SEXUAL OFFENCES

Sex is a natural instinct of human beings like other creatures.

Biologically, sex is considered as a great analgesic. It cures the sick and
makes the healthy, healthier. The amount of hormonal activity that takes
place during sexual intercourse is phenomenal and feeds virtually every part
of the body by increasing circulation and supply of blood and nutrients to
every area of the body. Good sex life keeps one in good shape. It has,
therefore, medically been established that a good sex life has a number of
advantages over sexual frustration or self-imposed celibacy. But sexual
instinct of human beings is not abnormal, rather it is a sacred and natural gift
to mankind. To overcome the tensions created by the blossoming days of
youth and having been inspired much by the present day dreamy
materialistic world of unnatural significance, this instinct is a bliss to human
being and aims to keep the continuity of creation.

To regulate and reform this uncontrollable human instinct, our

ancestors invented the institution of marriage in society. But, the beast in
human, at times, exposes its ugly face resulting in incidents of forced and
induced sexual offences against the will and consent of innocent women.
These sexual acts on woman by anti-social brutes create indecencies in her
decent life. In their ambitious and dreamy spring, some women suffer from
sexual cries, for none of their faults. Again the male dominated society,
links this accidental crime with morality and chastity of innocent women
and segregates her as a hated creature and outcastes her, for the rest of her
life in society.

With the advance of science, civilization and culture, the complexities

of life have enormously multiplied. Modern mechanization and urbanization

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has brought about total disintegration of the ‘family’ institution which has
creates serious problems in human life. The control of parents over their
wards has weakened considerably. In fact it is this parental negligence
which is mainly responsible for growing indiscipline, rowdyism and
vagrancy among youngsters. Uncontrollable hooliganism among youths has
become a serious problem for law enforcement agencies throughout the
world. It has rather become a social disease. As a result of this unhappy
development, the incidence of sex delinquency in the form of unmarried
motherhood, abortion, rape, kidnapping, enticement, abduction, adultery,
incest, molestation and indecent assault etc. has become too common. The
sex crimes show a galloping increase in the present day society and unless
immediate and drastic measures are taken, the consequences may turn to be
disastrous.

These sexual offences against women invariably take place in lonely

places, and there is less chance to get a disinterested witness. To prove these
crimes, while the investigating agency and prosecuting agency often fail, our
deleterious judicial system and legal requirement that all cases must be
proved beyond reasonable doubt further acts as a blessing to the perpetrator.
The failure of these prosecutions encourages the criminal to repeat these
crimes. Due to these drawbacks, today, sex crimes against women are grave
and show an increasing trend. Like any other western country, the sex
delinquency in India has also recorded an upward trend in recent decades.
Despite repressive socio-legal measures to control sex crime, the
‘permissive’ trend of the modern Indian society is causing obstruction for
prosecution and punishment of sexual-offenders. These offences, therefore,
have thrown a great challenge before the criminal justice administration.

On the other hand, amongst all the crimes, sexual harassment of

women at the work places has emerged as one of the least recognized and

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most appalling crimes. During the last few years, sexual harassment of
working women has given an inclination of the horrible behaviour patterns
prevailing in the Indian society. In the name of progress, development and
economic independency, we are losing out our moral values. It is rather sad
that while we celebrate women’s right in all spheres, we show no concern
for her honour and her dignity. It is a sorry reflection on the attitude of
indifference of our society. Justice Krishna Iyer points out:

"Gender justice, in the Indian context, whatever the resolutions in the

constitution has yet to arm the women with the confidence that in this
country she matters as a free partner at home, in public places and offices, in
opportunities of economic pursuits and social status, in family rights and
participation in State processes1."

Keeping the above facts in mind, this Chapter aims to make

comprehensive discussion on the recent trend on the incidence of sexual
offences against women. How far Indian judiciary has been able to translate
into reality the constitutional and legal mandates in this field has been
highlighted.

 Historical Evolution:

In India, polygamy was in prevalent for a long time before the

codification of Hindu law. Perhaps, the justification for the acceptance of
this practice was that it provided legitimate outlet for persons to pacify their
sex urge within the family itself. But the post-independence legislations on
divorce, immoral traffic in women and children, marriage and other
enactments relating to personal laws have narrowed down the scope of
legitimate sex activities to such an extent that there has been an enormous
increase in sex crime in recent times considered from this stand point, the

1
. Dr. Manoj Kumar,“Sexual harassment of women at work place A critique”, Cr. L.J. 2006 Journal P. 71

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codification of Hindu personal Law in 1956 can be treated as a retrograde
step so for sexual offence are concerned. It condemns all forms of sex
indulgences excepting the marital union of spouses as husband and wife. In
result there may be occasions when a man might not be in a position to
pacify the sex gratification of his wife whom he has accepted as his life
partner. Conversely, the wife herself might no be in a position to satisfy the
sex urge of her husband. The reason for his dissatisfaction need not
necessarily be impotency alone but there may be several other reasons such
as temperamental differences, physical imbalance, disease, attitude of
neglect or distrust for each other, personal occupations or vices in any of the
spouses or it may also be due to family circumstances where opportunities
for conjugal meetings may be wanting. This is bound to cause sex
frustration among the spouses which in turn, results in violation of sex-codes
thus leading to sex-delinquency. Significantly, the provisions of
Mohammedan law as marriage, dower and divorce seem to be more elastic
and permissive in this regard. The permissibility of four wives to a Muslim
husband, provisions of muta marriage and easy modes of talaq (divorce) are
in fact meant to mitigate illegal sex indulgence.

In spite of legal restrictions imposed on illegal sex indulgence, the

incidence of this vice is on a constant increase. The obvious reason for the
upward trend in sex-offences is that sexuality which is bio-physiological
phenomenon is as essential to human organism as food or water infect life
and sex are inseparable. Sexual impulse affects all alike whether male or
female rich or poor, educated or illiterate, men of high status or lower status.
The intensity of sex-emotion among individual may, however, vary
depending on their personal traits and bio-physical factors. Thus certain
persons may by nature be more sexy while others may be passive in
response. This difference in due to the condition of gonad glands which are

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more active in some individuals than in others. These variations in attitude
towards sexuality may also depend on physical, cultural or socio-economic
environment of individuals persons of high status, though actuated by sex-
desire may not have sufficient courage to spell it out due to the fear of losing
their social status where as those who do not have any real status in society
may not hesitate to express their sex-desire and indulge in sex behaviour
because they have no fear of losing their status in society. Thus sex-crimes
arise out of the physiological urge of human beings to satisfy their sexual
impulse. If this basic urge is not pacified through legitimate means, the
individual may resort to forbidden sexual acts which eventually result in
sexual crime. The problem of prostitution as a worse type of sex
delinquency necessarily arises out of this basic consideration about the sex
activities of mankind. Other forms of sex crime are rape adultery, incest,
outraging the modesty of women, prostitution sodomy, pornography, homo-
sexuality, exhibitionism, etc. The list is only illustrative and not exhaustive.
Minors may also be kidnapped for the purpose of prostitution.

 Causes of Sexual Offences:

"Violent behaviour is often caused by an interaction of situational and

individual factors. That means that abusers learn violent behaviour from
their family, people in their community and other cultural influences as they
grow up. They may have seen violence often or they may have been victims
themselves. Alchohal and other chemical substances may contribute to
violent behaviour. A drunk or high person will be less likely to control his or
her violent impulses."

Toby D. Goldsmith et. al., 22 November, 2000.

Like any other society, the Indian society expects that sexual
activities must be confined to marital relationship and indulgence outside

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marriage wedlock is an offence punishable under the penal law. 1 Another
notable feature regarding sexuality is that chastity is stressed more on
women than men.

Commenting on sexual behavior of mankind Donald Taft observes

that sexuality being a biological phenomenon needs no specific training. 2
The bio-physical changes with the growth of human body automatically
prepare men and women for sex behaviour. It must be noted that the present
moral confusion and vanishing effect of religious sanctions has given rise to
an unprecedented increase in sex violence. Sex-crimes have now-a-days
become so common that people have lost all seriousness about them and
they are looked upon as an ordinary mode of human behaviour.

The factors which are mainly responsible for step rise in sexual
offence are following:

1. The institution of religion which was once regarded as a potential

weapon of social control has lost its force in modern times. So is the case
with moral and ethical values of life. Due to the impact of western
culture, the age old traditional norms and customs are fast losing their
hold on Indian society. The craze for comforts and luxurious life has
undermined the glory of past traditional culture which has seriously
jeopardized the compactness of Indian life. The legislative measures such
as the Special Marriage Act, 1954; The Hindu Marriage Act, 1955; etc.
have contributed to disrupt the unity of joint Hindu family. Consequently,
morality has lost all its significance in modern sexy civilization. Lack
ness in domestic discipline offers frequent opportunities for judicial

1
. The penal provisions for sexual offences are contained in different sections of the Indian Penal
Code, viz, Rape. Sec.375; Adultery Sec. 497; Outraging the Modesty of Women Sec. 354;
Kidnapping of minors for Prostitution; Sec. 372; Sodomy Sec. 377 and Homosexuality and other
Unnatural offences Sec.377.
2
. Taft : Criminology (4th Ed.) p. 262

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 separation, divorce and marital disputes. This tendency is more
conspicuous among the educated people. It is significant to note that
uneducated and illiterate masses still have an unshaken faith in the family
system and integrity of family life. This accounts for the growing
incidence of sexual violence in urban areas as compared to rural areas.

2. The influence of intoxicants such as liquor, drugs etc., also accounts for
the incidence of sexual violence. Consumption of wine and liquor has
become a part of life with most of the persons. Under the influence of
intoxication, a man becomes wild and rash. He becomes emotionally
excited and forgetting all normal restraints, becomes aggressive and
commits sex violence reckless, though he may repent for it after he
resumes normal sense. Even fathers are known to have raped their
daughters or daughter-in-laws under the influence of intoxication.

3. The satisfaction of sex impulse is an important biological need of human

being. It is in fact a psycho-biological urge which needs to be pacified
through legitimate means. It is for this reasons that early marriages acted
as a safety valve to put a check on sex violence because they offered
legitimate opportunities to spouses to satisfy their sex desire and refrain
from forbidden sex indulgences. So the institution of marriage is to
suppress sex violence.

4. Family unhappiness due to write being frigid or husband being weak in

sex act may also divert the spouses to prohibited sex conduct.
Incompatibilities with regard to physique, temperament, habits etc. may
disturb the marital life of life partners which may lead either of them or
both to promiscuity as and when they get opportunity. At times, physical
complexion, features of spouses may also be the cause of dissatisfaction

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 leading to extramarital sex-indulgences. Family loneliness is also a factor
for sex violence.

5. Industrial development in India has brought a radical change in Indian

society. Family system has disintegrated. The modern Indian woman no
longer confines herself within the precincts of four walls of her house
but participates in outdoor activities shoulder to shoulder with men. As a
result of this change in the attitude of women, the housewife is no longer
content with a passive role in her domestic life. She does not meekly
submit herself to the commands of her husband but prefers to remain
only a companion to him asserting her independent existence in every
walk of life. As a result of this the integrity of marital life is gradually
vanishing. Closer association of women with men, particularly at work
places, provides occasion for intimacy which creates a background for
sex violence. Unfortunately sexual harassment of women in jobs and else
where have not yet received much public attention.

6. Urban development is also a factor in increasing of sex violence.

Urbanization due to industrial progress of the county has given rise to
several new problems in human life. Parents have to stay away from their
home for a considerable long time during working hours. This results into
neglect of children and lack of parental control over them. The
youngsters, therefore, tend to became more indisciplined, reckless,
repulsive and irresponsible. The tendency hooliganism, rowdyism and
attitude of indifference among the youngsters is essentially because of the
impact of urbanization and industrialization which has necessitated men
and women to stay away from their homes in pursuit of work and
employment, thus leaving little time to be spared for proper care of their
wards.

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7. The impact of western civilization on Indian life has been so great that
people have developed a craze for imitating western ways in every walk
of life. In result, Indian people have become more sexy than their
ancestors. The peculiar costume and clothing of modern girls and women
invite lustful looks of sexy persons. The cosmetics used by modern
women and the fragrance of scent, essence, perfumes and other cosmetics
also stimulate sex sensation. To add to the misery, the impact of
television and cinema is so great on the younger people that they learn
new ways of flirting, romance and Courtship from these films and try to
practice them in their real life. Thus, acquaintance between the male and
female adolescents leads to intimacy which finally turns into courtship
and in a fit of excitement and irresistible sex desire, the spouses
momentarily forget themselves and indulges into acts which they
subsequently realize to be sex violence. Once having experienced the
pleasure of sexual act, they are hardly able to resist their sex urge and
repeat it times again fully knowing about the illegality and gravity of the
consequences. This finally turns them recidivists.

8. In context of sex violence, a word must also be said about obscenity

which provides a fertile ground for sex-stimulation. The definition of the
word ‘Obscene’ suggests that any book, pamphlet, writing, article,
drawing, figure or painting or any such material shall be deemed to be
obscene if it stimulates sex and is likely to pervert the minds of those
who read it or see it.1

The test whether a particular matter is obscene or not, depends on the

interpretation of Section 292 IPC and not on expert evidence 2. Thus a
passage contained in a serious work giving advice to married men on

1
. Section 292 Indian Penal Code, 1860
2
. Ranjit D. Udeshi vs. State of Maharastra: 1965 S.C. 881

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 how to regulate sexual side of life was held not to be obscene. Although
it contained detailed description of sex act. In the historic Hicklin’s case,1
The Court observed that the test for deciding obscenity is whether the
tendency of the matter charged as obscene is to deprave and corrupt those
whose minds are open to such immoral influences, and into whose hands
a publication of this sort may fall.

In Samresh Bose vs. Amol Mitra2 the Apex Court drew a distinction
between obscenity and vulgarity and held that a vulgar writing is not
necessarily obscene vulgarity arouses a feeling of disgust and repulsion
and also boredom but does not have effect of depraving, debasing and
corrupting the morals of any reader which obscenity does. The test is
objective. In the instant case the publication was not held to be obscene
though it could be could called vulgar.

9. One important reason for growing incidence of sex violence in India is

that majority sex offenders get acquitted in the absence of eye witnesses
as these offences are always committed in desolate lonely places.
Besides fear, awe and humiliation also dissuades women, who is a
victim of sex violence, from approaching the law Court and even it they
dare to do so, they feel awkward in replying to questions relating to the
details of sex act. The medical experts also avoid giving a definite
opinion about the sexual intercourse having been done by the accused in
order to play safe. The victimized woman seldom raises hue and cry
against the culprit.

In short, "the trauma of the incident of sex crime, particularly the

offence of rape, followed by the trauma of having to narrate the facts to
the police followed by trauma of undergoing medical examination o the

1
. 1868 QB 360
2
. AIR 1986 S.C. 967

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 most intimate organs of the body, are enough discouragements to a
victim. Added to this, is the trauma for being subjected to rigid cross-
examination in the Court-room.1" If the victim happens to be a child or a
teenage girl, she may not be able to unfold the story fully and freely
before the Court, when confronted with the offender.

10. The chief reasons for child abuse in India attach themselves to
prevalent myths, ignorance and superstitions beliefs. The belief that
having sex with an infant or a virgin can cure a man of impotency.

 Kinds of Sexual Offences:

Some of the sexual offences are mentioned bellow:

1. Rape,
2. Unnatural offences,
3. Homosexuality,
4. Prostitution,
5. Pornography and Indecency.

[1] Rape:

Rape has been a significant device of domination upon the body and
will of women throughout the human history across all the cultures and
geographical boundries. The legal system in India has also sexualized the
female body while defining the offence of rape by taking refuge to juristic
precepts and analytical categories of the white middle class male
jurisprudence. The male stream jurisprudence pushed sexual assault to the
private sphere concentrating mainly on the sexed body of female under the
established patriarchal design. In the traditional structure of epistemology
the knowledge and experience of women has been thus, been subjugated.

1
. N.V. Paranjape : Criminology and Penology (13Ed.) p. 155, (Quoted from Law India-Vol. Nov. 4
(Oct. Dec. 1992) A quarterly news letter published by the Indian Law Institute, Delhi

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 The offence of rape emerges as a problematic due to enormous and
intense feminist thinking particularly in the last three decades. The first
phase of the feminism was a struggle for equality. The feminism in the
second phase is a visit to structure including an invitation to various radical
approaches and even recourse to Marxism in the feminist scholarship. The
cultural feminism must be of special significance to countries like India.
According to which without a serious reference to socio-cultural
construction any attempt towards liberation or ameliorations of women may
lead only to miserable failure. In this trend it is being argued that the legal
concepts must be moulded in the experience and image of women and the
‘perspectivity/contextualization’ must form an essential component of the
Judicial hermeneutics. The third phase is the phase of disillusionment with
the legal ideology or the ideology of law as an instrument of social
transformation and it is being observed that the domination, sexualisation
and exploitation of women can not be eliminated without demolishing the
patriarchal social structures supported by various institutions like caste,
religion and also law.

During the freedom struggle and the Indian renaissance some

important social reformers focused their attention on women’s issues and
due to there efforts there was an emergence of humanitarian approach which
was incorporated in the legal system also and a plethora of legislations
appeared seemingly to end the age old subjugation of women in India for
examples, Prohibition of Sati Act, 1829, Hindu Widow Remarriage Act,
1856 and The Child Marriage Restraint Act, 1929.

After independence various provisions were made in the Constitution

of India, guaranteeing right to equality, protective discrimination, to help
women and other weaker section of the society, reservation for political
participation and empowerment. The concern of Judiciary regarding the

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plight of women has become manifest when the Apex Court declared the
offence of rape to be violative of Article 21 of the Constitution of India,
guaranteeing for life and liberty, sexual assault violates human dignity 1.

The Available Remedy for Rape:

Indian Penal Code, 1860 (herein after called the IPC), recognizes
sexual excesses as offences punishable with imprisonment and fine. This
Code, inter alias, deals with an provided punishment for various types of
sexual offences, namely (1) sexual intercourse amounting to rape or what
has been termed in the I.P.C. as a ‘Rape’, as defined in Section 375 of
I.P.C., (2) sexual intercourse not amounting to rape as described in Section
376A to 376D and (3) unnatural offences or what is also referred to as
carnal intercourse as defined under Section 377. Sexual intercourse is the
prime element in constituting the offences contemplated under Sections
375 and 376A to 376D. In respect of the third category of offence, what is
to be established is sensual intercourse. The said Code also contemplated
different categories of rape-victims and rapists, besides providing
conditions under which sexual intercourse can amount to punishable
offence. Schedule I to the Code of Criminal Procedure, 1973 (here in after
called the Cr PC) enlists the first category of offence, i.e.. Rape as a
cognizable and non-bailable offence, and the last two categories as non-
cognizable and bailable offences.

It may be observed that in spite of there being the IPC and Cr PC and
Evidence Act, 1872 provisions, the rate of sexual offences is in an
increasing trend. This may presumably be because of the noticeable lacuna
in the law, such as lack of precision in the definitions given to the terms
rape, sexual intercourse man and woman, thus leaving the major

1
. Bodhisatva Gautam v. Mrs. Shubhra Chakravarti-AIR, 1996,S.C.,922

308
responsibility of interpretation of the same in the given circumstances to the
criminal Courts, lack of uniform punishments to the offenders irrespective
of the age and other considerations, absence of any provision for the
payment of compensation to or rehabilitation of the victims of sexual
offences, abnormal delays in the administration of justice, etc. thereby
allowing this social menace to be a knot to the social progress. There is
therefore, an immense need to have a rethinking about the legal measures so
as to tackle this growing indecent social contingency.

Sexual Offences Under the I.P.C.:

As already discussed above, the sexual offences under the I.P.C. can
broadly be divided into the following three categories:

1. Rape as defined in Section 375.

2. Sexual intercourse as explained in Sections 376A to 376D, and
3. Unnatural offences of carnal intercourse as defined under Section 377.

For a meaningful understanding of each of these offences, it would be

essential to further discuss the above provisions of the I.P.C. in the
following manner:

According to Section 375 of the I.P.C., a man is said to commit rape

who, except in the case here in after excepted, has sexual intercourse with
woman under the 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 person in whom she is interested,
in fear of death or of hurt.

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 Fourthly, With her consent, when, the man knows that he is not her
husband, that her consent is given because she believes
that he is another man to whom she is or believes herself to
be lawfully married.

Fifthly, With her consent, when, at the time of giving such a

consent, by reason of unsoundness of mind or intoxication
or, the administration by him personally or through
another of any stupefying or unwholesome substance, she
is unable to understand the nature and consequence 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.

An analysis of the above definition reveals that the following elements

are essential for constituting the offence of rape namely:

1. That there must be sexual intercourse by a man with a woman;

2. That such sexual intercourse has been initiated against the will of the
woman or without her consent; and

3. That if the sexual intercourse is initiated with the consent of the woman;

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 (i) Such a consent is obtained by putting her in fear of death or of hurt, or

(ii)The consent is given by her in the wrong belief that the rapist-person
is her lawfully married husband,

(iii) The consent is given by her when by reason of unsoundness of mind

or intoxication or the administration by the rapist-person personally or
though another of any stupefying or unwholesome substance and that
she is unable to understand the nature and consequences of that to
which she gives consent;

(iv) The consent is given when she is under sixteen years of age.

However, sexual intercourse which does not fall in any of the above
descriptions for which is made by a man with his own wife, the wife not
being under the age of 15 years. Even if it is done without her willingness
for consent, does not constitute the offence of rape within the meaning of
Section 376 of the I.P.C. But sexual intercourse initiated even with the
consent of a woman whose age is less that sixteen years amounts to rape
within the meaning of that Section.
It is notable that, in exception of Section 375 IPC for the words
‘fifteen years of age’ the words ‘sixteen years of age’ should be substituted
on the recommendation of the Law Commission, from that in exception of
Section 375 and 375 (6) parity may be established. 1
In this connection, it may also be observed that the words man and
woman appearing in Section 375 respectively denote a male human being of
any age and a female human being of any age, within the meaning of
Section 10 of the I.P.C. That means for the purpose of constituting the
offence of a rape, age is not a criterion.

1
. 154th Report of Law Commission.

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Punishment of rape:
Section 376 (1) - Whoever, except in the cases provided for by sub-
section (2), commits rape shall punished with imprisonment of either
description for a term which shall not be less that seven years but which may
be for life for or a term which may extend to ten years and shall also be
liable to fine unless the woman raped is his own wife and is not under
twelve years of age, in which case, he shall be punished with imprisonment
of either description for a term which may extend to two years for with fine
for with both:
Provided that 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.
(2) Whoever -
(a) being a police officer commits rape -
(i) within the limits of the police station to which he is appointed; or

(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 jail, remand home for other
place of custody established by or under any law for the time being in
force or of a women’s or children’s institution takes advantage of his

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 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 or 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.

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 women or children or
a widow’s home or by any other name, which is established and maintained
for the reception and care of women 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.

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Whether Rapist should be Punished with Death Sentence:

The Malimath Committee on Reforms of Criminal Justice System in

its Report (2003) did not favour imposing death penalty for the offence of
rape as in its opinion, the rapist may kill the victim. Instead it recommends
sentence of imprisonment for life without any commutation or remission.

The case of Tukaram vs. State of Maharastra1, deserves mention here

which is famous as Mathura case. In this case, a girl, Mathura was called at
Police Station for some inquiry regarding her kidnapping but there a police
constable on duty did sexual intercourse with her and another police
constable who could not do sexual intercourse being in a drunken state
fondled her private parts. On the basis of the facts of the case, the Sessions
Judge took the view that it was not a case of rape but voluntary sexual
intercourse. However, the High Court held it a rape. The Supreme Court
recording the acquittal of the accused person said it was not a case of rape
because she meekly followed the policemen to the extent of satisfying their
lust in full without crying for help when her relatives were present and it
could not be brushed aside as a case of passive submission by the girl. Due
to this case, there was much hue an cry from the various organizations
demanding the amendment of the law of rape with stringent penal
provisions. The Government brought an amendment which was passed by
the Parliament in 1983. Section 376 was thus amended. The amended
Section has made stringent penal provisions for the rape committed by a
police officer, a public servant, a member on the management or on the staff
of a jail, remand home or other place of custody or of a children’s or
women’s institution committing rape on any inmate, a member on the
management or on the staff of a hospital, a rape committed on a pregnant
woman, a rape on a woman under 12 year’s age and a gang rape.
1
. AIR 1979 SC 185.

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 Besides the aforesaid amendment, Sections 376A to 376D were added
in the Indian Penal Code. Under Section 376A, intercourse by a man with
his wife during separation, under Section 376B intercourse by a public
servant with a woman in his custody by taking the advantage of his official
position which does not amount to rape, under Section 376C intercourse by
the superintendent or manager 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
women’s or children’s home by taking the advantage of his official position
and the intercourse not amounting to rape, and under Section 376D
intercourse by any member of the management or staff of a hospital with
any woman in that hospital and the intercourse not amounting to rape are
punishable.

Sentence less than minimum-Adequate reasons to be given

In State of M. P. vs. Parasram1, it was held that sentence of less than

the minimum term of imprisonment could be given only for adequate and
special reasons to be mentioned in the judgment. So when the High Court
did not assign any satisfactory reason much less adequate and special
reasons for reducing the sentence to a term which was far below the
prescribed minimum, the sentence awarded was clearly illegal 2.

In case of State of M. P. vs. Bala alias Balaram 3, a similar view was

expressed by the Supreme Court.

Categories of Rapist Men under the IPC:

On the analogy made above, it is possible to categorize the rapist-men

in the following manner:

1. Rape by a person other than a public servant (Section 376) (1).

1
. 2005 Cr. LJ 4365 (S. C.)
2
. Ibid, at p. 4366
3
. 2005 Cr. LJ 4371 (S.C.)

315
 2. Rape by a police officer (Section 376 (2).

3. Rape by a public servant taking advantage of his official position or a

woman in his custody or in the custody of any of his subordinate
(Section 376 (2) (b).

4. Rape on any inmate of a jail, remand home or other place by a person

taking advantage of his official position while on the management or
staff of a jail, remand home for other place of custody established by
or under any law for the time being in force (Section 376 (2) (C).

5. Rape on any inmate of a women’s or children’s institution, by a

person on the management or staff thereof taking advantage of his
official position. (Section 376 (2) (C).

6. Rape on a woman in hospital taking advantage of his official capacity

while on the management or on the staff of such hospital. (Section
376 (2) (d).

Kinds of Rape:

Rape can be of the following two kinds under the I.P.C., namely:

1. Rape by a single individual (Section 376) (1); and

2. Rape by more than one individual or “Gang Rape” (Section 376 (2)
(g).

Sexual Intercourse not amounting to Rape:

By making a reference to Section 376A to 376D, sexual intercourse

as an offence by not amounting to the offence of rape, shall by categorized
as follows:

1. Sexual intercourse by a man with his wife without her consent during the
period of legal or lawful separation (Section 376A).

316
2. Sexual intercourse by inducing or seducing by a public servant with a
woman in his custody (Section 376B).

3. Sexual intercourse by the superintendent or manager of a jail, remand

home or other place of custody by inducing or seducing any female
inmate thereof taking advantage of his official capacity (Section 376C).

4. Sexual intercourse by the superintendent or manager of a woman’s or

children’s institution by inducing or seducing any female inmate thereof
taking advantage of his official position (Section 376C); and

5. Sexual intercourse by any member of the management or staff of a

hospital with any woman in that hospital taking advantage of his position
(Section 376D).

In respect of the first category of offence, Section 376A does not

specify whether it amounts to rape or not. But based on the punishment
prescribed thereof or which punishment is lesser in degree than that
specified for the offence of rape under Section 376, it may be construed that
the offence under Section 376A does not amount to rape, but still can be an
offence. The words “not amounting to the offence of rape", appearing in
Sections 376B to 376D can be interpreted two dimensionally to mean either
that the law itself specifies that the offences contemplated there under, do
not amount to the offence of rape for that the offences contemplated there
under should not amount to rape, and the burden of proof in the latter case
depends upon the culprit. The new amendment of Section 114-A of
Evidence Act, 1872 is aimed to support the victims of rape.

It may be observed that the legislative intention is not as clear as it

ought to be in providing distinction without any conceivable difference in so
far as sexual intercourse committed against any woman in the custody of
any public servant or any woman inmate belonging to any women’s or

317
children’s institution or any woman in a hospital as both kinds of sexual
intercourse are contemplated simultaneously in Section 375 (rape) and
Sections 376A to 376D. As such the problem of distinction of offences
which amount to rape and which do not amount to rape under the aforesaid
Sections is solely left to the discretion of the Courts of law. However, a
bird’s eye view of these provisions enables to draw the following difference
in the above context, namely:

1. In case of sexual intercourse amounting to rape under Section 375 what is

to be established is that, the sexual intercourse is initiated against the will
or consent of the woman; and whereas in respect of sexual intercourse
contemplated under Sections 376B to 376D, what is required is that it is
initiated by inducement or seducing;

2. Section 375 (Rape) is applicable to any woman and any person in

general, and in respect of offences under Sections 376A and 376B, the
application is in respect of only the given category of women and men.

3. In respect of offence under Section 375 higher rate of punishment, i.e., not
less than 7 years imprisonment and fine (except in case of a woman under
12 years of age and is a wife) (Section 376), and whereas in case of
offences under Sections 376A to 376D, the punishment prescribed is
imprisonment extending to 2 years to 5 years, as the case may be, and fine.

4. However, in either case of descriptions, i.e., rape and other than rape
against a woman whose age is less than 16 years, the sexual intercourse
amounts to rape irrespective of whether or not it is initiated with her
consent.

The Will, Consent and Sexual Intercourse in Rape Cases:

The definition of the term rape under Section 375 contemplates, inter
alias, three important elements, i.e., ‘will’, ‘consent’ and ‘sexual

318
intercourse’ for constituting the offence of rape. While the term will and
consent are substitutes to each other, but the term sexual intercourse must
co-exist with either of the first two terms for bringing a sexual act within the
meaning of the term ‘rape’. However, it is surprising to note that the IPC is
silent regarding the defining of these three important terms, except
providing that “penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape” under explanation below the sixth
description of circumstances for constituting the offence of rape within the
meaning of Section 375. Similarly, the Code is also silent regarding the
meaning of the term ‘penetration’ appearing in the said explanation below,
Section 375. For this purpose, one has to run after either to the dictionary
meaning or to other literary or legal works. Broadly speaking, there is no
significant difference between the terms ‘will and consent’ except that in
respect of the former, it refers to only one side of the individual concerned,
and whereas in respect of the latter, it denotes to the side of two or more
individual parties. According to Section 13 of the Indian Contract Act,
‘consent’ means “Two or more persons are said to consent when they agree
upon the same things in the same sense”. The scope of the term consent is
larger under the I.P.C. than under the Indian Contract Act, 1872 as is evident
from the decisions of the Courts on this aspect.

The judiciary, in several cases has widened the meaning of rape

offence. Where a medical man to whom a girl of 14 years of age
consulted for professional advice, had developed illicit sexual connection
with that girl, and she did not resist the same under the bonafide belief
that he was treating her medically, was held guilty of the offence of rape. 1
Where a person who was engaged to give lessons in singing to a girl of 16
years of age, had sexual intercourse with her under the pretext of

1
. William’s Case (1850), 4 Cox 210

319
regulating her voice properly by means of an operation, was held to be
guilty of rape.1 Where a man had carnal knowledge of a girl of imbecile
mind, and she being incapable of giving consent form defect of
understanding, it was held that the person had committed the offence of
rape.2 In Madan Gopal Kakkad v. Naval Dubey and another,3 the accused
Madan Gopal, a fresh medical graduate hailing from highly educated
family, made a 8 years old girl naked and asked her to do “fellatio” and
later ejaculated semen in her vulva by sexual intercourse without
destroying her hymen and reportedly there appears no evidence of her
resistance, the High Court found him guilty of only the offence under
Section 354 (assault or criminal force to woman with intent to outrage her
modesty). But the finding of the High Court was rejected by the Supreme
Court and held him guilty of rape.

The Honourable Court has also taken note of the following aspects
that "sexual intercourse is held to mean the slightest degree of penetration of
the vulva by the penis with or without emission of semen. It is, therefore,
quite possible to commit legally the offence of rape without producing any
injury to the genitals or leaving any seminal stains."

In order to constitute the offence of rape, the fact that in the act of
"sexual intercourse, even slight penetration is sufficient and emission is
unnecessary" was also taken into consideration by Halsbury's Statutes of
England and Wales (4th Edition), Vol. 12 with reference to Section 44 of the
Sexual Offences Act, 1956. In American Jurisprudence, it has been duly
recognized that slightest penetration is sufficient proof to complete the
crime of rape.

1
. William’s (1923), 1 K.B. 340
2
. Fletcher (1859), 8 Cox-131
3
. 1992 (2) Crimes, S.C. 168

320
 Dr. Arjit Pasayat and Ashok Kumar Ganguly J. J. in Case of Arjun
Singh vs. State of H.P,1 observed that, the offence of rape occurs in Chapter
XVI of IPC. It is an offence affecting human body. In that Chapter there is a
separate heading for 'Sexual Offences', Which encompasses Sections
375,376,376-A to 376-D. Rape is defined in Section 375. Sections 375 and
376 have been substantially changed by Criminal Law (Amendment) Act,
1983 and several new Sections were introduction by the new Act, i.e. 376-A
to 376-D. The fact that sweeping changes were introduced reflects the
legislative intent to curb with iron hand, the offence of rape which affects
the dignity of a woman. The offence of rape in its simplest term is the
ravishment of a woman, without her consent, by force, fear or fraud, or as
the carnal knowledge of a woman by force against her will. Rape is when a
man hath carnal knowledge of woman by force and against her will (Co.
Litt. 123-b), or as expressed more fully, rape is the carnal knowledge of any
woman, above the age of particular years, against her will; or of a woman
child, under that age, with or against her will' (Hale PC 628). The essential
words in an indictment for rape are rapuit and carnalitier cognovit; but
carnalitier cognovit, nor any other circumlocution without the word rapuit,
or not sufficient in a legal sense to express rape; 1 Hon 6.1a, I Edw. 4, 26 a
(hale Pc 628). In the crime of rape, 'carnal knowledge' means the penetration
to any the slightest degree of the organ alleged to have been carnally known
by the male organ of generation (Stephen's Criminal Law "9 th ed. P 262). In
'Encyclopedia of Crime and Justice' (Volume 4, Page 1356), it is stated even
slight penetration is sufficient and emission is unnecessary. In Halsbury's
Statues of England and Wales (4th ed. Vol. 12), it is stated that even the
slightest degree of penetration is sufficient to prove sexual intercourse. It is
violation with violence of the private person of a woman-an-outrage by all

1
. [2009 (75) AIC 19 (S.C.)]

321
means. By the every nature of the offence it is an obnoxious of the highest
order.

[1Recently, the Supreme Court on Wednesday commuted the death

sentence of accused Santosh Kumar Singh in the sensational 14 year old
Priyadarshini Mattoo rape and murder case, sparking strong reaction from
the family and friends of the victim.

The Apex Court bench Comprising Justices H. S. Bedi and C. K.

Prasad upheld the conviction of Singh, then a law college student, for killing
and raping Motto, his junior, but reduced the death sentence to life
imprisonment, saying certain things were in his favor.

“The conviction is maintained,” the bench said adding however, “To

our mind, certain things are in favour of appellant (Singh). We are
converting the Punishment of death sentence in to the life imprisonment.”

Singh, son of former senior I. P. S. officer, had challenged his

conviction and death sentence awarded by the Delhi High Court which had
set aside his acquittal by the trial court in the case. The lawyer appearing for
the Motto family said that he will file review or curative petition seeking
enhancement of the punishment after persuing the verdict. Thus, the case
has not met the right treatment by the Apex Court.]

 Gang Rape:

Specie of rape, gang rape has been defined in explanation 1 to Section

376 (2) (g) IPC. Where there were two persons involved, they were guilty of
the offence of committing gang rape. 2 In case of Lalli Ram and others vs.
State of M. P.3, Apex Court observed that where allegation is of rape by
many persons and several times but no injury is noticed that certainly is an
1
. Times of India Allahabad, Thursday, October 7, 2010 P. - 1
2
. Balwant Singh vs. State of Punjab (1987) 2 SCC 27;
3
. (2008) 10, SCC, 69.

322
important factor. It is true that injury is not a sine qua non for deciding
whether rape has been committed. But It has to be decided on the factual
matrix of each case. If the Court finds it difficult to accept the version of a
prosecutrix on the face value, it may search for evidence direct or
circumstantial.

Marital Rape:

In the exception to Section 375, IPC, sexual intercourse by a man

with his own wife, the wife not being under fifteen years of age is not rape.
The wife's 'consent' is based on the common law rule of martial exemption.
However this concept has undergone a change and marital rape is now an
offence in the USA, Sweden, Denmark, Australia and U. K.1

In India, If the women is separated from her husband under a decree

of judicial separation and her husband has sexual intercourse with her,
without her consent, it would amount to rape.2

Custodial Rape:

The Criminal Law (Amendment) Act, 1983 introduced new Sections

in the IPC, namely Sections 376-B to 376-D to stop sexual abuse of women
in custody, care and control by various categories of persons. It is an
aggravated form of rape calling for a sentence sterner than ordinary rape.
Hence for combating the evils of custodial rape, rape on pregnant woman,
girls under twelve and gang rape, a minimum punishment of ten years
imprisonment has now been prescribed.

Custodial rape may be committed by a police officer, public servant,

person of the management or staff of a jail or a remand home or other place
of custody for women and children or by one of the management or staff of

1
. G.B. Reddy; Women and the Law (Gogia Law Agency, Hyderabad, ed. IInd 1998), P.81
2
. Section 376-A

323
hospital. In all cases of custodial rape the person takes advantage of his
official position.1

Compensation to Rape Victims:

In the case of Delhi Domestic Working Women’s Forum vs. Union of

India2 the petitioner Women’s 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 to 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 rehabilitation 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, complaints are handled
roughly and are not given such attention as is warranted. The victims, more
often than not, are humiliated by the police. The victims have invariably
found rape trials a bad 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:

1
. Omkar Prasad Verma v. State of M.P. (2007) 4. SCC, 323
2
. (1995) 1 SCC 14

324
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 form 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 represents 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 have to be provided at the police
station since and 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 question were asked of her and the police
report should state that the victim 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 nay 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 authorized to
act at the police station 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 for as necessary.

325
7. It is necessary, having regard to the directive principles contained under
Article 38 (1) of the Constitution, to set Criminal Injuries Compensation
Board. Rape victims frequently incur substantial loss. Some, for example,
are too terrorized 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:

The case of Bodhisattva Gautam vs. Subhra Chakrawarty 1 a person

developed sexual relationship with the prosecutrix on false assurance of
marriage and later secretly married her before God by putting vermilion on
her forehead. He impregnated her twice but on both the occasions he
compelled her to undergo abortion and ultimately deserted her. The
Supreme Court directed the guilty person to pay Rs. 1000/- per month as
interim compensation to the prosecutrix during the pendency of criminal
case. This judgment is a precedent for granting interim compensation to the
rape victims during the pendency of criminal case if a prima facie case is
made out against the accused.

1
. (1996) 1 SCC 490

326
Rape of unchaste woman:

Rape victim need not be women of chaste character. The Supreme

Court has laid down that the unchastity of a woman does not make her
“open to any and every person to violate her person as and when he wishes.
She is entitled to protect her person if there in an attempt to rape her. She is
equally entitled to protection of law. Therefore, merely because she is a
woman of easy virtue, her evidence cannot be thrown overboard. Thus in the
case of State of Maharashtra vs. Madhukar N. Mardikar1 the Supreme Court
held that even a prostitute has a right to privacy and no person can rape her
just because she is a woman of easy virtue.

The foregoing discussion makes it clear that rape is considered as

serious offence that not only affects the body of a woman but also her basic
human dignity which includes her privacy also.

Procedural Aspects of Rape Cases:

(i) Medical Examination of rape victim: Section 164-A as inserted by the

amendment of Cr. P.C. in 2005 is as follows:

164 - A. Medical examination of the victim of rape – (1) Where, during

the stage when an offence of committing rape or attempt to commit rape is
under investigation, it is proposed to get the person of the woman with
whom rape is alleged or attempted to have been committed or attempted,
examined by a medical expert, such examination shall be conducted by a
registered medical practitioner 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, with the consent of such woman or
of a person competent to give such consent on her behalf and such woman
shall be sent to such registered medical practitioner within twenty-four hours

1
. (1991) 1 SCC 57

327
from the time of receiving the information relating to the commission of
such offence.

(2) The registered medical practitioner, to whom such woman is sent shall,
without delay, examine her person and prepare a report of his
examination giving the following particulars, namely –

(i) the name and address of the woman and of the person by whom she
was brought;

(ii) the age of the woman;

(iii) the description of material taken from the person of the woman for
D.N.A. profiling;

(iv)marks of injury, if any, on the person of the woman;

(v) general mental condition of the woman; and

(vi)other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived
at.

(4) The report shall specifically record that the consent of the woman or of
the person competent to give such consent on her behalf to such
examination had been obtained.

(5) The exact time of commencement and completion of the examination

shall also be noted in the report.

(6) The registered medical practitioner shall, without delay forward the
report to the investigation officer who shall forward it to the Magistrate
referred to in Section 173 as part of the documents referred to in Clause
(a) of sub-section (5) of that section.

328
(6) Nothing in this section shall be construed as rendering lawful any
examination without the consent of the woman or of any person
competent to give such consent on her behalf.

Explanation – For the purposes of this section “examination” and

“registered medical practitioner” shall have the same meanings as in Section
53.

(ii) Examination by Medical Practitioner:

Section 53-A as inserted by the amendment of Cr. P.C. in 2005

provides:

53-A. Examination of person accused of rape by medical

practitioner1 –

(1) When a person is arrested on a charge of committing an offence of

rape or an attempt to commit rape and there are reasonable ground
for believing that an examination of his person will afford evidence
as to the commission of such offence, it shall be lawful for a
registered medical practitioner employed in a hospital run by the
Government or by a local authority and in the absence of such a
practitioner within the radius of sixteen kilometers from the place
where the offence has been committed by any other registered
medical practitioner, acting at the request of a police officer not
below the rank of a sub-inspector, and for any person acting in good
faith in his aid and under his direction, to make such an examination
of the arrested person and to use such force as is reasonably
necessary for that purpose.

1
. Inserted by Cr.P.C. (Amendment) Act, 2005, Section-9

329
 (2) The registered medical practitioner conducting such examination
shall, without delay, examine such person and prepare a report of his
examination giving the following particulars, namely –

(i) the name and address of the accused and of the person by whom
he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused
for D.N.A. profiling, and

(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion
arrived at.

(4) The exact time of commencement and completion of the examination

shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the
report of the investigating officer, who shall forward it to the
Magistrate referred to in Section 173 as part of the documents
referred to in clause (a) of sub-section (5) of that section.

(iii) Corresponding improvement: A further improvement: A further

improvement in the law relating to sexual offences has been made in the
provisions of Section 228A, Indian Penal Code, Section 327 (2) of Cr. P.C.
and Section 114A of the Indian Evidence Act, which too were introduced by
the same Amendment Act, 1983. The first provision aforementioned
punishes a person who discloses the names or identity of the rape victim.
The second provision provides a similar protection to the rape victim to the
effect that the inquiry and the trial of rape should be conducted in camera.

330
The third provision incorporates a presumption in the Indian Evidence Act,
that where sexual intercourse by the accused with the prosecutrix is proved,
and if she alleges that she has been raped, the Court shall presume that she
did not consent. All these provisions are intended for the protection and
benefit of the rape victims.

(iv) Punishment for disclosure of name of rape victim etc.: Section 228A
of the IPC punishes a person who prints or publishes the name or any matter
which may identify any person against whom rape was committed or alleged
to be committed under Sections 376, 376A, 376B, 376C, and 376D. This
protection is introduced to protect the rape victims from the public ridicule
and the stigma they carry if their identity is disclosed.

The Supreme Court has held that trial of rape cases must invariably
be held in camera.1 The Supreme Court further held that the Courts should,
as far as possible, avoid disclosing the names of the prosecutrix in their
orders to save further embarrassment to the victim of sex crime. The
anonymity of the victim of the crime must be maintained throughout.
Section 327 (2) of the Code of Criminal Procedure, 1973 also makes a
similar provision to the effect that the inquiry into and trial of rape or an
offence under Section 376 shall be conducted ‘in camera’.

(v) Presumption of rape: Under Section 114A of the Indian Evidence Act,
1872, in a prosecution of rape under Section 376 of Indian Penal Code
where sexual intercourse by the accused is proved and the question is
whether there was consent of the woman alleged to have been raped, the
Court shall presume that she did not consent. Thus if the alleged victim
states that she was raped, the Court shall always presume that she did not
consent. The reason for such a presumption appears to be that a rapist not

1
. State of Punjab vs. Gurmit Singh, (1996) SCC

331
only violates the victim's personal integrity but also degrades the very sole
of the helpless female. 1 In the case of Doctor Sudhanshu Sekhar Sahoo vs.
State of Orissa2 the accused was a DMO alleged to have committed rape of
a lady supervisor. The prosecutrix was an educated lady of status. Her
statement was believable, credible and consistent and same was made basis
for conviction of the accused. In the case of rape conviction can be based on
the sole testimony of the prosecutrix without any corroboration if her
testimony is otherwise worthy of credence. However corroboration by
medical evidence can be insisted upon where such evidence is forthcoming. 3
Absence of extensive injuries on person of the prosecutrix does not make
her version a false one on that ground. 4

(vi) Delay in lodging complaint: In rape cases, merely because the

complaint was lodged less than promptly, it does not raise the inference that
the complaint is false. The reluctance to go to the police is because of
society’s attitude towards such woman; it casts doubt and shame upon her
rather than comfort and sympathies with her.5

The Committee on Reforms of Criminal Justice System in its Report

(2003) recommended the provision to be made in the Code permitting filing
of F.I.Rs. in respect of offences Under Sections 376, 376-A, 376-B, 376-C,
376-D and 377 of I.P.C. within a reasonable time.

But, “In normal course of human conduct an unmarried girl who is

victim of sexual offence would not like to give publicity to the traumatic
experience. Thus delay in lodging F.I.R. can not use as ritualistic formula
for doubting the prosecution case.” This was stated in Dildar Singh v. State

1
. Dharma vs. Nirmal Singh, 1996 (1) SCC 780.
2
. 1994 (1) Cri. 44 Orissa.
3
. Madam Gopal Kakkad vs. Naval Dubey (1992) 3, SCC 204
4
. State of Maharastra vs. Priya Sharan Maharaj (1997) 4 SCC 393
5
. Karnel Singh vs. State of M.P. 1995 (3) Crimes 527 S.C.

332
of Punjab1, where a minor girl was raped by her teacher and there was delay
of three months in lodging FIR. The Court further said that delay has the
effect of putting the Court on guard to search if any explanation has been
offered for delay and if offered, whether it is satisfactory.

(vii) Duty of Courts while trying rape cases: The Supreme Court as
pointed out in recent case, the duty of the Courts which try the offence
relating to rape. The Court observed that “the Courts are expected to show
great responsibility while trying an accused on charges of rape. They must
deal with such cases with utmost sensitivity. The Courts should examine the
broader probabilities of a case and not get swayed by minor contradictions
or insignificant discrepancies in the statement of the witnesses, which are
not of a fatal nature to throw out allegations of rape. This is all the more
important because of late crime against women in general and rape in
particular is on the increase. It is an irony that while we are celebrating
woman’s rights in all spheres, we show little or no concern for her honour. It
is a sad reflection and we must emphasize that the Courts must deal with
rape cases in particular with utmost sensitivity and appreciate the evidence
in the totality of the background of the entire case and not in isolation”. 2

The Court has approvingly quoted in this case the observation of

Justice Dr. A.S. Anand in State of Punjab vs. Gurmit Singh3 thus “The
Courts, therefore, shoulder a great responsibility while tying an accused on
charges of rape. They must deal with such cases with utmost sensitivity.”

(viii) Rape victim not to be harassed during her testimony in the Court:
The treatment of the victims of sexual assault in the Court during their
cross-examination, defence counsel adopting the strategy of continual

1
. (2007) 1 SCC (Cri.) 129: AIR 2006 S.C. 3085
2
. State of A.P. vs. Gangula Satva Murthv (1997) 1 SCC 272, 279-280
3
. (1996) 2, SCC, 384

333
questioning of the prosecutrix as to the details of the rape is a matter of
criticism these days.

According to Justice Dr. A. S. Anand, “The victim is required to

repeat again and again the details of the rape incident not so much for
brining out the facts on record or to test her credibility but to test her story
for inconsistencies with a view to attempt to twist the interpretation of the
events given by her so as to make them appear inconsistent with her
allegations. The Court, therefore, should not sit as a silent spectator. While
the victim of crime is being cross-examined by the defence, it must
effectively control the recording of evidence in the Court. While every
latitude should be given to the accused to test the veracity of the prosecutrix
and credibility of her version through cross-examination the Court must also
ensure that cross-examination is not made a means of harassment or causing
humiliation to the victims of crime.” 1

(ix) Corroboration of Testimony: The Supreme Court has held that a

woman who has been raped is not an accomplice. If she was ravished she is
the victim of rape and if she has consented. There is no rape. The true rule of
prudence requires that, in every case, the advisability of corroboration
should be present in the mind of Judge and that must be indicated in the
judgment. But corroboration can be dispensed with by the Judge if in the
particular circumstances of the case before him, he himself is satisfied that it
is safe to do so.2

In State of Punjab vs. Gurmit Singh3, it was held by the Supreme

Court that unless there are compelling reasons which necessitate looking for
corroboration of her statement, the Courts should find no difficulty in acting

1
. Dr. A. S. Anand, Chief Justice of India, ‘Dynamics of Gender Justice: Crime Against Women’s –
Justice for woman concerns & Expressions; (Universal Law Publishing Co. Pvt. Ltd.) 2002 Ed. P. 9.
2
. Sidheswar Ganguly v. State of West Bengal, AIR 1958 SC 143.
3
. (1996) 2 SCC 384.

334
on the testimony of a victim of sexual assault alone to convict an accused
when her testimony inspires confidence and is found to b reliable. Seeking
corroboration of her statement before relying upon the same, as a rule,
amounts to adding insult to injury.

On corroboration, the Supreme Court in State of U. P. vs. Pappu1 held

that the prosecutrix complaining of having been a victim of offence of rape
is not an accomplice after the crime. There is no rule that her testimony
cannot be acted without corroboration in material particulars. She stands at a
higher pedestal then an injured witness:

“In the later case, there is injury on physical form while in former it is
physical as well as psychological and emotional. However if the Court of
facts finds it difficult to accept the version of prosecutrix on its face value, it
may search for evidence direct or circumstantial, which would penal
assurance to her testimony. Assurance, short of corroboration as understood
in the context of an accomplice would do.”

Thus, the finding of the High Court was reversed.

(x) Expeditious investigation of rape cases – Malimath Committee

Report: The Committee on Reforms of Criminal Justice System in its
Report (2003) recommended for a suitable provision to be made requiring
the officer investigating to complete investigation of cases of rape and other
sexual offences on priority basis and requiring the Court to dispose of such
cases expeditiously within a period of four months.

(xi) Special training to the Magistrates to deal with rape cases –

Malimath Committee Report: The Committee on Reforms of Criminal
Justice System in its Report (2003) recommended the specialized training to
be imparted to the Magistrate in regard to the trial of cases of rape and other
1
. (2005) 3 SCC 594

335
sexual offences to instill in them sensitivity to the feelings, image, dignity
and reputation etc. of the victim.

The Silent Cries of Working Women:

“Women have always formed the foundation of every strong

structure. Having equaled men in their field women have today scaled
unimaginable heights and carved out a niche of their own..... 1” The woman
of 21st century firsts with a multitude of career options and nicely ensconced
herself in the male bastion space. It is the story of gone days when women
were kept away from their own identity and were bolted with in the four
walls. Today they are scaling high mountain peaks, walking on moon,
talking about comet and rubbing their shoulders with corporate czars. They
are no longer behind to men in any respect. They have the courage not only
to compete but come-out as winner and nothing can disturb them from their
apple-cart dream. Leaving behind the ills of the society a woman is a
mentor, a trainer, an astronaut and a politician. The International Labour
Organization has released its Reports on “Global Employment Trends for
Woman 2007" compared to 1.8 billion men. 2

But this story of success of a woman is woven with her will to

sacrifice and compromise, when its most and equally strong will power to
defend her values, her chastity and her ethics is in demanding situations. To
touch these heights, being working and going out of homes is a constant
struggle. It is tough to keep at all times. Even the most professional of them
have had a guilt trip. Sometimes the guilt can be brushed of as the handy-
work of an idle moment but so many times she is bound to sit-up wonder.
“What the hell I am doing”? To let guilt pangs gnaw at her conscience she

1
. Maloo Anant; Managing Director and CEO of Timber Home Pvt. Ltd The Times of India 8th March
2008.
2
. The Hindu 7th March 2008.

336
often satisfied herself by murmuring that everyone has to compromise with
the existing conditions if that can not be changed suddenly.

The woman who is worshipped in temples and praised in literature

had faced a lot at public places and so many times considered as public
property. The heinous crimes are ravaging the lives of the millions of the
fair sex. Obscene remarks, male gaze, voyeurism, uncomfortable touch and
men’s trying to pinch against them in crowded places are some acts which
most women faced everyday and everywhere whether it is a school, college,
workplace or market. It seems that some kind of sexual harassment has
become the fate of females.

What is Sexual Harassment?

No where the sexual harassment is defined because there can be no

precise definition of sexual harassment. In the leading case of Vishaka vs.
State of Rajasthan1, Justice Verma on behalf of Justice V. Manohar and
Justice B. N. Kirpal has tried to explain it. According to him sexual
harassment means all types of unwelcome sexually determined behaviour
such as physical advances, as demand or request for sexual favour, sexually
coloured remarks, showing pornographic or any other unwelcome physical,
verbal or non-verbal conduct of sexual nature.

Why the Sexual Harassment is increasing Day by Day?

The frightening figure of the crimes against the females has

traumatized the safety of outgoing females, specifically. As a member of a
society everyone is bound to find out the reasons and solutions to get rid of
this epidemic, the reasons may be the impact of western culture, the mindset
of Indian culture, economic compulsion, women empowerment, advent of
science and technology, growth of electronic media, lack of morality and
1
. Vishaka vs. State of Rajasthan AIR (1997) SC 3011.

337
faith in religious conduct, inadequate representation of females at
workplace, lack of dress code, pat back culture of exposing the females body
in fashion shows, beauty pageants, or advertisements in which the females
are depicted as a commodity, the meekness of females, the culture of the
society to save the family pride or dignity, to avoid to be stigmatized with
any such incident or to avoid more troubles etc. Whatever the reasons may
be but there be stringent and strict laws to curb this menace and to save the
dignity of women.

Is Sexual Harassment a Constant Struggle of Working Women?

Yes, sexual harassment is a constant struggle of most of the working

women, started from the very first stage, they started to go to school and
continued in some or the other form till retirement. It does not mean that every
woman who is working necessarily face it, there are many exceptions. For the
sake of convenience the struggle can be categorized under three heads.

(i) At the Level of School:

Sexual harassment at school level is a common phenomenon world

over be it developed countries or third countries. It is the beginning point of
females struggle and the most common place, when the girl child
experienced the sexual abuse by her classmate or even her teachers are not
immune from this abuse. Amnesty International Organization fighting for
human rights world over complained that the incidents of sexual abuse,
sexual harassment and bullying of girl student are on rise in spite of the fact
that largely the incidents go unreported.1

Sometimes even the teachers speak in double meaning laning

language, obscene gesture, cracking lewd jokes in front of the girl’s
students.

1
. The Times of India 9th March 2008 P. 3.

338
 In State of Himachal Pradesh vs. Shri Kant Shikari1, a minor student
of class 4th was successively raped by teacher who was convicted by trial
Court but acquitted the High Court. In appeal the Apex Court has restored
the conviction.

(ii) At the Level of Higher Education:

Amensty International Report 2, released in Lucknow University’s

Social Work Department on the occasion of Women’s Day, said that as
many as four teachers have been accused of harassment by girl’s student in
last ten years. Services of one was terminated, rest were exonerated for lack
of the evidence.3 In 1999, a girl student was allegedly molested inside the
bus transferring the students from old campus to new campus because she
has refused his friendship offer. In 2003 a girl was beaten-up by two boys
because she has objected to tease her friend.4

A disciplinary action has been taken by the Apex complaint of Delhi

University against Prof. Bidyut Chakarvarty on the allegations of sexual and
mental harassment made by the officer on special duty at Gandhi Bhawan,
Ankita Sharma.5

These are some example of only most of the cases have gone
unreported because majority of girls have with the system which does not
provide them any solution. Since childhood they are taught to face
harassment and keep mum.

(iii) At Workplaces:

An employee spends a better part of their day at the workplace

therefore the environment of the workplace should be conducive being able
1
. (2004) Cr.L.J. 4232 (SC).
2
. The Times of India 9th March 2008 P. 3.
3
. The Times of India 10th October 2007.
4
. The Times of India 9th March 2008.
5
. The Hindu 10th October 2007 p. 3.

339
to garner the best. An employee has to offer women, who are the most
vulnerable of employees, succumb to work pressure. Corporate speak of
good governance practice how a company can boast of good governance
when their women folk do no feel safe.

Violence in and around working places remain pervasive with

females across the world, continuously facing the risk of being sexually
assaulted, harassed or intimated on their way or inside the working place.
Even the former President of U.S.A. Mr. Clinton was alleged by an
employee Paula John for sexual harassment when he was the Governor of
State of Arkanas.1

Abhishek Sharma had allegedly set his colleague Mandeep on fire for
Rejecting, his marriage proposal, both were the employee of a call-centre.2
This is not the problem of a Mandeep but thousands of Mandeeps faced with
acid throwing etc, every where. An attempt to murder and rape was made to
a lady doctor working on contract basis with the Employees States Insurance
Corporation Hospital at Motinagar, Alka Pandey has filed a complaint of
sexual harassment with the National Commission for women against two
senior partners of a country’s leading consultancy firm. 3 Sukhdev kaur DSP
(GRP) posted at Patiala alleged that her boss IG (GRP) G. S. Grewal was
harassing her in such a way that the could not make it public, though Mr.
Grewal has denied it.4

The year 2001 was celebrated as “Women’s Empowerment Year”.

Though the women up to some extent is empowered in comparison of
previous decade and their success is touching dizzying heights yet it brings
with it some stark realities with respect to the commercial sexual

1
. The Hindu 23th September 2007.
2
. The Hindu 26 th September 2007.
3
. The Times of India 25 th June 2007.
4
. The Times of India 4 th April.

340
exploitation of working females. There is no newspaper in which no news of
such kind is present everyday. Females are subjected to eve-teasing, rape,
beating displacement and physiological abuse.

Are there any Measures to curb this Social Evil?

The decision of the Apex Court in the case of Vishaka vs State of

Rajasthan has served as a stimulus for the Indian Legislature to enact al law
to curb this evil. But unfortunately the Bill regarding sexual harassment
prepared by the National Commission for women in the year 2000 continues
to languish with the Ministry of Women and Child Welfare.

The latest Bill is tabled with some amendments of the old Bill in
20071. The already existing measures can be understood under these heads-

- Constitutional provisions

- Penal provisions

- Judicial provisions

- International provisions

Constitutional Provisions:

India kept its tryst with destiny to achieve the political, social,
economic justice with the coming into force the Constitution of a free nation
in 1950. Indian Constitution promises to remove the inequalities which the
Indian women had suffered. Article 14 which guaranteed the fundamental
rights of equality, protect the female from any attempt of sexual harassment
at workplace. The instances of sexual exploitation which violate the
fundamental rights of working women under Articles 14, 19, 23, 39(a), and

1
. The Protection of Women against Sexual Harassment at Workplace.

341
421 Article 14- rights to equality, an brought before the Court for redressed
by filling a writ petition under Article 32 of the constitution. 2

Penal Provisions:

Sections 354 and 509 of IPC deal with the sexual harassment of
females. Sec. 354 says that whoever assault or used the criminal force with
the intention to outrage the modesty of a female shall be punished with the
imprisonment up to two years or with fine or with both. The essentials
elements of the offence under this section are-

(i) The person assaulted must be a woman

(ii) The accused must have used the criminal force

(iii) The intention of the accused must be to outrage the modesty of a

female.

What constitutes an outrage to female modesty is nowhere defined.

The culpable intention of the accused is the crux of the matter. The ultimate
test for ascertaining whether modesty has been outraged is whether the
actions of the offender is such as could be perceived as one which is
shocking, the sense of decency of a woman. 3

Section 509 says that if anyone with the intention to insult the
modesty of a woman, utters any words or makes any sound gesture or
exhibits any object or intrudes upon the privacy of such woman shall be
punished with one year imprisonment or fine or both.

1
. Article 14-Right to Equality.
Article 19(1)(g) – Right to Practice one’s Profession
Article 23-Right against Exploitation
Article 39(a)-Equal Rights of Males and Females to Adequate menas of Livelihood.
Article 42-Right to have just and Humane Conditions of Work and Maternity Relief.
2
. Right to Constitutional Remedies.
3
. Aman kumar v State of Haryana (2004) Cr. L.J. 1399 (SC) See also-Raju Pandurnag mahale v. State
of Maharashtra (2004) Cr L.J. 1441 (SC).

342
Judicial Guidelines:

As there is no separate law to deal the sexual harassment at

workplace, the Supreme Court on demand of an NGO working for women
cause, has laid down exhaustive guidelines in the landmark judgment of
Vishaka vs. State of Rajasthan.1 Though there are provisos in civil and penal
laws but they are not sufficient to curb the growing menace of the workplace
sexual exploitation.

Therefore following guidelines were laid down by the Supreme Court

which has the force of law under Art. 141 of the Constitution till the
particular enactment was passed by the Legislature.

It may be listed given below as under:

(i) All the employers should published and circulated among the
employees for the strict prohibition of sexual harassment and the
penalties and disciplinary action would be taken against the offender
and it should be included in the standing order under Industrial
Employment (Standing order) Act 1946.

(ii) If any such incidence of sexual exploitation occurs, the employer is

bound to take appropriate action according to the provisions of law.

(iii) There should be constituted a complaint committee and its report

submitted to the concerned Government department.

(iv) These guidelines would be treated as an enacted law till the appropriate
legislative actions have been taken.

1
. AIR 1997 SC 3011.

343
 Similarly, law declared by the Supreme Court in Vishaka's case
was again reiterated in Apparel Export Promotion Council vs. A. K.
Chopra1.

International Provisions:

Despite the comprehensive set of rights laid down by the International

Bill of Human Rights, an additional means to protect the Human Rights of
Women a Convention2 was adopted by the General Assembly of United
Nations Organization.

India is also a signatory of this convention. Article 11 of this

convention imposes the duties to take all appropriate measures to eradicate
all types of discrimination exist till now. The Convention did not provide for
individual complaint system to rectify this draw back an Optional Protocol
was adopted by the General Assembly3, to enable the victim of sexual
exploitation, gender discrimination and other abuses to communicate it
grievances against State parties to the Protocol. 4

Role of Judiciary:

“Sexual violence apart from being a dehumanizing act is an unlawful

intrusion on the right of privacy and sanctity of a female. It is a serious blow
to her supreme honour and offends her self-esteem and dignity, it degrades
and humiliates the victim and where the victim is a helpless innocent child or
a minor, it leaves behind a traumatic experience. A rapist not only causes
physical injuries but more indelibly leaves a scare on the most cherished
possession of a woman-her dignity, honour, reputation and not the least her

1
. AIR 1999 S. C. 625
2
. Convention of Elimination of all forms of Discrimination against Women 1979
3
. On 7th October 1999.
4
. Dr. Anjanikant; Law Relating to Women and Children p5.

344
chastity. Rape is not a crime against a person or a woman it is a crime against
the entire society.” These are the wordings of Justice Pasayt.1

Society can no longer endure under such serious threat Courts must
her the loud cries for justice by the society in cases of heinous crimes of
rape and sexual abuse. The offender must be handled with heavy hands as it
impact on the society in general and the victim in particular. Though the
attitude of judiciary itself is sometimes surprising or it can be said that the
hand of the judiciary are also bounded by the provisions of law, such as in
the case of sexual assault. 2 The use of criminal force with the intention of
outrage the modesty must be proved. 3 It is very difficult to prove one’s
intention because even the devil does not know, what is going on in human
mind.

In Champa Pasin vs State of Bihar.4 The Court held that an offence of

an indecent assault on a woman cannot be complete unless there is an
intention to outrage the modesty of woman. Same was held by the Madhya
Pradesh high Court.5 The Supreme Court has punished the accused under
Sec. 354 IPC but not under Sec. 376 IPC as the offender has tried to commit
rape on a female employee but succeeded in his attempt.6

By above discussion the inference cannot be drawn that the judiciary

is crippled with provision of laws whenever it get chance to save the justice
and to see the case in woman perspective, it live no longer behind.

1
. State of Himachal Pradesh v. Shree Kant Shekari (2004) Cr. L J 4232 (SC) Annual Survey of Indian
Law vol XL (2004) p 162.
2
. Section 354 IPC.
3
. Sadanand v. State of Asam (1972) Cr LJ 658.
4
. (1982) Cr LJ 325.
5
. Ramodas v. State of M.P. (1984) Cr LJ 374.
6
. Rameshwar v. State of Haryana (1984) Cr. LJ 374.

345
 In the case of Apparel Export Promotion Council vs. A. K. Chopra,1
the Apex Court has quashed the verdict of the High Court and upheld the
removal of private secretary of the Chairman of A.E.P. Council. The
plaintiff was the co-worker whom the secretary has tried to molest in lift and
at many other times tries to touch her. The Apex Court not only upheld the
removal of accused but also said that “lenient action in such cases was
bound to have a demoralizing effect on working females.

In the famous case of an IAS Rupan Deol Bajaj vs. Kunwar Pal
Singh2 Gill, a senior IAS officer Mrs. Rupan Bajaj has filed a suit against
K.P. Singh an IPS officer for slapping Mrs. Bajaj in a dinner party. The
High Courts of Punjab and Haryana held Mr. Gill under Sec. 354 and 509 of
IPC which was approved by the Supreme Court.

The sexual harassment of working women in various offices has

become a general phenomenon. Taking note of this tendency the Apex Court
in case of (D. S.) Greval vs. Vimmi joshi and others3 has issued guidelines to
establish a complaint cell in the departments so that the aggrieved woman
can make complaint. Again, the time limit for disposal of the complaint is
also to be fixed. The cell is to be leaded by a woman chairperson and half of
the members of the cell must be from women.

[2] Unnatural Offences:

Unnatural offences are the acts of satisfying physical lust against the
order of nature. Section 377 of I.P.C. penalizes unnatural offences. It is as
follows:

“Section 377, Unnatural offences – Whoever voluntarily has carnal

intercourse against the order of nature with any man, woman or animal, shall

1
. AIR (1999) SC 625.
2
. AIR (2005) SC 104.
3
. (2009) 2, SCC, 210

346
be punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable
to fine.

Explanation – Penetration is sufficient to constitute the carnal

intercourse necessary to the offence described in this section.”

Sodomy, buggery or bestiality are the instances of unnatural offences.

If a man has carnal knowledge against the order of nature with a man or as
in the same way with a woman, it is unnatural offence. Similarly sexual
intercourse with the animal by a man or women is also unnatural offence. It
is punishable under Section 377. For this offence also, penetration is
sufficient to constitute the unnatural act. Since the carnal knowledge against
the order of nature by a man or woman is punishable under this Section,
therefore satisfying sex by an inanimate object or masturbation by a man or
woman is not punishable under this Section. The offence on human being
consists by penetration per anus or coitus (penetration in the anus or mouth).
Penetration in the mouth is an offence under this section. 1

The accused committed unnatural offences with a minor girl who

gave minute details of the offence and her evidence was found reliable. The
conviction of the accused under Section 377 was confirmed but considering
that he had a broken family life and belonged to lower strata of society, his
sentence of rigorous imprisonment for three years was reduced to two
years.2

[3] Homosexuality:

The judgment delivered by the Bench of Justice A. P. Shah and S.

Murlidhar on 2nd July 2009 has recognized the unfettered unnatural sex

1
. Khandu vs. Emperor, AIR 1934 Lan. 261.
2
. Mihir vs. State, 1992 Cr. L.J. 488 (Ori).

347
which for last 139 year has been credibly unaccepted by Indian society,
Hindu, Muslim, or Christians. Bombing out the serenity of Section 377,
Delhi High Court declared Section 377 antithetical to the Article 14, 15, 19
and 21 of the Constitution.

The issue of sexuality in a traditional society like India cannot be

allowed to transmute to legality. Unfortunately the High Court judgment has
been swayed by the microscopic section of gay enjoyers.

A Division bench of Justice A. P. Shah and Justice S. Muralidhar in

its 105 page order said: “We declare that Section 377 of the IPC, insofar as
criminalizes consensual ----------acts of adults in private violative of Articles
21 (right to protection of life and personal liberty), 14 (right to equality) and
15 (prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth) of the Constitution".

We hold that sexual orientation is a ground analogous to sex, and that

discrimination on sexual orientation is not permitted under Article 15,” the
judgment said.

However, the Court clarified that “the provisions of Section 377 will
continue to govern non-consensual penile non-vaginal sex and penile non-
vaginal sex involving minors.”

The judges also said that by adult they meant “everyone who is 18
years of age and above.” “A person below 18 would be presumed not to be
able to consent to a sexual act,” the judgment said.

The Bench further said that “this clarification will hold till, of course,
Parliament chooses to amend the law to effectuate the recommendation of
the Law Commission of India in its 172nd Report which, we believe,
removes a great deal of confusion.”

348
 The judgment also made it clear that it would not result in re-opening
of criminal cases involving Section 377 that has already attained finality.

The verdict came on a PIL plea by Delhi-based Non-Government

organization Naz Foundation that the Section 377 provision criminalizing
sexual acts between consenting adults in private violated Articles 14, 15, 19
and 21 of the Constitution.

Whole human civilization has moved from loose to tight and

disciplined sexual knots tied between the marital couples i.e. husband and
wife. However, era of consumerism is relegating the strictly confined sex to
indisciplined sex which has become the hallmark of the western society. The
wave of lose male-female sex is now fiercely penetrating the unnatural
male-female relationship. The application of the nomenclature ‘sex worker’
between male and female has now vulgarly migrated to the sexual
relationship between two males or two females i.e. homosexually. This
homosexuality has been prohibited and punishable in India through Section
377 of Indian Penal Code. Section 377 was introduced by British, which
criminalizes any one who voluntarily has carnal intercourse against the order
of nature with any man, woman or animal.

Earlier in 1994, the AIDS Bhedbhav Virodhi Andolan (ABVA), a

human right activist group filed a public interest petition in Delhi High
Court challenging the constitutional validity of Section 377. The petition
was filed in the wake of the report of a medical team that visited Tihar Jail
in Delhi and reported high incidences of sodomy in the wards. However, the
ABVA become defunct soon afterwards and the petition never came up for
hearing. The Naz foundation, a Non Government Organization (NGO)
working with (HIV/AIDS) related issues approached the Delhi High Court

349
in 2001 with a request to read down Section 377 as no criminalizing private
consensual sex between adults.

The petitioners in Naz Foundation vs. N.C.T. of Delhi1 argued that

Section 377 affects HIV/AIDS prevention efforts and that criminalizing
predominantly homosexual acts in effect provides moral and legal sanction
for continued social discrimination against sexual minorities. They argued
that private consensual sexual relations lie at the heart of the privacy zone
protected by the right to protection of Life and personal liberty under Article
21 of the Constitution.

The petition was filed after a boy’s complaint that he had been
administered conversion therapy and non prescriptive drugs to cure
homosexuality.

Another argument of the Government was that “law does not run
separately from society” and that when Section 377 was brought under the
statute, “it responded to the values and mores of the time Indian society”. But
petitioners reacting to the Governments argument said that the Governments
response was a “deliberate and willful violation” of international human
rights law. It was trying to preserve a colonial law, the creation of
sociological and legal fiction. According to petitioners the law had to be
based on human rights principles and cannot blindly follow public opinion”.

The petitioners further argued that if Governments view point if

accepted then many of the legislations concerning women’s rights and even
Dalit’s rights would never have been enacted since even today there are
many sections of society who consider wife beating or dowry practices to be
consistent with tradition and culture just as they consider untouchability to
be the “natural order of the society” which cannot be justified by any sense

1
. Political and Law Times, July 2009

350
of logic. They further argued that even if one accepted the flawed argument
that culture and social attitudes have relevance for legal rights, then the
Government petition clearly has a very narrow reading of culture and social
acceptance because Indian history is replete with example of the accepted
existence of homosexuality.

According to the petitioners the most affected by the threat of Section

377 are those who are the most vulnerable, like the Hijra sex workers often
faces violence from the police and local goons, and because of Section 377
it is not possible to ask for redress.

In 1998, South Africa’s highest Court declared the laws that

criminalized sex between men as unconstitutional because they affected the
“dignity, personhood and identity” of Lesbian and gay people at a deep
level. The ruling was based on an unopposed case brought by the National
coalition for Gay and Lesbian Equality and South African Human Rights
Commission. The Court held that the laws that criminalized same sexual and
erotic activity independently breached the rights to equality, dignity and
privacy. Justice Ackermann said the laws undermined self-esteem, caused
psychological harm and legitimized violence and blackmail against lesbian,
gay bisexual and transgender people. In addition the Court ruled:

“The harm also radiates out into society generally and gives rise to a
wide variety of other discriminations, which collectively prevent a fair
distribution of social goods and services and the award of social
opportunities for gays” 1.

The division bench of Delhi High Court consisting of Chief justice

A.P. Shah and justice S. Muralidhar accepted the plea of Naz Foundation.

There are at least four inherent dangers in the judgment:

1
. Political and Law Times, July 2009, P.3

351
 First, the philosophy that law ought to be based on public opinion and
cognizance or social morality if taken would be in reverse gear. A blind
toeing of western social standards would lead to may unforeseen negative
social repercussions.

Secondly, deletion of Section 377 would in long term adversely affect

the sacrosanct institution of Indian marriages and it would accelerate the
breakdown of marriages, as neither spouse will tolerate such unacceptence
behaviour from its counter part. It is due to the existing social norm of
husband-wife inequality that Section 497 of IPC (adultery) and exclusive
right to maintenance to wife in section 125 Code of Criminal Procedure are
still in the statute book. If one takes the constitutional norms of equality
these sections must be abrogated immediately, but no group of activists has
pleaded to delete these provisions.

Thirdly, two wrongs can never make a right. A few countries like U.
K., Netherlands, Brazil, Canada, South Africa, Spain and Norway have
accepted the legality of same sex union, this does not create a precedent for
a country like India to accept the homosexuality as an accepted norm.
Unfortunately Justice Brilal Nazri and Mr. Sharad Bobele in a famous
pedophilia case observed:

“There are lots of changes taking place in social milieu and many
people have different sexual preferences, which are not even considered to
be unnatural ---- therefore, it is high time that the provisions of law, which
was made more than a century ago, are looked at afresh”1.

Change in Section 377 IPC is favoured as Amartya Sen, Vikram Seth

and Arundhati Ray apprehends:

1
. Political and Law Times, July 2009, P.4

352
 “The law had been used to systematically prosecute, blackmail, arrest
and terrorize sexual minorities and had spawned intolerance. 1”

They sponsor the Bantham’s view that sex is a private act and
existence of Section 377 criminalizes romantic love and private consensual
acts between adults of same sex 2.

But we must not be oblivion to the psychic disorders, mental

breakdown, detraction of parents towards their children and dangerous
consequences likely to fall an children which can entirely destroy their
bright future.

Fourthly, the deletion of the Section can open the floodgates of

delinquent behaviour and be misconstrued as providing unbridled licence for
the same.

Therefore, instead of abolishing Section 377 the 14th Law

Commission following the recommendations of the fifth Law Commission
in its Forty-Second Report suggested the draft with more lenient
punishment. The recommended Section 377 read:

“Whoever voluntarily has carnal intercourse against the order of

nature with any man or woman shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or
with both; and where such offence is committed by a person over eighteen
years of age with a person under that age, the imprisonment may extend to
seven years.”

But the draft unnecessarily overlooks the moral aspect of the

homosexuality and ignores to prescribe the minimum punishment.
Therefore, suggestion is that minimum punishment should be at least two

1
. Ibid
2
. Ibid

353
years and maximum punishment up to seven years. Taking into account
facts of each case, punishment for pedophilic must be prescribed for
minimum two years and maximum fifteen years.

Sex in India has always been linked with “public moral and ethics
in eyes of common man”. Section 377 must not be withdrawn from IPC.
It should remain because it may serve a cool that could be used by the
Government to interfere in the private sphere in “the interest of public
safety and protection of health and morals”. Section 377 was used in
cases of assault and deleting the section could open the floodgates of
delinquent behaviour. Section 377 is still needed to deal with cases of
child sexual abuse. For interpreting Section 377 following points must be
kept in mind:

(i) It must not be allowed publicly.

(ii) Voluntariness must be given material consideration for awarding the

minimum sentence.

(iii) Severe punishments must be awarded for homosex perpetrated upon

the youngsters below eighteen years. The severity of punishment ought
to be enhanced in proportion to the difference of age, behavior of
criminal and willing or unwilling conduct of the accused presenter of
crime and aggrieved.

(iv) Homosexuality by a person more than eighteen years with a person less
than eighteen years must be presumed to be involuntary, even if
consent of the underage person is taken.

Therefore, it is submitted here that, a few sections of so called human

right activist, are unnecessarily making Section 377 an over emotive issue
which would do more harm than good to our social and moral fabric.

354
 Abolition of Section 377 IPC is not going to give any relief to the
sexually exploited persons or Hijras, or children. Need of the hour is the
proper awareness and state assistance in rehabilitation of such persons,
groups or communities otherwise social threads of Indian society would lead
to sexual anarchy.

Moreover, far fetched social dangers like shattering of marital laws,

adoption, maintenance laws and succession laws are likely to get severe jolt
that may shatter the whole fabric of multi-cultural face of Indian society.

[4] Prostitution:

Women found in flesh trade, should be viewed more as victims of

adverse socio-economic circumstances rather than as offenders in our
society. The commercial exploitation of sex may be regarded as a crime but
those trapped in custom-oriented prostitution and gender-oriented
prostitution should be viewed as victims of gender-oriented vulnerability.

Gaurav Jain vs. Union of India1

In our country, prostitution has existed from times immemorial. From

the Rigveda, it is found that there were women who were common to several
men, i.e., who were courtesans or prostitutes. In the Mahabharata,
courtesans were an established institution. The Adiparva (115-39) narrates
how a Vaishya (prostitute) waited upon Dhritrashtra when his wife Gandhari
became pregnant. Yaj: II 290 divides concubines into two categories,
avaruddha – one who is kept in the house itself and forbidden to have
intercourse with any other male, and Bhujisyas – the concubine who is kept
else where and is in the special keeping of the person and another person
cannot have intercourse with her. 2

1
. (1997) 8 SCC 114: AIR 1997 SC 3021.
2
. V. K. Deewan: offences Against women

355
 In ordinary parlance the word “prostitute” means a woman who offers
her body to indiscriminate sexual intercourse, especially for hire 1. As to this
definition, Beaumont, C. J. says that, “I do not say that this is a universal
definition and I do not suggest that a prostitute is bound to be entirely
indiscriminate and to accept the first customer who offers her price like a
cabman on the rank. But I certainly think that prostitution involves more
than intercourse with one man.” He added “a kept woman, who confines her
favours exclusively to one man, even though he is not her husband, is not, in
my opinion, a prostitute. Of course, a kept woman may also be a prostitute
as may be married woman. But I think that prostitution involves a more or
less indiscriminate employment of the woman’s body for hire”, 2

The Random House Dictionary defines prostitution as:

“A person, usually a woman, who engages in sexual intercourse for

money; whore; harlot. A person who willingly uses his talent or ability in a
base and unworthy way, usually for money; to hire (oneself) out as a
prostitute.”

According to the UN Protocol to Prevent, Suppress and Punish

Trafficking in Persons, Especially Women and Children, 2000, Immoral
Trafficking is:

“The recruitment, transportation, transfer, harbouring or receipt of

persons by means of threat, use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of the power, or of a position
vulnerability or of the giving or receiving of payments or benefits to achieve
the consent of a person having control over another for the purpose of
exploitation. Exploitation shall include, at a minimum, the exploitation of
prostitution or other forms of sexual exploitation.”
1
. Oxford Dictionary.
2
. Mamta Rav: Law relating to women & children (Eastern Book Company, IInd Ed. 2008) P. 127.

356
 A Necessary evil, prostitution is rampant in a social system supported
by a complex matrix of social forces where parents and relatives throw
females into the flesh trade. They not only force them to be in the profession
but also procure customers and thrive on their earnings. The young girls are
here treated as a commodity – saleable – sold by their own people to
brothels for a price. Thus, prostitution is like a kaleidoscope where images
nurtured by the social public projects the status of its woman as sex objects
to gratify their sexual desires. It has survived through all ages in nearly all
countries though in some cases it was tried to be regulated by law. Even the
legal conflict remains as to whether prostitution is illegal or a crime or
offence or the exploitation of a prostitute. In spite of laws to prevent it, it is
practiced, promoted and protected openly. Despite police raids, and the
rehabilitation and reformation programme costing a fortune to the country’s
exchequer, it is still flourishing.

Prostitution and the evil of traffic in human beings for the purposes of
prostitution acquired such monstrous proportions that the international
community responded to it by signing various conventions like the
International Agreement for the Suppression of White Slave Traffic 1,
International Convention for the Suppression of Traffic in Women and
Children2 and the International Convention for the Suppression of Traffic in
Persons and of the Exploitation of Prostitution.3

Kinds:

The Supreme Court in Gaurav Jain vs. Union of India4, passed an

order to set up an Advisory Committee to make suggestions for eradicating
child prostitution and point out social aspects for the care, protection,

1
. Dated 18th May, 1904 as amended by General Assembly of U. N. on 3rd December 1948.
2
. Dated 30 September 1921 as amended by General Assembly of U. N. 20 October
3
. Dated 9th May, 1950
4
. (1997) 8 SCC 114.

357
treatment, development and rehabilitation of the young victims, children and
girl prostitutes, from red light areas; to free then from the abuses of
prostitution; to amend the existing law or to enact a new law if so warranted;
to prevent sexual exploitation of children and to take various measures for
effective enforcement thereof.

The Committee identified ten types of prostitutes including street

walkers, religious prostitutes, prostitutes in brothels, singing and dancing
girls, etc.

Others have classified prostitution into customary, castes based,

forced, child and voluntary prostitution.

The customary initiation 1 of women as Devdasis, Jogins and

Venakatasins is prevalent in Andhra Pradesh, Karnataka and Maharashtra,
areas where, in particular, the practice of prostitution is notorious. It is an
affront to human dignity and self respect but the pursuit of customary beliefs
taps the fair sex into this glorified self-sacrifice and ultimately leads to
prostitution in temples and charitable institutions. In this practice the eldest
girl child in particular is offered as Devadasi or Jogin or Venkatasin.
According to the report of the Committee, the common feature of such
women is that they are by and large poor and predominantly from Scheduled
Castes, Scheduled Tribes and other backward classes.

Caste based prostitution gets imbibed in a particular caste which

performs sex work and becomes known for it. For e.g., the Banchharas of
Madhya Pradesh among whom prostitution is adopted due to poverty and
the male members provide necessary help and services like procuring
customers, arranging convenient locations, etc. Since the whole class gets

1
. Ibid.

358
involved there is no feeling of guilt and prostitution gets accepted as part of
normal life.

Forced prostitution is unwilling entry into the trade whereas in willful

prostitution women enter into the sex trade willingly for fast money. The
reasons behind all forms of sex trade in most of the cases is poverty, religion
and, sometimes, lust for money.

Legislation:

The constitutional mandate under Article 23 is prohibition of

trafficking and all forms of exploitation. This was aimed at putting and end
to all forms of trafficking in human beings including prostitution and
beggary.

The 64th Law Commission Report stated that prostitution could not be
banned totally – “Law in every country has tried to regulate it so that it may
be kept within its legitimate bounds without unduly encroaching upon the
institution of marriage and family.”

There are also certain provisions in Indian Penal Code, 18601 which
aim to prevent prostitution and illicit intercourse. Besides there is a specific
to deal with this provision, Immoral Traffic (Prevention) Act, 1956.

With the growing degradation of moral values, the world opinion in

the Newyork Convention of May 9, 1950 favoured regulatory measures to
check immoral trafficking of women and girls. Consequently an Act called
SITA i.e., Suppression of Immoral Traffic in Women and Girls Act, 1956
was passed in India which aimed at suppressing the evils of prostitution.
Under the Act, the individual prostitutes were inhibited from practicing their
profession only in the vicinity of certain public places e.g. places of
religious worship, educational institution etc. Section 3 of the Act made
1
. Sections 361, 362, 364-A, 372, 373 and 498.

359
brothel keeping as a serious offence. The term ‘prostitution’ was defined in
Section 2(f) of the Act as “the sexual exploitation or abuse of persons for
commercial purposes.1”

Despite working of the Act for twenty years no significant

achievement was made to eradicate prostitution. The Act was, therefore,
amended drastically in 1978 and Probation of Offenders Act, 1958 was
extended to the fallen women and girls and penalties for offences under
SITA were enhanced and made more stringent. But these measures were
again felt inadequate, hence the Parliament again intervened and by the
Amendment Act of 1986, the provisions relating to probation of fallen
women and girls were completely repealed and stricter penalty was provided
for offences under the Act. It was also realized that time has come when
male prostitution should also be covered by the Act. Therefore, the title of
the Act was changed from SITA to ITPA (Immoral Traffic Prevention Act)
and the word ‘person’ was substituted in place of ‘women and girls’. Thus,
the definition of a ‘prostitute’ now includes both female and male.

The Act provides 2 for the appointment of a special police officer for
investigating the offences with inter-State ramifications. Raids and searches
should be conducted in the presence of at least two police women.

Despite widened scope, the Act still suffers from certain serious
defects. The customer of the sex demand still remains a mere witness
against the victim woman. The punishment for keeping a brothel or allowing
premises to be used as a brothel is too lenient.

Section 3 of the Act prescribes the special procedure with respect to

arrest, investigation and trial of offences under the Act. The offences under
the Act are cognizable1 and search can be made without warrant2.
1
. Baishanta vs. State of Gujarat (1967) Cr. L. J. Page - 1940 Gujarat
2
. Sec. 13 of the Act.

360
 For most of the offences under the Act, a minimum sentence of seven
years has been provided which may extend to life or ten years.

Section 23-A of the Act confers powers on the Central and State
Government to establish special Courts for trial of offenders under ITPA.
The offences can be tried summarily under the Code of Criminal Procedure
1973 but the sentences in such trial cannot exceed one year’s imprisonment
as provided under Section 22-B of the Act.

The ultimate purpose of the Act is to control the growing menace of

prostitution in public places. A special feature of the Act is Section 21 which
provides that no person or authority shall establish or maintain any
protective home except under licence by the State Government which can
put a condition while granting licence that the ‘Home’ should be entrusted to
women. This is a salutary provision to check misuse of ‘homes’ as ‘dens’ of
prostitution.

The State Government may associate with special police officer a

non-official advisory body consisting of not more than five leading social
welfare workers of the area including woman social welfare worker to
advise them on questions of general importance regarding the working of
the Act.3

The constitutional validity of the Immoral Traffic (Prevention) Act,

1956 was challenged in Shama Bai vs. State of Uttar Pradesh 4 but the Court
held that Sections 4(2) and 20 of the Act were constitutional and not
violative of fundamental rights as none of the provisions of the Act are
intended to stop profession or trade of a prostitute altogether. Only

1
. Sec. 14. of the Act.
2
. Sec. 15. of the Act.
3
. Delhi Administration v. Ram Singh, A.I.R. 1962 SC 63.
4
. AIR 1959 All 57.

361
restrictions can be imposed reasonably as Section 3 only punishes running
of a brothel.

International Dimensions of Human Trafficking

The trafficking of women, young girls and children at international

level continues to be a global problem which is generating seven billion
dollars business every year. It is the third largest illegal transnational
business after drugs and arms. The merchandise for this lucrative trade is
mostly women and children from marginal communities who are looking for
a viable employment and means of survival. The traffickers use the bait of
better life opportunities to deceive the victims and exploit their innate
human need to aigrette for better opportunities. Women and young girls are
primarily trafficked to satiate the demand of the global sex trade. The
principle underlying illegal human trafficking is the sheer powerlessness of
the victims arising out of gender disparities and the lack of economic
choices. Although each nation, State has laws and policies against illegal
human trafficking but they lack effective implementation.

The global community is constantly responding against the menace of

human trafficking by formulating numerous regional and International
Conventions to mitigate this rampant violation of human rights. Some of
these are the Conventions on the Elimination of All Forms of Discrimination
against Women (CEDAW), 1979 and the Convention on the Rights of the
Child (CRC), 1989. The Beijing + 5 Conference and recent SAARC
Conference at Male also took up this issue for deliberation and discussion. 1

Rescue operation of girls from brothels by N. G. O.

At the initiative of the voluntary organization, Gudia, and N.G.O. on

24.10.2005 took help of students from various universities who did their bit

1
. UNIFEM. SARO : Human Trafficking; Times of India (Delhi) dated April 24, 2001.

362
for liberating 31 girls from Shivdaspur brothels in Varanasi. The raids were
conducted in the suspected houses. Some girls told that they were forced
into this trade unwillingly but a large number of girls protested against the
entire operation and staged a demonstration forcing the scribes to put down
their cameras. The Gudia took also help of police but the police reached
there when Gudia was almost trough with its raids. The student's anger knew
no bound on the refusal of the police to rescue the girls unless they were
accompanied by female cops. 1

Rescue Homes For Destitute Women:

There are several social service institutions such as the Rescue Homes,
Vigilance Homes, Vigilance Rescue Shelters, Stri-Sadans, Nari Niketans etc.
operating in different parts of India for rehabilitation of destitute girls and
women who have fallen a prey to prostitution willingly or per chance. The
Nari Niketan functioning at New Delhi under the Social Welfare Board offers
all possible help to the morally wrecked girls and deserted women, thus
preventing them from landing into the world of prostitution. Similar services
are rendered by the Mahila Ashram at Wardha. The States of Madras and
Maharashtra seem to have taken up the task of rehabilitation of women
prostitutes on priority basis. Referring to the problem of prostitution, Smt. V.
T. Laxmi, the Chief Inspectress of Women’s Institutions, Madras, commented
that majority of the women drift into prostitutous life on account of neglected
parental care and for want of real home.

Procedure for Rehabilitation:

Rehabilitation of prostitutes is as important as their liberation. Weak

strategies and ineffective implementation of policies result in the prostitutes
reverting back to their profession.

1
. The Times of India (LRo.) 26.10.2005, P. 10.

363
(1) Under Section 19, a person carrying on or made to carry on prostitution
may make an application to a Magistrate for an order that he/she may be -

(i) kept in a protective home; or

(ii) provided care and protection by the Court

and the Magistrate if satisfied may make such an order.

(2) The Magistrate, under Section 20 may, on receiving information and

after issuing notices and making inquiry conclude that a person is a
prostitute. And if it is in the interest of the general public, he may order
removal of such prostitute from a particular place and prohibit her/his
re-entry.

(3) The Act empowers the State Government under Section 21 to establish
protective homes and corrective institutions for the rehabilitation of such
released persons and their maintenance. 1 Regarding these protective and
corrective homes, the State Government has power to make rules inter
alia for the establishment, maintenance, management and
superintendence and the care, treatment, maintenance, training
instructions, control and discipline of the inmates. The State
Government also makes rules for transfer of inmates from one
protective home to another and their discharge, their inspections and
temporary detention of persons until arrangements are made to send the
inmates to homes or institutions.

The Bhartiya Patita Uddhar Sabha (BPUS) a voluntary organization

for rehabilitation and upliftment of sex workers running two centers for
child development in the name of Bal Vidya Niketan, in Varanasi and
Allahabad had planned to set up child development and care centers at 18

1
. Section 23(2) (c).

364
places in different parts of the country for the welfare of children of
prostitutes.

Judicial Behaviour:

Though there is no movement against trafficking in women still,

some mainstream feminists and human rights activists fight for the plight of
these women.

In Vishal jeet vs. Union of India1, in a public interest litigation filed

by a lawyer, the Supreme Court confined itself to the issues of child
prostitution and Article 23 in the context of prostitution. Interpreting Article
23, the Court held that:

“The expression ‘traffic in human beings’ is evidently a very wide

expression including the prohibition of traffic in women for immoral or
other purposes.”

Expressing its dismay the Court said:

“Prostitution always remains as a running sore in the body of

civilization and destroys all moral values. The causes and evil effects of
prostitution maligning the society are so notorious and frightful that none
can gainsay it. This malignity is daily and hourly threatening the community
at large, slowly but steadily making its way onwards, leaving a track marked
with broken hopes. Therefore, the necessity for appropriate and drastic
action to eradicate this evil has become apparent”

Pained by the malaise, it added:

“It is highly deplorable to note that many poverty-stricken children

and girls in their prime youth are taken to the ‘Flesh Market’ and forcibly

1
. (1990) 3 SCC 318: 1990 SCC (Cri) 543.

365
pushed into the flesh trade which is being carried on in utter violation of all
canons of morality, decency and dignity of human kind”.

The Supreme Court division bench speaking through Justice S. R.

Pandian, laid the following measures for the purpose of eradicating the evil
of prostitution:

(1) All the State Governments and Government of the Union Territories
should direct their law-enforcing authorities concerned to take
appropriate and speedy action under existing laws in eradicating child
prostitution without giving room for any complaint of remissness or
culpable indifference.

(2) The State Governments and Governments of Union Territories should set
up a separate Advisory Committee within their respective zones
consisting of the Secretary of the Social Welfare Department or Board,
the Secretary of the Law Department, Sociologists, Criminologists,
Members of Women’s Organizations, Members of the Indian Council for
Child Welfare and Indian Council of Social Welfare as well as the
members of various voluntary social organizations and associations, the
main aim of the Advisory Committee being to make suggestions of:

(a) the measures to be taken in eradicating child prostitution, and

(b) the social welfare programmes to be implemented for the care,

protection, treatment, development and rehabilitation of the young
fallen victims, namely, the children and girls rescued either from
the brothel houses or from the clutches of prostitution.

(3) All the State Governments and Governments of Union Territories

should take steps in providing adequate and rehabilitative homes manned
by well-qualified trained social workers, psychiatrists and doctors.

366
(4) A Committee should be set up to evolve welfare programmes to be
implemented on the national level for the care, protection, rehabilitation
of the young fallen victims, namely, children and girls and to make
suggestions for amendments to the existing laws or for the enactment of
any new law, if so warranted for the prevention of sexual exploitation of
children.

(5) A machinery should be devised for ensuring proper implementation of

the suggestions that would be made by the respective committees.

(6) The Advisory Committee should also go deep into the Devadasi system
and Jogin tradition and give their valuable advice and suggestions as to
what best the Government could do in that regard.

After the Vishal Jeet case another case where the Supreme Court
delved into the malady of prostitution, especially child prostitution, with
extreme sensitivity was Gaurav Jain vs. Union of India1. In the initial PIL
which dealt with prostitution in general and the plight of children of prostitute
women in particular Ramaswamy, J. interpreted certain provisions of the
ITPA without pronouncing on the constitutionality of several other offending
ones. Wadhwan, J. felt that such a course was not correct since the parties had
not been informed or heard and there were no pleadings. Ramaswamy, J.,
nevertheless issued directions. The entire judgment was thereafter reviewed
and recalled by a Bench of three judges in Gaurav Jain vs. Union of India.2

Dwelling on the causes of prostitution the Court said:

“The Mahajan Committee Report, indicates that in two villages in

Bihar and some villages in West Bengal, parents send their girl children to
earn in prostitution and the girls in turn send their earnings for maintenance

1
. (1997) 8 SCC 114.
2
. (1998) 4 SCC 277.

367
of their families. It further indicates that certain social organizations have
identified poverty as the cause for sending the children for prostitution in
expectation of regular remittance of income from prostitution by the girls
who have already gone into brothels.

It is also an inevitable consequence that over the years the fallen

women are accustomed to a certain lifestyle and in terms of expenditure they
need a certain amount of money for their upkeep and maintenance. When
they bear children it becomes an additional burden for them. They are led or
caught in the debt traps. The managers of the brothels are generally ladies.
They do not allow the girls to bear children. In case of birth against their
wishes, the unfortunate are subjected to cruelty in diverse forms. In the
process of maintaining children again they land themselves in perpetually
growing burden of debt without any scope to get out from the bondage.
Thereby this process lends perpetually to slavery to the wile of prostitution.
Those who want to remain in prostitution have given absence of alternative
source of income, their social non-acceptability, family customs, poverty,
ill-health and their despondence as the reason and, thus, they want to
continue in prostitution as the last resort for their livelihood. They do not
like to remain in the red-light area but lack of alternative source of
livelihood is the prime cause of their continuation in the profession.”

Referring to the plight of prostitutes the Court observed:

“The prostitute has always been an object and was never seen as a
complete human being with dignity of person; as it she has had no needs and
aspirations of her own individually or collectively. Their problems are
compounded by coercion laid around them and torturous treatment meted
out to them. When they make attempts either to resist the prostitution or to
relieve themselves from the trap, they succumb to the violent treatment and

368
resultantly many settle for prostitution. A prostitute is equally a human
being. Despite that trap she is confronted with the problems to bear and rear
children. Their children are equally subjected to discrimination, social
isolation. In recent times however, there has been a growing body of opinion
by certain enlightened sections of the society advocating the need to no
longer treat the fallen women as criminals or as objects of shocking sexual
abuse. They are victims of circumstances and hence should be treated as
human beings like others so as to bring them into the mainstream of the
social order without any attached stigma.”

Trying to answer the question as to what procedure is efficacious to

prevent prostitution and bring the fallen women and their children into the
social mainstream by giving care, protection and rehabilitation, the Court
observed:

“Three C’s, viz., counseling, cajoling and coercion are necessary to

effectively enforce the provisions of ITP Act. It is the duty of the State and
all voluntary Non-Government organizations and public-spirited persons to
come to their aid to retrieve them from prostitution, rehabilitate them with a
helping hand to lead a life with dignity of person. Self employment through
provisions of education, financial support, developed marketing facilities are
some of the major avenues in this behalf. Marriage is another object to give
them real status in society. Acceptance by the family is also another
important input to rekindle the faith of self respect and self confidence.
Housing, legal aid, free counseling, assistance and all other similar aids and
services are meaningful measures to ensure that unfortunate fallen women
do not again fall into the trap of red-light area contaminated with foul
atmosphere. Law is a social engineer. The Courts are part of the State
steering by way of judicial review. Judicial statesmanship is required to help
regaining social order and stability. Interpretation is effective armoury in its

369
bow to steer clear of the social malady, economic reorganization as effective
instruments removing disunity and prevent frustration of the disadvantaged,
deprived and denied social segments in the efficacy of law and pragmatic
directions pave way for social stability, peace and order. This process
sustains faith of the people in rule of law and democracy becomes useful
means to the common man to realize the meaningful right to life guaranteed
by Article 21.”

Making its observations on the customary initiation of women into

the practice of Devadasis; Jogins and Venkatasins, the Court said:

“It is an affront to the human dignity and self respect but the pursuit
of customary beliefs traps the fair sex into this glorified self sacrifice and
ultimately leads to prostitution service in the temples and charitable
institutions, etc, which is a crime against humanity, violation of human right
and obnoxious to the Constitution and Human Rights Act. They are void
under the Constitution of India and punishable under the law. They are
antithetical to the constitutional scheme. Fundamentalists and proponents of
these practices are constitutional criminals. The unfounded customs cannot
have legal sanction. On the other hand penal enactment provide for abolition
thereof. Instead of progressive outlook, regressive unfortunate tendency of
late is raising its ugly head to glorify these ignominious practices which are
leading not only to abetment of commission of the crime, but also
misleading the unfortunate illiterate and weaker sections of the society, to be
taken in seriously by later by their false promises or false theories such as
God’s ordain which finds easy acceptance by the poor and illiterate and is
acted upon. Every right-thinking person should condemn such attempts apart
from keeping and helping strict implementation of the law prohibiting
forced into prostitution initiation of the nasty practice where in the eldest
girl in particular families is forced into prostitution.”

370
 The problem faced, thus, is humane. The solution has to be with a
humane touch too and not by viewing the person involved in trafficking to
be a nuisance from whom the rest of the people in society must be protected.

This is best illustrated by the quote from Gaurav Jain vs. Union of
India:

“The constitutional and human rights to the victims of fallen trade of

flesh trade need care and consideration of the society. This case calls upon
to resolve that human problem with care and purposeful guidelines, lend
help to ameliorate their socio-economic conditions, eradicate social stigma
and to make available to them equal opportunities for the social order.” 1

The petitioners in Indian Hotel and Restaurants Assn. (AHAR) v.

State of Maharashtra2 commonly known as the ‘dance bars girls’ case,
carried on the activity of service of food, performance of music and dance
and service of liquor as approved by Collector/licensing authority. By the
Amendment of 2005 to the Bombay Police Act, dance performance in eating
house permit room or beer bar was prohibited, which was challenged in the
instant with petition before the Bombay High Court.

The most serious contention made before the Court by the State was
that dance bars have become pick up joints for prostitution. The State
produced a compilation of 34 cases under PITA from 2000 to 2005. The
Court held that some of the women were involved in prostitution by itself
would be no answer for State to take away the right of livelihood of those
others not so involved unless it was beyond the State’s control.

When the State seeks to prohibit or restrict a fundamental right, the

burden is on State to prove that restrictions are reasonable and in public

1
. Gaurav Jain vs. Union of India , (1998) 4 SCC 270: AIR 1997 SC 3027.
2
. 2006 (NOC) 901 (Bom).

371
interest. Ladies working in the establishments are not merely dancers though
dancers constitute a large proportion. It is not the states case that those who
serves the customers otherwise than through dancing are not involved in
immoral activities. Every citizen has right to earn his livelihood with dignity
and it is the duty of State to provide protection to those lawfully engaged.

Immoral trafficking although being prohibited by Article 23 of the

Constitution has become a great problem in India. A division bench
comprising S. B. Sinha & H. S. Bedi, JJ. in State of Maharashtra vs. Mohd.
Sajid Hussain Mohd. S. Hussain1 observed : “Immoral trafficking is now
widespread.” Victims, who are lured, coerced or threatened for the purpose
of bringing them to the trade should be given all protection. “The Court
cancelled the anticipatory bail grant by Aurangabad Bench of Bombay High
Court, to the accused. The Court said that four main factors, which are
relevant for considering the application for grant of anticipatory bail, are:

(i) The nature and gravity or seriousness of accusation as apprehended by

the applicant;

(ii) The antecedents of the applicant including the fact as to whether he has,
an conviction by the Court, previously undergone imprisonment for a
term in respect of any cognizable offence;

(iii) The likely objects of the accusation to humiliate or malign the reputation
of the applicant by having him so arrested; and

(iv) The possibility of the applicant, of granted anticipatory bail, fleeing

from justice.

Finally, it may be stated that the menace of prostitution can not be

eradicated by law alone unless people themselves take initiative in

1
. (2008) 1 SCC 213

372
mobilizing public opinion against it and ensure rehabilitation of existing
prostitutes.

[5] Pornography and Indecency:

Pornography has a tendency to defile the tender mind of the youth

and corrupt them accordingly. The pornographic and indecent literature and
other things are on rampant sale publicly. In fairs organized in the towns and
villages such things are seen to be sold without any hitch. The movies by
depicting the obscene and pornographic scenes also defile the mentality. The
scenes of kiss, sharing the bed by the male actors and female actresses and
other stimulating scenes in the films and television have got the access even
in those homes where the children were not free to have the recreation in
picture halls due to paucity of funds and parental control. The pornographic
and obscene literature’s sale and circulation and obscene acts and songs
doing or recital is offence under Sections 292 to 294, Indian Penal Code,
1860 but the action is less for these things. The racket of blue films being
shown through video showing the actual sex scenes in natural and non-
natural way is spreading fast as the cases are often reported of the police
raid. The provisions of Sections 292 to 294, Indian Penal Code, 1860 need
to be mentioned here:

“Sale, etc. of obscene books, etc. (Section 292) – (1) For the purpose of
sub-section (2), a book pamphlet, paper, writing, drawing, painting,
representation, figure or any other object, shall be deemed to be obscene, if
it is lascivious or appeals to the prurient interest or if its effect, or (where it
comprises two or more distinct items) the effect of any one of its terms, is, if
taken as a whole, such as to tend to deprave and corrupt persons who are
likely, having regard to all relevant circumstances, to read, see or hear the
matter contained or embodied in it.

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(2) Whoever –

(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts
into circulation or for purposes of sale, hire, distribution, public
exhibition or circulation, makes, produces or has in possession any
obscene book, pamphlet, paper, drawing, painting, representation or
figure or any other obscene object whatsoever, or

(b) imports, exports or conveys any obscene object for any of the
purposes aforesaid, or knowing or having reason to believe that such
object will be sold, let to hire, distributed or publicly exhibited or in
any manner put into circulation, or

(c) takes part in or receives profits from any business in the course of
which he knows or has reason to believe that any such obscene objects
are, for any of the purposes aforesaid, made, produced, purchases, kept,
imported, exported, conveyed, publicly exhibited or in any manner put
into circulation, or

(d) advertises or makes known by any means whatsoever that any person
is engaged or is ready to engage in any act which is an offence under
this section, or that any such obscene object can be procured from or
through any person, or

(e) offers or attempts to do any act which is an offence under this section,
shall be punished on first conviction with imprisonment, of either
description for a term which may extend to two years and with fine
which may extend to two thousand rupees, and in the event of a second
or subsequent conviction, with imprisonment of either description for a
term which may extend to five years, and also with fine which may
extend to five thousand rupees.

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Exception – This section does not extend to – (a) any book, pamphlet,
paper, writing, drawing, painting, representation or figure –

(i) the publication of which is proved to be justified as being for the public
good on the ground that such book, pamphlet, paper, writing, painting,
representation or figure is in the interest of science, literature, art or
learning or other object of general concern, or

(ii)which is kept or used bona fide for religious purpose;

(b) any representation, sculptured, engraved, painted or otherwise represented

on or in –

(i) any ancient monument within the meaning of the Ancient Monuments
and Archaeological Sites and Remains Act, 1958 (24 of 1958), or

(ii) any temple or on any car used for the conveyance of idols, or kept or
used for any religious purpose.

Sale, etc. of obscene objects to young persons (Section 293): Whoever

sells, lets to hire, distributes, exhibits or circulates to any person under the age
of twenty years any such obscene objects as it is referred to in the last
preceding section, or offers or attempts so to do, shall be punished on first
conviction with imprisonment of either description for a term which may
extend to three years, and with fine which may extend to two thousand
rupees, and, in the event of a second or subsequent conviction, with
imprisonment of either description for a term which may extend to seven
years, and also with fine which may extend to five thousand rupees.

Obscene acts and songs (Section 294): Whoever, to the annoyance of

others –

(a) does any obscene act in any public place, or

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 (b) sings, recites or utter any obscene songs, ballad or words, in or near
any public place,

shall be punished with imprisonment of either description for a term

which may extend to three months, or with fine, or with both."

The obscenity has not been defined in the Indian Penal Code. In Ranjit
D. Udeshi vs. State of Maharashtra 1, the Supreme Court of India was, at the
first time, invited to determine the obscenity. The appellant, a book-seller of
Bombay, was prosecuted under Section 292 for selling and keeping for sale
the book Lady Chatterley’s Lover (unexpurgated ed.) written by D.H.
Lawrence – The Magistrate held the book obscene and, therefore, sentenced
the appellant. The plea, inter alia, for the appellant was that the book read as
a whole was the work of art, the Supreme Court in this case agreed the
following test laid down by Cockburn, CJ in Hicklin’s case2 -

“The test of obscenity is this whether the tendency of the matter charged
as obscenity is to deprave and corrupt those minds are open to such immoral
influences, and into whose hands publication of this sort may fall. It is quite
certain that it would suggest to the minds of the young of either sex or even
to persons of more advanced years thought of most impure and libidinous
character.”

A nude picture of a woman is not per se obscene, when it has nothing to

offend the ordinary decent persons, it is impossible to say it obscene within
the meaning of Section 2923.

In Samaresh Bose vs. Amal Mitra4 the Supreme Court provided

certain guidelines:

1
. AIR 1965 SC 881.
2
. (1868) LR 3 QB 360.
3
. Shree Ram Saxena, (1940) 1 Cal 581.
4
. 1996 Cr LJ 24.

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 “In our opinion, in judging the question of obscenity the judge in the
first place should try to place himself in the position of the author and from
the new point of author the judge should try to understand what is it that the
author seeks to convey and what the author conveys has any literary and
artistic value. The judge should thereafter place himself in the position of a
reader of every age group in whose hands the book is likely to fall and try to
appreciate what kind of possible influence the book is likely to have on the
minds of the reader. The judge should thereafter apply his judicial mind
dispassionately to decide whether the book in question can be said to be
obscene within the meaning of the section by an objective assessment of the
book as a whole and also of the passage complained of as obscene
separately.”

In D. G. Doordarshan vs. Anand Patwardhan 1, the appellant

(Doordarshan) decided not to telecast the documentary film “Father, Son
and Holy War” which looked at the question of gender along with issue of
religious violence. This film won many National and International awards in
Israel, Japan and Canada. The Court directing Doordarshan to telecast film
held:

“In our opinion the respondent has a right to convey his perception on
the oppression of women, flawed understanding of manhood and evils of
communal violence through documentary film produced by him: The
freedom of expression which is constitutionally protected cannot be held to
ransom on a mere fall of a hat. The film in its entirely has a serious message
to convey and is relevant in present text. Doordarshan being a State
controlled agency funded by public funds could not have denied access to
screen the respondent’s documentary except on specified valid grounds. 2

1
. (2006) 8 SCC 433: AIR 2006 SC 3346.
2
. (2006) 8 SCC 433: AIR 2006 SC 3346. 3354.

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Indecent Representation of Women (Prohibition) Act, 1986:

To cope with growing representation of women in advertisements and

publications which has the tendency to corrupt the mind and denigrate the
women, the Parliament enacted the Indecent Representation of Women
(Prohibition) Act, 1986. It is a short Act containing 10 sections only.
‘Indecent representation of women’ is defined by Section 2 (c) as ‘the
depiction in any manner of the figure of a woman, her form or body or any
part thereof in such a way as to have the effect of being indecent, or
derogatory to, or denigrating women, or is likely to deprave, corrupt or
injure the public morality or morals’. Section 3 prohibits the publication or
exhibition of any advertisement containing indecent representation of
women in any form. Section 4 prohibits production, sale or letting to hire,
distribution, circulation or sending by post any book, pamphlet, paper, slide,
film, writing, drawing, painting, photograph, representation of figure
containing indecent representation of women in any form. The proviso to the
Section makes it clear that the section does not apply to any book, pamphlet,
paper, slide, film, writing, drawing, painting, photograph, representation or
figure – (i) the publication of which is proved to be justified as being for the
public good on the ground that such book, pamphlet, paper, slide, film,
writing, drawing, painting, photograph, representation or figure is in the
interest of science, literature, art, or learning or the objects of concern, or

(ii) which is kept or used bona fide for religious purposes. The section also
does not apply to any representation, sculptured, engraved, painted or
otherwise represented on or in any ancient monument within the meaning
of the Ancient Monument and Archeological Sites and Remains Act,
1958 or any temple, or on any car used for the conveyance of idols, or
kept or used for any religious purpose. It also does not apply to any film

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 in respect of which the provisions of Part II of Cinematograph Act, 1952
will be applicable.

Under Section 5 any Gazetted Officer may be authorized by the State

Government within the local limits of an area to enter and search at all
reasonable times, with such assistance, if any, as he considers necessary, any
place in which he has reason to believe that an offence under this section has
been or is being committed. He may seize any advertisement or any book,
pamphlet, paper, slide, film, writing, drawing, painting, photograph,
representation or figure on the belief of contravening the provisions of the
Act. He may examine any record, register, document or any other material
object found there and seize the same on the belief that it may furnish
evidence of the Commission of an offence under this Act. The proviso to
Section 5 provides that no entry can be made into a private dwelling house
without a warrant. Proviso further provides that the power of seizure may be
exercised in respect of any document, which contains any such
advertisements including the contents, if any, of such document, article or
thing if the advertisement cannot be supported by reason of its being
embossed or otherwise from such document, article or thing without
affecting the integrity, utility or saleable value of that. For the search or
seizure, the provisions of Criminal Procedure Code, 1973 shall, as far as
may be, apply as any search or seizure made under the authority of a warrant
issued under Section 94 of Criminal Procedure Code. If any person seizes
anything, he shall, as soon as may be, inform the nearest Magistrate and take
his order as to the custody thereof.

The contravention of the provisions of Section 3 or Section 4 is an

offence under Section 6. The punishment on first conviction is
imprisonment of either description for a term which may extend to two years
and also fine which may extend to two thousand rupees. In the event of a

379
second or subsequent conviction, the imprisonment is for a term not less
than six months but it may extend to five years an also a minimum fine of
Rupees Ten thousand and the maximum Rupees One lakh. Under Section 7,
in case of an offence by the company, every person who at the time of
commission of offence was in charge of and responsible to company for the
conduct of the company, as well as company shall be deemed to be guilty of
the offence. However, such person shall not be liable to punishment if the
offence was committed without his knowledge or if he has exercised all
diligence to prevent the commission of such offence. When the offence is
committed by a company with the consent or connivance of, or due to any
neglect on the part of, any director, manager, secretary or other officer, he
shall be punished for it.

Section 8 provides that notwithstanding anything contained in the

Code of Criminal Procedure, and offence under this Act shall be bailable
and cognizable.

Section 9 confers immunity, from any suit, prosecution or other legal

proceedings, on the Central Government or any State Government or any
officer of the Central Government or State Government for anything done or
intended to be done, in good faith, under this Act.

It is not specific offence for a woman to have sexual intercourse with

a boy under 16, but she is guilty of indecent assault in such cases unless she
is purely passive, refraining from indecently handling the boy in any way. 1
Also, if the boy is under 14 the woman is guilty of indecency with children
under the Act of 1960.

It may be noted that like any other offence, sexual offence can not be
eradicated completely. The modern changes in living style have contributed

1
. Sexual offence Act, 1956- Section 28.

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to stimulate sexual offence in varying degrees. It is, therefore, necessary that
apart from the legal provisions various other effective measures should also
be utilized for repressing sex delinquency. It may be suggested that the State
Department of Family Planning be assigned the additional responsibility of
warning the public about the evil consequences of illicit sex-indulgence and
mobilize public opinion against this menace through intensive propaganda.
If sincere efforts are made to appraise people of the various veneral diseases
which the spouses are likely to contact as a result of excessive sex
indulgence and the miseries of loss of health and wealth involved in
undesirable sex-behaviour, there is no reason why sexual offence can not be
eliminated from society. Educational institutions should also play an active
role in mitigating this social evil by educating the youngster to refrain from
undesirable sex involvement because of the seriousness of consequence
ensuing there from. Adolescents must be made to know the realities of life
and choose for themselves the rightful path which can make them a useful
member of society. Dissemination of correct knowledge about Sex,
establishing Marriage Council Bureaus for proper help and guidance of sex
psychopaths and creating healthy conditions in which innate sex desire of
men and women can be satisfied without any fear of reprobation, may also
help in reducing sexual offence.

The role of law enforcement agencies such as the police, the lawyers,
the magistracy, and the rehabilitation centers as also the voluntary social
organizations in combating sex criminality hardly needs to be emphasized.
Law is only a weapon through which crimes can be prevented provided the
law-enforcement machinery implements the provisions of law efficiently.
This is possible only with the active co-operation and support of concerned
agencies. Unfortunately, general lack of understanding and coordination
among the police, the prosecutors and other agencies and a tendency to

381
criticize each other’s performance is hampering the suppression of sexual
offence and conviction of sexual offenders.

Since offences against women are partly the result of social system
and partly the outcome of individual pathologies, a reformatory attitude
towards female victims may be helpful in achieving the desired results. The
rehabilitation has to four-fold viz. physical, mental psychological and social.
Physical rehabilitation involves creating power living and working
conditions to the victimized female. Mentally she needs help to restore her
lost esteem. Psychologically she needs help to overcome her depression and
insecurity; and socially she needs help to be accepted back in the social fold.

The emerging human rights jurisprudence at home and abroad

requires all public authorities to act not merely compatible with the global
perception of the right to live with human dignity but to resort to all possible
means and strategies to strengthen an ensure the fundamental right to life
and liberty of a woman who is a victim of rape.

In State of Maharastra vs. Madhukar Narayan1, the Apex Court,

without referring to Article 21, has held that even a woman of easy virtue is
entitled to privacy and that no one can invade her privacy as and when he
likes.

Social awakening alone may help in attaining this purpose through

mass communication. The National Women Commission and other
voluntary women organizations can play a significant role in this direction.

In last, it may be concluded that sex itself can be a cause of crime, or

it may also provide a soothing ground for generating other crimes. Some of
the offences which the sex offenders generally commit or generate include
swindling their customers or blackmailing them, transmitting venereal
1
. AIR 1991 S.C. 207.

382
disease, disturb family relationships, expose youngsters to deviant life
styles, encourage alcoholism, disorderly conduct, smocking and demoralize
the society. Obviously, law alone can not deal with these types of crime or
deviance without active support from the public, especially the social
activists.

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