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
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
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.
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, 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
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
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.
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
Section 375 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
These are following below:
- Without the will of the concerned woman (in the time of intercourse)
- Without the consent of the concerned women
- If consent is there but it has been taken by threatening and fearing her
- 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
- When the girl gives her consent but, in that time, her mental condition
is not sound or at the time of intoxication.
- 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
According to the book Men Who Raped
The Psychology of the Offender;
there are three types of Rape from the perspective of criminal psychology.
are following bellow:
Anger rapistAnger rape is described as an expression of anger, rape, contempt, hated, and
frustration. The rapist instead of feeling sexually aroused got bothered and
He commits sexual assault as an expression of hostility and rage towards
women with the motivation of revenge, humiliation, and degradation
Power rapistThe 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.
Sadist rapistThe 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
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. 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
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.  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
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
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
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
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. 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’. 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.
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 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
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
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. 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
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
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. 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.
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.
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
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.
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 .
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
- 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
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.
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.
Observations of the Court:
- 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
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.
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
Baldev Singh Case:
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.
Shimbhu & Anr vs State of Haryana: 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.
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.
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
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.
The Judiciary shall formulate the saying of Krishna Iyer, J., that:
justice is not a constitutional winning event but rebellious belief which
enlivens the legislative text with revolutionary connotation; 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.
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
, 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, wherein the court gave
ample directions for the help of the victim of sexual assault, i.e;
- 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
- The victim should be provided with legal assistance either at or after
the time of registering the complaint with the nearest Police station.
- 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.
- The lists of panel advocates be prepared who are willing to legally
represent the victims.
- 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.
- The court should establish a Criminal Compensation board to determine
the monetary damages payable to the victim of rape.
- 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
- Gaurav Jain Vs. Union of India and others, AIR l997
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(20l2), accessed September 8, 20l8, www.unodc.org.
- Oxford Dictionary, available at https://www.oxforddictionaries.com/
- Indian Penal code,1860
- Section 375 IPC
- Groth, A. Nicholas, Birnbaum, H. Jean
- See the Indian Penal Code § 376
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- Judgment of the case, available at http:///www.ibtimes.com/youngindian-rape-victim-dies-look-back-mathura-another-incident-changed-rape-laws-l227l93.
- Sakshi vs. UOI, AIR 2004
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- POSCO ACT, available at https://www.financialexpress.com/india-news/what-is-pocso-act/ll40766/
- 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.
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the years, Available at https://indianexpress.com/
- 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/
- Kathua Rape Case;https://www.firstpost.com/india/kathua-rape-and-murder-case-full-text-of-chargesheet-filed-by-jammu-and-kashmir-police
- SUPRA l7
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- AIR 20ll SC l23l
- Judgement available at; http://lawfultalks.com/case-comment-state-madhya-pradesh-vs-madan-lal/
- AIR 20l3
- India Constitution, Art-21
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- l98l AIR 6l3, l98l SCC (l) 639
- l995 SCC (l) l4, JT l994 (7) l83
Award Winning Article Is Written By: Ms.Harshita Bhatt
Authentication No: MA34155179825-26-0521