SEXUAL HARASSMENT AND RAPE LAWS IN INDIA-ANALYTICAL STUDY
SEXUAL HARASSMENT AND RAPE LAWS IN INDIA-ANALYTICAL STUDY
Dr. Ashish Shrivastava
ABSTRACT:
Sexual harassment and rape are two sides of the same coin.
Both showcase the power of man to dominate that of women. " While a
murderer destroys the physical frame of the victim, a rapist degrades and
defiles the soul of a helpless female." Sexual harassment is nothing
less than the showcasing of male dominance. For, Nirbhaya's story
doesn't tell women to dread the world because beasts lurk in it, behind trees,
beyond each bend, in vehicles with dark windows. It enjoins us to remake the
world so that every member of a long-oppressed sorority can trust it as a
guarantor of equality, security, and justice. Our freedom is only half-won
unless Nirbhaya's sisters can walk on the road on a winter night, board the bus
that comes along, and find their way home - the way Nirbhaya hoped to.
KEYWORDS:
Rape laws, I.P.C., Cr.P.C., Evidence Act,
Sexual Harassment etc.
INTRODUCTION:
Small and big crimes obviously
thrive in the same atmosphere; they cross-fertilize to produce deadly hybrids
that can baffle and beat the law. A part-time pickpocket, if left unchecked,
becomes an armed robber, just as a stalker can become a rapist and a rapist can
become a killer. If stopping singles can win a cricket match, likewise,
attention to small crimes decreases the incidence of major crimes. This view
was first proposed in 1982, in Atlantic Monthly, but it remained on paper till
Giuliani put it in practice in New York.
We have enough laws and yet of the
635 rape cases filed in Delhi last year, only one received conviction. Eventually,
a law, any law, is best delivered when it has a wide support structure that
takes all crimes seriously. Every time a new law is enacted, without altering
the way the police or the court's function, it only adds to judicial
inefficiency. A ship, overburdened, can sink even in calm waters. Therefore,
before we demand the death sentence for rape, with mutilation as a side order, we
need to think of the law enforcement system as a whole.
PROTECTION
OF WOMEN UNDER THE CONSTITUTION OF INDIA:
According to a
report of the United Nations published in 1980-“Women constitute half of the world population, perform nearly two-thirds of works hours, receive one-tenth
of the world income and own less than one hundred percent of the world’s property.”
The 26th of January,
1950 was a red-letter day in the history of India which is elongated and marked
by fluctuations of fortune when the Constitution was adopted by the Nation. It
is the World’s longest written Constitution which is federal in nature.
The Constitution of
the world’s largest democracy is regarded as the Supreme Law of the land which
affirms India as a sovereign, secular and democratic republic country. It
pledges all its citizens, justice, equality and liberty thus making a
triumphant endeavor to encourage fraternity amid them.
It sets down the
gibbet for defining key political principles sets up the composition,
procedures, authorities, and duties of government institutions, and sets out
the fundamental rights, directive principles, and the duties of the citizens.
The preamble is the
explanation to the Constitution which does not differentiate men and women
rather treats them equally. The cultivators of the Constitution were well
sentient of lopsided behavior meted out to the flaxen sex, since time
immemorial. The history of containment of women is very old and long in India,
which is conscientious for including general and special provisions for the
upliftment and advancement of the condition of women. Certain provisions are specially premeditated
for the benefit of women. Indubitably, the preamble affixed to the Constitution
of India, enclose an assortment of objectives, most essentially “the equality
of status and equal opportunity” to all its citizens. This objective has been
interleaved with the vision to bestow equal position to men and women in
stipulations of opportunity.
Part III of the
Constitution deals with the Fundamental Rights, enshrined in Articles 12 to 35,
which are applicable to all citizens irrespective of sex, caste, creed or
religion. Nevertheless, certain provisions are incorporated with the intention
to protect the rights of women. Article 15(1) of the Constitution prohibits
gender discrimination. Article 15(3) provides that discrimination on the
grounds of religion, race, caste, sex or place of birth shall not prevent the
state from making any special provisions for women and children but such laws
shall not be violative of Article 15. Article 15(3) hauls up that discomfiture
and sanctions the state to positively show favoritism in errand of women to
make special provisions to ameliorate social, economic and political conditions
and concordat them equality. Making special seating provision for women in
public transportation is in no ways unconstitutional. The Courts have always
approved the validity of such special legislations rather special measures and
these women and children tilting favorable legislation can be witnessed in the
realm of Criminal Law. Article 19 to 22 covenant the right to freedom which
includes freedom of speech, protection in respect of convictions of offenses,
protection of life and personal liberty and protection against arrest and
detention. Article 23 provides protection against the traffic of human beings and
forced labor.
The Apex Court has
elevated the status of working women in India and confirms that women shall not
be denied a job merely because she is a woman. This was decided in a landmark
case Air India vs. Nargesh Meerza AIR 1981 SC 1829. In another milestone case,
Miss C.B. Muthamma vs. Union of India AIR 1979 SC 1868, the Hon’ble Supreme
Court laid down that seniority promotion shall not be denied on the ground of
sex. There are more than a few cases in point where the Hon’ble Supreme Court
has elevated the status of women in India in accord with the Constitution of
India. There are several statutes made by the state in the past as well as in recent times for upliftment and progress of the status of women in India.
The makers of the Constitution has left no scope for criticism that the women
of the world’s largest democracy have been neglected in terms of the sanctions
guaranteed under the Constitution. Thus protecting and securing the dignity and
integrity of women in India.
PROVISION ON
RAPE UNDER INDIAN PENAL CODE, 1860:
In cases where the accused sexually
harasses or insults the modesty of a woman by way of either- obscene acts or
songs or- by means of words, gesture, or acts intended to insult the modesty of
a woman, he shall be punished under Sections.294 and 509 respectively.
Under Sec.294 the obscene
act or song must cause annoyance. Though annoyance is an important ingredient
of this offense, it is associated with the mental condition has often to be
inferred from proved facts. However, another important ingredient of this
offense is that the obscene acts or songs must be committed or sung in or near
any public place.
Section.509 of IPC comes into the effect when there is an intention to insult the modesty of any woman by the offender by uttering any word, making any sound or gesture or by exhibiting any
object, with the intention that such word or such sound be heard, or that such
gesture or object be seen by such a woman, or by intruding upon the privacy of
such a woman.
Thus, this Section requires:
1. Intention
to insult the modesty of a woman.
2. The
insult be caused by
i) Uttering
any word or gesture, or
ii) Exhibiting
any object with the intention that such word, gesture, or object be heard or seen by such a woman, or
iii) By
intruding upon the privacy of such woman.
RAPE LAWS IN INDIA:
"The law of rape is not just a few sentences. It is a whole book, which has clearly demarcated chapters and cannot be read selectively. We cannot read the preamble and suddenly reach the last chapter and claim to have understood and applied it."
- Kiran
Bedi., Joint Commissioner, Special Branch.
In the Mathura rape case: The The court, in this case, failed to comprehend that a helpless resignation in the face
of inevitable compulsion or the passive giving in is no consent. However, the
Criminal Law Amendment Act, 1983 has made a statutory provision in the face of
Section.114 (A) of the Evidence Act, which states that if the victim girl says
that she did not consent to the sexual intercourse, the Court shall presume that
she did not consent.
In Mohd.Habib Vs State: The suit was squashed by the High The court while observing that ‘ it is improbable to believe that a man who
desired sex on payment would go to a reluctant woman; and that the version of
the victim was not so sacrosanct as to be taken for granted.’
Whereas, in State of
Punjab Vs. Gurmit Singh:
The Supreme Court has advised the lower judiciary, that even if the victim girl
is shown to be habituated to sex, the Court should not describe her to be of
loose character.
The Supreme Court has in the
case of State of Maharashtra Vs. Madhukar N. Mardikar held that "the unchastely of a woman does not
make her open to any and every person to violate her person as and when he
wishes. Therefore merely because she is of easy virtue, her evidence cannot be
thrown overboard."
Also the Bandit Queen case10,
which depicts the tragic story of a village girl. Phoolan Devi- who was exposed
from an early age to the lust and brutality of some men. This is truly one
story that shows the apathy of the existing society.
In Chairman, Railway Board Vs.
Chandrima Das, a practicing Advocate of the Calcutta High Court filed a
petition under Article.226 of the Constitution of India against the various
railway authorities of the eastern railway claiming compensation for the victim
(Smt. Hanifa Khatoon)- a Bangladesh national- who was raped at the Howrah
Station, by the railway security men. The High Court awarded Rs.10 lacs as
compensation.
After having studied the case laws,
it is necessary to also study the definition of Rape as given in the Indian
Penal Code, 1860. As per Section.375 of IPC, a man is said to commit the offense
of rape with a woman under the following six circumstances:
1. Sexual
intercourse against the victims will,
2. Without
the victim's consent,
3. With
her consent, when her consent has been obtained by putting her or any person
that she may be interested in fear of death or hurt,
4. With
her consent, when the man knows that he is not her husband,
5. With
her consent, when at the time of giving such consent she was intoxicated, or is
suffering from unsoundness of mind and does not understand the nature and
consequences of that to which she gives consent,
6. With
or without her consent when she is under sixteen years of age.
The further explanation provided to the section states that penetration is sufficient to constitute the sexual
intercourse necessary to constitute the offense of rape, whereas the exception
leaves out marital rape altogether if the wife is not under fifteen years of
age.
Section. 375 therefore requires:
a) Sexual intercourse by
a man with a woman; b) The sexual intercourse must be under any of the
six circumstances are given in the section.
Criminal Law Amendment Act, 1983:
The Criminal Law Amendment Act has substantially changed Sections.375 and 376 of the IPC. Several new sections have been introduced therein- viz. Sections. 376(A), 376(B), 376(C), 376(D) of the IPC.
Section. 376(A) punishes sexual
intercourse with wife without her consent by a judicially separated husband.
Section. 376(B) punishes for
sexual intercourse by a public servant with a woman in custody.
Section. 376(C) punishes
sexual intercourse by the superintendent of jail, remand house, etc. whereas,
Section. 376(D) punishes
sexual intercourse by any member of the management or staff of a hospital with
any woman in that hospital.
Criminal Law Amendment Act, 2013 (No. 13 of 2013), Sec.9 (w.r.e.f. 3-2-2013), Published inthe Gazette of India, Extra., PartII, sec.1 dated 2-4-2013 at pages 1-16.:
These new sections have been
introduced with a view to stopping sexual abuse of women in custody, care and
control by various persons- which though not amounting to rape were
nevertheless considered highly reprehensible.
Attempt to Rape:
In cases where an indecent assault is made upon the person of a woman, but where rape is not committed- the culprit is charged with Section.354 of IPC, because unless the Court is satisfied that there was a determination in the accused to gratify his passion at any cost, and in spite of all resistance, such a person is not charged with rape.
Section.354 of the IPC
prescribes punishment for anyone who assaults or uses criminal force to any
woman with an intent to outrage her modesty. An indecent assault upon a woman
is punishable under this section. Rape is punished under Section.376; but the
offense under this Section is of less gravity than rape. And also because a
person who is guilty of attempting rape cannot be allowed to escape with the
lesser penalty of this section.
SEXUAL
HARASSMENT AND RAPE LAWS IN INDIA:
Sexual harassment and rape are two
sides of the same coin. Both showcase the power of man to dominate that of
women. Both have one victim- ‘women’. Both are barbaric in nature; but many
people extenuate sexual harassment to rape, just because the victims are not
physically harmed.
Whereas in rape- the victim is
ravished like an animal for the fulfillment of desire and lust of another man.
Both have the same object- to undermine the integrity of the victim, physically
as well as mentally.
" While a murderer destroys the
physical frame of the victim, a rapist degrades and defiles the soul of a
helpless female." Sexual harassment is nothing less than the
showcasing of male dominance. Given an opportunity, such men (those committing
sexual harassment) would try fulfilling their desire. However, it also not true
that all cases of sexual harassment are such- where the accused is guilty of
conceiving the intention of sexual intercourse. But it also depends on each
individual case and circumstances, because it may well be the case that the
woman may also be at fault.
The question is not whether women
have the right to bodily integrity, as this right is already adumbrated under
Article.21 of the Constitution of India. Article.21, which guarantees the right to life and
liberty to men and women both alike- but whether it is really imperative to
take a decisive step towards extirpating this evil and make the contemporary
and future society a safe haven for women.
Vishaka’scase:
It was in 1997 in Vishaka Vs. The state of Rajasthan and others, that for the first time sexual
harassment had been explicit- legally defined as an unwelcome sexual gesture
or behavior whether directly or indirectly.
It was in this landmark case that sexual harassment was identified as a separate illegal behavior. The Supreme Court in absence of any enacted
law (which still remains absent- save the Supreme Court guidelines as stated
hereunder) to provide for effective enforcement of basic human rights of gender
equality and guarantee against sexual harassment laid down the following guidelines:
1. All
the employers in charge of workplace whether in the public or the private the sector, should take appropriate steps to prevent sexual harassment without
prejudice to the generality of his obligation, he should take the following
steps:
a) Express
prohibition of sexual harassment which includes physical contact and
advances, a demand or request for sexual favors, sexually colored remarks,
showing pornographic or any other unwelcome physical, verbal/ non-verbal
conduct of sexual nature should be noticed, published and circulated in appropriate ways.
b)
The rules and regulations of government and public sector bodies relating to
conduct and discipline should include rules prohibiting sexual harassment and
provide for appropriate penalties in such rules against the offender.
c) As
regards private employers, steps should be taken to include the aforesaid
prohibitions in the Standing Orders under the Industrial Employment (Standing
Orders) Act, 1946.
d) Appropriate
work conditions should be provided in respect of work leisure, health, hygiene-
to further ensure that there is no hostile environment towards women and no
woman should have reasonable grounds to believe that she is disadvantaged in
connection with her employment.
2. Where
such conduct amounts to specific offenses under the Indian Penal Code or
any other law the employer shall initiate appropriate action in accordance with
the law, by making a complaint with the appropriate authority.
3. Victims
of sexual harassment should have the option to seek transfer of the
perpetrator or their own transfer.
A K.CHOPRA’S CASE:
A K.Chopra’s case is the first case
in which the Supreme Court applied the law laid down in Vishaka’s case and
upheld the dismissal of a superior officer of the Delhi based Apparel Export
Promotion Council who was found guilty of sexual harassment of a subordinate a female employee at the place of work on the ground that it violated her a fundamental right guaranteed by Article.21 of the Constitution.
In both cases the Supreme Court
observed, that " In cases
involving Human Rights, the Courts must be alive to the International
Conventions and Instruments as far as possible to give effect to the principles
contained therein- such as the Convention on the Eradication of All forms of
Discrimination Against Women, 1979 [CE DAW] and the Beijing Declaration
directing all state parties to take appropriate measures to prevent such
discrimination."
As stated by the Supreme Court,
these guidelines are applicable to:
a) The
employer or other responsible persons or other institutions to prevent sexually
harassment and to provide procedures for the resolution of complaints;
b) Women who either draw a regular
salary, receive an honorarium, or work in a voluntary capacity- in the government,
private or organized sector come under the purview of these guidelines.
Preventive
Steps:
1. Express prohibition of sexual harassment should be notified and circulated.
2. Inclusion of prohibition of sexual harassment in the rules and regulations of government and public sector.
3. Inclusion of prohibition of sexual harassment in the standing orders under the Industrial Employment (Standing Orders) Act, 1946 by the private employers.
4. Provision should be made for appropriate work conditions for women.
Procedure
pertaining to the filing of complaints:
1. Employers must provide a Complaints Committee which is to be headed by a woman; of which half members should be women.
2. Complaints Committee should also include an NGO or other organization- which is familiar with sexual harassment.
3. The complaints procedure should be time-bound.
4. Confidentiality of the complaints procedure has to be maintained.
5. Complainant or witnesses should not be victimized Or discriminated against- while dealing with complaints.
6.
The Committee should make an annual report to the concerned Government
department and also inform of the action (if any) taken so far by them.
Failure
of law reflects the failure of society to protect and serve humanity.
In the present circumstances when offenses against women are on the rise- when young girls are raped by their doctors, by presidential guards in broad daylight, the definition of rape to be of any deterrence- falls extremely inadequate. It does not address forced penetration of objects and parts of the body into the vagina and anus; and forced oral or anal intercourse.
It also does not recognize
other forms of sexual assaults- like protracted sexual assault by relatives,
marital rape, etc. as aggravated forms of rape. This causes grave injustice to
many victims. In many cases of child rape, the child has been penetrated
through fingers or by objects or been forced to perform oral or anal sex; yet
this is not considered rape by the Courts.
Adding to this is Section.
155(4) of the Evidence Act, which allows the victim to be questioned of her
past sexual history- which the defense uses to humiliate the victim in the
Courtroom.
One of the major obstacles in
delivering justice in rape cases is the poor quality of investigations. The
reason behind this ranges from gender bias and corruption to the general
inefficiency of the police. In many cases, the police have even refused to lodge
the FIR or have lodged an incomplete FIR.
The victims are not taken for prompt
medical examination, because in cases of rape, or attempt to rape- medical
examination of the victim and of the accused soon after the incident often
yields a wealth of corroborative evidence. Therefore, such an opportunity
should not be lost by the police.
The manner in which some
courts have interpreted the law or assessed the evidence has often proved to be
an obstacle also. In spite of Supreme Court judgments to the contrary, lower
court judges often insist on evidence of physical resistance or marks of
injuries to hold that a woman has not consented. A woman’s evidence without
corroboration is not considered sufficient.
The long time that is taken to
complete a rape trial often by allowing senseless adjournments; and the giving
of evidence by the victim in the presence of the accused and the harsh cross
examination in the Court are some other major obstacles.
As
observed by Krishna Iyer, J. in Rafique’s case:
"When
a woman is ravished, what is inflicted is not a mere physical injury but the deep
sense of some deathless shame… judicial response to Human Rights cannot be
blunted by legal bigotry."
Therefore rape laws in order
to be of great deterrence, must have a cooperative victim, professional
investigation, diligent prosecution; and an expeditious trial. For otherwise it
shall not be the law, that fails, but the applicants, the process and
application.
In
view of the above, the Supreme Court has laid down the following guidelines for
the trial of rape cases:
1. The complaints of sexual assault
cases should be provided with legal representation. Such a person should be
well acquainted. The Advocates role should not merely be of explaining to the the victim the nature of the proceedings, to prepare for the case and assist her,
but to provide her with guidance as to how she might obtain the help of a different
nature from other agencies- for e.g. psychiatric consultation or medical
assistance.
2. Legal assistance should be
provided at the police station, since the victim may be in a distressed state.
Guidance and support of a lawyer at this stage would be of great help.
3. The police should be under a duty
to inform the victim of her right to a counsel before being interrogated.
4. A list of lawyers willing to act
in these cases should be kept at the police station.
5. Advocates shall be appointed by
the Court on an application by the police at the earliest, but in order
that the victim is not questioned without one, the Advocate shall be authorized
to act at the police station before leave of the Court is sought or obtained.
6. In all rape trials, the anonymity of
the victim must be maintained.
7. It is necessary to set up Criminal
Injuries Compensation Board with regard to the Directive Principles contained
under Article. 38(1) of the Constitution of India. As some victims also incur
Substantial losses.
8. Compensation for the victims
shall be awarded by the Court on the conviction of the offender and by the
Criminal Injuries Compensation Board- whether or not a conviction has taken
place. The Board will take into account pain, suffering, shock as well as loss
of earnings due to pregnancy and childbirth if this accrued as a result of
rape.
The National Commission for Women be
asked to frame schemes for compensation and rehabilitation to ensure justice to
the victims of such crimes.
As observed by Justice Saghir Ahmad:
"Unfortunately a woman in our country belongs to a class or group
of society who are in a disadvantaged position on account of several social barriers
and impediments and have, therefore, been victims of tyranny at the hands of men
with whom they, unfortunately, under the Constitution enjoy equal
status."
CONCLUSION:
According to the official statistics of
1991, one woman is molested every 26 minutes. These statistics refer to the
reported cases. Whereas, if the unreported cases were to be included, it would
be a matter of seconds- rather than minutes. investigation of Most cases is
not reported by victims because of various reasons such as family pressures,
the manner of the police, the unreasonably long and unjust process and
application of the law; and the resulting consequences thereof. In instances
where women have reported such illegal and unwelcome behavior, there have been
significant victories in the past decade or so. Also considering the fact the
sometimes these victories are achieved after a wait of a decade or so.
It's
time to ask some questions - and loudly. How many times has a girl child been
told not to run wild like her brothers, because she must inculcate passivity?
How many times has a girl student been told that the art of masochism prepares
her for life more than the habit of scientific inquiry? How many times have
teenagers, barely post-puberty, been paraded in the marriage market as
sideshows to the 'dahej'? How many times have brides been made to acquiesce to
conjugal deflowering and impregnation as the sole justification for their
existence?
BIBLIOGRAPHY:
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