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Leap of Law And Landing of Fear

Snooping down the history, the society from the very beginning of its civilization has witnessed discriminations, exploitations and indignations against women. Being encumbered amidst of the intoxicated customary practices women hue and cry has been gnawed out of the evolutionary matrix of time.

The only deficiency they have suffered is their getting birth in the female form. This article is set to unravel the contours through which society in its nucleus has grown up with the women in creating and combating their agony and anguish. It is therefore this paper is constituted with the facts through which women rights has been evolved, the way such have been channelized, and law in reflection of the legislative endeavour has succeeded in substantiating their rights in the light of democratic vigour. In furtherance to that whether making criminal amendments really work worthy to give a better independent world where they could breathe freely or in this conundrum women themselves are responsible, this article is an attempt to unfold and unlock all such anticipations.

Introduction
Putting thrust to the history, society at its very early age was a world of nomadic tribes. People used to be the savages of the time. It was women who firstly sown the seed of domestication whether it was of the pets or of building cottages. Since then till today, notwithstanding all the humiliations and hostilities ragged against women, they have proven to have domesticated man as the last wild animal. Except Vedic periods when women were encouraged to be the governing force of the society, post to such period society at its various intervals has come up with the world of bitter taste for the women. Practices that were made in cocktail of the religious ordinances produced them to be in the bottleneck life. Pardah or Sati or Child Marriages, practices which were derogatory for any human being to live with were withheld with the women world. Being jeopardised from every spheres of life, life for women evolved to be like living through the edges of knife.

Buddhism once attempted to lift the social iron curtains for the women but such was proven to be a fiasco. With time British conquest drops like a boon over the plights of the women. Introduction of new social structure and new governance helps the plights of the women voiced through the newly developed platforms.

Rubbing against the social disdain in aid with various revolutionary men some changes in the law and some ban from the customary practices were buried down. Ishwar Chandra Vidyasagar and Raja Ram Mohan Roy were one of such names brought revolution in history by putting an end to the child marriages by passing the Act of 1860 through which consent of the married and unmarried girls were lifted up to ten and by introducing the widow remarriages in the year 1956 and the practice of sati which was with the help of Lord Bentinck was put to an end.[1]

Women and Society

Violence as described by Gelles(1979) as:


an act of striking a person with the intent of causing harm or injury but not actually causing it. Strauss in 1980 has described violence as an act where there is the high potential of causing injury.

In 1982 Megargee defined violence as:

the overtly threatened or overtly accomplished application of force which results in the injury or destruction of persons or their reputation. The conclusion of the given definitions as operated with the time being as force whether overt or covert, used to wrest from individual (a woman) something that she does not want to give of her own free will and which causes her either physical injury or emotional trauma or both.

According to the Police Research Bureau, Delhi, crime against women could be distinguished under two heads (i) crime under Indian Penal Code, and (ii) crimes under the local and special laws as per as Crimes in India, National Crime Records Bureau, Delhi, 1994: 209 is concerned.

In pursuance of the report in the first category seven crimes were listed and in the second category four crimes were listed. The first category constituted of rape, kidnapping and abduction, homicide for dowry, torture (physical and mental), molestation, eve-teasing; and importation of girls up to 21 years of age, while the second category filled up with offences like commission of sati, dowry prohibition, immoral traffic, and indecent representation of women.

Empirical study conducted in 1982-84 in Rajasthan (Ahuja,1987) on Crimes Against Women as obtained from the records complied by the Ministry of Home Affairs, the Police Research Bureau, and the National Institute of Social defence.

The figures given by and collected from the report were six types of crimes took place against women from the year 1990 and 1994 and the indication predicts and shows that the crime numbers are in an escalation mode every year. The number of Rapes crimes happening every year about 11,000, Molestations about 21,000, Kidnappings about 12,000, Torture about 20,000, Eve-teasing about 10,000 and Dowry Death about 5000.[2]

Women and Law

Staggering with the blimp and bump, since India gained independency in the stroke of midnight, 1947, framers of the constitution while giving effect to the largest document in the whole world, protection of the women was the prime most subject they have addressed with and endeavoured towards curbing down the gender discrimination and in effect to that therefore within Part III of the constitution under Art 15, an extension of Art 14 itself, equality before law and equal protection of law, gender discrimination is prevented and State in such is empowered to make special laws for the women. As rooted with the religious ordinances women has always been the part of taboo dipping within the customary practices, Dr Ambedkar was of the vision to give this nation someday a Uniform Civil Code.

The reason lies within the history of this very nation, where people from various races and breed has come through, amalgamated and produced into a mixed race and all in evolvement of which various practices has sprung up of which women has been a subject of domination.

The intoxication of those practices are so deeply chronicled that some of the customs that has gained position in some legislative drafts such as saptapadi, one of the essential to fulfil the Hindu marriages, as per as Hindu Marriage Act is concerned and in contrary to which dowry stands against the law itself, which has also evolved from a custom with a different jurisprudential aspect. Child Marriages, in connect to that has also been an evolved practice stands against the law and therefore restrained.Legislative measures that have come up with different vision and rationality to put an end to those customs are:
  1. Dowry Prohibition Act, 1961
  2. Special Marriage Act, 1954
  3. The Prohibition Of Child Marriage Act, 2006
16th December 2012, the incident which had shaked the conscience of the whole nation was the rape of the lady named Nirbhaya, the physiotherapy intern. Repels of protest and radiation of anger against the govt threw out heavily. Protection of women was the call of the moment. The govt. pay heeds to the call, took a step ahead and appointed a committee headed by the former judge of the Supreme Court, Justice J.S Verma, with an another former judge Justice Leila Seith. Senior advocate of the Supreme Court, Gopal Subramanium was also involved into the committee.

Upon consultation with various NGOs, jurists and advocates and on receiving of 80,000 suggestions from across the whole country, the root cause for happening of such a kind of offences suggested to be rested with the govt and the police fallacy in protecting the women at large. Laws relating to sexual offences were amended and punishment from death penalty was altered to life imprisonment. Therefore on 19th March 2013 the amendment bill was passed in the Lok Sabha and on 23rd March it was passed in Rajya Sabha. The Act came into force on 3rd April, 2013.[3]

The new Act brought about and incorporated new sections relating to sexual offences. Such are:
  1. Acid attack
  2. Sexual Harassment
  3. Voyeurism
  4. Stalking
  5. Trafficking of person

The most significant change brought about is inthe definition of rape which was at first proposed to be termed as sexual assault but the term rape has been still retained under sec 375 of IPC provided the definition is made much more broader, specific and note worthy trying to cover every ambit and angle to commit crime in respect of a woman. In addition to that punishments for the sexual offences are also increased and are made much more rigorous.

Changes are also made in Criminal Procedure Code and Indian Evidence Act where from the provisions being changed clearly projects that once sexual intercourse is proven, the game is on with the victim herself. The burden then gets totally shifts upon the accused to prove that the victim had consent. A much advanced legislative steps being taken to protect the women from being raped.[4]

The question automatically erupts that does fear refrained people from committing rape or any other offence that is being discussed above?

In answering that question the rationality sticks upon to unfold the mystery of temptation and fear.

Having direct reference from the book of Ram Ahuja, it is known that the author himself by interviewing a large number of assaulter/offenders/aggressors understood that those offenders didn't have any regrets in causing such an offence, even they didn't suffer from the term so calledĀ  troubled masculinity, as per as psychologists view is concerned. In most of the cases the victim had a direct indication to have sexual relation if the offender persisted. In commission of these offences passive victims do play a great role.

They eventually participate in the crime. In case of abduction, most of the victims wilfully run away with their partner and then on complaints being made by their parents and on being coerced later after being recovered said that without consent they were being taken.

Of the survey being made, 39 per cent of the abduction cases were found to be wilful abductions, 24 per cent were forced abductions and 17 per cent were accessory abductions and 20 per cent initially agreed to have left the house with their partner and later repented after being raped according to them when they were being found in the hotels.[5]

In India, commission of rape is lower than the countries like United States, Canada and UK. Its only 0.5 per one lakh population whereas in U.S.A. it is about 26 per one lakh population, in Canada it is about 8 and in UK it is about 5.5.In consideration of the numbers being counted between 1990-1994, per day there are 30 rapes that takes place in India.

In an empirical study being conducted by the author Ram Ahuja, 42 of the rape victims revealed the following characteristics of crimes committed against women:

  1. total strangers are not always involved in rape, half of the cases involved with the rape victim's own assailant;
  2. nine out of 10 rapes are situational;
  3. 58% of the rape involved with only one offender, 21% are pair rapes and 21% are group rapes;
  4. majority of the cases end up with rape, only temptation and verbal coercion are used to subdue the victim and the number is nine out of every ten rapes that takes place in India.[6]
Rape is known to be as the fourth crime in India. As per the report released by the National Crimes Records Bureau, total number of rapes took place is 24,923 in 2012, of which 24,470 rapes were committed by someone known to the victim, i.e almost 98%. Most of the rapes take place on false promises being made of marriages by the apparent partner.

Today in the Indian context as rapes has triggered media attention and wide outrage across the society, therefore gets reported and pushed the government in amending laws relating to rape on demand upon which the Criminal Amendment 2013 is based. Report released by NCRB in 2015, Madhya Pradesh is at top for rape offences as per as its raw report are concerned while Jodhpur in Rajasthan has the highest per capita rate of rape reports in cities followed by Delhi, the capital city.[7]

Women in disturbed areas

India has always been denied of the fact that any territory within its boundary is suffering from armed conflicts and women and children in amidst of it are not safe and secure. The questions and the discussion is always rampant across the surface and reply from the government of India is Indian Army has an excellent track record in protecting human rights and have high sensitivity in protecting the women. The CEDAW committee raised a serious concern about the conditions of women living the conflict areas in regards to the past considered issues in the 2000 and 2007.

The committee further asked about the operation of the Armed Forces Special Power Act (AFSPA) in those conflict areas in keeping the gender perspectives all right. In per-session questions it was asked to the Govt of India how far the Security Council 1325 has been implemented in respect of those conflict areas but the reply given is not in tune with the scenario of the state.[8]

Kashmir is one of such conflict area where women since the time of accession are fighting for their rights, in connexion to which many small organisations are in work towards protecting their rights. The instance of being shot dead right at the head of the school girl who in want of education lost her life in the hands of the radical terrorists shocked the whole nation and triggered the conscience of concerning about the women rights in the conflicting zone of our country.[9]

As presently could be witnessed that in Kashmir post to abrogation of Art 370 and presidential rule has been proclaimed, under Public Safety Act the army forces are freely detaining plethora of people of which many women are involved. 200 Habeas Corpus writs are filed in the Jammu and Kashmir High Court but due to closure of the post office no notice can be served upon the respondents. Gross violation of Art 21 of life and liberty is taking place and on the grounds of public interest a bottleneck situation is on.

In the light of which Criminal Amendment Bill, 2017 be considered where upon considering several international conventions women rights in the conflicting area is emphasized and proposed to be protected.[10]

Criminal Amendments in the light of Unnao and Khatua rape cases

In furtherance of time, denying all the stringency imposed by the Nirbhaya Act for the perpetrators to commit rape, incidents like Khatua and Unnao rape cases again shocked the nation. The said incidents reflects no fear being mongered over the perpetrators mind while committing rape as supposed to have thought of while imposing strongest punishment for the rape accused persons.

The legislative endeavour to put an end to rape meets with fiasco. In consequence amendment in law of rape is again being tabled before the parliament. Significant changes being made again in the criminal proceedings including Indian Penal Code, Indian Evidence Act and Criminal Procedure Code and Protection of Children from Sexual Offences Act, 2012. Noteworthy amendment being made this time reflects the death penalty being imposed in case of gang rape being committed against a woman below 12 years of age.

As far as proceeding is concerned upon anticipatory bail also a restriction has been imposed providing that no anticipatory bail be granted in case of rape being committed against a woman below 16 years of age either by the High Court or by the Session Court. A time limit has also been given within which the appeal and investigation of rape cases be completed. For appeal the time is fixed for 6 months and for completion of the investigation, 2 months is prescribed so that speedy and expeditious trial could be met as far as meeting the ends of justice is concerned.

Subject to consideration if former Judge Justice J.S Verma report be concerned, the report had mainly made responsible to the Govt and the police in failing to protect the heinous crimes from being committed. In light of such the amendments made from 2013 10 2018 always lose its efficiency in preventing the crimes being committed. The concerns mainly addressed by these amendments are imposing stringent to stringent punishment upon the perpetrators. Therefore it is again being proven that fear cannot control the temptation from being unleashed.

Rule of law is violated

Every legislative endeavour coming out of the parliament towards curbing down the offences in the society equipped with fear in terms of strongest punishments. Unfortunately such a kind of endeavour being taken since independency doesn't results to meet the success. It is often being found that rulers themselves are not accountable before the parliament for the fallacy of the law being made to meet the objectivity. In the light of the last amendment being done in pursuance of the two heinous rape incidents at Unnao and Khatua, or castrated with much more rigorous punishments than what has been imposed through the last amendment being done in the year 2013 post to Nirvaya incident and this time especial effort has been given upon the fast and expeditious trial should be made.

The question therefore belies upon the fact that if the said time period is not complied what would be the next accountability rest from the executive branch of our country. As presently laid down by the last amendment regarding making investigation within 6 months and appeal be disposed of within 2 months. The pitfall survive there, only by making stringent laws the rulers cannot absolved themselves from the liability, they should be accountable for the procedure of not meeting the requirements set by law being given by them to the nation at large otherwise in the light of Dicey principle rule of law is not prevailed and met.

The conviction rates in rape cases if be seen has gradually suffered a decline. At present one out of four leads to conviction. In 1973, the conviction rates was 44.3 percent, in the 1983 the conviction rates was 37.7 percent, 26.9 percent in the year 2009, 26.6 percent in the year 2010, 26.4 percent in year 2011, 24.2 percent in the year 2012 and 27.1 percent in the year 2013.[11]

If with the decline of conviction rates be seen from 1973 till 2013, simultaneously it is also to be noticed that proportionately the quality of the leaders ruling this country has suffered a sheer decline. Nearly 30% of the legislators have a criminal background. 1581 members have criminal records of which 51 are involved in crime against women. 3 MPs, 48 MLAs of these 4 have rapecases against them. The criminal records of the parliamentarians have a gradual escalation from 2004 to 2014. In 2004 it was 24%, in 2009 it was 30% and in 2014 it was 34%.[12]

Conclusion
In the contrast of fear and temptation, it is always proved that temptation overrides the fear. It is because of such reason; stringent punishments are failing completely to curb down the women concerning offences. Life day by day is on the track of smartness, full of frustration and hastiness. Values are weeping under the carpets and nothing remains to restrict a person from involving into the crime.

Law takes control of the outer manifestation of the human beings, the inner conscience is lagging from being manifested strongly and strictly. Legislators need to be much more comprehensive and accountable to the process and procedure being followed in rape cases rather than only imposing strict punishment for those offences which is actually proving to be an eye wash for the people.

End-Notes:
  1. A.R DESAI, SOCIAL BACKGROUND OF INDIAN NATIONALISM 256-259(Golden Jubilee ed., Popular Prakashan 2007).
  2. RAM AHUJA, SOCIAL PROBLEMS IN INDIA 244-245 (2d ed., Rawat Publications 2009).
  3. Criminal Law Amendment Act, 2013, Wikipedia, the free Encyclopedia, https://en.wikipedia.org/wiki/Criminal_Law_(Amendment)_Act,_2013
  4. Criminal Law Amendment Act, 2013, Wikipedia, the free Encyclopedia, https://en.wikipedia.org/wiki/Criminal_Law_(Amendment)_Act,_2013
  5. RAM AHUJA, SOCIAL PROBLEMS IN INDIA 253-254 (2d ed., Rawat Publications 2009).
  6. RAM AHUJA, SOCIAL PROBLEMS IN INDIA 246 (2d ed., Rawat Publications 2009).
  7. Rape in India, Wikipedia, the free Encyclopedia, https://en.wikipedia.org/wiki/Rape_in_India.
  8. CEDAW General Discussion onĀ  Woman in conflict and post-conflict situations, OHCHR, https://www.ohchr.org/documents/HRBodies/CEDAW/Womenconflictsituations/NorthEastNetwork.pdf.
  9. Women's rights in Jammu and Kashmir, Wikipedia, the free encyclopedia, https://en.wikipedia.org/wiki/Women%27s_rights_in_Jammu_and_Kashmir.
  10. Bill No. 18 of 2017, Code of Criminal Procedure (Amendment) Bill, 2017, Dr Thokchom Meinya, M.P.
  11. Priya Kapoor, Over 30,000 rape cases; only 1 in 4 convicted, Times of India (Jun 11, 2019, 8:27 IST), https://timesofindia.indiatimes.com/india/over-30000-rape-cases-only-1-in-4-convicted/articleshow/63748925.cms.
  12. Ibid.

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