Introduction-
To consider women as an inferior creation of god-is that good for the world? Cities should be spaces for opportunity and personal growth. But going by the experiences of women across the world, they are more often than not a site of opportunity, harassment and assault. Today, there is a growing realization that if our urban centers are to be made safe for everyone living within their peripheries, they have to first be made safe for the most marginalized among those who live, work and commute in them. Since ages, till the present time, various crimes against women are prevalent in the world, be it matrimonial cruelty, stalking, sexual harassment, extortion or other crimes. Though we have women laws and rights which are ought to protect them. Yet, the women living in both rural and urban areas face constant threat or other crimes. It is not a new threat or crime happening to the women’s; they are sexualized and commodified from before till the latter. If we look back, be it British raj or any war time till present, women are continuously raped or are forced to get themselves involved in some heinous crime. There were and do many laws exist in India, some of which are discussed below:
Laws talking about safety of women:
There is a list of safety laws for women in India working in the field to provide safety to the women from all types of crimes against women. Some safety laws are Child Marriage Restraint Act 1929, Special Marriage Act 1954, Hindu Marriage Act 1955, Hindu Widows Remarriage Act 1856, Indian Penal Code 1860, Dowry Prohibition Act 1961, Maternity Benefit Act 1861, Foreign Marriage Act 1969, Indian Divorce Act 1969, Medical Termination of Pregnancy Act 1971, Christian Marriage Act 1872, Code of Criminal Procedure 1973, Equal Remuneration Act 1976, Married Women’s Property Act 1874, Births, Deaths & Marriages Registration Act 1886, Indecent Representation of Women (Prevention) Act 1986, Muslim women (protection of rights on divorce) Act 1986, Commission of Sati (Prevention) Act 1987, National Commission for Women Act 1990, Prohibition of Sex Selection Act 1994, Protection of Women from Domestic Violence Act 2005, Prevention of Children from Sexual Offences Act 2012, Sexual Harassment of Women at Work Place Act 2013, etc.
Beside all these, we all see lots of cases of sexual harassment at workplace every now and then. Around 53% of women face sexual harassment at workplace every year. All the women facing unwelcome comments like catcalling, sexual jokes, one side flirtation, sexual comments and innuendo about a person’s body, clothing or looks etc. are protected from their visibility; they should say whatever is faced. They all are protected under POSH Act (Amendment), 2017[1] and they also have “SHE box” portal under POSH Act, 2019 where they can submit all the grievances related to sexual harassment at workplace. They should make a complaint in writing within 3 months from the date of incident. Within 90 days, the POSH committee completes the enquiry and submits the report of allegations proved against the respondent and thus legal actions are taken within 60 days.
Why POSH?
For all those sexual gestures and sexually brushing up etc. at the workplace by men should be dealt with by women fearlessly and they should steadily speak against it. POSH Act is legislative act in India that seeks to protect women from sexual harassment at workplace. It was passed by Lok Sabha in 2012 and Rajya Sabha in 2013 and was further amended in 2017 and 2019. It is the first piece of legislation which deals with sexual harassment at workplace. It helps working women to stand against gender discrimination and violation of their fundamental rights. Insecure and hostile working environments adversely affect performance at work, social and economic growth as well as physical and mental suffering. POSH Act on general note guarantees Right to equality before law, Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth and protection of life and personal liberty for women that is article 14, 15 and 21 of Indian Constitution[2] respectively. Respective of these rights of women “Doctrine of Manifest Arbitrariness’ was created by Justice D.Y. Chandrachud in the landmark judgment of ‘Triple Talaq’ that no law can overpower the rights available to women under Article 14, 15 and 21 of the Indian Constitution. It is basically the ground for striking down law and seeing whether everything is done rationally or not functioning of the POSH Committee is designed in such a way that there is barely any scope of allegation of biasness and favoritism. “Section 376 of IPC states that one who commits rape shall be liable for the imprisonment of 10 years and if the victim is under 16 years of age shall be liable for imprisonment not less than 20 years which may extend to imprisonment for life (2018 Amendment i.e. after ‘Kathua Rape Case’)”
Post Nirbhaya Case Amendments (2013)-
“Wake up India, she’s dead,” screamed one of the newspapers in order to announce her death. This horrific incident of ‘Rape’ triggered a firestorm in the people’s heart. Government tried to halt rising protests by giving a series of measures to make the nation safer for women. Reacting to the protest made by people, India announced new anti-rape law in March 2013. In order to make the new Law better several changes were made and many sections were added in the IPC, 1860 –
- i) S. 376A was added that is punishment for causing death or resulting in persistent vegetative state of the victim.
- ii) S. 376D, Gang Rape was also included in which all person involved regardless of gender/age shall be punished.
iii) Also, the age of consent in India was increased to 18 years.
- iv) There were changes in CrPC and Evidence Act which made the process of recording and statement victim friendly and character of victim is now rendered totally irrelevant.
- v) Concept of Zero FIR was introduced.
Beside all these, the most important amendment which everybody should know is when Nirbhaya was raped, one of the rapist was under 18 years by few months and hence, was tried as a Juvenile in Conflict with laws (JCL) in Juvenile Justice Board and other was found to be juvenile and sentenced to 3 years in a reform home which had huge impact on public perception because 17 years old who is committing such cruel crime must have complete understanding of it. In 2013, Subramanian Swamy a BJP politician filed a PIL in the Supreme Court seeking that the boy be tried as an adult in a court. Sooner or later, in 2015, Juvenile Justice Act added (JCL) means that all those in the age group of 16-18 years, involved in Heinous Offences, shall be tried as “adults” who has not completed age of 18 years as on date of commission of Offence which can be a fair example of Justice delayed but not denied.
Post Kathua Rape Case Amendment (2018)-
The second landmark judgement post Nirbhaya was “Kathua Rape Case”. It was marked by abduction, rape and murder of an 8 years old girl, Asifa Bano, near Kathuain the state of Jammu and Kashmir. It represented a triumph of justice over communal propaganda. The national uproar for justice brought a tremendous change and was not denied and it led to the passing of “The Criminal Law (Amendment Act), 2018. The minimum punishment in case of rape of women is increased from 10 years to 20 years, extendable to imprisonment of convicts till his ‘natural life’. Also, the punishment for gang rape of girl below 16 years is now invariably imprisonment for life. And all those who thought of anticipatory bail will no longer be able to take this advantage in the case of gang rape of a girl below 16 years of age.[3] Lastly, the trial of all the cases related to rape will be completed within 2 months which is considerably a good start towards our judicial system.
International aspect of violence against women
Safety of women is like sand in the hand of this world, which continues to fall by the passage of time, as time is passing by; this problem is not just confined to one particular country or one class or just one caste. It has become an internationally accepted problem which does not have a permanent solution to it. Keeping in mind the problem and their suffering there are many international laws which are made to look after the safety of women. There are international laws meant for protection of women’s rights of women. The CEDAW (convention on the elimination of all form of discrimination against women) deals with the protection of several rights of women. Article 16[4] deals with discrimination against women on all matter relating to marriage and family. Article 2(B) and Article 9, ICCPR mandates the state to adopt all legislation necessary to eliminate all forms of discrimination against women. The European Court of Human Rights in SW v. The UK[5] while upholding the conviction for marital rape, stated: “The abandonment of the unacceptable idea of a husband being immune against prosecution for the rape of his wife conformed not only with a civilized concept of marriage but also, and above all, with the fundamental objectives of the convention, the very essence of which is respect for human dignity and human freedom”[6], and also marital rape is a crime in all the 50 states of United States.
Even the Supreme Court of Nepal has struck down the exception of marital rape through the case FWLD v. HMG (2002)[7]. The Supreme Court in Jit Kumari v. government of Nepal ruled that where the offense is the same, there is no rationality in differentiating between marital and non-marital rape. Comparatively, Nepal is the closest to us, in geographical and cultural aspect and the supreme court there has criminalized marital rape.
Conclusion-
Despite knowing every law and punishments, one question that arises is that, these rape or torturous act is it stopping? The answer to the very question which everyone knows is a big ‘NO. Women status in the country has been more offensive and dreadful in the last few years. It has decreased the confidence level of women for safety in their own country. Women are in doubtful condition for their safety and have fear while going anywhere else outside their house. We should not blame the government because women safety is not the responsibility of government only, it is the responsibility of each and every Indian citizen especially men who need to change their mind set for women. As Rome was not built in one day, the same way rape culture was not developed in one day, this mentality prevailed since ages, and to eradicate we need to change the mentality. Rape and rape culture are the by-products of our thoughts and mentality. Education can create a lot of difference among people. Sex education is still considered to be taboo, but this is something which would create a difference. Following the only scheme “BETI PADHAO BETI BACHAO” which is meant for uplifting women in the sphere of women’s education and ensuring protection and survival of the girl child in light of the declining child sex ratio. Sexual violence against women is an obstacle to peace and security. Many women lose their family, health, support and even livelihood. It completely shatters the structure of a normal human life. This vicious cycle of harassment and rape should be stopped because women cannot accept this tolerance for lifetime anymore and live with that dejection lifetime.
By-
Ritik Sharma,
(Lloyd Law College)
Neelakshi,
(Lloyd Law College)
[1] Prevention, Prohibition and Redressal Act, 2017
[2] Constitution of India, 1950
[4] CEDAW
[5] CR v. United Kingdom (1995) 21 EHRR 363
[6]Maithili Shannkatarilibby, marital rape
[7] Ministry of law and justice, (Writ No. 3392, 2052, Decision No. 6013 of 2059, NKP 2059 VOL. 5, PAGE 462)