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"Sexual Harassment and
Rape Laws in India"
http://www.legalserviceindia.com/articles/rape_laws.htm
Introduction:
Sexual harassment and rape are two sides of the same coin. Both showcase
the power of man to dominate that of women. Both have one victim-
‘women’. Both are barbaric in nature; but many people extenuate sexual
harassment to rape, just because the victims are not physically harmed.
Whereas in rape- the victim is ravished like an animal for the
fulfillment of desire and lust of another man. Both have the same
object- to undermine the integrity of the victim, physically as well as
mentally.
As observed
by Justice Arjit Pasayat:
" While a murderer destroys the physical frame of the victim, a rapist
degrades and defiles the soul of a helpless female."
Sexual
harassment is nothing less than the showcasing of male dominance. Given
an opportunity, such men (those committing sexual harassment) would try
fulfilling their desire. However, it also not true that all cases of
sexual harassment are such- where the accused is guilty of conceiving
the intention of a sexual intercourse. But it also depends on each
individual case and circumstances, because it may well be the case that
the woman may also be at fault.
The question
is not whether women have the right to bodily integrity, as this right
is already adumbrated under Article.21 of the Constitution of India.
Article.21, which guarantees the right to life and liberty to men and
women both alike- but whether it is really imperative to take a decisive
step towards extirpating this evil and make the contemporary and future
society a safe haven for women.
According to
the official statistics of 1991, one woman is molested every 26 minutes.
These statistics refer to the reported cases. Whereas, if the unreported
cases were to be included, it would be a matter of seconds- rather than
minutes. investigation of Most cases are not reported by victims because
of various reasons such as family pressures, the manner of the police,
the unreasonably long and unjust process and application of law; and the
resulting consequences thereof.
In instances
where women have reported such illegal and unwelcome behavior, there
have been significant victories in the past decade or so. Also
considering the fact the sometimes these victories are achieved after a
wait of a decade or so.
In Rupan
Deol Bajaj Vs. K PS.Gill,
a senior IAS officer, Rupan Bajaj was slapped on the posterior by the
then Chief of Police, Punjab- Mr. K P S.Gill at a dinner party in July
1988. Rupan Bajaj filed a suit against him, despite the public opinion
that she was blowing it out of proportion, along with the attempts by
all the senior officials of the state to suppress the matter.
The Supreme
Court in January, 1998 fined Mr.K P S.Gill Rs.2.5 lacs in lieu of three
months Rigorous Imprisonment under Sections. 294 and 509 of the Indian
Penal Code.
In N
Radhabai Vs. D. Ramchandran,
when Radhabai, Secretary to D Ramchandran, the then social minister for
state protested against his abuse of girls in the welfare institutions,
he attempted to molest her, which was followed by her dismissal. The
Supreme Court in 1995 passed the judgment in her favour, with back pay
and perks from the date of dismissal.
Vishaka’s
case:
It was in
1997 in Vishaka Vs. State of Rajasthan and others, that for the first
time sexual harassment had been explicitly- legally defined as an
unwelcome sexual gesture or behaviour whether directly or indirectly as
1.
Sexually coloured remarks
2.
Physical contact and advances
3.
Showing pornography
4. A
demand or request for sexual favours
5. Any
other unwelcome physical, verbal/non-verbal conduct being sexual in
nature.
It was in
this landmark case that the sexual harassement was identified as a
separate illegal behaviour.The critical factor in sexual harassement is
the unwelcomeness of the behaviour. Thereby making the impact of such
actions on the recipient more relevant rather than intent of the
perpetrator- which is to be considered.
In the
abovementioned case, the judgment was delivered by J.S.Verma. CJ, on
behalf of Sujata Manohar and B.N.Kirpal, JJ., on a writ petition filed
by ‘Vihska’- a non Governmental organization working for gender equality
by way of PIL seeking enforcement of fundamental rights of working women
under Article.21 of the Constitution.
The
immediate cause for filing the petition was the alleged brutal gang rape
of a social worker of Rajasthan. The Supreme Court in absence of any
enacted law (which still remains absent- save the Supreme Court
guidelines as stated hereunder) to provide for effective enforcement of
basic human rights of gender equality and guarantee against sexual
harassement, laid down the following guidelines:
1. All
the employers in charge of work place whether in the public or the
private sector, should take appropriate steps to prevent sexual
harassement without prejudice to the generality of his obligation, he
should take the following steps:
a)
Express prohibition of sexual harassment which includes physical contact
and advances, a demand or request for sexual favours, sexually coloured
remarks, showing pornographic or any other unwelcome physical, verbal/
non-verbal conduct of sexual nature should be noticed, published and
circulated in appropriate ways.
b) The rules and regulations of government and public sector bodies
relating to conduct and discipline should include rules prohibiting
sexual harassment and provide for appropriate penalties in such rules
against the offender.
c) As
regards private employers, steps should be taken to include the
aforesaid prohibitions in the Standing Orders under the Industrial
Employment (Standing Orders) Act, 1946.
d)
Appropriate work conditions should be provided in respect of work
leisure, health, hygiene- to further ensure that there is no hostile
environment towards women and no woman should have reasonable grounds to
believe that she is disadvantaged in connection with her employment.
2.
Where such conduct amounts to specific offences under the Indian Penal
Code or any other law the employer shall initiate appropriate action in
accordance with the law, by making a complaint with the appropriate
authority.
3.
Victims of sexual harassment should have the option to seek transfer of
the perpetrator or their own transfer.
As
stated by the Supreme Court, these guidelines are applicable to:
a) The
employer or other responsible persons or other institutions to prevent
sexual harassment and to provide procedures for the resolution of
complaints;
b) Women who either draw a regular salary, receive an honorarium, or
work in a voluntary capacity- in the government,
private or organized sector come under the purview of these guidelines.
Preventive Steps:
1.
Express prohibition of sexual harassment should be notified and
circulated.
2.
Inclusion of prohibition of sexual harassment in the rules and
regulations of government and public sector.
3. Inclusion of prohibition of sexual harassment in
the standing orders under the Industrial Employment (Standing Orders)
Act, 1946 by the private employers.
4. Provision should be made for appropriate work
conditions for women.
Procedure
pertaining to filing of complaints:
1.
Employers must provide a Complaints Committee which is to be headed by a
woman; of which half members should be women.
2.
Complaints Committee should also include an NGO or other organization-
which is familiar with sexual harassment.
3.
Complaints procedure should be time bound.
4.
Confidentiality of the complaints procedure has to be maintained.
5.
Complainant or witnesses should not be victimized Or discriminated
against- while dealing with complaints.
6. The
Committee should make an annual report to the concerned Government
department and also inform of the action (if any) taken so far by
them.
Miscellaneous Provisions:
1.
Guidelines should be prominently notified to create awareness as regards
the rights of the female employees.
2. The
employers should assist the persons affected, in cases of sexual
harassment by outsiders or third parties.
3.
Sexual harassment should be discussed at worker’s meetings,
employer-employee meetings and at other appropriate forums.
4. Both
Central and State governments are required to adopt measures including
legislations to insure that private employers also observe these
guidelines.
A
K.CHOPRA’S case:
A K.Chopra’s case, is the first case in which the Supreme Court applied
the law laid down in Vishaka’s case
and upheld the dismissal of a superior officer of the Delhi based
Apparel Export Promotion Council who was found guilty of sexual
harassment of a subordinate female employee at the place of work on the
ground that it violated her fundamental right guaranteed by Article.21
of the Constitution.
In both
cases the Supreme Court observed, that " In cases involving Human
Rights, the Courts must be alive to the International Conventions and
Instruments as far as possible to give effect to the principles
contained therein- such as the Convention on the Eradication of All
forms of Discrimination Against Women, 1979 [CE DAW] and the Beijing
Declaration directing all state parties to take appropriate measures to
prevent such discrimination."
The
guidelines and judgments have identified sexual harassment as a question
of power exerted by the perpetrator on the victim. Therefore sexual
harassment in addition to being a violation of the right to safe working
conditions, is also a violation of the right to bodily integrity of the
woman.
Provisions
of the Indian Pena Code:
In cases
where the accused sexually harasses or insults the modesty of a woman by
way of either- obscene acts or songs or- by means of words, gesture, or
acts intended to insult the modesty of a woman, he shall be punished
under Sections.294 and 509 respectively.
Under
Sec.294 the obscene act or song must cause annoyance. Though annoyance
is an important ingredient of this offence, it being associated with the
mental condition, has often to be inferred from proved facts. However,
another important ingredient of this offence is that the obscene acts or
songs must be committed or sung in or near any public place.
Section.509
of IPC, comes into effect when there is an intention to insult the
modesty of any woman by the offender by uttering any word, making any
sound or gesture or by exhibiting any object, with the intention that
such word or such sound be heard, or that such gesture or object be seen
by such a woman, or by intruding upon the privacy of such a woman.
Thus,
this Section requires:
1.
Intention to insult the modesty of a woman.
2.
The insult be caused by
i) Uttering any word or gesture, or
ii) Exhibiting any object with the intention that such
word, gesture, or object be hear or seen by such a woman, or
iii) By intruding upon the privacy of such woman.
Rape
laws in India:
"The law of rape is not just a few sentences. It is a whole book, which
has clearly demarcated chapters and cannot be read selectively. We
cannot read the preamble and suddenly reach the last chapter and claim
to have understood and applied
it." -
Kiran Bedi., Joint Commissioner, Special Branch.
In the
Mathura rape case,
wherein Mathura- a sixteen year old tribal girl was raped by two
policemen in the compound of Desai Ganj Police station in Chandrapur
district of Maharashtra.
Her
relatives, who had come to register a complaint, were patiently waiting
outside even as the heinous act was being committed in the police
station. When her relatives and the assembled crowd threatened to burn
down the police chowky, the two guilty policemen, Ganpat and Tukaram,
reluctantly agreed to file a panchnama.
The case
came for hearing on 1st June, 1974 in the sessions court. The
judgment however turned out to be in favour of the accused. Mathura was
accused of being a liar. It was stated that since she was ‘habituated to
sexual intercourse’ her consent was voluntary; under the circumstances
only sexual intercourse could be proved and not rape.
On appeal
the Nagpur bench of the Bombay High Court set aside the judgment of the
Sessions Court, and sentenced the accused namely Tukaram and Ganpat to
one and five years of rigorous imprisonment respectively. The Court held
that passive submission due to fear induced by serious threats could not
be construed as consent or willing sexual intercourse.
However,
the Supreme Court again acquitted the accused policemen. The Supreme
Court held that Mathura had raised no alarm; and also that there were no
visible marks of injury on her person thereby negating the struggle by
her.
The Court
in this case failed to comprehend that a helpless resignation in the
face of inevitable compulsion or the passive giving in is no consent.
However, the Criminal Law Amendment Act, 1983 has made a statutory
provision in the face of Section.114 (A) of the Evidence Act, which
states that if the victim girl says that she did no consent to the
sexual intercourse, the Court shall presume that she did not consent.
In
Mohd.Habib Vs State,
the Delhi High Court allowed a rapist to go scot-free merely because
there were no marks of injury on his penis- which the High Court
presumed was a indication of no resistance. The most important facts
such as the age of the victim (being seven years) and that she had
suffered a ruptured hymen and the bite marks on her body were not
considered by the High Court. Even the eye- witnesses who witnessed this
ghastly act, could not sway the High Court’s judgment.
Another
classic example of the judicial pronouncements in rape cases is the case
of Bhanwari Devi, wherein a judge remarked that the victim could not
have been raped since she was a dalit while the accused hailed from an
upper caste- who would not stoop to sexual relations with a dalit.
In another
instance of conscience stirring cases, Sakina- a poor sixteen year old
girl from Kerala, who was lured to Ernakulam with the promise of finding
her a good job, where she was sold and forced into prostitution. There
for eighteen long months she was held captive and raped by clients.
Finally she was rescued by the police- acting on a complaint filed by
her neighbour.
With the
help of her parents and an Advocate, Sakina filed a suit in the High
Court- giving the names of the upper echelons of the bureaucracy and
society of Kerala.
The suit
was squashed by the High Court, while observing that ‘ it is improbable
to believe that a man who desired sex on payment would go to a reluctant
woman; and that the version of the victim was not so sacrosanct as to be
taken for granted.’
Whereas, in
State of Punjab Vs. Gurmit Singh,
the Supreme Court has advised the lower judiciary, that even if the
victim girl is shown to be habituated to sex, the Court should not
describe her to be of loose character.
The Supreme
Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar,
held that "the 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 is an attempt to violate her
person against her wish. She is equally entitled to the protection of
law. Therefore merely because she is of easy virtue, her evidence cannot
be thrown overboard."
Also
the Bandit Queen case,
which depicts the tragic story of a village girl. Phoolan Devi- who was
exposed from an early age to the lust and brutality of some men. She was
married to a man old enough to be her father. She was beaten and raped
by him. She was later thrown out of the village- accused of luring boys
of the upper caste. She was arrested by the police and subjected to
indignation and humiliation. Was also kidnapped and raped by the leader
of dacoits and later by the leader of a gang of Thakurs- who striped her
naked and paraded her in front of the entire village. This is truly one
story that shows the apathy of the existing society.
In Chairman,
Railway Board Vs. Chandrima Das,
a practicing Advocate of the Calcutta High Court filed a petition under
Article.226 of the Constitution of India against the various railway
authorities of the eastern railway claiming compensation for the victim
(Smt. Hanufa Khatoon)- a Bangladesh national- who was raped at the
Howrah Station, by the railway security men. The High Court awarded
Rs.10 lacs as compensation.
An appeal
was preferred and it was contended by the state that:
a) The
railway was not liable to pay the compensation to the victim for she was
a foreigner.
b) That
the remedy for compensation lies in the domain of private law and not
public law. i.e. that the victim should have approached the Civil
Court for seeking damages; and should have not come to the High Court
under Article.226.
Considering
the above said contentions, the Supreme Court observed:
"Where public functionaries are involved and the matter relates to the
violation of fundamental rights or the enforcement of public duties, the
remedy would be avoidable under public law. It was more so, when it was
not a mere violation of any ordinary right, but the violation of
fundamental rights was involved- as the petitioner was a victim of rape,
which a violation of fundamental right of every person guaranteed under
Article.21 of the Constitution."
The Supreme
Court also held that the relief can be granted to the victim for two
reasons- firstly, on the ground of domestic jurisprudence based on the
Constitutional provisions; and secondly, on the ground of Human Rights
Jurisprudence based on the Universal Declaration of Human Rights, 1948
which has international recognition as the ‘Moral Code of Conduct’-
adopted by the General Assembly of the United Nation.
After having
studied the case laws, it is necessary to also study the definition of
Rape as given in the Indian Penal Code, 1860. As per Section.375 of IPC
a man is said to commit the offence of rape with a woman under the
following six circumstances:
1.
Sexual intercourse against the victims will,
2.
Without the victims consent,
3.
With her consent, when her consent has been obtained by putting her or
any person that she may be interested in fear of death or hurt,
4.
With her consent, when the man knows that he is not her husband,
5.
With her consent, when at the time of giving such consent she was
intoxicated, or is suffering from unsoundness of mind and does not
understand the nature and consequences of that to which she gives
consent,
6.
With or without her consent when she is under sixteen years of age.
Further
explanation provided to the section states that penetration is
sufficient to constitute the sexual intercourse necessary to constitute
the offence of rape, whereas the exception leaves out marital rape
altogether if the wife is not under fifteen years of age.
Marital
Exception:
In R Vs. R,
the House of Lords widened the scope of criminal liability by declaring
that the husband could be charged as a principal offender in the rape of
his wife.
This
decision seems to have obliterated the protection of the husband from
such prosecution under the doctrine of marital exemption. This exemption
was based upon the belief under which the wife was regarded as the
husbands’ chattel. She was supposed to have given a general consent to
her husband as a natural implication of the marriage. This has now
become an outdated view of marriage in England.
However,
the above decision of the House of Lords has not been followed in India-
where marital exemption to the husband ‘still exists’.
Section.
375 therefore requires:
a)
Sexual intercourse by a man with a woman;
b) The sexual intercourse must be under any of the six circumstances
given in the section.
Criminal
Law Amendment Act, 1983:
The Criminal Law Amendment Act has substantially changed Sections.375
and 376 of the IPC. Several new sections have been introduced therein-
viz. Sections. 376(A), 376(B), 376(C), 376(D) of the IPC.
Section.
376(A) punishes sexual intercourse with wife without her consent by a
judicially separated husband.
Section.
376(B) punishes for sexual intercourse by a public servant with a woman
in custody.
Section.
376(C) punishes sexual intercourse by superintendent of jail, remand
house, etc. whereas,
Section.
376(D) punishes sexual intercourse by any member of the management or
staff of a hospital with any woman in that hospital.
These new
sections have been introduced with a view to stop sexual abuse of women
in custody, care and control by various persons- which though not
amounting to rape were nevertheless considered highly reprehensible.
Attempt
to Rape:
In cases where an indecent assault is made upon the person of a
woman, but where rape is not committed- the culprit is charged with
Section.354 of IPC, because unless the Court is satisfied that there was
determination in the accused to gratify his passion at any cost, and
inspite of all resistance, such person is not charged with rape.
Section.354
of the IPC prescribes punishment for anyone who assaults or uses
criminal force to any woman with an intent to outrage her modesty.
An indecent
assault upon a woman is punishable under this section. Rape is punished
under Section.376; but the offence under this Section is of less gravity
than rape. And also because a person who is guilty of attempting rape
cannot be allowed to escape with the lesser penalty of this section.
An indecent
assault, i.e., an assault which right minded persons would consider as
indecent- accordingly any evidence explaining the defendants conduct, or
whether any admission by him or otherwise is admissible to establish
whether he intended to commit an indecent assault, as is stated under
Section.21 sub clause (2) of the Evidence Act, which reads:
Section.21
(2): An admission may be proved by or on behalf of the person making
it, when it consists of statements of the existence of any state of mind
or body, relevant or in issue, made at or about the time when such state
of mind or body existed, and is accompanied by conduct rendering its
falsehood improbable.
Impediments
to Justice:
In the present circumstances when offences against women are on the
rise- when young girls are raped by their doctors, by presidential
guards in broad daylight, the definition of rape to be of any
deterrence- falls extremely inadequate. It does not address forced
penetration of objects and parts of the body into the vagina and anus;
and forced oral or anal intercourse.
It also
does not recognize other forms of sexual assaults- like protracted
sexual assault by relatives, marital rape etc. as aggravated forms of
rape. This causes grave injustice to many victims. In many cases of
child rape, the child has been penetrated through fingers or by objects
or been force to perform oral or anal sex; yet this is not considered
rape by the Courts.
Adding to
this is Section. 155(4) of the Evidence Act, which allows the victim to
be questioned of her past sexual history- which the defense uses to
humiliate the victim in the Courtroom.
One of the
major obstacles in delivering justice in rape cases is the poor quality
of investigations. The reason behind this ranges from gender bias and
corruption to the general inefficiency of the police. In many cases the
police have even refused to lodge the FIR or have lodged incomplete FIR.
The victims
are not taken for prompt medical examination, because in cases of rape,
or attempt to rape- medical examination of the victim and of the accused
soon after the incident often yields a wealth of corroborative evidence.
Therefore, such an opportunity should not be lost by the police.
The manner
in which some courts have interpreted the law or assessed the evidence
has often proved to be an obstacle also. Inspite of Supreme Court
judgments to the contrary, lower court judges often insist on evidence
of physical resistance or marks of injuries to hold that a woman has not
consented. A woman’s evidence without corroboration is not considered
sufficient.
The long
time that is taken to complete a rape trial often by allowing senseless
adjournments; and the giving of evidence by the victim in the presence
of the accused and the harsh cross examination in the Court are some
other major obstacles.
As observed
by Krishna Iyer, J. in Rafique’s case:
"When a
woman is ravished, what is inflicted is not mere physical injury but the
deep sense of some deathless shame… judicial response to Human Rights
cannot be blunted by legal bigotry."
Therefore
rape laws in order to be of great deterrence, must have a cooperative
victim, professional investigation, diligent prosecution; and an
expeditious trial. For otherwise it shall not be the law, that fails,
but the applicants, the process and application.
Failure of
law reflects the failure of the society to protect and serve humanity.
In view of
the above, the Supreme Court has laid down the following guidelines for
the trial of rape cases:
1.
The complaints of sexual assault cases should be
provided
with legal representation. Such a person should be well acquainted. The
Advocates role should not merely be of explaining to the victim the
nature of the proceedings, to prepare for the case and assist her, but
to provide her with guidance as to how she might obtain help of a
different nature from other agencies- for e.g. psychiatric consultation
or medical assistance.
2.
Legal assistance should be provided at the police
Station,
since the victim may be in a distressed state. Guidance and support of a
lawyer at this stage would be of great help.
3. The
police should be under a duty to inform the victim of her right to a
counsel before being interrogated.
4.
A list of lawyers willing to act in these cases should be kept at the
police station.
5.
Advocates shall be appointed by the Court on an application by the
police at the earliest, but in order that the victim is not questioned
without one, the Advocate shall be authorized to act at the police
Station before leave of the Court is sought or obtained.
6.
In all rape trials, anonymity of the victim must be maintained.
7. It
is necessary to setup Criminal Injuries Compensation Board with regard
to the Directive Principles contained under Article. 38(1) of the
Constitution of India. As some victims also incur Substantial losses.
8.
Compensation for the victims shall be awarded by the Court on the
conviction of the offender and by the Criminal Injuries Compensation
Board- whether or not a conviction has taken place. The Board will take
into account pain, suffering, shock as well as loss of earnings due to
pregnancy and child birth if this accrued as a result of rape.
The National
Commission for Women be asked to frame schemes for compensation and
rehabilitation to ensure justice to the victims of such crimes.
As observed
by Justice Saghir Ahmad, "Unfortunately a woman in our country
belongs to a class or group of society who are in an disadvantaged
position on account of several social barriers and impediments and have
therefore, been victims of tyranny at the hands of men with whom they,
unfortunately, under the Constitution enjoy equal status."
Conclusion: The
courts and the legislature have to make many changes if the laws of rape
are to be any deterrence. The sentence of punishment, which normally
ranges from one to ten years, where on an average most convicts get away
with three to four years of rigorous imprisonment with a very small
fine; and in some cases, where the accused is resourceful or
influential- may even expiate by paying huge amounts of money and get
exculpated. The courts have to comprehend the fact that these
conscienceless criminals- who sometimes even beat and torture their
victims- who even include small children, are not going to be deterred
or ennobled by such a small time of imprisonment. Therefore, in the best
interest of justice and the society, these criminals should be sentenced
to life imprisonment.
However, if
they truly have realized their mistake and wish to return to society,
the Court and jail authorities may leave such men on parole; but only
after they have served a minimum of half the sentence imposed on them.
It is
outright clear that sexual offences are to be excoriated, but if death
sentence is given to such convicts- so as to deter the rest, then no
doubt that the graph of rape cases will come down considerably- but it
may also happen that those who commit such offences- simply to leave no
witnesses or evidence, may even kill their victims and dispose off their
bodies (whereas it is observed that in most cases- it is the victim who
is the only source of evidence in most cases), thereby frustrating the
main object of the Indian Penal Code and the legislature.
Studying the
laws, the process, the application of those laws, one thing is certain-
the entire structure of justice needs an over haul, otherwise the victim
shall no longer the woman, but humanity.
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