UNIT-2
B) FEMINIST CRITIQUE OF THE INDIAN CRIMINAL LAW-
Decriminalization Of Adultery
The adultery law that existed for a hundred and fifty-eight years did not take
into consideration the will of the woman, unlike the sexual assault laws in
India. A woman would not be punished under the said provision for adultery
under the Indian Penal Code but the man could be prosecuted for having
sexual intercourse with another man’s wife, even in the case of the act taking
place with the woman’s will. A petition was filed in the Supreme Court
demanding the provision to be struck down. The five-judge bench in the said
case held that the provision as “archaic, arbitrary and unconstitutional.” The
bench observed that the provision did not treat women as equals with men
and that a husband is definitely not a master of his wife. Women over such a
long period have been treated unequally and perceived as objects controlled
by men.
The critique of these criminal laws can be viewed as two-fold. Prior to 2013,
only penis penetration of the vagina was constituted as rape according to
Section 375 of the Indian Penal Code. Object penetration or penetration by the
use of fingers did not constitute to be rape and hence, prescribed a lesser
punishment. The rational for this distinction in the criminal laws, as can be
observed, is its patriarchal motive. Since penal penetration could lead to
pregnancies, the patrilineal property rights were seen as threatened.
The second patriarchal aspect of these criminal laws continues to exist even
after 2013. This aspect lies in “consensual sex given on the false promise of
marriage constitutes rape.” The courts have granted convictions at times, but
the judiciary has more often than not ruled against the complainant, rather
than the accused. The assumption made in order to acquit the accused in such
cases under the criminal laws is that a ‘good’ woman would not have
consented to sexual intercourse prior to being married. Invocation of this very
provision in itself is problematic irrespective of a conviction or an acquittal as it
is a patriarchal and sexist provision. Further, in August 2019, the Supreme
Court clarified that unless the false promise is proven, sex between two
consenting adults founded in the promise of marriage, will not be considered
as rape. An article in the Bar And Bench further explained why bringing
“consensual sex given on the false promise of marriage” under section 375 will
be a “great disservice” to the actual rape victims.
This means that some feminists criticize the Protection of Children from Sexual
Offences (POCSO) Act, 2012, for raising the age of consent to 18 years. Their
argument is that this law criminalizes consensual sexual activity between
teenagers (juvenile sexuality), which can lead to young people being punished
for engaging in normal adolescent behavior.
Additionally, they believe that this reflects patriarchal values, meaning that the
law is influenced by traditional ideas that seek to control young people's—
especially young girls'—sexuality
In all cases of separation (be it informal separation or through a judicial order),
marital rape has been criminalised. The sentence for the same has also been
significantly increased but the fact remains that within a continuing marriage,
marital rape is yet to be criminalised even through the amendment to the Act.
The need for the consent of a married woman to be taken by the husband is
not considered important according to the amended Act and hence, portrays a
married woman as an object used by the husband for the purposes of sex.
A judge in India has officially confirmed that rape laws do not apply to married
couples once you’re legally wed, forced sex is no longer a crime. What’s
especially chilling is that the judge, Virender Bhat, was hearing a case in which
a woman alleged that she had been drugged, then forced to marry, and then
raped in other words, she hadn’t consented to the marriage or the sex. Bhat
said there was no evidence that the accuser had been drugged, but he also
said that if the woman’s husband (identified only as Vikash) had forced himself
on her, that wouldn’t qualify as rape under Indian law. And again, activists
have demanded that laws be amended to protect the survivors of marital rape.
But even after the Nirbhaya assault, when laws dealing with crimes against
women were made stricter, marital rape was not made a criminal offence.
1. Focus on Formal Workplaces, Exclusion of Informal Sector Workers
The Act primarily applies to workplaces with a formal structure, leaving
out workers in informal sectors such as domestic workers, daily wage
laborers, agricultural workers, and home-based workers.
Given that a large portion of India's female workforce is in the informal
sector, this exclusion leaves many women vulnerable.
2. Internal Complaints Committees (ICC) and Power Imbalances
The Act mandates the formation of Internal Complaints Committees
(ICC) within organizations, but many feminists argue that these
committees are often biased in favor of the employer.
Women may fear retaliation, job loss, or reputational harm if they file
complaints, leading to underreporting.
3. Burden of Proof on the Complainant
The Act requires women to provide substantial evidence, which can be
difficult in cases of verbal or subtle harassment.
This can discourage survivors from filing complaints due to the stress of
proving their case.
4. Lack of Clarity on Workplace Relationships and Consent
The Act does not clearly address complexities in workplace
relationships, such as consensual relationships that may later lead to
disputes.
This ambiguity can sometimes lead to misuse of the law to settle
personal grudges.
5. Criminalization vs. Restorative Justice
The Act focuses on punitive action rather than a restorative or
rehabilitative approach.
Feminists argue that workplace harassment should also be tackled
through education, cultural change, and gender sensitivity training,
rather than just punishment.
VISHAKA GUIDELINES-
Bhanwari Devi is an Indian social worker from Bhateri,
Rajasthan who was gang-raped while working under
the Rajasthan government’s Women’s Development
Programme. As a part of the program, she had to
spread awareness about hygiene, family planning and
the necessity of educating girls, along with
campaigning against female foeticide, infanticide,
dowry and child marriages.
As a part of her duty, she was stopping the wedding of
a nine-month-old daughter of Ramkaran Gujjar. To her
dismay, she was put forward to social punishment for
stopping the marriage. She was gang-raped by
Ramkaran Gujjar and his five friends in front of her
husband.
Subsequently, Bhanwari Devi filed a criminal
complaint against the offenders. Unfortunately, the
accused were acquitted by a trial court, because
everyone, including the village authorities, doctors
and the police, dismissed her situation.
This injustice inspired several women’s groups and
NGOs to file public interest litigation (PIL) in the
Supreme Court under the collective platform of
Vishaka. They demanded justice for Bhanwari Devi
and urged action against sexual harassment in the
workplace.
Vishaka Guidelines
The court, for the first time, relied on an international
human rights law instrument, the Convention on the
Elimination of All Forms of Discrimination against
Women (CEDAW), to establish guidelines known as the
Vishaka Guidelines.
These guidelines addressed the workplace hazards
faced by women. The court emphasised that the
employer must ensure the safety of their employees
and others affected by their business.
The court stated that such incidents violate the
fundamental rights of gender equality and the right to
life and liberty, as guaranteed under Articles 14, 15,
and 21 of the Constitution. Consequently, the court
issued a writ of mandamus and provided specific
directions for prevention. Such as:
1. It shall be the duty of the employer or other
responsible persons in workplaces or other institutions
to prevent sexual harassment and to provide for the
resolution and settlement mechanism.
2. The court defined what constitutes sexual
harassment. For this purpose, sexual harassment
includes such unwelcome sexually determined
behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal
conduct of a sexual nature.
3. Preventive Steps: All employers should take
appropriate steps to prevent sexual harassment which
shall include:
(a) Express prohibition of sexual harassment (as
defined above) at the workplace should be notified,
published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and
Public Sector bodies relating to conduct and discipline
should include prohibition of sexual harassment and
provide for appropriate penalties against the offender.
(c) In regards to the private sector, employers
should take steps to include the aforesaid prohibitions
in the standing orders under the Industrial
Employment (Standing Orders) Act, of 1946.
(d) Appropriate work conditions should be
provided with respect to work, leisure, health, and
hygiene to further ensure that there is no hostile
environment towards women at workplaces.
4. Criminal Proceedings: The employer shall take
appropriate action if any such behaviour by the
perpetrator falls under the Indian Penal Code. The
employer should file or assist the aggrieved in filing
the complaint with the appropriate authority.
Moreover, the employer shall ensure that the
aggrieved or the witnesses are not victimised or
discriminated against.
5. Disciplinary Action: Where any such behaviour
amounts to misconduct under the code of conduct or
service rules, appropriate disciplinary action should be
initiated by the employer by those rules.
6. Complaint Mechanism: Whether or not any such
behaviour constitutes an offence under the law or the
service rules, an appropriate complaint mechanism
should be created in the employer’s organisation for
effective redressal of such complaints. Such a
complaint redressal mechanism should ensure the
timely resolution of complaints.
7. Complaints Committee: The complaint
mechanism, referred to in point (6) above, should be
adequate to provide a Complaints Committee, a
special counsellor or other support services, including
the maintenance of confidentiality of such complaints.
The Complaints Committee should be headed by a
woman and not less than half of its members should
be women. Also, to prevent the possibility of any bias
or influence from senior levels, such a Complaints
Committee should involve a third party, either an NGO
or other bodies who are familiar with the issue of
sexual harassment.
The Complaints Committee must prepare an annual
report including the number of complaints received
and the action taken by them. Such a report shall be
submitted to the government department concerned
with the complaints. The employers and person in
charge shall also report on the compliance to the
Government department.
8. Workers’ Initiative: Employees should be allowed
to raise issues of sexual harassment at workers’
meetings and in other appropriate forums and it
should be affirmatively discussed in Employer-
Employee Meetings.
9. Awareness: Awareness of the rights of female
employees in this regard should be created in
particular by prominently notifying the guidelines.
10. Where the perpetrator of sexual harassment
is a third party or an outsider, the employer and
person in charge shall take all steps necessary and
reasonable to assist the aggrieved in terms of support
and preventive action.
11. The Central/State governments are requested
to consider adopting measures including legislation to
ensure that the guidelines laid down by the court are
also observed by the employers in the Private Sector.
D) STUDY ON WOMEN FACING DEATH SENTENCE IN
INDIA-
It is simply a matter of fact that there has been diminutive
research on death penalty and 34 gender discrimination. In
general, it is presumed that if there has been gender
discrimination on capital punishment it would have
favoured female offenders either by not awarding them
death sentence or by not executing a female death row
prisoner.
Shabnam and Salim were co-accused in a murder case that
was tried against them where they were alleged to have
committed murders of 7 persons, who were members of
Shabnam’s family. They were tried together and after the
trial, the learned judge of the Allahabad HC pronounced
death sentence of both the convicts. The judgment of the
HC was challenged in the SC but the appeals were
dismissed and death sentence was imposed on them.
Shabnam's now 12-year-old son who was born in jail
following which her friend took his custody as guardian,
appealed to the President of India to “forgive” her. Despite
having her mercy plea rejected the first time, the same
day, Shabnam moved a second mercy petition before the
President.
In the Amroha case, the counsel for the petitioners urged
the apex court to consider the "good conduct of the two
convicts" for commutation. The counsel argued that the
two convicts have shown the possibility of reform and that
this good conduct should be considered as “mitigating
circumstance.” the Amroha case also raises the question of
gender and punishment as one of the convicts, Shabnam,
is a woman. Although the total number of women death-
row convicts is very small, it nonetheless is important, as
no woman has been hanged in recent times. In 2006, the
Supreme Court had awarded death penalty to two women,
Renuka Shinde and Seema Gavit, for multiple murders of
children in the 1990s. Eight years later, in 2014, their
mercy petition was rejected. The question of inordinate
delay is obvious as the two women were first sentenced to
death penalty in 2001 by the trial court. In the Shinde-Gavit
case, after the President rejected the mercy petitions of the
two sisters in 2014, Special Prosecutor Ujjwal Nikam told
the press that the crimes committed were much more
extensive, but that the prosecution could prove only a
handful based on circumstantial evidence. However, he
maintained the revelations were such that “it shocked the
conscience of the country.”
The Trial Court while convicting Shabnam and Saleem
focussed mainly on the role and responsibility of the
daughter. The society perceives love /affair / pregnancy as
an illicit relationship if happening between an educated girl
and an uneducated boy. s. Here is a case where the
daughter, appellant-accused Shabnam, who has been
brought up in an educated and independent environment
by her family and was respectfully employed as a
Shikshamitra (teacher) at the school, influenced by the love
and lust of her paramour has committed this brutal
parricide exterminating seven lives including that of an
innocent child. Not only did she forget her love for and duty
towards her family, but also perpetrated the multiple
homicide in her own house so as to fulfill her desire to be
with the co-accused Salim and grab the property leaving no
heir but herself. The appellant-co-accused Salim hatched
the intricate plan with her, slayed the six deceased persons
with an axe, escaped the crime scene, hid the murder
weapon and supported the false story of occurrence. Both
the appellants-accused wrench the heart of our society
where family is an institution of love and trust, which they
have 46 disrespected and corrupted for the sake of their
love affair.
The Allahabad High Court too upheld the decision of the
Trial Court, stating that the nature of the crime was
diabolical. The court observed that Parricide is one of the
most heinous crimes and in the case at hand the crime has
been committed in the most inhuman and grotesque
manner by the appellant- accused, which shows their lack
of remorse, kindness and humanity. Therefore, death
sentence for them is the only punishment which is in
proportion to their crime.
Some argued that rehabilitative justice, not retributive
punishment is to be given. . If today, Shabnam can teach
her fellow inmates how to read and write and Salim can
rehabilitate him through, for example reading in jail, and
then there is reason to believe that death penalty is not the
desired outcome for these two.
In media too, when a woman is convicted of murder, it is
often portrayed as exceptionally shocking. When a mother
kills her children, the public is outraged. Yet the fact that
hundreds of women and children are abused and killed by
men every day does not ignite the same firestorm and
outrage.
