Sexual Offences against Women: A feminist critique of Indian Law

    The Indian Society has always been criticized for following social norms that are patriarchal in nature. This essentially means that the society has always given men the power and right to control the manner in which the society operates. This notion of gender inequality prevalent in the society is antithetical to the fundamental rights guaranteed by the Constitution of India. According to Article 14 of the Constitution[1], everyone (including women) is equal before the law. Article 15 states that no citizen can be discriminated against on the basis of religion, race, caste, sex, place of birth or any of them.[2] However, laws cannot provide equality when the roots of such laws are based on inequality, operating on unconscious bias. The work of feminist legal scholars has been seminal in analyzing such laws and fighting to make them free from gender bias. Since patriarchy is a political ideology that is justified by law and legitimized by criminology, it is imperative to call out such criminal laws to address and change such laws, in order to bring gender equality.

    Feminist scholars in India have played a major role in bringing amendments to laws pertaining to sexual harassment and rape, making them more woman-friendly, however, the continued cases of sexual harassment and rape and lower conviction rates show that these laws have only existed on paper and lack implementation.

    The objective of this article is to critique the criminal laws of India pertaining to sexual offences from a feminist perspective. In order to do the same, it takes into account two major provisions governing the crime of rape and sexual harassment of women at the workplace. Part 1 of the article focuses on tracing the evolution of the Sexual Harassment Act, 2013, and then pointing out its failure. Part II of the article carries out the discussion on the rape law of the country and how it has continued to portray bias against women. In the end, part III of the article tries to put forward certain solutions in order to make these laws gender-neutral.

    Analysis

    There has been a long history of engagement of feminist scholars with criminal laws in India. Feminist legal scholars have played a major role in reforming the Indian criminal laws, specifically pertaining to crimes of sexual harassment and rape. Since what amounts to crime and what not depends on the functioning of a society, laws pertaining to sexual harassment and rape in India are a reflection of the imbibed gender inequality in the Indian Society. The notion that women are subordinate to men and form the weaker group in society has been prevalent in India. Feminists have tried to counter this and have been successful to a certain extent in bringing changes in the laws, which gives validity to such notions. One such law that the feminists have rejected because of it being outrightly patriarchal is the law relating to the crime of rape. Feminist scholars have been on their toes in demanding changes in how the law is made applicable. However, even after the incorporation of various measures through amendments, the laws still suffer from gender inequality. According to feminist legal theory, the law has played a prominent role in continuing such a notion.[3] Feminist scholars have aimed to critically study the laws that have been chiefly patriarchal and understand the impact of such a law in the subjugation of women and bring about changes in such laws to uplift the status of women.

    However, these changes so brought about in the laws have not translated into reality, providing justice to women or changing the belief that women are not subordinates of men. The article mains at discussing the changes brought about in the law but how they still are not sufficient to change the thought process as to the status of women in society. This is done by tracing the evolution of the laws pertaining to the crime of rape and sexual harassment in India and then highlighting the drawbacks of such laws that do not weaken the belief in the society but, in reality, strengthens it. However, this does not mean that the efforts of feminists have gone to waste and that it does not make sense to keep fighting to improve the law. What it means to depict is that a more challenging task or opportunity lies in front of Indian feminists to fight the deep-rooted biases prevalent in the society and fill the gap between the law as given in the book and law in action.[4]

    Sexual Harassment of Women at Workplace, 2013

    In India, the Sexual Harassment of Women at Workplace Act, 2013[5] was enacted, keeping in view the rights of women to equal opportunity to work. Sexual Harassment has been a major deterrent for women to not avail of this opportunity. The Indian feminist struggle to recognize such harassment at the workplace was a major win for them, however, the truth is that this act has only been able to provide formal equality and has not been able to reach the level of substantive equality.

    The 2013 Act was passed after the Vishaka Case[6] came to the fore, where a woman was brutally gangraped for resisting a child marriage. It was a landmark case in the rape jurisprudence as the Supreme Court of India declared that this was a violation of the women’s right to equality and the right to practice any profession. The court held that in pursuance of international conventions such as CEDAW[7], women possess the equal opportunity to work without any hindrances. Thus, the court adopted guidelines, which are also known as Vishaka guidelines to counter cases of sexual harassment at workplace. Though the act was an essential step in acknowledging women’s problems, however, it failed to tackle the deep-rooted social perceptions prevailing in Indian Society. Even after the provision made to counter sexual harassment, women still face a massive amount of discrimination and harassment, curtailing their rights and capabilities. The reason for not being able to provide substantive equality to women or not been able to acknowledge the problem of sexual harassment lies in the social perception of the law on which it is based. Section 2 of the Act[8] describes the instances which can qualify for sexual harassment. The main element to prove in these cases is unwelcome Act or behaviour.[9] However, in a number of cases, it has been observed that the courts have accorded a lot of weightage to the domestic status of women. The perception prevailing is that a woman, who is unmarried, would be a virgin. If she is not, it is an indicator of her character and thus, sexual harassment cannot occur against such a woman. Basing the outcome of a case on sexual morality, the courts have gone ahead to strengthen the notion that only a woman who is married can be sexually active. Basing the outcome of a case on a woman’s virginity, is nothing but a portrayal of the notion that women are not the controllers of their sexuality. It is the institution of marriage that can be a determinant factor for their sexuality. Thus, the morality and chastity form an integral part of the court’s interpretation of what constituted “unwelcome” advances amounting to sexual harassment.[10]

    Failures of the Act

    One of the failures of the Act is to recognize that in a setup where there is already a gender disparity in the sense that only a handful of females are involved in the work sector, it is important to provide them with protection from any untoward or unwelcome gesture. However, most of the time, it is the women who are the employee and the harasser, the employer. With such a power dynamic at play, such preconceived notions about a woman’s sexuality, only causes the women to be tagged as rowdy or mischief-makers. In such a scenario, most women do not report the sexual harassment that has happened or is happening against them in the hope that the harassment would one day miraculously stop. The Act also suffers from non-inclusivity as it only caters to the needs of privileged women who have the means to fight the legal battle. The general view is that sexual desire or the lust of men causes them to commit sexual harassment against women. However, this is not entirely true. A number of times, cases of sexual harassment cannot be linked to the sexual drive of the man. Sometimes, men are involved in sexually harassing women in order to preserve their dominant workplace position and related sense of manhood.[11]

    Rape Laws in India: Section 375 of the Indian Penal Code[12]

    The feminist movement to alter and reform the law governing the crime of rape in India can be traced back to the 1980s.[13] Before the 2013 amendment, a very narrow definition was given to the crime of rape. According to the provision in the IPC, the definition of rape only included penile-vaginal penetration. Thus, it only involved non-consensual sexual intercourse by a man. Keeping such a strict definition of what constituted a rape of a woman clearly indicated the prevailing bias towards men. The law clearly prioritized the protection of a man’s right to defend himself as a legitimate father than the right of women over their own body.[14] The mentality of focusing on the rights of a man over that of a woman, even when the crime could only be committed against the woman was a clear indication that women are subordinate to men and are trying to find equality in a man’s world. The Mathura rape case[15], which struck the consciousness of the Indian population, can be regarded as the first case which showed the fallacies in the rape law and the bigoted atmosphere of the court of laws. It was a case of custodial rape where rape was committed by policemen on a tribal girl. The court acquitted the accused on the pretext the girl had consented to the act as no injury marks denoting resistance by the girl were found. The court’s reasoning was based on the fact that non-consent could only be gauged when the women protested to the act and suffered injuries in doing so. However, this judgement was highly criticized. This led to the passing of the Criminal Law Amendment Act, 1983[16] which brought about certain changes in the Indian Penal Code and the Indian Evidence Act, 1872.[17] However, the change in laws did not result into lesser such instances, higher conviction rate or a change in the thinking of the courts towards the victim of rape. A number of gruesome cases came to light over a span of years including Aruna Shanbaug case[18], Bhanwari Devi Rape Case[19] etc. The laxity shown by the court of law and the inability of the judges to understand the plight of the victims in these rape cases were a clear portrayal of the systemic misogyny embedded in the Indian Society. Since the determination of what constitutes a crime and what not is dependent on how the society functions, criminal laws are nothing but a manifestation of the notions of the society. Women have always been subjugated, be it in the public sphere when it came to getting equal rights to participate in the democratic system by getting the right to vote or be it in the private sphere, to be treated equal to their male counterparts. In the subjugation of women, law has played a major role.

    The law pertaining to rape saw a significant change in the aftermath of the Delhi Rape Case.[20] The Nirbhaya case saw a public upheaval against the gruesome crime of rape. The case was the driving force for the passing of certain crucial amendments to laws pertaining to sexual offences. The Criminal Amendment Act, 2013[21] brought a series of amendments which were much awaited. The first and foremost was the expansion of the definition of rape. Section 375 of the IPC was amended to include other possible scenarios as well. Section 375 now entails that an incident would be called rape when there is “penetration of penis, to any extent, into the vagina, mouth, urethra or anus of woman”[22] The section was also broadened as it now included non-penile penetration also.[23] The amendment can be seen as a big win for the Indian feminists as it was a way towards recognizing the right of women to bodily integrity.

    https://legalreadings.com/increase-in-unreported-crimes-in-india/

    Failures of the provision

    The Nirbhaya gang rape case[24] struck the conscious of the entire nation and became a cause for the Indian population to join hands with the feminist scholars to demand for amends to the laws in order to make them conducive to accommodate the real problems of sexual violence faced by women. The Justice Verma Committee was appointed to recommend amendments to the criminal laws of the country relating to sexual offences. The committee under the aegis of Justice Verma, recommended a number of changes in laws governing the same. The committee explicitly mentioned that the failure of government was the root cause for the precipitation of such crimes.[25] The committee recommended the expansion of definition under section 375 of IPC, as discussed above. The committee also found out that rape and other cases of sexual assault were not only crimes of passion but were also used as a means to display power.[26] Some of the major reforms suggested by the committee were the criminalization of marital rape. The committee discussed how the Indian Penal code distinguishes between rape within and outside marriage.[27] The committee recommended that the exception of marital rape should be removed.[28] However, the Supreme Court, while adopting certain recommendations, willfully ignored the recommendation to do away with the exemption.

    The 2013 rape case brought in a plethora of reforms in the criminal system, making it more female friendly. A superficial shift in the approach of the courts was visible while bringing in changes to the law. However, in reality, the court made it very prominent in their thinking. The decision to not criminalize marital rape, was a clear display of the thinking process of the courts. The court by doing this, provided impunity to the institution of marriage, family, public servant, army and police.[29] This was widely criticized by women organizations, however, till date the Supreme Court has failed to remove the exception.

    The inability of Indian courts to acknowledge that marital rape is also rape shows how the court and the society continues to see women as subordinate to men. Non criminalization of marital rape runs on the presumption that the sexuality of women and the institution of marriage are closely intertwined. A marriage gives the right to the man to assume implicit consent on the part of the wife. Making marriage an equivalent of consent also gives a clear indication as to the approach of the court in deciding cases of sexual offences. This gives rise to the presumption that only the women who are married or those who are unmarried but are virgins are only protected by the law. The law blatantly ignores the freedom of choice of the women to be sexually active before marriage. The linking up of marriage with consent and in turn with the chastity of the women has often led to denial of women’s right to sexual autonomy over their body, denying them to live a life with dignity. Such a presumption reduces the women’s body to a mere piece of property, which before marriage was under the possession of the father and after marriage, become the property of the husband.[30]

    What can be done?

    Criminalizing marital rape

     The first and foremost step that should be taken by the courts should be to implement the recommendations of the Justice Verma Committee to criminalize marital rape. The message sent out should be that women have complete autonomy over their sexuality and their consent is not contingent on the relationship they share with any man.

    Gender Neutrality of Rape Law

    The crime of rape should be made a gender-neutral crime, in terms of both the victim and the perpetrator. Being a crime committed against only one gender, many times it is taken as a disadvantage to that gender. Men commit this crime not just because of their sexual desire but also as a show of power. By making it a gender-neutral crime, men would not commit rape to show their dominance over women. The crime would then be seen as a crime and not as a privilege.

    Giving women the opportunity to form laws for themselves

    Indian Judiciary as well as the government suffers from underrepresentation of women. Half of the Indian population consists of women. Thus, special provisions should be made for women for representation in parliament. Women would be in a better position to formulate laws for themselves as they have better understanding of the discrimination meted out to them and also lived experiences of such discriminations.

    Targeting the root causes

    The root cause, as identified by the Justice Verma committee was the failure of the government to fight the prevailing bias against women. The state governments try to deny the allegations of sexual harassment cases in their states in order to hide their inability to do away with such pre conceived notions against women. The governments find it convenient to not acknowledge the inherent bias in the society and try to portray instances of sexual harassment as isolated incidents of violation of general law and order as this would cover up their defeat of not being able to bring parity and uplift the status of women. The focus of governments is then to hide their inability to fight the root cause of the existing bias in their tenure of 5 years. In order to hide its defeat, it will call for CBI enquiry, establish fast track courts so that it appears that the government has been a success and has done everything in those isolated incidents. However, what is needed is that the focus should be to identify the reasons for the bias and fight these biases. The covering up of the problem rather than delving into the root causes of the violation, this entire scheme is to subject human beings to planned suffering by covering it with the idea of a misfortune. The recent Hathras rape case is one of such incidents where the government, along with the police and administration have outrightly denied the chance of sexual assault on the women in order to hide the prevalent gender as well as caste divisions prevailing in the society.

    Conclusion

    Women, not only in India but in most countries across the globe, have been considered the “second sex” meaning that the rights of men are always given priority over women’s rights. Women have a history of being subjugated. This is evident from the various restrictions put on women. The male domain is protected by the wielding of real power- economic, physical, psychological and emotional. In law, it is protected by doctrines of consent, corroboration, fresh complaint, and provocation.[31]

    Women are denied a myriad of rights such as the right to vote, the right to work, etc. In the domestic set up, they are designated to take care of the family and do unpaid work. In India, a bias has always been in existence against the women, questioning their capabilities and always measuring them in accordance with their male counterparts. Indeed, men and women are not biologically the same; however, this cannot be a valid reason for outright discrimination against a class of people. Even after being provided constitutional protection, women in India face a lot of discrimination at the workplace or in the domestic sphere. Laws have been imperative in the upliftment of women; however, what it appears from the study of such laws is that the notions against women are still prevalent. What is required is that the root causes of such preconceived notions are analysed and laws inherently discriminatory in nature be abrogated or amended to cater to the women’s needs. What is essential is that women’s rights are not only guaranteed in theory but also practice.

    REFERENCES

    [1] The Constitution of India,art. 14.

    [2] The Constitution of India,art. 15.

    [3] Martha Fineman, “Feminist Legal Theory” 13 Journal of Gender, Social Policy and the Law (2005).

    [4] Sharon Cowan, “Sense and Sensibilities: A Feminist Critique of Legal Interventions against Sexual Violence”,23 Edinburgh Law Review 22 (2019).

    [5]The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act. 14 of 2013).

    [6] Bhanwari Devi v. State of Rajasthan 1997(1) WLC 42.

    [7] Convention on Elimination of Discrimination of Women, 1979.

    [8] Supra note 5, s.2.

    [9] Ibid.

    [10] Nivedita Raju, “Beyond ‘Sex’ in Sexual Harassment: A Feminist Critique of the Indian Sexual Harassment Act”, 27(3) Indian Journal of Gender Studies 433 (2020).

    [11] Ibid.

    [12] The Indian Penal Code, 1860 (Act 45 of 1860), s.375.

    [13] Flavia Agnes, “Law, Ideology and Female Sexuality”Economic and Political Weekly, Mar.2, 2002.

    [14] Ved Kumari, “Gender Analysis of Indian Penal Code”, Engendering Law 139 (1999).

    [15] Tukaram v. State of Maharashtra AIR 1979 SC 185.

    [16] The Criminal Law (Amendment) Act, 1983 (Act. 10 of 1983).

    [17] Suchi Jain, “Critical Analysis on Mathura Gang Rape Case” ISSN 2581-5504.

    [18] Aruna Shanbaug v. Union of India (2011) 4 SCC 454.

    [19] Supra note 6.

    [20] Pawan Kumar Gupta v. State of NCT Delhi 2020 SCC Online SC 340.

    [21] The Criminal law (Amendment) Act, 2013 (Act. 13 of 2013).

    [22] Supra note 12.

    [23] Ibid.

    [24] Supra note 20.

    [25] Prasad Sanyal, “Recommendations of the Justice Verma Committee” NDTV,  Jan. 24, 2013, available at:

    https://www.ndtv.com/cheat-sheet/recommendations-of-the-justice-verma-committee-10-point-cheat-sheet-511292 ( last visited on December 20,2020).

    [26]Justice Verma  Committee Report Summary, available at

    https://www.prsindia.org/report-summaries/justice-verma-committee-report-summary(last visited on December 20,2020).

    [27] Ibid

    [28] Justice J.S Verma Committee, “Report of the committee on Amendments to Criminal Law” (January, 2013).

    [29] Nivedita Menon, “The Impunity of Every Citadel is Intact” Outlook India, Feb. 3, 2013, available at:

    https://www.outlookindia.com/website/story/the-impunity-of-every-citadel-is-intact/283779 (last visited on December 19, 2020).

    [30] Alexandra Wald, “What’s Rightfully Ours: Toward a property theory of Rape”,30 Columbia Journal of Law and Social Problems 459 (1997).

    [31] Torrey Morrison, “Feminist Legal Scholarship on Rape: A Maturing Look at One Form of Violence against Women.”, 2 William & Mary Journal of Women and the Law 35, (1995).


    BY SWENA PRASHANT | WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCES, KOLKATA

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