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Women In Criminal Justice With Reference To Special Legislation

The phrase Special Legislation connotes a piece of legislation which applies to a particular class of person, class or thing. Special Legislation is enacted when the uniform or general law is unable to control the consequences that challenge the social order.

Hence Special Legislation has a well defined intent and an extent of operation on a specific person, class or thing it seeks to fortify. The term women's rights encompasses many different areas, making it among the most difficult areas of law to define.[2]In India the criminal jurisprudence came into existence at the time of Manu.[3]Crime against women can take different forms, depending on the socio-cultural context of different societies.

In India, a wide extent of crime is committed against women in several domains. The paramount convention which for the first time recognized such discriminatory crimes was The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) adopted by the United Nations General Assembly 1979 which is often described as International Bill for Rights of Women. India ratified the aforementioned convention on 9th July, 1993. The cardinal principle that followed was that now Special Legislation could be enacted to bring the convention in operation in pith and substance.

The stance of Supreme Court was unveiled in C. MasilamaniMudaliar and Others v. The Idol of Swaminathaswami Thirukoli and Others[4] when it reiterated a United Nation Report 1980 Women constitute half of the world population, perform nearly two-third of the work hours, receive 1/10th of the world income and own less than one-hundredth percent of world's property.

This international picture was not only astonishing for a modern world but also demanded stern action to end such order prevalent in the society. With the state of affairs goingawry, the government decided to legislate over some specific areas like domestic violence against women, indecent representation of women and consent when terminating a child. The above-mentioned are just some domains to name a few which have incidental effects.

The Universal Declaration of Human Rights also emphasized on equality in dignity and rights which are endowed. Article 1 of the Universal Declaration of Human Rights states that All human beings are born free and equal in dignity and rights.[5]Hence the plight of equality is well recognized internationally but the problem which subsists is ratification of the same.

Need For Special Legislation(S)

The Constitution of India enshrines Article 15 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to. The Special Provision for women is made to improve women's participation in all activities under the supervision and control of the State.[6]

Hence Special Provision for women is protected by Article 15(3) which does not prevent State from making any special provision for women and children. The word 'discrimination' under Article 15(1) involves a connotation of unfavorable biasness. The word unfavorable biasness was explained in the case of Narasapa v. ShaikHazrat[7]in the context that discrimination based any grounds which infringe any single or multiple fundamental rights such any act shall be deemed bad in law. The validity of the impugned acts is to be adjudged by the method of its operation and its effect on the fundamental right involved.[8]

Increasing cases of Domestic Violence against women:

could be noted in several reports published by the government or any private research entity. The constant increase in cases reported is a sign of awareness. The apex court had recognized domestic violence as a ground for divorce way back but the criminalization of the same was done only at a later stage. The 226th Report[9] of the Law Commission of India was a great leap forward in expanding the scope of Domestic Violence Act with inclusion of examination why criminal liability is necessary.

The National Crime Records Bureau has recorded the highest number of crimes committed against women during 2011-2015[10]. There are two primary reasons affixed to it, firstly the ambit of the specific and general legislations which are increasing day by day because of judicial activism and secondly, the awareness amongst women in rural India which has increased manifolddue to the efforts of the government and Non-Government Organizations. Hence to control, bifurcateand expedite such cases specific technical legislations are much required.

Surge cases of Dowry Death:

Crime Clock 2005[11] stated that in every 77 minutes one dowry death is reported. This appalling fact depicted the poor implementation of Dowry Prohibition Act, 1961 which was prevalent for over four decades. In 1986, a new offence of Dowry Death was inserted in the Indian Penal Code as section 304B by the Dowry Prohibition (Amendment) Act, 1986 (43 of 1986).[12] The flaw which was adjudicated in the case of Raju v. State of Haryana[13]that 304B of the Indian Penal Code should be supplemented with S. 302. Hence a special provision could be parallel to a general provision under the Indian Penal Code.

Denial and revocation of job on basis of gender:

The argument for anti-discrimination law can be traced from the innate provision of Article 15 of the Indian Constitution.[14] The Apex Court in Air India v. NargeshMeerza[15]held that the impugned provision that an Airhostess shall retire at the age of 35 unless the Managing Director extends the term of employment up to 10 years was held unconstitutional. The primary reasoning surfaced by the court was that it was an arbitrary, cruel and callous clause[16], which infringes Article 15(1) of the Indian Constitution.

Judicial Delays:

has been a cornerstone of our Indian Judiciary, women too face such unprecedented delays. To avoid such delays special legislation has a bar of limitation and provision for additional specialized courts dealing that subject only. The Supreme Court has defined the limitation period in which the aggrieved party is required to file a complaint. For instance under the Domestic Violence Act an aggrieved party cannot file a complaint when an alternate relief is already filed. Such alternate relief could be divorce or judicial separation. The Supreme Court has often condoned such delays; in the case of Ram NathSahu v. Gobardhan Sao and Others[17]a reference to PRS Legislative Research was highlighted in which the pendency of cases was shown. Furthermore, pendency of cases in the Supreme Court till March 2016 was around 59,595 cases.[18]

Specifics Of Some Special Legislation

Every legislative action has a motive to complement, in the arena of protection of women there are various legislative actions with a specific effect. The primary function of such legislations is to provide special protection to women from a specific gender sensitive crime.

Some important enactments to regulate gender sensitive crimes:

  1. The Protection of Women From Domestic Violence, 2005
    The comprehensive enactment describes domestic violence as actual or threat to abuse physical, sexual, verbal, emotional and economic. Every woman who is living in a domestic relationship is entitled to bring a claim under this Act. Domestic Relationship is defined under section 2(c) of the act whereas it states a relationship between two person who live or have, at any point of time, lived together in a shared household, when they were related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family living together as a joint family.

    In Preetam Singh v. State of Uttar Pradesh[19] the Allahabad High Court explained the term Domestic Violence in the pretext of this enactment, any act, omission or commission or conduct of the respondent shall amount to domestic violence if it constitutes physical, sexual, emotional or even economic abuse on the 'aggrieved party'[20].

    This enactment has clearly outlined the functions of Police officers, Service Providers and Magistrates under section 5 of the Act. Another corner stone of this enactment is the power and authority which the Protection Officers exercise under section 8. The appointment of Protection Officers is to be made by the State Government in adherence of the Guidelines issued by the Central Government. Certain conduct which the government should employ is publicity, training and protocol by advertising this act through public media.[21]

    Alternate Reliefs which could be contested by the aggrieved party:
    • Claim for compensation or damages by the aggrieved party under section 12(1). The claim has to be disposed within 60 days; this speedy method is often lauded by the higher courts which pleas for revision of such decrees are being contended. Often in the hastiness to dispose the application within 60 days the merits of the case is not given due consideration.
    • Women's right to reside in the shared household. The aggrieve party may continue to cohabit in the shared household as a matter of right, guaranteed by section 17 of the Act.
      In Nishant Sharma v. State of Uttar Pradesh [22]the court adjudicated upon the ambit of section 17 and held that it shall extend to the joint family residence which is stated as 'Shared Household'.
    • Application for matrimonial relief under section 20 of the Act. The aggrieved party through an application may demand the costs incurred by loss of earnings, medical expenses and loss of property. Furthermore nothing shall restrain the aggrieved party to claim maintenance under section 125 of Criminal Procedure Code, 1973.
  2. The Immoral Traffic (Prevention) Act, 1956

    The Apex court in Vishal Jeet v. Union of India[23] explained the term Immoral Traffic in the pretext of this enactmenta flesh trade which is an attempt to malign the moral and societal values[24].

    The objective of this act is to curb and abolish traffic of women and children who are compelled to enter into flesh trade as an organized means of living.[25]

    This act has distinctly made comprehensive provisions about punishment of keeping a brothel and earning a living by practice of prostitution. Section 3 of the Immoral Traffic Act dwells with the same, any landlord, owner or lessor who has adequate knowledge that his/her premise is being used for such immoral purpose shall be punished in accordance. However, knowledge and willful gainmust be proved in such allegations leveled.[26]

    A provision of corrective institution is also instilled in the act. Section 10 of the act specifies about offenders who are charged under section 7 and 8 have a stipulated period of2 years but not more than 5 years to stay at a corrective institution. The primary intent to set up a corrective institute is to rehabilitate and empower the women with a skill set which suffices her living and for children secondary or higher secondary education is given utmost importance.
  3. Dowry Prohibition Act, 1961

    The dowry system can be traced back to the seventh form of Hindu marriage known as Brahma Marriage. Lord Brahma explained the concept of dowry as a gift of personal belongings to the newly wed girl.

    This gift of her personal belonging would make her feel comfortable in her matrimonial home and help her to initiate a bond with the new vicinity. Though the interpretation changed with the changing times, in the late 20th Century dowry meant the valuable security which the newlywed girl brings from her parental home. The enactment contains only ten sections with specifically deal with dowry and the punishment for abetting or committing such crime. The act prohibits giving or taking of dowry.[27]

    • Supplement of Indian Penal Code S.406& 498A with S. 3 & 4 of Dowry Prohibition Act, 1961.
      The State often levies the abovementioned sections in a complaint of dowry and prosecutes the accused parties accordingly. These supplementary sections are imposed because there is a presumption that harassment for dowry is equivalent to solicit taking of dowry.

      Hence every complaint of dowry will fall within the ambit of this act. The statement of objects and reasons for the enactment of the Dowry Prohibition Act, 1961 would reflect that the Act is enacted to prohibit the evil practice of giving and taking dowry.

      However, while dealing with the salient features of the Act that introduced the amendment[28], it has been stated that the statement made by the person aggrieved by the offence shall not subject him to prosecution under the Act.[29]
      These are some enactments which specifically deal with women and crimes to which they are subjected.

Low Conviction Rate In Crimes Committed Against Women

The social wrong theory[30] postulates that criminal law originated as a rational process of unified society. In 2016, all the crimes reported against women resulted in a miniscule 19% conviction rate.[31]The Ministry of Home Affairs, Government of India had furnished the specifics on 8th August, 2017 while answering an unstarred question.[32] The total cases registered by women were 3,40,826 and the conviction rate was mere 21.3% which even drops down when a convict contests an appeal.[33]

The low rate of conviction raised few concerns about the high pendency of cases, low pace of trails and poor assistance provided to women. The Legal Service Authorities Act, 1987 envisages special emphasis towards women who seek legal aid.[34] In spite of such efforts by the State the implementation is deficient. Some grey areas were addressed by the J. S. Verma Committee while prescribing certain amendments were the onus of proof was to shift and presumption of the crime was to be presumed.

The Indian Evidence Act, 1872 was amended by inclusion of S. 114A[35] which presumed absence of consent in case of prosecution for rape. Furthermore the amendment[36] prohibited character assassination of the prosecutrix in cases of rape under section 376 of the Indian Penal Code, 1860.
The Special Legislations have undoubtedly supported a framework which mitigates special support to women in reporting such crimes.

The foremost difficulty woman in India face is pursuing a matter in court, specifically once the report/complaint is filed. Statistically, out of every 10 cases relating to Dowry only 1 case is sentenced.[37] These numbers depict the flaws in implementing the ease that such legislations promise. The severity of the crime against women is not given due weightage as the misuse of such provision is often speculative.

The plight of women in criminal justice system has undoubtedly empowered women to file and contend all of her causes including a cause in which the State is also a party.

Specific Contrivance Or More Enactments?

Specific contrivances mean scope for implementation of various existing provision, specifically contemplated for protection of women. According to the Criminal Belief System, crime is a never ending interaction.[38] The main cause for such interaction is an ill motive supplemented with an action which society deems more than a civil wrong. Certainly, in India not many gender specific laws were enacted prior to independence essentially because the stature of women was widely accepted by the society. The perception of the society evolved through judicial activism, when the Judges encompassed the meaning of dignity and fraternity inscribed in our constitution.

Such interpretations came in the light of social evils like dowry, child marriage, immoral traffic etc, which violated dignity and fraternity of women who ought to be protected by the constitution of India. Then slowly and steadily more such provisions to uphold their dignity were framed and enacted. Such legislations had a specific purpose which was to be achieved. Till, 2016 there are 7 primary specific legislations[39] and several specific provisions contained in the general legislations[40] added through Criminal Amendments.

Though the Supreme Court in the case of Rajesh Sharma &ors v. State of Uttar Pradesh & Anr[41], stated in clear terms the misuse of 498A[42] of the Indian Penal Code which was rampant. Therefore to prevent such misuse the Apex Court framed guidelines and specified the ill-use by the women and her relatives as a tool for extorting a demand.

The foremost problem with more such enactment would be an implementation of the same; the clear motive of the legislature may sway in helping the mala fine intention of the victim who prima facie appears to be the aggrieved party. Hence the need for the hour is more such guidelines and rules of procedure in implementing the existing special provisions for the protection of women which specifies the method of trial and relief under such special circumstances.

Special Laws in India have undoubtedly helped in addressing the crimes committed against women, which were increasing in spite of exhaustive legislation which subsisted throughout. The general legislations like the Indian Penal Code, 1860 are age old and does not inculcate the special needs of women like bar of limitation and legal aid because of such lacuna's in general legislation the special laws are preferred.

The reason for such special treatment and consideration towards women lie in the plight of women in criminal justice system which is much feeble when compared to men. However, there still exists a wide gap between the goals enunciated in the Constitution, legislation, policies, plans, programmes, and related mechanisms on the one hand and the situational reality of the status of women in India, on the other.[43]

The Criminal Guilt, states that committing a crime is one thing and proving the same is entirely another thing. The primary flaw which thrives in Indian Lower Judiciary is proving a crime through the trial and error mechanism which could be influenced by various factors, to control such factors and to give due benefit of doubt to the aggrieved party we have special legislation. Special legislations cannot be replaced or repealed in such newfangled times, though the judiciary needs to ensure that the ambiguity which leads to intentional misuseceases. Such an ideal could only be achieved by judicial activism and a restraint on judicial overreach.

Special laws like Protection of Women from Domestic Violence Act, 2005, Sexual Harassment of Women at Work Place Act, 2013 are much needed in contemporary times as it prioritizes the concerns of the society towards such social evils. Collaterally, the amendments in general laws should have a specific procedure, as any ambiguity could benefit the party guilty of such offence.

  1. *
  2. Diane Rosenfled, Women Right's Guide, Harvard Law School's, p-4 (2007).
  3. See Manu Institutes of Hindu Law Chapter VIII, on 'Judicature' and on 'Law, Private and Criminal', pp. 44, 380.
  4. MANU / SC / 0441 / 1996.
  5. Office of the United Nations High Commissioner for Human Rights, Article 1,(16th Dec., 2017).
  6. M.P. Jain, Indian Constitution Law, 7th ed. 2010, p. 940.
  7. AIR 1960 Mys. 59.
  8. M.P. JAIN, INDIAN CONSTITUTION LAW, 7TH ed. 2010,p. 933.
  9. Law Commission of India, Report No. 226, (17th December, 2017, 04:22 AM).
  10. National Crime Records Bureau, Report 2015, (17th December, 2017, 6:18AM).
  11. National Crime Records Bureau, Crime Clock 2005, (17th December, 2017, 7:18AM).
  12. K.D. Gaur, INDIAN PENAL CODE, 5TH ed. 2013, p. 552.
  13. AIR 2011 SC 568.
  14. VikramShroff, Indian Laws on Employee and Workplace Discrimination and Harassment, Volume 16 No. 2, 15
  15. AIR 1981 SC 1829.
  16. Dr S.C. Tripathi, WOMEN AND CRIMINAL LAW, 1ST ed. 2015, p. 17.
  17. Civil Appeal No. 1110 of 2006.
  18. The Supreme Court of India, Court News, Vol. XI Issue 1, Jan.-Mar.,2016.
  19. 2012 (8) A.D.J. 744 (All).
  20. The Protection of Women from Domestic Violence, s. 2, cl. a.
  21. Dr S.C. Tripathi, WOMEN AND CRIMINAL LAW, 1ST ed. 2015 p. 144.
  22. 2012 (6) A.D.J. 759 (All).
  23. AIR 1990 (3) SSC 318.
  24. Id at 7.
  25. Dr S.C. Tripathi, WOMEN AND CRIMINAL LAW, 1ST ed. 2015 p. 216.
  26. Ram Kali v. A.C. AgarwalAndAnr, 1964 CriLJ 722.
  27. The Dowry Prohibition Act, 1961, The Preamble.
  28. Act 43 of 1986(Amendment).
  29. Ajita David v. State, Crl. R. C. No 600 of 2008, p. 7.
  30. Sutherland,op.cit.,pp. 9-11.
  31. Shreya Shah, India Spend, December, 2017, 8:18AM).
  32. LokSabhaUnstarred Question No. 3619http:// (19th December, 2017, 10:40AM).
  33. Ibid.
  34. S. 4(m), The Legal Services Authorities Act, 1987.
  35. The Criminal Law (Amendment) Act, 13 of 2013.
  36. Section 146 of the Indian Evidence Act, 1872: Questions in Lawful Examination: when a witness is cross examined, he may be asked any question (Provided if the offence under section 376(1), 376(2), 376(A), 376(B) or 376(C) it shall not be permitted to adduce evidence or to put such questions in cross examination.
  37. Supra note 33.
  38. Criminal Belief System: An Integrated And Interactive Theory Of Lifestyle, p.78.
  39. National Commission for Women, (20th December, 2017, 11:40PM).
  40. Provisions in the Indian Penal Code,1860, 304B, 326A, 326B, 498A etc.
  41. Criminal Appeal No. 2013 of 2017.
  42. 498A. Husband or relative of husband of a woman subjecting her to cruelty.�Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
  43. Dr.SabaYunusandDr.SeemaVarma, Legal Provisions for Women Empowerment in India, Vol. 3 Issue 5, International Journal for Humanities and Management Sciences.
Award Winning Article Is Written By: Mr. Suyash Rastogi-Student, Amity Law School, Noida, Final Year 2016-21

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