Before writing this article I want to clear my view that for me any sexual offence which is against the dignity of women is the most heinous crime and no punishment can par the act of the accused. Sexual Offences not only hurt the victim physically but it also kill the conscious of the victim. And in case victim survives, the psychological injuries are almost impossible to be cured.
The figure of sexual offences are escalating gradually. According to NCRB data for 2014, there were almost 13 lakhs cases of sexual offences reported in India, leave alone the unreported cases. There are various factors behind such high number of cases.
First of all we have some defect in our law making process. Legislation is a process which requires in depth research, intense deliberations and widespread consultations with necessary parties. The most important aspect of any law is the object of that law. The parties involved in enacting any law must be clear in their thoughts that for whom they are going to make that law and what is the basic essence of that law. There must be conformity between rationale and language of that law. And sometimes we overlook all these aspects. Criminal Law Amendment Act 2013 is the best illustration of above observation. There are so many provision in this act those have some inherent defect.
For example Sec 354A of Act which define sexual harassment as any physical contact and advances committed by any man involving unwelcome and explicit sexual overtures or showing pornography against the will of a woman. Now it is difficult to understand why in this particular section accused is not gender neutral. Take an example of a woman in authority (police,warden) who exercises such method to a women as a torture to compel her to do anything or admitting any fact. Why that women should not be treated as an accused.
Further Sec 354B says any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished. In that case too there is no logic why a woman should not be punished under this section if it is proved that she abets a man to disrobe a woman and has the intention necessary for that offence.
Further this is also not in conformity with the principle of common intention which itself has been incorporated in section 34 of Indian Penal Code which state that when a criminal act is done by several person in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone.
Further Sec 354C says any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually has the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished. I want to put a special emphasis on this section because in this era of social media if, such image circulated, can destroy her life and may compel her to take some extreme step. In so many recent cases, women have committed suicide under such similar circumstances. But what will happen when a woman captures an image and disseminates and further consequences take place? I know there is other law to take care of it but then these laws existed earlier too and still we felt need of this act.
Now in my understanding the essence behind this particular law is to protect the dignity of the women. So my direct question to law maker is whether only a man can cause harm to the dignity of a woman? Can a woman never be a threat to the dignity of another woman? If this is not the case then why in these clauses the accused is not gender neutral. Further, see the whole scenario from the victim’s point of view, she faced the same harassment, she faced the same trauma, but she is not on equal footing with other victims where men were offender.
Now the main question is can a woman commit or abet any sexual offence against any other woman. I want to quote here a particular case related to above question in which Hon’ble Supreme Court expressed its view. This case is Priya Patel Vs State Of Madhya Pradesh. The brief facts of case are that the husband of Priya Patel (appellant) is committing an act of rape on victim. The appellant came in the room. Victim cried for help but instead of helping her, appellant slapped the victim, shut the door, and left the place. The State filed the case against appellant and her husband under sec 376(2)(g). The High Court convicted appellant under the said section.
Overruling the Madhya Pradesh High Court’s verdict, the Supreme Court Bench ruled that: “A woman cannot be said to have an intention to commit rape. The counsel for the appellant is right in her submission that she cannot be prosecuted for alleged commission of the offence punishable under Section 376 (2) (g)”. I want to emphasis on the reason given by the Apex Court behind the acquittal. Court held that a women cannot be said to have the intention to commit rape. It is true, and further according to the definition of rape at that time it is practically impossible for a women to commit a rape. But court has not given women any kind of immunity for all type of sexual offences. Further Court never try to impose a view that women can’t commit such act against other women.
Further on the question of whether she can be charged for abetment, court held that this is an aspect which has not been dealt with by the Trial Court or the High Court. But the Bench did say that if it was permissible by law, Patel could be charged with abetment of the offence of rape. The Supreme Court left it to the Trial Court to decide if the accused could be prosecuted for abetment. So even in Supreme Court view women cannot be given a blanket immunity in case of sexual offences. Going by Supreme Court observations women can commit sexual offences.
I want to share a personal experience here. At the time of my LLB, I was living in a PG hostel of Delhi University. We were playing cricket when two girls entered at hostel at 11 pm and made an allegation that a boy entered in hostel after passing some comment on them. Since we were on the gate for last two hours, we had not notice any such incident. They called police and named a guy of hostel who was studying in his room since last two hours. We had no idea why they were doing this. It took us three hours to convince police that he was innocent. Making it worse that poor guy had a final exam next day. The single agenda of mine to tell you this real story is that not every man is guilty and not every woman is innocent. A woman too can have an intention to commit an offence or to give trouble to someone.
Now coming back on this legislation, this particular legislation took place after the Nirbhaya rape case. The sole reason behind this ultra feminist law is the prevailing circumstances of that time. There was outrage all over the country. Government was under immense pressure to show that it cares about half of the population of India. And in that effort it could not take risk to present women as an offender in a law which is meant for safety of women. But they ignored the basic essence of this law, and that is, to protect the women from all kinds of sexual offences regardless of the fact as to who is the offender.
The rationale behind this law should have been the protection of the women. This law should have been made with the objective to protect women and not with the objective to punish men. Apart from this, it is applaudable when public comes to street for a good cause. But public demonstration should only act as an incentive for law making. Such public demonstration should not affect the process of law making or judicial proceedings.
The other problem is related to implementation of law. According to NCRB stat, in almost 13 lakhs reported cases of sexual offences, the conviction rate is only 27.1%. So, reform should always be a two way process. It is not only the language of the law which should change but it is also the system of implementation of law that should also change. What we need is a robust system where every case is reported, in every reported case chargesheet is filed, and the most important judicial proceedings must be fast tracked.
The problem with us is that we always need a earthquake to awaken us from the slumber. After Mathura case we brought Criminal law Amendment Act 1984 and then we took no further step. We just included some stringent provision, some harsh punishment, some new offence, but, nothing substantial done in the direction of proper implementation of these provisions. And then Nirbhaya incident happened and after that in haste we brought another Criminal Law Amendment Act and rest the same story. Recently the juvenile convict of Nirbhaya gang rape was released by the Court after just three year, which resulted in the nationwide protest. On that, our Union minister Menka Gandhi said “let us not confuse justice with the law. There is nothing we can do until or unless he commits another crime.”
This clearly shows the helplessness of a mighty State. Even at that time we delayed the passing of Juvenile Justice Amendment Act in the Upper House of Parliament and in the meantime, some cases of rape took place involving juvenile as accused.
I hope this time we will alter this modus operandi. We will make proper changes not only in the provisions of our law but also in the process of implementation. We are focussing so much on procedural aspect of law and ignoring the justice. I hope this will change soon, as it is rightly said by Hon’ble Justice Krishna Aiyar (Retd) that the ends of justice is higher than end of mere law, although justice is to be administered through the law.