seven crimes in particular that can be categorized as exercisable only on women; such as rape, kidnapping and abduction, dowry death, torture and cruelty, molestation, sexual harassment and importation of girls.
4.1 Rape The concept of rape is defined under section 375 of the Indian Penal Code along with section 376 that prescribes punishment for rape. There were various amendments made in the year 1983 prior to the recent changes brought about by the criminal law amendment 16
bill 2013 to make section 376 more effective. The offence of rape in its simplest term is „the ravishment of a woman, without her consent, by force, fear or fraud, or against her 17
will‟
or the “carnal knowledge of a woman by force against her will”
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the physical scar
may heal but the mental scar haunts the victim prosecutrix throughout her lifetime. The act hence is considered as extremely brazen and heinous. A “man” commits rape when he has sexual intercourse with a woman firstly, against her will. Secondly, without her consent, thirdly with her consent that is derived by inflicting fear of death or hurt of her body or a person whom she is interested in. Fourthly, with her consent when the man indulging in the sexual activity induces the woman to have sex with him on the false 14
India, Ministry of Statistics and programme Implementation, Women and Men in India 2012, 14th Issue, p. xiii. 15 A. Sivamurthy, Indian Journal of Criminology, Volume 4, 1 January 1986, 17. 16 The Criminal Law (Amendment) Act, 1983. 17 Dr. Dalbir Bharti, Women and the Law ( A. P. H publishing corporation, Edn. 2008) 113. 18 th Nelson‟s Pakistan Penal Code, 7 Edn. 1983 V II, 2014. 7
assumption of him being her husband on purpose. Fifthly, on her consent when at the 19
time of giving her consent she is intoxicated or is of unsound mind. Custodial r ape
Section 376 B – 376 D comprise a group of sections that create a new category of offence, known as custodial rape which amounts to rape because in such cases the consent of the victim is obtained under the compelling circumstances where the rapists 20
hold a supervisory position. Sex D ur in g Seperati on
Sex during separation if unconsented makes it punishable under Section 376 A Puni shment f or Rape
Section 376 provides for a minimum period of imprisonment of seven yearsof imprisonment under clause 1 and ten years under clause 2. Also, gang rapes may call upon death penalty.
4.2 Ki dnappin g and Abduction Section 366 of the penal code enumerates that kidnapping or abducting a woman with an intent to compel her to marry without her will, or be seduced or knowing that such a result is likely. Such an act would call upon punishment of imprisonment that maybe exceeded to period of 10 years along with a liability to fine. The offence is not bailable. Sections 372 and 373 punishes an offender with an imprisonment upto ten years along with a fine for selling, letting. Buying or hiring a minor for the purpose of prostitution. This is a non bailable offence.
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Added by the Amending Act of 1983. The fifth clause then had been renumbered as the sixth clause. Consent obtained under this condition would not be considered as free and good in law and the accused will be held liable for the offence. 20 KD Gaur, The Indian Penal Code, 644. 8
If the woman is under 16 years of age, her consent or intention is immaterial. The main object of this section is to protect girls under 16 years of age and prevent persons from 21
taking improper advantage of their youth and innocence.
4.3 Dowr y Deaths A unique form of violence experienced by women is Dowry Death and now, the most common one. These cases have increased by 2.7% during the year 2011 over the previous year (8,391 cases). 26.9% of the total such cases reported in the country were reported from Uttar Pradesh (2,322) cases alone followed by Bihar (1,413 cases) (16.4%). The highest rate of crime (1.4) was reported from Bihar as compared to the National average 22
of 0.7.
The term dowry death was included in the penal code in the year 1986 under section 23
304B by the Dowry Prohibition (Amendment) Act, 1986. And since the evidentiary aspect may be really hard to ponder upon since it is very difficult to prove what exactly has been happening inside a house. Generally it is presumed that if a married woman dies within seven years of her marriage in suspicious circumstances then it could be a dowry 24
death. The period of seven years was as decided in Iqbal Case set as a benchmark to confirm a dowry death however there is no prescribed limit for scooting the charges of dowry demand beyond any number of years post marriage. Similarly, if section 113B of 25
the Evidence act is to be invoked along with this section of the code then there has to be a clear and cogently proven that the deceased had been subjected to cruelty or harassment. As held in the case of satbir singh
26
that once the prosecution establishes the
ingredients of dowry death the burden of proof shifts to the defence. The various ingredients say that the death should have been caused by burns or bodily injuries or
21
Mahrukh adenwala, Child Sexual Abuse and the Law, (HRLN, 2008) 43. India, Ministry of Home Affairs, National Crime Records Bureau, Crime in India, 2011, 84. 23 K. D Gaur, A Textbook on the Indian Penal Code (Edn. 4, Universal Law Publishing) 515. 24 State of Punjab v. Iqbal Singh, AIR 1991 SC 1532. 25 Presumption as to Dowry Death, Inserted by Act 43 of 1986 26 Satbir Singh v. state of Haryana, AIR 2005 SC 3546. 22
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otherwise than under in normal circumstances. Death should have been occurred within seven years of marriage; there should be evident subjection of cruelty or harassment by the husband or any relative of the husband. The cruelty should have been caused as an 28
aftermath of a dowry demand and should be meted out before the death. A well 29
publicized case can exemplify this societal vice, that of Laxman Kumar wherein he was the husband of Sudha who was pregnant and found by the neighbours set ablaze. She in her dying declaration accused mother in law and her brother in laws. The apex court ruled that it was not an accident but a murder for considered to be for the purpose of dowry. 30
Another case of Amarjit Singh wherein the rapacious husband had set his newly wedded wife Balwinder on fire for the sake of money. The accused had returned from broad and wanted to go again and wanted the in laws to finance his second trips. Balwinder too was rescued by her neighbours. She died after giving her statement to the assistant sub inspector. The accused was finally found guilty an d she was keerosened and then lit.
4.4 Torture and cruelty of husband or his relatives Section 498a .498A was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives. A punishment extending to 3 years and fine has been prescribed. The expression „cruelty‟ has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful 31
demand for any property or valuable security. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
27
2003 (1) SCALE 30. Hans Raj V. State of Punjab, 2000 (3) RI 556. 29 Laxman Kumar and Indian Federation of Women Lawyers v. shakuntala , AIR 1986 SC 250. 30 State of Punjab v. Amarjit Singh, AIR 1988 SC 2013. 31 Law commission of India Report no. 243, http://lawcommissionofindia.nic.in/reports/report243.pdf 28
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Analysis of the section shows that this law deals with four types of cruelty: Any conduct that is likely to drive a woman to suicide, Any conduct which is likely to cause grave injury to the life, limb or health of the woman, Harassment with the purpose of forcing the woman or her relatives to give some property, or Harassment because the woman or her relatives are either unable to yield to the demand for more money or do not give some 32
share of the property. Harassment for dowry falls within the sweep of latter limb of the section. Creating a situation driving the woman to commit suicide is also one of the ingredients of „cruelty‟. The offence under s.498A is cognizable, non-compoundable and 33
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non-bailable. In the case of Preeti Gupta v. State of Jharkhand decided in 2010, the Supreme Court observed that a serious relook of the provision is warranted by the Legislature. The Court said: “ It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints”. The Court took note of the common tendency to implicate husband and all his immediate relations. Sushil 35
Kumar Sharma v. UOI , the Supreme Court lamented that in many instances, complaints under s.498A were being filed with an oblique motive to wreck personal vendetta. It was also observed that by misuse of the provision, a new legal terrorism can be unleashed. Reference may be made in this context to the decision of Delhi High Court in Chandrabhan v. State and of the Madras High Court in the case of Tr. Ramaiah v. State. In the former case, it was observed that “there is no iota of doubt that most of the complaints are filed in the heat of the moment over trifling fights and ego clashes. It is also a matter of common knowledge that in their tussle and ongoing hostility, the hapless children are the worst victims.
4.5 M olestation: Outr agin g the M odesty of a Woman; Section 354 and harassment
32
http://ipc498a.files.wordpress.com/2007/11/what-is-section-498a-of-the-indian-penal-code.pdf Supra note 30. 34 AIR 2010 SC 3363 35 2005 6 SCC 281 33
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This law gives wide latitude to sex criminals, and a maximum sentence of two years. The word „modesty‟ is key. Unlike an arm or a leg, modesty is difficult to define. Section 354 of the Indian Penal Code never explains exactly what modesty is, but acknowledges that 36
37
outraging it is a crime. It was held in Rupan Deol Bajaj case that slapping a woman on her posterior amounted to outraging her modesty covered under this section. Also, a 38
question was raised in the case of sakshi v. UOI that how come forced sex between a daughter and her father who penetrated her in three orifices not amount to rape and amount only to outraging her modesty As per 354B whoever assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked in any public place, shall be punished with imprisonment of either description for a term which shall not be less than 39
three years but which may extend to seven years and with fine. Stalking is also made punishable under this section. Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of 40
stalking.
4.6 Im por tation of gir l Section 366-B of Indian Penal Code provides that: “Whoever imports into India from any country outside India or from the State of Jammu and Kashmir any girl under the age of twenty-one years with intent that she may be, or knowing it to be likely that she will be,
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http://shovonc.wordpress.com/2012/07/10/know-your-laws-indian-penal-code-1860-section-354outraging-a-womans-modesty/ 37 Rupan Deol Bajaj v. KPS Gill , AIR1996 SC 309. 38 [2004] 3 LRI 242. 39 http://legalservices.co.in/forum/topic/Sec-354A-354B-354C-354D-IPC-Sexual-harassment.htm. 40 Section 354D. 12
forced or seduced to illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.”
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This offence under Section 366-B is cognizable, non-bailable and non-compoundable and is exclusively triable by the Court of Session. Article 23 of the Constitution of India prohibited traffic in human beings. After coming into force of the Constitution of India 42
this section was amended to bring it in accord with the changed circumstances.
Similarly section 377 prohibits unnatural sex and makes sodomy practiced on a woman an offence.
5. Verma Committee Report an aftermath of the Jyoti Singh Pandey/ Nirbhaya Case On December 23, 2012 a three member Committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court, was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. The other members on the Committee were Justice Leila Seth, former judge of the High Court and Gopal 43
Subramanium, former Solicitor General of India. The Committee recommended that non-penetrative forms of sexual contact should be regarded as sexual assault. The offence of sexual assault should be defined so as to include all forms of non-consensual non-penetrative touching of a sexual nature. The sexual nature of an act should be determined on the basis of the circumstances. Sexual gratification as a motive for the act should not be prerequisite for proving the offence. The offence should be punishable with 5 years of imprisonment, or fine, or both.
41
Section 366 B, Indian Penal Code http://www.shareyouressays.com/119053/importation-of-girl-from-foreign-country-section-366b-of-ipc. 43 http://www.prsindia.org/parliamenttrack/report-summaries/justice-verma-committee-report-summary2628/. 42
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Some of the key recommendations made by the Committee on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 that is pending in Parliament are provided below: Domestic workers should be included within the purview of the Bill. Under the Bill the complainant and the respondent are first required to attempt conciliation. This is contrary to the Supreme Court judgment in Vishakha vs. State of Rajasthan which aimed to secure a safe workplace to women. The employer should pay compensation to the woman who has suffered sexual harassment. The Bill requires the employer to institute an internal complaints committee to which complaints must be filed. Such an internal committee defeats the purpose of the Bill and instead, 44
there should be an Employment Tribunal to receive and adjudicate all complaints.
The Committee rejected the proposal for chemical castration as it fails to treat the social foundations of rape. It opined that death penalty should not be awarded for the offence of rape as there was considerable evidence that death penalty was not a deterrence to serious 45
crimes. It recommended life imprisonment for rape.
The Justice JS Verma Committee recommended 20 years imprisonment for gang-rape and life imprisonment for rape and murder but refrained from using the term "death penalty" though there was public outcry to sentence rapists with death sentence following the brutal gang-rape and murder of a 23-year-old medical student in Delhi on Dec. 16, 2012.However, the ordinance passed by the Cabinet went for a more stringent punishment for a rapist - a minimum of 20 years imprisonment for rapists and even death penalty in extreme cases. Verma panel recommended criminalization of marital rape but the ordinance rejected it.
6.
Conclusion
Breaking bad news is not an easy task. It’s like choosing the best bad idea. And for that it is most appreciated that you forgive ‘the bearer’, for being ‘the bearer’ is not an easy 44 45
Supra note 43 Supra note 43. 14
task. But, there is one magic trick that drives me crazy and which I would like to stop. Please, don’t bury the lede. It never works. When Greta Christina writes about rape and the psyche of rapists she says that it is impossible (next to) to convince a man to not rape because successful efforts aiming rape prevention would only dwell on an accomplished footing if the world we are referring to is in utopia. Rapists are sociopaths who are beyond the reach of persuasion or reason. Merely passing strong laws is not enough, and that the government has to convey its intention to crack down on crimes against women to its officials and the police. It is pertinent to note that the punishments prescribe to what the penal exercise will be in case an act of rape or molestation is committed. But the lacuna lies in the fact that stringent punishments may apply on offenders who have committed the act. The punishments may be exemplary and may bring reduction in the number of such crimes but can it prevent the crime from happening at all? "Enacting strong laws are simply a first step, but it needs the government to focus urgently on implementation if it is serious about protecting children and other victims of sexual abuse,'' Human Rights Watch's Ganguly said. Hence to conclude, it is easy to punish a perpetrator than preventing him from committing the crime of rape. Hence, in such posterity the thrust and the entire onus of protecting the prospective victim from this harsh and demeaning way of sexual gratification lies entirely on the woman herself and her family. The helpline numbers that were generated by the Delhi Police are a medium to report grievances if a woman suspects an impending danger upon her dignity. However, the major drawback that the preventive act suffers is that is hinders the independence of women by placing zillions of barriers in their existence where they have to time themselves all the time. Such is not only contrary to their right of equality but causes an aspersion to their intrinsic rights as a human being. The answer to the question of whether a woman in India is safe if she steps out of her house after six in the evening is circumscribed in the nebulous clouds of ambiguity searching for an appropriate answer and a suitable recourse. 15
bibliography Books and articles
A. Sivamurthy, Indian Journal of Criminology, Volume 4, 1 January 1986, 17. Aruna Goel, Violence and Protective Measures for Women Development and Empowerment, Deep & Deep Publications, New Delhi, 2004, 3-4 Awadhesh Kumar Singh and Jayanta Choudhury, Violence against Women and ChildrenIssues and Concerns, Serials Publications, New Delhi, 2012, 1 Doel Mukherjee, Women and Urban Crimes, 74 Dr. Dalbir Bharti, Women and the Law ( A. P. H publishing corporation, Edn. 2008) 113. Dr. Syed Zafar Mahmood, President at Interfaith Coalition for Peace, Crimes Against Women: Punishment and Preemption (Unpublished manuscript). Gabriel Kirk McDonald, Substantive and Procedural Aspects of International Criminal Law, V II Part 1, Kluwer Law International, 398. Guruappa Naidu, Violence Against Women in India, Serials Publications, New Delhi 2011, 23. India, Ministry of Home Affairs, National Crime Records Bureau, Crime in India, 2011, 84. India, Ministry of Statistics and programme Implementation, Women and Men in India 2012, 14th Issue, K. D Gaur, A Textbook on the Indian Penal Code (Edn. 4, Universal Law Publishing) 515. KD Gaur, The Indian Penal Code, 644. 16
Mahrukh adenwala, Child Sexual Abuse and the Law, (HRLN, 2008) 43. th
Nelson‟s Pakistan Penal Code, 7 Edn. 1983 V II, 2014. p. xiii.
weblinks
http://ipc498a.files.wordpress.com/2007/11/what-is-section-498a-of-the-indian-penalcode.pdf
http://legalservices.co.in/forum/topic/Sec-354A-354B-354C-354D-IPC-Sexualharassment.htm. http://shovonc.wordpress.com/2012/07/10/know-your-laws-indian-penal-code-1860 section-354-outraging-a-womans-modesty http://www.prsindia.org/parliamenttrack/report-summaries/justice-verma-committeereport-summary-2628/. http://www.shareyouressays.com/119053/importation-of-girl-from-foreign-country section-366b-of-ipc.
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