I.

WOMEN RIGHTS AND CRIMINAL JUSTICE SYSTEM

Introduction:

There are two different schools of thought when it comes to sentencing of a female accused.
One school of thought says a woman should be treated as an equal while sentencing, while
the other school of thought says that women are not same as men and therefore the sentencing
shouldn’t be same.

To understand this topic better we have to understand the concept of ‘woman’. In addition we
also need to understand that there is difference between sex and gender. Sex is a label that is
given to a human at the birth. It is on the basis of the genitals that the sex is determined by the
doctors. Gender is a concept that the society and law gives a person. It is what the society
expects from a person. The concept of gender is primarily in the Indian law is divided in
Male, Female and Transgender.

There has been a lot of tension amongst the feminists and society in the recent time.
Feminists want equal rights and opportunities which even though are granted in the legal
aspect but are not available in the grass root level where the law is to be practiced. The Indian
Penal Code, 1860 and the Criminal Procedure Code are gender neutral and there are some
special laws enacted just for the women for e.g. Domestic Violence Act, Sexual Harassment
at Workplace, Abolition of Sati, etc. Even after these stringent laws women face
discrimination in every aspect of their lives be it social, professional or in the criminal justice
system.

For the convenience of establishing the views this project is divided in two aspects, where the
woman is a victim and where the woman is a victimizer.
 II. WOMAN AS A VICTIM

As mentioned in the introduction there exist two types of laws in India: General and Specific.
In this division of the project the following aspects of law are covered:

1. Constitutional
2. Criminal Law
3. Personal Law

1. Constitutional Law
The Constitution is the basic document which governs our rights and lays down the structure
by which we are governed. The Constitution is the Grundnorm of any society and it plays an
important part in including individual and political rights against the state as well as group
rights / socio-cultural rights of the marginalized section.
The Preamble of our Constitution includes the purpose, objectives and policies underlying
provisions. A lot of importance is given to the words Sovereign, Socialist, Secular,
Democratic, Republic and Justice, Equality and Fraternity.
The Constitution contains a set of fundamental principles by which our nation is governed.
Every law enacted by the government has to be in conformity with the Constitution. It spells
out the Fundamental Rights and Duties of citizens.
The constitution also gives the power to state government and Parliament to make and
implement special laws.

Which are the important provisions under the Constitution which protect dignity of
women?
Article 21 which deals with right to life have been expanded to include the right to Life with
Dignity. This provision has been invoked to safeguard the rights of women such as right to
divorce, to live a life free from violence and the right to safe abortions.
Article 51A of the Constitution lays down fundamental duties of all citizens. It stipulates that
all citizens have a duty to promote harmony and to renounce practices which are derogatory
to the dignity of women.
Article 14 guarantees equality before law and equal protection of law to all its citizens.
Articles 15 (1) and Article 16 (2) expand this principle further and prohibit discrimination on
the basis of religion, race, caste, sex or place of birth. And thus one of the main pillars of the
Indian Constitution is the principle of equality. This ensures that there is no discrimination
between men and women, upper castes and lower castes, rich and poor and all will be treated
as equals before the law and will be provided equal protection of law.
Hence, if any law is passed or any action is taken to prevent women from taking up
employment in government or public sector undertaking, such law or action by the concerned
authority can be struck down by the Supreme Court or a High Court, as being against the
Constitutional provisions.
Similarly paying women lower salaries for doing the same work even when they are qualified
for it, is discriminatory and against the Constitutional guarantee of equality. But most
important of all within the scheme of equality are Articles 15(3) (4) and 16 (3) (4) which help
to further strengthen the concept of equality by permitting the state to make special
provisions for securing the rights of the marginalized sections (women, children, schedule
castes and schedule tribes) in order to help them to overcome the discrimination they have
suffered for many centuries and to help them to become equal to others. This is called
―positive discrimination.
This has helped the state to enact special laws for women and children such as the provisions
for maintenance of women and children, protection against domestic and sexual violence, the
Maternity Benefits Act, special protection for women under all labour laws, a special law to
prevent sexual harassment at workplace, or reservations for women, scheduled castes or
scheduled tribes for jobs and in elected bodies. A similarly a law to prevent atrocities against
scheduled castes and scheduled tribes does not violate the provision of equality as it is meant
to give additional protection to certain backward sections. These are all beneficial legislations
meant to improve the status of marginalized people.
2. Personal laws:
In this section the gender centric laws are covered which are specially made for the protection
of women.
A. Protection under the Domestic Violence Act
What is “domestic violence” under the Protection of Women from Domestic
Violence Act? The term ―”domestic violence” under Domestic Violence Act
includes physical, emotional, sexual and economic violence. 1
The Act gives women the right to live a life free from violence. It protects the right to
shelter in the following ways :-

1
(S.3) of the Dowry Prohibition Act (DPA), 1961
 a. Right to an order of protection: If there is a threat of violence, the woman can get
an order of protection, restraining the husband and his family members from
committing violence on her. Even if she is living in her own father‘s house and if
she is afraid that the husband may assault her or come to her place of work and
humiliate her, she can ask for an injunction to restrain him from coming anywhere
near her2.
b. Right to live in the same house: The husband, father-in-law or even the father of a
woman / girl cannot throw her out from the house where she is living or has lived.
3

c. Right to claim Maintenance: The woman has a right to claim maintenance under
this Act4
d. Right to custody: No one can take away the children from the mother, not even the
father. If such a threat is there, she can go to court and get an order to protect her
right. If her child is taken away forcibly from her custody she can approach the
police or the court to get her child back.5
e. Right to claim compensation: If the woman has suffered any harm or injury due to
domestic violence she has a right to claim compensation for it under the Act.6

B. Dowry Harassment and Cruelty Against Wives

Dowry is defined as any cash, jewelry, valuables, or property which the husband or
his family members demand from the bride‘s parents at the time of marriage, as a
consideration of marriage.7
This term also includes demands made subsequent to the marriage from the bride or
her parents.
Relief: It is punishable with a minimum of five years‘imprisonment and a fine of
Rs.15,000/- or equal to the value of the dowry demanded or paid.

2
(S.18) of the Dowry Prohibition Act (DPA), 1961
3
(S.19) of the Dowry Prohibition Act (DPA), 1961
4
(S.20) of the Dowry Prohibition Act (DPA), 1961
5
(S.21) of the Dowry Prohibition Act (DPA), 1961
6
(S.22) of the Dowry Prohibition Act (DPA), 1961
7
(S. 2) of the Dowry Prohibition Act (DPA), 1961
3. Indian Penal Code
A. Dowry: due to the rampant suicides amongst women in the early 1980 several
women‘s organisations demanded stringent punishment for husbands and their
family members if they caused any dowry related violence to a newly married
bride. If a woman died in her matrimonial home within seven years under
unnatural or suspicious circumstances, a special legal provision was incorporated
which is termed as Dowry Death8. Abetment to Suicide can be invoked if a
woman committed suicide due to harassment for dowry within seven years of her
marriage9.
If the woman was harassed for dowry or was treated with cruelty the husband
or a relative of husband of a woman subjecting her to cruelty 10can be invoked.
In this case, there is no limitation of seven years after marriage.
The following table indicates the punishment that can be awarded under these
sections.
IPC Sections Description of Maximum Minimum
Offence Punishment Punishment
S.304-B Dowry Death Life Imprisonment 7 years
S.306 Abetment to Suicide 10 Years -
S.498-A Cruelty 3 Years -
S.406 Criminal 3 Years -
Misappropriation of
Trust
B. Definitions of ‘sexual offence’ under the Indian Penal Code (IPC)

a. Outraging modesty11: if a man assaults or uses criminal force on any woman

with the intention of outraging her modesty or knowing that it is likely to
outrage her modesty, then he shall be punished under this section.
b. Sexual Harassment12: if a man makes physical contact and advances,
demands or requests for sexual favours, shows pornography against the will of

8
S.304B Of The Indian Penal Code, 1860
9
S.306 Of The Indian Penal Code, 1860
10
S 498A Of The Indian Penal Code, 1860
11
S. 354 Of The Indian Penal Code, 1860
12
S. 354A Of The Indian Penal Code, 1860
 a woman or makes sexually coloured remarks, then he shall be punished under
this section.
c. Disrobing13: if a man assaults or uses criminal force against a woman with the
intention of disrobing her or compels her to be naked, he shall be punished
under this section.
d. Voyeurism 14 if a man watches or captures the image of a woman in a private
act or disseminates such an image, he shall be punished under this section. A
private act includes an act where the victim does not expect to be observed by
the man or any other person at his behest. If the victim consents to the capture
of the image but not to dissemination, then such dissemination shall be
punishable.
e. Stalking 15 if a man follows or contacts (or attempts) a woman despite a clear
indication of disinterest by her, or monitors the use of internet, email or other
electronic communication by her, then he shall be punished under this section.
f. Rape 16includes:
o Penetration of the penis, to any extent, into the vagina, mouth, urethra or anus
of a woman or if he makes her to do so with him or any other person; or
o Insertion to any extent, any object or a part of the body other than the penis,
into the vagina, the urethra or anus of a woman or if he makes her to do so
with him or any other person; or
o Manipulation of any part of the body of a woman so as to cause penetration
into the vagina, urethra, anus or any body part or if he makes her do so with
him or any other person; or
o If he applies his mouth to her vagina, anus, urethra or makes her to do so with
him or any other person. The above acts amount to rape if they are committed
without the consent and against the will of the woman. Even if the consent of
the woman is given to the above acts, it will amount to rape under the
following circumstances:
o When consent has been obtained by putting her or any person in whom she is
interested, in fear of death or hurt.

13
S. 354b Of The Indian Penal Code, 1860
14
S. 354c Of The Indian Penal Code, 1860
15
S. 354d Of The Indian Penal Code, 1860
16
S. 375 Of The Indian Penal Code, 1860
 o When the man knows that he is not her husband and she gives consent because
she believes him to be her husband.
o When she is unable to understand the nature and consequence of the act to
which consent is given due to intoxication, administration of any stupefying or
wholesome substance or due to certain mental unsoundness wherein she is
unable to understand the act to which she gives her consent.
o S. 376 (2) states that under the following circumstances the offence of rape
shall also be committed and the punishment prescribed for the same is more
stringent. The above acts amount to rape if they are committed without the
consent and against the will of the woman. Even if the consent of the woman
is given to the above acts, it will amount to rape under the following
circumstances:
o When consent has been obtained by putting her or any person in whom she is
interested, in fear of death or hurt.
o When the man knows that he is not her husband and she gives consent because
she believes him to be her husband.
o When she is unable to understand the nature and consequence of the act to
which consent is given due to intoxication, administration of any stupefying or
wholesome substance or due to certain mental unsoundness wherein she is
unable to understand the act to which she gives her consent.
There are other protections available under the IPC for the protection of the women in
case of Gang Rape, Custodial Rape etc.
g. Maintenance17: A woman can file a criminal case against her husband for
claiming maintenance if she is unable to sustain herself.

Opinion on the Current Criminal Procedure and Law:

Due to the lack of stringent laws and guidelines the victims of sexual offences and domestic
violence do not report the crime. Some sit back due to societal pressure the others don’t
report due to social stigma. Therefore the following points should be included in the
procedural laws to make them more protective:

17
Section 125 of Indian Penal Code, 1860
1. Preserve all evidence: As far as possible, the victim should not have a bath or wash
herself or wash the clothes that she was wearing at the time of the offence. It is very
difficult to do this because the natural instinct after rape is to clean one‘s self and also
wash the clothes to wipe out the feeling of violation that the offence of rape brings
about. The place where the crime was committed also must not be disturbed. This is
important to collect the evidence to prove rape.
2. Do not delay filing the FIR: Due to the stigma attached to the offence, the family
takes time to consider whether to report the offence to the police or to hush up the
matter. There are several levels of consultations take place within the family and even
at the community level. The social status of the rapists or his connection with
authorities also matter. If the rapist is wealthy, or has high social standing, and the
victim is from a poor family, there will be a great reluctance to report the crime.
Similarly if he is a relative or a neighbor, there will be reluctance. Due to this
sometimes cases are filed even after many days.
3. Go to a hospital directly and start treatment: Instead of going to the police station,
the victim can go directly to the hospital and get immediate medical treatment. This
will help not only to preserve crucial evidence against the accused but avert any
infectious or dangerous disease and avert pregnancy. Parents, relatives, friends, social
workers etc may accompany the victim for the medical examination. The FIR can be
lodged from the hospital itself.
 III. WOMEN IN CONFLICT WITH LAW OR FEMALE
OFFENDERS

The other part of the project comes now, where we discuss the woman as the accused. The
criminal procedure code is again a gender neutral law and has no specific provisions relating
to women in conflict with law. It is already a popular opinion that women are subjected to
more cruelty and outrage than men.

A woman involved in a non-bailable offence when arrested by police and committed to

prison pending trial of offence may easily fall prey to unscrupulous elements in the jail who
misuse their position either to make money from her relatives or abuse her physically and
sexually where she has no relatives to pursue her case or they are unable to meet the unlawful
demands of jail staff. Various complaints have been made and write ups published in
newspapers, highlighting this problem and stressing the need to find ways and means of
resolving it. This problem is very acute especially for women who are kept in jail for long
duration during the proceedings of the case. Afterwards, even if they are proven innocent and
acquitted, they carry the stigma of being in jail.

But except a pre-arrest bail, a woman have to first undergo the process of judicial custody by
detention in lockup before seeking such concession of bail from the court after her arrest.
There are also instances where a family abandons the woman and does not come forward to
furnish surety bond for her release on bail.

In some cases no one from the relatives turns up to conduct bail proceedings or defend the
trial therefore, she remains in detention even in minor offences for longer periods, at times
more than the period of punishment prescribed for the offence or actually awarded by the
court. This can also be the position in case of offences providing punishment of less than ten
years.

The object of detaining a person accused of an offence is to avoid his absconding from
inquiry or trial, or prevailing upon the witnesses by any manner or to disturb the investigation
or defeat the trial.

A woman has the responsibility of nurturing a child and managing the household. The
Criminal Procedure Code has to be amended in a manner that it incorporates the varied needs
of women in conflict law. A few suggestions are:
 1. Section 49618: “When any person other than a person accused of a non-bailable
offence, or a woman accused of a non-bailable offence providing punishment of
imprisonment not exceeding ten years, is arrested or detained without warrant by an
officer in-charge of a police-station, or appears or is brought before a Court, and is
prepared at any time while in the custody of such officer or at any stage of the
proceedings before such Court to give bail, such person shall be released on bail:
Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail
from such person, discharge him on his executing a bond without sureties for his
appearance a hereinafter provided:
Provided, further that nothing in this section shall be deemed to affect the provisions
of Section 107, Sub-section (4), or Section 117, Sub-section (3).”

2. Section 49719 after the second proviso a new proviso shall be added namely.-

“Provided further that the court, shall release a woman, accused of committing an
offence punishable with imprisonment of not exceeding ten years, on her executing a
bond for her appearance as if she has committed a bailable offence”

These amendments are suggested keeping in mind the rampant misuse of legal provisions in
detaining women and harassing them.

18
The Code Of Criminal Procedure, 1973
19
The Code Of Criminal Procedure, 1973
 IV. INTERNATIONAL PERSPECTIVE ON WOMEN RIGHTS
Women rights have been a major point of discussion internationally too. The most famous
convention held on woman’s right is Convention on the Elimination of All Forms of
Discrimination against Women20.
The signees to this convention have to make special state legislature on Women Rights and
protection of women from discrimination and provide them all the fundamental rights 21. The
State Parties also have to create their own definition of discrimination against women.22The
state parties shall take necessary action to remove and eliminate any kind of discrimination
against women.23 States Parties shall take all appropriate measures to ensure to women, on
equal terms with men and without any discrimination, the opportunity to represent their
Governments at the international level and to participate in the work of international
organizations.24 States Parties shall grant women equal rights with men to acquire, change or
retain their nationality. They shall ensure in particular that neither marriage to an alien nor
change of nationality by the husband during marriage shall automatically change the
nationality of the wife, render her stateless or force upon her the nationality of the husband.
States Parties shall grant women equal rights with men with respect to the nationality of their
children.25

20
New York, 18 December 1979
21
Article 3 of the Convention on the Elimination of All Forms of Discrimination against Women
22
Article 4 of the Convention on the Elimination of All Forms of Discrimination against Women
23
Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women
24
Article 8 of the Convention on the Elimination of All Forms of Discrimination against Women
25
Article 9 of the Convention on the Elimination of All Forms of Discrimination against Women
 V. CONCLUSION- FROM VICTIM TO VICTIMIZER:

Even though the amount women committing crimes is lower than men, there are a number of
heinous crimes that are committed by women.

“Certain masculinity has always been associated with crime, and women criminals are
relatively fewer—for total cognizable crimes in 2016, 3.54 million men were arrested while
the number for women was a far lower 193,241. However, there has been an increase in the
number of women coming in conflict with law in India. And among the Indian states,
according to the recent National Crime Records Bureau report, the maximum number of
women arrested under the Indian Penal Code (IPC) are from Maharashtra (28,029),
followed by Madhya Pradesh (22,587) and then Tamil Nadu (21,959). The maximum
convictions for women, however, are from Tamil Nadu (6,297), then MP (2,521), then
Maharashtra (2,499). On the contrary, for men, Uttar Pradesh tops the list of having
arrested maximum number of men under IPC, with 546,874 arrests, while the number of
women arrested there is 19,334.”26

At this point of the project I’d like to mention the case of Phoolan Devi who was a victim of
abuse, rape and harassment and turned towards crime for redressal. It is with this example I
put my point that many women to restore their status in the society and to take back the
power in their own hands they shift to crimes. Women have entered the mainstream and have
been facing crimes of different altitude all the time and this also affects the psychology of a
woman. This is the sole reason that a woman in conflict with law should not be treated at par
with the male offenders.

Since many female offenders are first timers and do not have a background of crime they are
subjected to a lot of leniency. A few case laws supporting this fact will be:

1. State Of Tamil Nadu Through Superintendent Of Police, CBI/SIT Vs Nalini And 25

Others27 On the night of 21 May 1991 a diabolical crime was committed. Rajiv
Gandhi, former Prime Minister of India, was assassinated by a human bomb in Tamil
Nadu. Nalini along with the deceased accused Sivarasan, Dhanu and Shubha met
Haribabu, met at a bus stand and proceeded to the venue of the public meeting on 21st

26
https://www.livemint.com/Politics/5XJa3pu9i1OrJFPonVFRfL/Increase-in-number-of-women-coming-in-
conflict-with-the-law.html, (visited on 23:27, 03-09-2019)
27
Death Reference Case No. 1 of 1998
 May 1991. Nalini provided cover to Dhanu and Shubha and when Rajiv Gandhi
arrived, Dhanu gained access near him and while in close proximity to him, she
detonated the explosive device kept concealed in her waist belt, resulting in the blast.
The apex court by a unanimous verdict confirmed death sentence against Santhan,
Murugan and Arivu. As regards the extreme penalty of death to Nalini was concerned
it was confirmed by majority of 2:1 (JJ Wadhwa and Quadri concurred). Judge
commuted sentence of death to life imprisonment.
2. Regina v. Kiranjit Ahluwalia In September, 1992 Kiranjit Ahluwalia made news after
she was released after serving three and a half years of a mandatory life sentence for
murdering her husband, Deepak, whom she had drenched in petrol while he was
sleeping and set alight. Her retaliation followed 10 years of systematic abuse, but
what caused her to flip on that fateful evening was that he had pressed a hot iron
against her, the scars of which she still bears. Kiranjit was released by Appeal Court
judges on ground of “diminished responsibility”.28
29
3. Priya Payel v. State of M.P & Anr The present case holds its importance for being
the only celebrated case in which the question whether a lady may be prosecuted for
gang rape has been taken up. The facts of the present matter were that the prosecutrix
was returning by train after attending a sports meet. When she reached her
destination, accused Bhanu Pratap Patel (husband of the accused appellant) met her at
the railway station and told her that her father has asked him to pick her up from the
railway station. The prosecutrix accompanied accused Bhanu Pratap Patel to his
house. He committed rape on her. When commission of rape was going on, his wife,
the present appellant reached there. The prosecutrix requested the appellant to save
her. Instead of saving her, the appellant slapped her, closed the door of the house and
left place of incident. On the basis of the complaint lodged, investigation was
undertaken and charge-sheet was filed. While accused Bhanu Pratap Patel was
charged for rape under IPC, the appellant was charged for commission of offences
punishable under Sections 323 (punishment for causing hurt) and 376(2)(g)
(punishment for committing gang rape) of IPC. The revision filed before the High
Court questioned legality of the charge framed so far as the appellant is concerned,
relatable to Section 376(2) (g) IPC. It was contended that a woman may not be

28
Bedi, Kiran. (1998). It‟s Always Possible: Transforming One of the Largest Prisons of the World. Sterling
Publishers: New Delhi, p.341.
29
CASE NO: Appeal (Crl.) 754 of 2006
charged for commission of offence of rape. The High Court was of the view that
though a woman may not commit rape, but if a woman facilitates the act of rape,
Explanation-I to Section 376(2) comes into operation and she may be prosecuted for
gang rape. The Supreme Court, apparently, had a different view. The apex court held
that, after a reading of Section 375 of the IPC, rape may be committed only by man. A
contention was raised by the counsel of the state that the woman may be held liable
for Abetment as under section 108 of the IPC. The court on this said that such
contention should have been raised in the trial court or in High Court, but it may not
be done in the Supreme Court.