CHAPTER-1

INTRODUCTION

The oriental tradition of India preaches “MAATRI DEVO BHAVA” which means worship thy

mother; and women should be honored with great reverence like goddess. India has different and

distinct culture and moral values from its western counterparts. The history of Sociology has

however established that,

“FORTITUDE THY NAME IS WOMEN;

SELF- SACRIFICE THY NAME IS TENACITY AND

SUCCESSFUL PURSUIT, THY NAME IS WOMEN”

History attests that man has subjected women to his will, used her as a means to promote his self

gratification, to minstrel to his sensual pleasure, as an instrument in promoting his comfort, but

never he has desired to elevate her to that rank which she was created to occupy. He has done all

he could, to debase and enslave her mind and now he look triumphantly on the ruin he has

brought. All women for, is that men should ask our brethren, is that they will take their feet from

our neck and permit them to stand upright on that ground which God designed us to occupy.

Though ancient literature pinpoints towards a better position for the females, yet many ancient

writers eg:- Confucius, Aristotle, Manu etc., were of the opinion that it is a natural right of a

male to assert dominance and the females were accorded inherently inferior position. As a type

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of property, they can be transferred or sold off, and even under the Greek civilization females

were kept within the four walls of the houses.

Therefore, these instances pinpoint that though they occupy a high position in the family, yet

they were subjected to the dominance of male and were denied of any right. This domination

gradually led to sexual perversities and was found to be the main cause of destruction of

civilization as well as the family unit.

Over the decades there has been an alarming decline in the moral values all around and the same

can be witnessed in India leading to degeneration of moral and in the guise of open culture the

adoption of immoral ways of existence. Violence is generally conceptualized in terms of physical

force and destructive conduct. The simplest definition of violence is the behavior designed to

inflict injury on a person or to cause damage to property.

Violence against women is a manifestation of historical unequal power relation between women

and men, which have led to domination over and discrimination against women, and is a social

mechanism by which the subordinate position of women is sought to be perpetuated. Women

suffer even today, though they constitute more than half of the world’s population. In a 1980 UN

Report, it was reported that –women constitute half the world’s population, perform nearly two-

thirds of its work hours, receive one-tenth of the world’s income and less than one-hundredths of

the world’s property.

Violence against women is defined 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 arbitrary deprivation of liberty, whether occurring in public or

private life.

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Sexual violence describes the deliberate use of sex as a weapon to demonstrate power over and

to inflict pain and humiliation upon, another human being. Sexual violence may be defined as

any violence, physical or psychological, carried out through sexual means or by targeting

sexuality. Sexual violence is a brutal reality of women’s lives and a slur on the face of civilized

human society. Sexual violence, apart from causing immediate physical harm, leaves a

permanent scar in the memory of the victim, which destroys her emotional psyche tremendously.

Sexual violence not only negates the human rights of the victim concerned but at a large level,

affects the society at large by lowering down the development prospects as it directly impinges

upon the potential of nearly half of the human population i.e., women.

Sexual violence may be homosexual as well as heterosexual. Woman because of their oppressed

and subjugated position in society are far more prone, in terms of vulnerability to sexual

violence. The available evidence suggests that at least one in five of the World’s Female

Population has been physically or sexually abused at some time in their lives.

Sexual crimes against women; the most shocking crime against human conscience and morality

occupy a significant place in the penal statutes of every country. Though women can be subject

to all types of crimes but some crimes are specific to women such as rape, molestation, sexual

harassment and immoral trafficking. Among them rape is perhaps the most damaging and a

serious offence against the dignity of women.

The biological weakness of a woman particularly makes her an easily vulnerable victim of

tyranny at the hands of man in addition to socio-economic and educational factors. The women,

whose inferior status is established at the birth itself in view of female infanticide and sex

determination are confronted with multi-dimensional problems at all stages of life, hence an

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integrated search of means and methods is essential to prevent crimes, violence and atrocities

against women.

Crime against women has existed invariable with time and place. Types and trends of crimes

however, kept changing with change in mind set and techniques, unfortunately women were not

only accorded a lower status in the society but they also came to be used as objects of enjoyment

and pleasure, thus subjecting them to regular exploitation and victimization. Sex is a natural

phenomenon and is necessary for the continuity of human race and sexual exploitation is the

worst form of degradation of those who indulge in it. The violation of virginity subjects women

to considerable shame and humiliation.

According to National Crimes Records Bureau , the crime head wise incidence of reported

crimes 2009-2010 is as follows:-

Incidence of Sexual Violence

S.No. Crime Head Year %age Variation in 2010 over 2009

2009 2010

1. Rape 21397 22172 3.5

2. Molestation 38711 40613 4.9

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These statistics reveal a pathetic picture of rate of sexual violence against women in India.

The figures for Courts reveal a very devastating picture, which raises a big question mark about

the efficiency of our judicial system. Out of a total of 89707 cases for trial (including pending

cases), only 3788 (4.2%) trial could be completed and 75295 (83.9%) remained pending.

Rape Cases Disposed off by the Courts.

Year Total No. Cases in Cases in Cases in Cases

of Cases which trial which which Pending

for trial was conviction Discharge Trial at the

including completed followed or end of the

pending Acquittal Year

cases followed

2010 89707 3788 149 10475 75295

1.1 DETERMINANTS OF SEXUAL VIOLENCE

Recent cross-cultural studies on family violence and rape, drawing on data from 90 societies

throughout the world, suggest that four factors, taken together, are strong predictors of violence

against women in a society – (i) economic inequality between men and women; (ii) a pattern of

using physical violence of resolve conflict; (iii) male authority and control of decision making;

and (iv) restrictions on women's ability to leave the family setting.

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Apart from these four major predictors, there are several corollaries of these and other ancillary

factors existent in the society, which ultimately give rise to situations violent to women in sexual

terms. Few of the major determinants of sexual violence are discussed below:–

1) Unequal Power Relation in Society

The most important Determinant for sexual violence is the historically rooted inequality of

power relation between men and women. Violence is not a natural or biological phenomenon

rather it is a product of the unequal power equations in the society. In fact, sexual violence

mirrors gender inequalities and reflect other forms of social inequalities.

The direct consequences of economic disparities is that women, who earn less than men, are not

likely to advance to positions of authority and power, hence women remain excluded from the

control of knowledge system and its discourse.

2) Cultural Practices and Ideology

Violence rooted in unequal power relations between men and women may also include frequent

infliction of harm that is justified or exonerated by custom, tradition, religion, etc. Many cultures

condone or at least tolerate a certain amount of violence against women. Devdasi system and

female genital mutilation are amongst the various examples of violence encouraged and

perpetuated by cultural and religious practices. Such cultural devaluation of women constitutes

another major precursor for sexual violence against women.

3) Control of Women’s Sexuality

The control of female sexual behavior is the focal point of many law codes, which place great

emphasis on chastity of women. Such control of sexual behavior establishes the time paternity of

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the child born to such woman, which is quite important to ensure the property inheritance by the

legitimate lineage of successors. Violence is often used as an instrument to control sexual

behavior.

Visualizing woman only as a sexual entity reduces her to a sexual object and it is this

dehumanization and objectification, which is the initial step in making women the acceptable

targets of violence.

4) Women as an Object of Pleasure

The male dominance has prevailed in every system and woman has been visualized as an object

of pleasure .The woman had been and is still treated as property which can be dispensed with at

any point of time. The trend has prevailed in the modern times and women has been used for

advertising products and for encashing their beauty.

1.2 IMPACT OF SEXUAL VIOLENCE

Perhaps the worst impact of sexual violence is manifested in the absence of human security for

woman. The experience and fear of violence are threats in women’s lives that intervene with the

most basic human security needs at all levels –Personal, Community, Economic and Political.

In no society, women are secure or treated equally to men, personal insecurity shadows them

from cradle to grave. The fear of violence shapes the choices woman make –what places to visit,

at what time, what kind of employment to be picked up etc. The fear of violence compels women

to seek male protection, which gives rise to a situation of vulnerability and dependence, which is

not conducive to women’s empowerment and development.

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Sexual violence results in serious health hazards for women and sometimes, the physical injuries

caused to the victim may be fatal. The abused women may contract the sexually transmitted

diseases and unwanted pregnancies. The possibility of HIV transmission is facilitated by the

damage of genital area.

The physical consequences are still easier to enumerate in comparison to the psychological,

emotional or spiritual impacts. Abused women may show high levels of anxiety, somatic

disorders or personality disorder.

Sexual Violence also compromises the healthy development of children and families of the

abused women. In cases of such violence occurring within the family, the important functions

and viability of family as an institution may get threatened. Sexual Violence acts as an obstacle

to the alleviation of poverty as the employment choices for women may get severely limited,

particularly because of sexual violence occurring at work place.

Sexual violence is all pervasive and manifests itself in a number of forms –e.g. rape, eve-teasing,

sexual harassment at work place, molestation, etc., which exists in all the institutions of life.

1.2.1 RAPE

Rape is a crime, not only against the person of a woman, it is a crime against the entire society. It

destroys the entire psychology of a woman and pushes her into deep emotional crises. It is a

crime against basic human rights. Rape is the ultimate violation of the self. It is a humiliating and

traumatic event in a woman's life, which leads to a fear for existence and a state of

powerlessness.

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Rape can be the most terrifying event in a woman's life. The fear of rape affects all women. It

inhibits their actions and limits their freedom, influencing the life as a whole. There is no typical

‘rape victim ’or conversely, every woman is a typical rape victim - old women, little girls,

women in wheelchairs, lesbians, virgins, women of every race and class... are raped .

The word rape is derived from Latin ‘rapio’ which means to snatch, hence it literally means a

forcible seizure and this element is a characteristic feature of the offence. It may be defined in

the narrow terms as “ravishment of a woman without her consent by force, fear or fraud” or as

“the carnal knowledge of woman by force and against her will”.

Rape must be understood as the gravest kind of sexual violence against women –an extreme

manifestation occurring in the continuum of sexual violence. Rape is an act of aggression in

which the victim is denied her self determination. Rape is a classic act of domination, where in

the words of Kate Millett, “the emotions of hatred, contempt and the desire of break or violate

personality” take place.

1.2.1.1 REACTION TO RAPE

Rape triggers off different types of reactions in the victim and the society. Whereas the victim

perceives rape as the most brutal attack on her autonomy, the reactions of the society to rape and

the rape victim are reflective of double standards of morality.

i) Reaction of Rape Victim

Rape is a crime that covers a wide variety of incidents ranging all the way from a

misunderstanding of intention between acquaintances to a surprise attack by a stranger. Among

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raped woman, there is a diversity of age, level of maturity, life experience, ethnicity, and social

class. Also friends, relatives, and law enforcement people will vary in their level of

understanding and treatment of victim, which will in turn have an effect on the impact of the

incident.

1. The Incident

The nature of the rape determines the extent to which a woman blames herself or is considered

by others to be at least partially responsible. A woman raped by an acquaintance often feels that

it was her fault or that she could have prevented the assault; Because she blames herself ,

criticism from friends and family is difficult for her to handle , makes it less likely that she will

report the crime , and may possibly prolong the time taken in resolution of her feelings of guilt.

2. The Victim

The sexual side of rape can be of more concern to young, sexually inexperienced girls than to

older woman. A teenager often feels defiled and worries that nobody will ever want them now

that they have been raped. Woman’s social class may also have some bearing on their reaction to

sexual assault. Middle and upper class woman possibly suffer more of an emotional shock

because of their lack of familiarity with violence, crime and victimization. Woman from the

lower classes may accept rape as one more trial in their already difficult lives.

3. The Three Stages Of Reaction

The recovery process varies with each victim, but the reaction to rape is likely to pass through

three phases. These phases are:-

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 A) The Immediate or Acute Reaction

This stage may last several days and the initial reaction may be one of shock, disbelief, anger or

dismay, along with anxiety and fear. Some women show their feelings by crying and are restless

and tense, others are calm and subdued, a reaction which may lead people to believe there was

no rape. This phase is frequently accompanied by physical distress, headache, nausea, and

stomachache etc.

B) Outward Adjustment

A woman enters the second phase of adjustment when she appears to be resuming her activities

in a normal manner. She loses interest in seeking help and wants to talk less her experience.

At this time, the victim may become hyperactive in her effort to reorganize her life and she will

perhaps change jobs or schools or move to another apartment. This phase may occur soon after

the attack or not for several weeks. Because she appears to have returned to her normal activities,

a victim’s family may withdraw their support. Also at this stage, it is helpful if the victim knows

what to expect when she enters third phase of recovery.

C) Integration

During this phase the victim may withdraw from contact with other people. She is trying to

determine her feelings about the rape, the rapist and persons who have dealt insensitively with

her. She may rebuff anyone who tries to help her, and as time goes on, her depression may

return.

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 ii) Reactions of the Society

The society exhibits dual attitudes to rape and the rape victim. At the level of codified law and

public pronouncements, rape is condemned as a serious crime, whereas at the level of practical

implementation, it may be treated as nothing more serious than a minor skirmish in the inevitable

“battle of sexes.”

Traditional understanding of rape reflects a pronounced sexual schizophrenia, one form of abuse

— intercourse achieved through physical force against a chaste woman by a stranger — has been

treated as the archetypal antisocial crime. By contrast, coercive sex, which departs from this

paradigm frequently has been denied or discounted.

The social attitudes towards rape and the rape victim are diametrically opposite. While

condemning rape, the society, condemns the rape victim too. The rape is deemed to be

precipitated by the victim, through her words, conduct or mere existence and most of the rapists

go scot free because men are considered to be naturally aggressive and creatures for whom

control on sexual urges is an impossible task.

In patriarchal societies, virginity and chastity are considered to be the great assets of a woman

and loss of chastity whether out of choice or by force is demeaning to her. Rape is considered to

be a transgression against chastity, the raped women is severely criticized and condemned for

loss of chastity. She faces not only a personal sense of shame, but is also weighed down with

guilt for no fault of hers, because of the constant barbs and criticism that the society heaps on

her. A guilty man in the society may be tolerated, but women must be guiltless and even

unsusceptible. These social attitudes have resulted in a situation, whereby women are told from

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the childhood that rape is the worst thing that can happen to a woman. The victim of rape carries

social stigma and is never accepted by the society as a normal human being.

1.2.1.2 MISCONCEPTION ABOUT RAPE

Rape clearly is a crime that does not lend itself to one definition and it is no wonder that it is

surrounded by so many misconceptions. There is a whole package of myths and lies, which mask

the real problems about rape and diverts the attention of the society, so that the key issues of rape

remain obscure and ambiguous and the woman is, attributed all responsibility for rape. Rape

myths perpetuate negative social attitudes towards rape victim and diminish the real level of

male violence. They teach women to blame themselves for their own victimization. The rape

myths form the foundation for structural acceptance of rape in our society and allow rape to

become normative.

The Most Prevalent Myths About Rape Are Mentioned Below:

 Rape is purely a sex crime.

 A rapist is a sex starved maniac.

 Rapists attack without warning.

 Rape is the result of a sudden impulse.

 Rapists always attack in dark alleys and other secluded public spots and if a woman

would stay at home where she belongs, she would not be raped.

 It is the woman’s fault she is raped, since a man cannot control himself once he is

aroused.

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  Women secretly desire to be raped.

 Women invite rape by their actions or the way they dress.

 Women often ‘Cry rape’ to get revenge or cover up a pregnancy.

 ‘Nice women’ are not raped.

 Only young : Attractive women are raped.

 A strong and healthy woman cannot be raped.

 Women who appear unreasonably upset by rape are unstable.

1.2.1.3 MOTIVATION FOR RAPE

It has been found that most rapists are married or have sexual relationship with girlfriends and

that they are not deprived of sex. Rather than being primarily an expression of sexual desire, rape

is, in fact the use of sexuality to express issues of power and anger. It is a sexual act which is

concerned much more with status, aggression, control and dominance than with sexual pleasure

or sexual satisfaction.

1.2.1.3 .1 Rape where sex is the primary motivation

Most classifications refer to rape in which the major motivation is not sex but some deep-seated

psychological drive within the offender. Data from victimization studies have produced a whole

new classification of rapes that are not included in these categories. These are rapes by non –

strangers which seem to have sex as the primary motivation.

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Street wisdom has it that the only difference between rape and rapture is salesmanship.

Sometimes there is a fine line, but basically rape is sex without consent of female. Also, since the

system operates as it does, females who have put themselves in compromising situations often

feel that they have caused the rape themselves and therefore they do not report it. As the feminist

movement gained strength, it became increasingly clear that acquaintance rape for outnumber

stranger rapes but are no less of a problem for the victim. In acquaintance rapes, the brutality and

violence are usually absent. Since sex is primary motivation in these cases, any classification of

the motivation for rape would have to include sex in addition to power, anger, and sadism as

maturating factors.

1.2.1.3.2 Rape where sex is not the primary motivation

Rape is more for retaliation and compensatory rather than sexual motives. It is first and foremost

an aggressive act that expresses multiple deep –seated psychological meaning. Rape where sex is

not the primary motivation is divided into three basic categories.

A. Anger Rape

Anger rape is described as an expression of anger, rape, contempt, hated and frustration. In this

kind of assault, the victim is subjected to brutality and force for beyond that which is necessary

to obtain her submission. The offender strikes and beats his victim, he tears her clothes , knocks

her on the ground, uses abusive and profane language , rapes her, and frequently makes her

perform or submit to degrading acts.

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The rapist does not feel sexually aroused, but instead feels troubled and hostile. Sex is a weapon

and rape is the means in which he uses this weapon to hurt and degrade. His intent is to hurt and

his assault is brutal and violent. He commits sexual assault as an expression of hostility and rage

towards woman with motivation of revenge, humiliation and degradation.

B. Power Rape

In this type of sexual assault, the rapist uses whatever force is necessary to gain control over his

victim, the evidence of such power being that she submits to his sexual demands because of

verbal threat, intimidation with a weapon, or physical force. This provides him with a sense of

power, security, mastery, and control, by which he compensates for underlying feelings of

inadequacy.

The attack is premeditated and preceded by fantasies, and it results in resolution of disturbing

doubts about sexual inadequacy and masculinity. He may believe that the victim is attracted to

him and desires his sexual advances, and yet he finds little sexual satisfaction in the assault. He

rapes to prove his strength and dominance to deny his feelings of inadequacy.

C. Sadistic Rape

In the sadistic rape, the rapist derives sexual pleasure by torturing and injuring the victim. The

aggression itself is erotic and is an intensely exciting experience. The assault is deliberate and

premeditated; the victim is stalked, captured and abused. The rapist’s genitals may not be

involved in the assault and rape may be by an instrument such as bottle or a stick.

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Rape for this reason will involve extreme suffering on the part of the victim and sometimes will

result in death. This kind of rape is likely to be committed by mentally ill rapists or perhaps by a

man under the influence of drugs.

1.2.1.4 TYPES OF RAPE

There are two major types of rape:

1. Blitz Rape

It occurs without warning or prior interaction between assailant and victim. There is no

explanation for the man’s presence. He suddenly appears uninvited and forces himself into the

situation. He often selects an anonymous victim and tries to remain anonymous himself. He may

wear a mask or gloves or cover the victim’s face. In the blitz rape the stranger often cannot be

clearly seen and may sneak up on a woman or enter her house at night without her awareness.

2. Confidence Rape

The Confidence rape is an attack where the assailant obtains sex under false pretences by deceit,

betrayal and often violence. There is some interaction between the assailant and the victim prior

to the assault. Like the confidence man, he encourages the victim to trust him and then betrays

this trust. The assault uses conversation rather than physical force to capture the victim.

Confidence rape may involve a decoy, even another woman, and can include more than one

attacker.

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1.2.1.5 TYPOLOGY OF RAPISTS

Rapists are placed in some general categories to describe some of the characters:-

1. The Criminal Rapists

The rapists who are nothing but an ordinary criminal. This man takes what he wants with

complete disregard for the rights of others. Often he has a record of offences for crimes rather

than rape, and is antisocial, easily influenced, and demonstrates little self –control. Such a man

can be just as menacing to men as to woman: he is as likely to mug or burglarize as he is to rape.

When he wants something, he takes it, by force if necessary; and when he rapes, he uses

violence, although only to impose his will. He may kill his victim, but not for sexual

gratification, but only to eliminate a witness. This man’s attacks are not always planned; in fact,

they may be committed as an afterthought along with burglary or some other offence.

2. The Mentally –ill Rapists

The men in this category confuse aggression and sexual desire and commit sadistic rape. Their

concept of sex including erotic fantasies, trends to be wrapped up with over coming , dominating

, and humiliating a sexual partner rather than sharing love and pleasure . Some psychiatrists

believe that in contrast to the criminal rapists, the mentally ill rapists may respond to treatment.

3. The Group Conformer

Gang rape involves more than one type of rapist. First, there are leaders who initiate the rape.

They can be considered similar to the criminal rapists in that they are aggressive, often brutal and

have no regard for the victim. The rest of the gang do not fall into the category. The followers in

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the group may not all want to perform sex acts with the victim, but most of them do because of

group pressure and the need to prove their masculinity.

4. The Incompetent Romeo

The incompetent Romeo’s are inexperienced young men who fantasize about sex, the nice boys

who shock their whole community when their assaults are revealed. Having no practical

information on the subject, they are influenced by pornography and the bragging they hear in

locker rooms and they want to engage in the sexual experiences they believe are enjoyed by

other men. If the victim puts up a strong fight or humiliates him, this type of rapist may inflict

severe harm on the victim or even kill her The need for power and desire to bolster his self-

esteem motives him to rape.

5. The Bargain Hunter

The Bargain hunter’s motivation is sex. He thinks it is something to be obtained at the lowest

price .He realizes he may have to pay for it in one way or another, even marry for it. He is an

opportunist Hitchhikers are particularly likely to be become his targets, as are women under the

influence of drugs or alcohol.

The bargain hunter may use a position of authority to coerce a woman or child into a sexual

relationship. Professional men have been accused of forcing their sexual attentions on clients and

patients. Employers and teachers have also been known to hold threats of loss of jobs or poor

grades against employees or students unless sexual demands are met.

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6. The Debt Collector

The debt collectors rape only acquaintances. They believe that sex is owned them by women

who have led them or by girlfriends with whom they have had a previous sexual relationship.

The debt collector is the type of man who tries to make a woman feel there is something wrong

with her if she does not repay with sex his favors and attention. This man is primarily seeking

sex. He does not look upon his act as rape, since he believes he is merely taking what he is

entitled to.

1.2.1.6 TYPES OF RELATIONSHIP BETWEEN RAPISTS AND VICTIM

The type of relationship that existed between the rapist and the victim prior to the time of the

rape can be divided into four classifications:

1. Total Stranger Rape

In the case of total stranger rape one refers to rape a woman by a person she has never known

before and without any warning or preparation. The total stranger rapist is motivated by anger,

power, or sadism. In fact, illustration given for this kind of rapist describe situation where the

attacker has assaulted without warning woman he has never seen before. Statically this type of

attack probably comprises a relatively small number of the total, although it is more likely to be

reported.

2. Stranger Rapes based on Confidence in the Rapist

In this kind of relationship, the victim and her attacker have some prior introduction, although it

may be relatively brief and situational. In most cases, the attacker would have rape as his intent

and would manipulate the situation so as to provide a better opportunity than if he grabbed a

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woman when he first saw her. This person is looking for someone to assault and plans the

situation so as to have the necessary time and privacy, and he also hopes to compromise the

victim as a witness in case of prosecution. This type of rapist can be called a strategic and patient

stranger.

3. Acquainted but not well known

This include the case where a woman meets a man in a bar, drinks with him for a couple of hours

and invites him to her home. Clearly, she is more responsible for the situation than in the

complete stranger rape. The motivation of the attacker in this case may not be firmly established

at the time of the chance encounter. It may be that the attacker interprets the situation as

indicating consent on the part of victim but the victim does not. Here the victim provides the

attacker with what he considers to be encouragement and an opportunity in terms of privacy.

4. Acquainted and Well Known

When rape occurs in this type of relationship it can be illustrated by a situation where a man and

woman are spending the evening together in her apartment, but during the evening they argue or

he becomes drunk and aggressive. She asks him to leave, but he refuses to do so and forces her

to engage in intercourse, which he had been anticipating before the evening was out. An extreme

example of this would either be the rape of wife by a husband after separation or even while

living together.

The above classifications of types of relationships seem to be an important variable between the

motivation of rape and type of rape and type of rapists. These classifications are based on a

continuum of intimacy from strangers to lover.

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1.2.2 SEXUAL HARASSMENT

It is a recently recognized old phenomenon. Sexual Harassment strikes at the heart of women’s

economic self-sufficiency, disrupting women’s earning capacity by forcing them out of the

workplace or school. In many developed countries there are specific enactments/provisions

which provide the redressed mechanism in cases of sexual harassment of work place, where as in

the developing countries the legislative process have been initiated or is being contemplated. In

India, the Supreme Court has pronounced in a landmark decision of Vishakha v. State of

Rajasthan regard must be had to the international conventions and norms for construing

domestic laws. In the absence of domestic law occupying the field, to formulate effective

measures to check the evil of sexual harassment of working women at all work places, the

contents of international conventions and norms are significant.

According to the General Recommendation 23, sexual harassment includes such unwelcome

sexually determined behavior as–

a) physical contact and advances

b) a demand or request for sexual favours

c) sexually coloured remarks

d) showing pornography and

e) any other unwelcome physical , verbal or non-verbal conduct of sexual nature:

The above mentioned definition has been incorporated in Vishakha v. State of Rajasthan by

Supreme Court of India where it has been held that sexual harassment results in violation of

fundamental rights of gender equality and right to life and liberty enshrined in Constitution of

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India. Sexual harassment violates Article 14, 15, 19(1)(g) and Art. 21 of Constitution of India

and negates the human right of women.

The criminal law recognizes certain forms of Sexual harassment i.e., molestation and eve-

teasing. The offence of molestation is defined as - Whoever assaults or uses criminal forces to

any woman, intending to outrage or knowing it to be likely that he will thereby outrage her

modesty, shall be punished with imprisonment of either description for a term which may extend

to two years or with fine, or with both.

Furthermore the Indian Penal Code provides that- whoever 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 shall be punished with a simple imprisonment for a

term which may extend to one year, or with fine or both. The offence under this section is

commonly referred to as eve-teasing.

In India, till 1997, sexual harassment at work place was not specifically recognized by legal

system- neither in the form of legislative enactments, nor through the judicial interpretations by

courts. It was for the first time in 1997, the legal scenario got changed due to the remarkable

judicial activism by the Supreme Court of India, though the legislative position still remains the

same.

Furthermore in Apparel Export Promotion Council v. A.K. Chopra, the Supreme Court reiterated

its earlier stand in Vishaka v. State of Rajasthan, and held that international instrument cast an

obligation on the Indian State to adopt gender sensitivity in its laws and the Courts are under an

obligation to see that the message of international instruments is not allowed to be drowned.

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JUSTIFICATION:

However, despite of these significant developments, the crime rate against women remains

unabated. The data put forth by national crime record bureau portrays the sordid state of affairs.

The statistical data from 1953 to 2010 reveals that this offence of rape has increased

tremendously i.e. 791%. The increase in the instances of rape not only threatens to bid good bye

to the moral precepts but also questions the adequacy of existing criminal law on rape. Coupled

with it is the agonizing factum of failure of control system in modern India due to which

intensity and frequency of violence against women is increasing day by day.

A woman suffers not only because of rape but also for aftermath of rape in the police station, in

the hospital, in the court, among family members, among friends, in the matrimonial market and

so on. The rape victim suffers from social stigma, the fear of public criticism, ostracism and

emotional trauma. She seldom gets moral support from her relatives, friends and neighbors who

in their mistaken belief that socializing with her would ruin their reputation in the society.

Therefore, the alarming rate of increase in violent crimes against women warrants a re-look at

the legal regime.

Methodology

Law is a normative science which lays down norms and standard for human behaviour in a

specified situation enforceable through the sanctions of the state. What distinguishes law from

other social sciences is its normative character. ? Doctrinal research of course, involves analysis

of case law, arranging, ordering and systematizing legal propositions and study of legal

24 | P a g e
institutions, but it does more it creates law and its major tools to do so is through legal reasoning

or rational deduction.

The present study is based on doctrinal method of research. The researcher has drawn help from

various articles, books, newspapers, reports, conventions, commissions and judicial decisions.

This topic for study is chosen as the researcher is of the view that the issue of rape needs

immediate attention.

Objectives

The above mentioned study has been undertaken by the researcher keeping in views the

following objectives:

i) To know the position of females in general and sexual offences committed on her.

ii) To identify the causes of different categories of violence against women especially rape.

iii) To study the victimological dimensions of rape.

iv) To work out the ways and means for preventing/reducing violence against women.

v) To study the legislative framework concerning sexual violence against women especially rape.

vi) To study the judicial approach concerning sexual violence against women particularly in

cases of rape.

It is believed that the study will be helpful so as to build a meaningful and vibrant supportive

system to minimize the chances of rape in India.

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 CHAPTER - 2

HISTORICAL PERSPECTIVE OF RAPE

The crime of rape is as old as mankind and Rape de famme is a crime against a woman. For a

man cannot rape a person of equal sex due to its being homogeneous in character. It is

technically termed as homosexual act of having sexual relationship between the members of the

same sex. When such sexual aberration is between two females, it is termed as lesbianism.

Henceforth sexual crime of rape is penetration of male organ to the female genitals.

If Gnostics are to be believed, the first woman to be raped was the mother of mankind, Eve.

According to them, the visible universe was the evil creation of a stupid, false God whose

henchman raped Eve in the Garden of Eden. To us, neither God was stupid or false, nor was Eve

raped. But undeniably this most heinous crime existed and does exist since times immemorial.

2.1 CONCEPT UNDER HINDUISM

The Mitakshara states that sangrahana means the unlawful coming together of a man and a

woman for sexual enjoyment. Sinful sangrahana is of three kinds, viz, brought about by force,

deceit or sexual passion. The first (which is rape) occurs when intercourse is had in a secluded

place against the will of woman , or with a woman who is intoxicated or is disordered in mind or

is under a mistake or who she raises a cry ; the second occurs when a woman is brought to ones

house by some trick or pretense , an intoxicant (such as dhatura ) is administered to her or her

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mind is brought under control ( by chants or otherwise ) and sexual intercourse takes place ; the

third occurs when intercourse takes place by conveying ( passion) to each other by means of the

eyes (glances ) or by employing a go between and when the parties are drawn to each other by

the temptation of beauty or of wealth. The first is characterized by winking at a woman , smiling

at her , sending a go – between , touching her ornaments or clothes ; the second by the sending of

flowers , fruits , incense , food , clothes and indulging in private talks ; the third is characterized

by lying on the same bed , dalliance , kissing and embraces. Strisangrahan by force (that is rape)

is really included under sahasa as stated by madanaratna.

Brihad states that if a man commits rape on a woman of the same caste, he was to forfeit all his

property, to have his male genitals cut out and was to be paraded on the back of an ass. That if

woman raped was of a lower caste, then half of his punishment was to be awarded and if she was

of a higher caste, he was to be sentenced to death together with confiscation of all property.

Katya prescribes that when a man has forcibly had sexual intercourse with a woman, capital

punishment is to be inflicted inasmuch as it is violation of (proper) conduct. When sexual

intercourse was had by deceit, the man was punished with confiscation of all property, with

branding on the forehead of the sign of the female private parts and banishment from the town.

In the case of rape and sexual intercourse by deceit, the woman was not at all punished but she

had to undergo a penance (prayaschitta) of krcchra or paraka for contact with a male other than

her husband and till she performed the prayaschitta she was to kept well –guarded in the house,

was to remain dirty (i.e. not to deck herself or apply perfumes) , to lie on the ground ( not on a

bed –stead or couch ) , was to receive bare maintenance . After performing prayaschitta she was

resorted to her former position.

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Narada holds that sexual intercourse with the step –mother, mother’s sister, mother-in-law, the

paternal or maternal uncles wife, father’s sister, a friend’s or pupil’s wife, sister, daughter ,

daughter-in-law, a woman that sought protection , an ascetic woman ( pravrajita ) or a virtuous

wife (sadhvi) is incestuous and the punishment to be prescribed for this crime is the excision of

his genital and no less. The punishment for sangrahana (rape and adultery) varied according to

the caste of the man and the woman , according as the woman was married or unmarried and

according as she was guarded (gupta) or unguarded.. According to Narada, sexual relation with

another man’s wife is ‘Sahasa’ of highest degree prescribing highest ammercement including

death as well as amputation of offending limb. Further the ancient sutras and smritis prescribe

more severe sentences than later smritis.

The Hindu law giver Manu gives example of incestuous relation as follows:- sexual relation with

sisters by same mother, he places sexual relation with teachers wife at the top incestuous crime.

He denounces sexual intercourse with wife of other man in strong terms. He prescribes heavy

punishment followed by banishment of such offender. But they all went so far as to say that of a

man had a sexual intercourse with a maiden (of the same caste) who encouraged his advances,

then there is no offence punishable by the king, but he was to bestow ornaments on her, honour

her and must marry her.

Brihaspati Smriti states the woman of east practiced promiscuity and that was the custom of the

land, which was not to be condemned as it was an accepted custom. Baudhyan, Manu,

Yajnavalkya, all great law givers of their period, state that the wives of actors, singers, etc., could

have sexual intercourse with others, beyond marital relationship, with the knowledge and

approval of their masters or husbands. It is amusing to find from ancient texts that it was usual

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with such masters or husbands to remain hidden at the time of such intercourse and appear in the

mid of act or after it , to claim the rent of such love-making .They lived on their wives.

Apparently from this class of actors and singers arose the institution of dancers and of

prostitutes. The master or husband still continues to exist in some form in every house of an

Indian prostitute. There is reference in ancient texts which states that no one must be proud of his

origin, for none knows indeed who his father is.

In ancient India, as in later Vedic age, no tolerance was shown to adulterer. Buddhist literature

condones murder of a man who is discovered “in the arms of another man’s wife”. But it was not

adultery to use a singer or actor’s wife, a prostitute (abhisarika) , a public harot (veshya) , a

corrupt woman (svairini) , if she was not of the Brahmin’s caste, or a slave girl or if she is not

desired by her master.

The word in sanskrit for sexual intercourse with such women is ‘bhujishya.’ In sanskrit husband

is called ‘bhartar’, which means nourishes, protector and it was considered a great sin to live on

the income of wife by her love affairs as sinful as killing the sacred cow.

It was a usual practice in the ancient India as it was in old muslim kingdom as also with muslim

rulers in the recent past, to keep some woman, according to the means of the person concerned,

for the temporary use of a guest as a definitive gift to the guest. It is stated in Mahabharata that

king Yudhishtra of the Pandavas kept thousands of girls, young and bewitching, wearing

bracelets and most splendid ornaments, sprinkled with sandalwood scent, skilled in the 64 arts,

and with great skill in dancing and singing, that they may hospitably wait on the Brahmins,

ministers and kings.

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The grand old man, Bhishma narrated a story to the eldest brother of the Pandavas , Yudhishtra

about the mighty sage Ashtavakra

who was awakened in the night by an old woman who asked for sexual intercourse . When the

sage did not respond to her entreaties, enticements and allurements, she remarked, that, neither

the God of wind, nor Varun (water-god), nor the other 33 gods are so dear to woman as the God

of love for, to woman, the pleasure of love is all. Among thousands of woman , there is to be

found one only that is faithful to her husband , if indeed , one at all . They know not fathers,

family, mother, brothers, husband or brother-in-law. Given to their pleasure, they destroy

families, as great rivers destroy banks.

When the sage refused to budge and did not succumb to her passions, she assumed the shape of a

lovely maiden and revealed herself to him as the goddess of the northern region who had come to

test him and to show to him the fickleness of woman, She said after giving blessings to the sage

“even old woman are plagued by the feverish longing for man”.

Through epics and world history, universe has witnessed the masculine superiority and priority

over the feminine and it has since from the time immemorial been witnessed practically by all.

Nevertheless, the absence of such crime cannot be ruled out or there is possibility of presence of

such heinous crime, hence this evil is in vogue in our society in the past, at present and could

carry to future.

Crime is eternal as eternal as society and as old as creation itself. Even God and Goddesses are

not free from such impulses. The study of Vedas and Puranas depicts that sex played prominent

role among the people. Paramours and concubines abound in the society. The love –charms are

designed to win the love of person of opposite sex or to restore lost love.

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The great Ramayana demonstrates us the monkey brothers Balee and Sugriva who had common

wives Tara and Ruma, of course Rama punished Bali for illicit relation with Ruma. Laxity in

sex–life is also noticeable in case of Ravana by kidnapping Sita and persuading her, through

different means to become his wife, Courtesans are employed in welcoming distinguished

visitors. In Mahabharata, Draupadi was married to five brothers and well known Vidura was

issue of maid –servant having been enjoyed by his master. Kijok and Duryodhana assaulted

Draupadi sexually. The influence of sex on the society, since early times, has been proved by

marked painting and sculpture of, Khajuraho built by Chandelle dynasty having number of

Hindus Temples including Mahadev Temple, depicting daily chores and intimate ecstasies of

love and sex.

In the Vedic smritis, it has been pointed out that human being are not only virtuous but also of

adorned vices. Therefore it is undenied fact that the evil propensities are also a part of human

nature irrespective of time and place. The seduction of Angiras Brahaspati’s wife Tara by Soma

, the birth of pururavas out of illicit union of Budha and Illa , the birth of Bharadvaja from the

illegitimate union of Brahaspati with brother’s wife –testifies the laxity in sexual relation of

ancient time.

According to Kautilya , if a person of any of four caste infringes the modesty of queen ( kings

wife),person so offended had to be cooked to death , but forcible intercourse with a widow (

which amount of rape) living alone was found penalized with fine plus hundred panas .When the

maiden so defiled was minor, the punishment was severe. This is reflection of our ancient society

that there had been protection of minor during that period according to the law of that time.

Kautilya recognizes prostitutes as a woman first and as prostitutes afterwards. If a person has

sexual relation with a minor girl of prostitute against her will, he was awarded the highest

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amercement. But if such physical relation is with consent of the minor girl of the prostitute, only

first amercement was imposed. When the girl was minor as well as un-willing, the punishment

was heavy. Rape of slave girl and female servant were common, but viewed seriously and

offender was fined only. The guard of nobles who misbehaved with slave girls was also fined

heavier and the system was to protect them in the society.

2.2 CONCEPT UNDER ISLAM

Islam views human life as a sacred gift from God. The Quran repeatedly stresses the sanctity of

life. The life of every single individual regardless of gender, age, nationality or religion is worthy

of respect. In verses referring to the sanctity of life, the term used is ‘nafs’(soul, life); and there is

no distinction made in that soul being young or old, male or female, muslim or non-muslim.

“Do not take any human being's life, (the life) which God has declared to be sacred - otherwise

than in (the pursuit of) justice: this has He enjoined upon you so that you might use your reason.’

Quranic teachings encompass every aspect of life; hence it does not limit the definition of life to

the physical body only, but includes the mental, emotional and spiritual aspects as well. There

are about 150 verses that define the term ‘nafs’ in various ways making it clear that the concept

of ‘life’ is not limited to mere physical existence.

Historically, Islam has addressed serious issues openly and sought to correct actions that

constitute harm or ‘zulm’ (ie: cruelty and abuse) to the dignity of humankind. Human life and

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respect for it has been stressed unstintingly, regardless of age or gender. As a general rule, Islam

forbids all ‘zulm’, be it physical, mental, emotional or spiritual.

“Abandon all harm (ithm), whether committed openly or in secret.”

In the last address to his community, the Prophet said: “Your lives and properties are forbidden

to one another till you meet your Lord on the Day of Resurrection… Regard the life and property

of every Muslim as a sacred trust… Hurt no one so that no one may hurt you... You will neither

inflict nor suffer any inequity. “The Prophet (saw) did not prohibit only the unlawful

encroachment of one another’s life and property, but also honor and respect.

The Quran has, in various ways and in different contexts; impressed on men that they must

observe the limits set by God (Hudud Allah) in respect to women and must not encroach upon

their rights in either marriage or divorce. In all situations it is the men who are reminded,

corrected and reprimanded, over and over again, to be generous to women and to be kind,

compassionate, fair and just in their dealings with women. Even in divorce, when the chances of

anger and vindictiveness are high, it is stressed that men are to separate with grace, equity and

generosity.

Forbidding cruelty against children and women is apparent from rulings against female

infanticide and rights of inheritance given even to an unborn child; and the kindness mandated

even when divorcing your wife. There are numerous ahadith about the rights of children to

respect and dignity. The same holds true for respect and the unprecedented rights given to

women.

‘O you who believe! You are forbidden to inherit women against their will...’

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‘... And do not, in order to gain some of the fleeting pleasures of this worldly life, coerce your

slave women into whoredom if they are desirous of marriage, and if anyone should coerce them,

then, verily, after they have been compelled (to submit in their helplessness), God will be much

forgiving, a dispenser of grace (to them)’

During the time of the Prophet (saw) punishment was inflicted on the rapist on the solitary

evidence of the woman who was raped by him. Wa’il ibn Hujr reports of an incident when a

woman was raped. Later, when some people came by, she identified and accused the man of

raping her. They seized him and brought him to Allah’s messenger, who said to the woman, “Go

away, for Allah has forgiven you,” but of the man who had raped her, he said, “Stone him to

death.”

During the time when Umar (raa) was the Khalifah, a woman accused his son Abu Shahmah of

raping her; she brought the infant borne of this incident with her to the mosque and publicly

spoke about what had happened. Umar (raa) asked his son who acknowledged committing the

crime and was duly punished right there and then. There was no punishment given to the woman.

Islamic legal scholars interpret rape as a crime in the category of Hiraba. In ‘Fiqh-us-Sunnah’,

hiraba is described as: ‘a single person or group of people causing public disruption, killing,

forcibly taking property or money, attacking or raping women (hatk al ‘arad), killing cattle, or

disrupting agriculture.’

The famous jurist, Ibn Hazm, had the widest definition of hiraba, defining a hiraba offender as:

‘One who puts people in fear on the road, whether or not with a weapon, at night or day, in urban

areas or in open spaces, in the palace of a caliph or a mosque, with or without accomplices, in the

desert or in the village, in a large or small city, with one or more people… making people fear

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that they’ll be killed, or have money taken, or be raped (hatk al ‘arad)… whether the attackers

are one or many.’

Al-Dasuqi held that if a person forced a woman to have sex, his actions would be deemed as

committing hiraba. In addition, the Maliki judge Ibn ‘Arabi, relates a story in which a group was

attacked and a woman in their party was raped. Responding to the argument that the crime did

not constitute hiraba because no money was taken and no weapons used, Ibn ‘Arabi replied

indignantly that “hiraba with the private parts” is much worse than hiraba involving the taking

of money, and that anyone would rather be subjected to the latter than the former.

The crime of rape is classified not as a subcategory of ‘zina’ (consensual adultery), but rather as

a separate crime of violence under hiraba. This classification is logical, as the “taking” is of the

victim’s property (the rape victim’s sexual autonomy) by force. In Islam, sexual autonomy and

pleasure is a fundamental right for both women and men (Ghazali); taking by force someone’s

right to control the sexual activity of one’s body is thus a form of hiraba.

Rape as hiraba is a violent crime that uses sexual intercourse as a weapon. The focus in a hiraba

prosecution is the accused rapist and his intent and physical actions, and not second-guessing the

consent of the rape victim. Hiraba does not require four witnesses to prove the offense,

circumstantial evidence, medical data and expert testimony from the evidence used to prosecute

such crimes.

Islamic legal responses to rape are not limited to a criminal prosecution for hiraba. Islamic

jurisprudence also provides an avenue for civil redress for a rape survivor in its law of

“jirah”(wounds). Islamic law designates ownership rights to each part of one’s body, and a right

to corresponding compensation for any harm done unlawfully to any of those parts. Islamic law

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calls this the ‘law of jirah’ (wounds). Harm to a sexual organ, therefore, entitles the person

harmed to appropriate financial compensation under classical Islamic jirah jurisprudence. Each

school of Islamic law has held that where a woman is harmed through sexual intercourse (some

include marital intercourse), she is entitled to financial compensation for the harm. Further,

where this intercourse was without the consent of the woman, the perpetrator must pay the

woman both the basic compensation for the harm, as well as an additional amount based on the

‘diyya’ (financial compensation for murder, akin to a wrongful death payment).

Islamic law, with its radical introduction of a woman’s right to own property as a fundamental

right, employs a gender-egalitarian attitude in this area of jurisprudence. In fact, there is a hadith

specifically directed to transforming the early Muslim population out of this patriarchal attitude

of male financial compensation for female sexual activity. During the time of Prophet

Muhammad, a young man committed zina with his employer’s wife.

The father of the young man gave one hundred goats and a maid as compensation to the

employer, who accepted it. When the case was reported to the Prophet, he ordered the return of

the goats and the maid to the young man’s father and prosecuted the adulterer for zina.

Early Islam thus established that there should be no tolerance of the attitude that a woman’s

sexual activity is something to be bartered, pawned, gossiped about, or owned by the men in her

life. Personal responsibility of every human being for their own actions is a fundamental

principle in Islamic thought.

The Quran is very clear that the basis of a marital relationship is love and affection between the

spouses, not power or control. Rape is unacceptable in such a relationship, ‘Your wives are your

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tilth; go then unto your tilth as you may desire, but first provide something for your souls, and

remain conscious of God, and know that you are destined to meet Him...’

“And among His wonders is this: He creates for you mates out of your own kind, so that your

might incline towards then, and He engenders love and tenderness between you: in this, behold,

there are messages indeed for people who think”

“... They are as a garment for you, and you are as a garment for them.”

“... And consort with your wives in a goodly manner, for if you dislike them, it may well be that

you dislike something which God might yet make a source of abundant good.”

In the context of jirah, it would appear so: where there is any physical harm or disease caused to

a spouse, there may be a claim for jirah compensation. The law of jirah provides for

compensation for physical harm between spouses, and supports Islamic legislation against

domestic abuse. Even in these discussions of appropriate jirah compensation, the question of the

injured party’s consent plays a central role. Some Islamic jurists considered consent to be

presumed by virtue of the marital relationship, while others maintain that where harm occurs, it

is an assault, regardless of the consent, and therefore compensation is due. In our modern era,

one might take these precedents and their premium focus on consent and apply the Islamic

principle of sexual autonomy to conclude that any sex without consent is harmful, as a

dishonoring of the unwilling party’s sexual autonomy. Thus, modern Islamic jurists and

legislators, taking a gender-egalitarian perspective, might conclude that Islamic law does

recognize marital rape, and assign the appropriate injunctions and compensation for this

personally devastating harm.”

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An often misquoted and abused hadith that is used to tyrannize women is that women cannot and

should not say no to their husband when he approaches them Women are advised not to turn

away from their husbands except if they have their period or any other reasonable excuse. So

much so that she is to break her voluntary fast if her husband approaches her. And if they do

angels will curse them. However, this hadith is not quoted with the complementary one that

advises men of the same consideration.

In the same manner men are advised that meeting the needs of their wives takes precedence over

voluntary worship. Narrated Abdullah bin Amr bin Al-As: “Prophet Muhammad (saw) said, “O

Abdullah! I have been informed that you fast all the day and stand in prayer all night?”I said,

‘Yes, O Allah's Apostle!’He said, “Do not do that! Observe the fast sometimes and also leave

them at other times, stand up for the prayer at night and also sleep at night. Your body has a right

over you and your wife has a right over you”.

To a certain degree these ahadith are used to confuse and distract from the issue, since rape does

not have anything to do with permission or lack of permission. In a marriage abusive or forced

sexual activity cannot be justified by abusing this hadith. Rape is defined as unwanted, violent

and forced sex, whether this occurs in a marital context or outside it. The definition of rape does

not change because of the relationship.

It is important to not confuse the issue of mutual rights that a couple has on each other with the

misguided, distorted and misogynist assumption that women become a husband's property. Islam

does not allow for or tolerate ownership of human beings. Human dignity does not allow that any

one person has the right to own, mind/body/soul, of another human being... and Islam demands

that all human beings respect the humanity of everyone.

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According to Islam, a woman has to be respected and protected under all circumstances, whether

she belongs to your own nation or to the nation of an enemy, whether she follows your religion

or belongs to some other religion or has no religion at all. A Muslim cannot outrage her under

any circumstances. All promiscuous relationships have been forbidden to him, irrespective of the

status or position of the woman, whether the woman is a willing or an unwilling partner to the

act. The words of the Holy Quran in this respect are: “Do not approach (the bounds of) adultery”.

Heavy punishment has been prescribed for this crime, and the order has not been qualified by

any conditions. Since the violation of chastity of a woman is forbidden in Islam, a Muslim who

perpetrates this crime cannot escape punishment.

The Muslim Law equally sternly condemned rape, the punishment ranging from stoning to death

to the infliction of hundred stripes. The scanty literature available on this area does not throw any

light on whether rape was considered as a crime against a human being i.e. woman or her

perspectives were taken into account at all.

According to Islam, all aspects of life, i.e.; the physical, mental, emotional and spiritual, are

sacred and must be respected. No gender or relationship has been given the power or right to hurt

or harm the other. Domestic violence, rape and incest are all violent and criminal abuses that are

outside the bounds of what is permitted in Islam and there is absolutely no justification for it

whatsoever.

Thus the ancient literature puts stress on respect and dignity of the females and every assault on

their person is forbidden. The sexual assaults were clearly demarcated and classified and

according to the type of the sexual assault, punishment has been prescribed, woman had never

been a thing to be possessed; but enjoyed the equal status with man.

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 CHAPTER-3

INTERNATIONAL INSTRUMENTS RELATING TO THE PROMOTION

OF GENDER JUSTICE AND PREVENTION OF SEXUAL HARASSMENT

AND PROTECTION OF THE RIGHTS OF RAPE VICTIMS

India is founder member of the UNO. The framers of the Constitution of India have rightly

mandated that India should comply / respect the International Treaty obligation in an effective

manner for the purpose of promoting friendly relation among foreign nations.1

In addition to this, the Constitution of India has mandated the specific adoption theory /

incorporation of the International Treaty / instruments through specific legislation.2

3.1 THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948

India was one of the 48 countries which voted in favor of the adoption of the UDHR by the

United Nations General Assembly on 10th December 1948. The UDHR is not a treaty in itself

but defines ‘fundamental freedoms’ and ‘human rights’ for the purposes of the UN Charter. The

UDHR is generally agreed to be the foundation of international human rights law as it inspired

the numerous human rights conventions which followed including the ICCPR and ICESCR.

1
Refer Article 253 and Article 51 of the Constitution of India
2
Refer Constitution of India

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The Preamble to the UDHR states as follows:

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all

members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have

outraged the conscience of mankind and the advent of a world in which human beings shall

enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the

highest aspiration of the common people.”

3.2 THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS,

1966

The UDHR was followed up by the ICCPR, the Preamble to which inter alia states:

“Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of

free human beings enjoying civil and political freedom and freedom from fear and one can only

be achieved if conditions are created whereby everyone may enjoy his civil and political rights,

as well as his economic, social and cultural rights, Considering the obligation of States under the

Charter of the United Nations to promote universal respect for and observance of human rights

and freedoms. Realizing that the individual having duties to other individuals and to the

community to which he belongs is under a responsibility to strive for the promotion and

observance of the rights recognized in the present Covenant.”

Article 3 of the ICCPR places an obligation on all covenanting parties to:

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“…undertake to ensure the equal right of men and women to the enjoyment of all civil and

political rights set forth in the present Covenant.”

Article 23 of the ICCPR upholds certain inherent rights of the family and of men and women to

commit to a union.

India acceded to the ICCPR on April 10, 1979. India has however, not signed or ratified the

optional protocols to the ICCPR (including the Second Optional Protocol, which abolishes death

penalty).

3.3 INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL

RIGHTS, 1966

India is also a party to the ICESCR, which states in its Preamble:

“Recognizing in accordance with the Universal Declaration of Human Rights, the ideal of free

human beings enjoying freedom from fear and want can only be achieved if conditions are

created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil

and political rights”

Article 7 of the ICESCR obligates state parties to “recognize the right of everyone to the

enjoyment of just and favorable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

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(i) Fair wages and equal remuneration for work of equal value without distinction of any

kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by

men with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the

present Covenant.

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate

higher level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay,

as well as remuneration for public holidays.

India acceded to the ICESCR on April 10, 1979. India has not signed or ratified the optional

protocol to the ICESCR. India is also party to the Beijing Principles of the Independence of the

Judiciary (drawn up and agreed to in 1995 by the Chief Justices of countries in the Asia-Pacific

region). These principles represent the minimum standards to be necessarily observed in order to

maintain the independent and effective functioning of the judiciary. Under these principles the

judiciary has a duty to ensure that all persons are able to live securely under the Rule of Law.

This is particularly important to women. The judiciary also has a duty to promote the observance

and the attainment of human rights of women under the Beijing Principles.

The said principles set out the objectives of the judiciary as below:

The objectives and functions of the Judiciary include the following:

(a) To ensure that all persons are able to live securely under the Rule of Law;

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(b) To promote, within the proper limits of the judicial function, the observance and the

attainment of human rights; and

(c) To administer the law impartially among persons and between persons and the State.

India is also a party to the Convention on the Political Rights of Women, 1954. The said

Convention enjoins state parties to inter alia ensure the protection of the following political rights

of women:

(a) Women shall be entitled to vote in all elections on equal terms with men, without any

discrimination;

(b) Women shall be eligible for election to all publicly elected bodies, established by national

law, on equal terms with men, without any discrimination; and

(c) Women shall be entitled to hold public office and to exercise all public functions,

established by national law, on equal terms with men, without any discrimination.

India signed the Convention on the Political Rights of Women on April 29, 1953 and ratified it

on November 1, 1961. The Declaration on Elimination of Violence against Women, 1993 and

Convention on Elimination of all forms of Discrimination against Women.

The Committee is conscious of the recommendations in respect of India made by the UN

Committee on the Elimination of Discrimination against Women (“CEDAW Committee”) in

February 2007. The CEDAW Committee has recommended that the country should “widen the

definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women

and to remove the exception of marital rape from the definition of rape.”

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3.4 DECLARATION ON ELIMINATION OF VIOLENCE AGAINST WOMEN 1993

(DEVW)

We wish to add that in the Declaration on Elimination of Violence against Women 1993

(“DEVW”), the following passage is pertinent:- “Violence against women is a manifestation of

historically negligent poor relations between men and women, which have led to domination

over and discrimination against women by men and to the prevention of the full advancement of

women and that violence against women is one of the crucial social mechanisms by which

women are forced into subordinate position compared with men…..”

We, in fact, note that Article 14 of the DEVW provided that:

“….State should pursue by all appropriate means and without delay a policy of eliminating

violence against women and, to this end should:

(d) develop penal, civil, labor and administrative sanction and domestic legislation to punish and

redress wrongs caused to women; women who are subjected to violence should be provided with

access to the mechanism of justice and, as provided for by national legislation, to just and

effective remedies for the harm that they have suffered; State also informed women of their

rights in seeking redress through such mechanisms.”

3.5 CONVENTION ON ELIMINATION OF ALL FORMS OF DISCRIMINATION

AGAINST WOMEN (CEDAW)

Further, the Convention on Elimination of all forms of Discrimination against Women

(“CEDAW”) under Article 11(1) provides as follows:-

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“States parties shall take all appropriate measures to eliminate discrimination against women in

the field of employment in order to ensure on the basis of equality of men and women, the same

rights in particular (a) the right to work as an inalienable right of all human beings; (b) the right

to protection of health and to safety in working conditions, including the safeguarding of the

function of reproduction.”

Article 22 postulates that equality in employment can be seriously impaired when women are

subjected to gender specific violence such as sexual harassment in the work place.

Article 24 postulates that State parties will undertake to adopt all necessary measures at the

national level aimed at achieving the full realization of the rights recognized in the present

convention. Article 24 also requires State parties to include in their reports information about

sexual harassment, and on measures to protect women from sexual harassment and other forms

of violence of coercion in the workplace.

We notice that CEDAW was ratified by India on 25th June1993. The only reservation which has

been made by India is to Article 29, paragraph 1, relating to dispute resolution between States by

arbitration. We also notice that Government of India has made the commitment at the Fourth

World Conference in Beijing to formulate and operationalize a national policy on women, which

will continuously guide an informed action at every level and at every sector.

We are of the firm opinion that substantive equality and women’s rights as human rights have

been established both in domestic and international legal regimes. We are of the opinion that,

having regard to the exposition of the law in Ashok Kumar Thakur v. Union of India3 that the

Constitution embraces the substantive equality approach as provided in Article 15(1) and Article

3
(2008) 6 SCC 1

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15(3). We are also convinced that the concept of formative action under sub-article (3) of Article

15 is not merely an enabling provision but, in the context of Article 14, may be a mandatory

obligation.

We are further of the opinion that merely facial gender neutral laws and policies cannot deny

what has perceptively called “differential access to justice faced by women seeking to engage

with the legal system4”

The concept of dignity under Article 21 is also significant and it must be noticed that it is

conjoined by the preceding expression ‘right to life’. We are of the opinion that any form of

violence or assault, sexual or otherwise, on women is a violation of the fundamental right to live

with dignity. We also are in agreement with the view expressed that substantive due process in

State action is mandatory to ensure the right to live with dignity. However, the issue before us is

not simply the redrafting of existing laws but also the need to reassert and reaffirm that the State

has primary obligations under the Constitution to secure fundamental rights of its citizens. The

fundamental rights of women include safety and bodily integrity. The said rights, in turn, include

secure spaces where they can exercise autonomy and freewill.

We must also note that the concepts of equality, the rule of law, justice, social, economic and

political, liberty of thought and expression are all ultimately engendered to the exercise of

individual autonomy and fulfillment of the optimum potential. We are further of the opinion that

if constitutional obligations towards women are not fulfilled there would be a declaration against

the State that right to equality and dignity have been denied. We must note that in the context of

women, and in the context of persons with disabilities, the role of the State as a guarantor of

4
See Handbook on Law of Domestic Violence, Lawyer’s Collective, Indira Jaising ed., 2009 Lexis Nexis

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fundamental rights in respect of the latter, the role of the State as parents patria is fundamental to

the Constitution. We also wish to state that merely, because there are private actors or non-state

actors, as perceptively described, the duty of the State does not diminish nor do the obligations of

the State attenuate. On the contrary, we are of the opinion that they are deeply enhanced.

We notice that CEDAW, for the first time in the sphere of international law, accorded primacy

and supremacy to women’s human rights. The definition of “discrimination against women”

under Article 1 of CEDAW was clarified by Recommendation 19 to include gender based

violence.

“The definition of discrimination includes gender based violence, i.e., violence that is directed

against woman because she is a woman or that affects woman disproportionately. It includes acts

that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other

deprivations of liberty. Gender based violence may breach specific provisions of the Convention

regardless of whether those provisions expressly mention violence.”

Thus, it is clear that the expression ‘ensure safeguards’ clearly means that such safeguards be

effective safeguards. We also need to add that the concept of safeguards is to create a climate of

security. This, of course, is a twin objective – one to deal with immediate redressal of an

individual grievance and the other to create an atmosphere and climate of security which is

synonymous with the exercise of freedom. We also must bear in mind that this injunction for

creating safeguards to prevent discrimination against women is not only against public

authorities but also extends to the private sphere as signified by “…..any person, organization or

enterprise.”

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We must add that there is a special definition of violence against women. We need to note that

this definition is an extraordinarily wide but perceptive definition. It seeks to capture both the act

of violence as well as the consequence of violence upon the individual. It also clarifies that the

said Act is a direct deprivation of liberty whether occurring in public or in private life. At this

juncture, we would like to say that Article 1 of the CEDAW clearly defined violence against

women 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

arbitrary deprivation of liberty whether occurring in public or in private life.

We also must note that further elaboration of violence against women has been described as

“physical, sexual and psychological violence occurring in the family, including battering, sexual

abuse of female children in the household, dowry related violence, marital rape, female genital

mutilation and other traditional practices harmful to women, non- spousal violence and violence

related to exploitation.”5

We would like to state that a detailed study was conducted by the United Nations called the

depth study on all forms of violence against women 6 . This study clearly finds that non-

implementation or ineffective implementation of existing domestic laws in most countries was

the single most important reason for continued immunity to perpetrators of violence against

women particularly in intimate relationships.

We are therefore of the opinion that failure to frame a domestic law, which is requisite for

dealing with violence against women, will constitute a breach of the international Convention.

Secondly, the law must be implemented in a manner that satisfies the criteria of impartial

5
Refer Article 1, Elimination of Violence against Women 1993(DEVW)
6
In depth study on all forms of violence against women-Report of the Secretary General, July 2006, UN
General Assembly Document A/61/122/Add.1www.un.org/womenwatch/daw/vaw/SGstudyvaw.htm

49 | P a g e
administration of justice, which is the fundamental cornerstone of the rule of law. We also need

to add that while physical violence is an offence, it also constitutes deprivation of human rights

and liberty, and is a form of sex discrimination. Thus, violence against women has a dual

characteristic. It is an offence under the principles of penology but, more importantly, it is a

direct constitutional violation. The number of constitutional violations in India assumes great

importance as they have a bearing upon the true meaning of democracy, the true meaning of

republic, and the true meaning of social justice.

We therefore wish to caution the State and suggest to the Legislature that it must keep aside all

other business and first correct this aberration of the Constitution which has been permitted in

the Indian society for so many decades.

In respect of our views above, we take note of the Dowry Prohibition Act, 1961, as well as the

Protection of Women from Domestic Violence Act, 2005, both of which were enacted to prevent

and remedy the occurrence of dowry and domestic violence in Indian society. The National

Crime Records Bureau statistics, however, establish that Offences of cruelty and violence by the

husband and his family against the wife (for dowry or otherwise) constituted over 3% of the total

number of crimes against women in 2006-2007. The conviction rate was only approximately

21%. One wonders why Parliament had to enact special legislation in respect of dowry and

domestic violence if the provisions of the IPC were being effectively enforced.

3.5.1 SALIENT FEATURES OF THE CEDWA

The CEDWA has made a significant contribution in the promotion of gender Justice in India.

Researcher would like to appreciate the Hon’ble Supreme Court of India for providing

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appropriate directions to the competent Authorities to prevent the sexual harassment against

women in the working places. The Hon’ble Supreme Court of India has given valuables

guidelines based on the provisions of the CEDWA in the Vishaka Case there by it has filled up

the existing vacuum in the field of Law relating to prevention of Sexual Harassment and

protection of rights of the rape Victims.

On 18 December 1979, the Convention on the Elimination of All Forms of Discrimination

against Women was adopted by the United Nations General Assembly. It entered into force as an

international treaty on 3 September 1981 after the twentieth country had ratified it. By the tenth

anniversary of the Convention in 1989, almost one hundred nations have agreed to be bound by

its provisions.

The Convention was the culmination of more than thirty years of work by the United Nations

Commission on the Status of Women, a body established in 1946 to monitor the situation of

women and to promote women's rights. The Commission's work has been instrumental in

bringing to light all the areas in which women are denied equality with men. These efforts for the

advancement of women have resulted in several declarations and conventions, of which the

Convention on the Elimination of All Forms of Discrimination against Women is the central and

most comprehensive document.

Among the International Human Rights Treaties, the Convention takes an important place in

bringing the female half of humanity into the focus of human rights concerns. The spirit of the

Convention is rooted in the goals of the United Nations: to reaffirm faith in fundamental human

rights, in the dignity, and worth of the human person, in the equal rights of men and women. The

present document spells out the meaning of equality and how it can be achieved. In so doing, the

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Convention establishes not only an international bill of rights for women, but also an agenda for

action by countries to guarantee the enjoyment of those rights.

In its preamble, the Convention explicitly acknowledges that "extensive discrimination against

women continues to exist", and emphasizes that such discrimination "violates the principles of

equality of rights and respect for human dignity". As defined in Article 1, discrimination is

understood as "any distinction, exclusion or restriction made the basis of sex...in the political,

economic, social, cultural, civil or any other field". The Convention gives positive affirmation to

the principle of equality by requiring States parties to take "all appropriate measures, including

legislation, to ensure the full development and advancement of women, for the purpose of

guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a

basis of equality with men"(Article 3).

The agenda for equality is specified in fourteen subsequent articles. In its approach, the

Convention covers three dimensions of the situation of women. Civil rights and the legal status

of women are dealt with in great detail. In addition, and unlike other human rights treaties, the

Convention is also concerned with the dimension of human reproduction as well as with the

impact of cultural factors on gender relations.

The legal status of women receives the broadest attention. Concern over the basic rights of

political participation has not diminished since the adoption of the Convention on the Political

Rights of Women in 1952. Its provisions, therefore, are restated in article 7 of the present

document, whereby women are guaranteed the rights to vote, to hold public office and to

exercise public functions. This includes equal rights for women to represent their countries at the

international level (Article 8). The Convention on the Nationality of Married Women - adopted

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in 1957 - is integrated under article 9 providing for the statehood of women, irrespective of their

marital status. The Convention, thereby, draws attention to the fact that often women's legal

status has been linked to marriage, making them dependent on their husband's nationality rather

than individuals in their own right. Articles 10, 11 and 13, respectively, affirm women's rights to

non-discrimination in education, employment and economic and social activities. These demands

are given special emphasis with regard to the situation of rural women, whose particular

struggles and vital economic contributions, as noted in article 14, warrant more attention in

policy planning. Article 15 asserts the full equality of women in civil and business matters,

demanding that all instruments directed at restricting women's legal capacity ''shall be deemed

null and void". Finally, in article 16, the Convention returns to the issue of marriage and family

relations, asserting the equal rights and obligations of women and men with regard to choice of

spouse, parenthood, personal rights and command over property.

Aside from civil rights issues, the Convention also devotes major attention to a most vital

concern of women, namely their reproductive rights. The preamble sets the tone by stating that

"the role of women in procreation should not be a basis for discrimination". The link between

discrimination and women's reproductive role is a matter of recurrent concern in the Convention.

For example, it advocates, in article 5, ''a proper understanding of maternity as a social function",

demanding fully shared responsibility for child-rearing by both sexes. Accordingly, provisions

for maternity protection and child-care are proclaimed as essential rights and are incorporated

into all areas of the Convention, whether dealing with employment, family law, health core or

education. Society's obligation extends to offering social services, especially child-care facilities

that allow individuals to combine family responsibilities with work and participation in public

life. Special measures for maternity protection are recommended and "shall not be considered

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discriminatory". (Article 4) "The Convention also affirms women's right to reproductive choice.

Notably, it is the only human rights treaty to mention family planning. States parties are obliged

to include advice on family planning in the education process and to develop family codes that

guarantee women's rights "to decide freely and responsibly on the number and spacing of their

children and to have access to the information, education and means to enable them to exercise

these rights. (Article 16)

The third general thrust of the Convention aims at enlarging our understanding of the concept of

human rights, as it gives formal recognition to the influence of culture and tradition on restricting

women's enjoyment of their fundamental rights. These forces take shape in stereotypes, customs

and norms which give rise to the multitude of legal, political and economic constraints on the

advancement of women. Noting this interrelationship, the preamble of the Convention stresses

"that a change in the traditional role of men as well as the role of women in society and in the

family is needed to achieve full equality of men and women". States parties are therefore obliged

to work towards the modification of social and cultural patterns of individual conduct in order to

eliminate "prejudices and customary and all other practices which are based on the idea of the

inferiority or the superiority of either of the sexes or on stereotyped roles for men and women"

(Article 5). And Article 10 C mandates the revision of textbooks, school programmes and

teaching methods with a view to eliminating stereotyped concepts in the field of education.

Finally, cultural patterns which define the public realm as a man's world and the domestic sphere

as women's domain are strongly targeted in all of the Convention's provisions that affirm the

equal responsibilities of both sexes in family life and their equal rights with regard to education

and employment. Altogether, the Convention provides a comprehensive framework for

challenging the various forces that have created and sustained discrimination based upon sex.

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The implementation of the Convention is monitored by the Committee on the Elimination of

Discrimination against Women (CEDAW). The Committee's mandate and the administration of

the treaty are defined in the Articles 17 to 30 of the Convention. The Committee is composed of

23 experts nominated by their Governments and elected by the States parties as individuals "of

high moral standing and competence in the field covered by the Convention.

At least every four years, the States parties are expected to submit a national report to the

Committee, indicating the measures they have adopted to give effect to the provisions of the

Convention. During its annual session, the Committee members discuss these reports with the

Government representatives and explore with them areas for further action by the specific

country. The Committee also makes general recommendations to the States parties on matters

concerning the elimination of discrimination against women.

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 CHAPTER-4

LEGISLATIVE DEVELOPMENTS IN INDIA

4.1 LAWS EXISTING BEFORE 2013 AMENDMENT

In 1983, after being debated in Lok Sabha for three days and in Rajya Sabha for two days, the

Bill finally received President’s assent on Dec 25, 1983 and culminated into the Criminal Law

(Amendment) Act, 1983, which is the existing law at present.

The legal definition of rape as incorporated in section-375 of the Indian Penal Code, 1860, reads

as follows :–

375. Rape –A man is said to commit rape, who, except in the case hereinafter excepted, has

sexual intercourse with a woman under circumstances falling under any of the six following

descriptions:

First –Against her will.

Secondly –Without her consent.

Thirdly –With her consent, when her consent has been obtained by putting her or any other

person in whom she is interested in fear of death or of hurt.

Fourthly –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.

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Fifthly –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, who is unable to understand the nature and consequences

of that to which she gives consent.

Sixthly –With or without her consent, when she is under sixteen years of age.

Explanation –Penetration is sufficient to constitute the sexual intercourse necessary to the

offence of rape.

Exception –Sexual intercourse by a man with his own wife, the wife not being under fifteen

years of age, is not rape.

Ingredients of Rape

1. Against her Will

There must be the utmost vehement exercise of every physical means and faculty within a

woman’spower to resist the act of the aggressor, to resist the penetration and this must be shown

to persist until the offence is committed. The opinion of medical experts shows that it is very

difficult for a person to rape single handed, a grown up and experienced woman without meeting

stiffest possible resistance from her.

Referring the first clause “Against her Will”, the phraseology has never been defined by the act ,

except to assume the meaning there from after the meaning of ‘will’ and ‘against’, where will is

the faculty of mind of conscious and particularly of deliberate action , the power of control of

mind over its own action or proper exercise of one’s volition in making a decision. The word,

“will” literally means power of choosing or determining, volition or choice and the expression.

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“Against the Will”, as appended under section 375 IPC clearly refers to a woman (who is ) in full

sense or full possession of her sense and reason or who in other words, is fully conscious normal

and reasoning accompanied with deliberation , after mind has weighed, as in a balance , the good

and the evil on each side, with the existing capacity and power to withdraw the assents according

to one’s will or pleasure.

But the every act done against the will of a person, no doubt , is done without her consent ; but

an act done “without her consent” of a person is not necessarily against her will which

expression imports that the act is done in spite of the opposition of the person to the doing of it.

A victim’s struggle and protest against the offenders clearly proves commission of rape was

against her will. The will and consent would ordinarily refer to the same act of mind. They are

both functions of volition, but as the term consent is susceptible of some variation in

construction, and may include a subsequent consent which the word will necessarily exclude.

The Indian penal code draws distinction between act done against the will of a person and an act

done without the consent of a person. In view to this distinction between the two phraseology

“against the will” and “without the consent”, section 90 IPC, helps in distinguishing the two

concepts therefore every act done against the will of a person is an act of doing a thing or an act

done without his consent, but an act done “without her consent” of a person is not necessarily

against her will which expression imports that the act is done in spite of the opposition of the

person to the doing of it.

While the term will refers to the previous or concurrent consent, the second clause –without the

consent –may include also a subsequent consent. There may, moreover arise in a case where the

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consent may not be vitiated by any one of the reasons contemplated in section 90 of the IPC and

still the act may be rape, because it was against the will of a woman ravished.

Rape of tender aged person between 2 months to 7 years old would amount to rape against her

will, while rape of girl between 7 to 8 years or above but below 16 years would amount to rape

against her will and as well as without the consent of the victim.

In the case of rape one of the most and foremost circumstances generally expected in the

evidence is resistance from the victim. Any unwilling victim of the offence is expected to receive

injuries on her person so also the accused is also expected to receive the same. Under such

circumstances , interference of unwillingness or the act of rape was against the will of the victim

can be inferred well, for virginity is the most precious possession of an unmarried girl and she

will never willingly part away with this proud and honour .

2. Without her consent

Section 375, IPC secondly lays down that A man is said to commit “rape” if he has sexual

intercourse with a woman without her consent .

The word consent has not been defined by the Indian Penal Code but its meaning has been

gathered from the facts and the circumstances of the commission of the offence. While

dictionary meaning of the consent is to agree in sentiment, permit or approve, acquiescence

.Consent is an act of reason, accompanied with deliberation, the mind weighing as a balance, the

good and evil on each side. Therefore, one cannot consent to a thing unless one has a knowledge

of it. It is an agreement of opinion on the part of all the concerned.

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CONSENSUS EST VOLUNTAS PLURUIUM AD QUOS RES PERTINENT, SIMUL JUNCTA ,

means consent is conjoint will of many (more than one) persons to whom things belongs. Where

there is consent then , that consent makes law –CONSENSUS FACIT JUS –hence where rape is

committed with consent ( where meeting of mind to do such act ),there is no rape.

Referring to section 375 IPC, woman can be said to have consented to the act only when she has

submitted herself willingly and freely, while in free and unconstrained possession of her physical

and moral power to act in a manner she wanted, therefore consent implies the exercise of a free

and untrammeled right to forbid or withhold what is being consented to; it always involves a

voluntary act and conscious acceptance of what is proposed to be done by another and concurred

in by the former. A person is said to have consented if she is aware of the act and the

consequences of such an act and is ready to bear the same.

IPC does not define the word consent but section 90 IPC gives indirect meaning thereof so far it

relates to the word consent as contemplated in section 375 IPC.

Where the prosecutrix accompanied the accused to the house of someone and stayed there for

about a week and did not disclose the incident to anybody even without being under any threat,

inference could be drawn that she was a consenting party and the accused was held to be entitled

to acquittal. The prosecutrix, did not disclose the name of the accused to her parents early though

she knew him. She disclosed the name only when the doctor found that the profuse bleeding

from her private part was due to sexual intercourse, it was held that the prosecutrix being a

consenting party and she being not a minor, it was not a case of rape.

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Where a blind helpless girl was raped by the accused, it was held that expression consent cannot

be equated to inability to resist out of helplessness and absence of injuries on the victim also

does not by itself amount to consent by her.

3. 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.

Section 375 , clause third , states that a man is said to commit rape when he has sexual

intercourse with her consent, when her consent has been obtained by putting her in fear of death

or of hurt. Such fear might be to put any person in whom she is interested.

While IPC defines, death under section 46 and hurt under section 319 IPC, the code does not

define what amounts to “fear”. It means a distressing emotion aroused by an impending pain and

danger and evil and a specific instance of such a feeling or something of which one is afraid of or

that causes fright or apprehension. For eg. Unless the prosecutrix surrenders her person, the

accused might kill her son is an apprehension or fear of death.

Surrender as a passive consent might also be from threat angle or black mailing of a girl. The

word fear concerns and pertains to the victim of the offence who received it from the person who

uses the criminal force so as to change the feeling of prosecutrix without her consent in order to

commit the offence, in such a way that by use of force she will be frightened so as to compel her

to surrender her body unwillingly. In view of this , a force so used need not be an actual physical

force , may be direct or indirect force say- holding out minor child and threatening to kill the

minor unless she submits to the offender for sexual intercourse an indirect threat or a sort of fear

mounted to her indirectly without direct physical force. Thus absence of injury , in the rape case ,

may not amount to consent sometimes, for absence of injury may or may not indicate the

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absence of physical violence and absence of physical violence , by itself, does not mean that the

sexual intercourse has not been committed forcibly.

4. With her consent under a mistaken belief.

The fourth clause gives that he whoever induces a woman to have sexual intercourse with him by

personating as her husband commits rape. Thus if the consent under misconception of facts has

been obtained, or when the consent is obtained by impersonating as her husband, the offence

under the section has been committed which is punishable under section 376 I.P.C.

It is called as disgusting clause, for the clause gives offended taste of moral sense of Indian

woman. May one ask, “how is it possible for a woman to be mistaken by a stranger as for her

husband”?. This type of contingency is conceivable where a man approaches the victim during

sleep, or in the dark, or under circumstances when recognition is impossible, but she could detect

by voice, in the circumstance the ravisher might intend to go further by using force to complete

the act in spite of resistance and after detection.

Two things are possible; A) if she discovers the mistake before consummated and does not resist,

the act would probably ceased to be a rape for consent can be inferred from the non resistance

and; B) if detected after the consummation, of course, the man approaching her is guilty of such

imposition for he intended to pass for her husband.

Under such situation consent given by a woman to a man under misconception of facts that he

was her husband was, of course, no consent at all. In order that section 375, fourthly, Indian

penal code may be attracted, the consent by the woman must have been given because she

believes that the offender is another man to whom she is married or believes herself to be

lawfully married. When the consent by the woman to the accused having sexual intercourse with

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her was not given under the belief that the accused was another person to whom she believed

herself to be married but where the woman believed that she had been married to the accused,

clause fourth will not be applicable.

5. With her consent due to intoxication

In view of clause fifth of section 375 IPC, rape can undoubtedly be committed on woman while

she is in a state of unconsciousness which might have occurred in an ordinary course or as a

result of administration of Narcotic , Intoxicating or Anesthetic drugs. It is accepted fact that it is

very difficult, unless over –powered, to rape a healthy woman in full sense. She is bond to offer

resistance and a struggle is invariably followed, as a result of which injuries are bound to be

found on the body of victim, on the person and even on the part of the accused.

But in case of unconscious state of mind due to administration of drug or any other stupefying

things of unwholesome substance and where is unable to understand the nature and

consequences thereof , there is likelihood of absence of violence or any evidence of struggle in

committing the offence of rape as the victim has been incapacitated by the administration of

narcotic drugs and consent obtained under such incapacitated circumstances is no consent and

the offence under section 375 is said to have been committed against her.

Where a girl was going for study, appellant took her to a lonely house hill and she was made to

sit and appellant forcibly thrushed in her mouth a liquor bottle and she was made to drink the

liquor. Thereafter appellant undressed her and committed rape on her. It was held that the

accused person committed rape on the prosecutrix forcibly and without her consent.

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6. With or without her consent, when she is under sixteen years of age.

This is one of the important clause under the section and enacted with the view to protect minor

girl of the society. The clause simply declares that an act done even though with the consent of a

child under 16 years of age would be a rape, her consent had precocity being both immaterial

.The fact that such a girl can discriminate between right and wrong and invited the accused to the

act are both wholly irrelevant, for the policy of law is to protect children of such immature age

against sexual intercourse.

The age limit in this clause was raised to 16 years by an amendment of the Act in 1949.The

Indian Penal Code has raised the age twice earlier prior to present standard. The age limit was

raised from 10 to 12 years by the Indian Criminal law Amendment Act of 1891. It was again

raised from 12 to 14 years by the Indian Penal Code Amendment Act of 1925. The age limit at

present is 16 by an Act of XLII of 1949. The limit raised in age is to protect children from pre –

mature cohabitation and prostitution in view of our society which is afforded by other sections of

IPC.

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.

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Section- 376(C) punishes sexual intercourse by 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.

These new sections have been introduced with a view to stop sexual abuse of women in custody,

care and control by various persons- which though not amounting to rape were nevertheless

considered highly reprehensible.

PUNISHMENT OF RAPE:

Section 376 itself is a substantive one as it describes as to how many years of imprisonment will

be suffered by a person who commits a rape. In view of section 376(2) punishment appended

therein shall be inflicted upon a convict with imprisonment of either description for a term which

shall not be less than seven years but which may be for life or for a term which may extend to ten

years and shall also be liable to fine unless the women raped is his own wife and is not under

twelve years of age, in which cases, he shall be punished with imprisonment of either description

for a term which may extend to two years or with fine or with both. The court may, for adequate

and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a

term of less than seven years. When the offence is committed against those listed under section

376(2) (a) to (g) i.e., Whoever –

a) being a police officer commits rape-

i) within the limits of the police station to which he is appointed; or

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 ii) in the premises of any station house whether or not situated in the police station to

which he is appointed; or

iii) on a woman in his custody or in the custody of a police officer subordinate to

him; or

b) being, a public servant, takes advantage of his official position and commits rape on a

woman in his custody as such public servant or in the custody of a public servant subordinate to

him; or

c) being on the management or on the staff of a jail, remand home or other place of custody

established by or under any law for the time being in force or of a woman's or children's

institution takes advantage of his official position and commits rape on any inmate of such jail,

remand home, place or institution; or

d) being, on the management or on the staff of a hospital, takes advantage of his official

position and commits rape on a woman in that hospital; or

e) commits rape on a woman knowing her to be pregnant; or

f) commits rape on a woman when she is under twelve years of age; or

g) commits gang rape,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years

but which may be for life and shall also be liable to fine:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment,

impose a sentence of imprisonment of either description for a term of less than ten years.

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Explanation 1 - Where a woman is raped by one or more in a group of persons acting in

furtherance of their common intention, each of the persons shall be deemed to have committed

gang rape within the meaning of this sub-section.

Explanation 2 –“Women’s or children’s institution” means an institution, whether called an

orphanage or a home for neglected woman or children or a widows' home or by any other name,

which is established and maintained for the reception and care of woman or children.

Explanation 3 –“Hospital” means the precincts of the hospital and includes the precincts of any

institution for the reception and treatment of persons during convalescence or of persons

requiring, medical attention or rehabilitation.

The main features of the Criminal Law (Amendment) Act, 1983 , are as follows:

1. The Act, for the first time recognised the existence of aggravated forms of rape, viz. rape

of minor, gang rape, rape of a pregnant woman, custodial rape committed by police Officer,

public servant, a person on the management or staff of jail, remand home, women’sor children’s

home, hospital etc. It also provided enhanced punishment under section-376 (2) for cases of

aggravated rape.

2. The Act also distinguished the rape of a judicially separated wife under section-376-A

and provided for a punishment, which may exceed to 2 years alongwith imposition of fine.

3. Prescription of mandatory minimum punishment can be regarded as the most important

achievement, by 1983 Amendment Act. It enhanced the punishment by providing the mandatory

minimum imprisonment of either description for 7 years under section-376 (1) in general rape

cases along with imposition of fine. section- 376 (2) took care of aggravated rape cases and

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provided a mandatory minimum of 10 years rigorous imprisonment along with the imposition of

fine.

4. A new clause ‘fifthly’ was added to section-375, which made the consent of a woman of

unsound mind or the consent, which is given under intoxication or administration of some

stupefying or unwholesome substance, irrelevant against a rape charge.

5. Section-327, Cr. P.C. was amended to include sub-sections (2) and (3). Clause (2)

provided that in case of inquiry into and trial under Sections 375, 376, 376-A, 376-B, 376-C and

376-D, shall be conducted in camera. clause (3) prohibited the printing and publication of any

matter in relation to the proceedings covered under c1(2), without the previous permission of the

Court.

6. A new section 228-A was inserted in the Indian Penal Code, which made the disclosure

of identity of rape victim penal except under permission granted for publication by the victim.

The Officer in charge of Police Station or the Police Officer investigating such case can also give

permission by a written order to such publication.

7. In the Act, all recommendations of 84th Law Commission Report regarding the

provisions relating to evidence, were not accepted, but for the provision relation to the burden of

proof, which was accepted partly. To this effect, a new section 114-A was inserted in the Indian

Evidence Act, which shifted the burden of proof on the accused in aggravated rape cases covered

under section-376, IPC.

8. Few changes were made in the First Schedule to the Criminal Procedure Code, which

made the offence of rape as cognizable and non-bailable. Marital rape remained non-cognizable

and bailable. The offence under section-228-A was also made cognizable and bailable. The

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offence under section-376, B, C and D are cognizable and bailable, but no arrest can be made

without a warrant or without an order of a Magistrate.

9. The age of consent is 16 years in general rape case, 15 years in marital rape case and in

the case where the victim is below 12 years, section-114-A of Indian Evidence Act is applicable.

10. The position of wife remained same in the amendment of 1983 as it was in 1891 except for

the three years increase in the age of consent in marital rape cases unrecognised by the Indian

Penal Code.

4.2 THE SUGGESTIONS PROPOSED BY THE LAW COMMISSION OF INDIA

Despite many progressive changes introduced by the 1983 Act, there remained many lacunae in

the existing law. To fill up the gaps, the National Commission for Women (NCW) made certain

suggestions, which were considered by the Law Commission in its 156th Report on Indian Penal

Code.

The main recommendations of the 156th Law Commission Report are as follows—

1. The Commission was of the view that the offence of rape should be retained in the IPC

subject to a few modifications.

2. The Commission recommended that clause ‘thirdly’ to section-375, IPC, be modified to

include words- ‘or of any other injury’. These words expand the scope of the clause to provide

for situations of rape by persons in position of trust, authority, guardianship or of economic or

social dominance. The Commission was of the view that such change will cover the cases of

incestuous abuse where the victim is totally dependent on the offender.

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3. The Commission recommended that the age limit prescribed in the clause ‘sixthly’ to

section-375 IPC, be raised to 18 years from the existing 16 years.

4. The Commission did not endorse the view of NCW that the age limit for wife in the

exception to section-375 IPC, should be raised.

In a move to rectify those lacunae, a NGO called “Sakshi”, approached the Supreme Court of

India for directions concerning the definition of the expression “sexual intercourse” as contained

in S-375 IPC. The Supreme Court directed the Law Commission to examine the issues involved.

In response to this order of the hon’ble Court, the Law Commission brought forth its 172nd

Report on Review of rape laws in 2000.

The main recommendations of the 172nd Law Commission Report are as follows —

The Substantive Law

1. The Commission strongly recommended making the provision of rape gender neutral

because not only women and girls, but young boys are also subjected to forced sexual assaults,

which causes no less psychological trauma to a boy than a girl.

2. The Commission felt that it was necessary to include under the definition of rape not just

penile penetration but penetration of any other part of the body (like finger or toe) or by any

other object. The modified explanation makes it clear that penetration to an extent is sufficient to

constitute rape.

3. The Commission has retained the marital exception to rape though “Sakshi” wanted its

deletion. The Commission found it to be excessive interference with the marital relationship but

raised the age of wife from fifteen to sixteen years.

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4. The Commission has proposed the addition of a new proviso(while keeping the existing

provisions proviso II) to section-376 IPC providing that when the sexual assault is committed by

the father, brother, grandfather or any other person in position of trust or authority towards that

person, the punishment should be severe.

5. For aggravated minor rapes, the Commission raised the age of the victim from 12 years to

16 years.

6. The Commission has retained both ‘adequate and special reasons clause’to section-376

IPC.

7. Retaining section-376 IPC, rape by husband during judicial separation, the Commission

enhanced the minimum punishment as not less than 2 years but which may extend to 7 years.

8. Retaining sections-376-B, 376-C, 376-D, the Commission recommended that an

explanation should be added which covers all types of sexual intercourse, as described above for

section-375.

9. The Commission recommended the insertion of a new section 376 E which gives the

definition of ‘unlawful sexual contact ’as including many other acts of sexual abuse e.g.,

touching directly or indirectly, with a part of body or an object any part of the body of another

person.

10. The commission recommended the deletion of section-377 IPC as in the light of the

proposed modifications, it will not be required.

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11. The Commission has reiterated the suggestion made in the 84 th Law Commission Report

that a new section 166-A should be inserted in the Code. The proposed section punishes a public

servant who knowingly disobeys the law prohibiting him from requiring the attendance at any

place of any person for the purpose of investigation into any offence or during the course of

conduct of investigation, he knowingly disobeys directions of law and such an act results in

prejudice to another person.

The Code of Criminal Procedure, 1973

1. The Commission recommended that sub-sections (3) and (4) be inserted in section-160,

Cr PC to the effect that the statement of the victim shall be recorded by a female police officer,

in case a female police officer is not available, by a female Government servant available in the

vicinity and in case a female Government servant is not available, by a female authorised by an

organisation interested in the welfare of women or children. Where either of these alternatives

are not available, the officer in charge of the Police Station shall record the reasons in writing

and record the statement of the victim in presence of her relative.

2. Substitution of the proviso to sub-section (1) of s-160, Cr PC was also recommended for

raising the age limit from 15 years to 16 years.

3. The proviso to section-160, Cr PC should provide for recording of the statement of the

victim, in presence of one of her relatives of her choice, who shall not interfere with the

recording of the statement.

4. The Commission recommended the insertion of a new section 164-A, Cr PC for medical

examination of the victim with her consent, by a Medical Practitioner, during investigation, so

that the valuable medical evidence is not destroyed due to the delay etc.

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5. The Commission also recommended the insertion of a new section 53-A, Cr PC, to

provide for the medical examination of the accused without delay.

6. The Commission recommended strongly that the proviso to section-273, Cr PC be

modified, so that the minor victim is not confronted by the accused while at the same time

ensuring the right of the accused to cross-examine.

Indian Evidence Act, 1872

1. The Law Commission recommended the insertion of section-53-A, which provides that where

consent of the victim is in issue, her past sexual experience with any person will not be relevant.

2. The Commission was of the view that section-146 (4) should be inserted prohibiting the

questions regarding general immoral character of the victim.

The Code of Criminal Procedure (Amendment) Act, 2005

Due to the liberal interpretation of section 53 CrPC, it became a mandatory practice for a rape

victim to be examined by a woman doctor only (wherever woman doctors were available). This

was meant to make the victim more comfortable in the hands of a woman doctor. But the small

number of woman doctors (especially in rural hospitals), and their workload with maternity

services, often resulted in delays in the medical examination of a victim of rape. Even when a

doctor eventually became available, his/her busy schedule often meant that only a cursory

examination was performed and the collection of evidence was inadequate or improper. As there

was no explicit law dealing with these issues, there was much confusion regarding who (male or

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female doctor) should examine victims of rape and the extent of such examinations

(documentation of injuries and evidence / collection of evidence).

The Criminal Procedure Code (Amendment) Act of 2005 introduced specific sections for

medical examination of victims of rape, medical examination of those accused of rape and

investigation by judicial magistrates of custodial rape and deaths.

Section 164(A) CrPC explains the legal requirements for medical examination of a victim of

rape. One of the main elements of this is that the consent of the victim is mandatory and should

be part of the report.

Only with the consent of the victim (and in the case of a minor by the parent or guardian) may

the examination be conducted by any registered medical practitioner (only allopathic doctors

registered under the Medical Council of India (MCI)) employed in a hospital run by the

government or a local authority, and, in the absence of such a practitioner, by any other

registered medical practitioner. Thus this explicit provision mandates that any registered medical

practitioner with the consent of the victim may do the examination, solving the difficulties

caused by the requirement that only government doctors should do this examination.

It also provides that when no woman doctor is available, there is no bar against a male doctor

carrying out the examination, if the victim consents. Though getting the examination done by a

woman doctor is ideal, the law does not mandate it, keeping in mind that a medical examination

should not be postponed because of an extreme situation such as the want of a lady doctor. The

same section mandates that a medical examination must be carried out within 24 hours of the

police receiving information, thus recognising this as a medicolegal emergency and putting a

timeframe for the investigating officer. The medical examination should be carried out without

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any delay and a ‘reasoned’ report be prepared, recording the consent of the victim, her name and

address, the person by whom she was brought, her age, a description of the materials collected

from the victim for DNA profiling, marks of injury if any, her general mental condition other

material particulars in reasonable detail, and the exact time of commencement and completion of

the examination. The law mandates that the report should state precisely the reasons for each

conclusion made. Also, it should be forwarded without delay to the investigating officer who, in

turn, shall forward it to the magistrate concerned.

Section 164A CrPC explicitly states that nothing in this section shall be construed as rendering

lawful any examination without the consent of the woman or any person competent to give such

consent on her behalf. This makes it clear that consent is essential and nobody can force a victim

to undergo a medical examination without her consent, not even the Court

Section 53(A) CrPC sets down the requirements of medical examination of a person accused of

rape. Prior to this amendment there was no explicit law defining the details of medical

examination. There were no guidelines on whether age estimation had to be done, whether a

potency examination was sufficient, whether evidence of injuries, stains, trace evidence or DNA

evidence was required to be collected, etc. So there was confusion on whether to take samples of

blood, hair, stains, nail clippings, etc. The explanation to this section now clearly states what

must be included in this medical examination. A detailed medical examination is to be carried

out by a registered medical practitioner (only allopathic doctors registered under the MCI)

employed in a hospital run by government or local authority - and in the absence of such a

practitioner within the radius of 16 km from the place where the offence has been committed, by

any registered medical practitioner acting on the request of a police officer not below the rank of

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a sub inspector. By this it is clear that the law recognises the need for an immediate medical

examination of the person accused of rape.

The medical examination should be carried out without any delay and a ‘reasoned’ report be

prepared recording the name and address of the accused, the person by whom he was brought,

the age of the accused, marks of injury if any, a description of materials collected from the

accused for DNA profiling, other material particulars in reasonable detail, and the exact time of

commencement and completion of examination. The law mandates that the report should state

the reasons for each conclusion arrived and this report should be forwarded without any delay to

the investigating officer who in turn shall forward it to the magistrate concerned.

Amendments are also made to section 176 CrPC regarding an inquiry by a magistrate into the

cause of death, by adding section (1A) by which if (a) any person dies or disappears, or (b) rape

is alleged to have been committed on any woman, while such person or woman is in the custody

of police or in any other custody authorized by the Magistrate or the Court under this Code, in

addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial

Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction

the offence has been committed. This amendment now mandates that a judicial magistrate must

investigate all cases of custodial rape and deaths in custody.

4.3 The Code of Criminal Procedure (Amendment) Act, 2008

Many victims of rape do not want to register a police complaint due to the cumbersome

procedures that it involves, and the unsupportive atmosphere at police stations. Further, they

must narrate their ordeal to male police officers. Even if a woman musters up the courage to

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initiate criminal proceedings, there are inordinate delays in the trial of the case, with needless

adjournments. She is always psychologically harassed in open courts, undergoes long trials and

is forced to repeatedly describe her traumatic experiences in front of people who view her

testimony with suspicion. It has also been found that in most cases the accused gets acquitted for

lack of evidence. The courts have also failed to provide immediate and long term relief to the

victim, let alone punishment to the accused. All these issues were looked at when the CrPC was

amended in 2008. These amendments came into effect in 2009.

1. A provision has been added to section 157 CrPC dealing with the procedure of

investigation in relation to the offence of rape. The recording of the statement of the victim shall

be conducted at the residence of the victim or in the place of her choice and, as far as practicable,

by a woman police officer in the presence of her parents or guardians or near relatives or social

worker of the locality.

2. The amendment to section 173 CrPC now mandates that investigation in relation to rape

of a child must be completed within three months of the date on which the information was

recorded by the officer in charge of the police station. Also, when the report is forwarded to a

magistrate it should contain the report of the medical examination of the woman where an

investigation relates to an offence under sections 376, 376A, 376B, 376C, and 376D IPC.

3. The amendment to section 309 CrPC has the additional proviso that when the inquiry or

trial relates to an offence under sections 376 to 376D IPC, the inquiry or trial shall, as far as

possible, be completed within a period of two months from the date of commencement of the

examination of witnesses.

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Though the CrPC amendment of 1983 to section 327CrPC itself mandated in camera inquiry and

trial for rape of an offence under section 376, 376A, 376B, 376C or 376D IPC, victims of rape

were still not comfortable in court proceedings. The 2008 amendment to section 327CrPC allows

an in camera trial be conducted, as far as is practicable, by a woman judge or magistrate. It also

partially lifts the ban on printing or publishing trial proceedings in relation to an offence of rape,

subject to maintaining confidentiality of the names and addresses of the parties.

The amendment of the CrPC in 2008 has brought in progressive legislation by inserting a new

section 357(A) CrPC, the victim compensation scheme. All state governments in consultation

with the central government are to prepare a scheme for victim compensation. On

recommendation by the court for compensation, the district legal service authority or state legal

service authority must decide on the quantum of compensation.

4.4 CRIMINAL LAW (AMENDMENT) ACT, 2013

This is an act further to amend the IPC, 1860, the CPC, 1973, the IEA, 1872, and the Protection

of Children from Sexual Offences Act, 2012. The definition was expanded to include same-sex

crimes and raised the age of consent to age 18.

Amendments to Indian Penal Code

1. In S.100, 7th clause is added:

"Throwing/administering or attempting to throw/administer acid which may reasonably cause the

apprehension that grievously hurt will otherwise be the consequence of such act".

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2. After S.166, S.166A has been added which pertains to disobedience and failure to record

any information by a public servant

3. In S.228A, in sub-section (1), for the words figures and letters, "offence" shall be

substituted in S.376 (A-E)

4. After S.326 following sections shall be inserted.

S.326A: Voluntarily causing grievous hurt by use of acid

Whoever causes permanent or partial damage or deformity to any part/s of the body of a person

or causes grievous hurt by throwing/administering acid to that person or using any other means.

S.326B: Punishment

Imprisonment of either description for a term not <10 years but which may extend to

imprisonment for life and with fine:

• Such fine shall be to meet the medical expenses of treatment of the victim

• Any fine imposed under this section shall be paid to the victim.

5. In S.354, the punishment of imprisonment up to 2 years is replaced by, not <1-year which

may extend up to 5 years. It is outraging the modesty of a woman which has been amended to

enhance the punishment. Whoever assaults or uses criminal force to any woman, intending to

outrage or knowing it to be likely that he will thereby outrage her modesty. Before: "Punished

with imprisonment of either description for a term which may extend to 2 years or with fine or

with both." Offence: Cognizable and bailable. Now: Shall not be <1-year but may extend to 5

years, and shall also be liable to fine" cognizable and non-bailable.

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S.354: After S.354, the following sections shall be inserted:

S.354A: Sexual harassment

A man doing any of the following acts:

1. Unwelcome physical contact and advance involving explicit sexual approaches

2. A demand/request for sexual favors

3. Showing pornography against the will of a woman

4. Making sexually colored remarks, shall be guilty of the offence of sexual harassment.

Punishment

offences in clause (1), (2) or (3) shall be punished with R. I. for a term which may extend to 3

years, or with fine, or with both; offence in clause (4) punished with imprisonment of either

description for a term which may extend to 1-year, or with fine, or both cognizable and bailable.

S.354B: Assault or use of criminal force to woman with intent to disrobe: Any man who assaults

or uses criminal force to any woman or abets such act with the intention of disrobing or

compelling her to be naked Punishment: Imprisonment of either description for a term which

shall not be <3 years but which may extend to seven 7 years, and fine. Offence: Cognizable and

nonbailable.

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S.354C: Voyeurism

Any man who watches, or captures image of a woman engaging in a private act in circumstances

where she would usually have expectation of not being observed either by perpetrator or by any

other person at behest of perpetrator or disseminates such image.

Punishment

On first conviction: Imprisonment for a term which shall not be <1-year, but may extend to 3

years, and shall also be liable to fine, and on second/subsequent conviction: Imprisonment for a

term which shall not be <3 years, but may extend to 7 years, and shall also be liable to fine. First

offence cognizable but bailable, second/subsequent offence cognizable and nonbailable.

S.354D: Stalking: Any man who

i. Follows a woman and contacts, or attempts to contact to foster personal interaction

repeatedly despite a clear indication of disinterest by such woman

ii. Monitors use by a woman of Internet, E-mail or any other form of electronic

communication, commits the offence of stalking.

Punishments

On first conviction: Imprisonment for a term which may extend to 3 years, and fine on a second

or a subsequent conviction: Imprisonment which may extend to 5 years, and fine. First offence

cognizable but bailable, second/subsequent cognizable but non-bailable.

Exception

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Such stalking was for preventing or detecting crime and such conduct was just and reasonable in

the particular circumstances.

6. For S.370, the following sections shall be substituted:

1. For the purpose of exploitation:

(a) Recruits (b) transports (c) harbors (d) transfers (e) receives a person/persons by:

(1) Using threats (2) using force (3) abduction (4) practicing fraud (5) abuse of power (6)

inducement.

2. Punishment for trafficking: RI for 7 years

3. Trafficking of more than one person

4. Trafficking of a minor

5. Trafficking of more than one minor

6. Punishment for repeat offence

7. Punishment for public servant/police official.

7. For S.375, 376 (A-D), the following sections shall be substituted: S.375. A man is said to

commit "rape" if that person.

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a. Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of another

person or makes her to do so with him or any other person; or

b. Inserts, to any extent, any object or a part of the body, not being the penis, into the

vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

c. Manipulates any part of the body of a woman person so as to cause penetration into the

vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any

other person; or

d. Applies his mouth to the penis, vagina, anus, urethra of a woman or makes her to do so

with him or any other person, under the circumstances falling under any of the following seven

descriptions:

1. Against the other person's will

2. Without the other person's consent

3. With the other person's consent when such consent has been obtained by putting such

other person or any person in whom such other person is interested, in fear of death or of hurt

4. When the person assaulted is a female, 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 to be lawfully married

5. With the consent of the other person when, at the time of giving such consent, by reason

of unsoundness of mind or intoxication or the administration by that person personally or

through another of any stupefying or unwholesome substance, the other person is unable to

understand the nature and consequences of that action to which such other person gives consent

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6. With or without the other person's consent, when such other person is under eighteen

years of age

7. When the person is unable to communicate consent.

Explanation 1: Penetration to any extent is "penetration" for the purposes of this section.

Explanation 2: For the purposes of this section, "vagina" shall also include labia majora.

Explanation 3: Consent means an unequivocal voluntary agreement when the person by words,

gestures or any form of nonverbal communication, communicates willingness to participate in

the specific act: Provided that a person who does not physically resist to the act of penetration

shall not by the reason only of that fact be regarded as consenting to the sexual activity.

Exception

Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 16 years

of age, is not sexual assault.

Even after the 2013 reform, marital rape is not a crime in India. However, it is considered a form

of prosecutable domestic violence under different sections of IPC, such as Section 498 (A) as

well as the Articles of DVA, 2005 (Kinnear K. L, 201119).

S. 376 provides punishment for rape. According to this section, whoever commits rape shall be

punished with imprisonment for life, or with imprisonment of either description for a term,

which may extend to 10 years, and shall also be liable to fine, unless the woman raped is his own

wife and is not under 12 years of age, in which case he shall be punished with imprisonment of

either description for a term, which may extend to 2 years or with fine or with both.

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1. S.376A: A person committing sexual assault, inflicts an injury, which causes death or a

persistent vegetative state, shall be punished with RI for a term, which shall not be <20 years, but

which may extend to imprisonment for life, which shall mean the remainder of that person's

natural life, or with death

2. S.376B: Whoever has sexual intercourse with his own wife, who is living separately,

whether under a decree of separation or otherwise, without her consent, shall be punished with

imprisonment of either description for a term which shall be not <2 years but may extend to 7

years and shall also be liable to fine

3. S.376C: Whoever being (a) in position of authority (b) a public servant (c)

Suptds/managers of jails/remand homes (d) management/staff of hospital induce/seduce any

woman 5 years may extend to 10 years and liable to fine

4. S.376D: In case of gang rape, persons involved regardless of their gender shall be

punished with RI for a term, which shall not be <20 years, but which may extend to life and shall

pay compensation to victim, which shall be reasonable to meet medical expenses and

rehabilitation

5. S.376E: Whoever has been previously convicted of an offence punishable under Sections

of 376 and subsequently convicted under any of the same sections shall be punished with

imprisonment for life which shall mean imprisonment for the remaining of natural life or death.

Amendment in Indian Evidence Act

Changes in IEA, 1872, after S.53 of IEA, 1873 the following section is inserted:

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S.53A: When question of consent is an issue, evidence of the character of the victim or previous

sexual experience with any person shall not be relevant on the issue or quality of consent.

S.114A: Where sexual intercourse by the accused is proved and if the victim says no consent was

given, the court shall presume that she didn't consent.

S.119A: Witness unable to speak may give evidence in writing or by sign, writing and sign made

in open court as oral evidence.

S.146: When question of consent is an issue, it shall not be permissible to adduce evidence/put

questions in cross-examination of victim as to general immoral character or previous sexual

experience, of such victim with any person for providing such consent or quality of consent.

Amendment to the Protection of Children from Sexual Offence Act, 2012.

S.42 shall be substituted namely:

"The offence punishable under various sections of IPC, then, the offender shall be liable to

punishment under this Act or under IPC as provides for punishment which is greater in degree."

S.42A: "In case of any inconsistency, the provisions of this Act shall have an overriding effect

on the provisions of any such law to the extent of the inconsistency."

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Current legal position

The current legal position provides for the amendment of IPC, IEA, and CrPC, 1973 on laws

related to sexual offences. The offence of rape under Section 375 of IPC, have made both penile

and nonpenile insertion into bodily orifices of a woman by a man an offence. The definition is

broadly explained in some aspect, with acts like penetration of penis, or any object or any part of

body to any extent, into the vagina, mouth, urethra, or anus of a woman or making her to do so

with another person or applying of mouth to sexual organs (cunnilingus or fellatio) without the

consent or will of the woman constitutes the offence of rape.

The Section has also clarified that penetration means "penetration to any extent," and lack of

physical resistance is immaterial for constituting an offence. Except in certain aggravated

situations, the punishment will be imprisonment for not <7 years but which may extend to

imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will

be rigorous imprisonment for a term, which shall not be <10 years but which may extend to

imprisonment for life, and shall also be liable to fine.

A new Section, 376A has been added which states that if a person committing the offence of

sexual assault, inflicts an injury, which causes the death of the person or causes the person to be

in a persistent vegetative state, shall be punished with rigorous imprisonment for a term, which

shall not be <20 years, but which may extend to imprisonment for life, which shall mean the

remainder of that person's natural life, or with death. In case of gang rape, persons involved

regardless of their gender shall be punished with rigorous imprisonment for a term, which shall

not be <20 years, but which may extend to life and shall pay compensation to the victim, which

shall be reasonable to meet the medical expenses and rehabilitation of the victim.

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Certain changes have been introduced in the CrPC, 1973 and IEA 1872, like the recording of

statement of the victim has been made more friendly and easy, character of the victim is

irrelevant for consideration, presumption of no consent where sexual intercourse is proved and

the victim states in the court that there has been no consent, etc.

The age of consent has been increased to 18 years, which means any sexual activity irrespective

of the presence of consent with a woman below the age of 18 will constitute statutory rape.

The Criminal Law (Amendment) Ordinance, 2013 has been strongly criticized by several human

rights and women's rights organizations for not including certain suggestions recommended by

the Law Commission Report like, marital rape, amending Armed Forces (special powers) Act so

that no sanction is needed for prosecuting an armed force personnel accused of a crime against

woman.

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 CHAPTER-5

CONTRIBUTION OF SC AND JUDICIAL ANALYSIS OF CASES

As an institution, the Indian judiciary has always commanded considerable respect from the

people of this country. The roots of this high regard lie in the impartiality, independence and

integrity of the members of the judiciary. Respect for the judiciary was part of the common

man's aspirations for maintaining Rule of Law and building a just society. The deeper aim of the

law was creation of a good society.

Chankya said, “Law and morality sustain the world.”But morality stems from ethnical values.

The societal perception of judges as being detached and impartial referees was the greatest

strength of the judiciary. The real source of the strength of the judiciary lies in public confidence

in the institution. Today it was because of the public perception that the higher judiciary in the

country occupies a position of pre-eminence among the three organs of the state.

The Latin maxim, boni judicwas est ampliwere jurwasdictionem - it was the duty of a good

judge to extend the jurisdiction - based as it was on the principle that law must keep pace with

society to retain its relevance because if the society moves but the law remains static, it should be

bad for both. The Indian judiciary has, during the last few decades, acted on the maxim

extensively in cases where protection of fundamental rights or basic human rights were

concerned. This line of precedent was both dramatic and educative. It was the tardiness of

legislatures and the indifference of the executive to address itself to the complaints of the citizens

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about violations of their human rights and unfair treatment, which provides the necessity for

judicial intervention.

The judiciary could neither prevaricate nor procrastinate. It must responded to the knock of the

oppressed and the downtrodden for justice by adopting certain operational principles within the

parameters of the Constitution and pass appropriate directions in order to renderful and effective

relief. Judicial activism generally encompasses an area of legislative vacuum in the field of

human rights.

The Supreme Court and the High Courts have played a significant role in protecting the

fundamental rights of the people. The judges were after all part of the society and cannot be

totally immune from the dominant trends of social thoughts prevailing therein. Cardozo rightly

observed, “The tides and currents which engulf the rest of men do not turn aside pass the judges

by.”An analysis of the judicial decisions therefore was undertaken to show to what extent the

judges shared the gender predilections prevailing in the society and how in spite of such

predilections they rendered decisions which advanced the progress of the law towards gender

justice. Thus the, Indian judiciary has paid a yeoman’s service in protecting and preserving the

rights of the females as well as sensitising the society concerning the rights of the half of the

human population.

Time and again the Supreme Court of India has extended the ambit of Article 21 of the

Constitution of India and held that mere existence was not the right to live- it was the right to

live with dignity. Thus, whenever the crimes were committed against women the same should be

viewed in the context of violation of her right under Article 21 of the Constitution of India and

not merely as a crime against the society.

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In order to show the change and improvement in the Judicial approach with respect to rape law,

an attempt is made herein to discuss some of those cases, which showed the apathetic and

indifferent judicial attitude towards rape victims.

In Mahla Ram v. The crown7, the victim was raped in a moving train by the accused that dragged

her down the bench and tucking up her loincloth forcibly raped her. When the train reached the

next station, one guard came into that compartment and found the woman lying on the bench and

the accused picking up his loincloth that was untied. There was an independent witness also who

heard the victim screaming.

The court held that the evidence on the record was the most inconclusive to hold the accused

guilty of rape and the victim to be a non-consenting party and it was improbable to hold that the

woman was not a consenting party. There were absolutely no evidence on the record of any

struggle having taken place nor were marks of injury sound on the person either of the victim or

of the accused. It was further held that there was no independent evidence in support of the

statement of the victim and it would be most dangerous to base a conviction on her

uncorroborated testimony alone.

The court emphasised on the necessity of corroborated testimony of the victim and also the

evidence of resistance to hold the accused guilty of rape and to determine her consent or want of

consent. In the present case, as there was lack of all these evidences the court found the victim to

be a consenting party and the accused not guilty of offence of rape.

The Court displayed a total disregard to the psychology of a woman and expected victims to be

fighting for their pride. The Court failed to recognise the generally prevailing uneducated, shy

7
Mahla Ram v. The Crown, AIR 1924 Lah 669

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and fearful attitude of woman. The expectation of stiff resistance in each case of rape is highly

inhuman and injudicious.

In Ibrahim v. Emperor8, the cattle of the accused trespassed on a grassy plot in which the victim

was grazing her cattle. She drove away the cattle and then remonstrated with the accused. The

accused thereupon seized her and proceeded to rape her. Her cries attracted the attention of two

independent prosecution witnesses who rescued her.

The court held that the evidence of the victim was corroborated by the evidence of a disinterested

witness that left no doubt that the girl was raped. At the same time the medical evidence showed

that the girl was used to sexual intercourse and as she was unmarried it followed that she was

unchaste. Under the circumstances of the case the court considered that the sentence of seven

years' rigorous imprisonment was too severe and it reduced it to four years' rigorous

imprisonment.

In this case, the reasoning of the court in reducing the sentence of the accused clearly shows the

apathetic attitude of the Judiciary towards the victim. It gives an impression that a girl of easy

virtue can be raped by anybody and she has no right to protect her person in such cases of sexual

assault.

In Emperor v. Mahadeo Tatya9, the victim, a married girl of about 15 years and a ghee seller was

asked by the police constable on duty to put the ghee in his room. She was raped inside the room,

closed and bolted by the constable. After the alleged rape, she was taken to a Railway Station

and on the way deprived of her ornaments by the man who was told to accompany her at the

behest of the accused.

8
Ibrahim v. Emperor, AIR 1927 Lah 772(2)
9
Emperor v. Mahadeo Tatya, AIR 1942 Born. 121

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The order of conviction of accused, who was a police constable, passed by the trial Court in

consultation with jury was set aside by the Bombay High Court for want of corroboration. The

Court observed that a charge of rape was very easy charge to make and a very difficult one to

refute and corroboration must necessarily depend on the facts of each case. It observed that in a

contested case of rape, medical evidence showing injury to the private parts of the victim,

external injury to her body as a natural consequence of resistance by her; use of force by the

accused and the presence of seminal stains on her clothes and on the clothes of the accused or at

the place of occurrence were needed for the corroboration of charge/allegation. It further

observed that the subsequent conduct, by itself, although important, was not enough because a

witness could not corroborate himself/ herself.

In setting aside the lower court's verdict of conviction, the court failed to take into consideration

the social realities and also the pathetic condition of the victim vis-a-vis a well off and

comfortably placed accused. In Indian society no woman or girls would prefer to invite the social

stigma of being raped and thereby losing her most vital wealth i.e. Virginity and Chastity for the

sake of procuring conviction for others. Secondly, the suggested corroborative medical evidences

were not necessary to be available in each case of rape like where the victim was habitual to

sexual intercourse, no injury would be available on her private parts, also where she was

overpowered in the beginning of the act or series of acts by putting her in threat of physical

injury or any other method, she would be left with no option other than to passively submit and

no sign of injury would be visible on her externally.

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In Nura and Ors v. Rex10, the victim aged around 12 to 13 years, having intimacy with a friend in

the neighbourhood once went to her house on an invitation, and was introduced to her husband

and another friend of his. The friend asked the victim to go with these two men who took her out

of the village and several men allegedly raped her.

The doctor found that her hymen was absent and that there was no laceration of the vaginal

orifice, nor was there any mark of any injury. On this the court observed that the girl appeared to

have had some previous experiences of sexual life, and the fact that there was no mark of any

injury on any portion of her body clearly suggested that there had been no tussle between her and

the accused persons when one or the other would have raped her.

The High Court held that in a charge of rape the uncorroborated testimony of the victim alone

should not be accepted as a sufficient foundation for convicting the accused.

The Hon’ble Court failed to appreciate the fact that the offence of rape has nothing to do with the

virginity of the victim because if the loss of virginity was considered as sine--qua-non for the

offence of rape to make out then no married woman in general could be subjected to rape. This

interpretation of law is unacceptable, appears to be illegal and even absurd. The court also failed

to differentiate between consent and passive submission as in latter case the victim could be

overpowered by the use of physical power or threat or coercion in the beginning itself and

normally no medical evidence would be available in these cases. It is also submitted that

insistence for the independent corroboration in such circumstances would mean to negate the

reality that the offence of rape is generally committed in isolation or in darkness and no eye-

witnesses will be available for their expected evidence in court. Going by the ethos, morale and

10
Nura v. Rex, AIR 1949 All 710

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practice in our society it can be said that commission of rape in the presence of eyewitnesses

would be very rare.

In Rahim Beg v. State of U.P11, the victim (deceased); aged about 12 or 13 years resided with her

father and was married about six years but her Gauna ceremony was not performed. On one

morning both the accused persons, Rahim Beg and Mahadeo, followed the victim who were seen

by two prosecution witnesses when the victim did not arrive at home, her parents searched for

her and at about 4 pm ,her dead body was found lying under a bush in a Bhinta.

The court held that there were semen stains on the langot of the accused who was a young man

but it could exist because of a variety of reasons and would not necessarily connect him with the

offence of rape. In this case rape was alleged to have been committed by a fully developed man

on a girl of 10 or 12 years who was virgin and whose hymen was intact. There was absence of

any injuries on the male organ of accused that would point to his innocence.

Again this case was very disturbing, as the court did not take into consideration the available

evidence against them and acquitted them.

In Rafiq v. State of U. P. 12 , the victim, a middle-aged Bal- Sewika in a village welfare

organisation, was sleeping in a girl’s school where she was raped by the accused with his three

accomplices.

The court observed that corroboration, as a condition for judicial reliance on the testimony of a

victim was not a matter of law, but a guidance of prudence under given circumstances. Indeed,

from place to place, from age to age, from varying lifestyles and behavioural complexes,

11
Rahimbeg and Mahadeo v. State of U.P., AIR 1973 SC 343
12
Rafiq v. State of UP, 1980 Cri U 1344 (SC).

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inference from a given set of facts, oral and circumstantial, might have to be drawn not with dead

uniformity but realistic diversity lest rigidity in the shape or rule of law in this area be introduced

through a new type of the precedential tyranny. The same observation held well in respect of the

presence or absence of injuries on the person of the aggressor or the aggressed.

The court further observed that the escalation of such crimes had reached proportion to a degree

that exposed the pretensions the nation's spiritual leadership and celluloid censorship, put our

cultural heritage and humane claims to shame and betrayed a vulgar masculine outrage on human

rights of which woman's personal dignity was a sacred component.

It further observed that the facts and circumstances often varied from case to case, the crime

situation and the myriad psychic factors, social conditions and people's life styles might

fluctuate, and so, rules of prudence relevant in one fact situation might be inept in another. When

rapists were reveling in their promiscuous pursuits and half of the humankind -- womankind -

was protesting against its hapless lot, when no woman of honour would accuse another of rape in

case she sacrificed thereby what was dearest to her, the court could not cling to a positive

formula and insisted on corroboration of victim's testimony. Even if, taken as a whole, the case

was spoken to by the victim strike for a juaicial mind as probable. When a woman was ravished

what was inflicted was not merely physical injury, but “the deep sense of some deathless

shame.”

“A rape! a rape! Yes, you have ravish’d justice; forced her to do your pleasure.”

Hardly a sensitised judge who saw the conspectus of circumstances in its totality would reject the

testimony of a rape victim unless there were very strong circumstances militating the veracity.

Judicial response to human rights could not be blunted by illegal bigotry.

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The court, observed that there was considerable public and parliamentary attention to the violent

frequency of rape cases and it was time that the court reminded the nation that deterrence came

more effectively from quick investigations, prompt prosecution and urgent finality, including

special rules of evidence and specialised agency for trial. Mere mechanical increase of punitive

severity might yield poor dividends for women victims. The strategy for a crime free society was

not the draconian severity, processual celebrity and prompt publicity among the concerned

community. Lawlessness was abetted by a laggard, long-lived, lacunose and legalistic litigative

syndrome rather than by less harsh provisions in the Penal Code. The focus must be on evil.

Rape for a woman was deathless shame, and must be dealt with as the gravest crime against

human dignity.

In this case, Justice Krishna Iyer had delivered a highly sensitive and appreciable judgment

upholding the rights of the rape victim and stated different circumstances in which these rights

could be given to the victims. He had given a number of directions to the trial courts to try the

cases involving rape.

In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat,13 the Supreme Court has observed: “To

say at the beginning what we cannot help saying at the end: human goodness has limits- human

depravity has none. The need of the hour however, was not exasperation.”

In this case the victim and the other girl child went to the house of accused in order to meet his

daughter, belonging to their own age group of 10 or 12, who happened to be their friend. The

accused induced them to enter his house by creating an impression that she was at home though

in fact she was not. Once they were inside, the accused closed the door, undressed himself in the

presence of both the girls, and exposed himself. He asked other girl to indulge in an indecent act.

13
Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753

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She started crying and fled from there. The victim could not escape. She was pushed into a cot,

and was made to undress and the accused sexually assaulted her.

The Sessions Judge found the accused, a government servant, guilty of serious charges of sexual

misbehaviour with young girls aged about 10 or 12 years and convicted him for the offence of

rape, outraging the modesty of women, and wrongful confinement. The appeal to the High Court

substantially failed as the Court affirmed the order of conviction for wrongfully confining the

girls and for outraging the modesty of two girls but with regard to the more serious charge of

rape on the victim, it came to the conclusion that evidence established an offence of attempt to

commit rape and not rape.

The Court framed the following question:

Why should the evidence of girl or the woman who complained of rape or sexual molestation be

viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To

do so was to justify the charge of male chauvinism in a male dominated society.

The consequences of such charges would have disastrous effect on the future of unmarried girl

and might ruin the marital life of a married woman. Commenting on the Indian circumstances,

the Apex Court enumerated few of the following main reasons in this case which ruled out the

possibility of fabrication of rape charges.

(i) A girl or a woman in the tradition bound non permissive society of India would be extremely

reluctant even to admit that any incident which was likely to reflect on her chastity had ever

occurred.

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(ii) She would be conscious of the danger of being ostracised by the society or being looked

down by the society including her own family members, relatives, friends and neighbours.

(iii) She would have to brave the whole world.

(iv) She would face the risk of losing the love and respect of her own husband and near relatives,

and of her matrimonial home and happiness being shattered.

(v) If she were unmarried, she would apprehend that it would be difficult to secure an alliance

with a suitable match from a respectable or an acceptable family.

(vi) It would almost inevitably and almost invariably result in mental torture and suffering to

herself.

'(vii) The fear of being taunted by others would always haunt her.

(viii) She would feel extremely embarrassed in relating the incident to others being overpowered

by a feeling of shame on account of the upbringing in a tradition bound society where by and

large sex was taboo.

In view of these and similar factors the victims and their relatives were not too keen to bring the

culprit to book. And when in the face of these factors the crime was brought to light there was a

built-in assurance that the charge was genuine rather than fabricated.

The court further held that on principle the evidence of a victim of sexual assault stood on par

with evidence of an injured witness. Just as a witness who had sustained an injury which was not

shown or believed to be self inflicted was the best witness in the sense that he was least likely to

exculpate the real offender, the evidence of a victim of a sex-offence was entitled to a greater

weight, absence of corroboration notwithstanding. And while corroboration in the forms of

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eyewitness account of an independent witness might often be forthcoming in physical assault

cases, such evidence could not be expected in sex offences, having regard to the very nature of

the offence.

It was held that corroboration was not the sine qua non for a conviction in a rape case. In the

Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of

corroboration as a rule, was adding insult to injury. If the evidence of the victim did not suffer

from any basic infirmity, and the ‘probabilities-factor’ did not render it unworthy of credence, as

a general rule, there was no reason to insist on corroboration except from the medical evidence,

having regard to the circumstances of the case, medical evidence could expect to be forthcoming

subjected to be following qualification: Corroboration might be insisted upon where a woman

having attained the majority was found in a compromising position and there was a likelihood of

her having leveled such an accusation on account of instinct of self-preservation or when

probability-factor was found to be out of tune.

It could be observed that the need of the hour was to mould and evolve the law so as to make it

more sensitive and responsive to the demands of the time in order to resolve the basic problem:

“whether, when, and to what extent corroboration to the testimony of a victim of rape was

essential to establish the charge.” And the problem has a special significance for the women in

India, for, while they have often been idolized, adored, and even worshiped, for ages they have

also been exploited and denied even wanted justice - 60 crores anxious eyes of Indian women

were, therefore, focused on this problem.

This is a landmark judgment of the Supreme Court that gave a new insight to deal rape cases

from the victim's perspective. It shows genuine concern for the plight of the victim and realised

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the social circumstances. The testimonial evidence of the victim of rape at least secured a

reasonable place in the scheme of criminal trial and is a welcome departure from the earlier

judicially created barriers between the victim of rape and justice.

In Pramod Mahto v. State of Bihar14, the accused persons entered the house through the roof

after dismantling a portion of it and thereafter they committed rape on the victims while one

accused stood guard over them with a gun in his hands in order to overawe them and made them

submit to the rape committed on them without protest. The court held the accused were guilty of

the offence.

This case would be remembered for having laid down with regard to Explanation I of section 375

that in a case of gang rape it was not necessary that the prosecution should adduce clinching

proof of a complete act of rape by each one of the accused on the victim where there were more

than one in order to find the accused guilty. It also held that even if communal feelings had run

high, it was inconceivable that an unmarried girl and two married women would go to the extent

of staking their reputation and future in order to falsely set up a case of rape on them for the sake

of communal interests.

The faith reposed in the testimony of the victims of gang rape in communally tense situation is a

welcome judgment and true recognition of womanhood.

In Vijayan Pillai v. State of Kerala15, it was held that consent was an act of reason accompanied

by deliberation. Consent meant active will in mind of a person to permit the doing of the act of

and knowledge of what was to be done, or of nature of the act that was being done. Consent

14
Pramod Mahto v. State of Bihar, AIR 1989 SC 1475
15
Vijayan Pillai alias Babu v. State of Kerela, 1989 Cri LJ NOC 202 (Ker.).

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supposed a physical power to act, a moral power of acting and a serious and determined free use

of these powers.

The decision of Kerala High Court in this case is praiseworthy as it gave a correct definition of

consent.

In State of Haryana v. Prem Chand 16 and others, the accused along with one other person

contended that Ravi Shankar committed rape on the victim in the field at Bhawani Khera on two

occasions. Ravi Shankar abducted victim from Bhawani Khera to take her to Jammu, but the two

other accused, who were police officials posted at Bhawani Khera police station, took Ravi

Shankar and the victim, when they arrived at the bus stand of Bhawani on their way to Jammu, to

the said police post and put Ravi Shankar and the victim in different rooms and committed rape

on victim one after the another and thereafter accused took Ravi Shankar and the victim girl to

the railway station and left them there.The Supreme Court reduced the sentence to five years

from ten years. Then the State of Haryana filed this review petition to enhance the sentence. But

it was refused.

It was held that the factors like the character or reputation of the victim were wholly alien to the

very scope and object of section 376 and could never serve either as mitigating or extenuating

circumstances for imposing the sub-minimum sentence with the aid of the proviso to section

376(2). Thus where the Supreme Court in its judgment had used the expression “conduct”in the

lexigraphical meaning for the limited purpose of showing as to how the victim had behaved or

conducted herself in not telling anyone for about five days about the sexual assault perpetrated

on her and it was observed that the peculiar facts and circumstances of the case coupled with the

16
State of Haryana v. Prem Chand and others, AIR 1990 SC 538

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conduct of the victim girl did not call for minimum sentence as prescribed under section 376(2),

it could be said that the Supreme Court neither characterised the victim, as a woman of

questionable character and easy virtue nor made any reference to her character or reputation.

On the question of sentencing, while reducing it from 10 years to five years, it expressed its

opinion that this court was second to none in upholding the decency and dignity of womanhood

and it had not expressed any view in its judgment that character, reputation or status of a rape

victim was a relevant factor for consideration by the court while awarding the sentence to a

rapist.

The Supreme Court judgment in the Suman Rani case is distressing not just because the

policemen who were convicted of custodial rape by three lower courts had their sentence reduced

by half, using the proviso of “adequate and special reasons”, which empowers a court to reduce

the sentence, but because of the reason given by the court for this mitigation. The gist of these is

that victim's character was such that she more or less asked for it and that in the circumstances

the men were not wholly to blame.

Significantly, the Sessions Court judge who gave an earlier ruling in Suman Rani’s case had

stated that all said and done, even a girl of easy virtue was also entitled to all the protection of

law and could not be compelled to sexual intercourse against her will and without her consent.

Offence of rape and other allied offences were created for the protection of fallible, earthly

mortals, and not for goddesses.

In P. Rathinam v. State of Gujarat17, the victim, a tribal woman, was raped in the presence of her

husband by some police officers. A Commission was appointed by the Supreme Court to find out

17
P. Rathinam v. State of Gujarat, 1993(2)SCALE 631

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the true state of affairs. The Commission submitted its report holding the incident to be true and

also pointing out the officers guilty of dereliction of duty in the matter. On the basis of this

report, departmental inquiries were conducted against the officers. When the matter came up for

hearing on 2.4.1993, some of the inquiries were concluded but others were still under process of

completion.

The Government filed an affidavit explaining the stage of inquiry and the reasons for the delay.

On this the Court observed that while it did not propose to deal with the reasons assigned for

delay in finalization in respect of each of the inquiries it must say it was not satisfied with the

reasons assigned.

The inquiries were pending over the last several years. The Court made the following directions:

1. All the inquiries pending as on today should be concluded within three months subject, of

course, to any other order of the stay granted by a competent Court on or before this date. It

directed the said inquiries should proceed unhindered hereafter and should not be stayed by any

Court or Tribunal hereinafter...Any delay or violation of this order, it was made clear, should be

viewed seriously and the person responsible therefore should be answerable.

2. A sum of Rs 50,000/- should be paid as interim compensation, by the State of Gujarat, to

the victim.

This case illustrates the utter brutality and lawlessness indulged in by some of the police

personnel and the ways in which justice is delayed in bringing the culprits to book.

This case is also a notable decision of the Supreme Court in which court suggested to the

government to take steps to enact legislation to ameliorate the plight of the victim of rapes and to

104 | P a g e
provide compensation to them. This welcome trend enhances the prestige of the apex court and

portrays its genuine concern for weaker sections of society.

In Dhananjoy Chatterjee alias Dhana v. State of West Bengal18, the victim, 18 year old school

going girl, was barbarically raped and murdered by the accused, who was the security guard of

the society in which the victim resided.

It was held by the apex court that keeping in view the medical evidence and the state in which

the body of the deceased was found, it was obvious that the most heinous type of barbaric rape

and murder was committed on a helpless and defenseless victim. The faith of the society by such

a barbaric act of the guard, got totally shaken and its cry for justice becomes louder and clearer.

The offence was not only inhuman and barbaric but it was totally ruthless crime of rape followed

by the cold-blooded murder and an affront to the human dignity of the society. The savage nature

of the crime shocked judicial conscience.

The Supreme Court held that measures of punishment in a given case must depend upon the

atrocity of crime; the conduct of the criminal and the defenceless and unprotected state of the

victim. Imposition of appropriate punishment was the manner in which the courts responded to

the society’s cry for justice against the criminals. Justice demanded that courts should impose

punishment befitting the crime so that the courts reflected public abhorrence of the crime. The

courts must not only keep in view the rights of the criminal but also the rights of victim of crime

and the society at large while considering imposition of appropriate punishment.

It was further held that there were no extenuating or mitigating circumstances whatsoever in the

case. The Court agreed that a real and abiding concern for the dignity of human life was required

18
Dhananjoy chatterjee v. State of West Bengal, 1994(2)SCC 220

105 | P a g e
to be kept in mind by the courts while considering the confirmation of the sentence of death but

cold-blooded preplanned brutal murder, without any provocation, after committing rape on an

innocent and defenseless young girl of 18 years, by the security guard certainly made this case a

“rarest of the rare” cases which called for no punishment other than the capital punishment.

The considerations of social and human values and expectations from the apex Court in its

activist form are satisfied by this sensible pronouncement of the apex Court.

In Delhi Domestic Working Women's Forum v. Union of India19 , a public interest litigation was

filed by the petitioner's forum under Article 32 of the Constitution of India.

On 10 Feb 1993 six tribal girls from Bihar, who were working as domestic servants in Delhi,

boarded the Muri Express at Ranchi for Delhi. The train reached Khurja station at 11 P. M. and

while they were all asleep. One of them got up and complained to others that somebody was

teasing her. Then 7 to 8 accused, Army Jawans, came to them and molested them. The accused

threatened the victims that if they raised any hue and cry, they would be thrown out of the

running train. Four of them were raped by the accused. Two of the six girls saved themselves by

hiding under the seats. The victims tried to lodge a complaint but nobody tried to pay heed to

them. As soon as the train reached the New Delhi station, the accused ran here and there but the

victims managed to catch hold of one accused with the help of public and officers of the Army

and FIR was lodged.

Justice Mohan delivering the judgment of the Court drew attention to the defects of the existing

system. First complaints were not given the attention that was warranted and the victim often

said that giving evidence in a rapes trial was an ordeal worse than rape itself. In this context the

19
Delhi domestic working women’s forum v. Union of India, (1995)1SCC14

106 | P a g e
judge cited the views of writers like Jennifer Temkin, Kelly Shapland and Reilly. In view of this

the court found it necessary to give the broad parameters in assisting the victims of rape such as:

1. Complainants of sexual assaults should be provided with legal representation. The

victim's advocate should not only assist her in filing the complaint but also guide her in getting

other kinds of assistance like psychiatric and medical,

2. Legal assistance would have to be provided at the police station as well as in view of the

distressed state of mind of the victim,

3. Police should be under a duty to inform the victim of the right to get representation

before asking her questions and the police report should state that she was so informed,

4. A list of advocates should be prepared who were willing to act in these cases ,

5. Such advocates should be appointed by the Court, but to avoid delay advocates might be

authorised to act in police station before permission from the court had been obtained,

6. A criminal injuries compensation board should be set up,

7. Compensation for the victim should be awarded by the court on the conviction of the

offender and by the criminal injuries compensation board whether or not a conviction had taken

place.

The court, while concluding directed that in view of the provisions contained in section 1 of the

National Commission For Women Act, 1990, the Commission would have to evolve such

scheme as to wipe out the tears of such unfortunate victims; and the scheme should be prepared

within six months from the date of the judgment; and the Union of India should examine and

should take necessary steps for the implementation of the scheme at the earliest.

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No doubt section 357(3) of the CrPC, 1973 enables a criminal court to grant compensation to a

victim but this provision has two drawbacks. Firstly, the award of compensation lies at the

discretion of the court; secondly, if an accused person was not having the means to pay

compensation, the remedy was worthless. In other words there was no obligation on the State to

provide for compensation.

In India, even though rapes, gang rapes and mass rapes have drawn the attention of media, the

law is far behind in providing compensation to the victims of crimes in general. In the light of

the above discussion this judgment is an important landmark step in the direction of upholding

victim's right.

In Bodhisattwa Gautam v. Ms. Subra Chakraborty 20 , the accused had entered into a false

marriage with the victim and she became pregnant. He made her undergo an abortion. He

repeated the same thing again. When she asked him to maintain her, he disowned her on the

ground that there was no marriage. The court whilst refusing the accused request to quash the

prosecution also expatiated on rape law. The court ruled that rape was not merely an offence

under the Penal Code; it was also a violation of woman's right to live with dignity and personal

freedom. Saghir Ahmed, J. speaking on behalf of the Court said:

Rape was thus not only a crime against the person of a woman (victim), it was a crime against

entire society. It destroys the entire psychology of a woman and pushes her into deep emotional

crisis.... It was a crime against basic human right and was also violative of the victim's most

cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. To many

20
Bodhi Sattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922

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feminists and psychiatrists, rape was less a sexual offence than an act of aggression aimed at

degrading and humiliating women.

The court recognized that fundamental rights could be enforced even against private bodies and

individuals. The court held that a court trying a case for rape had jurisdiction to award even

interim compensation during the pendency of the trial. The court ordered that the accused should

pay to the victims a sum of Rs. 1000 every month as interim compensation until the case was

decided. She was entitled to receive arrears of such interim compensation from the date on which

the complaint was filed.

The higher judiciary has shown concern for women's human rights in recent times. The Supreme

Court has also been greatly influenced by the International declarations and conventions on

human rights. An entirely new and very revolutionary illustration of judicial activism was to be

found in this case. This is indeed a very significant decision of the Supreme Court. Justice Saghir

Ahmed rightly said, “the rape law do not, unfortunately, take care of the social aspect of the

matter and were inept in many respects”.

In State of Rajasthan v. Ram Narain21, while the victim, aged between 15 to 17 years, was

returning from her uncle’s house to her parent's house, the accused enticed her by telling her that

other women folk had assembled at the outskirts of the village to go to circus, and induced her

to accompany them. She accompanied them to the outskirts but did not find the womenfolk. The

accused then forced her at knifepoint to accompany them to Sirchi, and then to Jaipur. Later she

was taken to Martipura where one of the accused had sexual intercourse with her. Subsequently,

the father of the victim recovered her from the house of that accused.

21
State of Rajasthan v. Ram Narain, 1996(2) SCALE 34.

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The trial judge found that accused guilty under sections 376,366 and of 342 of the IPC and

sentenced him to seven years imprisonment, and the other accused were also convicted under

sections 366 and 342 of the IPC. The accused appealed against the conviction in the Rajasthan

High Court. The High Court reduced their sentence to the period already undergone, vis., 1 and

1/2 months on the ground that the accused was 18 plus years old when the offence was

committed.

Before the Supreme Court the usual pleas that the victim was the consenting party and that there

was a month’s delay in filing the FIR, were taken. The Court had no difficulty in rejecting the

pleas in view of the victim's age (15 to 17 years) and medical evidence. Setting aside the

judgment of the High Court, the Supreme Court observed that the High Court committed a great

error of law, in reducing the sentence.

The Supreme Court enhanced the sentence of the first accused to five years under section 376

and a fine of Rs 2000/ -. All the accused were convicted under sections 366 and 342 to five years

and one year respectively and a fine of Rs 1000/-. The Court further ordered that the amount of

the fine be paid to the victim.

In Chairman, Railway Board v. Chandrima Das22, a practicing advocate of Calcutta High Court

filed a petition under Article 226 of the Constitution against Chairman, Railway Board Others

claiming compensation for the victim, Bangladeshi National who was gang raped by many

including employees of Railway in a room at Yatri Niwas at Howrah Station of Eastern

Railways.

22
Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988

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On the basis of the facts High Court awarded the sum of Rs. 10 lacs as compensation for victim.

The High Court was of the opinion that rape was committed at Rail Yatri Niwas belonging to

Railways and perpetrated by Railway employees.

The apex court awarded compensation of ten lacks to that alien woman under Article 21 of the

Constitution. The court also relied upon international human rights instruments and observed that

the International Covenants and Declarations as adopted by the United Nations had to be

respected by all signatory States.

This case is a unique example of recognition of human rights of the rape victims and also the

liability of State for acts done by its staff. Victim compensation has also been recognized as the

need of hour in this judgment. The Apex Court had adhered to the principle of ‘Vasudham

Kutumbhkam’ in this case and had been more graceful in awarding compensation to the victim, a

Bangladeshi woman. This activism of the Supreme Court is praiseworthy.

In State Government of N.C.T of Delhi v. Sunil23 , the two accused persons committed rape on

the victim, a little girl, and murdered her after the act. Trial Court held the accused guilty but the

High Court, on appeal, acquitted them.

The Apex court held on consideration of the entire evidence that it had no doubt that the trial

court came to the correct conclusion that the two accused were the rapists who subjected victim

to such savagery ravishment. A Division Bench of the High Court had grossly erred in

interfering with such a correct conclusion made by the trial court, as reasons adopted by the High

Court for such interference were very tenuous. Nonetheless it was difficult to enter upon the

finding that the accused were equally guilty of murder of victim.

23
State Government of NCT of Delhi v. Sunil, 88(2000)DLT 630 (SC)

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It could happen during the course of violent ravishment committed by either both or by one of

the rapists without possibly having any intention or even knowledge that their action would

produce any such injury. Even so, the rapists could not disclaim knowledge that the acts done by

them on a little infant of such a tender age were likely to cause its death. Hence, they could not

escape conviction from the offence of culpable homicide not amounting to murder.

In this case High Court appeared to be determined to question every points rose by the

prosecution that might go against the defence. It clearly shows the indifferent attitude of the

judiciary even at the level of the High Court.

In State of U.P. v. Pappu24, the Court held that even in a case where it is shown that the girl is a

girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the

accused from the charge of rape. It has to be established that there was consent by her for that

particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court

to absolve the accused.

This Court further held that there can be conviction on the sole testimony of the prosecutrix and

in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence,

direct or circumstantial, by which it may get assurance of her testimony.

The Court held, it is well settled that a prosecutrix complaining of having been a victim of the

offence of rape is not an accomplice after the crime. There is no rule of law that her testimony

cannot be acted without corroboration in material particulars.

24
State of U.P. v. Pappu @yunus and another, AIR 2005 SC 1248

112 | P a g e
In Nazir Ahmed v. State of Jammu and Kashmir25, the accused was charged with committing

rape on her divorced wife by allegedly cohabiting with her for seven or eight years after

executing a divorce deed. The fact of execution of divorce deed was not communicated to her

and it was only when she filed an application for maintenance, he pleaded case of divorce. He

had executed a power of attorney in favour of her after execution of her divorce deed where he

had described her as his legally wedded wife and empowered her to do all acts including

execution of sale deeds etc.

The Jammu and Kashmir High court held that it could be said that the divorce deed was just a

paper writing which was never given any legal effect. Cohabitation with the prosecutrix for

seven or eight years continuously as her husband would not amount to rape and he was entitled

to acquittal.

In State of Rajasthan v. Madan Singh26, the accused raped a girl below twelve years of age for

which he was awarded sentence of less than the minimum mandatory sentence. The Supreme

Court held that the reason that the accused was young and the only bread earner in his family

was not adequate and special reasons for imposing less than the minimum punishment and so the

order was liable to be set aside. The measure of punishment in a rape case cannot depend upon

the social status of the victim or the accused. It must depend upon the conduct of the accused,

age of the victim and gravity of the crime.

Crimes of violence against women need to be dealt with severely. The socio-economic status,

religion, race, caste, or creed of the accused or victim are irrelevant in sentencing policy.

25
Nazir Ahmed v. State of Jammu and Kashmir, 2008 CrLJ 2628 (SC).
26
State of Rajasthan v. Madan Singh,2008 CrLJ 1939 (SC).

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Protection of society and deterring the criminal is the avowed object of the law and that is to be

achieved by imposing an appropriate sentence.

In Jaswant Singh v. State of Punjab27, on the night of 25th June, 1989, the prosecutrix was

sleeping in the courtyard of her house and her adoptive parents were also sleeping in the same

courtyard. The prosecutrix around 11p.m. got up to answer the call of nature and at that time all

the three appellants, namely, Kuldeep Singh, Major Singh and Jaswant Singh barged into the

courtyard and gaged her mouth all of a sudden making her totally helpless and immovable.

Kuldip Singh pointed a pistol at her and then all the accused bodily lifted her to the house of

Jaswant Singh.

She could not raise hue and cry as she was in panic. Major Singh and Charan Singh has forcibly

thrown the prosecutrix on a cot. Kuldip Singh removed her clothes forcibly and committed

sexual intercourse with her against her will and consent, and thereafter the rest of the accused

had also committed rape on her. Thereafter the proscutrix was allowed to go. She was threatened

and warned not to disclose the occurrence to her parents. On returning home, the prosecutrix

narrated the occurrence to her parents.

On the following day Surjit Kaur, mother of the prosecutrix informed Gurdev Singh Sarpanch

and Gajjan Singh Lambardar. She then went to police station, Rajkot to inform the police about

the incident but the concerned police did not take any action against the accused. Therefore a

written complaint was filed on July 5, 1989 before Senior Superintendent of Police Ludhiana

which was in turn sent to Deputy Superintendent of Police who visited the village on July 8,

1989 and recorded the statement of the prosecutrix on the basis of which a formal F.I.R. was

27
Jaswant Singh v. State of Punjab,( 2010) 1 Cr L J 41(SC)

114 | P a g e
issued on same day. The sentence of 10 years rigorous imprisonment for rape and 5 years

rigorous imprisonment for abduction was held not liable to be reduced. The alleged dispute over

a common wall was not of such a grave nature as compelling the entire family of prosecutrix to

go to the extent of putting at stake its reputation and fair name of a young girl to settle the scores

with the accused. Therefore the plea of false impliciation raised by the accused was held

untenable.

In Abbas Ahmed Choudhary v. State of Assam28, prosecutrix alleged that she was abducted and

raped by 3 accused persons. But only two of the accused were apprehended by police along with

prosecutrix. Prosecutrix was consistant in attributing rape only to two apprehended accused. As

regards absconding accused though in Court statement she had attributed rape to him also she

had not done so in her statement under Section 164 Criminal Procedure Code.

It was held that the absconding accused was therefore entitled to acquittal. It was also made clear

in this case that testimony of prosecutrix is though entitled to primary consideration, the

principle that prosecution must prove the guilt beyond reasonable doubt still applies. There can

be no presumption that a prosecutrix would always tell the entire story truthfully.

The judicial handling of the various categories of rape is reflected in the decisions rendered by

the Courts from time to time. Though at times broad policy guidelines are expressed by the

Courts, the fact that there is no standard policy uniformly adopted by all the Courts is evident

from a perusal of aforesaid cases. The judicial attitude has been over the period more pragmatic

but the inherent procedural formalities safeguard the accused providing him with the benefit of

doubt and as a result the trauma and ordeal of the rape victim remain largely ignored.

28
Abbas Ahmed Choudhary v. State of Assam, (2010) 2 CrL J 2060 (SC)

115 | P a g e
 CHAPTER-6

CONSTITUTION OF INDIA AND GENDER JUSTICE

The Fundamental rights embodied in the Constitution of India has been declared as a basic

feature of the Indian constitution by the Hon’ble Supreme Court of India. The framers of the

Constitution of India have devoted numbers of provisions in the constitution for the purpose of

promoting gender justice. The Hon’ble Supreme Court of India through its dynamic process of

interpretation has expanded and widened the ambit the part 3 & part 4, so that the dream of the

framers of the constitution comes into reality. In this chapter the researcher would like to

analysis the various provisions relating to the promotion of gender justice and prevention of

sexual harassment and the protection of rights of the rape victims.

6.1 GENDER EQUALITY AND PROTECTION UNDER THE CONSTITUTION

Half of the Indian populations are women. Women have always been discriminated against and

have suffered and are suffering discrimination in silence. Self-sacrifice and self denial are their

nobility and fortitude and yet they have been subjected to all inequities, indignities, inequality

and discrimination.

Madhu Kishwar v. State of Bihar29

29
(1996) 5 SCC 145

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Women enjoy a unique position in every society and country of the world. In spite of their

contribution in all spheres of life, they suffer in silence and belong to a class which is in a

disadvantaged position on account of several barriers and impediments. India being a country of

paradoxes, is no exception. Here too, women, an epitome of Shakti, once given an exalted status,

are in need of empowerment. Empowerment - legal, social, political and economic. However,

empowerment and equality are based on the gender sensitivity of society towards their problems.

The intensification of women's issues and rights movement ail over the world is reflected in the

form of various Conventions passed by the United Nations. These international protections have

helped in the articulation of feminist ideology.

In Bradwell v. State of Illinois30, Justice Bradley of the United States Supreme Court said:

"The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it

for many of the occupations of civil life. The paramount destiny and mission of women are to

fulfill the noble and benign offices of wife and mother. This is the law of the Creator."

It is also worthwhile to quote the words of an eminent American judge who, after tracking the

historical background, explained the need for special provisions being made for women. Thus in

Muller v. Oregon31, it was stated:

“That women's physical structure and the performance of maternal functions places her at a

disadvantage for subsistence is obvious. History discloses the fact that woman has always been

dependent upon man. He established his control at the outset by superior physical strength and

this control in various forms, with diminishing intensity, has continued to the present. Education

was long denied to her, and while now the doors of the school room are opened and her

30
83 US 130(1973)
31
2008 US 412

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opportunities for acquiring knowledge are great, yet even with that and consequent increase of

capacity for business affairs it is still true that in the struggle for subsistence she is not an equal

competitor with her brother. She will still be where some legislation to protect her seems

necessary to secure a real equality or right”.

As late as in 1961 in Hoyt v. Florida32, the United States Supreme Court upheld a law placing a

woman on the jury list only if she made a special request because, as put by Justice Harlan:

“A woman is still regarded as the centre of home and family life.”

Basically, as pointed out by Dicey, 33 the Constitutional theories of Rule of Law and the

Fundamental Rights stemmed from the struggle for individual liberty and were intended to curb

the power of the State. For a long time gender issues were not in the limelight. But as pointed out

by Felix Frankfurter34;

“Our Constitutional guarantees of individual freedoms are not static but are expressions of basic

human values. They transcend day to day shift in majority wishes and hence require redefinition

from time to time to meet narrowly recognised if not narrowly created human needs.”

In our country, the Constitution makers while drafting the Constitution were sensitive to the

problems faced by women and made specific provisions relating to them. The suprema lex, in its

various articles, not only mandates equality of the sexes but also authorises benign

discrimination in favour of women and children to make up for the backwardness which has

been their age-old destiny. But categorical imperatives constitutionalised by the Founding

32
368 US 57 (1961)
33
Dicey, A.V : Introduction to the Study of the Law of the Constitution, Mac Millan, London, 9th Edn.,1952
34
Frankfurter, Felix: Mr. Justice Holmes and the Supreme Court, Harvard University Press Cambridge,
Massachusetts,1938

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Fathers are not self acting and can acquire socio-legal locomotion only by appropriate State

action.35

6.2 CONSTITUTIONAL PROVISIONS

A Constitution is the basic document of a country having a special legal sanctity which sets the

framework and the principal functions of the organs of the Government of a State and declares

the principles governing the operation of these organs. The Constitution aims at creating legal

norms, social philosophy and economic values which are to be effected by striking synthesis,

harmony and fundamental adjustment between individual rights and social interest to achieve the

desired community goals.36

1. Preamble

The Preamble contains the quintessence of the Constitution and reflects the ideals and aspirations

of the people. The Preamble starts by saying that we, the people of India, give to ourselves the

Constitution. The source of the Constitution is thus traced to the people, i.e., men and women of

India, irrespective of caste, community, religion or sex. The framers of the Constitution were not

satisfied with mere territorial unity and integrity. If the unity is to be lasting, it should be based

on social, economic and political justice. Such justice should be equal for all. The Preamble

contains the goal of equality of status and opportunity to all citizens. This particular goal has

35
Justice Krishna Iyer: Crimes Against Women - A Saga of Victimology sans Penology, Edited by O.C.
Sharma, Ashish Publishing House, New Delhi, 1993
36
Myneni, S.R. (Dr): Women & Law, Asia Law House, Hyderabad, 2002

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been incorporated to give equal rights to women and men in terms of status as well as

opportunity. The aspect of social justice is further emphasized and dealt with in the Directive

Principles of State Policy.37

(i) Political Rights

Despite the fact that women participated equally in the freedom struggle and under the

Constitution and Law, have equal political rights as men, enabling them to take part effectively

in the administration of the country has had little effect as they are negligibly represented in

politics. There were only seven women members in the Constituent Assembly and the number

later decreased further. Their representation in the Lok Sabha is far below the expected

numbers.38 This has led to the demand for reservation of 33% seats for women in the Lok Sabha

and Vidhan Sabhas. Political empowerment of women has been brought by the 73rd and 74th

Amendments which reserve seats for women in Gram Panchayats and Municipal bodies.

Illiteracy lack of political awareness, physical violence and economic dependence are a few

reasons which restrain women from taking part in the political processes of the country.

(ii) Economic Rights

There has been a catena of legislation conferring equal rights for women and men. These

legislations have been guided by the provisions of the Fundamental Rights and Directive

37
Alladi Kuppuswami S: The Constitution: What it means to the People, Gogia & Company, Hyderabad,
2000
38
Justice Gulab Gupta: Human Rights and Fundamental Freedoms in India, MPHRC, Bhopal, 2002

120 | P a g e
Principles of State Policy. Here again there is a total lack of awareness regarding economic rights

amongst women. Laws to improve their condition in matters relating to wages, maternity

benefits, equal remuneration and property/ succession have been enacted to provide the

necessary protection in these areas.

(iii) Social justice

For providing social justice to women, the most important step has been codification of some of

the personal laws in our country which pose the biggest challenge in this context. In the area of

criminal justice, the gender neutrality of law worked to the disadvantage of a woman accused

because in some of the cases it imposed a heavy burden on the prosecutrix, for e.g. in cases of

rape and dowry. Certain areas like domestic violence and sexual harassment of women at the

workplace were untouched, unthought of. These examples of gender insensitivity were tackled

by the judiciary and incorporated into binding decisional laws to provide social justice in void

spheres. Although a Uniform Civil Code is still a dream in spite of various directions of the

Court, the enactment of certain legislations like the Pre-Natal Diagnostic Techniques (Prevention

of Misuse) Act and the Medical Termination of Pregnancy Act prevent the violation of justice

and humanity right from the womb. In spite of these laws, their non-implementation gender

insensitivity and lack of legal literacy prevent the dream of the Constitution-makers from

becoming a reality. They prevent the fulfillment of the objective of securing to each individual

dignity, irrespective of sex, community or place of birth.

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In Valsamma Paul v Cochin University39, it was held by the Supreme Court that human rights are

derived from the dignity and worth inherent in human beings. Human Rights and fundamental

freedom have been reiterated by the Universal Declaration of Human Rights and they are

interdependent and have mutual reinforcement. The human rights of women including girl child

are therefore, an inalienable integral and indivisible part of universal human rights. The full

development of personality and fundamental freedom of women and their equal participation in

political, social, economic and cultural life are concomitants for national development, social and

family stability and growth culturally, socially and economically. All forms of discrimination on

grounds of gender are violative of fundamental freedom and human rights.

2. Fundamental Rights

Human Rights which are the entitlement of every man, woman and child because they are human

beings have been made enforceable as constitutional or fundamental rights in India. The framers

of the Constitution were conscious of the unequal treatment and discrimination meted out to the

fairer sex from time immemorial and therefore included certain general as well as specific

provisions for the upliftment of the status of women.

Justice Bhagwati in Maneka Gandhi v. Union of India40, said:

“These fundamental rights represent the basic values cherished by the people of this country

since the Vedic times and they are calculated to protect the dignity of the individual and create

conditions in which every human being can develop his personality to the fullest extent.”

39
(1996) 3 SCC 545
40
(1978) 1 SCC 248: AIR 1978 SC 597

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Thus, Part III of the Constitution consisting of Articles 12-35 is the heart of the Constitution.

(i) Equality

Article 14 of the Constitution provides equality before law. It provides that:

"The State shall not deny to any person equality before the law or the equal protection of the

laws within the territory of India."

Article 14 embodies the general principle of equality before law and prohibits unreasonable

discrimination between persons. Article 14 is an epitome of the noble ideals expressed in the

Preamble of the Constitution.

Article 15 specifically prohibits discrimination on the ground of sex. It states that:

(1) “The State shall not discriminate against any citizen on grounds only of religion, race,

caste, sex, place of birth or any of them.

(2) No citizen shall on grounds only of religion, race, caste, sex, place of birth or any of them

be subject to any disability, liability, restriction or condition with regard to:

(a) access 10 shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained

wholly or partly out of State funds or dedicated to the use of general public.

(3) Nothing in this Article shall prevent the State from making any special provision for

women and children.

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(4) Nothing in this Article or in clause (2) of Article 29 shall prevent the State from making

any special provision for the advancement of any socially and educationally Backward Classes

of citizens or for the Scheduled Castes and Scheduled Tribes.”

Thus Article 15(1) prohibits gender discrimination and Article 15(3) lifts that rigor and permits

to the State positively discriminate in favour of women to make special provisions to ameliorate

their social condition and provide political, economic and social justice. The Stale in the field of

Criminal Law, Service Law, Labour Law, etc. has resorted to Article 15(3) and the Courts, too,

have upheld the validity of these protective discriminatory provisions on the basis of

constitutional mandate.

Article 16 of the Constitution provides equality of opportunities for all and prohibits

discrimination against women. It states that:

1. There shall be equality of opportunity for all citizens in matters relating to employment or

appointment to any office under the State.

2. No citizen shall, on ground only of religion, race, caste, sex, descent, place of birth,

residence or any of them be ineligible for or discriminated against in respect of any employment

or office under the State.

The Constitution, thus, provides equal opportunities for women implicitly as they are applicable

to all persons irrespective of sex. However, the Courts realise that these Articles reflect only de

jure equality to women. They have not been able to accelerate de facto equality to the extent the

Constitution intended.

124 | P a g e
In C.B. Muthumma v. Union of India41, a writ petition was filed by Ms Muthamma, a senior

member of the Indian Foreign Service, complaining that she had been denied promotion to Grade

I illegally and unconstitutionally. She pointed out that several rules of the civil service were

discriminatory against women. At the very threshold she was advised by the Chairman of the

UPSC against joining the Foreign Service. At the time of joining she was required to give an

undertaking that if she married she would resign from service. Under Rule 18 of the Indian

Foreign Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1961, it was provided that

no married woman shall be entitled as of right to be appointed to the service. Under Rule 8(2) of

the Indian Foreign Service (Conduct and Discipline) Rules, 1961, a woman member of the

service was required to obtain permission of the Government in writing before her marriage was

solemnized. At any time after the marriage she could be required to resign if the Government

was confirmed that her family and domestic commitments were likely to come in. the way of the

due and efficient discharge of her duties as a member of the service. On numerous occasions the

petitioner had to face the consequences of being a woman and thus suffered discrimination,

though the Constitution specifically under Article 15 prohibits discrimination on grounds of

religion, race, caste, sex or place of birth and Article 4 provides the principle of equality before

law.

The Court through V.R. Krishna Iyer and P.N. Singhal, JJ. held that:

"This writ petition by Ms Muthamma, a senior member of the Indian Foreign Service, be speaks

a story which makes one wonder whether Articles 14 and 16 belong to myth or reality. The

credibility of the Constitutional mandates shall not be shaken by governmental action or inaction

but it is the effect of the grievance of Ms Muthamma that sex prejudice against Indian

41
(1979) 4 SCC 260

125 | P a g e
womanhood pervades the service rules even a third of a century after Freedom. There is some

basis for the charge of bias in the rules and this makes the ominous indifference of the executive

to bring about the banishment of discrimination in the heritage of service rules. If high officials

lose hopes of equal justice under the rules, the legal lot of the little Indian, already priced out of

the expensive judicial market, is best left to guess."

Commenting further on the discriminatory rules the Court said:

"Discrimination against woman, in traumatic transparency, is found in this rule. If a woman

member shall obtain the permission of government before she marries, the same risk is run by

government if a male member contracts a marriage. If the family and domestic commitments of a

woman member of the service is likely to come in the way of efficient discharge of duties, a

similar situation may arise in the case of a male member. In these days of nuclear families,

intercontinental marriages and unconventional behaviour, one fails to understand the naked bias

against the gentler of the species."

Expressing its opinion on Rule 18 of the Indian Foreign Service (Recruitment, Cadre, Seniority

and Promotion) Rules, 1961, the Court observed:

"At the first blush this rule is defiance of Article 16. If a married man has a right, a married

woman, other things being equal, stands on no worse footing. This misogynous posture is a

hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for

national freedom was also a battle against woman's thraldom. Freedom is indivisible, so is

justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically

ignored vis-a-vis half of India's humanity, viz. our women, is a sad reflection on the distance

between Constitution in the book and Law in action. And if the executive as the surrogate of

126 | P a g e
Parliament makes rules in the teeth of Part III, especially when high political office, even

diplomatic assignment has been filled by women, the inference of diehard allergy to gender

parity is inevitable." Striking down the rules as violating the principle of equality, it was said:

"We do not mean to universalise or dogmatise that men and women arc equal in all occupations

and all situations and do not exclude the need to pragmalise where the requirements of particular

employment, the sensitivities of sex or the handicaps of either sex may compel selectivity. Bui

save where the differentiation is demonstrable the rule of equality must govern."

While Justice Krishna Iyer had no difficulty in striking down the discriminatory provision in the

Indian Foreign Service Rules the same could not be said in Air-India v. Nargesh Meerza.42 In

this ease, the air hostesses of the Air-India International Corporation had approached the

Supreme Court against, again, discriminatory service conditions in the Regulations of Air-India.

The Regulations provided that an air hostess could not get married before completing four-years

of service. Usually an air hostess was recruited at the age of 19 years and the four-year bar

against marriage meant that an air hostess could not get married until she reached the age of 23

years. If she married earlier, she had to resign and if after 23 years she got married, she could

continue as a married woman but had to resign on becoming pregnant. If an air hostess survived

both these fillers, she continued to serve until she reached the age of 35 years. It was alleged on

behalf of the air hostesses that those provisions were discriminatory on the ground of sex as

similar provisions did not apply to male employees doing similar work.

The Supreme Court upheld the first requirement that an air hostess should not marry before the

completion of four years of service. The court held that:

42
(1981) 4 SCC 335

127 | P a g e
"It was a sound and salutary provision. Apart from improving the health of the employee it helps

a great deal in the promotion and boosting up of our family planning programme."

However, this argument given by the Court came in for criticism that as the requirements of age

and family planning were warranted by the population policy of the State and once the State had

fixed the age of marriage, i.e. 18 years, the reasoning advanced for upholding the rule was a

camouflage for the real concern.

The Supreme Court struck down the Air-India Regulations relating to retirement and the

pregnancy bar on the services of Air hostesses as unconstitutional on the ground that the

conditions laid down therein were entirely unreasonable and arbitrary. The impugned Regulation

46 provided that an air hostess would retire from the service of the corporation upon attaining the

age of 35 years or on marriage, if it took place within 4 years of service, or on first pregnancy,

whichever occurred earlier. Under Regulation 7, the Managing Director was vested with absolute

discretion to extend the age of retirement prescribed at 45 years, Both these regulations were

struck down as violative of Article 14 which prohibits unreasonableness and arbitrariness.

In Yousuf Abdul Aziz v. State of Bombay43, the validity of Section 497 of the Indian Penal Code,

which punishes only a male participant in the offence of adultery and exempts the woman from

punishment, was challenged as violative of Articles 14 and 15(1) of the Constitution. The

petitioner contended that even though the woman may be equally guilty as an abettor, only the

man was punished, which violates the right to equality on the ground of sex. The Supreme Court

upheld the validity of the provision on the ground that the classification was not based on sex

alone. The court obviously relied upon the mandate of Article 15(3) to uphold this provision.

43
AIR 1954 SC 321

128 | P a g e
The constitutionality of Section 497, IPC, 1860, was again challenged before the Supreme Court

in Sowmithri Vishnu v. Union of India44. Here the petitioner challenged the validity of the section

on the ground that it violated gender equality. It was contended on her behalf that the section of

adultery punished the man who had illicit relations with another person's wife but did not punish

the woman who was a party to adultery. The section enabled the husband to prosecute the

paramour of his wife but did not allow a wife to prosecute the woman who had an adulterous

relationship with her husband and therefore violated Article 15(2) of the Constitution which

forbade discrimination on the ground of sex. The discrimination was between an adulterer and an

adulteress because, while the former could be prosecuted, the latter could not be prosecuted.

Further there was a discrimination between a married woman and an unmarried woman or a

widow or a divorcee because while a man's illicit relations with a married woman constituted the

offence, his illicit relations with any other woman did not constitute an offence.

Negating the contentions, the Court observed that it is commonly accepted thai it is the man who

is the seducer and not the woman. Women were not punishable for adultery because they were

less likely lo indulged in it. The Supreme Court refused to intervene and upheld the validity of

the section holding that:

"the wife is a victim and not the author of crime".

Similarly in Toguru Sudhakar Reddy v. State of Tamil Nadu45 the nomination of women in co-

operative societies to bring in their guaranteed minimum representations was upheld.

Reservations of seats for women in local bodies or in educational institutions have been upheld.

The Supreme Court in Govt. of A, P. v. P.B. Vijayakumar46, held that reservation to the extent of

44
1985 Supp SCC 137
45
AIR 1992 AP 19

129 | P a g e
30% made in the State Services by the Andhra Pradesh Government for women candidates was

valid. The Division Bench of the Supreme Court emphatically declared that the power conferred

upon the State by Article 15(3) is wide enough to cover the entire range of State activity

including employment under the State. The power conferred by Article 15(3) is not whittled

down in any manner by Article 16, In Dattatrey v, State of Bombay47, the Bombay High Court,

held that the State can establish educational institutions only for women.

In Madhu Kishwar v. State of Bihar 48 , the Supreme Court dealt with the validity of the

Chotanagpur Tenancy Act, 1908 of Bihar which denied the right of succession to Scheduled

Tribe women as violative of the right to livelihood. The majority judgment however upheld the

validity of legislation on the ground of custom of inheritance/succession of Scheduled Tribes.

Dissenting with the majority, Justice K. Ramaswamy felt that the law made a gender-based

discrimination and that it violated Articles 15, 16 and 21 of the Constitution. In his dissenting

judgment he said:

"Legislative and executive actions must be conformable to and for effectuation of the

fundamental rights guaranteed in Part III, Directive Principles enshrined in Part IV and the

Preamble of the Constitution which constitute the conscience of the Constitution. Covenants of

the United Nations add impetus and urgency to eliminate gender-based obstacles and

discrimination, Legislative action should be devised suitably to constitute economic

empowerment of women in socio-economic restructure tor establishing egalitarian social order."

46
(1995) 4 SCC 520 : 1995 SCC (L &S) 1056. Also see Vijay Lakshmi Vs Punjab University, (2003) 8 SCC 440:
AIR 2003 SC 3331
47
AIR 1953 Bom 311
48
(1996) 5 SCC 145

130 | P a g e
Another historic judgment with reference to gender equality is Githa Hariharan v. Reserve Bank

of India49, where the court held that the mother can act as a natural guardian even when the

father is alive. Word 'After' in Section 6(a) of the Hindu Minority and Guardianship Act, 1956

was read to mean 'in the absence of father', so that the section is consistent with the constitutional

safeguard of gender equality. The court observed:

"Gender equality is one of the basic principles of our Constitution and in the event the word

'after' is to be read to mean a disqualification of a mother to act as a guardian during the lifetime

of the father. The same would definitely run counter to the basic requirement of the

constitutional mandate and would lead to a differentiation between male and female. Normal

rules of interpretation shall have to bow down to the requirement of the Constitution since

Constitution is supreme and the statute shall have to be in accordance therewith and not de hors

the same. The father by reason of a dominant personality cannot be ascribed to have a

preferential right over the mother in the matter of guardianship since both fall within the same

category and in that view of the matter the word 'after' shall have to be interpreted in terms of

constitutional safeguards and guarantee so as to give a proper and effective meaning to the word

used."

49
(1999) 2 SCC 228: AIR 1999 SC 1149

131 | P a g e
(ii) Right to livelihood

A very important case concerning Bar Girls came before the High Court and the decision was

given in the Indian Hotel and Restaurants Assn. (AHAR) v. State of Maharashtra50. In the instant

case the petitioner establishments carried on three distinct activities, namely,

(i) service of food;

(ii) performance of music and dance;

(iii) service of liquor in an independent and demarcated room approved by the Collector /

Licensing Authority.

It was pleaded that the activity of sale and consumption of foreign liquor is an activity

independent of the rest of the establishment and is restricted to the demarcated and designated

room approved by the Collector for sale and consumption of liquor. On certain days sale of

liquor is prohibited while the rest of the establishment is allowed to function like sale of food and

amusement performances.

(i) Amendment of 2005, made to the Bombay Police Act which inserted Sections 33-A and

33-B prohibited holding of performances of dance of any type or kind in an eating house, permit

room or beer bar, was challenged on grounds, inter-alia, that—

(ii) legislative incompetence and as colourable exercise of power or fraud on constitution;

(iii) violative of Article 19(1) (a) i.e. freedom of speech and expression and freedom of

occupation;

50
AIR 2006 (NOC) 901 (Bom)

132 | P a g e
(iv) Restriction imposed has no nexus with object of prevention of exploitation of women and

therefore is not reasonable.

Declaring Section 33-A of the Bombay Police Act as violative of Article 19(1 )(g) and therefore

void, the Court stated that the object of the legislation was prohibition of dances which were

obscene or vulgar which amounted to derogation of women and also to prevent their

exploitation. Women can still dance in the exempted establishments Tamashas and Lavanis.

They can also work as waiters or any other allied jobs in the prohibited establishments. In other

words there is no nexus between the banning of dancing in the prohibited establishment and the

object of prevention of exploitation of women in those establishments. To prevent dances which

are obscene or vulgar, rules are still in force. It was admitted that police force in Mumbai was

sufficient to control dance bars. Assuming that there may have been bad practices in dance bars,

the State itself had directed enacting of subordinate legislation io remove malpractices. These

dances which are held to be a class by themselves could be prohibited but there is no reason why

similar dances which are permitted in the exempted establishments cannot be permitted. Dance is

a form of expression and it is accepted that dancing is a part of the fundamental rights the right to

express oneself. An artistic expression is a part of right of speech and expression.

The Act bans all dancing including the dances which are permitted in exempted establishments

and which are governed by same rules and conditions of license. If women other than dancers

can work in establishments and that does not amount to exploitation, it is difficult to understand

why when women dance to earn their livelihood, it becomes exploitation. The restriction insofar

as it prevents the bar owners from having the same or similar dances as in exempted

establishments and the bar dancers from performing dances other than those which can be

restricted, is unreasonable and not in public interest and consequently void.

133 | P a g e
(iii) Right to live with Dignity

Gender equality becomes elusive in the absence of right to live with dignity.

In Neera Mathur v. LIC51, the court recognized that privacy was an important aspect of personal

liberty. In this case, the Supreme Court was shocked to learn that an LIC questionnaire sought

information about the dates of menstrual periods and past pregnancies, and the petitioner was

terminated for not providing correct information to the LIC. The Supreme Court held that the

questionnaire amounted to invasion of privacy and that, therefore, such probes could not be

made. The right to personal liberty guaranteed under Article 21 included the right to privacy.

Information about health could be sought where such information was relevant — it was relevant

for selling insurance cover but not for the person seeking employment.

In Surjit Singh v. Kanwaljit Kaur52, the High Court held:

"Allowing the medical examination of a woman for her virginity would certainly violate her

right of privacy and personal liberty enshrined under Article 21 of the Constitution. Such an

order would amount to a roving enquiry against a female who are vulnerable even otherwise. In

the instant matrimonial case the question of virginity of the wife is not in issue and the virginity

lest cannot constitute the sole basis to prove the consummation of marriage. Allowing such a

medical examination of the wife would be holding a roving enquiry which is not permissible.

Thus, order of Lower Court dismissing application by husband for getting wife medically

examined in order lo prove her virginity is proper."

51
(1992) 1 SCC 286
52
AIR 2003 P & H 353

134 | P a g e
In Bodhisattwa Gautam v. Subhra Chakraborty 53the complainant, a student, was induced by the

accused, a teacher, on false assurance of marriage to cohabit with him. He not only made false

assurance of marriage but also fraudulently went through marriage ceremonies. When she

became pregnant the accused made her undergo an abortion. When she asked him to maintain

her, he disowned her on the ground that there was no marriage. He was prosecuted under various

sections of the IPC. The Supreme Court refusing to quash the prosecution ruled that rape was not

only an offence under the Penal Code but was also a violation of a woman's right to live with

dignity and personal freedom.

"... It is a crime against basic human right and it is also violative of victim's most cherished of

Fundamental Rights, namely, the right to life contained in Article 21. To many feminists and

psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and

humiliating women."

In State of Maharashtra v. Madhukar N. Mardikar54, the Supreme Court said with reference to

rape, that unchastity of a woman does not make her "open to any and every person to violate her

person as and when he wishes". Even a prostitute has a right to privacy under Article 21 and no

person can rape her just because she is a woman of easy virtue.

Another dynamic judgment with reference to Article 21 is Chairman, Railway Board v.

Chandrima Das55. The Court in this case observed that the word 'life' as used in the Universal

Declaration must gel the same meaning as in Article 21. Its meaning cannot be narrowed down.

Here relief was provided to a Bangladeshi woman who was raped, The term life in the

53
(1996) 1 SCC 490
54
(1991) 1 SCC 57
55
(2000) 2 SCC 465: AIR SC 988

135 | P a g e
International Conventions relating to Human Rights and Article 21 were interpreted to mean life

worth living, meaningful and dignified.

In Vishaka v. State of Rajasthan56, the Supreme Court, in the absence of legislation in the field of

sexual harassment of working women at their place of work, formulated guidelines for their

protection, The Court said:

"Gender equality includes protection from sexual harassment and right So work with dignity

which is a universally recognised basic human light. The common minimum requirement of this

right has received global acceptance, in flic ahsence of domestic law occupying the field, to

formulate effective measures to check die evil of sexual harassment of working women at all

workplaces, the contents of international conventions and norms arc significant for the purpose

of interpretation of the guarantee of gender equality, right to work with human dignity in Articles

14, 15, 19(l)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit

therein and for the formulation of guidelines to achieve this purpose."

In the matter of personal law there are certain spheres where there is violation of Article 21,

especially in cases of restitution of conjugal rights. In Sareetha v. Venkata Subbaiah57, the Court

held Section 9 of Hindu Marriage Act violative of Article 21 of the Constitution. But in later

cases,58 the decision was overruled by the Supreme Court.

56
(1997) 6 SCC 241
57
AIR 1983 AP 356
58
Harvinder Kaur v.Harmander, AIR 1984 Del 66 and Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4
SCC 90: AIR 1984 SC 1562

136 | P a g e
(iv) Right against Exploitation

Article 23 of the Constitution specifically prohibits traffic in human beings. Trafficking in

human beings has been prevalent in India for a long time in the form of prostitution and selling

and purchasing of human beings. This includes the devadasi system prevalent in Andhra

Pradesh. To give meaning to Article 23 various laws have been passed to prevent exploitation of

human beings in varied forms. The Immoral Traffic (Prevention) Act, 1956 and the A,P.

Devadasis (Prohibition of Dedication) Act, 1988 are legislations which prohibit the practice of

prostitution and dedication of devadasis respectively.

In Gaurav Jain v. Union of India59, the condition of prostitutes in general and the plight of their

children in particular was highlighted. The Court issued directions for a multipronged approach

and mixing the children of prostitutes with other children instead of making separate provisions

for them. The Supreme Court issued directions for the prevention of induction of women in

various forms of prostitution. It said that women should be viewed more as victims of adverse

socio-economic circumstances than offenders in our society.

3. Directive Principles of State Policy

Fundamental Rights cater to individual rights while the Directive Principles of State Policy cater

to social needs, These provisions are contained in Part IV of the Constitution, Though these

Principles are not enforceable in any court of law they are fundamental in the governance of the

country and provide for the welfare of the people, including women.

59
(1997) 8 SCC 114

137 | P a g e
Article 39(a) directs the State to direct its policy towards securing that citizens, men and women,

equally have the right to an adequate means of livelihood.

Article 39(d) directs the State to secure equal pay for equal work for both men and women. The

State in furtherance of this directive passed the Equal Remuneration Act, 1976 to give effect to

the provision.

Article 39(e) specifically directs the State not to abuse the health and strength of workers, men

and women.

Article 42 of the Constitution incorporates a very important provision for the benefit of women.

It directs the State to make provisions for securing just and humane conditions of work and for

maternity relief.

The State has implemented this directive by incorporating health provisions in the Factories Act,

Materniiy Benefit Act, Beedi and Cigar Workers (Conditions of Employment) Act, etc.

(i) Uniform Civil Code

Article 44 directs the State to secure for citizens a Uniform Civil Code applicable throughout the

territory of India, Its particular goal is towards the achievement of gender justice. Even though

the State has not yet made any efforts to introduce a Uniform Civil Code in India, the judiciary

has recognised the necessity of uniformity in the application of civil laws relating to marriage,

succession, adoption, divorce, maintenance, etc. but as it is only a directive it cannot be enforced

in a court of law.

The issue of a Uniform Civil Code has been controversial right from the very beginning. The

138 | P a g e
Constituent Assembly Debates clearly bring out the fact that there was a lot of opposition to

incorporating Article 44 60 , particularly from the members of the Muslim community in the

Assembly61. The scathing attacks on the idea of having a Uniform Civil Code in India were made

on the grounds that religious freedom permits them to be governed by the laws of their

community in personal matters. There cannot be a Uniform Civil Code for such a diverse

population with different religious faiths, customs, festivals, food and culture. Before

Independence, the foreign rulers did not meddle with the personal laws of the people and allowed

them to be governed by their own laws and customs in matters of marriage, divorce, succession

and property. However, one of the most dynamic members of the Assembly, Shri K.M. Munshi,

expressed his opinion that:62 “if the personal law of inheritance, succession, etc. is considered as

a part of religion, the equality of women can never be achieved."

The Chairman of the Drafting Committee, Dr B.R. Ambedkar, stated that in our country there

practically is a Civil Code, uniform in its content and applicable to the whole of the country. He

cited many instances like the Uniform Criminal Law, the Transfer of Property and the

Negotiable Instruments Acts which are applicable lo one and all. However he conceded that the

only provinces the civil law has not been able to invade, so far, are marriage and succession. He

also dispelled the arguments of certain Muslim members that the Muslim Law is immutable and

uniform throughout India. He cited the example of the North-West Frontier Province which was

not subject to the Shariat Law prior to 1935 and until then followed Hindu Law in matters of

succession, etc.63 The objections to a Uniform Civil Code were thus met by pointing out:

60
Art.35 in the Draft Constitution
61
CAD Book No.2.Vol.III.pp.538-542
62
CAD Book No.2, Vol. III. 548
63
Page 550 Ibid

139 | P a g e
(a) that India had already achieved a uniformity of law over a vast area;

(b) though there was diversity in personal laws, there was nothing sacrosanct about them;

(c) the secular activities such as inheritance covered by personal laws should be separated

from religion;

(d) that a uniform law applicable to ail would promote national unity; and

(e) that no legislature would forcibly amend any personal law in future if people were

opposed to it,

Not much progress has so far been made towards achieving the ideal of a Uniform Civil Code

which still remains a distant dream. The only tangible step taken in this direction has been the

codification and secularisation of Hindu Law. The codification of Muslim Law still remains a

sensitive matter. It is necessary that law be divorced from religion. With the enactment of a

Uniform Civil Code the rights, especially of women, can be secured. The Courts have definitely

taken a progressive step in that direction.

After initial hesitation, the judiciary has taken note of the injustice done to women in personal

matters. The Court has been voicing its concern through a few judgments indicating the urgency

to have uniformity in personal laws. One such important case in which the Court voiced its

concern is Mohd. Ahmed Khan v. Shah Bano Begum64, pertaining to the liability of a Muslim

husband to maintain his divorced wife, beyond the period of Iddat, if the wife is not able to

maintain herself. The Supreme Court in this case held that Section 125 of the Criminal Procedure

Code which imposes such obligation on all the husbands is secular in character and is applicable

64
(1985) 2 SCC 556 : 1985 SCC (Cri) 245

140 | P a g e
to all religions. It applies to all Indians generally and overrides the personal law if there is a

conflict between the two. The Court, through Chief Justice Y.V. Chandrachud, held:

"It is also a mailer of regret that Article 44 of our Constitution has remained a dead letter. . . .

There is no evidence of any official activity for framing a common civil code for the country. A

belief seems to have gained ground that it is for the Muslim community to take a lead in the

mailer of reforms of their personal law. A Common Civil Code will help the cause of national

integration by removing disparate loyalties to laws which have conflicting ideologies. No

community is likely to bell the cat by making gratuitous concessions on this issue. It is the State

which is charged with the duty of securing a Uniform Civil Code for the citizens of the country

and. unquestionably it has the legislative competence to do so.

A counsel in the case whispered, somewhat audibly, that legislative competence is one thing the

political courage to use that competence is quite another. We understand the difficulties involved

in bringing persons of different religions on a common platform. But a beginning has to be made

if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed

by the Courts because it is beyond the endurance of sensitive minds to allow injustice to be

suffered when it is so palpable. But piecemeal attempts of Courts to bridge that gap between

personal laws cannot take the place of a Common Civil Code. Justice to all is a far more

satisfactory way of dispensing justice than justice from case to case."

The obiter in this historic judgment rocked the Muslim community, leading to the enactment of

the Muslim Women's (Protection of Rights on Divorce) Act, 1986.

141 | P a g e
The constitutionality of this Act was challenged in Danial Latifi v. Union of India 65 . The

petitioners, inter alia, submitted that provisions under Section 125, CrPC reflected the moral

stance of the law and ought not to have been entangled with religion and religion-based personal

laws; that the Act is violative of Articles 14 and 21. The Supreme Court; while upholding the

validity of the Act observed, observed that if on a rule of construction a given statute will

become ultra vires or "unconstitutional" and, therefore, void, whereas on another construction

which is permissible, the statute remains effective and operative, the Court will prefer the latter

on the ground that the legislature does not intend to enact unconstitutional laws.

"Before the passing of the impugned Act, a Muslim woman who was divorced by her husband

was grained a right to maintenance from her husband under the provisions of Section 125 CrPC

until she may remarry and such a right if deprived would not be reasonable, just and fair. Thus

the provision of the Act depriving the divorced woman of such a right to maintenance from her

husband and providing for her maintenance to be paid by the former husband only for the period

of iddat and thereafter to make her run from pillar to post in search of her relatives one after the

other and ultimately to knock at the doors of the Wakf Board does not appear to be a reasonable

and fair substitute of the provisions of Section 125 CrPC. Such deprivation of the divorced

Muslim women of their right to maintenance from their former husbands under the beneficial

provisions of the Code of Criminal Procedure which are otherwise available to all other women

in India cannot be stated to have been effected by a reasonable, right, just and fair law and, if

these provisions are less beneficial than the provisions of Chapter IX of CrPC, a divorced

Muslim woman has obviously been unreasonably discriminated against and deprived of the

provisions of the general law as indicated under the Code which are available to Hindu,

65
(2001) 7 SCC 740

142 | P a g e
Buddhist, Jain, Parsi or Christian women or women belonging to any other community. The

provisions prima facie, therefore, appear to be violative of Article 14 of the Constitution

mandating equality and equal protection of law to all persons otherwise similarly circumstanced

and also violative of Article 15 of the Constitution which prohibits any discrimination on the

ground of religion or the Act would obviously apply to Muslim divorced women only and solely

on the ground of their belonging to Muslim religion.”

The Court clarified that to construe the provisions of the Act as less beneficial than provisions of

Chapter IX CrPC and hold husbands liable to pay maintenance only for the iddat period would

result in unreasonable discrimination against divorced Muslim women and would render the Act

violative of Articles 14, 15 and 21.

Therefore, the Court concluded:

"(1) A Muslim husband is liable to make reasonable and fair provision for the future of the

divorced wife which obviously includes her maintenance as well. Such a reasonable and fair

provision extends beyond the iddat period in terms of Section 3(1)(a) of the Act.

(2) Liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the

Act to pay maintenance is not confined to the iddat period.

(3) A divorced Muslim woman who has not remarried and who is not able to maintain

herself after the iddat period can proceed as provided under Section 4 of the Act against her

relatives who are liable to maintain her in proportion to the properties which they inherit on her

death, according to Muslim Law, from such divorced woman including her children and parents.

If any of the relatives are unable to pay maintenance, the Magistrate may direct the Slate Wakf

Board established under the Act to pay such maintenance.

143 | P a g e
(4) The provisions of the Act do not offend Articles 14, 15 and 21."

The Supreme Court further observed;

"In interpreting the provisions where matrimonial relationship is involved, the social conditions

prevalent in society have to be considered. In Indian society, whether they belong to the majority

or the minority group, what is apparent is that there exists a great disparity in the matter of

economic resourcefulness between a man and a woman. Indian society is male dominated, both

economically and socially and women are assigned, invariably, a dependent role, irrespecting of

the class of society to which they belong. A woman on her marriage, very often, though highly

educated gives up all her other vocations and entirely devotes herself to the welfare of the

family, in particular she shares with her husband her emotions, sentiments, mind and body, and

her investment in the marriage is her entire life, a sacramental sacrifice of her individual self, and

is far too enormous to be measured in terms of money. When a relationship of this nature breaks

up, there can be no answer to the question as to how a woman can be compensated so far as

emotional fracture or loss of investment is concerned. It is a small solace to say that such a

woman should be compensated in terms of money towards her livelihood and such a relief which

partakes basic human rights to secure gender and social justice is universally recognised by

persons belonging to all religions and it is difficult to perceive that Muslim Law intends to

provide a different kind of responsibility by passing on the same to those unconnected with the

matrimonial life such as the heirs who were likely to inherit the properly from her or the Wakf

Boards. Such an approach appears to be a kind of distortion of the social facts. Solutions lo such

societal problems of universal magnitude pertaining to horizons of basic human rights, culture,

dignity and decency of life and dictates of necessity in the pursuit of social justice should be

144 | P a g e
invariably left to be decided on considerations other than religion or religious faith or beliefs or

national, sectarian, racial or communal constraints."

Again, the matter of a Uniform Civil Code cropped up in Sarla Mudgal v. Union of India66. An

organisation called 'Kalyani' through its President brought before the Supreme Court four cases

which involved fake conversion to Islam by Hindu husbands to contract bigamous marriages.

The decision of the Supreme Court was sought on the following questions:

(1) Whether a Hindu husband married under Hindu Law, by embracing Islam can solemnise

a second marriage?

(2) Whether such a marriage without having the first marriage dissolved under law would be

a valid marriage qua the first wife who continues to be a Hindu?

(3) Whether the apostate husband would be guilty of an offence under Section 494 of the

Indian Penal Code?

The Court referred to various decisions on the subject and came to the conclusion that a marriage

celebrated under one personal law cannot be dissolved by the application of another personal law

to which one of the spouses converts and other refuses to do so. Where a marriage takes place

under the Hindu Law the parties acquire a status and certain rights by marriage itself under the

law governing the Hindu marriage. If one of the parties is allowed to dissolve the marriage by

adopting and enforcing a new personal law, it would tantamount to destroying the existing rights

of the other spouse who continues to be a Hindu. According to the Court, a Hindu marriage can

be dissolved on any of the grounds specified in the Act. Until the marriage is so dissolved, none

66
(1995) 3 SCC 635 : 1995 SCC (Cri) 569

145 | P a g e
can marry again. Conversion to Islam and marrying again would not, by itself, dissolve the

Hindu Marriage. In a much publicised judgment, the Court commented:

"Since Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause

of the national unity and integration, some other communities would not, though the Constitution

enjoins the establishment of a common civil code, for the whole of India. . . . Those who

preferred to remain in India after partition, fully knew that the Indian Leaders did not believe in

two-nation or three-nation theory and that in the Indian Republic there was to be only one

Nation, the Indian Nation and no community could claim to remain a separate entity on the basis

of religion. In this view of the matter no community can oppose the introduction of Common

Civil Code for all citizens in the territory of India."67

Kuldip Singh, J., in his judgment referred to the observations of Chandrachud, CJ. in Shah Bano

and of Chinappa Reddy, J. in Jorden Diengdeh case urging the Union Government to evolve the

Uniform Civil Code. He then proceeded to say that:

"One wonders how long will it take for the government of the day to implement the mandate of

the framers of the Constitution under Article 44 of the Constitution of India.

…There is no justification whatsoever in delaying indefinitely the introduction of a uniform

personal law in the country."

The Supreme Court urged the Government of India through the Prime Minister to have a fresh

look at Article 44.

67
(1995) 3 SCC 633: 1995 SCC (Cri) 569, Para 35

146 | P a g e
In spite of these directions, the Supreme Court in Maharishi Avadhesh v, Union of lndia 68 ,

dismissed a petition seeking a writ of mandamus against the Government of India to introduce a

Common Civil Code. The Court took the view that this was a matter which fell within the

domain of the Legislature and that "the court cannot legislate in these matters".

Thus, the issue of a Uniform Civil Code has given rise to heated debates and controversies. It

touches the sensitivities of certain groups, But this should not be taken to concede that existing

laws should remain untouched. An endeavour should be made to incorporate good points of one

system into another and strike down the provisions which are harsh, antiquated and

discriminatory.69

4. Fundamental Duties

Part IV-A which consist of only one Article 51-A was added to the Constitution by the 42nd

Amendment, 1976, This Article for the first time specifics a code of ten fundamental duties for

citizens. Article 5 l-A(e) is related to women. It states that:

"It shall be the duly of every citizen of India to promote harmony and the spirit of common

brotherhood amongst all the people of India transcending religious, linguistic, regional or

sectional diversities; to renounce practices derogatory to the dignity of women."

68
1994 Supp (1) SCC 713
69
Kusum: Uniform Civil Code - Reform in the Personal Law - Marriage & Divorce Law Annual Universal Law
Publishing Co, Pvt. Ltd., New Delhi

147 | P a g e
5. Women's Representation in Local Bodies

Under Article 40 the Directive Principles of State Policy state that:

"The State shall take steps to organise village panchayats and endow them with such powers and

authority as may be necessary to enable them to functions as units of self government,"

It was held in N.M. Kheni v. Manik Rao Patil 70that:

"Power of the people which is the soul of a republic stands subverted if decentralization and

devolution desiderated in Article 40 is ignored by die Executive in action even after holding

Elections to the floor level of administrative bodies."

The 73rd and 74th Amendments to the Indian Constitution effected in 1992 provide for

reservation of seats for women in Elections to Panchayats and Municipalities.

Reservation of seats for women in Panchayats and Municipalities have been provided in Articles

243-D and 243-T of the Constitution of India. Parts IX and IX-A have been added to the

Constitution by the Constitution 73rd Amendment Act, 1992 and the Constitution (74th

Amendment) Act, 1992 popularly known as the Panchayati Raj and Nagarpalika Constitution

Amendment Act, with Articles 243, 243-A to 243-D and Articles 243-P to 243-ZG.

(i) In Panchayats

Article 243-D of the Constitution provides that,

70
(1977) 4 SCC 16

148 | P a g e
1. In every Panchayat seals shall be reserved for the Scheduled Castes and Tribes. The number of

seats so reserved shall be, as nearly as may be, in the same proportion to the total number of

seats lo be filled by direct election in that Panchayat as the population of the SCs and STs in that

Panchayat area bears to the total population of that area, and such seats may be allotted by

rotation to different constituencies in Panchayats.

2. Out of the total number of seals to be filled by direct election in every Panchayat, not less

than one-third (including the number of seats reserved for SC and ST women) seats shall be

reserved for women. Such seals may be allotted by rotation to different constituencies in a

Panchayat.

3. The offices of the Chairpersons in the Panchayat at the village or any other level shall be

reserved for SCs, STs and women in such manner as the legislature of a State may, by law,

provide. But the number of offices of Chairperson reserved for the SCs and STs in the

Panchayats at each level shall be as nearly as possible in the same proportion to the total number

of such offices in the Panchayats at each level in proportion to the total population of the SCs

and STs in the State. However, not less than one-third of the total number of the offices of the

Chairpersons in the Panchayat at each level shall be reserved for women. The number of offices

reserved under this clause shall be allotted by rotation to different Panchayats at each level.

(ii) In Municipalities

Reservation of seats for women in Municipalities is provided under Article 243-T of the

Constitution of India. The relevant portions of Article 243-T are:

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1. Seats shall be reserved for the SCs and STs in every Municipality. The number of seats

reserved for them shall be, as nearly as may be. in the same proportion to the total number of

seats to the filled by direct election in that Municipality as the population of the SCs and STs in

the Municipal area bears to the total population of that area and such seats may be allotted by

rotation to different constituencies in a Municipality.

2. No less than one-third of the total number of seats reserved under clause (1) shall be

reserved for women belonging to the SCs or, as the case may be, to the STs.

3. No less than one-third (including the number of seats reserved for women belonging to

the SCs and STs) of the total number of seals lo be filled by direct election in every Municipality

shall be reserved for women and such seals may be allotted by rotation to different constituencies

in a Municipality.

4. The offices of Chairperson in the Municipalities shall be reserved for the SCs, the STs and

women in such manner as the legislature of a State may, by law, provide.

6.3 NATIONAL COMMISSION FOR WOMEN

The United Nations Commission on the Status of Women in its Twenty-fifth Report had

recommended to all member States to establish National Commissions or similar bodies with a

mandate to review, estimate and recommend measures and priorities to ensure equality between

men and women and the full integration of women in all spheres of national life.71

71
Mukulita Vijayawargiya: "National Commission for Women: Legal Framework" 34 JILI (1992) 2

150 | P a g e
Acting on this resolution and on the demands of several women's organisations the Government

of India set up a Committee in 1971 known as the Committee on the Status of Women:

(1) to evaluate the changes that had taken place in the status of women as a result of the

constitutional, legal and administrative measures adopted since Independence;

(2) to examine the impact of the complex processes of social change on various sections of

women; and

(3) to suggest measures to enable women to play their full and proper role in nation building.

In 1974, the above-mentioned Committee submitted a comprehensive report with a summary of

its recommendations on—

(1) the socio-cultural selling of women's status;

(2) women and the law;

(3) roles, rights and opportunities for economic participation;

(4) educational development;

(5) political status; and

(6) policies and programmes for women's welfare and development.

In order to ensure the implementation of various measures, the committee recommended the

constitution of statutory autonomous commissions at the Centre and in the States.72 It is in this

context that the National Commission for Women Act, 1990 was passed. It was a major step in

72
“Toward Equality : Report of the Committee on Stains of Women in India" by Department of Social
Welfare, Govt. of India, 1974

151 | P a g e
the development of women's rights and enhancement of their status. However, the Government

took sixteen years to give effect to the recommendation of the committee for setting up a

National Commission.

Compensation to Rape victims

In Delhi Domestic Working Women's Forum v. Union of India,73 the petitioner Womens Forum

through a Public Interest Litigation brought the pathetic condition of four domestic women

servants who were raped by seven army personnel in a running train while travelling by the Muri

Express from Ranchi to Delhi. The victims were helpless tribal women belonging State of Bihar.

Notwithstanding the occurrence of such barbaric assault on the person and dignity of women

neither the Central Government nor the State Government has bestowed any serious attention as

to the need for rehabilitatory and the Court expressed serious concern about the increase of

crimes against women in recent times and suggested that the defects in criminal laws be removed

soon. The Court observed as follows—

"The defects in the present system are Firstly; complainants are handled roughly and are not

giving such attention as is warranted. The victims, more often than not, are humiliated by the

police. The victims have invariably found rape trials a experience. The experience of giving

evidence in Court has been negative and destructive. The victims often say, they considered the

ordeal to be even worse than the rape itself. Undoubtedly the Court proceedings added to and

prolonged the psychological stress they had to suffer as a result of the rape itself."

In view of this, the Court laid down the following guidelines for trial of rape cases

73
(1995) 1 SCC 14

152 | P a g e
(1) The complainants of sexual assaults cases should be provided with legal representation.

Such a person must be well acquainted with criminal justice. The victims advocate's role should

not be only to explain to her the nature of proceedings, to prepare her for the case and to assist

her in the police station and in Court but to provide her with guidance as to how she might obtain

help of a different nature from other agencies, for example, mind consulting or medical

assistance. It is important to secure continuity of assistance by ensuring that the same person who

looked after the complainant's interests in the police station represent her till the end of the case.

(2) Legal assistance will have to be provided at the police station since the victim of sexual

assault might very well be in a distressed state at the police station the guidance and support of a

lawyer at this stage would be of great help to her.

(3) The police should be under a duty to inform the victim of her right to representation

before any questions were asked of her and the police report should state that the victims was so

informed.

(4) A list of advocates willing to act in these cases should be kept at the police station for

victims who did not have any particular lawyer in mind, or whose own lawyer was unavailable.

(5) The advocate shall be appointed by the Court on application by the police at the earliest

convenient moment, but in order to ensure that victims were questioned without undue delay

advocates would be authorised to act at the police station before leave of the Court was sought or

obtained.

(6) In all rape trials anonymity, (name not to be disclosed), of the victim must be maintained,

as far as necessary.

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(7) It is necessary, having regard to the directive principles contained under Art. 38(1) of the

Constitution, to set Criminal Injuries Compensation Board. Rape victims frequently incur

substantial loss. Some, for example, are too terrorised to continue in employment.

(8) Compensation for victims shall be awarded by the Court on 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 and shock as well as the loss of earnings due to

pregnancy and child birth if this accrued as result of rape.

The National Commission for Women be asked to frame schemes for compensation and

rehabilitation to ensure justice to victims of such crimes. The Union of India shall then examine

and take necessary steps to implement them at the earliest.

Interim Compensation to Rape victim

In a landmark judgment in the case of Bodhisathwa Gautam v. Subhra Chakraborty, 74 the

Supreme Court awarded an interim compensation of Rs. 1000 per month to the victim of rape

until her charges of rape are decided by the trial Court. The complainant Subhra Chakraborty

was a student of the Baptist College, Kohima and the accused Sri Bodhisathwa was a lecturer in

that college. According to the FIR filed by the complainant, the accused not only induced the

complainant and cohabited with her, giving her a false assurance of marriage but also

fraudulently gone through a certain marriage ceremony with knowledge and thereby dishonestly

made the complainant to believe that she was a lawfully married wife of the accused.

Bodhisathwa married the complainant before the God he worshipped by putting her vermilion on

74
(1996) 1 SCC 490

154 | P a g e
her forehead and accepted her as his wife but later refused to recognise her as his life partner,

The said ceremony made the complainant to believe that she was a lawfully married wife of the

accused.

Referring to the pitiable condition of women in society Mr. Justice Saghir Ahmad observed that

"unfortunately, a woman in our country, belongs to a class for 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".

Women also have the right to life and liberty; they also have the right to be respected and reacted

as equal citizens. Their honour and dignity cannot be touched or violated. They also have the

right to lead an honourable and peaceful life."

Rape is a crime against basic human rights and is also violative of the victim's most cherished of

the fundamental rights, normally, the right to life contained in Article 21.

Prevention of sexual harassment of working women

In a landmark judgment in Vishaka v. State of Rajasthan,75 the Supreme Court has laid down

exhaustive guidelines to prevent sexual harassment of working women in places of their work

until a legislation is enacted for the purpose. The Court held that it is the duty of the employer or

other responsible person in work-places or other institutions, whether public or private, to

prevent sexual harassment of working women.

75
AIR 1997 SC 3011

155 | P a g e
The judgment of the Court was delivered by J.S. Verma, C.J. on behalf of Sujata V. Manohar

and B.N. Kirpal, JJ., on a writ petition filed by Vishaka, a non-governmental organisation

working for "gender equality" by way of PIL seeking enforcement of fundamental rights of

working women under Arts. 14, 19 and 21 of the Constitution. In holding so the Court relied on

International conventions and norms which are significant in interpretation of guarantee of

gender equality, right to work with human dignity in Articles 14, 15, 39(l)(a) and 21 of the

Constitution and the safeguards against sexual harassment implicit therein/the immediate

cause/or filing the petition was alleged brutal gang rape of a social worker of Rajasthan. The

Supreme Court, in absence of enacted law to provide for effective enforcement of basic human

rights of gender equality and guarantee against sexual harassment, laid down the following,

guidelines.

(1) All employers persons incharge of work place whether in the public or private 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 include physical contact and

advances; a demand or request for sexual favours sexually coloured remarks; showing

pornographic or any other unwelcome physical, verbal or non-verbal conduct of sexual nature

should be noticed, published and circulated inappropriate ways.

(b) The rule or regulation 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.)

156 | P a g e
 (c) As regards to 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

and hygiene to further ensure that there is no hostile environment towards women at work place

and no women should have reasonable grounds to believe that she is disadvantaged in connection

with her employment.

(2) Where such conduct amounts to specific offences under the Indian Penal Code or under

any other law, the employer shall initiate appropriate action in accordance with law by making a

complaint with the appropriate authority.

(3) The victims of sexual harassment should have the option to seek transfer of the

perpetrator or their own transfer.

The fundamental right to carry on any occupation, trade or profession depends on the availability

of a safe working condition. Right to life means life with dignity. The primary responsibility for

ensuring such safety and dignity through suitable legislation, and the creation of the mechanism

for its enforcement, is the responsibility of the Legislature and the Executive. When, however

instances of sexual harassment resulting in violation of fundamental rights of women workers

under Arts. 14,19 and 21 are brought before the Court for redressal under Art. 32 of the

Constitution ineffective redressal requires that some guidelines should be laid down for the

protection of these rights to fill the legislative vacuum", Mr. Justice Verma said.

This decision of the Court will go a long way increasing a sense of security in the minds of

working women that their honour and dignity will be safe in their place of work.

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Apparel Export Promotion, Council v. A. K Chopra,76 is the first case in which the Supreme

Court applied the law laid down in the case of Vishaka v. State of Rajasthan and upheld the

dismissal from service of a superior officer of the Delhi based Apparel Export Promotion

Council who was found guilty of sexual harassment of a subordinate female employee at the

place of work on the ground that it violated her fundamental right guaranteed by Art. 21 of the

Constitution. The respondent was working as a Private Secretary to the Chairman of the Apparel

Export Promotion Council, a private company. He tried to molest a woman employee of the

Council who was working as a clerk-cum typist. She was not trained to take dictations. The

respondent, however, insisted that she go with him to the business Centre at Taj Palace Hotel for

taking dictation from the Chairman and typeout the matter. Under the pressure of the respondent,

she went to Taj Hotel to take the dictation from the Chairman. While she was waiting for the

Director in the room, the respondent tried to sit too close to her and despite her objection did not

give up his objectionable behaviour. After taking the dictation, the respondent told her to type it

at the Business Centre of the Taj Hotel which was located in the Basement of the Hotel. He

volunteered to show her the Business Centre and taking advantage of the isolated place again

tried to sit close to her and touch her despite her objections. The Chairman corrected the draft

matter and asked her to retype it. The respondent again went with her to the Business Centre and

repeated her overtures. According to her the respondent had tried to molest her physically in the

lift also while coming to the basement but she saved herself by pressing the emergency buttons.

She orally narrated the whole incident to the Director and submitted a written complaint also.

The respondent was suspended and a charge sheet was served on him. The respondent denied the

allegations and said that they were imaginary and motivated. He contended that he merely

attempted to molest her but had not actually molested her. The Inquiry officer found the charges
76
AIR 1999 SC 625

158 | P a g e
leveled against the respondent to be proved. The Disciplinary Authority agreed with the report of

Inquiry officer and imposed the punishment of removing him from service.

The Supreme Court held that the act of the respondent, was wholly against moral sanctions,

decency and was offence to female subordinate's modesty and undoubtedly amounted to sexual

harassment and hence the punishment of dismissal from service imposed on him was

commensurate with the gravity of his objectionable behaviour and valid) The Court held that in a

case involving charge of sexual harassment or attempt to sexually molest the Courts are required

to examine broader probabilities of the case and not swayed by insignificant discrepancies or

narrow technicalities or dictionary meaning the expression "molestation" or "physical assault".

They must examine the entire material to determine the graveness of the complaint. The

statement of the victim must be appreciated in the background of the entire case. The entire

episode reveals that the respondent had harassed her by a conduct which was against moral

sanctions and decency and modesty and amounted to sexual harassment.

The court said that each attempt of sexual harassment of female at the place of work results in

violation of the fundamental right to Gender Equality in Art. 14 and the Right to life and liberty

in Art. 21 of the Constitution and courts are under constitutional obligation to protect and

preserve those Fundamental Rights. In cases involving human rights, the courts must be alive to

the International Convention and Instruments and as far as possible to give effect to the

principles contained in those international instruments. The message of international instruments

such as the Convention on the Elimination of All Forms of Discrimination Against Women,

1979 (CEDAW) and the Beijing Declaration which directs all State Parties to take appropriate

measures to prevent discrimination of all forms against women besides taking steps to protect the

honour and dignity of women is clear and loud.

159 | P a g e
 CHAPTER-7

CONCLUSION AND SUGGESTIONS

The dream of the father of nation is slowly coming true, but still we have to go a long away in

achieving the same. This has been rightly demonstrated by the Justice Verma Committee Report.

The relevant part of the report read as follows:

“Woman is the companion of man, gifted with equal mental capacities. She has the right to

participate in the minutest details in the activities of man and she has an equal right of freedom

and liberty with him. She is entitled to a supreme place in her own sphere of activity as man is in

his. This ought to be the natural condition of things and not as a result only of learning to read

and write. By sheer force of a vicious custom, even the most ignorant and worthless men have

been enjoying a superiority over woman which they do not deserve and ought not to have. Many

of our movements stop half way because of the condition of our women.”77

7.1 CONCLUSION

The Constitution of India declares & guarantees the right to equality before law & equal

protection of law for both, men & women, the reality is otherwise. The constitution of India

declares and confers the de- jure equality, the women in India has not attained de facto equality

till this date. As it has rightly pointed out by Justice J.S.Verma in his Report. The relevant part of

the Report reads as follows:

77
Refer Para 1 of J.S. Verma Committee Report available at http//www.prsindia.org accessed on
25.04.2014

160 | P a g e
“It is an admitted fact that women in India have suffered in various aspects of life and physical

health, mental well-being, bodily integrity and safety, social relations, political empowerment,

education and knowledge, domestic work and non-market care, paid work and other projects,

shelter and environment, mobility, leisure activities, time autonomy, respect, religion, and if we

may add, self-esteem / self-autonomy. We are of the opinion that Indian women have

substantially suffered on most of these counts as a consequence of which the de facto equality

guaranteed by the Constitution has not become a reality for them.”78

Because of the failure on the part of the state to provide good governance. The horrific incidence

which has happened on 16.12.2012 in a public transport in the heart of the city in the national

capital territory of India, it continuous to happen unabated. There is no scarcity of law to deal

with minus. We keep on adding this statute book, Multiplicity of law on the same subject matter.

However, it does not prevent the aggravated sex crimes against the women in general, rape and

sexual assault in particular. Unless there is a social change in the attitude of mind set from all

these stake holders, mere change of law is not a solution. As it has been pointed out by Amartya

Sen , that the institutional virtuosity and the individual virtuosity must go hand in hand.

“…There is no automatic guarantee of success by the mere existence of democratic

institutions…The success of democracy is not merely a matter of having the most perfect

institutional structure that we can think of. It depends inescapably on our actual behaviour

patterns and the working of political and social interactions. There is no chance of resting the

matter in the ‘safe’ hands of purely institutional virtuosity. The working of democratic

78
Para 21 Ibid

161 | P a g e
institutions, like all other institutions, depends on the activities of human agents in utilizing

opportunities for reasonable realization.”79

The Hon’ble Supreme Court of India has rightly pointed out in a leading case that the crimes

against women in general, rape and sexual assault against women and girl children is showing

steadily raising trend rather than declining. The Court has relied upon the reports of National

Crime Record Bureau. The National Crime Records Bureau (NCRB) 2011 report specifically

deals with the statistics of rape victims which is as follows80:

Rape Victims

There were 24,270 victims of Rape out of 24,206 reported Rape cases in the country. 10.6%

(2,582) of the total victims of Rape were girls under 14 years of age, while 19.0% (4,646

victims) were teenaged girls (14-18 years). 54.7% (13,264 victims) were women in the age-

group 18-30 years. However, 15.0% (3,637 victims) were in the age group of 30-50 years while

0.6% (141 victims) was over 50 years of age81.

Offenders were known to the victims in as many as in 22,549 (94.2%) cases. Parents/close

family members were involved in 1.2% (267 out of 22,549 cases) of these cases, neighbours

were involved in 34.7% cases (7,835 out of 22,549 cases) and relatives were involved in 6.9%

(1,560 out of 22,549 cases) cases82.

79
Para 12 Ibid
80
Para 43 Shankar Kisanrao Khade Vs State of Maharashtra, 2013 4 ABR 567
81
Para 44 Ibid
82
Para 45 Ibid

162 | P a g e
A total of 7,112 cases of child rape were reported in the country during 2011 as compared to

5,484 in 2010 accounting for an increase of 29.7% during the year 2011. Madhya Pradesh has

reported the highest number of cases (1,262) followed by Uttar Pradesh (1088) and Maharashtra

(818). These three States altogether accounted for 44.5% of the total child rape cases reported in

the country83.

Around 17 years ago, the Hon’ble Supreme Court of India has delivered a historic judgment in

Vishka’s case84. It is highly deplorable and condemned that many of the states have not at all

implemented the directions of the Hon’ble Supreme Court of India in letter and spirit. This

shocking facts have been revealed in a response to the Hon’ble Supreme Court of India direction

in a PIL known as Meda Kotwal Case. The relevant part of the Judgment reads as follows :

From the affidavits filed by the State Governments, it transpires that the States of Orissa,

Meghalaya, Himachal Pradesh, Goa, Arunachal Pradesh and West Bengal have amended the

Rules relating to duties, public rights and obligations of the government employees but have not

made amendments in Civil Services Conduct Rules. Similarly, the States of Sikkim, Madhya

Pradesh, Gujarat, Mizoram, Orissa, Bihar, Jammu & Kashmir, Manipur, Karnataka, Rajasthan,

Meghalaya, Haryana, Himachal Pradesh, Assam, NCT of Delhi, Goa, Nagaland, Arunachal

Pradesh, Jharkhand and Tamil Nadu have not carried out amendments in the Standing Orders.

These States appear to have not implemented the order passed by this Court on 26.4.2004 quoted

above. The States which have carried out amendments in the Civil Services Conduct Rules and

the Standing Orders have not provided that the report of the Complaints Committee shall be

treated as a report in the disciplinary proceedings by an Inquiry Officer. What has been provided

83
Para 46 Ibid
84
AIR 1997 SC 3011

163 | P a g e
by these States is that the inquiry, findings and recommendations of the Complaints Committee

shall be treated as a mere preliminary investigation leading to a disciplinary action against the

delinquent. 85

The States like Rajasthan, Meghalaya, Himachal Pradesh, Assam and Jammu and Kashmir seem

to have not formed Complaints Committees as envisaged in the Vishaka guidelines. Some States

have constituted only one Complaints Committee for the entire State86.

The Union Territories of Andaman and Nicobar Islands, Daman and Diu, Lakshadweep, Dadra

and Nagar Haveli and Puducherry have not made amendments in the Standing Orders. The

Union Territory of Chandigarh does not seem to have carried out amendments in the Civil

Services Conduct Rules. Some of the Union Territories like Dadra and Nagar Haveli and

Chandigarh are reported to have not yet formed Complaints Committees. Daman and Diu have

formed one Complaints Committee for the Union Territory87.

Similarly the Hon’ble Supreme Court of India has given valuable directions in the prevention of

sexual assault and other sexual offences against the children. Though the directions are

embedded in the form of legislative command known as Protection of Children from Sexual

Offences Act, 2012.We don’t know when it will be implemented at the ground level.

85
Para 7 Medha Kotwal Lele and Ors Vs Union of India and Ors, AIR 2013 SC 90
86
Para 8 Ibid
87
Para 9 Ibid

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7.2 SUGGESTIONS

In this background the researcher would like to make certain suggestions and recommendations

to the concern competent authorities for the purpose of promoting the gender justice and

protection of sexual harassment and prevention of rights of rape victims. The Criminal Justice

delivery system starts from the policing system (machinery). The Hon’ble Supreme Court of

India has given number of directions to carryout National police reforms. Based on the

directions, National Commission for Police has submitted a detailed report. Unfortunately non of

the directions of the Hon’ble Supreme Court of India and the recommendations made by the

National Commission for police has not been implemented by the Successive Governments at

the center.

 The Researcher strongly suggest to the appropriate government to take appropriate steps

for the implementing the aforestated directions and the recommendations of the

aforestated authorities for the purpose of police reforms. The Juvenile Justice Act,

Protection of Children From sexual offences Act 2012 envisages a greater role for the

SJPU.

 The Researcher strongly suggest to all the State Governments to take necessary steps

established SJPU and to provide necessary infrastructure to the SJPU, so that it will

function in an effective manner.

 The Researcher would strongly suggest strengthening the Criminal Law Justice Delivery

Mechanism for the purpose of promoting speedy justice in general and prevention of

sexual harassment and Protection of rights of rape victims in particular.

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 The Researcher strongly suggest to strengthen the Child Welfare Committee, the district

and state child protection units. The JJB and SJPU are established for the purpose of

preventing sexual assault against the children.

 The Researcher strongly suggest Protection of Children From sexual offences Act, 2012

envisages the specific institution mechanism for the purpose of preventing sexual assault

against the children. The Act mandate the establishment of special courts and

appointment of special public prosecutor for the aforestated purpose.

 The Researcher strongly suggest to the state Government to establish the special court

and public prosecutor with immediate effect.

 The Researcher strongly suggest the criminal law amendment Act, which mandate the

establishment of criminal injury compensation board. It is deeply regrettable that the

boards have not been setup in many state Governments including Tamil Nadu. The

researcher strongly suggest that the aforestated board must be immediately set up with

necessary infrastructure.

 The Criminal Law Amendment Act, 2013, mandates all the private hospitals to provide

treatment to the rape victims. No doubt it is a laudable effort. However, the Researcher

feels that instead of forcing the hospitals to provide compulsory free treatment, the

appropriate governments may come with appropriate scheme including for the treatment

of rape victims and victims of other sexual crimes. The Nirbhaya funds can be used for

the aforestated purposes.

 The Researcher feels that there is a an advantage in this approach when the treatment is

given freely the quality cannot be ensured, if it is funded through the aforestated schemes.

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 The hospital can be brought under the Consumer Protection Act and the hospital can be

made accountable.

 The sexual harassment of child starts from the school bus or school vans. The Researcher

strongly suggest to appoint lady staff’s including as drivers and conductors in the school

bus for the purpose of preventing sexual harassment against the girl children.

 The Researcher strongly suggest to take appropriate protective measures to prevent

sexual assault and other sexual offences against the differently disabled woman and the

girl children.

 The Researcher strongly recommends necessary reforms in the educational system that it

reflects strongly the gender sensitization among the youth and the children.

 The Researcher also strongly suggest the appropriate government to provide necessary

training to various stakeholders involved in the investigation including police, Judges,

Public Prosecutors, Lawyers and others to be sensitive about the rights of the victims.

 In addition to this as a mother the researcher would like to appeal to all the parents in

general mothers in particular who play a greater role in raring up of the child to inculcate

the practice of respecting the women. The Researcher strongly hopes that the measure

will go in a long way in improving the quality of gender justice in the country.

 The Researcher strongly recommends the electronic and the print media to report the

sexual violence without prejudicially affected the interest of the women.

As rightly stated by Dr. Rajendra Prasad, while moving the motion for adoption of the

Constitution in the Constituent Assembly, had said:

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“…Whatever the Constitution may or may not provide, the welfare of the country will depend

upon the way in which the country is administered. That will depend upon the men who

administer it. If the people who are elected, are capable and men of character and integrity, they

would be able to make the best even of a defective Constitution. If they are lacking in these, the

Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It

acquires life because of the men who control it and operate it, and India needs today nothing

more than a set of honest men who will have the interest of the country before them…”

“It requires men of strong character, men of vision, men who will not sacrifice the interests of

the country, at large for the sake of smaller groups and areas and who will rise over the

prejudices which are born of these differences. We can only hope that the country will throw up

such men in abundance.”

“Is the fervent hope belied? If so, the faith has to be Restored.”88

The Researcher strongly believes if the aforesaid suggestions are heartfully carried out, it will

bring a win win situation to all the stake holders, ultimately it will bring peace, justice, prosperity

and harmonious relationship among the various sections of the society which will culminate into

better economic growth promotion of gender justice in general and prevention of sexual

harassment and protection of rights of rape victim in particular and a friendly relationship among

the various stake holders.

88
Refer Para 11 of J.S. Verma Committee Report available at http//www.prsindia.org accessed on
25.04.2014

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