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Crimes Against Women And Child Vis-a -Vis Administration Of Criminal Justice In India: An Analysis Of The Role Of Judiciary

The issue of crime against any person requires analysis from different dimensions. The term 'crime' signifies disturbance and horrific experience. Anyone who keeps regular updates of the happenings taking place in the Indian society will necessarily notice news relating to crime against women and children both in print and electronic media.

It may be gang rape of a woman, outraging the modesty of women, sexual harassment on women at workplace or any other crime involving women and children, are noticed. There may be unreported cases also whose number may be anybody's guess as there is no accurate reliable data or information available in this regard.

However, it is evident that the violence against women continues to dominate in the Indian society. The low rate of conviction is testimony of the fact that there is a problem of proof. It makes all of us to think seriously and find out a way forward for the prevention of crime and assessment of the role played by various organs of the government. In this connection the role of law enforcement machinery becomes vital, particularly the role of judiciary.

There is a reference in the available literature that the women are held in high status in the ancient period. But due to changes in socioeconomic conditions and evil customs and traditions, treatment given to women had been fast changing for worst. It is equally true that women empowerment not being done on the Indian ethos is also contributing factor for such a scenario. The problem of violence has always created challenge for human beings. If it did not produce strong feelings in us, Michael Nagler says we are not to be considered ourselves as fully human.[1]

He discusses about new model of human relationship wherein he calls all violence is a disorder of human relationship.[2] He points out that downstream solution will not bring permanent solution to the problem. The main cause for violence and crime is separate package of physical and mental life we have, cut off from one another by the very laws of time and space, which he called it as Me-ism.

This propounds the principle that all peace derives from individuals who learn to feel at one with progressively wider circles of humanity around themselves. This is very much in conformity with Confucius model.[3] Such an introductory treatment may look like impracticable, but there is nothing wrong in giving people with such awareness which can bring down certain degree of violence.

Crime vis-� -vis Constitutional Policy and Gender Justice
Socially determined gender is different from biologically identified sex. In matters like enjoying human rights, access to basic facilities, sharing of benefits and opportunity for participating in decision making process, there is a bias against women. Gender justice ensures protection from the exploitations by the dominant gender. Indian constitution has provided adequate measures for attaining gender justice.

Despite the flourish of constitutionalism which has contributed towards empowerment of women, we find the commission of crime against women being reported day in and out. It is estimated that 35 per cent of women worldwide have experienced either physical and/or sexual intimate partner violence or sexual violence by a non-partner at some point in their lives (UN Women, 2016).[4]

Violence is understood as a loss of control of aggressive impulse leading to action (Shengold 1999:xii). The main focus of violence should be against individuals and not against objects. According to scholars the roots of violence are linked to a developmental failure to conceptualize one's own and other people's states of mind.[5] Violence is always opposed to reason and tolerance, and undermines human rights and welfare.[6] In this context it is pertinent to note the statement of Justice Dr. A.S. Anand .

He observed, of late there has been an alarming increase in cases relating to harassment, torture, abetted suicide and dowry death of young innocent brides. This growing cult of violence and exploitation of the young brides, though keeps on sending shock waves to the civilized society whenever it happens, continues unabated. There is a constant erosion of the basic human values of tolerance and the spirit of live and let live. Lack of education and economic dependence of women have encouraged the greedy perpetrators of the crime.[7] Women have been bearing the brunt of discrimination in all spheres of life.

The crimes against women are dealt under the general law like Indian Penal Code and special statutes enacted to deal with specific crimes like dowry and domestic violence. It will be always beneficial to analyze trends of legal development in these spheres from the perspective of promotion of gender justice and a desirable change. As it is well known that the rate of crime is increasing in India, if any one refers to the relevant data available in public domain. Among different heads of crimes, near about 44% of crimes are falling under cruelty by husband and other relatives, next comes crimes like molestation, kidnapping and abduction and rape in the decreasing order respectively.

Judiciary and crime against women:
Judges trying cases involving children and women should exhibit great sense of care and responsibility. They should also be sensitive to such cases. But this has not always happened not only in the lower courts but even in some of the high courts and unfortunately even in the Supreme Court.[8] In case of State of Punjab v. Gurtneet Singh, the court observed that the crime against women is on the increase and it is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. In this context, the judiciary should shoulder higher responsibility and deal with such cases with utmost sensitivity.

The infamous ruling of the Apex Court in Tuka Ram case (Mathura rape case) in the late 1970s where in two policemen had raped a 16 year old illiterate tribal girl in the police station while on duty, who were acquitted on the ground that she might have consented, became the catalyst for the nationwide anti-rape movement. The decision led to the amendment of the Evidence Act in 1983, allowing the women's word to be trusted for absence of consent on her part.

Similarly, the Criminal Law (Amendment), 2013, is the outcome of the 2012 Delhi gang rape case and passing of the Sexual Harassment of women at Workplaces Act, 2013, was the result of Vishakha case. This trend shows the judiciary's role as an eye opener for the legislature to fill the gap in the law.

We have also seen the constitution of the Committee (Justice Verma ) after gang rape of young women in public transport in the nation's capital. This incident is evident of lack of safe environment for the women in the country. This incident led to the formation of public opinion which became base for the further amendments in the Criminal Law.

In Vijaya case[9] the Court observed: …while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the Court to reject the evidence in its entirety.

In Chhotey Lal case[10] the Supreme Court made the observation that delay in lodging FIR cannot be the ground for acquittal of accused, if the delay is reasonably explained. The same view was reiterated in Om Prakash case.[11]In Madan Lal case[12] the Court denied the conception of out of court compromise in serious offences like rape. In Prakash Singh and Ors case[13] the Court issued important directions to the governmental instrumentalities for compliance till framing of the appropriate legislation towards police reform.

Hathras case and amid massive outcry against it, UP Chief Minister Yogi Adityanath ordered a CBI probe into the alleged rape and murder of a Dalit Woman recently, shows the bad state affairs concerning the rule of law, despite their being democratically elected government in place. In the report of the Committee on amendments to Criminal Law, it was mentioned that the actions of those who are in authority have been in conflict with the constitutional theory under which citizens of India are entitled to equality.

It is often stated that a woman who is raped under goes two crisis, the rape and the subsequent trial. The first seriously moves her dignity and the second subjects her to traumatic experience. All must agree with observation of the 42nd Law Commission regarding the purpose of the criminal law is that it is the chief legal instrument to prevent anti-social acts of a serious character.

The object is sought to be achieved in the first place by the legislative command by embodying the general deterrence aspect of punishment. The fact that the particular criminal act has been committed shows that the object of deterrence has failed to prevent that particular criminal act.

In, EERA through Dr.Manjula K. v. State (NCT Of Delhi) And Ors[14] the court observed that the word mental cannot be read into s.2(1)(d) of POCSO Act, 2012 as that would violence to intent and language of Parliament. The scope of the act is to protect childhood and youth against exploitation and to ensure that children are not abused in any manner. The court also held that Special Court has power on its own or on application pass interim order for grant of compensation to meet needs of the child for relief or rehabilitation at any stage after registration of FIR or to recommend for award of compensation by State where accused is not traceable or dead.

In, Rajesh Sharma & Ors. v. State of U.P. and Another[15] the court observed that there is need to check tendency to rope in all family members by making omnibus allegations to settle matrimonial disputes and safeguard against uncalled for arrest and insensitive investigation.

In Exploitation of Children in Orphanages in State of T.N.,In re v. U.O.I. and Others[16] the problem of sexual abuse of children was considered. The important directions were issued for the care and protection of interests children. The directions include, minimum standard of care as required by the JJ Act and model rules made under it, is to be taken by the government instrumentalities, schemes framed for the benefit of children must be properly implemented.

In Ram Jawaya Kapur Case the court observed that a modern State is expected to engage in all activities which are necessary for the promotion of the social and economic welfare of the community. The report of the Committee on Amendments to criminal law suggests that India requires de facto equality, freedom from superstition and renunciation of tradition and practices which are completely at variance with the Constitution, if it wants to get rid of crimes against women and children.

Acid attack:
In Ravinder Singh v. State of Haryana, husband was charged under sec.307 of IPC for pouring acid on his wife which led to her death, for which he was not punished severely and many other cases show that the heavy punishment is not given to the culprit as it may fail to show deterrent effect on the future law violators. But after Laxmi Agarwal Case, the scenario has changed. The court has laid down some important guidelines like minimum compensation of Rs. 3 lakhs should be paid within 15days of occurrence of such incidents. In this field restorative justice can play pivotal role in providing reassurance to the victims as well as repair and reconciliation to offenders in the community.[17]

It is not the responsibility of only government to contain crimes against women and children, but all should involve in such endeavors through which entire system can combat crimes.[18]

Cyber stalking:
This type crime against women is also increasing. The Information Technology Act, 2000 has provided remedy for cyber crimes. Cases like Manish Kathuria, Karan Girotra, Yogesh Prabhu cases are some of the cases which show the difficulty involved in punishing the culprits.[19] There are challenges like jurisdiction issue, tampering of evidence, and Anonymity of wrong doer is involved.[20]

Suggestions like need for international cooperation, need for inter-state cooperation and need for revisiting right to freedom of speech and expression are made to effectively combat such offences.[21] Judiciary has responded enthusiastically to grant huge amount of compensation to victims of crime and imposing death penalty on four accused in Nirbhaya case is evidence of judicial stern action against culprits.[22] The recommendations of Justice Verma Committee have to be implemented in order to make the legal system strong to eliminate crimes against women and children.

Domestic violence
We were not taking notice of domestic violence earlier. As these were considered as private affairs. But to our shocking, the kind of violence in the domestic sphere was noticed to be more dangerous. Wife battering is the prominent type of domestic violence, practiced as a matter of legal privilege in common law.[23]It shows traditional rule of providing subordinate position to women in family and other social institutions.

It was well known that women mostly will not approach police station because of family relationship, dependency, lack of legal literacy and helplessness. But this does not mean there is no legal remedy. But this called for a comprehensive legal scheme for protection from domestic violence. As a result, the protection of women from domestic violence act, 2005 was enacted and implemented. The Act has a progressive approach of protecting the victims.

Female infanticide:
It was prevalent in some caste in the 18th and 19th century in certain parts of India. Later on enactments were passed to deal with such problem. Even Indian Penal Code also provided some provisions for dealing with such issues. This evil continued particulary after developments in medical science. The cases like CEHAT v. U.O.I[24] it is observed that discrimination against girl child still prevails. There are increasing number of crimes being committed against both children and women.

The study of such type of crimes requires not only legal aspect but also socio-economic and psychological approach with spiritual bent of techniques. As love instead of hatred can bring peace in the world, we require realistic based solution to face such issues in the society. Mere transplanting foreign principles and rules into our system will not help in solving the problem. In some of the cases decided by the courts in India, we come across adaptation of foreign principles without proper analytical perspective.

This is high time we should reform our criminal administration of justice. Various commission reports are sometimes never implemented. It is a matter of great shame, if we are unable to combat crimes against women and children even after significant favorable changes taking place in technology, legal field and international cooperation. This demands change in our attitude toward our women and children, for that to happen there is a compelling need to internalize universal social, cultural and moral values with proper education in place which is unfortunately neglected in current context.

Participation of people and civil society's initiatives have their own contribution to sensitize the law to dispel the gender biases. The remnants of male chauvinism continue to haunt the unfortunate victims & the process of administration of justice in spite of the major trend of development has witnessed application of Human Rights norms and welfare policies.The reforms in substantive law owing to progressive judgments of the judiciary and legislation need to be supported by strong law enforcement mechanism.

  1. Michael Nagler, Why Violence Persisits And How We Can Stop It, Yogada Satsanga, Oct-Dec 2019, p.38.
  2. Id.
  3. Id. at.p.41.
  4. G.S. Bajpai and Preetika Sharma, Indian Courts on Female Victims of sexual Crimes: Recent Developments, in Gred F.K., Manjushree P., Sanjeev P.S.(ed.), Global Victimology: New Voices, Theory-Facts-Legislation, LexisNexis, New Delhi, 2017, at. P.1
  5. Anna Motz, The Psychology of Female Violence, Rouledge, London and NY,2008 at. p.1
  6. P.Ishwara Bhat, Law and Social Transformation, EBC, Lucknow,2009 at. 553
  7. Id.
  8. Lotika Sarkar, WOMEN AND THE LAW, Annual Survey of Indian Law (2000), Indian Law Institute, New Delhi, p.1
  9. Vijaya v. State of M.P.( 2010)8 SCC 191
  10. State of U.P. v. Chhotey Lal (2011) 2 SCC 550
  11. Om Prakash v. State of Haryana (2015) 7 SCC 359
  12. State of M.P. v. Madanlal Criminal Appeal No.231 of 2015
  13. Prakash Singh and Ors v.U.O.I and Ors. (2006) 8SCC 1
  14. (2017) 15 SCC 133
  15. (2018) 10 SCC 472
  16. (2017) 7 SCC 578
  17. Praveen Malik, Acid Attack in India: The Law and Legal Strategies to Combat Violence against women, 9 CPJLJ(2019) 46.
  18. R.Ramachandran, Law and Crime Against women and Children in India: Need for Introspection,(2015) PL Feb.74.
  19. Archana Sharma, Cyber Stalking and plight women in India-A Legal Perspective, 9RMLNLUJ(2017) 175
  20. Id. p. 190
  21. Id.
  22. Id.15 lakhs Delhi and 20L UP
  23. Dobash and Dobash, Violence against women,(1980) Ch.4 cited by MDA Freeman at p.238
  24. (2003) 8 scc 398.
Written By: Dr. Rajendrakumar Hittanagi, Asst. Prof. Karnataka State Law University
Email: Hubballi [email protected], Ph no: 9686150110

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