Author:- Saumya Dwivedi
Sex related offences are a universal phenomena, which occur in every society in several circumstances and social settings. it’s going to take the shape of sexual violence, which sometimes cause severe and irreparable damage to the physical and psychological state of the victims. Physical injury includes an increased risk of a variety of sexual and reproductive health problems. Its impact on psychological state may be equally serious as that of physical injury. Sexual offences, after they assume the shape of sexual violence may cause murder, suicide, acute depression, etc. of victims. It entirely disturbs the social well being of the victims due to stigmatization and therefore the consequential loss of status in their families and also the neighborhood. Therefore, it’s vital that measures are introduced to finish India’s tolerance of violence against women and women. Policy and legal reform are needed to handle the pervasive and damaging stereotypes surrounding rape.
Of all these crimes, rape is taken into account to be the foremost obnoxious and gravest style of human rights violation within the country. It’s a criminal offense against the whole society and violates the human rights of the victim. Being the foremost hated crime, rape tantamount to a significant blow to the supreme honour of a lady, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks[i].
The case, which created a historical movement by women’s organizations covering various states, was Tukaram vs. State of Maharashtra[ii] called the Mathura case. This case still remains as a blot on the Indian judiciary because the Supreme Court of India acquitted the accused persons on the bottom that the testimony of the victims wasn’t properly founded. The court further held that the victim wasn’t ready to prove that she failed to consent to the act of sexuality. The judgment was followed by widespread agitations and demonstrations before the Supreme Court with the demand that the case be reheard. This compelled the govt. to manoeuvre for the amendment of the law of rape. It asked the Law Commission of India to review not only the substantial law regarding rape but also the principles of evidence and procedure followed in criminal trials.
a. Custodial Rape
Women be it anywhere are prone to the sexual harassment and it is no strange that women in prison, being in a small number is an easy prey for the personals in authority to harass them mentally as well as physically. Custodial Rape and sexual violence inside the prison is the most ignored and unfortunately the most under-rated topic that is rarely been discussed. We become ignorant when such cases are reported by the prisoners. Custodial rape is an aggravated type of rape. it’s an assault by those that are purported to be guardians of the women concerned that are specially entrusted for his or her welfare and safekeeping.
it’s caused when an individual, by misusing his position forcibly rapes a lady[iii]. Women Prisoners are often subjected to rape and other sexual assaults and these acts are generally justified by, not only the custodial staff but also by the other inmates. Due to the apathetic attitude of the police and other justice machineries, the prison rape cases and the sexual assault cases fail to come into the limelight. Women prisoners who have been in the custody of police complained particularly of harsh treatment by the police including sexual indignity or abuse, physical torture, beating and rough handling. A total disregard by the police of procedures applicable to arrest, search, custody, and other rights creates immense hardship for the women. Some of the incidents of custodial rape and the relevant decisions of higher courts are as follows-
Sheela Barse vs State of Maharashtra
The Court issued guidelines for the protection of female prisoners in the lockups. They are as follows –
- There should be separate lockups for female prisoners and it should be guarded by female police officers only.
- Interrogation of the female prisoners should only be done in the presence of female officers only.
- The person should be informed about the ground of arrest and provision of bail.
- It is mandatory that a female suspect is to be checked by a female police officer only (Section 160(1) of CrPC).
- Women prisoners cannot be arrested after sunset and before sunrise
Padmini, wife of a suspect in a theft case, was gang-raped in 1992. Her husband Nandagopal was taken to the Annamalai Nagar Police Station in Chidambaram for interrogation on May 30, 1992 and kept in custody till June 2, 1992. Nandagopal was beaten to death. When Padmini went to the police station to meet her husband, she was gang-raped.
Of the 11 policemen arraigned in this case, seven were acquitted and four convicted to undergo imprisonment for 10 years. The convicts went in appeal to the Supreme Court, which upheld the conviction of the trial court and the Madras High Court. Before the intervention of the High Court of Madras, the Government of Tamil Nadu offered to pay Rs. 1 lakh as interim compensation and also agreed to provide Government employment and accommodation in any one the Government homes.
Soni Sori v. State of Chhattisgarh.
Soni Sori a 35 year old adivasi schoolteacher, warden and mother, subjected to sexual violence while in custody in the Dantewada police station in Chhattisgarh under directions of the Superintendent of Police (SP) says in her letter to the Supreme Court advocate that “After repeatedly giving her electric shocks, her clothes were taken off. She was made to stand naked.
The Judiciary has taken a awfully a significant view regarding the commission of custodial rape. Whatever amendments, brought in rape laws to form the punishment more stringent, is principally due to those judgments. within the State of Maharashtra vs. Chandra Prakash Keval Chand[iv] Jain case, the court remarked ‘decency and morality publicly life may be protected and promoted’ if courts deal strictly with people who violate the societal norms. When crimes are committed by an individual in authority, i.e. a peace officer, superintendents of jails, or managers of remands homes or doctors the courts approach mustn’t be the identical as within the case of a personal citizen. When a lawman commits a rape on a woman, there’s no room for sympathy or pity. The punishment in such cases should be exemplary.
b. Gang Rape
Section 376 (2) (g) of the IPC constitutes the offence of Gang Rape. When one or more persons acting in furtherance of their common intention rape a lady it’s treated as gang rape. it’s the crudest and therefore the most extreme sort of sexism and is taken into account an aggravated variety of rape under the Indian legal code. For a man, it’s going to be merely a calculated and cold-blooded instrument of oppression or revenge, whether on a private woman, a caste or a category except for the lady it’s a terrible experience. it’s not required to prove actual commission of rape by each and each accused forming group[v]. The minimum punishment of this offence is 10 years, but it will be extended to immurement.
2. Trafficking of women And Women For Commercial Sexual Purposes
Trafficking of women and kids and their inclusion into the sex trade could be a burgeoning kind of gangland. Human trafficking is that the third largest gangdom after drugs and therefore the arms trade across the world. per the definition of the international organization – “trafficking is any activity resulting in recruitment, transportation, harbouring or receipt of persons, by means of threat or use of force or an edge of vulnerability’’.
Under the Immoral Trafficking Prevention Act (ITPA) trafficking for commercial sexual exploitation is penalized. The punishment ranges from seven years’ to imprisonment. The Indian Parliament recently enacted the Criminal code (Amendment) Act, 2013 (CLA). Although primarily concerned with targeting rape and regulatory offense, the Bill incorporates a spread of other offences handling violence against women many of which the Indian Penal code, 1860 (IPC) failed to envisage. Two such offences relate to trafficking, a locality of considerable policy and legal reform internationally.
Specifically, the new Section 370 defines the offence of trafficking thus replacing the prior Section 370, which addressed the buying or eliminating somebody as a slave. The new Section 370 criminalizes anyone who recruits, transports, harbours, transfers or receives an individual using certain means (including threats, force, coercion, fraud, deception, abduction, abuse of power, or inducement) for purposes of exploitation[vi].
SEXUAL HARASSMENT IN INDIA
Sexual harassment in India is thought by the Vishakha’s judgement which for the primary time took into consideration about the increasing harassment. the luxurious Act defines ‘sexual harassment in line with the Supreme Court’s definition of ‘sexual harassment’ within the Vishaka Judgment. As per the luxury Act, ‘sexual harassment’ includes unwelcome sexually tinted behaviour, whether directly or by implication, like (i) physical contact and advances, (ii) demand or request for sexual favours, (iii) making sexually coloured remarks, (iv) showing pornography, or (v) the other unwelcome physical, verbal or non-verbal conduct of a sexual nature
Sexual harassment constitutes a gross violation of women’s right to equality and dignity. It roots in patriarchy and its attendant perception that men are superior to women which some kinds of violence against women are acceptable. one in every of these is workplace molestation, which views various sorts of such harassment, as harmless and trivial. Often, it’s excused as ‘natural’ male behaviour or ‘harmless flirtation’ which women enjoy. Contrary to those perceptions, it causes serious harm and is additionally a powerful manifestation of sex discrimination in the workplace.
Not only is it an infringement of the elemental rights of a girl, under Article 19 (1) (g) of the Constitution of India “to practice any profession or to hold out any occupation, trade or business”; it erodes equality and puts the dignity and therefore the physical and psychological well-being of workers in danger. This results in poor productivity and a negative impact on lives and livelihoods. To further compound the matter, deep-rooted socio-cultural behavioural patterns, which create a gender hierarchy, tend to put the responsibility on the victim, thereby increasing inequality within the workplace and within the society at large.
SEXUAL HARASSMENT AT WORKPLACE
Though harassment clear constitutes a gross violation of the rights of women however the legislature came with the legislation i.e The Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 came into existence to form sure working spaces for women and to make an environment that gives equality of opportunity and standing to women. an efficient implementation of the Act will contribute to the realisation of their right to gender equality, life and liberty, equality in working conditions everywhere.
The sense of security at the workplace will improve women’s participation in work, leading to their economic empowerment and inclusive growth. The Criminal Laws (Amendment) Act, or anti-rape law, says the offence is punishable with three years’ imprisonment and provides for a fine. Sexual Harassment at the workplace may result in termination of service of the accused, withholding of promotions and increments, and payment of reasonable compensation to the complainant.
#ME TOO MOVEMENT
The #Me Too movement in India was influenced by the international worldwide movement but it differed in key ways. In America, the molestation case against Harvey Weinstein was investigated by reliable sources. The #MeToo movement provided an opportunity, giving space to the nameless and voiceless. Women who had been violated but could never dare to come out for fear of victim-blaming, victim-shaming or death at the hands of violent patriarchal forces were empowered to share their stories. It shined a light on how deeply entrenched misogyny and sexism were in society as many who came forward were publicly shamed or blamed for putting themselves in that situation.
The women who came out with their stories of sexual harassment exposed not only the men who had violated them but also the vulnerability and helplessness of being victimised. In India, it started on social media when actress Tanushree Dutta while giving an interview accused veteran actor Nana Patekar of sexually harassing her on the sets of the movie Horn ‘OK’ Pleassss (2009). additionally to it, she also accused VivekAgnihotri for asking her to get rid of her clothes and dance with actor Irrfan Khan on the sets of Chocolate to which he later denied and sent a legal notice to her since such allegations were tarnishing his image.
In October 2018, the global #MeToo movement against sexual abuse and harassment perpetrated by powerful men in society reached India’s mainstream public discourse. A number of women came out with allegations and accounts of harassment on social media and other platforms. Accusations were levelled against several prominent personalities, but perhaps the most high-profile one was the case against former junior external affairs minister, M.J. Akbar. Journalist Priya Ramani, who had accused the former editor of inviting her to his hotel room for a job interview and behaving inappropriately, found herself at the receiving end of a 41-page defamation suit.
Legal Consequences of #Me Too Movement
Sexual Harassment of women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The apex court laid down various guidelines for prevention of molestation at workplace within the Vishakha & Ors. v. State of Rajasthan[vii]which later led to the establishment of molestation of women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Section. 26 of the Act prescribes penalties for non-compliance and includes a monetary fine of up to ₹ 50,000/- amongst other penalties. The penalty may touch ₹ 5 million and imprisonment for each officer of the corporate who is in default for a term which can be three years or with fine within the range of ₹ 50,000 and ₹ 500,000.
If an employer repeats the identical offense, authorities can double the financial penalty and/or cancel the registration of the entity or revoke any statutory business licenses. Once a molestation case is reported, employers must collect evidence and take action within three months.If the aggrieved woman isn’t satisfied, she will be able to approach the court under section 509 of the legal code, or report back to police and revisit the complaint.
The Hon’ble Supreme Court laid down guidelines for fitting of Internal Complaints Committee to house the cases of molestation at workplace. Despite such efforts, after the enactment of harassment Act, the Vishakha Guidelines cease to exist. With the widespread movement, the Hon’ble Supreme Court has asked the centre moreover because the state to submit a report on the implementation of law against harassment of women at workplaces.
As per Section-468[viii] of The Code of Criminal Procedure, 1973 the period of limitation commences from the date of offence or the day on which such offence comes to the knowledge of the victim or where the perpetrator of crime is unknown, the day on which the identity of the offender is known. The Act also empowers the Court to extend the limitation period, it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.
Amendments to the Bye-laws of Producers Guild of India (PGI)
The Producers Guild of India mixed up “Extraordinary General Meeting” and made amendments to their bye-laws, resulting in the inclusion of two main provisions-
First, all the prevailing and new member are asked to sign a declaration stating that they need implemented the provisions of the harassment of women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 as needed by law and it’s to be signed within a period of 30 days after the receiving of such declaration.
Second, the guild has the correct to expel any member, if he/she found to be indulged in molestation by its Internal Complaints Committee.Such initiative has been taken while taking into consideration the women safety because it is utmost important to shield their dignity and make a healthy environment for them to figure.
Strengthening Laws against Defamation
The worldwide movement has its own detrimental repercussions. There are many false allegations. so as to forestall further false allegations, the defamation laws are strengthen still. The laws against defamation in India, states that the women who are unable to prove their allegations, are accountable for defamation, with imprisonment to a term which can get extended up to 2 years
It is vital that measures are introduced to finish India’s tolerance of violence against women and women. The Justice Verma Commission was founded following the murder of ‘Nirbhaya’ to form recommendations regarding how India might curb violence against women and strengthen rape laws. In its 630-page report the Commission suggested amendments to the law to produce for quicker trials in rape cases and enhanced punishments for sexual offences. The Commission’s report makes concrete recommendations in respect of electoral reforms, police reforms, “education and perception” reforms, measures to cope with extra-judicial authorities (e.g. khap panchayats), child sex offense, trafficking in women, stalking, cyber-stalking, molestation within the workplace, and medico-legal examinations of victims that violate their human rights. The Commission also held that chemical castration would be unconstitutional and inconsistent with variety of human rights treaties that India is party to therein it might expose citizens to potentially dangerous medical procedures, possibility without their consent. it’s therefore vital, as we’ve sought to point out, that India looks beyond the natural human desire for retributive justice to hunt comprehensive solutions, including sex-offender treatment programs and restorative justice approaches that provide a real and lasting legacy of change. Moreover, the utmost need at now may be a change within the mindset to know the fears, compulsions, and pressures on women victims. rather than blaming the victim for having invited such sexual advances, it’s important to shift the blame to the perpetrators.
I am Saumya Dwivedi pursuing BBA LLB from Amity University Lucknow.
[i] Deepak Gulati v State of Haryana, AIR 2013 SC 2071
[ii] AIR 1979 SC 185
[iii] Ram Kumar v State of H.P., AIR 1995 SC 1965
[iv] AIR 1990 SC 658
[v] Pradeep Kumar v Union Administration, Chandigarh, (2006) 10 SCC 608
[vi] AIR 1997 SC 3011
[vii] AIR 1997 SC 3011.