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
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.
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
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.
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
in 1980 has described violence as an act where there is the high potential
of causing injury.
In 1982 Megargee defined violence as:
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
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
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.
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:
- Dowry Prohibition Act, 1961
- Special Marriage Act, 1954
- 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.
The new Act brought about and incorporated new sections relating to
sexual offences. Such are:
- Acid attack
- Sexual Harassment
- 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
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
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.
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
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 called 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
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.
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:
- total strangers are not always involved in rape, half of the cases
involved with the rape victim's own assailant;
- nine out of 10 rapes are situational;
- 58% of the rape involved with only one offender, 21% are pair rapes
and 21% are group rapes;
- 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.
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
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.
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.
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.
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
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
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
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%.
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.
- A.R DESAI, SOCIAL BACKGROUND OF INDIAN NATIONALISM 256-259(Golden
Jubilee ed., Popular Prakashan 2007).
- RAM AHUJA, SOCIAL PROBLEMS IN INDIA 244-245 (2d ed., Rawat
- Criminal Law Amendment Act, 2013, Wikipedia, the free Encyclopedia,
- Criminal Law Amendment Act, 2013, Wikipedia, the free Encyclopedia,
- RAM AHUJA, SOCIAL PROBLEMS IN INDIA 253-254 (2d ed., Rawat
- RAM AHUJA, SOCIAL PROBLEMS IN INDIA 246 (2d ed., Rawat Publications
- Rape in India, Wikipedia, the free Encyclopedia, https://en.wikipedia.org/wiki/Rape_in_India.
- CEDAW General Discussion on Woman in conflict and post-conflict
situations, OHCHR, https://www.ohchr.org/documents/HRBodies/CEDAW/Womenconflictsituations/NorthEastNetwork.pdf.
- Women's rights in Jammu and Kashmir, Wikipedia, the free
- Bill No. 18 of 2017, Code of Criminal Procedure (Amendment) Bill,
2017, Dr Thokchom Meinya, M.P.
- 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.