Get To Know Women-Related Laws
Laws and courts are often deeply anti-women themselves. But women’s movements on several occasions have achieved progressive changes in laws and forced laws to reflect women’s rights. Let us get to know some of the more important features of laws that relate to women specifically.
The Mathura Case
Mathura was a teenage adivasi girl in Maharashtra. She was in love with a boy and so her family filed a case of abduction against the boy. She was inside the police station in this matter while her family waited outside. Two policemen raped her inside the police station. The lower court acquitted the the policemen. But the Bombay High Court overturned the acquittal and convicted the policemen.
But in September 1979, a Supreme Court bench comprising Justices Jaswant Singh, Kailasam and Koshal reversed the judgement given by Bombay high court in the case (Tukaram vs State of Maharashtra.) The judgement said that Mathura had raised no protest, and there was no visible injury on her body – they concluded that there had been no struggle and so, no rape. The judgement said “Because she was used to sex, she might have incited the cops [they were drunk on duty] to have intercourse with her.”
Law professors Upendra Baxi, Raghunath Kelkar and Lotika Sarkar of Delhi University and Vasudha Dhagamwar of Pune wrote an Open Letter to the Supreme Court protesting this judgement – and this sparked off a huge women’s movement all over the country demanding changes in the rape law and legal understanding of evidence in rape cases. The Open Letter asked, “Is the taboo against pre-marital sex so strong as to provide a license to Indian police to rape young girls?”
Due to protests following the Open Letter, some important changes in the rape law and related laws were enacted in 1983.
· The 1983 Act recognized and defined custodial rape and gang rape
· The 1983 Act provided for enhanced punishments for custodial rape and gang rape
· It introduced the presumption of absence of consent in cases booked under section 376(2) IPC, 1860 – i.e custodial rape/rape by a policeman. Accordingly, an amendment was also introduced in the Indian Evidence Act - section 114(A) IEA]. This meant that in cases of rapes in police custody, if sexual intercourse is proved and the woman makes an accusation of rape, the Court will assume absence of consent on her part. This is called a “rebuttable assumption” – i.e the assumption can be challenged or disproved by the defence.
· Disclosure of identity of the rape victim was also made a crime – unless such disclosure is with the consent of the victim or, in case the victim is dead/minor/unsound mind, by the next of kin of the victim. The court also accordingly provided for ‘in-camera’ trials in certain rape cases.
· Section 53A of the Indian Evidence Act was also introduced, under which submitting evidence about the victim’s previous sexual experience or her ‘character’ could not be admissible in the court of law in a rape trial.
Violence Against Women Laws As It Stands After 2013
As you are aware, the Criminal Law Amendment 2013 (CLA 2013) introduced changes in rape and sexual violence laws following the anti rape protests of 2012-13.
Here are some of the highlights of the law as it stands now:
1. Section 166 A IPC – Accountability of Police Officers
Any police officer who fails to register a complaint made to him under Sections 326A, 326B, 354, 354B, 370, 370A, 376, 376A, 376B, 376C, 376D, 376E, 509 IPC (i.e violent crimes against women) can be punished with rigorous imprisonment for minimum term of 6 months (and maximum 2 years), and can also be fined.
The CLA 2013 clarifies that no prior sanction from the Government under 197 (1) CrPC will be required for public servants charged with sexual offences or charged under 166 A or 166 B. But the law fails to issue a similar clarification regarding 197 (2) CrPC that covers armed forces.
Section 166 B IPC – Free Medical Treatment for Acid Attack, Rape Survivors
Under Section 357C CRPC, all hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, shall immediately provide first-aid or medical treatment, free of cost, to the victims of any offence covered under section 326A, 376, 376A, 376B, 376C, 376D or section 376E of IPC, and shall immediately inform the police of such incident. Persons in charge of such hospitals or local bodies who fail to provide such free treatment to acid attack or rape victims or fail to inform police can be punished under Section 166 B.
(Many women’s groups including AIPWA objected to the clause that hospitals or doctors must inform police if a rape victim comes to them for treatment – because as a result rape victims who do not want to file a police complaint, even avoid getting treatment.)
2. Section 326 A and B IPC - Acid Attack
These two laws apply to injuries inflicted by acid or attempts to injure someone using acid. Under this gender-neutral law, the perpetrator and the victim can be any person – i.e perpetrator need not only be a man and victim need not only be a woman.
Those found guilty of injuring someone using acid gets rigorous imprisonment for at least 10 years and may be life imprisonment, and will pay a fine (enough to cover medical expenses) which will be paid to the victim.
Those found guilty of throwing acid/attempting to throw acid will be jailed for 5-7 years and will also pay a fine.
3. Section 354 IPC and Section 509 IPC
Under Section 354 IPC, assault or criminal force to woman with intent to outrage her modesty, is punishable with imprisonment of at least 1 year, and up to 5 years. Under Section 509 IPC, a man who “utters any word, makes any sound or gesture, or exhibits any object” to “insult the modesty of a woman” will be punished with simple imprisonment for up to 3 years.
4. Section 354 A IPC – Sexual Harassment –
A man committing any of the following acts against a woman—
i. physical contact and advances involving unwelcome and explicit sexual overtures;
ii. or a demand or request for sexual favours;
iii. or showing pornography against the will of a woman;
iv. or making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
Men found guilty of crimes between (i) and (iii) will get rigorous imprisonment for up to three years, and may also be fined. Men found guilty of (iv) can be jailed for up to 3 years and/or fine.
5. Section 354 B IPC – Disrobing a woman –
A man who uses force to disrobe a woman or compel her to disrobe, or abets such an act, shall be punished with jail for 3-5 years and may also be fined.
6. Section 354 C – Voyeurism -
Any man who (without her consent) watches, or captures the image of a woman engaging in a private act (where her private parts are exposed or only covered with underwear; or where she is using the toilet; or she is engaging in a private sexual act) or or disseminates such an image is guilty of voyeurism. A man convicted for the first time for voyeurism will be jailed for 1-3 years; a second or subsequent conviction will mean jail for 3-7 years.
(Note – as in all sexual offences, it is violation of a woman’s CONSENT that is the crime. Even if a woman has consented to having her photo/video taken when she is nude or during sex, it is a crime to share such a photo/video with a third person without her consent.)
7. Section 354 D – Stalking –
Any man who follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking. Punishment – up to 3 years on first conviction; up to 5 years on second or subsequent conviction.
8. Section 370 – Trafficking –
This law criminalises trafficking of persons including women and children.
9. Section 375 – Rape –
· The amended law expanded the definition of rape beyond peno-vaginal penetration. Non-consensual penetration of a woman’s vagina, urethra, anus or mouth by a man using any part of his body is rape.
· The definition of ‘consent’ has been improved and clarified in the law: “Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. The law makes it very clear that a woman who is unconscious, or unconscious due to intoxication by alcohol/drugs, or otherwise unable to communicate her willingness cannot consent to sex – any sexual act with such a woman in such a condition will be rape. Just because a woman has not physically resisted the act of penetration, it cannot be assumed that she has consented – because consent must be a positive, deliberate communication of YES, not a negative failure to say No or a failure to physically resist.
· As law professor Mrinal Satish writes, “Consent is determined at the point when penetration occurs. If the woman consents to the penetrative act, but withdraws consent during the act, and the man continues, the act amounts to rape from the instant that the woman withdrew consent. However, if the woman consents to the penetrative act, but changes her mind after the act is completed, it is not rape, unless it is proved that the woman was deceived into consenting.”
· Minimum punishment for rape is fixed at 7 years; the judicial discretion to reduce the sentence to below 7 years has been removed.
· Under Section 376 (2), higher punishments are spelled out for aggravated rape. Police personnel or public servants of any kind who hold women in custody; armed forces personnel deployed in an area who commit rape in that area; management or staff of a jail, remand home or any other similar place who commit rape on an inmate; management or staff of a hospital who commit rape on a woman in the hospital; a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; a man who commits rape during communal or sectarian violence; commits rape on a woman knowing her to be pregnant; commits rape on a woman when she is under sixteen years of age; commits rape, on a woman incapable of giving consent; being in a position of control or dominance over a woman, commits rape on such woman; commits rape on a woman suffering from mental or physical disability; while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; commits rape repeatedly on the same woman shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life. In rape cases under Section 376 (2), where sexual intercourse is proved, and the question is whether or not the woman consented; if the woman states that she did not consent, the Court will presume that she did not consent. This presumption can be rebutted, challenged and disproved by the defence.
· Section 376 A - If the rape causes death or resulting in persistent vegetative state of the victim, the punishment is rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.
· Section 376 B – Sexual intercourse by husband upon his wife during separation without her consent will be punished for rape with imprisonment between 2-5 years.
· Section 376 C – If a person in a position of authority or trust; a public servant; a superintendent or manager or staff of a jail or remand home etc; who abuses such a position to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with rigorous imprisonment of 5-10 years. (Note – here such sexual intercourse is a crime though the woman has consented, but it is not rape. Rape in such circumstances is covered under Section 376 (2).)
· Section 376 D – Gang Rape – punishable with rigorous imprisonment for not less than 20 years, but which may extend to life imprisonment; also a fine – which is enough to to meet the medical expenses and rehabilitation of the victim - will be paid by the perpetrator to the victim. (Note that in acid attacks, rapes etc, we demand that the rehabilitation and medical expenses should be met by the government, without waiting for a conviction. If he is convicted, the amount may be paid by the perpetrator to the government as a fine.)
· Section 376 E: Repeat offenders (convicted of 376, 376 A or 376 D more than once) can be punished with either life imprisonment or death sentence.
· Section 146 of the Evidence Act was amended to ensure that during cross-examination, a victim cannot be questioned on her “general immoral character, or previous sexual experience.”
· In every trial, proceedings will be held day to day, and for offences under 376, 376 A, 376 B, 376 C, 376 D, and trial shall be completed as far as possible within two months of filing chargesheet.
What we oppose about CLA 2013
· The CLA 2013 and Protection of Children from Sexual Offences Act (POCSO Act) 2012 raised the age of consent from 16 to 18. ‘Age of consent’ is the age below which a person will be considered a child, incapable of giving consent. Women’s groups including AIPWA, as well as Verma Commttee, opposed the raising of the age of consent to 18, because it will allow young boys between 16-18 years of age, especially those from oppressed castes and minorities, to be branded as rapists and criminals. Instead we said that teenagers need discussion and education on issues of sexual contact.
· CLA 2013 continues to use archaic and sexist terms like ‘outraging modesty’, instead of terming such crimes as ‘sexual assault’ as recommended by Verma Committee.
· CLA 2013 does not recognise marital rape
· We do not support the introduction of death penalty in certain cases of rape
· We wanted the victim of sexual offences to be gender neutral – i.e we wanted the law to recognise that persons of any gender can be victims of rape by men. CLA 2013 defined victims only as women.
· CLA 2013 did not amend the Armed Forces (Special Powers) Act, 1958 and the Representation of People Act, 1951 to remove impunity for armed forces personnel and elected representatives accused of rape. Government sanction continues to needed to prosecute such men.
Moreover, we also need to understand and clarify where the rape law does not apply, and where it does.
· It is common for parents to try and file rape cases against men whom their daughter has eloped with. AIPWA never supports such ‘rape’ cases – rather, in every such case we actively support the couple and help the woman to be able to resist parental pressure.
· Is “breach of promise to marry” rape? Mrinal Satish writes, “Over the last few years, cases of “breach of promise to marry” have been coming up before courts. The perception is that the 2013 amendments criminalised such a breach of promise. They did not. If a man convinces a woman to consent to a sexual act saying that he will eventually marry her, but goes back on his promise, the act does not amount to rape. What would make it rape however, is if the prosecution is able to show that the man did not ever intend to marry her and deceived her into consenting. This has always been the position.” A woman may feel cheated, betrayed and angry if a man she has been in a relationship with, does not marry her. AIPWA should help such a woman recognise that rejection by a man does not devalue her, and that in fact pressurising a reluctant person into marriage is a recipe for unhappiness. Mere refusal to uphold a promise to marry a woman is NOT rape.
How to help and support a rape survivor?
· Never say or do anything to suggest disbelief regarding the incident.
· Never ask her, ‘Why didn’t you shout?’, ‘Why didn’t you run away’, ‘Why did you drink?’ etc.
· Do not pass judgmental remarks or comments that might appear unsympathetic.
· Appreciate the survivor's courage in speaking to you about the rape.
· Assure her – and her family members – that she is not responsible in any way for precipitating the act of rape – and that nothing she could have done caused rape, nor could she have avoided rape by doing something.
· Explain to her that this is a crime/violence and not an act of lust or for sexual pleasure.
· Emphasize that this is not a loss of honour, modesty or chastity but a violation of his/her rights and it is the perpetrator who should be ashamed.
· Assure her she will be able to resume a full and happy life in spite of the rape.
· Inform her of her rights so that she can take an informed decision as to her course of action and assure her of support no matter what her course of action – i.e even if she decides not to file a complaint with the police
· If possible, she should avoid taking a bath till she is medically examined. Clothes should be carefully preserved.
· Where the survivor is a child or an adolescent, do not blame the parents/guardians, rather encourage them to demonstrate acceptance and love for the survivor and avoid blaming anyone except the perpetrator.
Things to keep in mind regarding medical examination
· If a male doctor conducts the examination for a girl/woman, a female attendant must be present
· A trans-gender/intersex person must be offered a choice of male/female doctor
· Police personnel must not be present during medical examination. If the survivor requests, her relative can be present.
· Medical examination should take place in a separate, special room assigned by the hospital for this purpose
· Sexual Assault Forensic Evidence (SAFE) Kit should be used to collect and document the evidence gathered through medical examination
· Case papers must be marked as free by the casualty medical officer so that all treatment – including all tests – are conducted free
· A copy of the medico-legal and treatment documents must be provided to the survivor free of cost
· Medical examination requires the informed consent of the survivor, she cannot be forced to undergo medical examination
· The medical report must record observations along with ‘rationale as to why forced penetrative sex cannot be ruled out,’ even where injuries/sperm etc have not been found.
· ‘Two finger test’ must not be conducted for establishing rape; and the medical report must make no comment on the size of vaginal or anal opening, elasticity of the vagina or anus or hymen, or about past sexual experience or habituation to sexual intercourse since this is irrelevant to sexual violence.
· History of sexual violence must be properly documented, in full detail, using the proper proforma. Details such as whether or not condom was used; what body parts or objects were used to penetrate, according to the survivor; what kind of violence is reported by the survivor; etc must all be duly recorded by the doctor.
· “The issue of whether an incident of rape/sexual assault occurred is a legal issue and not a medical diagnosis. Consequently doctors should not, on the basis of the medical examination, conclude whether rape/sexual assault had occurred or not. Only findings in relation to medical findings should be recorded in the medical report.”
The detailed guidelines and protocol issued by the Ministry of Health can be accessed here http://uphealth.up.nic.in/med-order-14-15/med2/sexual-vil.pdf and are also an achievement of the December 2012 anti-rape movement.
Protection of Children from Sexual Offences Act (POCSO Act) 2012
Under this law, any person (not men alone) can be perpetrators of child sexual offences. This law defines various kinds of child sexual offences including:
· Penetrative sexual assault - i.e penetration of a child’s mouth or private parts with penis, any other body part including mouth, or any object; or making the child to insert its body parts into any adult’s body
· Aggravated penetrative sexual assault – i.e when the above acts are committed by a member of police, or member of armed forces in an area where they are deployed; or management or staff of jail/remand home etc or hospital/educational or religious institution; or by a relative of the child; or on a child below 12 years of age; or by a gang; or using deadly weapons, acid etc; or when the above acts result in severe bodily injury or injury to private parts; or results in pregnancy or HIV infection or mental illness; or during communal/sectarian violence; or when accompanied by attempt to murder or stripping and parading in public; or in case of a repeat offender.
· Sexual assault – Touching the private parts of a child or making the child touch an adult’s private parts with sexual intent, without penetration. This is what Asaram is accused of.
· Aggravated sexual assault – Similar to the circumstances cited above in ‘aggravated penetrative sexual assault’
· Sexual harassment
· Using a child for pornographic purposes
A social worker must be called by the police to facilitate the medical examination of the child survivor. The child’s statement can be recorded at home. The police officer recording the statement must not be in uniform. Detailed provisions are made to protect the dignity and safety of the child during the process of the trial.
The Act also provides for mandatory reporting of sexual offences. This casts a legal duty upon a person who has knowledge that a child has been sexually abused to report the offence; if he fails to do so, he or she may be punished with six months’ imprisonment and/ or a fine.
Protection of Women from Domestic Violence Act (PWDVA) 2005
PWDVA 2005 is a civil law – not a criminal one. It provides civil remedies and protections for survivors of domestic violence. To quote from ‘Everything You Need To Know About The Domestic Violence Act (PWDVA), 2005’ by
Malavika Ravi, September 13, 2016:
The definition of domestic violence is well written and wide-ranging and holistic. It covers, mental as well as physical abuse, and also threats to do the same. Any form of harassment, coercion, harm to health, safety, limb or well-being is covered. Additionally, there are specific definitions for the following:
· Physical abuse: Defined as act or conduct that is of such a nature as to cause bodily pain, harm, or danger to life, limb or health or impair the health or development of the aggrieved person’. Physical abuse also includes assault, criminal intimidation and criminal force.
· Sexual abuse: The legislation defines this as conduct of “sexual nature” that ‘abuses, humiliates, degrades or otherwise violates the dignity of a woman.’
· Verbal and emotional abuse: Insults/ ridicule of any form, including those with regard to inability to have a male child, as well as repeated threats
· Economic abuse: Categorized as including deprivation of financial resources required for survival of the victim and her children, the disposing of any assets which the victim has an interest/stake in and prohibition/restriction of financial resources which the victim is used to while in the domestic relationship.
“Domestic relationship” includes situations in which two persons have lived in a shared household who are
• related by consanguinity (blood relations)
• related by marriage.
• Though a relationship in the nature of marriage (which would include live-in relationships)
• Through adoption
• Are family members living in a joint family.
Basic Features of the Law
1. Apart from the victim herself, the complaint regarding an act or act of domestic violence can also be lodged by ‘any person who has a reason to believe that’ such an act was committed or is being committed. This means that neighbors, social workers, relatives can also take initiative. And the provisions of the Domestic Violence Act make sure that ‘no criminal, civil or any other liability’ lies on the informer, if the complaint is lodged in good faith.
2. The magistrate has been given powers to permit the aggrieved women to stay in her place of adobe and she cannot be evicted by her male relatives in the retaliation.
This is not all; the aggrieved woman can even be allotted a part of the house for personal use.
3. The respondent can be prohibited from dispossessing the aggrieved person or in any other manner disturbing her possessions, entering the aggrieved person’s place of work, if the aggrieved person is a child, the school. Also magistrate can bar the respondent to communicate with aggrieved person by “personal, oral, written, electronic or telephonic contact.”
4. The magistrate can impose monthly payments of maintenance. The respondent can also be ordered to meet the expenses incurred and losses suffered by the aggrieved person and any child of aggrieved person as a result of domestic violence. It can also cover loss of earnings, medical expenses, loss or damage to property.
Under Sec 22 magistrate can make the respondent pay compensation and damages for injuries including mental torture and emotional distress caused by act(s) of domestic violence.
5. Penalty up to one-year and/or a fine up to Rs. 20,000/- can be imposed under under the act. The offence is also considered cognizable and non-bailable while Sec 32 (2) goes even says that ‘under the sole testimony of the aggrieved person, the court may conclude that an offence has been committed by the accused”.
6. The act ensures speedy justice as the court has to start proceedings and have the first hearing within 3 days of the complaint being filed in the court and every case must be disposed off within a period of sixty days of the first hearing.
7. The act makes provisions for state to provide for protection officers and status of ‘service providers’ and ‘medical facility’.
8. Chapter 4 Sec 16 allows the magistrate to hold proceedings in camera “if either party to the proceedings so desires”.
Under the Act, Protection Officers should be appointed by the government in every district, who preferably should be women, and should be qualified. The duties of the Protection Officer include filing a domestic incidence report, providing shelter homes, medical facilities and legal aid for the victims, and ensuring that protection orders issued against the respondents are carried out.
The Dowry Prohibition Act 1969, Section 2 defines ‘dowry’ and prohibits it.
Section 304 IPC – deals with dowry death – in case a woman dies within seven years of marriage and there is circumstantial evidence of dowry harassment or cruelty by in-laws, this law will be applied.
Indian Evidence Act 113 A – When a woman commits suicide within seven years of marriage and when there is circumstantial evidence of dowry harassment and cruelty by in-laws, the court may find the in-laws guilty of abetment to suicide.
Section 498 A – This is the criminal law dealing with physical and mental cruelty and violence by husband or in-laws.
A controversial 2014 Supreme Court ruling disallowed automatic arrest for those accused under 498A. Arrests can only be made with magistrate’s approval now. A father of a woman killed by in-laws following complaints of cruelty, has challenged this ruling.