I measure the
progress of a community by degree of progress which the women have achieved.
~ B.R. Ambedkar
Abstract
Treating women as an object is a global phenomenon and
is as antiquated as human history. It starts when she has not even been born in
the world and is developing in her mother’s womb. It progresses as she starts
growing. The criminal offences against women nowadays are at peak and needs an
alarming intervention. This subject is of concern, not only academically, but
also practically for each and every one of us as we all are a creation of a
woman. An attempt has been made through this writing that how we, as a society,
can collaborate with the legal framework in order to restore the position of a
woman. A detailed analysis of the two most common and at the same time heinous
crimes, i.e. the sexual harassment and the rape has been done, with a glance at
the Vishaka and the Nirbhaya case which has instilled the faith of the women to
some extent in the present legal system. The present Acts to tackle these
crimes have been widely scrutinized and reviewed in order to better understand
the plight of the situation.
Introduction
Our human society has drawn positions and ascertained
it differently to men and women. On one hand, the society has attributed the
status of Lakshmi to women, but, on the other hand has always considered them
to be inferior and subordinate[1] and
has committed vicious injustice against them. They have been denied equal
rights and opportunities in political, economic and social circles[2]
and have therefore been disintegrated from the mainstream. The entire
misfortune started when Manu[3]
associated women with slaves[4]
and considered them as property, which can neither be on sale, nor independent, but is entirely in the
ownership of her husband[5].
Manu has portrayed women as wives and mothers, without drawing an independent
existence that they should have like men[6].
Slowly and gradually, they have become the worst victims of human rights
violation, be it sexual violence, child marriage, human trafficking, harassment[7]
and rape which is taken very casually in a patriarchal society. A woman is
always expected to possess certain virtues such as patience and tolerance in
the guise of writings in Vedas and other sacred texts[8].
Their oppression is done not only outside the homes or at workplaces, but it mostly
takes place within the family by relatives and friends. The present status of
women is not satisfactory at all as 3.5 lakh cases of crimes against women were
registered in India as collected by the National Crime Records Bureau (NCRB)[9] in
2017. Against this, the number of cases registered in 2012[10] was
around 2.5 lakhs which indicates a steep increase. The condition is very
contemptible which is also very much apparent by the sex ratio. These figures
may even be less because many cases go unreported[11]
due to the lack of proper knowledge, social and mental trauma which the victim
has to undergo. This is usual, especially in cases related to rape and sexual
offences. The mission of securing[12]
rights to women can only be achieved by giving them their due human rights
within the four walls of the family and then achieving a new millennium.
Sexual Harassment: Conceptual Analysis and Landmark Judgement
The rights of
women have achieved good deal of attention at the international forums. The
Charter of
the United Nations[13]
(UN) adopted one of its objectives as “equal right for men &
women” and the duty of the member states to observe
and encourage the human rights and fundamental liberties without distinction
among the sexes in 1945[14].
In 1948, Universal Declaration of Human Rights[15]
(UDHR’s) came into existence, but it didn’t specifically[16]
protect women as underprivileged and victimized social group. The independent
and the separate hunch of the women’s rights were brought in the context by the
adoption of Convention[17]
on the Elimination of all forms of Discrimination. The year 1993 marked its
presence in the world with 2 crucial events, one being the World Human Rights
Conference[18]
held in Vienna and the other being Declaration on the Elimination of Violence
against Women, emphasizing on gender specific abuses like murder, rape and
sexual slavery[19].
But, in this particular year, an incident transpired in India which raged the
entire country. A lady named Bhanwari Devi[20] was
working with the social development program in the rural area of Rajasthan
aimed at eliminating the evil of child marriage[21].
She tried to stop a child marriage in one of the families but was not able to
put an end to that marriage. In order to seek revenge, she was raped by
Ramakant Gujjar, along with 5 men in front of her husband. The worst[22]
part was that the police refused to lodge a complaint against the accused and
was asked to give her lehenga as an evidence. Moreover, their request to stay
at the police station at night was turned down[23].
The Trial Court dismissed her case on the account of the flawed reasoning[24]
that an upper caste man cannot rape a lower caste woman. The second absurd
reasoning given was that a man cannot rape someone in front of his relatives.
But High Court realized that this heinous act has been committed against the
woman in order to solicit revenge. In furtherance of this, several
Non-governmental organizations (NGO’s) across the country took cognizance of
the matter and filed a petition in the Supreme Court on the grounds of
violation of Article 14[25]
(right to equality), Article 19(1)(g)[26]
(right to freely profess any occupation), Article 21[27](right
to live with dignity). The SC ruled that a proper Sexual Harassment Code[28]
should be enforced in order to ensure human rights of prevention against sexual
harassment and assuring gender equality. A very exhaustive definition was
formulated in this case[29]
which included all physical contacts and advances; a demand or request for
sexual favors; sexually colored remarks; showing pornography; any other
unwelcome physical or verbal or non-verbal conduct of sexual nature as coming
within the purview[30]
of sexual harassment. Vishaka guidelines[31]
were framed, outlining every workplace, whether public or private, to prevent
such mishappening and to take tough steps for resolving such acts. These
guidelines were effectively entailed on the basis[32]
of Sec.2(d) of the Protection of Human Rights Act 1993. This issue was in
academic discussion in U.S.A.[33].
in 1979, but, in India, it was recognized as a legal injury only after the Vishaka
judgment. Mackinnon has defined sexual harassment as “the unwanted
imposition of sexual requirements in the context of a relationship of unequal
power’. But this theory was declared ambiguous as sexual harassment is practiced
not only by the people in power at workplaces[34],
but can be done by anyone in order to seek revenge as done with Bhanwari Devi.
Margaret Thornton[35]
has argued in this context that workplace harassment is triggered by hatred and
not by sexual desires. Such assertion is better substantiated by “sex based
discrimination” paradigm rather than “sexual acts” paradigm. The guidelines
given in Vishaka were manifested in Apparel Export Promotion Council v. A.K.
Chopra[36]
where a woman employee was continuously harassed by the Chairman of the Council.
In this case, some parameters and criterion to test sexual harassment were laid
by the SC. The Civil Rights Act of 1964 also provides some common
elements. The prima facie claims[37]
in order to prove this are: (a) she was subjected to sexual misconduct; (b) the
unwelcome conduct was abundantly pervasive in order to create an abusive or
hostile working conditions; (c) the employer was aware of the harassment but
failed to take proper and prompt remedial actions. However, the last two claims
always remain difficult to be assessed to decide the issue.
Years after the Vishaka judgement, Sexual Harassment
of women at workplace (Prevention, Prohibition and Redressal) Bill[38]
was introduced in 2012. After passing from both the houses, it got the assent
of the President on 23rd April 2013[39].
The Act has provided[40]
for the constitution of Internal Complaints Committee (ICC) under Section 4.
The best part is that the presiding officer must compulsorily be a woman[41]
and there is no provision for a male to be injected in the Committee. Moreover,
a Local Complaints Committee (LCC) is to be setup at the district level in
order to redress the problems in the unorganized sector[42].
The Act allows for the complaint[43]
by friends, relatives or any psychologist, in case the aggrieved woman is
impotent to make the complaint on account of physical or mental incapacity or
death. The Act has focused on maintaining the confidentiality[44]
of the victim and imparting information about the justice served without
disclosing name or any other particulars. Section 376 C of IPC also recognizes
this offense. It says that any person who is in a fiduciary relationship or in
a position of authority; superintendent or manager of a jail; public servant
takes a wrong advantage of that position to induce or seduce a woman shall be
punished for not less than 5 yrs. which may extend upto 10 yrs. and will be
liable for a fine. But after the POSH Act, it was hoped that the offences of
sexual harassment will decline[45],
but the implementation of the Act has not proved to be a strong deterrent. It
can be a useful weapon only if used judiciously[46]
and not merely to be on the papers as a piece of legislation.
Rape: A Panoramic View, Constitutional Mandates and Acts
The law of rape is not just a few sentences. It is a
whole book, which has complete 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
Just like the sexual harassment, rape showcases the
desire of a man to dominate woman. The target is to impair the wholeness[47]
of a woman. “It is not only about the gratification, but is simply the
imposition of subjugation and domination over someone who cannot retaliate”, as
quoted by Susan Brownmiller[48].
There are myths[49]
related to the rape which play a vital role during the stages of trial, for
example, the myth that a woman resisted[50]
rape as the notions of chastity and honor are like treasures for her. A case
worth mentioning here is R.D Bajaj v. K.P.S Gill. The victim, R.D Bajaj, an I.A.S officer in Punjab
Government was sexually harassed by K.P.S Gill, D.G Police in the same government.
Gill slapped Mrs. Bajaj on the buttock at a party in 1988. He was deemed to be
a public hero and earned a title of supercop who ride a state of militancy and
Khalistan separatist movement in 1988. It took nearly 17 years for her quest of
justice to come to an end, though not so easily. Till the case culminated,
India had had 18 Chief Justices’ and 9 Prime Ministers’. She was accused of
exacerbating a minute wrong even when most women did not get justice for far
more serious offences. She was declared a liar and an attention seeker in
opinion of the public which emanated from articles published in editorial pages
of almost every esteemed newspaper. The following was published in editorial
page of Deccan Chronicle, just 48 hours after the Chief Judicial Magistrate
convicted him on the charges pressed, “It somehow makes the law of the land
look grotesquely odd and incongruous that a man who has done signal service to
the country by ridding a state of the dread and oppression of terrorism should
have to spend 5 months in jail for a minute’s exuberance provoked by the charms
of an attractive working woman”. This article amongst innumerous others
criticizing Mrs. Bajaj, speaks volume of the society’s state of mind and
indifference towards a victim of sexual harassment prevalent at that time. All
of these normally could not have been published if it were contrary to the
public view. The S.C announced its verdict on 27th of July 2005 and
held Mr. Gill guilty of charges of sexual harassment. This however was sadly reasoned
on Victorian concepts of modesty and chastity. The disheartening implication of
this judgment was that it seemed to protect only those women who were deemed to
have their sanctity and chastity preserved inviolate. It was grounded on the
belief that since she was an upper class woman married to an influential
husband and because she attended a party that had different seating arrangement
for men and women, she being a respectable woman would not impute a false
allegation of such nature, of course, keeping in mind the additional value and
traditions of the country, especially in Northern India. Because of these
remarks in the judgment, it reeks of an understanding that the S.C did not
adjudicate this case on its legitimate merits but on some Victorian notions of
attributing chastity to a woman and amending the honor of the victim in the
society.
Courts have also developed a hypothesis[51]
that an unchaste woman cannot be trusted. Zsuzsanna Adler mentions in her study[52]
on rape that the Old Bailey Courts in London use to believe that the rape has
taken place if the following stereotypes are satisfied: woman resisted the
assault and suffered injuries; was sexually inexperienced and was leading a
respectable lifestyle. In India, the
situation changed in 2003[53]
when a provision in the Evidence Act was repealed so that the past sexual
history of the victim is not considered.
In India, the society was deeply shocked by the brutal
gang rape[54]
which ensued in 2012. On 16th Dec 2012, a girl named Jyoti Singh was
attacked and raped in a bus by 6 persons including the driver. She was flown to
Singapore for better treatment but could not sustain and succumbed to the grave
injuries. It raised questions about the social stigma[55]
that has become a part of the environment and needs a spontaneous movement in
order to ensure the safety of a woman. The incident was severely condemned by
United Nations for Gender Equality and the Empowerment of women[56]
and called on the Govt. of India to come up with some radical reforms. A
judicial committee was formed under the Chairmanship of Justice Verma to make
amendments[57]
to the criminal law provisions[58].
Section 370[59]
was classified into 370 and 370A. It provided that if any person transports,
harbors, or receives a person by using threats, or force, or coercion, or
fraud, or by use of power, or inducement for slavery, prostitution, forced
organ removal will be imprisoned for 7 years. A prominent change was done in
Section 375[60].
The word ‘rape’ was extended to all the acts constituting penetration of penis,
and lack of physical resistance was considered immaterial. Moreover, if a
sexual intercourse is proved, then there is a presumption of ‘no consent’[61]
on the part of the victim. The new Act made an appurtenant change by shifting
the burden of proof on the accused rather than on the victim. This Act has
strengthened the accountability and places an emphasis on consent. The Nirbhaya[62]
has proved to be an epitome that each and every woman can lead a respectable
without any fear. The case took a long time of 7 years because death penalty is
given in rarest of the rare cases in our country. The justice has been deemed
to be served not only to Nirbhaya, but to each and every woman of this country.
Conclusion
There is a dire need of attitudinal change which can
only be brought by right understanding and constant vigil over such crimes. It
is a new age where the judicial system is getting progressive, dynamic and
working towards the rights of the women. The emerging debates on this issue
reflects the transformation in women’s rights. The calls for justice today have
been echoed through Nirbhaya by the entire country. One thing which the society
can do by itself is to disentangle women from the subjugation and shed them
from all the discriminatory acts. The legal system should look into the
institutional sexism that starts in the way the victim is treated by the police
and the way cross-examinations are conducted in the courtrooms. Crime against
the women is crime against her family, the society at large and the notions on
which the humanity is built upon. Therefore, a society which does not
treat its women at par is not entitled to call itself a civilized society.
[2] Shruti S.
Pradhan, ‘DECODING MANU’s EULOGY AND CENSURE OF WOMEN’, 76(1), Annals of
the Bhandarkar Oriental Research Institute, 137 (1995)
[3] A.S.
Altekar, (1987), ‘The position of women in Hindu civilization, from
prehistoric times to the present day’, Delhi, Motilal Banarsidass
[4] Hirday N.
Patwari, ‘The status of Women as depicted by Manu in the Manusmriti’, NIRMUKTA,
Aug. 27,2011, available at http://nirmukta.com/2011/08/27/the-status-of-women-as-depicted-by-manu-in-the-manusmriti/ (Last visited on 28-03-2020)
[7] Mohd. Ashraf
& Sajid Ahmed, ‘Violence against Women in India: Challenges and
Remedies’, 24 ALJ, 57 (2016-17)
[9] Sanobar
Fatma, ‘NCRB Data Reveals That Crimes Against Women In India Are on The
Rise’, YOUTH KI AWAAZ, Oct. 23,2019 available at https://www.youthkiawaaz.com/2019/10/ncrb-data-reveals-that-crimes-against-women-in-india-are-on-the-rise/ (Last visited on 28-03-2020)
[11] Pramit
Bhattacharya & Tadit Kundu, ‘99% cases of sexual assaults go unreported,
govt. data shows’, LIVEMINT, April 24, 2018, available at https://www.livemint.com/Politics/AV3sIKoEBAGZozALMX8THK/99-cases-of-sexual-assaults-go-unreported-govt-data-shows.html (Last visited on
29-03-2020)
[12] Jogendra
Kr. Das, ‘Reflections on Human Rights and the position of Indian Women’,
64(3), The Indian Journal of Political Science, 204 (2003)
[13] ‘WOMEN’s
RIGHTS: WHY ARE WOMEN’s RIGHTS IMPORTANT ?’, POLITICAL
YOUTH NETWORK, Dec.15, 2018, available at http://politicalyouthnetwork.org/womens-rights-why-are-womens-rights-important/ (Last visited on
29-03-2020)
[14] Laura
Rheanda, ‘Human Rights and Women’s Rights: The United Nations Approach’,
3(2), Human Rights Quarterly, 11 (1981)
[18] Patricia
Feeney, ‘The UN World Conference on Human rights, Vienna, June 1993’,
3(3), Development in Practice, 218 (1993)
[20] Digshikha Priyadarshini,
‘Vishaka v State of Rajasthan’, INDJUSTICE, Jan 30,2019, available at https://indjustice.com/judgements/2019/1/30/vishakha-v-state-of-rajasthan (Last visited on
29-03-2020)
[21] Hemant
Varshney, ‘Vishaka v State of Rajasthan- Case Summary’, ITJ, Aug.30, 2018, available at http://lawtimesjournal.in/vishakha-vs-state-of-rajasthan/ (Last visited on 29-03-2020)
[22]
Avani Mehta Sood, ‘Equality, Social exclusion, and Women’s rights:
Redressing Women’s Rights Violations Through the Judiciary’, 137, Jindal
Global L. Rev. 3 (2009)
[23]
Kian Ganz, ‘What happens when women complain of sexual harassment?’,
LIVEMINT, June 30, 2015, available at https://www.livemint.com/Politics/v8RrlLY5QvAj4JtgRsMhRK/What-happens-when-women-complain-of-sexual-harassment.html (
Last visited on 30-03-2020)
[24]
Ibid
[25]
Article 14, Constitution of India, 1949
[26]
Article 19(1)(g), Constitution of India, 1949
[28]
Abhijit Bansal & Tarun Ghai, ‘Case Commentary on Vishaka v State
of Rajasthan’, 4(7), JOURNAL ON CONTEMPORARY ISSIUES OF LAW, 20 (2018)
[30]
B.D. Singh, ‘Issue of
Sexual Harassment- A Legal Perspective’, 36(1), Indian Journal of
Industrial Relations, 90 (2000)
[31]
Ibid
[32]
Bansal & Ghai, supra note 28, 21
[33]
Catherine A. Mackinnon, ‘Sexual Harassment of Working Women’
(1979)
[35]
Margaret Thornton, ‘Sexual Harassment Losing Sight of Sex
Discrimination’, 26 Melbourne University L. Rev. 422-444 (2002)
[37]
Steven H. Winterbauer, ‘Sexual Harassment- The Reasonable Woman
Standard’, 7(4), The Labor Lawyer, 812 (1991)
[38]
Nishith Desai Advocates (2019), ‘India’s Law on Prevention of Sexual
Harassment at the Workplace’, available athttp://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Prevention_of_Sexual_Harassment_at_Workplace
(Last visited on 31-03-2020)
[39] Lubna Kally, ‘Will the anti-sexual harassment
act be truly effective’,
LAW STREET INDIA, Dec. 27, 2013 available at https://economictimes.indiatimes.com/blogs/lawstreet/will-the-anti-sexual-harassment-act-be-truly-effective/ (Last visited on 31-03-2020)
[40]
Shivam Goel & Ankit Kumar, ‘Emancipation of the Woman Worker’, 5
GJLDP, 110 (2015)
[41]
Ibid
[42]
Section 5 of the Prevention of Workplace Sexual Harassment Act
[43]
Section 6 of the Prevention of Workplace Sexual Harassment Act
[44]
Ashraf & Hamid, supra note 7, 57
[45]
Bhumesh Verma, ‘Decoding POSH; Analysis of India’s regime Against
Sexual Harassment’, PL (CL) 91 (2018)
[46]
Ibid
[49] Marian
Duggan, ‘Relinking Rape Law: International and Comparative Perspectives’,
51 Brit. J. Criminal, 616 (2011)
[50]
G.S. Bajpai & Raghav Mendiratta, ‘Gender Notions in Judgements of
Rape Cases: Facing the Disturbing Reality’, JILI, 298 (2018)
[51]
Ibid; 299
[52]
Zsuzsanna Adler, (1987), ‘Rape on Trial’, London, Routledge &
Kegan Paul Publishers
[53]
Pratiksha Baxi, (2014), ‘Public
Secrets of Law: Rape Trials in India’, New Delhi, Oxford University Press
[54] Anand
Teltumbde, ‘Delhi Gang Rape Case: Some Uncomfortable Questions’, 48(6),
Economic and Political Weekly, 10 (2013)
[56] ‘UN Women
condemns gang rape of Delhi student’, UN WOMEN,
DEC.20, 2012 available at https://www.unwomen.org/en/news/stories/2012/12/un-women-condemns-gang-rape-of-delhi-student (Last visited on
31-03-2020)
[57] Sakshi Tewari, ‘A New World:
Criminal Law Amendment Act 2013; Will it Ensure Safety for Women in India?’,
4 GJLDP, 3 (2014)
[62] ‘For Nirbhaya’s Family, a Sense
of Justice’, T. WIRE, Mar.19, 2020, available at https://thewire.in/law/nirbhaya-family-hanging-justice-petition (Last visited on
1-04-2020)
About Authors
Aaditya Mootha
First year
National Law University, Lucknow
B.A.LL.B (Hons)
Aryan Raj
First year
National Law University, Lucknow
B.A.LL.B (Hons)
