This article has been written by Harshita Varshney from Faculty of Law, Aligarh Muslim University, Aligarh. The author has discussed the offences against women under the Indian Penal Code. Firstly, the author has tried to list down the major offences against women under the Indian Penal Code and other special laws. Further, it has been tried by the author to analyse the challenges faced by the executive while dealing with the offences against women.
The social discrimination between genders has always found its roots in almost every human societies. The men of these human societies have always overpowered women in every possible way. The official statistics among women like sex-ratio, health-ratio, death-ratio, the literacy rate have always declined which, shows that how miserable the condition of the women is. Though, there is upliftment in the position of the women due to social, political & economical changes. But still, we are lacking to provide justice, equality, and security to the women of our society. According to a report “Crime in India- 2018” by the National Crime Records Bureau (NCRB), a total of 89,097 cases related to crimes against women were registered across India in 2018. In 2017, the number of such cases was 86,001. The comparison of these two year shows the crime rate per lakh women population was 58.8 in 2018 and 57.9 in 2017.
Offences against women
The term “offences against women” also known as “violence against women” or “gender-based violence” means violent and physical acts which are solemnly directed towards women or girls. These violent and physical acts against women are increasing at an alarming rate across the world. Women may be the victims of any of the general crime such as ‘murder’, ‘robbery’, ‘theft’ etc. but when the crimes are specifically directed against the women, or where the victims are the women, then such crimes are characterized as ‘crime against women’ such as rape, abduction, threats etc. There are many legal provisions to safeguards the interest of women. These legal provisions provide punishment for crimes against women. Indian Penal Code, 1860 laid down the various provisions related to the offence committed against women. The offences against women can be classified as follows.
Offences against the human body
Dowry death is the most common offence against women in Indian society. When a daughter is born in a family, they considered their daughter as a burden. Because they have to give dowry to her wedding. On failure, the girl has to face the consequences, which might be her getting murdered, tortured or burnt alive. This offence has been dealt with under Section 304-B. As per the explanation of this section, the term ‘dowry’ will have the same meaning as per Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). This section was added to the Penal Code by an amendment in 1986. The sub-section (1) of the Section 304-B defines dowry death and according to it the following are essential ingredients of this section:
- The death must be caused by burns or bodily injury;
- The death must occur within the seven years of marriage;
- Such death or bodily injury must be done with cruelty or harassment by her husband or any other relative of her husband;
- Such cruelty or harassment must be connected with the demand for dowry and soon before her death.
The sub-section (2) of this section provides the punishment, which is imprisonment for a term not less than seven years and which may increase up to life imprisonment.
Section 312 deals with the offence of causing a miscarriage of women not caused in the good faith for a good purpose. This also includes the woman, herself causing it. The two terms ‘women with child’ and ‘women quick with child’ have been used under this section. The former means a woman who is pregnant and the latter means an advanced stage of pregnancy where the foetus secures a different identity apart from the mother or where an embryo has been converted into a foetus. In the case of ‘women quick with child’, the punishment provided is imprisonment for a term of up to 7 years with fine and in the case of women with child’, a term of imprisonment which may increase up to three years, with fine or both.
Section 313 talks about the offence of causing a miscarriage of women without her consent and the punishment for the same is imprisonment for life or any described term which may increase up to ten years and also liable to pay fine. Section 314 says that if the death is caused to the women due to the act of miscarriage of a woman with child, the accused shall be punished with imprisonment for any described term which may increase up to ten years and also liable to pay fine. This section is applied when the miscarriage of women results in her death.
The cases of acid attack in India are rising day by day despite the rigorous punishment provided by the Penal Code. The offence of acid attack is not something unheard of in India, daily we witness as many cases of acid attacks in our country. This kind of activity is covered under Section 326A and 326B of the Penal Code. The former talks about voluntarily causing grievous hurt by use of acid and the latter talk about its attempt. Section 326A laid down the punishment as imprisonment for any described term which may increase up to ten years and also liable to pay fine.
Whereas in Section 326B, for an attempt, the punishment laid down is imprisonment for a minimum period of five years which may increase up to seven years and also liable to pay fine. Section 326A laid down the eight types of injuries caused by the acid attack, permanent damage, partial damage, deformity, burns, maiming, disfigurement, disability, or grievous hurt. It is essential to show that the act must have been caused by the intention or knowledge of the accused that he is likely to cause injury.
In the case of Gulab Sahiblal Shaikh v. State of Maharashtra (1998), acid was thrown on a woman, who was carrying her baby, by her brother-in-law. He did so because she denied paying money for the maintenance of her husband’s second wife. She sustained several injuries on her body due to which she died and her infant daughter lost eyesight. The Supreme Court punished the offender under Section 326A and made him liable to pay fines to the victim’s daughter.
Outraging the modesty of a women
Section 354 talks about an offence where an accused uses assault or criminal force against a woman for outraging her modesty. The punishment laid down by this section is imprisonment for any described term which may increase up to five years but not less than one year and also liable to pay fine. The essentials to constitute an offence under this section are:
- Assault or use of criminal force against a woman;
- The accused did so either intending to do so or with the knowledge that it would outrage her modesty.
However, what falls in the domain of modesty of a woman is not defined anywhere in the code so, it depends on the court for the interpretation. In the case of Tarkeshwar Sahu v. the State of Bihar (Now Jharkhand) (2006), the Supreme Court held that ‘it is a virtue attached to a woman owing to her sex’. For instance, the act of pulling a woman, unwrapping her saree, coupled with a request for sexual intercourse would constitute outraging the modesty of a woman.
Compelling a woman for marriage
According to Section 366 of the Indian Penal Code, if a person kidnaps, abducts or induces any woman to compel her marriage without her consent, they shall be punished under this section. The essentials of this section are as follows:
- There must be a kidnapping or abduction of a woman.
- The accused must have intention or knowledge:
1. To compel a woman for marrying any person against her will, or
2. Forcing or seducing her to illicit intercourse.
According to the second part of this section:
- There must be a movement of a woman from one place to another;
- The movement must be made by criminal intimidation as defined under Section 503 of the code, or any other way;
- The offender must have either the intention or knowledge that she will be forced or seduced to illicit intercourse.
The punishment laid down under this section is imprisonment of any described period which may increase up to ten years and also liable to pay fine.
Rape has become one of the common crimes against women in India. We received as many cases of rape in just one day. It not only physically hurts a woman but also causes mental agony to her. The offence of rape has been dealt with under Section 375 of the Indian Penal Code. It defined rape as when a man forcibly penetrates his penis, or any other body part, or any object to any extent into the vagina, mouth, urethra, or anus of a woman.
The essentials of this section are:
- There must be sexual intercourse between a man and a woman under the manner provided under clauses (a) to (d) of section 375.
- Such intercourse must be done under any of the conditions provided by section 375.
The punishment for rape laid down under Section 376(1) is rigorous imprisonment of any described period, not less than ten years, which may increase up to imprisonment for life. Subsection (2) of this section provides the punishment of rape if it is committed by a police officer under the conditions provided by clauses (a) to (n) of the sub-section (2). In such a case, the accused shall be punished with rigorous imprisonment for a term not less than ten years and which may increase up to life imprisonment and also liable to pay fine.
Amendments made to the rape laws
There are two important cases due to which the numerous amendments were made in the law of rape under the Penal Code.
- In the case of Sakshi v. Union of India and Ors. Sakshi (2004), an NGO, filed a petition in the Supreme Court to change the definition of Rape under Section 375. It contended that the section should include all types of forcible penetration, as now it is limited to a vagina only. The court agreed and ordered the Law Commission to review the law of rape under the Penal Code. Now, the term ‘sexual intercourse’ under section 375 includes all types of sexual intercourse.
- Another case is Mukesh & Anr v. State for NCT of Delhi & Ors. (2020), commonly known as Nirbhaya Rape case which shocked the whole nation and a bold question was put up in front of the authorities regarding the security of the women. On a cold night, Nirbhaya, a 23-year-old paramedical student with her friend returning from a PVR, was brutally raped by a gang of six people. After several attempts of the doctors, the victim couldn’t survive. This case came to its closure, after five years of its incident. Among the six people, the four convicts were awarded the death penalty. Among the other two, one was juvenile, who was released after 3 years and other committed suicide during the trial of the case.
After the famous Nirbhaya Case, very important changes were made in the rape laws of India. The Criminal Law (Amendment) Act, 2013 added section 376A–376E, to improve the conditions of the women in the country and to make this offence more serious. Section 376A provides the punishment for causing the death of a rape victim or if the rape results in the persistent vegetative state of the victim. Section 376B provides that when a husband has sexual intercourse with his wife during separation and without her consent shall be punished under the same section. Section 376C laid down the punishment for the persons who are having any authority like, a public servant, or a manager of jail etc. and they have committed rape of a woman. Section 376D dealt with the offence of Gang Rape and laid down the punishment for it. Section 376E laid down the punishment for the repeat offenders of rape.
Acts offending the decency of a woman
This section laid down that the following acts will constitute the offence of sexual harassment:
- Asking for physical contact or explicit sexual overtures;
- Request for sexual favours;
- Showing pornography.
If any of these acts are committed then, the accused is punished with rigorous imprisonment for a term which may increase up to three years, or with fine, or both. The offence of sexual harassment also includes the act of making sexual remarks for which the accused is punished with imprisonment for a described term which may increase up to one year, or fine, or with both.
Assault or use of criminal force to woman with intent to disrobe
Section 354B talks about an offence where a person assaults or uses criminal force against a woman or abets any of the acts to disrobe or to compel her to be naked shall be punished with imprisonment for any described period which may increase up to seven years and also be liable to pay fine.
Voyeurism is an activity where people get pleasure from seeing people engaged in a private act like sexual situations. Section 354C says that any man watching or capturing the picture of a woman when she is engaged or engages in a private act then, he shall be punished with imprisonment for any described term which shall not be less than one year, but it may increase up to seven years and also be liable to pay fine. The essentials of this section are:
- The engagement of a woman in a private act.
- Such an act must have been either watched or captured by a man.
- Where the woman has not expected to be observed by either perpetrator or any other person.
- Circulation of such images by the perpetrator.
Explanation 1 of this section defines the private acts for the better understanding of this section. And Explanation 2 talks about a situation where the victim gives her consent to capture such images of her but not for circulation to third persons.
The following acts by a man constitute the offence of stalking under Section 354D:
- Following a woman and her contacts to advance some personal interaction despite her denial;
- Monitoring the use of any electronic communication by a woman. The following acts do not fall in the domain of stalking;
- When such an act was done for detecting or preventing any crime;
- When it was done to obey any condition imposed under any law;
- When it was done under such behaviour which was reasonable and justified.
On the first conviction, such person shall be punished with imprisonment for any described term which may increase up to three years and shall also be liable to pay fine. Whereas, on the second conviction, such person shall be punished with imprisonment for any described term which may increase up to five years and shall also be liable to pay fine.
NOTE: Section 354A, 354B, 354C, 354D was added by the Criminal Law (Amendment) Act, 2013, Sec. 7 (w.e.f. 3-2-2013).
Cruelty by husband or relatives of the husband
This offence has been dealt with under Section 498A, of Chapter XXA which was added by the Criminal Law (Amendment) Act, 1983. This section penalizes the cruelty by the husband or his relatives of a woman. Due to the patriarchal setup, most of the women in India are victims of domestic violence. This section provides security to women against such violent acts by their husbands or relatives. The punishment laid down for such offence is imprisonment for a period not more than three years and shall also be liable to pay fine.
- Explanation (a) of this section defines the term ‘cruelty’ as any willful act which is likely to make a woman commit suicide or cause serious injury or danger to life, limb or her health.
- Explanation (b) of this section says that ‘harassment’ of a woman to coerce her or her family, for demanding any valuable property or security amounts to cruelty.
In the case of Inder Raj Malik v. Mrs Sumita Malik (1986), it was argued that this section is beyond the scope of Article 14 and Article 20(2) of the Indian Constitution. It was contended that to cover such types of cases, there is the Dowry Prohibition Act. So, the presence of two laws on the same subject creates the situation of Double Jeopardy. But the Delhi High Court rejected this argument and held that Section 498A is different from Section 4 of the Dowry Prohibition Act. As, in the former one ‘cruelty’ is one of its essential whereas, in the latter one no such element of ‘cruelty’ is needed, mere demand of dowry is sufficient for it.
These were the offences which are defined under the Indian Penal Code. There are other special laws which provide protection and safety to the women. Some of these special laws are:
Dowry Prohibition Act, 1961, Commission of Sati (Prevention) Act, 1987, The Protection of Women from Domestic Violence Act, 2005, The Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and many others. These special laws not only criminalized certain acts but also protected women. Despite the several laws we are still lagging in providing a secure atmosphere to the women of our country.
Challenges faced by the executive
The executive is one of the important branches of the Indian Government. The main task of this branch is to implement laws which are formed by the legislature, another branch of the Indian government. The Indian executive branch comprises the President, the Council of Ministers, the Union Ministers and the independent executive agencies. The President is known as the nominal head of the state and all the executive powers are exercised through him. Some of the important Independent executive agencies are the National Commission for Women (NCW), the National Human Rights Commission (NHRC) and Central Bureau of Investigation (CBI). So, this head of challenges faced by the executive in offences against women can be divided under the following head:
The President of India has the power to make an ordinance under Article 123 of the Indian Constitution. The President can promulgate an ordinance when both Houses of the Parliament are not in session and when the President is satisfied that certain circumstances exist due to which he must take immediate action. When an ordinance is passed by the President, it has the same effect as an Act of the parliament. The President has also the power to withdraw the ordinance at any time.
Due to the increase in the no. of rape cases of minor in India, especially the Kathua and Unao rape case, the people start protesting against it and start demanding more strict rape laws. After keeping this issue in mind, several state assemblies like Madhya Pradesh, Haryana, Arunachal Pradesh and Rajasthan made more strict rape laws.
On 21 April 2018, the President promulgated the Criminal Law Amendment Ordinance, 21 April 2018. This amended the Indian Penal Code, 1860, Code of Criminal Procedure, 1973, Protection of Children from Sexual Offences Act, 2012 and the Indian Evidence Act, 1872. This ordinance introduced the following important changes in the rape laws under the Penal Code:
- Earlier, the punishment for rape of a woman was rigorous imprisonment of any described period, not less than seven years, which was later increased up to ten years and it may increase up to imprisonment for life.
- The was an addition in Section 376 which prescribed the punishment for rape of a woman under sixteen years of age, which is rigorous imprisonment of any described period, not less than twenty years, which can be later increased up to imprisonment for life.
- The was another addition in Section 376 which prescribed the punishment for rape on a woman under twelve years of age. The punishment is rigorous imprisonment of any described period, not less than twenty years, which can be increased up to imprisonment for life. Also, in the case of rape with a minor, an accused can be punished with the death penalty.
It was the first time that the death penalty could be awarded to the accused of the offence of rape. Later, this ordinance was presented before both the houses of the parliament and it was passed by the parliament on 6th August 2018. After it got assent from the President, the ordinance was replaced by the Criminal Law (Amendment) Act, 2018.
This amendment has been criticised by many people on several grounds. Firstly, this amendment has provided for the punishment for the offence of rape but it has remained silent regarding the conviction. According to a report “Crime in India- 2017” by National Crime Records Bureau (NCRB), the total number of rape cases for the trial was 1,46,201 but only 5,822 cases have resulted in the conviction.
There are two opinions regarding the death penalty in the case of rape with a minor. Some people have supported this amendment on the ground that rape is a heinous act and when it is inflicted on a minor it becomes more heinous because a minor has not that capacity to protect him. There are also people including lawyers and activists who have criticised the punishment of the death penalty on various grounds. Firstly, in India in most rape cases, the accused belongs to the victim’s family due to which many cases are not reported and this point has been verified by NCRB and now the death penalty as a punishment will inflict it more. Secondly, it was argued that sentencing death penalty to an accused will increase the chances of killing the victim.
Now, the accused will ensure the death of the victim at any cost. This point has been also presented by a bench of Delhi High Court comprising Acting Chief Justice Gita Mittal and Justice C. Hari Shankar. The bench remarked ‘was any study was done before bringing out rape Ordinance’ and ‘how many offenders would allow their victims to survive now that rape and murder have the same punishment’. This will cause great agony to the victims.
The primary duty of the police is to provide a safe atmosphere to the people and to preserve them from any kind of oppression. But in rape cases, the attitude and mindset of police towards the rape victim is unacceptable as they judge them with their typical and patriarchal mindset. This made it difficult for the victims to approach the police station. Many of the rape cases are not reported because the victims don’t believe in police and their investigation. Another reason for distrust in the police system is that the police officials are corrupted and there are many instances when these officials are influenced by the political pressure and this finally leads to the non-reporting of the case.
The executive branch of the government of India also includes independent executive agencies like National Commission for Women (NCW), which was set up as a statutory body in January 1992 under the National Commission for Women Act, 1990.
The commission should consist of one chairperson, nominated by the Central government and other five members to be nominated by the Central government. There should also be a Member-Secretary to be nominated by the Central government. Its main aim is to strive towards enabling women to achieve equality and equal participation in all spheres of life by securing her due rights and entitlements through suitable policy formulation, legislative measures, effective enforcement of laws, implementation of schemes/policies and devising strategies for the solution of specific problems/situations arising out of discrimination and atrocities against women.
However, the NCW faces some challenges, which is one of the biggest concerns for the government of India. The main challenge faced by the commission is that it does not have any real legislative powers. It can only make some suggestions and changes in the existing laws and these suggestions are not binding on the Centre Government. The other challenge faced by NCW in its composition. Every member of the commission including the chairperson is appointed by the central government so there is a high probability that these authorities may get influenced by politics. This has been witnessed several times like during 2011-2014, according to NCW official website, Mamta Sharma served as member-secretary at NCW. She was also a Congress leader and a three-time Lok Sabha MP from Udaipur. So, this may affect the working of the commission. This affects the independence of the commission.
In India, there is a patriarchal society where women face discrimination in different ways. In such types of societies, men always try to overpower women and for this they use the tool of violence. In our country, women face violence at every place whether it’s her home or workplace or even public place. Despite having so many laws under the Indian Penal Code, 1860 and other specific laws like the Dowry Prohibition Act, 1961 etc., we are still lagging to provide security to women of our country. Domestic violence, acid attack, rape are the common offences against the women. And the cases of such offences are rising at a disturbing rate, the newspapers are full of such cases.
The Indian executive branch comprises the President, the Council of Ministers, the Union Ministers and the independent executive agencies. The President is known as the nominal head of the state and all the executive powers are exercised through him. One such important independent executive agency is the National Commission for Women (NCW). Despite wide powers given to the executive, the authorities are lacking in providing security to the women of our country.
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