Introduction

In spite of so many strict and stringent legislation for the safety of women to curb the vulnerable and deteriorating condition, the cases related to violence against women, outraging her modesty, sexual harassment, rape etc. are increasing day by day at a very high pace. This article deals with the five landmark cases of sexual harassment which bring any significant legal changes towards the delivery of justice to the victims of rape.

Landmark Judgments on Sexual Harassment by Supreme Court of India

1.Tuka Ram And Anr vs State of Maharashtra, AIR 1979 SC 185 (Mathura Case)

Facts of the case:

In Mathura rape case, a young tribal girl named Mathura was allegedly raped by two policemen while she was in custody. It was the incident of custodial rape, took place on March 26th, 1972, where the girl was raped in Desai Gunj Police Station in Maharashtra.

Issues raised:

This case raised so many issues in the context of Indian rape laws that were earlier existed in prevalent Criminal law like the issue of consent, the question of burden of proof, the reference to two-finger test and the reference to the girl’s sexual history.

What was held?

Sessions Court passed the judgment in favor of defendants and held them not guilty. It was held that Mathura gave her consent voluntary as she was habituated to sexual intercourse. Learned Sessions Judge found that there was a major difference between “sexual intercourse” and “rape” so, it was a case of sexual intercourse in which she had consented voluntary and not rape. Thus, Case was further appealed in the Bombay High Court which took note of all the findings arrived during the trial in Sessions Court. High Court appreciated the observation given by the learned Sessions Judge that there is a major difference between sexual intercourse and rape but they forgot to observe that there is a world of difference between “consent” and “passive submission”. On the ground of such observations, the court held that the defendants were guilty of rape and the consent given was not voluntary and it was due to serious threats by policemen. It was held that:

“Mere passive or helpless surrender of the body and its resignatess to the other’s lust induced by threats or fear cannot be equated with the desire or will, nor can furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition.”

Later, the case went to the Supreme Court, where court acquitted the accused and set aside the judgment passed by the Bombay High Court. The Court stated that no marks of injury were found on the person of the girl, there were no signs of any struggle, any resistance, also from the shreds of evidence it can be shown that the girl had not been put in fear of death or hurt so the consent would be considered as free or voluntary. Also, the girl was habituated to sex so, it may be possible that she might have incited the cops. So, it was concluded and held by the Supreme Court of India that the sexual intercourse which was in question in the given case is not proved to amount to rape.

Legal Changes brought in the Indian rape law:

Due to such rationale behind the judgment, so many protests and huge public outcry took place which ultimately led to the amendment in Indian rape law. At the time when Mathura rape case did take place, the rape laws in our country were heavily biased towards rapists. The main question which was raised after this judgment was regarding the concept of consent because earlier it was so difficult for women to prove that she had not consented to any sexual intercourse. So, after the judgment of this landmark case, the Criminal Law (Second Amendment) Act, 1983 came which brought so many changes in the Indian rape law like:

• Criminal Law (Second Amendment) Act, 1983 inserted section 114(A) in the Indian Evidence Act, 1872 which states that in a prosecution for rape where it has been already proved that the sexual intercourse by accused did take place, if the victim says that she had not consented to the sexual intercourse then Court shall presume that she did not consent as a rebuttable presumption of law.
• Section 376 of Indian Penal Code, 1860 underwent a change in which sections 376(A), 376(B), 376(C) and 376(D) were added which were further amended by Criminal Law Amendment Act, 2013.
• Act added the provision for “custodial rape” under section 376(2) of Indian Penal Code, 1860 for the offenses which take place when a victim is in the custody of the state.
• The Person liable under section 376(2) shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.
• Act amended the idea of burden of proof which always lies on the prosecution. After the amendment, in cases of rape where sexual intercourse was already established, the burden of proof will lie on the accused.
• The Act introduced section 228A in the Indian Penal Code, 1860 which prohibits any publication regarding the identity of rape victims and any matter through which victim’s identity could be known, subsequently amended by Criminal Law Amendment Act, 2013.

So, Mathura rape case was monumental in context of both social and legal perspective which sparked huge protests and public outcry for the very first time in India for the cases of rape at a very large level and which further led to so many reforms in the Indian rape law via the Criminal Law (Second Amendment) Act, 1983.

2. Vishaka vs. State of Rajasthan and Ors., JT 1997 (7) SC 384 (Bhanwari Devi Case)

Facts of the Case:

This was a landmark case regarding the protection of women against sexual harassment at workplace. It was the incident of 1992 where a lower caste social worker for the women’s development programme in Rajasthan named Bhanwari Devi who was trying to stop a child marriage in her village was allegedly gang-raped by five men of the upper-class community. She went to the police station to lodge a complaint against the offenders but no thorough investigation was launched.

Issue raised:

This landmark case raised so many questions in the context of sexual harassment which take place at a workplace. The Issue raised whether the employer has any responsibility in cases of sexual harassment by its employee or to its employees at a workplace?

What was held?

To get justice, she took her case to the Trial Court where Court acquitted the accused for the reason of lack of the medical shred of evidence and other reasons. Due to which so many women’s groups and organizations went for appeal against the judgment. The result of which, a public interest litigation was filed in the Supreme Court of India on the issue of sexual harassment at the workplace. This judgment had its basis in so many international treaties which had not been adopted in the municipal law.

Supreme Court held that the sexual harassment of a woman at a workplace would be violative of her fundamental rights of gender equality and right to life and liberty under Articles 14, 15, 19 and 21 of the Indian Constitution. The court concluded that such Act would be considered as a violation of women’s human rights.

Legal changes brought after the case:

After this verdict, a statutory vacuum was observed which proposed the route of judicial legislation in the context of sexual harassment at workplace. The case laid down so many guidelines and requirements which need to be fulfilled by the employer as well as other responsible persons or institutions:

• For preventing the acts of sexual harassment in the workplace, it should be the duty of the employer or any other responsible person to prescribe for procedures and settlements.
• Formation of a complaint committee at all workplaces.
• Such committee has to be headed by a woman employee only and should have NGO or third-party participation.
• Half of the members of a committee should be comprised of women only.
• All complaints regarding sexual harassment of a woman employee would be dealt by this committee only, appropriate action in this regard shall be initiated by the employers in accordance with the concerned law.
• The committee would advise and recommend to the victim for the further course of action.
• Provides for the definition of sexual harassment which includes any:

“Unwelcome sexually determined behaviour & demands from males employees at workplace, such as: any physical contacts and advances, sexually colored remarks, showing pornography, passing lewd comments or gestures, sexual demands by any means, any rumors/talk at workplace with sexually colored remarks about a working woman, or spreading rumours about a woman’s sexual relationship with anybody.”

So, these guidelines were the first of its type which created for the gender equality rights of women, which should be free from harassment in both public and private employment. This judgment led the Indian Government to enact the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 which came into force from 9 December 2013. This Act superseded the Vishaka Guidelines for prevention of sexual harassment introduced by the Supreme Court of India.

3. Mukesh & Anr. vs. State for NCT of Delhi & Ors.,

Facts of the case:

A 23-year-old trainee physiotherapist woman was brutally got raped repeatedly by five adult men and a juvenile on the night of 16th December 2012 onto a moving bus in the capital of our country. She got attacked with an iron rod due to which she had her intestines pulled out. Later, in spite of receiving all the possible treatments, she died in the hospital in Singapore.

What was held?

One accused hanged himself in the jail while other four adults were sentenced to death. A Bench of Justices Dipak Mishra, R Banumathi, and Ashok Bhushan were unanimously passed the judgment of Death penalty to all the accused except juvenile. The juvenile who was equally involved in the incident and raped the woman was convicted and sentenced to three years in a reformation center. Such an incident where humanity is treated with irreverence, which created a shock in the collective conscience sparked nationwide revulsion and various legislative reforms in rape laws.

Aftermath:

After the incident, a panel was set up under the chairmanship of JS Verma (former Chief Justice of India) for analyzing criminal laws and to suggest all the possible amendments which can be made to enhance punishment in case of assault of extreme nature and brutality against women in criminal law. Within a month, the panel was ready with its report consisting of so many recommendations for changing India’s rape laws.

As per the recommendations of the Justice Verma Committee, Criminal Law (Amendment) Act, 2013 has passed which provides for the amendment of Indian Penal Code, 1860; Code of Criminal Procedure, 1973, Indian Evidence Act, 1872 and Protection of Children from Sexual Offences Act, 2012 in relation of sexual offences related laws. Act widened the scope of rape’s definition and provided for capital punishment in rape cases that cause the death of the victim or leave her in a permanent vegetative state. Act also provides for several new offenses to make laws more stringent.

AMENDMENTS TO THE INDIAN PENAL CODE, 1860

Sr No.	Provision	Pre-amendment	Post-amendment
1.	Amendment of section 354 w.r.t assault or criminal force to woman with intent to outrage her modesty.	punishment: max of 2 years or fine or both.	Punishment: of 1 year to 5 years and fine.
2.	Insertion of new section 354A (Sexual Harassment and punishment for sexual harassment).		(Act of sexual harassment) Any Physical contact and advances involving unwelcome and explicit sexual overtures, a demand or request for sexual favors, showing pornography against the will of a woman. Punishment: Rigorous imprisonment of max. 3 years or fine or with both. or making sexually coloured remarks. Punishment: Rigorous imprisonment of max. 1 year or fine or with both.
3.	Insertion of new section 354B (Assault or use of criminal force to woman with intent to disrobe).		Punishment: min of 3 years and max. Of 7 years and fine.
4.	Insertion of new section 354C (Voyeurism)		Punishment on 1st conviction: Imprisonment of min 1 year and max. of 3 years and fine. Punishment on a second or subsequent conviction: Imprisonment of min. 3 years and max. of 7 years and fine.
5.	Insertion of new section 354D (Stalking)		Punishment on 1st conviction: Imprisonment of max. of 3 years and fine. Punishment on a second or subsequent conviction: Imprisonment of max. of 5 years and fine.
6.	Substitution of new section for section 375	Section 375 before Criminal Law (Amendment) Act, 2013	Widened the scope of the definition of “Rape” which consists of any act where man penetrates his penis into the vagina, mouth, urethra or anus; or insert any object or any part of the body not being penis; or manipulates any part of the body of a woman so as to cause penetration or applies his mouth to the vagina, anus or urethra. Amended sixth circumstance by substituting words “under sixteen years of age” to “under eighteen years of age”.
7.	Substitution of new section for section 376	Clause (1): Imprisonment of min. of seven years and max of life or 10 years and with fine. When women raped is his own wife and is not under twelve years of age– imprisonment of max. for 2 years or with fine or with both. Clause (2): Rigorous imprisonment for min. ten years but which may extend for life and fine.	Clause(1): Rigorous imprisonment of min. 7 years and max. Of imprisonment for life and fine. Clause (2): Rigorous imprisonment for min. ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person\’s natural life, and shall also be liable to fine. For further details click;
8.	Substitution of new section for section 376A.	“Intercourse by a man with his wife during separation without her consent.” Punishment: Imprisonment of max of 2 years and fine.	“Punishment for causing death or resulting in a persistent vegetative state of the victim.” Punishment: rigorous imprisonment of min of twenty years and max of imprisonment for life, which shall mean imprisonment for the remainder of that person\’s natural life, or with death.
9.	Substitution of new section for section 376B.	“Intercourse by public servant with woman in his custody.” Punishment: imprisonment max of five years and fine.	“Sexual intercourse by the husband upon his wife during separation without her consent.” Punishment: imprisonment min of two years and max of seven years and fine.
10.	Substitution of new section for section 376C.	“Intercourse by superintendent of jail, remand, home etc.” Punishment: imprisonment of max of five years and fine.	“Sexual intercourse by a person in authority.” Punishment: rigorous imprisonment of min of five years and max of ten years, and fine.
11.	Substitution of new section for section 376D.	“Intercourse by any member of the management or staff of a hospital with any woman in that hospital.” Punishment: imprisonment of max of 5 years and fine.	“Gang rape” Punishment: rigorous imprisonment of min 20 years and max for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.
12.	Insertion of new section 376E		“Punishment for repeat offenders.” Punishment: Imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.

AMENDMENTS TO THE CODE OF CRIMINAL PROCEDURE, 1973

Sr No.	Provisions		Post-amendment
1.	Amendment in section 26 (Courts by which offenses are triable).		Offences under sections 376, 376A to 376E: shall be tried as far as practicable by a Court presided over by a woman.
2.	Amendment of section 160 (Information in cognizable cases)		New Proviso: If any information is given by woman against whom the offence has been committed under section 326A, B; 354; 354A to D; 376; 376A to E or 509 of IPC, shall be recorded by a woman police officer or any woman officer. If such person is temporarily or permanently mentally or physically disabled, such information shall be recorded at person’s residence or any other convenient place or in the presence of an interpreter or a special educator. Such recording shall be video graphed.
3.	Amendment of section 161( Examination of witnesses by police)		New Proviso: statement of any woman against whom the offence has been committed under section 326A, B; 354; 354A to D; 376; 376A to E or 509 of IPC, shall be recorded by a woman police officer or any woman officer.
4.	Amendment in section 197 (Prosecution of Judges and Public servants)		New Proviso: No sanction shall be required if any public servant is accused of the offense committed under Sec. 354; 354A to D; 376; 376A,C,D.
5.	Amendment of section 273 (Evidence to be taken in presence of accused)		New Proviso: if evidence of a woman who is below 18 years and alleged to have been subjected to rape or any other sexual offense is to be recorded, the court must ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.

AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872

Sr No.	Provisions		Post-amendment
1.	Insertion of new section 53A.		In a prosecution for an offense under section 354; 354A to D; 376;376A to E of the IPC, where the question of consent is in issue, the character of the victim or her previous sexual experience shall not be relevant.

One of the accused in this case was just a few months away from being 18. In spite of a heinous offense committed by him, he was sentenced to only 3 years in a reform home as per Juvenile Justice (Care and Protection of Children) Act, 2000. Such verdict could encourage other teenagers also to commit the similar type of crimes. So, a need of amendment has arisen in result of which new Juvenile Justice (Care and Protection of Children) Act, 2015 has come.

Changes brought in JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000

• Section 4: The creation of one or more Juvenile Justice Boards for every district to examine children in conflict with the law.
• Section 15 (Preliminary assessment into heinous offences by Board)- A preliminary assessment of a child who is 16 or above 16 years, shall be done with regard to his mental and physical capacity to commit such offence, with regard to his ability to understand the consequences of the offence, if the Board is satisfied that he was capable enough to understand all the consequences then the Board shall follow the procedure same as the procedure of trial in summoning cases under CrPC, 1973.

So, Board will decide whether Juvenile is supposed to send for trial as an adult or to send him to the reform home.

• Section 19 – Children’s Court may decide that child should send for a trial as an adult or not and may pass appropriate orders after trial considering his special needs, the tenets of a fair trial and to maintain a child-friendly atmosphere.

The Court shall also ensure that such child should be sent to a safe place till he attains the age of 21 and thereafter, he shall be transferred to a jail.

• Section 21- Death or life imprisonment cannot be awarded to a juvenile.
• A minor who has committed any heinous crime then he would be treated as an adult.
• A minor who has committed any serious offense then he may be treated as an adult only if he is apprehended after he has attained 21 years of age.
• If the minor has committed any heinous offense and apprehended after the age of 21 years, in that case, he will be tried as an adult and imprisonment of 7 years and above is prescribed.

4. State of Maharashtra vs. Madhukar Narayan Mardikar, AIR 1991 SC 207

Facts of the case:

This is the case where a police inspector of Bhiwandi town police station alone in uniform in the night went to the hutment of a woman named Banubi. There, he tried to ravish her. The woman resisted but still, he managed to falsely made out with her as if he carried out a prohibition raid. Inspector advocated that he raided her hutment on the ground that she was engaging with the dealing of illicit liquor.

The departmental inquiry took place against the inspector, in course of which it came out that Banubi was a woman of easy virtue. She also had extramarital affairs.

What was held?

High Court of Bombay held that he cannot be removed from his service since Banubi was a woman of immoral character. Court held that, “she was an unchaste woman so, it would be unsafe to allow the career of that inspector to be put in jeopardy upon the uncorroborated version of such a woman who makes no secret of her illicit intimacy with another person.”

Supreme Court overruled the judgment and gave the order of removal of his service. Supreme Court opined that “even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.” So, she is very much entitled to protect her in case of any attempt to violate her as a person. Also, while deciding the cases of rape, past history of victim’s sex life does not matter, she is very much entitled to the protection of the law.

* Note: Though this case has not brought any legal amendment in the context of protection of women against violence but by virtue of Article 141 of Indian Constitution it would be binding on all the courts within the territory of India.

5. Independent Thought vs. Union of India and Anr.,

Facts of the case:

Independent Thought, one of the leading NGOs which deals with the child rights, had filed a public interest litigation in the Supreme Court of India. It challenged the constitutional validity of exception 2 to section 375 (Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape) of the Indian Penal Code.

Issues raised:

• Whether sexual intercourse between a husband and wife, where she is between 15 and 18 years of age would amount to rape?
• Whether section 375, exception 2 is violative of fundamental rights of a girl child?

What was held?

In the judgment, Supreme Court has criminalized the sexual intercourse with a minor wife whose age lies between 15 and 18 years. The Court opined that the exception 2 in section 375 is violative of Articles 14, 15 and 21 of the Indian Constitution which allows intrusive sexual intercourse with a girl who is below 18 and above 15 years on the ground of marriage. Such exception clause in Indian rape laws negates the very purpose of Prohibition of Child Marriage Act, it violates the provisions of Protection of Children from Sexual Offences Act (POCSO) in context of the age of consent and some other international conventions to which India is a signatory. In this landmark verdict, Supreme Court has struck down section 375, exception 2 of the Indian Penal Code. Now, the law cannot protect a man who is engaged in sexual relations with his wife where she is between 15 and 18 years because irrespective of the status of a child whether married or not, she will always remain a child.

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