This article is written by Vedant Kapur, a first year law student at Jindal Global University. Vedant also is a journalist by training and has graduated from FLAME University, with a major in Journalism.
“By sheer force of a vicious custom, even the most ignorant and worthless men have been enjoying a superiority over women which they do not deserve and ought not to have. Many of our movements stop half way because of the condition of our women.”
— Mohandas Karamchand Gandhi
For centuries, women have been physically, psychologically and socially marginalized and oppressed in society. Often religious customs and outdated traditions have been pressed into service to confine women to a life inside their homes. In modern times, however, women have been at the forefront of the economic ladder, earning their rightful place in various walks of life. This seems to irk and bother a section of chauvinist males. The more freedom that women get, the more belligerent is the attempt by such elements to show women their place in the world. The shocking recent rapes in Kathua and Unnao are a glaring testimony to how a female’s safety, including that of minors, in 21st century India remains regressive like the medieval times. All legislative reforms over the past 4 decades in this behalf seem to have come to a naught!
The laws of the land have provisions meant to protect and secure to women their rightful status with dignity. Such protection exists in the Constitution of India and various other statutes, including the Code of Criminal Procedure (hereafter ‘CrPC’), the Indan Penal Code, the Dowry Prohibition Act, 1961, etc.
The CrPC defines the procedures with which all substantive criminal laws are to be implemented. Following the rebellion of 1857 and the British Crown taking over administration from the East India Company, the CrPC was enacted in 1861 by the British Parliament. It was updated and replaced by the Code of Criminal Procedure, 1973. The CrPC has been amended from time to time to tackle rising incidents of abuse of power and assault by the police and other authorities meant to protect women. Amongst the changes brought in the legal framework are certain laws, which provide positive discrimination in favour of women. Thus, women have been given certain rights to additional protection or exceptions from being bound to do something. Positive discrimination, according to the Cambridge dictionary, is “the act of giving advantage to those groups in society that are often treated unfairly because of their race, sex, etc.”
An important case, which brought forth the need to evolve such protection arose in Tukaram vs. The State of Maharashtra [(1979) 2 SCC 143], also known as the Mathura rape case. In this case, a girl, Mathura, eloped with her lover to get married. Her brother filed a case of kidnapping against the husband and his family. Once caught, the accused along with Mathura and her brother were taken to the police station to record their statements. As the girl was on her way out, she was stopped and taken to a secluded spot by a constable and raped. This case became infamous, as an example, for the abuse of power by the police and for the regressive and conservative thinking of the Courts in trying to place the blame on Mathura herself. Following national outrage custodial rape and prevalence of dowry deaths were recognized as serious problems. It was accepted that no ivory tower idealism or a blind sense of faith could ensure that such a thing never happened again. Recognizing this disparity in the power balance between women and the police, the criminal laws, including provisions of the CrPC, were amended in 1983 [in particular, the addition of sections 372(2) & (3) and section 164 along with changes to the First Schedule] to shift the burden of proof in rape cases onto the accused, provide deterrent punishment for custodial rape and safeguard the dignity of the victim by ensuring “in camera” proceedings with confidentiality of the victim’s identity.
Provisions in the CrPC (particularly with regard to rape victims), also aim at regulating the interaction of women with male police officers, minimizing it to as little as possible. Even the arresting powers of the police have been curbed, when it comes to a female accused. According to the proviso to section 46 (1) of the CrPC, female police officers are required to be mandatorily present during the arrest unless there are special circumstances and with the permission from the local magistrate. Similarly, section 46 (4) prohibits the arrest of women after sunset and before sunrise.
In the same vein section 160 of the CrPC, which deals with a police officer’s powers to summon witnesses, was amended in 2013 to exclude women from being bound by such police summons. Instead the police are required to come to the residence of the woman, who is the witness in question, instead of summoning her to the police station.
Another noteworthy amendment, relating to sexual offences and crimes against women, was the Criminal Law (Amendment) Act, 2013, which came into force on 3rd April 2013. This amendment, related to sexual offences and violence against women, was passed in the aftermath of the gruesome Nirbhaya rape case.
The heinous rapes in Kathua and Unnao prove that a mere protectionist environment is not sufficient to rein in the bestiality towards women by the regressive elements in our society contrary to all norms of civilized behaviour towards women in our society. Laws based on simple positive discrimination are ineffective as deterrents to people targeting women. Arm-chair intellectual discussions on “what is” and “what ought to be” are all well and good in context of issues that do not negate basic civilized behaviour but have no meaning in a society when women are scared of even leaving their house. We need a serious national debate and movement touching all corners of India to herald a fundamental change in our thinking and attitude towards women.
A fair and just social order cannot be achieved, where the authorities are as much a threat to the safety of women as any other perverted human. Such a situation will only lead to a stagnated society. The CrPC must continue to evolve with the times but it is essential to also remember that it merely provides procedures to deal with criminal activities instead of transforming the people in a society. However, well intentioned and worded a law maybe unless we change people’s outlook with education and social awareness, its enforcement would be left wanting. We need this change throughout our society to restore a semblance of humanity back into the society. The target has to be to transform the thinking of not only the ordinary citizen but also of the people responsible for the security of women, like the executive and the judiciary.