As a general estimate, one prosecutor stated that 80% of victims recant or minimize the assault at some point in the criminal justice process. Often, prosecutors will dismiss a case upon the recantation of a victim. In the Sacramento District Attorney’s Domestic Violence Unit, prosecutors must have tried over ten jury trials before coming to the unit. The theory is that experienced trial attorneys are better able to try a case without a victim. Before the Domestic Violence Unit and Domestic Violence Home Court, the average number of domestic violence trials was twenty-one per year. In 1997, there was only one misdemeanor domestic violence jury trial. In 1998, the Domestic Violence Unit tried over thirty jury trials, including ten misdemeanor cases and four cases without a victim.
Domestic violence cases involve not only increased personnel such as probation officers and witness assistants and/or victim advocates, but defendants and victims often have children, family and friends accompany them to court. This requires a courtroom with adequate space. Increased courtroom security is necessary to ensure that victims are not contacted by the defendant in the courtroom as well as walking to and from the courtroom. Ideally, the court provides a separate waiting area for victims. Finally, a large number of defendants typically in custody may require a large holding facility in the courtroom, as well as additional jailers to move the defendant to and from the court.
Court services (probation) officers may perform a variety of functions, including making a lethality assessment for the case, making victim contact by phone or in court, and providing recommendations for release and sentencing conditions. Both the Vancouver, Washington and the Sacramento, California Domestic Violence Courts require automatic court appearances by defendants to check on the status of their participation in batterer intervention programs. Out of court, probation officers may be required to monitor defendants on supervised or intensive probation, meeting with the defendant on weekly or monthly schedules to monitor progress.
The issue of Sexual Harassment at the work place is fraught with such complexities and intersections with cultural practices that make a linear, simple and straight -forward understanding of the same a tardy and tedious, if not impossible, affair to grapple with. One of the ways to simplify and to make it understandable in a better manner is the recapitulation of the trends in the history of precedents by various courts.
Moreover, the majority of the women are either unaware or ignorant about their rights provided to them by the law of the land. Even if, they are made aware or well versed with the whole scenario, a very few have economic resources and courage to obtain legal redress. No one can ignore the significant role being played by the judiciary in this direction helping her to get what is due to her as a matter of right.
The studies of precedents gain additional importance as even with the existing flawed system and glaring shortcomings there have been few bold and courageous victims who took on to their tormentors, fought long drawn legal battles on their own or in certain cases, took the help of women’s organizations to exert pressure on the harassers, defying all odds, crossing all barriers successfully and setting examples for others at the same time. The strenuous attitude of the apex court in such matters has established, time and again, that no one is above the law and that no matter how highly placed the perpetrator may be, the long arm of the law will reach and sentence the offender impartially.
It’s a great achievement of not only one of the pillars of democracy but the democracy itself that the principle of equality between the sexes enshrined in our constitution is being reinforced and safeguarded through the sound judicial process.
After that in several other pronouncements, the judiciary has shown its innate desire to help this deprived and underprivileged section of the society facing the brunt of this form of sexual violence in silence while giving a whole new dimension to the justice itself3.
Prior to Vishaka,4 there have been quite a few remarkable judgments that not only brought to fore the existence of this systematic and planned discrimination in our society but also exposed glaring loopholes in making safe workplaces available to increasing force of working women.
A senior IAS officer, Roopan Deol Bajaj took on to then Director General of Police of Punjab when she was sexually harassed in a party in full view of her associates. Many of them brushed aside her humiliation by a drunken Gill as a ‘trivial’ incident. The entire political and bureaucratic establishment threw its weight to protect the police chief and awarded him the ‘Padma Shri’ when the matter was sub-judice. The said establishment, at the same time, tried to intimidate Bajaj by spreading slander against her and isolating her for daring to protest. In the words of Bajaj:
“When your prescription is different from all others because ailments with which you are suffering have unique features, when you do not have a set of rules or standards or established norms or tradition to follow or any legislation or precedent to bank upon, you have to muster courage to fight against all odds and create your own way out of the complex and peculiar situation”.
Raising the voice against a national hero was not very easy, though emotional, for that quite a senior officer, then Commissioner-cum-Secretary. “The decision to complain was really tough- there were consequences of complaining and not complaining. If I hadn’t complained it would have appeared that I was a willing participant. The people above him left no stone unturned to protect Gill. And he would have continued doing this to other women. I had to put a stop to this. Why should I cry about my humiliation in private? I just had to fight for my dignity. Because of this, there were times when even my life was threatened. Yet, I remained determined. 18 years is not a short period. It is a lifetime”.
After being dragged on for more than 18 years, finally, the Supreme Court upheld the conviction of Gill for his offence. He was found guilty under sections 354 and 509 of IPC and the court directed him to pay Bajaj Rupees two Lakh as compensation. This was the first instance where judiciary actually took a stand upholding women’s right. The stand of the judiciary is also commendable because the verdict came despite the general public opinion that she was ‘blowing it out of proportion’ and attempts by all the top officials in the state were being made to suppress the case. While many perceived her assertiveness as degrading, aggressive, and abnormal, male sexuality as Gill’s was brushed aside as display of assertive behavior establishing the discriminatory theory.
In rural India, Dalit women suffer multiple oppressions of gender, caste, class and rural deprivations. Dalit women feel the burns of the patriarchal suppression in the society.
They are trampled down by the caste identity. They constitute a major portion of ultra poor. As they live in remote rural areas they are denied basic amenities and connectivity’s. Dalit women are considered ‘untouchable’ and are outside of the four varna systems and considered below of all in the pyramidal structure of Indian society.
In rural India, Dalit women suffer multiple oppression of gender, caste, class and rural deprivations. Dalit women feel the burns of the patriarchal suppression in the society. They are trampled down by the caste identity. They constitute a major portion of ultra poor. As they live in remote rural areas they are denied basic amenities and connectivity’s. Dalit women are considered ‘untouchable’ and are outside of the four varna systems and considered below of all in the pyramidal structure of Indian society.
Though the Indian constitution guarantees equality, justice, and human dignity for all and bans discrimination the basis of caste, seldom it is actualized in rural India. Slavery and oppression is very much alive even in distant small villages. Denial of human rights and practice of untouchability are manifested in the forms of discrimination such as exclusion from Hindu temples, homes, and rituals; prohibitions against using the village well or studying in the village school; and a prohibition against touching any caste person or any material or food. In most of the areas, untouchables could not own land, although in other areas some castes held some land as part of their village contract.
Realizing the pathetic plight of Dalits, Indian constitution had initiated to safe guard the rights of Dalits i.e. education (article 15/4), reservation in employment (art. 16/4), the abolition of untouchability (art. 17), and reservation in Assemblies and Parliament (art. 330&332). In addition, Untouchability Act, 955, Protection of Civil Rights Act, 1955 and free aid cells were enacted. In education, reservation and relaxed age and qualification are being followed.
Besides the Indian Government has enacted amendments to protect the rights and dignity of women namely Equal Remuneration Act, 1976, Suppression of Immoral Traffic Act, 1956 amended in 1986, Dowry Prohibition Act, 1961 amended in 1982 & 1986, Child Marriage Restraint Act, 1976, Medical Termination of pregnancy Act, 1971, National Commission for Women Act, 1990, 73 & 74 Constitutional Amendment Act, 1992, Pre-natal Diagnostic Techniques (Regulation and prevention of misuse) Act, 1994 etc. Often none of these legal enactments neither related to Dalits nor related to women come to the rescue of Dalit women.
To effectively implement the act there are numerous hurdles. Some of them are:
a) Registering a complaint
Non-registration of crimes is a general problem in India. Political influence over the police and caste, class, religious and gender biases mean that it is extremely difficult for members of disadvantaged groups to file complaints, particularly against powerful individuals. A case cannot continue and a victim cannot receive justice if a First Information Report (FIR) is not completed and registered by police on the basis of a person’s complaint’s) Problems of Evidence
b) Problems of Evidence
Police are also accused of withholding and destroying evidence in many cases, often at the behest of the alleged perpetrators who might have caste or other community links with the police officers. Police also have the ability to delay the recording of medical evidence. It is not a legal requirement for police to send women who allege that they have been raped for an immediate medical examination. Much medical evidence is lost because this simple procedure is not followed) Time and Money
c) Time and Money
Lawyers are reluctant to file cases because of the time and money involved. There are often significant distances between the village where a victim lives and the block [administrative unit within a district] court where a case is being heard. Money is lost in attending hearings, not just on travel expenses but lost working hours for those women in employment and their male relatives who accompany them to the hearings.d) Discrimination within the Criminal Justice System
d) Discrimination within the Criminal Justice System
Police officers have their own caste and gender biases and often behave towards Dalits and Didivasis in a discriminatory way — acting within the norms of their social surroundings. The presence of caste biases within the police force was prominent among many activists, government officials and police alike. Officials have acknowledged that gender sensitivity is not institutionalised within the police force.c) Threats and Harassment
e) Threats and Harassment
This report focuses on domestic violence against Dalit groups, much of it perpetrated by those in powerful social, economic or political positions and able to exert enormous influence over victims and their communities as well as state institutions if threatened by criminal action. Despite this, there is no protection program for victims or witnesses in India leading generally to a very high number of acquittals in criminal cases due to victims or witnesses withdrawing testimony and the resulting lack of evidence. In the case of women victims from Dalit communities, the odds are stacked against them and without some form of protection or removing them from the context in which they might be receiving threats it is not surprisingly rare for women to pursue complaints through the courts.
f) Justice or Impunity
One of the main factors in assessing whether governments have shown due diligence in addressing domestic violence by non-state actors is whether those responsible for such domestic violence are brought to justice. A very high percentage of crimes against women go unpunished because cases are not filed, end in compromise and/or complaints are withdrawn. This is clearly so in cases where the victims are from Dalit communities and particularly vulnerable to discrimination, threats and pressure.g) The Role of the Community
g) The Role of the Community
Members of the victim’s caste community or their family members can place enormous pressure on women victims of domestic violence to either compromise or not pursue justice at all through formal justice systems. Dominated by men, caste groups often consider that women victims of domestic violence should suffer their ordeal in silence. In many cases, women who insist on pursuing justice are punished in some way — often by social ostracisation, but also by being abandoned by their husbands and his family — for what is seen as bringing further dishonour to the community
To evaluate the problem of sexual harassment, it is essential to identify its vivid forms and understand the extent to which these exists in the society; though, the statistics and the available data may not reveal the true picture.
Women, across age groups and class, face this menace. Younger and newer entrants into the profession especially in private sector are equally vulnerable as women on the verge of their retirement. Even widows who get jobs on compassionate grounds or divorced women are not spared. The crux of the matter is that a major chunk of the population has to endure such sexual gestures and comments without any fault of theirs.
Admitting and assuming that not all men are potential rapists, batterers, molesters and torturers of women, all women are potential victims as Sexual Harassment crosses all professions, social strata and levels of income. It can be as easily found in a film studio as in a file filled Government office and in private organisations though some professions are more prone to it than others. For every woman who raises an outcry, there are hundreds of others who suffer in silence, quit their jobs or get transfers, as it is the most common yet pervasive experience of working woman either in the guise of ‘harmless’ banter or in the form of unwelcome physical conduct. It not only violates one’s freedom and personal dignity but also takes a serious psychological
toll on women by creating an intimidating, hostile and humiliating work environment. So common, indeed, is this social malady that most women sometimes fail to realize seriousness of the problem and try to treat it as ‘normal’ or dismiss it as routine and others over the years develop internal coping mechanisms to deal with the menace. Woman with little or no education, do not accept the fact that Sexual Harassment is unacceptable behaviour. Even among the aware and educated, generally, there is lack of recognition about comfort zones and bodily boundaries.
Sexual Harassment can be interpreted as sex based discrimination because the expression of sexuality at work place is prejudicial to the dignity of woman. It emphasizes the sexuality of victims over their role as workers and thereby imposes less favourable working conditions upon them. The victim is targeted because of her sex. It is part of the whole syndrome of discrimination and exploitation that upholds unequal economic and social structures thriving in an atmosphere of threat, terror and reprisal. The following acts may amount to such discrimination:
This fear that the whole issue would snowball out of proportion – that induces most women to endure their tormentors in silence or give in to their demands. It’s only a myth to state that the women occupying lower jobs suffer. The women holding high profile positions, though still a microcosm despite number of equality opportunity provisions in place dares not to complain about such instances. Almost similar factors, remain responsible for this mindset irrespective of the qualifications, employment security and awareness. Moreover, most cases of sexual abuse go unreported because of the traumatic trial procedure and social stigma involved with sexual matters.
Anxiety about devastating trials involving rigorous examination and cross examination, recalling of humiliating and degrading circumstances in explicit details, time and again, submissions of defence counsels to discredit the testimony of the victim and obvious attempts to establish that the incident did not take place and common knowledge and belief that conviction is rare; are few of the reasons which have more often than not discourage victims to take recourse of available remedial measures.
The moment she attempts to ‘public’ her ‘private’ anguish, in a moment, she is labeled as not a ‘good’ woman and becomes an easy target of the harasser to be subjected to ridicule and humiliation publicly. The situation is worsened in those instances where the boss himself happens to be the perpetrator and he threatens the victim with adverse job consequences ranging from demotion, transfer or even loss of employment, in case; she does not easily succumb to his demands. Her male colleagues either make fun along with the harasser’s slander campaign, fully endorsing the notions of the boss pertaining to her loose moral character or just like female counter parts, a witness in silence. Even other colleagues and employees, who may be well versed with the reality and aware of the whole situation or those who in the past may have suffered at the hands of the same boss, are more often than not, unable to muster courage enough to raise their voices due to a wide range of fears and apprehensions including loss of job. Words about such incidents are intentionally whispered in the ears of her neighbors, family or friends by her harasser to compromise her reputation and to create an undue pressure upon her senses. Multiple counter attempts are made to further malign her character.
Women in most societies are trained to put up with manipulative sexual relationships as ‘normal’ and even learn to accept Sexual Harassment as an expression of men’s sexual desire. The inaction by women is lauded by family and society as the most dignified and honourable course for them to adopt in such situations. The pain of Sexual Harassment is partly due to the realisation that however much you achieve, in work or study, however much you affirm yourself as an autonomous person; society in the form of the harasser will remind you that your destiny is not yours.
This attention to irrelevant peripheral characteristics may also affect women’s chances of promotion and advancement. If women’s attributes unrelated to work are noticed, it is also plausible that their job related skills and abilities may go unnoticed or insufficiently noticed.
A popular misconception about Sexual Harassment is that it inevitably includes physical sexual contact at any time, place and in any context. Socially and legally speaking, there is an unstated expectation; though, it may not be true always that any kind of sexual violation should involve visible proof, an expectation that has inhibited most women from reporting day to day instances of Sexual Harassment. It may take diverse and varied forms and not simply limited to demands for sexual favours made under threats of adverse job consequences should the recipient refuse to comply with such demands. Victims of Sexual Harassment need not establish that they were not hired, were denied a promotion or were dismissed from service as a result of their refusal to participate in sexual activity. “This form of harassment, in which the victim suffers concrete economic loss for failing to submit to sexual demands, is simply one manifestation of Sexual Harassment, albeit a particularly blatant and ugly one. Sexual Harassment also encompasses situations in which sexual demands are foisted upon unwilling employees or in which employees must endure sexual groping, propositions, and inappropriate comments but where no tangible economic rewards are attached to involvement in the behaviour.”
Sexual Harassment may be subtle and may even involve what would otherwise constitute normal sexual or social activity. Conduct constituting Sexual Harassment encompasses both the physical and the psychological. Milder forms of Sexual Harassment include verbal innuendos and affectionate gestures that are inappropriate in the circumstances, repeated social invitations for dinner or drinks, or unwelcome flirting where the implicit message is that sexual favours are anticipated or expected. Normal sexual or social activity may become Sexual Harassment where a power differential exists between the parties. In most cases of Sexual Harassment the perpetrator is a person in a position of authority who abuses that power, both economically and sexually.
Speaking generally, Sexual Harassment is “behaviour with a sexual connotation that is abusive, injurious and unwelcome.” For the victim, Sexual Harassment has direct consequences for the maintenance or improvement of his or her living conditions and/or places him or her in an atmosphere of intimidation, humiliation or hostility.9 ‘Sexual Harassment’ is both sexual and unwelcome.” t may be constituted by many or a single act and, broadly speaking, the intention of the harasser is not relevant.”
There is a whole range of behaviour and activity, which may not fall squarely within the definition above but still it may constitute or may amount to Sexual Harassment. The illustrations of the same can be as follows:
(i) telling a woman employee about the ways she dresses up or calling her up late at night with a request to have dinner with him repeatedly with which she is not comfortable.
(ii) Making sweeping statements while delivering lecture on advertising, for example, women are the best models to sell a product; that body of the car should be sleek and sexy like a woman; soap has to be soft to touch and so on. The female students may feel offended as these statements are derogatory to women in general, though he might not be targeting anyone.
Thus, such statements are apt illustrations to depict creation of hostile and offensive environment at work place.
Hence, any of these may be perceived as Sexual Harassment:
(i) A sexual comment.
(ii) Leering at another’s body and/or sexually suggestive gesturing.
(iii) Displaying sexually visual material such as pin ups, cartoons, graffiti, computer programs, and catalogues of a sexual nature.
(iv) Any other verbal or non-verbal conduct.
Perceive it as a personal problem or a private issue, attitudinal problem or behavioral issue, a social malaise or human rights issue, an economic or financial issue, organisational problem or management issue; the categorization is important for the sake of convenience and better understanding of the concept though all of these harmoniously indicate towards a behavior that is unacceptable at any workplace since it results in violation of certain basic human rights of a particular section of the human population and has harmful impacts on the society as a whole which are matter of serious concern.
Women, across age groups and class, face this menace. Younger and newer entrants into the profession, especially in the private sector, are equally vulnerable as women on the verge of their retirement. Those who are especially vulnerable to abuse are widows that get jobs on compassionate grounds or divorced women. The crux of the matter is that none is spared and a major chunk of the population has to endure such sexual gestures and comments. The following acts may amount to such discrimination:
The US Supreme Court has expressed that though the distinction is of limited utility yet it is not irrelevant altogether.
1. Quid Pro Quo
• The employee was subjected to unwelcome sexual advances or request for sexual favours; and
• The reaction to the harassment-rejection or submission as the case may be- affected tangible aspects of the employee’s compensation, terms, conditions, and promotion, excess to training opportunities and/ or any other privileges of employment. In countries like India, there is regular large-scale quid pro quo harassment in the construction and garment industry. Jobs being scarce, the pressure of survival in a situation of scarcity added to their low status in society, keeps these women silent. Sexual Harassment here, thus, becomes entrenched and structured.
Adverse work consequences may be of two types:
(i) Tangible: This type of consequences are quite visible such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, a decision to cause a significant change in benefits, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits and significantly diminished material responsibilities.
In an allegation of this type of quid pro quo harassment it is sufficient for the complainant to prove that such a threat was made. In Burlington’s case, the trial court found the complainant’s supervisor to have made “repeated boorish and offensive remarks,” some of which were accompanied by threats. In one such incident, during a business trip, a supervisor invited the complainant to join him in the hotel lounge, which she felt compelled to accept because she was his subordinate. The supervisor then made remarks about her breasts. She gave no encouragement to his remarks. Then he told her to “loosen up” and warned her that he could make her life “very hard or very easy” at the company. Few months later, when the complainant was being considered for promotion, the supervisor expressed reservations during the promotion interview saying that she was not “loose enough”, reached over, and rubbed her knee. Although the complainant received the promotion, when the supervisor called her to inform her of this he said “you are gonna be out there with men who work in factories and they certainly like women with pretty butts/ legs.” On a third occasion, the complainant called supervisor to ask permission for some work- related business. He responded, “I don’t have time for you now… unless you want to tell me what you are wearing.” The woman told him she had to go and ended the call. A few days later, she called him to ask for permission again. This time, he denied her request, saying, “Are you wearing shorter skirts yet… because it would make your job a whole heck of a lot easier.”
This is an apt illustration to depict that the Sexual Harassment at work place can exist even in the following situations:
(i) When the perpetrator played a key role in the promotion.
(ii) The veiled threats and demeaning comments were never carried out actually.
This case also establishes that when an employee in the course of carrying out her duties receives sexually coloured comments or the supervisor puts obstacles in her path of performance of her duties or denies or delays her job related reasonable requests, the same amounts to Sexual Harassment.
(ii) Intangible: In this type of adverse employment action, a complainant need not demonstrate any so called tangible adverse employment action over and above a hostile or demeaning environment.
Simply speaking, if boss docks her pay or fires her or otherwise punishes her for rebuffing and advance, he is flat-out guilty of this type of harassment.
2. Hostile Work Environment
The U.S. Supreme Court held that when the Work Place is permeated with ‘discriminatory intimidation, ridicule and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’
“Whether an environment is ‘hostile’ or ‘abusive’ can only be determined by looking into the totality of the circumstances. These may include flic frequency of the discriminatory conduct; its severity; whether it is physically threatening or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. “
The House of Lords in an English case’4 held that it was not necessary for the victim to demonstrate physical or economic consequences and that compensation for injury to feeling can be awarded where an employment action is taken that results in a complainant’s role and position being substantially undermined, or on her being increasingly marginalized at work.
A similar judgment was delivered by the U.S. Supreme Court wherein it was stated by the court that it is not necessary to show that the behaviour complained of impaired the work of the victim or that the conduct caused psychological injury. Unlawful conduct may lie between conduct that is “merely offensive” and conduct that causes a tangible physiological injury. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin” was contrary to the principle of workplace equality.
In this case, the US Supreme Court undertook a detailed analysis of what constitutes “hostile environment” Sexual Harassment and quoted with approval, the Federal Equal Employment Opportunity Commission (EEOC) Guidelines on Sexual Harassment. The court stated that employees have “the right to work in an environment free from discriminatory intimidation, ridicule and insult” and that “a requirement that a man or a woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.” supervisors also subjected the complainants and her fellow women employees to “uninvited & offensive touching.”
Quid pro quo and hostile work environment, though two specific forms of Sexual Harassment, do not occur in isolation and one may lead to the other. Moreover, it is not possible to devise a straightjacket formula to distinguish between both the types as the features and ingredient overlap very often.
Harassers are, on the whole, usually men or in fewer cases women either of similar or higher status to the person being harassed. Physical harassment is more likely to come from superiors than from colleagues or juniors. The harassers, for all forms of harassment, usually are peers, managers, supervisors or subordinates. Hence, it can be inferred that those who exercise some sense of control or power over the victim are more likely to take direct advantage of it by harassing in a more intimate way by taking undue advantage of the workplace relationship.
The boss, the colleague, the client, the caretaker or owner of the premises, the entire spectrum of male workers can be randomly considered to be potential harassers though it is not necessary always. The relationship may vary from case to case. The difference in degree lies in the fact that more the power a man wields in terms of his class, seniority and authority, the greater the potential of abuse of power he has over women.
Though, the possibility of a female boss or manager donning the attire of the perpetrator, if the subordinate is male, can never be ruled out yet going by the available reported cases, frequency of such cases is comparatively quite low.
The incident of the gang rape in India and murder of the 23-year-old girl in a bus by six men in New Delhi on 16 December 2012 seemed to act as a trigger to release the pent-up anger and frustration of women in India who have suffered various forms of sexual assault and sexual harassment on the streets, in the neighbourhood, or in their homes.
Every time they stepped out of their homes, walked on the streets, or boarded public transport, they risked, and continue to risk, being harassed, groped and subjected to unwelcome sexual touching. However, instead of their harassers being targeted, their freedom of movement, their right to dress as they please, and their right to associate with persons of their choice is discussed, curbed and restricted. While raising the slogan of justice for the gang rape victim and other victims of rape in India and sexual assault, and of severe punishment of the perpetrators of the rape in India, the protestors highlighted the dismal state of law enforcement in our country. The demand for accountability of the police underscored the fact that the police had not implemented the law and had been guilty of dereliction of duty in cases of sexual assault, and the government had taken very few steps to ensure the safety and security of women in our cities and across the country. By asking for speedy justice and fast-track courts, the protectors highlighted the delay and denial of justice by the courts. Some also raised the demand for more stringent laws against rape in India and sexual assault. Although these protests were started by the constituents of women’s organisations and groups, particularly of the Left, they were widely held to have been led by the youth of the country who had supposedly shown the way forward.
The government, which had ignored such demands for decades suddenly swung into action when it realised the extent of public anger and outrage. ‘Nirbhaya’, whose gang rape in India had acted as a catalyst for the protest, was given the best medical treatment. A speedy investigation of the case was carried out in about two weeks, the charge sheet filed, and the case is being heard on a presumably day-to-day basis in the courts. In another quick reaction, a high-level Committee comprising the former Chief Justice of India, Justice Verma, was constituted to suggest laws to provide for quicker trials and enhanced punishment for criminals accused of committing sexual assault of extreme nature against women [sic]’. Though the Verma Committee had been set up with these limited terms of reference, the Committee interpreted these terms ‘expansively’ and, within an extremely short period, suggested several significant recommendations on a wide range of issues. Apart from proposing legal reforms on substantive and procedural laws related to rape in India and sexual assault, the Committee made various suggestions to strengthen women’s rights and the implementation of the laws by the police and the judiciary. The Committee recommended the introduction of a Bill of Rights for women, which detailed the equality and other rights to which women were entitled in different areas. It recommended changes in the Representation of People’s Act so that persons against whom a charge sheet had been filed in court for rape in India would not be allowed to contest elections for Parliament and State Assemblies. The Verma Committee also exhorted the government to implement the laws and pointed out that, The most perfect laws also would remain ineffective without the efficiency and ‘individual virtuosity’ of the human agency for implementing the laws, namely, the law enforcement agencies. However, although some recommendations of the Verma Committee were new, many of them were recommendations that had already been made to the government over the past several years The Verma Committee has itself noted that the government had ignored the existence of various Law Commission Reports and Court Judgements by pointing out that:
The Law Commission’s 84th Report in 1980 and its 172nd Report of 2000 relating to this subject, the National Police Commission Reports recommending autonomy and seminal improvement in the quality of the police force, which is the principal machinery for the maintenance of law and order, continue to gather dust for decades due to the apathy of all the political dispensations. The Supreme Court’s judgment of 2006 in Prakash Singh’s case giving certain directions for the autonomy and improving the quality of the police force remains to be implemented by all the governments.
In the meanwhile, it became obvious that instances of rape in India and sexual assaults continued to accelerate. Successive reports of the National Crime Records Bureau had also shown that while, on the one hand, the registered cases of sexual assaults, including rapes, continued to rise, on the other hand, the conviction rate was dismal. Even before most of these reports, and as far back as 1993, a Sub-Committee was formed by the National Commission for Women (NCW) after a seminar on Child Sexual Abuse, to examine the laws related to child sexual abuse. This Sub-Committee was constituted of members from women’s organisations and groups as well as individual feminists. The Sub-Committee met extensively over six months and submitted a report to the National Commission for Women. The report suggested a complete overhaul of the provisions relating to Sexual Assault in the Indian Penal Code. It noted that the law had become outdated in language and intent as it failed to acknowledge the true nature of the crime of sexual assault. Also highlighted were the definitions of rape in India and molestation that did not adequately address the various types of sexual assault in terms of women’s experience, nor did it recognise the gender-specific nature of such crimes. In addition, the definitions of sexual assault, rules of evidence and procedure did not adequately take into account the serious nature of sexual assault against women and children.
The recommendations of the Sub-Committee were to form the basis for a redrafting of the substantive and procedural rape in India and sexual assault laws in the coming years. Of the recommendations made, some stated that all the laws relating to sexual violence should be consolidated in one Section as they were all assaults of a sexual nature. It redefined and expanded the definition of rape in India included within it penetration into any orifice (vagina, anus and mouth) by the penis and penetration by an object or a part of the body to the vagina or anus. The Sub-Committee renamed rape as sexual assault to emphasise the violent aspect of the crime and the act that all these forms of sexual activity constitute a violation of a woman’s bodily integrity. The Sub-Committee also recommended changing the definition of molestation which, till recently, was defined as an assault or criminal force with intent to ‘outrage the modesty of a woman. The Sub-Committee pointed out that the words ‘outraging the modesty’ were outdated and reminiscent of Victorian morality with notions of chastity. The Sub-Committee recommended that molestation should be defined as touching for a sexual purpose. Similarly, the Sub-Committee recommended an amendment of Section 509 of the IPC which deals with ‘eve teasing’/sexual harassment and punishes words, sounds and gestures ‘intending to insult the modesty of any woman’. Past cases had shown how courts had misinterpreted consent to the sexual act if a woman remained passive during a rape in India and did not raise an alarm.
The Sub-Committee, therefore, suggested that consent should be defined to mean an unequivocal voluntary agreement to engage in the sexual activity in question and suggested other instances in which consent can be vitiated. It also suggested that marital rape in India should be included in the definition of rape in India. However, the Sub-Committee suggested a gender-neutral provision for penetrative sexual assault as it recommended the deletion of Section 377 of the Indian Penal Code which targets consensual sex and homosexuality. The gender-neutral provision was meant to apply to same-sex penetrative sexual assault.
As is well known, the first movement to change the laws relating to rape in India was initiated in the early 1980s after the Mathura rape case was decided by the Supreme Court. The case came into public view when four professors of Delhi University wrote a letter to the Chief Justice pointing out that it was shocking that the Supreme Court refused to believe that a poor village girl had been raped in the police station just because she did not have visible signs of injury and had not screamed and shouted. The women’s movement launched a massive protest and demanded changes in the law so that rape in India in custodial situations was recognised as a more aggravated form of the crime. Finally, in 1983, certain kinds of rape in India were recognised as aggravated forms of rape. These were rape by a policeman in a police station, rape by a person on the management or staff of a jail or remand home or hospital in these places, rape by a public servant of a woman in his custody, gang rape, and the rape of a girl under 12 years of age. While the minimum punishment prescribed for rape was seven years of imprisonment, these aggravated forms prescribed a minimum of 10 years of imprisonment and a maximum of life. The Evidence Act was also changed to provide that if the fact of sexual intercourse had been proved in a case falling under this Section, and the woman stated that she had not consented to the act, it would be presumed that she did not consent. The 84th Law Commission had also suggested these and other changes in the law of procedure which were also demanded by the women’s movement at that time, including the recognition of marital rape. In 1993, the Sub-Committee suggested a further expansion of the categories of aggravated sexual assault to include sexual assault by a person in the armed forces, and sexual assault on a woman suffering from a mental or physical disability. It further suggested that if any person causes grievous bodily harm, maims or disfigures or endangers the life of a woman or child while committing a sexual assault, or if a person commits protracted or repeated sexual assaults on a woman or child, this should also be considered as an aggravated a form of the offence. It also recommended that if any person who was in a position of trust, authority, guardianship, or of economic or social dominance, committed a sexual assault on a person under such trust, authority or dominance, this should be considered as an aggravated form of the offence. Amongst the procedural changes that it recommended were some changes that the 84th Law Commission Report had already suggested. The Committee suggested that the statements made by victims of sexual assaults should only be recorded by a woman police officer or by a woman a social worker under the directions of the Station House Officer and, further, that a relative or friend of the victim should be present. It also reiterated the recommendation of the 84th Law Commission Report that Section 166A should be added to the IPC to punish a public servant who disobeys any direction of the law with one year of imprisonment. It suggested that, during the investigation, a minor and a woman should be allowed to be accompanied by a relative or friend, and that a police officer who refused to register an FIR should be punished with up to one year of imprisonment. A similar punishment was suggested by the Sub-Committee for a registered medical practitioner who refused to conduct a medical examination of a victim of sexual assault. The Committee recommended a change in the Indian Evidence Act that would put a stop to questions being posed to the victim about her previous sexual history, character and conduct, as this was a normal practice in rape trials; and if a woman had a past sexual history she was seen as someone who would, in all probability, have agreed to the sexual act. Another important recommendation was that a victim of sexual assault who was a minor should not be made to give evidence in the presence of the accused as this would certainly be traumatic for the victim. The Committee suggested that the manner in which such a victim’s cross-examination is carried out should not be hostile. It also suggested that the investigation and trial of a sexual offence should be time-bound and not take more than six months. This Report was submitted to the National Commission for Women. However, their expert committee on laws rejected the Report as they considered many of the suggested provisions inappropriate and unnecessary. The Report was also sent to various women’s groups for comment and discussion.
In the years that followed, changes and further additions were suggested to the 1993 Sub-Committee draft by national women’s organisations, women’s groups, feminist lawyers and other individuals working on the issue. One of the members of the Sub-Committee, who was a member of the Centre for Feminist Legal Research, suggested certain changes to delink the clause on sexual harassment from the Section on Sexual Assault, in addition to other amendments. Another member, who was associated with the NGO Sakshi, and had actively pursued a child-abuse case, filed a writ in the Supreme Court for a declaration that all forms of penetration would be included in the term ‘sexual intercourse’, as contained in the rape section of the Penal Code. However, the Supreme Court directed the Law Commission of India to consider the rape section in a manner that could be interpreted to plug existing loopholes, or otherwise to suggest an amendment to the law. The Law Commission decided to suggest amendments to the law concerning rape in India and members of Sakshi, IFSHA and the All India Democratic Women’s Association (AIDWA), which had also been members of the Sub-Committee, appeared before the Law Commission as representative organisations. Prior to this, they had submitted the draft of the Sub-Committee to the Law Commission. The Law Commission discussed the proposed amendments with these representative organisations and accepted many of the suggestions made by them, including the conceptual shift from rape in India to sexual assault. However, the recognition of marital rape in India and changes in the definition of molestation and sexual harassment were not agreed to by the Law Commission.
Subsequently, AIDWA redrafted some of the proposals in 2002, suggesting the separation of the clause on penetrative sexual assault from the clause on molestation and sexual harassment. It suggested the addition of stalking as a separate crime in the Indian Penal Code and included specific sections to deal with penetrative and non-penetrative sexual assaults on children. After several rounds of discussions with members of various women’s groups, AIDWA suggested that the definition of penetrative sexual assault should be gender-specific as far as adults were concerned and should be gender-neutral for children. Thus, it suggested that only a man could be a perpetrator while the complainant would be a woman. This was because there was a real apprehension expressed by all women’s groups that, under the earlier draft, men would file cases of sexual assault against women. The AIDWA draft was once more revised in 2005 and later in 2008. An important suggestion made to protect young persons involved in a consensual relationship was that consent should be a valid defence if the girl was between 16 and 18 years of age and the accused was not more than five years older. AIDWA’s work with cases of crime and killing in the name of honour had highlighted the fact that many cases of rape in India are routinely registered by members of the girl’s family if she was in a consensual relationship with a boy and, in many of these cases, the family claimed that the girl was a minor.
In 2005, the NCW adopted a draft similar to the one made by AIDWA and, after a series of consultations with several stake-holders, held a national convention in which it invited the minister of home, members of women’s groups and government representatives. Although, initially, the home minister agreed with the draft, the government did not change the law or procedure. AIDWA also continued to campaign for changes in the laws and procedures related to sexual assault and made several representations to successive law or home ministers along with other women’s organisations. It made representations to Ram Jethmalam, Arun Jaitely H.R. Bharadwaj, Shivraj Patil, Veerapa Moily and Salman Khurshid. The letter to Veerapa Moily was written by national women’s organisations, including AIDWA, AIWC, CWDS, JWP, NFIW and YMCA, after the Ruchika molestation case in which the accused, a high-ranking police official, had only been awarded a sentence of one-and-a-half years as the law on molestation only prescribed a maximum sentence of two years. The letter written by AIDWA pointed out how Ruchika’s case had once again highlighted the need to amend the law relating to child sexual abuse. The letter, written in January 2010, also pointed out that both the law relating to child sexual abuse and sexual assault on women needed to be urgently modified. Finally, in 2010, the government first drafted a bill to address sexual offences against children. This was made into a separate comprehensive law in 2012 and contained many of the suggestions made to the government by women’s and child rights’ groups. The law, however, defined the child as a person under 18 years of age and kept the age of consent at 18, ignoring the fact that adolescent sexual activity is a reality and should not be criminalised, whether an adult agreed with this or not. This law thus lays down the age of statutory rape as 18 and allows for punishment of young boys or men even in consensual relationships with 10 years or more of imprisonment.
Another bill was also finally proposed in 2010 by the government to deal with adult rape in the Penal Code. The autonomous women’s groups and independent scholars and others discussed the provisions of this Bill in April and May 2010 and suggested certain amendments meant to recognise ‘the structural and graded nature of sexual violence’. They suggested that all forms of sexual violence against women should be in a comprehensive section, and that sexual violence on persons excepting women should be in a separate Section, 375B. Further, that no woman should be liable under these sections. An important suggestion made by the groups and individuals related to the sexual assault of women as part of sectarian violence. Other suggestions related to the command responsibility of a public servant and doing away with the prior sanction of the government in the case of sexual assault by a public servant. These groups also asked for certain procedures to be followed by the police during the investigation of a sexual assault of a minor, as also for doctors while conducting the medical examination of a child victim of sexual assault. National women’s groups also reiterated their demand for the recognition of sexual assault during communal and sectarian conflicts, and sexual assault by members of the armed and paramilitary forces as aggravated forms of sexual assault.
A number of measures to improve the safety and security of women in Delhi had also been suggested to the police by women’s organisations following cases of rape in India, murder and sexual assault in the past. The police was to map the city of Delhi and identify areas where women are most vulnerable to assault. Following this, an increased deployment of police patrolling in these areas was proposed, in addition to the improvement of lighting in streets and in public toilets. It was also decided that buses, taxis and other modes of transport with tinted glasses would not be allowed to ply and the police was supposed to enforce this rule. However, neither had police patrolling substantially improved, even in vulnerable areas nor had the police enforced the rule against using tinted glasses. The bus in which the gang rape took place had tinted glasses and had passed through several police check points even as the assault was taking place. In their Memorandum to the Police Commissioner after the gang rape, AIDWA and other national women’s organizations had demanded that the police should follow Standard Operating Procedures (SOPs) in all cases of sexual assault. These procedures would mandate the police to immediately register a case and send the complainant for medical examination; collect the evidence, including clothes at the spot, and carry out the investigation in a time-bound manner. The Memorandum also demands that the police should be punished for failure to follow this procedure. The Delhi High Court had in 2007 directed the police to put in place certain SOPs in all cases of sexual assault. In another case in 2007, the Delhi High Court had once more detailed the procedures that the police should follow in cases of sexual assault of minors to ensure that minors are medically examined within 24 hours; that they are treated with compassion and dignity and not called to, or detained in, a police station. Although the Delhi Police had issued certain Standing Orders, including Standing Order No. 303/2010 which lays down guidelines to be followed by the police in cases of rape, they had obviously not followed these.
Apart from this, in 2006, the Supreme Court in Prakash Singh’s case had directed the central government to carry out extensive police reforms to prevent political/executive interference in police work and to ensure their independence. The judgement had directed the constitution of a state security commission in every state to ensure that the state government does not exercise influence or apply pressure on the state police. This judgement had laid down rules for the selection of the Director General of Police and the Inspector General of Police and other officers, and a minimum tenure for all of them. It had directed that there should be a separation between the investigating police and the police force which would look after law and order as this would ensure speedier investigation and better expertise. It had also stated that a police complaint authority, headed by a District Judge, should be set up in every district to look into complaints against police officials up to the rank of DSP, while grievances against police officers of higher rank would be examined by a State-level Complaint Authority, headed by a retired judge of the High Court or the Supreme Court. Both these heads had to be chosen from a panel of names proposed by the Chief Justice of the State or Chief Justice of India, respectively. However, even these directions of the Supreme Court have not been followed by the various states.
The government, meanwhile, introduced the Criminal Law Amendment Bill, 2012, in Parliament which was again both limited and flawed. The Bill broadened the definition of rape to include within it all forms of penetrative sexual assault. It also replaced the word ‘rape’ with ‘sexual assault’ on demand by several women’s organisations and groups to emphasise that rape is a form of violence against women. The Bill, however, made the offence gender-neutral. As pointed out by AIDWA and others, this seemed to imply that women can commit sexual assaults against men for which there is no empirical evidence at all. It was pointed out that the section would, in fact, allow men to file false cases of penetrative sexual assault against women. Further, the Bill exempted marital rape in India from being recognised as an offence and merely increased the period of punishment in Section 354 (Molestation) from two to five years, with a minimum of one year, without changing the language. Women’s organisations and groups had also demanded that aggravated forms of non-penetrative sexual assault should be recognised in the law. The Guwahati molestation case, in which a 19-year-old girl was manhandled and groped by a gang of men outside a bar, again highlighted the fact that molestation by a gang is not seen as an aggravated form of the crime in our Penal Code.
After the Verma Committee Recommendations, the government once more brought in the 2013 Ordinance and followed it with an Act to amend the criminal laws relating to sexual assault. This Act, which incorporates many of the suggestions that have been made over the years, however, still does not recognize marital rape or extend the categories of aggravated sexual assault to molestation. It also defines the age of consent as 18 years.
The movement for the change of laws relating to rape in India and sexual assault involved several actors over a long period of time, acting together and separately. Some initiated the movement and did the work on the ground while others led a relentless campaign to change the laws. Finally, a gruesome incident ignited the passions of the masses which forced a reluctant government to hastily bring about change. However, the one constant actor was the women’s movement that still has to struggle to implement the laws.