This article is written by Yash Sharma, from Vivekananda Institute of Professional Studies, Indraprastha University, New Delhi. This article deals with some important judgements that form a part of the provisions of the IPC. And also how these judgements played an integral role in the development of these laws.
Women are an essential part of society and it is an undebatable fact that women have always been a vulnerable section of society. It has been also recognised by the Constitution of India. Hence, provisions for the protection of women from such exploitation are necessary. It is critical to understand that society is a dynamic institution inclusive of men and women alike and the society keeps on evolving, and the laws that govern the society shall also keep on evolving.
Increase in the number of offences committed against women and incidents of violence are being witnessed by everyone globally. In the context of India, several incidents have happened in the past that led to the development of the Indian Penal Code, 1860 (IPC). Judiciary by the means of its judgements describes the need for changes in the existing laws.
This article tries to provide a brief of such landmark judgements that have completely changed the face of the IPC and other criminal provisions aimed to protect women from such offences. By means of this article, the author asserts that the judiciary has taken active steps to bring about amendments in the Indian Legal Framework. This article also tries to address how these landmark judgements have helped in the further development of law.
Importance of judgement in the development of law
The State is a dynamic organism and to cope with it, the Indian Constitution also experiences adaptation to such changes. In our country, there are some cases that have created a landmark and build a base for the development of laws dealing with the offences against women. Consequent to these cases, our Constitution, as well as the Indian Penal Code, has undergone various changes.
A Judgement is not only a decision, but a collective pronouncement of various factors such as laws, facts, evidence and other circumstances. Basically, a judgement is a formal dictation of an authoritative opinion or a formal decision given by a court. The Judiciary as one of the three basic organs of Indian state structure has an unsubstitutable role in the development of laws in a constitutional democracy in India. Our constitution frames a mechanism where the courts are empowered to enforce constitutional rights. Historically courts have always had an important role in lawmaking. Common-Law is an example as it has evolved from judicial pronouncements.
Role of the judiciary as the authority to whom all the new issues are brought of significant value. Judiciary also has the role of interpreting statutes. Ratio decidendi, given by a judge in a case, becomes a rule and acts as an essential part of that law.
Offence against women under IPC
The Indian Penal Code, 1860, provides with the penal provisions for acts that would constitute a criminal liability. Those provisions are stated below-
- Causing grievous hurt intentionally by use of acid (Section 326A and Section 326B).
- Provision for rape and other related offences (section 375, 376, 376A, 376B, 376C, 376D, and 376E).
- Attempt to commit rape (Section 376/511).
- Kidnapping and abduction for different purposes (Sections 363–373).
- Dowry death (Section 304B).
- Cruelty by husband or his relatives (Section 498A).
- Outraging the modesty of women (Section 354).
- Sexual harassment (Section 354A).
- Use of criminal force on women with intent to disrobe a woman (Section 354B).
- Voyeurism (Section 354C).
- Stalking (Section 354D)
- Importation of girls up to 21 years of age (Section 366B)
- Insult to the modesty of women by the means of word, gesture or action (Section 509)
This article further tries to enumerate certain landmark judgements which did not only give a better explanation to the existing provisions but also recognised the need for amendment or addition to pre-existing laws.
These judgements opened up scope for changes in the pre-existing laws which either were not partially or completely sufficient to protect women from offences against their body or dignity.
Tukaram v. the State of Maharashtra
In this case, the prosecution alleged that she was raped by the accused 1 and accused 2 who fondled her private parts, in the police station. She was there because her brother filed a report against her husband and in-law family members. As per her statement, the police constable accused 1 sent her family members away and then raped her multiple times.
It was held, by the Supreme Court that Rape under section 375 of IPC could not be proven under this case. The reasoning behind it given by the court was that 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. Also, she changed her statement numerous times during the trial which made her statement unreliable. Therefore, an acquittal was granted to the accused.
Following this case, the Criminal Law Amendment Act, 1983 was passed. The Act amended section 114A of the Indian Evidence Act, which stated that consent won’t be presumed until given clearly.
Section 376 of the IPC was also amended, and the punishment for custodial rape was extended to 7 years, also, the onus of proof was put on accused once sexual intercourse is proven.
Vishaka & Ors. v. State of Rajasthan
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 also issued various important guidelines for employers to follow so that a healthy and safe working environment for women could be created. Directives were given to the state and the central government to enforce those guidelines via enactments in parliament to enforce those guidelines.
Supreme Court defined the ambit of sexual harassment and its extent. Court mentioned that physical touch or conduct, displaying of pornography, any unpleasant taunt or misbehaviour, or any sexual desire towards women or sexual favour will fall under sexual harassment. The court under the guidelines given made it clear for setting up of a redressal mechanism for any complaint of sexual harassment in the work environment.
Laxmi v. Union Of India
This case was filed because earlier, in the case of Naeem Khan v. State, 2013, the issue of acid attack under Section 307 came into limelight when Laxmi, a 16-year-old girl, was made a victim of an inhumane acid attack by the accused. Acid attack in terms of motive and emotions is regarded as a ‘crime of passion’ which is fueled by revenge or jealousy. It is presumed to be done as throwing acid is an easy way of taking revenge from a woman by disfiguring her physical body for demands like sexual favours, marriage proposals and dowry demands. Perpetrators of acid attacks by disfiguring and causing extreme physical and mental suffering to victims fulfil their desires of revenge and jealousy. The accused was held guilty and compensation to the victim was provided under Section 357(1)(b) for the physical and mental agony she went through. So, the case of Laxmi was filed to reimburse victims for their damages and help them get the required medical treatment. 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.
After being a victim to an acid attack herself, the victim Laxmi filed a PIL in the Supreme Court. In response to that PIL, a number of orders and directives were passed by the legislative and the Supreme Court of India in the form of guidelines for humane provisions and redressal of such acid-attack survivors. The changes in the Indian jurisprudence ranged to various statutes and did not limit to IPC.
The guidelines of the court
The amendment was made in the Code of Criminal Procedure, 1973 through which Section 357A was inserted by the Act-5 of 2009 requiring every state government, in coordination with the central government, 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. Under the directive issued by the Supreme Court regarding the minimum compensation, it was made clear that compensation of Rs. 3,00,000/- for every acid attack victim to be given by all States and Union Territories of India.
IPC experienced the addition of Section 326A which states voluntarily causing hurt by use of acid, etc and Section 326B which states, voluntarily throwing or attempting to throw acid, etc. This was made due to the increasing cases of acid attack against women in India
Ritu Kohli Case
In 2001, the first case of Cyberbullying was reported in India. The case was reported by Ms Ritu Kohli against the illegal act of Manish Kathuria for stalking her on the internet using some social chatting website. He misused her name and often used obscene and offensive language. He invited individuals to chat with her on the phone and disturbed her at her residence. After some time, she started receiving calls from different states and foreign countries, in which, people were talking salaciously with her. She reported the case to Delhi Police after not being able to find a solution herself. Her case was filed by the Police under section 509 for Insult to the modesty of women by the means of word, gesture or action. This law brought an Amendment to the Information Technology Act under section 66E because section 509 of IPC could not deal with such cases.
Mukesh & Anr vs State For NCT Of Delhi (Nirbhaya Rape Case)
In this case, a girl was gang-raped while returning from a movie theatre with a friend. She was assaulted and gang-raped by 6 men one of whom was a 17 years old minor. Her friend, when he tried to protect her, was also assaulted and beaten up by the convicts. Nirbhaya was gang-raped and they caused damage to her body of diabolic nature. They pulled out her intestines and mutilated her private parts. After almost a month of treatment, she died due to cardiac arrest, multiple organ failure and internal bleeding on December 29th 2012.
The Supreme Court’s 3 judges bench, recognised the inhuman act of the accused. The court after taking into account the nature of their activities, how they mutilated her body and destroyed her dignity, awarded the death sentence while recognising it a ‘rarest of the rare’ case.
Following this case, Indian Criminal law underwent a multi-dimensional change. The most critical change was the enactment of the Criminal law Amendment, 2013.
Development in offence of rape post-Criminal Law Amendment 2013
The definition of rape was widened after the Nirbhaya Case and several provisions were added in addition to Rape under section 376 of IPC. Those amendments were
- The Amendment Act has inserted more actions under the ambit of what constitutes rape, including unconsented penetration of the mouth, urethra, vagina, anus with the penis or other objects by anyone and unwillingly application of mouth to vagina, urethra and anus.
- Section 376 (2)(c) which provides provision for the offence of Rape by personnel of armed forces.
- Section 376A, which provides provision for dealing with the rape resulting in death or vegetative state.
- Section 376D, which deals with the crime of gang rape was inserted.
- Repetition of offences is punishable with life imprisonment or death.
- Employment of a trafficked person can also attract penal provision as well.
- It has also been clarified that penetration means “penetration to any extent”, and lack of physical resistance or any sort of other resistances is immaterial for constituting the offence of rape.
IPC development via Criminal Law Amendment 2013
As per the Statement of Objects and Reasons of the bill presented in the Parliament of India, the Criminal Law (Amendment) Bill, 2012 was introduced in the Lok Sabha on 4th December 2012 in order to provide for stringent punishment for crimes against women. It also aims to provide more victim-friendly procedures in the trials of such cases. After the horrendous incident of gang rape, which occurred on 16th December 2012 in Delhi, a Committee, headed by Justice J. S. Verma, was set up to make recommendations on the Anendment of various laws in order to provide speedy justice and to enhance the punishment for offenders in cases of sexual assault of extreme nature. The Justice Verma Committee submitted its Report on 23rd January 2013.
The amends and additions made by the Criminal Law Amendment Act, 2013 were as follows:
- Section 166A was inserted. The section states that if any public servant disobeys any law or order or direction shall be punished with rigorous imprisonment for a term which shall be not less than 6 months.
- Section 326A and 326B which cover the issue of the acid attack were added in the IPC. post amendment they were made an independent offence, punishable with 10 years. Imprisonment is extendable to life imprisonment or fine or both.
- Section 354A was inserted, which states what is sexual harassment and provides penal provisions for the same.
- Section 354B was inserted, which states that it is an offence if someone uses criminal force or assaults a woman with an intention to disrobe her and provides punishment for it.
- Section 354C was inserted, which includes the offence of Voyeurism, that is, watching a woman when she is engaged in some private act including sexual acts or when her private parts are exposed.
- Section 354D was added, which made the act of stalking an offence, that is, the act of following a woman or trying to establish a contact despite her disinterest, or, monitoring via any means.
- The Age of consent has been enhanced from sixteen years to eighteen years.
It is significant that the Indian legal framework responsible for maintaining decency or morality either by a regulatory provision or punitive provisions are compatible with changes in social needs. The IPC has foregone these changes and these changes majorly have been made possible, only by active judicial role. Offences against women under IPC that are mentioned in various sections are capable of dealing with the majority of the crimes. But in the cases mentioned, it could be seen that the provisions needed changes with the changing times to incorporate new provisions crucial to deal with recent changes in society.
The Landmark Judgements only make it possible for the state to take cognizance of such cases and accept the need for legislation. These judgements highlighted the role of the judiciary as an overall guard of the rights of women. All the new developments were made in the IPC and the overall Legal Framework of India, post these judgements. Also, based on the principle of ratio decidendi, the observation of court is a rule and a part of law hence no law could be made applicable without taking into consideration important judgements.
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