File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Under No Circumstance A Rape Case Can Be Compromised

As a girl, she was a legal prey, especially if she was dressed in a worn black leather jacket and has pierced eyebrows, tattoos, and zero social status.-Stieg Larsson

Abstract
In India, the offenses committed against women are of great concern. The folks and society at large have always considered women as second-class citizens. We admire and worship them as a goddess in the name of Durga, Sarasvati, Parvati, and Kali, but on the second hand we also abuse them in the form of Child-marriage, Female infanticide, Sati, Sexual harassment at the workplace, Dowry, and so on. The status of women in India has been subject to many prodigious variations over the past few epochs.

Since the unidentified status in ancient times concluded the inferior points of the medieval period, to the up-gradation of equality of rights by many constitutional reformers, the history of women in India has been dynamic. The women's status varied from time to time in different ages and thus, the violence against women is due to gender discrimination. The women were given the subordinate status inferior to that of the male is considered ordinary and enjoys social sanction.

The violence instituted upon the women includes physical violence, such as blows of varying intensity, burning marks, abatement of suicides, sexual harassment, psychological violence through insults, humiliation, coercion, blackmail, assault, threaten, and restrictions upon the right to speech and expression. In extreme, but not unknown cases, death is the result of such an unhumanitarian behavioral mechanism adopted by the existing dominant gender in the society.

The article focuses upon the sin committed by the men on the women should not be compromised just for the sake of adhering to the adoption of reformative theory by the judicial system but to act in the interest of justice

Introduction
Rape is one of the most atrocious crimes and is often labeled as the beginning of a nightmare for the victim. An effort has been made in this paper in order to scrutinize the observations made by the judiciary while determining the sentence against the accused in rape cases. The reliance was made upon the precedent judgments passed by the apex court, the legislations on Criminal Law either amended or interpreted by the court.

The oriental custom of India preaches Maatri Devo Bhava which is meant to worship every woman which should be honored with great reverence like a goddess. India represents different cultures and moral values embedded inside the Individuals. The history of Sociology has however established that.

Over years we have seen the frightening deterioration of moral values all around the world and thus, it can be witnessed in India as well leading to a degeneration of morals and in the guise of open culture the adoption of immoral ways of existence.[1]

Violence is usually conceptualized in terms of Criminal force and destructive omissions. The term Violence can be understood as the behavior with an ulterior objective of causing physical harm to the body and the property.

Violence against women exhibits unequal power relation between women and men, which have led to discrimination against women, and thus, is a societal apparatus by which the subordinate position of women is sought to be perpetuated. Women suffer even today, though they constitute more than half of the world’s population. In a 20l2 UN Report[2], it was reported that –women constitute half the world’s population, perform nearly two-thirds of its work hours receive one-tenth of the world’s income and less than one-hundredth of the world’s property.

Violence against women is defined as –Any act or omission constituting violence which results in, or is likely to result into, bodily, mentally suffering to women, including threats, coercion, or arbitrary deprivation of liberty, whether occurring in public or private life.

Sexual violence is a brutal reality of women’s lives and a slur on the face of civilized human society. This heinous offense apart from causing physical harm to the human body put the life of an existing human being into a dark nightmare coming out from which is dreadful and painful whereby, affecting the psyche of the victim tremendously. The rights of the victim of sexual violence were not only negated but unanimously affects society at large by lowering down the development prospects as it directly impinge upon the potential of nearly half of the human population i.e., women.

Sexual violence may be in the form of homosexual via gay/lesbian’ as well as heterosexual. Women because of their oppressed and subjugated position in society are far more prone, in terms of vulnerability to sexual violence. In concern to the shreds of evidence collected by scholars around the world, it was found that at least one in five of the World’s Female Population has been physically or sexually harassed or abused at some time in their lives.

Sexual crimes against women; the most shocking crime against human conscience and morality occupies a significant place in the penal statutes of every country. The women in India has been subject to all kinds of harassment but some of the specific crime to which the women’s are subjected includes rape, molestation, sexual harassment, and immoral trafficking. Amongst them, rape is perhaps considered the most destructive and heinous offense against the humanity and dignity of women.

The biological and psychic weakness of a woman who has been brought up with societal fear in the society, in particular, makes her an easily susceptible victim of dictatorship at the hands of man. The women whose birth his inferior status has been established have to face multiple difficulties in life at all stages, hence a unified approach to identify the means and methods is vital to foil crimes, violence, and atrocities against women in our country.

Crime against women have shown a rigidity in variations from time and place. Types and trends of crimes, however, kept changing with the change in mindset and techniques, unfortunately, women were not only accorded a lower status in the society but are also used as materialistic objects for obtaining pleasure in order to satisfy their ego / Subconscious mind by imposing dominant power upon the victim.

Sex is a natural phenomenon and is necessary for maintaining the continuity of the human race in society but on the other hand, using this phenomenon for sexual exploitation is the worst form of offense prevalent in society. The violation of virginity subjects women to considerable shame and humiliation.[3]

Rape is a crime, not only against the person of a woman, it is a crime against the entire society. It extinguishes the mental peace of a woman and compels her to dig inside the emotional crises. It is a crime against basic human rights. Rape is the ultimate violation of the self which is a humiliating tragic event in women’s life, resulting in a state of fear and feebleness.

The offense of Rape can be the most terrifying nightmare in a woman's life. The fear of rape affects all women and constrains their actions and limits their right to liberty having a prominent influence in their life. Since the varied childhood of women, she was infused with fear of being raped by strangers with evil motives which conditioned her preferences in her life.

Meaning of the term Rape

The connotation Rape in the general sense means an act of using force without the consent of the woman towards having sexual intercourse with her amounts to Rape. According to Oxford Dictionary, the term rape means causing force upon someone to have Sexual intercourse without their consent by threatening them or using violence.[4]

Section 375 [5]of Indian Penal Code defines the term rape. According to section 375 of the Indian Penal Code, it can be said that a man has committed rape under certain circumstances.

These are following below:
  1. Without the will of the concerned woman (in the time of intercourse)
  2. Without the consent of the concerned women
  3. If consent is there but it has been taken by threatening and fearing her
  4. If the girl gives consent because she thinks that this man is her legal husband though the man is very much aware of the fact that she is not his wife
  5. When the girl gives her consent but, in that time, her mental condition is not sound or at the time of intoxication.
  6. When the age of the girl is l6 years of age then with or without consent of the girl if any intercourse has been there then it is considered as rape.[6]
Concept:
According to the book Men Who Raped The Psychology of the Offender[7]; there are three types of Rape from the perspective of criminal psychology.

These are following bellow:
  1. Anger rapist

    Anger rape is described as an expression of anger, rape, contempt, hated, and frustration. The rapist instead of feeling sexually aroused got bothered and intimidating.
    He commits sexual assault as an expression of hostility and rage towards women with the motivation of revenge, humiliation, and degradation
     
  2. Power rapist

    The rapist uses criminal force upon the victim to commit the offense of rape, the evidence of such power is that she submits to his sexual demands because of a verbal threat, intimidation with a weapon, or physical force. This provides him with a sense of power, security, mastery, and control, by which he compensates for underlying feelings of inadequacy.
    The attack is premeditated and preceded by fantasies, and it results in the resolution of disturbing doubts about sexual inadequacy and masculinity.
     
  3. Sadist rapist[8]

    The rapist derives sexual pleasure by torturing and injuring the victim. The aggression itself is erotic and is an intensely exciting experience. The assault is deliberate and premeditated; the victim is stalked, captured, and abused. The rapist’s genitals may not be involved in the assault and rape maybe by an instrument such as a bottle or a stick.

The Evolution of Anti-Rape Laws in India Since 1860

The term Rape has been described as an offense under the Indian Penal Code, 1860 rendering that the offense of rape would only be committed if it’s done without the consent of the victim not completed the age of 18 years. The court has kept on interpreting the laws on rape offense with regard to the word consent of the victim procured at the time of committing sexual contact with the Victim and thus has felt many changes in anti-rape laws over an extended span of time.

Criminal Manual – (Indian Penal Code,1860)

The term Rape is defined in the Criminal law under Section 375 to Section 376E of the Indian Penal Code refers to ‘sexual offenses.[9] The bare reading of the provisions defines the term ‘Rape as using force upon the victim -without her consent or with her consent given under influence, or fear of constant death to the victim or any other person related to him.

It also defined ‘statutory rape’ as sex with a lady under the age of l6. It made no mention of rape as a crime against, since Section 377 – the one that makes gay sex illegal – covered that already. This loophole discouraged male rape victims from complaining against their rapists because it would mean opening themselves up to prosecution too. The punishment for the offense of committing gang-rape and repeat offenders were severer.

In India, the minimum punishment for rape was 2 years in Prison via a kind of like that of perjury where the utmost extend to life imprisonment in case of rarest of the rarest case. [10] The first modification to this very ‘general’ framework of rape comes after the Mathura Rape Case in l972.

The Criminal law (Second Amendment), 1983

The Mathura Rape Case[11]

On March 26, l972, a young Adivasi girl named Mathura was raped by two policemen while in custody. The family members of the victim lodged a complaint against the two policemen based upon which they were tried by the Sessions Court and were found acquitted. The struggle of getting the justice done the victims family was compelled to approach the Supreme Court who again failed to observe the substantial material involved in the matter had passed the order of acquittal based on indecent grounds that the victim was habitual to sexual intercourse

The Supreme Court Justices were failed to observe the injuries and the physical marks upon the body of the victim and because she was Sexually active and thus there might be the probability of her enticing the policemen to have sex with her. This verdict resulted in outrage across the country. The lawyers observed that the court could have permitted influenced his decision of being influenced by the cultural taboo of pre-marital sex.

They further submitted that the court has misunderstood the term consent. They said that ‘submission’ during the rape had been misunderstood for ‘consent’ just because of this taboo. The women groups in the society held protests and marches with a demand of introducing changes in the Society. After a long struggle of protests, the legislature has by amendment brought amendments to section 114(a) of the Indian Evidence Act.

Until this amendment introduced in society, the offense of rape committed by public servants had completely been ignored by our legal system. But with the passage of time, a new class of rape called Custodial Rape was introduced which includes the act of committing the offense of rape against the women while in custody by the Public Servant amounts to Custodial Rape. The amendment lowers down the burden of proof upon the women presuming that the sex was not consensual.

Thus, making the concept of consent an integral part of this offense. It is pertinent to mention here that through this amendment the court has prohibited the disclosure of the victim’s identity, character assassination of rape victims. However, it was through this amendment the legislature has banned the publication of victims’ identities and prohibited the ‘character assassination’ of rape victims in court.

2002: Amendment of Indian Evidence Act

Even though the l983 Amendment prohibited ‘character assassination’, it wasn’t defined to include the cross-examination of a rape victim. The question regarding the authenticity of the testimony of the victim was raised through a PIL by a NGO namely Sakshi.[12] The NGO raised their averments regarding the fear existing among the victims of rape of being humiliated and tarnished the sexual integrity of the victim during the trial by the defense rather than to treat them as someone who had undergone mental and physical trauma and someone who needed to be protected.

The supreme court after taking not of this direct the Law Commission to recommend amendments on rape laws existing in India. They found that in Section l55 (4) of the Indian Evidence Act 2002, the defense lawyer could discredit a rape victim’s testimony by proving that she was of ‘immoral character’.[13] This scenario included questioning her about past sexual acts and thus recognize these factors that bother the rape victims from filing the cases.

So, this clause was amended in 2002 with whose Introduction the cross-examination of the victim was prohibited. Another reason as to why women abstained from reporting rape was the dreaded 2-finger test, according to which the medical practitioner used to insert their 2 fingers into the vagina of the victim to check its laxity.

The Introduction of these tests made the women feel like a materialistic object used in pieces of evidence and being humiliated in order to shake their credibility of the testimony of the victim rather than treating them as ordeal victims. Meanwhile, the cross-examine was done based on the Medical reports of the victim the idea of prohibiting the tests creates no sense. Since cross-examination was out, the medical examination became central to the case and therefore, this test couldn’t be prohibited.

However, the Medical Practitioner while examining the victim should disclose the objective behind the tests along with substantial information explaining as to the procedure adopted during the examination should not anyhow discourage the victim from filing the case against the accused.

20l2: Protection of Children from Sexual Offences (POSCO) Act

Statistics indicated that India saw a 33.6% increase in child rape cases from 2001 to 2011. The National Crime Record Bureau statistics state that 48,338 child rape cases were recorded during this period which is causing an alarm for the government to introduce special legal procedure for protecting the children against these sexual offenses.[14]

So far, the sexual offenses against children are concerned it constitutes statutory rape clause mentioned in the IPC which forbids the commission of sexual intercourse with a girl below the age of l8, regardless of consent. However, the process of trying such a case was no different from a case that involved someone over l6. The POSCO Act consists of the contingencies describing the mode in which the offenses against the children could be taken place.

Which a child could be assaulted[15] Via recognizing the culprit that might be close to the child or his/her guardian, the Act authorizes the police to protect the child during the process of pending Investigation. The police officials are authorized to ensure the protection of the children against these offenses (proper care in shelter homes) and instant medical treatment in case of urgency.

The act establishes the special courts with proceedings conducted in-camera in compliance with the procedure established by the court of not disclosing the identity of the victim and keeping it as child-friendly as possible. The Act said that cases of child sexual abuse should be fast-tracked within a year and that reporting such cases should be mandatory and it’s the legal obligation of every citizen of India to report the offenses committed against the children.

The massive loophole founded in this act is the failure on the part of the legislature to include the male victims. This loophole was rectified in 20l2 with POSCO or the Protection of Children from Sexual Offences Act. The new Act is gender-neutral and documented the other forms of penetration apart from peno-vaginal penetration. The Act also included the abetment of child sexual abuse as an offense and included non-penetrative assault, sexual harassment, and child pornography.

20l3: Criminal law (Amendment) Act

Nirbhaya Rape Case[16]

On December l6, 2012, a 23-year-old physiotherapy intern, Jyoti Singh was brutally gang-raped in a moving bus. She struggled for her life at the hospital and finally on December 28 found dead. The victim was brutally physically harassed and beaten to death by the accused, the case led to widespread protest around the country. The protest required the amendments in the Criminal Law and demand for taking up this issue to be vital looking the matter as requiring instant justice.

This case became a turning point for the introduction of anti-rape laws in India to preserve the right of the victims. This ultimately led the courts in our country to review the laws prevailing in our legal system against the crime committed upon women via specifically stalking, acid attacks, and voyeurism was always remains neglected than rape despite the very fact that these minor aggravated offenses led to the commission of the major offense.

After the introduction of this Nirbhaya case, the government tries to amend the criminal laws which should include all offenses committed against women by making the punishment for these offenses harder. This led to the Introduction of the 2013 Criminal Law Amendment.[17] Through this amendment pivotal changes were Introduced by the insertion of offenses such as stalking, acid attacks, and voyeurism under the definition of Rape due to which now even the threat of rape is now considered a crime.

The sentence for the offense was increased from 7 years to 10 years. In the cases where the act of the accessed led to the death of the victim or founded in a vegetative persistent state, the accused shall be sentenced to not less than 20 years.it was this first time when the word vegetative state was inserted since, the landmark case of Aruna Shanbaug case.[18]

Meanwhile, the case of Nirbhaya was pending under trial, the character association of the victim was at fair play. That every attempt was made to assassinate the character of the victim through TV debates and Parliament discussions. Since the victim was a young professional, her independence and 'western' lifestyle were treated as invitations for rape. To stop further unreasonable and absurd behavior of the strangers to the case, the court brought this amendment and reiterated the provision stating the character of the victim is irrelevant in rape cases.

Since one of the accused in this case was a juvenile and ended up being tried as such, another flaw in the system was identified. So, the age for being tried as an adult for violent crimes like rape and murder was changed from l8 to l6, that to the Juvenile Justice Act.

Criminal law (Amendment) Ordinance, 2018

Kathua-Rape case

In January 20l8, an 8-year-old girl named Asifa Bano was raped and murdered in the district of Kathua in Jammu and Kashmir. Seven people were named in the case charge sheet, four of whom were police officers charged for attempting to cover up the case. The main accused, Sanji Ram, is a priest at the temple where the rape evidently took place. His nephew and son, both juveniles, were also accused.[19] This case led to national outrage, especially because it was against a child, but also because it took place in a temple and was perpetrated by a priest. It quickly became politicized along the Hindu-Muslim lines.

All this against the backdrop of political upheaval as the PDP and BJP alliance broke in Jammu & Kashmir, the state in which this crime took place. The pressure on the government to legally address this crime led to an almost immediate policy change with this Ordinance only 3 months after the incident. This change was mainly made to POSCO since it was against a child. It made the rape of a child below age l6 punishable by a minimum of 20 years imprisonment but provided for the death penalty for the rape of anyone below age l2.[20]

While the death penalty for rape has long been demanded, this is the first time, where it has actually been introduced. It also altered the fast-track clause from a year to 6 months, so that such cases would find justice without being colored by politics. Since this Amendment was an Ordinance, it still needs to be discussed in the Parliament in order to become an Act involved, it will probably be passed with little discussion.

Under No Circumstance A Rape Case Can Be Compromised

In the light of the case - State of Madhya Pradesh Vs. Madanlal
The Supreme Court of India, in contrast to the controversial Madras High Court order, where Madras HC passed an order permitting a person convicted of rape of a minor to settle the matter through mediation has said that there cannot be a compromise or settlement in a case of rape as it would be against the victim’s honor which matters the most.

Conveying its dismay with a judgment of the Gwalior Bench of the Madhya Pradesh High Court, SC bench comprising of Justices Dipak Mishra and Prafulla C Pant remitted the case back to the HC of MP for reappreciation of shreds of evidence which was ignored by the Hon’ble Court and to review its judgment. The Bench of justices Dipak Mishra and Prafulla C pant opined that such an arrogance imitates lack of sensibility towards the dignity of a woman.

In 20l0, High Court had set aside a lower court’s conviction under Section 376(2)(f) of the Indian Penal Code and had convicted the accused under Section 354 of the IPC, remission of the sentence of seven years to the imprisonment of around one a year underwent by the accused.

Background
On 27.12.2008, the accused met the victim of 7 years old who is on her way to home looking for her mother. According to the averments made by the counsel for prosecution The accused with an ulterior motive of committing the offense told the prosecutrix about her mother who had gone towards the river and thus ask to accompany her and took her to the crime spot, there the accused asked the prosecutrix to remove her undergarments and made her sit on his lap, the prosecutrix felt uncomfortable and shouted. The accused discharged on her private parts as well as on the stomach and washed the same. Upon hearing the hue and cry of the victim, her mother reached the spot and then the accused took to his heels. The Victim being scared narrated the entire incident to her mother who in regards to the above event lodged an FIR .[21]

The witness was examined by the investigating agency, along with the seizure of the articles of the accused for the purpose of being examined by the forensic laboratory. Thereafter obtaining the examination reports of the victims along with the statements of the victim a charge-sheet was filed before the concerned competent court of law which has forwarded the matter for trial before the court of session.
  • Convicted by Sessions Court
    The accused pleaded not guilty. Court framed the charge under Section 376(2)(f) read with Section 511 of IPC and the court of the session found him guilty and sentenced him for Seven years of Rigorous imprisonment.
     
  • Appeal to High Court
    The Accused being aggrieved with the impugned judgment passed by the Sessions Court filed an appeal before the HC alleging that the session court was failed to appreciate the evidence led by the accused which if considered would have affected the judgment passed by the court as could have caused material contradictions against the testimony of prosecution witnesses.

    It is meticulously observed by the High Court single judge in his judgment that an alternate proposal to the effect that the parties had entered into a compromise and thus, a petition seeking leave to compromise though was filed before the Trial Judge but it did not find favor with him on the ground that the offense in the question was non-compoundable.
In the above light, and observing that in facts of the case a conviction under Section 376(2)(f) was not possible, on 1 February 2010, High court converted the offense in the form of insertion under section- 354 of IPC and remit the duration of the sentence has been undergone by the accused amounting to more than one year.

High Court ordered: Keeping in view the aforesaid position of law and the statement of the prosecutrix who was aged 7 years only at the time of the incident and the medical evidence put on record by the prosecution, the Court was of the opinion that the Subordinate court has made an error in sentencing the appellant/Accused under Section 376 of IPC.

Therefore, the appeal filed by the appellant/accused is allowed in part leading to setting aside of a conviction of the appellant under Section 376 R/w Section 354 IPC. So, far as the sentence is concerned, the court despite keeping into view, the aforementioned position of law enforcement in India consider the fact that appellant has observed his term in jail since last more than one year and thus, the purpose would be served in case the jail sentence is reduced to the period already undergone.

State Appeals to Supreme Court
In year 20l2, The state of Madhya Pradesh challenged the HC’s judgment before the Supreme Court. The state submitted that HC had not kept in mind its jurisdiction as an appellate court and dislodged the conviction and converted the conviction to one under Section 354 IPC in an extremely laconic manner. On l July 20l5, SC allowed the appeal of the State and strongly objected to the High Court’s view. Judgment was authored by Justice Dipak Mishra.

Judgment
Showing uttermost dismay with the HC’s judgment observed that:
In an instant appeal filed before it for review of its own judgment though repetitive, in which we shall first dwell upon, in a painful manner, as to how some of the appellate Judges, started acting contrary to the precedents against the standardizing mandate of law, assuming a presumptuous role have paved the path of unbelievable lacunarity to deal with criminal appeals which, if we permit ourselves to say, ruptures the intellect of fairness and wounds the criminal justice dispensation system.[22]
  • No compromise in case of rape or its attempt
    That any kind of liberal approach or thought of getting into compromise against the non-compoundable, the offense would thoroughly and completely sans legal acceptability.
Observations of the Court:
The court opined that In the case of rape or attempt to commit a rape, the thought of entering into compromise could not be met out at any circumstances as these crimes are committed against the dignity of the women who are to be worshiped as per the Hindu rituals of our country.

These are offenses that suffocate the breath of life and sully the reputation. And reputation, needless to emphasize, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. the court stated that the dignity of a woman is a part of her immortal self and no one should ever think or be allowed to think of painting it in clay. No compromise/settlement should take place otherwise would dishonor the integrity of the woman which matters the most for her existence in this orthodox society. It is sacrosanct.[23]

Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility and Also, ignores any offer to marry the victim.
Thus, the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error.

Lists of Cases referred by the Court, while making Obiter Dicta
  1. Baldev Singh Case[24]:

    This was a case of gang rape in which the victim was raped by three men in l997. The case took 14 years to reach the Apex court of India. The matter was put forth before the division bench who has upheld the conviction against the accused and reduced the sentence already observed by the accused in view of the proviso to section 376 of IPC. The court while meticulously examining the two-page orders noticed that  the Incident happened in the year 1997 and the parties itself agreed to enter into compromise, there exist special and justifiable ground to remit the verdict under the proviso to section 376(2)(g) of the IPC.[25]
     
  2. Shimbhu & Anr vs State of Haryana[26]:

    The deponent has settled/compromised the said matter with the accused persons because them belonging to neighboring villages and of the fact that the deponent is married since January l999 and has four children, she did not want the said case to be pursued any further. She has developed an ordeal relationship with her husband and was living happily for the past 12 years. The victim has finally stated that with regards to the compromise entered upon between them and wishing to maintain her moral integrity in the society has showed no objection towards the remit of the sentence of the appellant a already observed by him.

Conclusion
Women, no less than men, require to be treated as ‘person, not a statistical abstraction.’ Notwithstanding the enactment of the laws relating to dowry, rape, violence against women, the ground reality is rather distressing. It appears that our society is becoming a psycho-sick society with uncivilized behavior.

Whenever a crime is committed against women and that too a violent crime, it sends shock waves to the society but those shock waves burst like bubbles in a very short span. Moreover, it is also true that in the male-dominated society of India, in spite of heinous crimes against women, women victims are looked at with a sense of hatred and stigma instead of hatred against therapists. Prejudice of the people towards rape needs serious attention and society must change its attitude.

The Indian Constitution advocates social justice, a poignant component of which is gender justice. What is demanded is neither charity, nor grace, nor as legal aid to the weaker sex. The militant claim is the woman's right to be oneself, not a doll to please, nor an inmate of a workhouse. She has the human right to be a woman. The courts have taken greater recourse to the right to life and personal liberty guaranteed by Article 2l of the Constitution for mainstreaming women's rights into the paradigm of human rights.

Rape must be understood as the gravest kind of sexual violence against women —a crime of power, which is an extreme manifestation occurring in the continuum of sexual violence. This issue has embedded its ground roots in social values and beliefs towards the natural phenomena of sex and thus affecting society at large. It is a social and political issue directly connected to power imbalances between men and women in society.

Justice Krishna Iyer criticizes the unequal view of gender justice. His lordship pointed out that the fight is not for a woman's status but for human worth. The remedy provided through punishment for the sin committed by the accused is not only to reduce the injustice prevalent but to restore universal justice.

In recent years, the role of the judiciary has extended beyond issuing directives on social issue concerns to ensuring effective and fair implementation of the same. As a judge, this requires the elimination of subtle ways in which the courtroom perpetuates discrimination and violation of women’s right to sexual integrity. A judge needs to proactive and must take charge of its courtroom to ensure that the subtle play of discrimination through spoken and unspoken words is eliminated.

The survey of judicial decisions shows that the courts in India have been endeavoring to reconstitute the fundamental rights to life and liberty guaranteed by Article 2l in the context of women’s experiences and concerns.[27]

The Judiciary shall formulate the saying of Krishna Iyer, J., that:
societal justice is not a constitutional winning event but rebellious belief which enlivens the legislative text with revolutionary connotation[28]; or the opinion of Chinnappa Reddy, J., that the discovery of new principles and the creative application of old principles is the only way for the judiciary to keep pace with the vast social change taking place outside the court and to contribute to these changes.[29]

If they did, there would be none of these decisions, which go clearly against the very principle of equality and non-discrimination promised in the court.

The attitude of the Supreme Court towards rape victims does not always appear to be impartial. The Supreme Court, in Prem Chand's case[30], reduced to half the sentences imposed on two constables convicted of raping a woman at a police post on the ground that the rape victim was a woman of easy virtue.

This type of reasoning is open to question from all sides. The victim's sexual morals and past sexual experience have little to do with the heinous crime of rape. A prostitute can be a victim of rape just as much as a virgin or respectable married woman. And the rapist is no less guilty because the woman he inflicts himself upon has had sexual experiences with other men.

The pragmatic instance of the judiciary can be exhibited from the case of Delhi Domestic Working Women’s Forum v. Union of India[31], wherein the court gave ample directions for the help of the victim of sexual assault, i.e;
  1. The complaints of sexual assaults should be legally represented by a panel of advocates along with the claims for medical and other expenses litigating the proceedings
  2. The victim should be provided with legal assistance either at or after the time of registering the complaint with the nearest Police station.
  3. The police should at the time of registering the complaint inform her about her right to legal representation and the same should be stated in the report by the police.
  4. The lists of panel advocates be prepared who are willing to legally represent the victims.
  5. Such advocates aforesaid mentioned shall be appointed by the court, having the power to assists the victims at the time of registering the complaint against the accused before prior taking permission of the court.
  6. The court should establish a Criminal Compensation board to determine the monetary damages payable to the victim of rape.
  7. The compensation awarded by the court should be passed keeping into consideration the compensation already paid to the victim by the Criminal Compensation Board during the pendency of the trial irrespective of the fact that the court has passed the order of acquittal / conviction of the accused.
Though the Supreme Court has exhibited a dynamic attitude in ensuring gender equality, judicial activism is yet to percolate to the lower levels of the judicial system. It is hoped that the forward-looking ideas reflected in the decisions of the Supreme Court will percolate to the lower levels of the judiciary and bar and that will ultimately expedite the social transformation that the feminist ideology envisions.

However, it can be concluded from the Article that the application and enforcement of the legislative laws in India needs an overhaul, otherwise women no longer would be a victim, but humanity as a whole would stick to great injustice.

End-Notes:
  1. Gaurav Jain Vs. Union of India and others, AIR l997
  2. United Nations Office on Drugs and Crime (UNODC) CTS20l3_SexualViolence.xls. (20l2), accessed September 8, 20l8, www.unodc.org.
  3. Oxford Dictionary, available at https://www.oxforddictionaries.com/
  4. Indian Penal code,1860
  5. Section 375 IPC
  6. Groth, A. Nicholas, Birnbaum, H. Jean
  7. See the Indian Penal Code § 376
  8. Change in the definition of rape in India, available at http://www.legalservicesindia.com/
  9. Judgment of the case, available at http:///www.ibtimes.com/youngindian-rape-victim-dies-look-back-mathura-another-incident-changed-rape-laws-l227l93.
  10. Sakshi vs. UOI, AIR 2004
  11. Indian Evidence Act, sec-l55(4)
  12. Rape Laws in India- The Heinous Crime Decoded, available at https://www.lawescort.in
  13. POSCO ACT, available at https://www.financialexpress.com/india-news/what-is-pocso-act/ll40766/
  14. Poulomi Roy Chowdhury, The Delhi Gang Rape: The Making of International Causes, Feminist Studies 39, no. l (20l3), accessed July 4, 20l4, https://illiad.boisestate.edu/illiad.dll?Action=l0&Form=75&Value=3l4959.
  15. Nirbhaya gangrape case 20l2: A look at what all has happened over the years, Available at https://indianexpress.com/
  16. Judgment of the case, available at https://economictimes.indiatimes.com/news/politics-and-nation/the-aruna-shanbaug-case-which-changed-euthanasia-laws-in-india/a-landmark-verdict/
  17. Kathua Rape Case;https://www.firstpost.com/india/kathua-rape-and-murder-case-full-text-of-chargesheet-filed-by-jammu-and-kashmir-police
  18. SUPRA l7
  19. Under No Circumstance A Rape Case Can Be Compromised, Available at https://www.livelaw.in/tag/state-of-madhya-pradesh-vs-madanlal-20l5/
  20. http://odishapolicecidcb.gov.in/
  21. https://dictionary.cambridge.org/dictionary/english/sacrosanct
  22. AIR 20ll SC l23l
  23. Judgement available at; http://lawfultalks.com/case-comment-state-madhya-pradesh-vs-madan-lal/
  24. AIR 20l3
  25. India Constitution, Art-21
  26. Law, Status Of Women And Social Change, available at https://www.jstor.org/stable/
  27. ibid
  28. l98l AIR 6l3, l98l SCC (l) 639
  29. l995 SCC (l) l4, JT l994 (7) l83

    Award Winning Article Is Written By: Ms.Harshita Bhatt
    Awarded certificate of Excellence
    Authentication No: MA34155179825-26-0521

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly