Source:ipleaders

Definition

The United Nations defined “Violence against Women” in 1993 in Declaration on the Elimination of Violence against Women. It defines it as an act of gender-based violence that results in or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.


Rights guaranteed under the Constitution

The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles.

Article 14 – equal rights to women

Article 15 – prohibits discrimination against any citizen on the basis of gender etc.

Article 16 – provides equal employment opportunities to everyone

Article 39(a)(d) - mentions policy security of state equality for both men and women the right to a means of livelihood and equal pay for equal work for both men and women

Article 42 - Direct the State to make provision for ensuring just and humane conditions of work and maternity relief.

73rd and 74th Constitutional Amendment Act reserved 1/3rd seats in Panchayat and Urban Local Bodies for women.


Case laws

a. Tukaram v. the State of Maharashtra, 1979 (Mathura rape case)

It was alleged that in this case, 2 police officials commits the rape of a woman, who came to the police station to lodge an FIR  against her husband. The SC held that rape is not proven as there was no direct evidence to prove any bodily harm or consent under threat as she was taken by the accused peacefully in front of her family and also because there was no resistance on her part. Also, she changed her statement numerous times during the trial which made her statement unreliable.

After this case criminal amendment act 1983 came into force which stated that consent will not be presumed until given expressly u/s 114 of the Indian Evidence Act and also the onus of proof was shifted to the accused once the sexual intercourse is proven. 


b.  Vishaka & Ors. v. State of Rajasthan, 1997 

This case was filed as a batch of PIL, to protect women from workplace sexual harassment. The Court recognized that under Article 14(2), 19(1)(g), and 21 of the Constitution, the fundamental rights also include the right to a safe working environment. Court broadened the ambit of sexual harassment and its extent. The court gave the guidelines to the state and central government and made it clear for setting up a redressal mechanism for any complaint of sexual harassment in the work environment.


c.   Laxmi v. Union of India, 2015

The case was of ‘crime of passion’, where the accused throws acid upon the victim for taking revenge by disfiguring her physical body for not fulfilling his demands. The accused was held guilty by the SC and compensation to the victim was provided under Section 357(1)(b) for the physical and mental agony she went through. The punishment mentioned in the IPC is not enough for the victim to get justice because the trauma and pain of the survivor are far greater. And there was no specific provision dealing with the acid attack as well.

Section 357-A CrPC got inserted for the purpose of compensation to the victim or their dependents, to prepare a scheme for providing funds who have suffered loss or injury as a result of the crime by every state. The minimum amount was fixed to be 3 lakhs rupees. Section 326-A IPC got introduced making voluntary throwing acid or even attempt to be punishable.


d.   Ritu Kohli Case, 2001

The illegal act of accuse of stalking the victim on the internet using some social chatting website was alleged. The accused use obscene and offensive language in individual chat and disturb her with phone calls. She started receiving calls from other parts of the world as well for salaciously talking with her. In this case section, 509 of IPC (word, gesture or act intended to insult the modesty of women) was not sufficient to deal with such a case. Therefore, after this case section 66(e) [punishment for the offence of sending offensive messages through communication services] was introduced in the IT Act, with the punishment of 3 years in such cases.  


Criminal amendment act 2013 and 2018


Criminal amendment act 2013

After the Nirbhaya case, the government sought to amend the existing laws regarding sexual offences in India and the following were the changes brought in:

1. Punishment for rape increased from a minimum of 7 years rigorous imprisonment to the death penalty. And in case of rape and murder minimum of 20 years of rigorous imprisonment.

2. The law recognised other forms of sexual offences such as stalking, voyeurism, acid attack and broaden the definition of rape as well. The age of consent was increased from 16 to 18 years.   

3. Protocols were established for the medical officer while examining the rape victim and punishment was provided for the police officers who fail to register FIR even after been reported.

4.  During the trial, victim character assassination was denied by law. Now the defence cannot ask the victim about her previous love life and physical relationship in order to reflect upon her character.

However, the recommendation of making rape a gender-neutral law was not accepted by the government. Even the government drop the idea of making marital rape covered under the section of 375 IPC.


Criminal amendment act 2018 act

1. Rape of the victim if below 12 years, then minimum sentence shall be of 20 years rigorous imprisonment. And if the victim is between 16 to 18, the minimum sentence shall be of 10 years rigorous imprisonment.

2. Accuse is not eligible for anticipatory bail in the offence of rape of a girl below 16 years.

3. Investigation in a matter of rape to be completed within 2 months. If rape is committed by a police officer then the minimum punishment to be 10 years. 


Recent news

1. The SC while hearing a bail application asked the accused that whether he will marry the victim or not, while she was a minor. The statement was criticised by many jurists and even compared SC to village panchayat as the court was seeking compromise and not justice.

However, the SC itself in the case of Shimbhu & Anr v State of Haryana (2013) (justice Ranjan Gogoi, Ranjan Prakash and CJI P Sathashivam) came down heavily against the practice. It said that religion, race, caste, economic and social status, long pendency of the trial, or offer of the rapist to marry victim shall not be construed as a special factor for reducing down the sentence prescribed by the law.   


2. In another case, SC granted bail to a person who had sexual relations with a woman on the promise of marriage.

Though the SC in its previous judgements, in the case of Anurag Soni v State of Chhattisgarh (2013) has held that consent given on the basis of such promises will not be considered a free consent u/s 90 IPC if the promise is not fulfilled. As it was proved that accuse never intended to marry the victim and given false promise. The court also observes that rape reduces a woman into an animal as it shakes the very core of her life.

But in this bail application, the SC observed that many circumstances shall be considered before coming to conclusion, as prima facie looking in this case the woman was aware of the bitter family conditions, social status and also the promise was given a long time back and in the meanwhile circumstances do change.