INTRODUCTION
The word “Crime” has its origin rooted in both Latin And Greek. The Latin term “Crimen” means “to charge” whereas the Greek expression “Krimos” refers to “Social order”. Thus, in common vernacular, the word crime is applied to those acts that go against social order and require serious condemnation or punishment.
Crime refers to the commission or omission of such an act that is forbidden and punishable by the law. As a term, “Crime” covers a broad spectrum of offences ranging from pick-pocketing, theft to more grievous offences such as murder, rape etc. The occurrence of any crime is not just a wrong committed against a particular individual but is considered as a wrong committed against the society as a whole.
To understand Crime in the context of any country it is essential to understand its people’s thoughts, public opinion, culture and such understanding can be obtained by examining the laws of the land. Every society is bound by certain rules and regulations based on what it values as right and wrong thereby reflecting the public opinion of that time. Hence, to understand crime one must understand its laws.
Crime In India
For a large, populated country like India the issue of crime is a little more complex. It involves intricacies with regard to concepts concerning caste, sub-caste religion etc. Culturally, many atrocities have been committed against marginalised communities in India under the garb of pride, an honour for one’s community. Though several legislations have been passed in an attempt to reduce such atrocities such issues still persist owing to deeply enriched patriarchal mindsets.
Over the past few years, crimes against women have exponentially increased and with it problematic elements of the functioning of society have come to the forefront. Thus, now more than ever the awareness of one’s rights and status of women under criminal law must be examined. Primarily criminal laws in India are governed by the Indian penal Code and Criminal Procedural Code along with some special acts. Thus, the status of women under criminal law will be examined by the provisions of such laws provided herein –
A. Provisions Under The Indian Penal Code For Women
1. Rape
Section 375 to Section 377 of the Indian Penal Code talks about sexual offences. The term “Rape” mentioned in this section is derived from the Latin Term “Rapio” which translates to mean “seize”. Thus, rape refers to any forcible seizure of women for the purpose of intercourse. As per this section a man has said to have committed rape if he if the following descriptions are met –
- Such act is done against her will
- There is no involvement of consent
- Even if there is consent, such consent is obtained by putting her or her loved ones in a position of fear of death or any sort of harm.
- When a man who is aware that he is not her husband obtains consent only because she believes that he is another man to whom she is married to or will be lawfully married.
- When consent provided is a result of an unsound state of mind or intoxication which was administered by the man himself or by instructing another to do the same. Such consent is no consent as the woman was not aware of what she has agreed to. In the case of Tulsidas Kanolkar v The State Of Goa[1] the victim was mentally impaired and the perpetrator took advantage of this fact and was held liable for rape.
- With or without consent given by any woman under the age of sixteen.
However, the one exception to rape is if such consent is obtained by a man from his lawful wife provided she is not under the age of fifteen.
Amendment Of Section 375
The Criminal Law (Amendment) Act, 2013 or the Nirbhaya Act, was passed in Parliament to amend Section 375 after the horrific incident of gang rape that shook the country in 2012. To remove the ambiguities in the previous law and to provide for stricter punishments in cases of rarest cases of sexual violence, the legislation was broadened and took into consideration acts like penetration of the penis into vagina, urethra, anus or mouth, or any object or any part of the body to any extent into the aforesaid woman body parts or making another person do so, as constituting an offence of sexual assault. The case of Sakshi v Union Of India And Ors[2] led to such amendments in Section 375 of the Indian Penal Code. Sakshi an NGO that focuses on Violence against women stated that the prior definition of Rape in the Indian Penal Code did not account for all forms of forcible penetration and was limited and ambiguous in its the definition. The Court held that suggestions were in interest for the larger good of society and took it into consideration.
Punishment For Rape
Section 376 Of The Indian Penal Code- This section talks about the punishment prescribed for the offence of rape. They are as Follows –
(i) Whoever commits rape will be subject to rigorous imprisonment of 10 years and may also extend to Imprisonment for life depending on the facts of the case and will also be liable to pay fine.
(ii) If such rape is committed by police officers, public servants, member of armed forces, the staff of a hospital or any other person who was in a position of authority or trust for the victim- such person will be subject to rigorous imprisonment for not less than 10 years and may extend to imprisonment for rest of natural life and such person will also be liable to pay fine. In the case of State Of Maharashtra v Prakash[3] the Supreme Court held that a police constable who by force had sexual intercourse with a woman by threatening and beating her husband was considered rape and consent obtained via force is no consent at all. The police constable was held liable for punishment as per Section 376 of the Indian Penal Code.
(iii) Any person who commits such an offence of rape on a woman under the age of 16 years will be subject to rigorous imprisonment of not less than 20 years which may extend to imprisonment for the rest of natural life and fine. In the case of Harpal Singh v State Of Himachal Pradesh[4] a minor under the age of 16 was abducted by the perpetrator on the pretext that her brother had fallen in and raped. He was accused of rape and liable under Section 376 of the Indian Penal code
(iv) Any persons committing rape as mentioned in the above points (i) and (ii) which ultimately leads to the vegetative state of the victim will be punished with rigorous imprisonment for a period of 20 years which may extend to imprisonment for the rest of natural fine as well as fine.
(v) When without consent, the husband has sexual intercourse with his wife who is living separately, whether under a decree of separation or otherwise will be considered rape and punishment for such an offence are minimum 2 to 7 years of imprisonment along with fine.
(vi) In offences relating to gang rape the punishment prescribed is rigorous imprisonment for a period of 20 years and may extend to imprisonment for the rest of his natural life along with fine.
(vii) As far as repeat offenders are concerned the punishment is imprisonment for the rest of his natural life or death.
(viii) For Person committing an offence of rape on a woman under twelve years of age the punishment prescribed is Rigorous Imprisonment for 20 years to Imprisonment for Natural-Life + Fine or Death.
(ix) For offences relating to Gang rape of a woman under sixteen years of age the prescribed punishment is Imprisonment for the rest of his natural life as well as fine. In the case of State Of Punjab v Gurmit Singh[5] a 14-year-old girl was abducted and raped while she was returning from school and threatened that she would be killed if she didn’t consent to it. The court held these perpetrators liable for punishment under section 376 of the Indian Penal Code.
(x) For offences relating to Gang rape on a woman under twelve years of age the prescribed punishment is Imprisonment for the rest of his natural life and fine or death.
Such offences are cognizable offences i.e the police does not require a warrant to arrest the accused and such offences are also non-bailable.
2. Kidnapping, Abducting Or Inducing Women To Compel Her Into Marriage, etc.
Section 366 of Indian Penal Code – This section states that any person who kidnaps or abducts a woman in order to compel her into marriage or force her into intercourse will be subject to a punishment of imprisonment which may extend to a period of 10 years and will also be liable to pay a fine.
Section 366 A of Indian Penal Code – This section states that any person who induces a minor under the age of eighteen years to go to any place or to perform such an act that would lead to forced or seduced illicit intercourse would be liable for a punishment of imprisonment that would extend for a period of 10 years and would also be liable to pay fine. In the case of Thakorlal D Vadgama v State Of Gujarat[6] a minor was induced by the accused through making promises, providing gifts etc and was kidnapped and taken into an isolated place and forcibly had sexual intercourse with the minor. The accused stated that the minor came willingly. The court held that even if that were so in cases of minors such consent is not provided in full knowledge and thus does not absolve the accused of such a crime.
Section 366 B Of Indian Penal Code– This section states that any person that imports girls from other countries and brings them to India in order to force or seduce them into illicit intercourse would be liable for punishment of imprisonment for a period that may extend to 10 years and will also be liable to pay a fine.
3. Dowry Death
Section 304 B– This section deals with dowry death. It states that if any woman’s death has occurred owing to circumstances that are not normal and it is proven that prior to her death there were instances of harassment, cruelty by her husband or any of his relatives in relation to matters regarding dowry, it will be considered that the husband or the relative concerned caused the death of the wife. In the case of Raja Lal Singh v State of Jharkhand[7] the wife committed suicide 7 months after she got married owing to harassment from her husband and her brother-in-law with matters regarding dowry just 10-15 days prior to her death. Even though, she died by suicide the court held both the husband and the brother-in-law liable under section 304-B of the Indian Penal Code.
Punishment for such offence is imprisonment for a term not less than 7 years and may extend to life imprisonment. Such offence is cognizable and non-bailable.
4. Word, Gesture Or Act Intended To Insult The Modesty Of A Woman
As per Section 509 of the Indian Penal Code, any person that intends to insult the modesty of a woman and as a result utters any word, makes any sound, gestures or exhibits any object that is done so as to encroach upon the privacy of such woman will be punished by imprisonment for a period that may extend to a period of 3 years and will also be liable to pay fine. It is both a cognizable and non-bailable offence.
5. Enticing Or Taking Away Or Detaining With Criminal Intent A Married Woman
Section 498 of the Indian Penal Code–
This section states that any person who entices a woman who he knows is the wife of another man and purposefully detains, conceals or incites illicit intercourse with another person will be punished with imprisonment which may extend up to two years or be liable to pay fine or both.
Section 498- A of the Indian Penal Code – Cruelty-
This section states that if the husband or any other relative of the husband subjects the wife to any form of cruelty, mental harassment he will be liable for punishment with imprisonment for a period that may extend up to 3 years as well as a fine. It is a cognizable and non-bailable offence.
6. Assault Or Criminal Force To A Women With Intent To Outrage Her Modesty
Section 354 of the Indian Penal Code–
This section states that any person who assaults or uses criminal force towards any woman, intending to outrage her modesty shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both.
The Supreme Court of India in the case of Ramkripal v State Of Madhya Pradesh [8]decided by Justice Ajit Pasayat and S.H. Kapadia brought clarity as to what amounted to modesty and stated that ‘The essence of a woman’s modesty is her sex, and thus giving skeleton to the flesh.’
In the case of Rupan Deol Bajaj v K.P.S Gill[9] the DGP of Punjab and the petitioner who is an IAS officer were at a party together. The DGP repeatedly pulled the petitioner’s chair towards him and as she turned to get up he slapped the butt of the petitioner in the presence of everyone thereby outraging her modesty. The DGP was held liable for punishment under section 354 of the Indian Penal Code.
Section 354A- Sexual Harassment –
This section defines what behaviour or act constitutes as sexual harassment. The following are some of the definitions-
(i) Any Physical contact or advances that are unwelcome and are explicit in nature with sexual overtures
(ii) Any demand or request for sexual favours
(iii) Making sexually coloured statements, remarks or suggestions
(iv) Forcibly showing pornography and such prohibited content
(v) Any other unwelcome physical, verbal or non-verbal conduct which is sexual in nature.
People who commit such offences specified in clause (i) or in clause (ii) of the above-mentioned instances will be punished with rigorous imprisonment which may extend to five years, or with fine, or with both.
People who commit the offence specified from clause (iii)onwards shall be punishable with imprisonment that may extend to one year, or with fine, or with both.
The above-mentioned definitions were provided in the case of Vishakha v Rajasthan[10] which was also what lead to the Sexual Harassment Of Women At Work Place Act being enacted in 2013.
Section 354B of the Indian Penal Code- Assault Or Use Of Criminal Force To Woman With Intent To Disrobe –
This section states that whoever assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked in any public place, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years and with fine.
In the case of Raju Pandurang Mahale v Maharashtra[11], the accused brought the victim home under false pretext and forcibly made the victim consume liquor after which she was disrobed and her photographs were taken. The accused was liable for punishment as per Section 354 B of the Indian Penal Code.
Section 354C- Voyeurism
This section states that whoever watches or captures the image of, a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.
This came into posting the Nirbhaya Case in 2012.
Section 354D -Stalking
(1) Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking: Provided that the course of conduct will not amount to stalking if the person who pursued it shows––
(i) that it was pursued for the purpose of preventing or detecting crime and the person accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the state; or
(ii) That it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
(iii) That in the particular circumstances the pursuit of the course of conduct was reasonable.
(2) Whoever commits the offence of stalking shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to three years, and shall also be liable to fine.
In the case of Kalandi Charan Lenka v State Of Orissa[12], marriage between the accused and victim could not be finalised as a result of which the accused persistently sent obscene letters and emails to the victim. As a result, the victim changed her location only to realise that the accused was following her and harassing her. He was held liable for stalking under the section of 354 D of the Indian Penal Code.
B. Provisions For Women Provided Under The Criminal Procedural Code
1. Right to Privacy of the victim while recording statement–
Section 164 of CrPC states that a woman who has been raped can record her statement before the District Magistrate when the case is under trial and there is no requirement of any other party. Additionally, the victim can record her statement in the presence of one police officer along with a woman constable at a convenient, safe place so as to minimize the chance of privacy breach.
2. Zero FIR-
Zero FIR refers to an FIR that can be registered irrespective of where the actual offence has taken place and thus jurisdiction does not become an issue and the police will be bound to help. Rape victims can register her complaint from any police station under Zero FIR ruling by the Supreme Court and the police can not deny such a right.
3. Search by another Woman only–
Section 51(2) of CrPC states that when an accused is a woman only another woman should be allowed to search the accused and such protocols must be carried out with decency.
4. Search of Place entered by Person sought to be arrested–
Section 47(2) CrPC states that, if the accused hides in the house or locality and in the same vicinity or locality there exists a female who according to custom does not appear in public, the police does not have the authority to enter the house or break the house open unless such notice is given to such female to withdraw herself from such locality and give her reasonable facility to withdraw herself for the time being and only then can the police authorities enter premises to arrest the person.
5. Medical Examination by a registered female practitioner-
Section 53(2) of CrPC states that when the person who is to be examined medically is a woman then the examination shall be made only by or under the supervision of a female registered medical practitioner and no one else.
6. Power To Require Attendance–
Section 160 of CrPC protects women by making sure that no woman shall be required to attend any place other than a place in which she resides. Hence, a police officer cannot demand to meet in any other place except for where the woman resides for carrying out the investigation and shall interrogate in the presence of a woman constable and family members or friends.
7. No arrests after sunset or before sunrise –
section 46(4) Of CrPC provides that no arrest can be made of a woman after sunset and before sunrise unless in exceptional circumstances keeping their safety in mind. In the case of exceptional circumstances, such arrests can be made but must be done by a woman police officer after making a written report and obtaining prior permission from the concerned Judicial Magistrate of First class.
8. Time Of Incident–
In cases of rape or molestation time of incident does not matter and can not be used as a reason by the police for not registering an FIR.
9. Protection of identity–
Under no circumstances whatsoever can the identity of a rape victim be revealed. Additionally, it is also a punishable offence under Section 228 of IPC
10. Doctor’s medical Report is not finality –
A case of rape cannot be dismissed even if the doctor says no rape had been committed. Report of the doctor can only act as an aid to proof and is not fully conclusive on its own.
Though the above-mentioned sections in the Indian Penal Code and Criminal Procedural Code deal with criminal cases some other important special legislations that were made to aid women are as follows –
- The Domestic Violence Act, 2005
- Dowry Prohibition Act, 1961
- Sexual Harassment of Women at workplace (Posh Act,2013)
- Commission of Sati(Prevention) Act, 1987
- Equal Remuneration Act, 1976
The above-mentioned Acts are provisions made for women so as to provide them with equal opportunities and deny the existing inequality that exists all around society. Such special provisions in favour of women do not amount to any sort discrimination nor does it violate anyone’s fundamental right.
As per, the constitution of India such provisions are considered to be positive or protective discrimination. That is to say these are special privileges granted to vulnerable sections of society that have been oppressed for a long period of time and as a result don’t have the same access to opportunities as other people. Women have been at the receiving end of discrimination and inequality for years and in order to be able to participate and function in society they will need certain aids to get to the same position as others. It is in that capacity that such legislations have been enacted.
CONCLUSION
Despite such legislation provided in the Indian Penal Code as well as the Criminal Procedural Code, crime against women is still a persisting issue. Laws as such may provide us with a basic guideline of what governs us but are effective only when they are upheld through implementation. When archaic regressive beliefs of honour, pride, status, purity that are closely associated with women take front stage, the 21st Century laws take a backseat and are reduced to being just text on paper. The gap between the two needs to be bridged at a grass-root level.
Just as recent as January 8th of 2021, another brutal case of rape was reported in Badaun district of Uttar Pradesh. A member of the National Commission for women which is a statutory body created to protect and promote the interest of women, made a statement that if the victim was not outside during the evening or if she was accompanied by the family such an incident could have been avoided. This is a classic case of victim-blaming and puts the onus of protection on the victim while making excuses for the behaviour of the perpetrator thereby highlighting deeply ingrained patriarchal mindsets. When such statements come from people in positions of power and authority it is safe to assume that such mindsets are not an exception but a norm. People in power are a reflection of the society we live in and thus to tackle such a situation there must be a fundamental change instituted with better education, awareness and accountability.
[1] https://indiankanoon.org/doc/741918/
[2] https://lexpeeps.in/sakshi-v-union-of-india/
[3] https://indiankanoon.org/doc/114554322/
[4] https://indiankanoon.org/doc/481711/
[5] https://indiankanoon.org/doc/1046545/
[6] https://www.delhilawacademy.com/thakorlal-d-vadgama-v-state-of-gujarat-1973-sc/
[7] https://indiankanoon.org/doc/1870126/
[8] https://indiankanoon.org/doc/1308370/
[9] https://indiankanoon.org/doc/579822/
[10] https://indianlawportal.co.in/case-analysis-vishaka-v-state-of-rajsthan/
[11] https://indiankanoon.org/doc/1416338/
[12] https://indiankanoon.org/doc/73866393/
This Article is Written by Shivani S, 3rd Year BA.LLB (Hons.) Student at ICFAI Law School, Hyderabad.
Also Read – Status of Women In Ancient And Modern World
