The second wave of feminism in the late 1960s and early 1970s raised some important concerns related to how the criminal system in different countries are male dominated and hence emerged the feminst criminology. Over the past decade, criticism of criminal justice system from feminist point of view has been raised by theoretical as well as practical methods.
In India, the Constitution of India not only ensures equality but also sanctions the State to ensure practices and laws of positive discrimination in favour of Women for neutralizing the cumulative socio-economic,educational and political disadvantages faced by them due to the stereotypical society. Article 15 prohibits any form of discrimination on grounds of Caste, religion, sex, race and place of birth, whereas, Article 16 grants equal opportunities of employment. Article 51A (e) makes it a fundamental duty for all the citizens to reject practices that go against the dignity of women.
The National Crime Records Bureau (NCRB) is the sole authority that every year publishes a date on the crime rate for information of the public and policy makers. Rajasthan is among the top states in crime against women according to the national crime records bureau for 2019.
And despite of providing better education facilities laws, strict punishment, national commissions, awareness campaigns, employment opportunities, the irony is that according to the NCRB (National Crime Records Bureau) September 2020 report, the country overall recorded an average of 87 rape cases daily in 2019 and around 4,05,861 cases of crime against women during the year which menas there has been a rise of over 7% from 2018. According to “The Thomson Reuters' survey in June 2018, India leaving behind even countries like Afghanistan and Syria has been ranked as the world’s most dangerous nation for women.
COVID 19 PANDEMIC AND INCREASE IN VIOLENCE AGAINST WOMEN
The approximately 1.3 billion of Indian population was ordered to follow a nationwide 21 days lockdown to prevent the impact of coronavirus in India on 24trh March, 2020. From 25th march till 31st may, the country was in lockdown for approx 3 months and started its first unlock from 1st june after coming 4 phases of lockdown.
Covid 19 not just arose physical health and economic concerns but serious mental health issues with exposing a weak criminal and public security system. Since the mandatory lockdown been imposed, the world has witnessed a major increase in violence against women. Several countries have enacted special policies, laws and programs to deal with violence against women in homes. In India, the National Commission for Women has reported a rise of 94 percent in complaint cases where women have been abused in their homes during lockdown. Stress, the disruption of social and protective networks, and decreased access to services can all exacerbate the risk of violence for women.
Majority of the compalints that were reported in any police station or with national commission for women across the nation was of domestic violence and rape. The concern arises as to the reason behind the rise in crime and inhuman treatment against women during a pandemic where all humans regardless of gender, class, color or any form of discrimination was suffering from a faer of getting infected to a disease that was unknown to solutions and was leading to not just respiratory or contagious problems but also death in some cases. The concern arises that what are the reasons behind the sudden increase in crime against women and also what are the steps taken by the authority and other organisations in ensuring security and prevention of such heinous crimes.
The long term consequences of Domestic Violence can be equally devastating, thus active measures towards surveillance and management of this violence needs to be an indispensable part of the fight against COVID-19. The Protection of Women from Domestic Violence Act of 2005, as amended, must be implemented effectively. There could be temporary shelter homes available in each city to ensure a place for women in need. Educating, sensitising through media, webinars or newspapers, radio and using available human resources like ASHA workers and other health workers, by conducting door to door surveys about covid-19, in identifying active signs of Domestic Violence would be beneficial for present as well as future situations.
In the absence of checks and balances amidst lockdown, women and girls are trapped in the violence home with the abusive men and many are facing severe abuse. Several NGOs petitioned the courts, some courts have issued directions to the state to provide protection to women and children. For instance, the Delhi High court, on a petition filed by an NGO, directed the government to deliberate on measures to ensure effective implementation of Protection of Women Against Domestic Violence Act, 2005 in the wake of increasing number of cases. The state government of Uttar Pradesh has established a specific helpline for victims of domestic abuse called "Suppress Corona, not your voice."
Other than domestic violence, the crime against women that has shown a significant rise in this period of lockdown is Rape cases in India. In June, a 20-year-old woman was raped at COVID-19 quarantine centre in Thane, Mumbai. A 20 year old Covid-19 patient was raped inside an ambulance by the driver while on the way to hospital in Pathanamthitta, Kerala. The charge sheet was filed on the 47th day of the incident by the police. One of the incident that is in spotlight due to its political and social angle is the Hathras Rape case were a 19 years old girl was gangraped in Hathras district in Uttar Pradesh.
THE ROLE OF JUDICIARY IN PREVENTING CRIMES AGAINST WOMEN IN INDIA
The judicial intervention by the judiciary has been liberal and progressive throughout the years. Judicial activism, a growing trend, has been very helpful in the protection and empowerment of women. Since the judiciary cannot make law but only interpret and pass judgments through it, its sensitivity towards women safety can be admired. But that doesn’t change the fact that crimes against women have risen notably this year .The constitutional mandates and other statutes ensure protection of women against forms of discrimination, favouring them in spheres such as economic and social life. By interpreting laws, exercising discretion, establishing policies and procedures and ensuring the security of the victims.
Since the Indian judiciary is independent, the legislature has the power to make laws but the judiciary interprets it. All provisions of the Constitution and all laws enacted by the legislature get their real meaning and import through the process of judicial interpretation. The Constitutional in article 14, 15 and 16 provides protective discrimination in favour of women relating to several aspects of their social, economic and political life that have come up before the courts. The Indian Penal code provides for the punishments and definition of several crimes against women and the Criminal procedure code after the recommendations by the verma committee amended various provisions to provide protection and equal dignity to women.
Judicial activism refers to judicial Judicial philosophy that posits that the courts should go beyond the words of the constitution or a statute to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. Active role of the judiciary in upholding rights of citizens and preserving the constitutional and legal system of the country is judicial activism. Judicial activism means the judiciary is taking an active part wherever the legislature is failing. The concept of judicial activism is relatively new and the judiciary is very active in all aspects.
The judiciary in some cases have power of discretion which means that the judges may impose restriction with regard to bail, or even deny release in accordance to the sensitivity of crime and offenders history. The judge can also restrict a person on bail to even meet the victim at any chance. Judicial discretion is the power of the judiciary to make some legal decisions in accordance with the circumspection. Where appropriate, judicial discretion allows a judge to decide a legal case or matter within a range of possible decisions.
Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. The constitution of India provides an express provision for judicial review in the shape of Article 13. Article 13 in fact provides for the judicial review of all legislations in India, past as well as future. This power has been conferred on the High courts and the Supreme court of India which can declare a law unconstitutional if it is inconsistent with any of the provisions of part three of the constitution. In Vishaka v. State of Rajasthan , Supreme Court had framed guidelines and norms for protection of working women at the workplace, and the judgment served the importance of creating a safe environment at the workplace for ensuring security of female employees.
VICTIM PROTECTION AND ACCESS TO JUSTICE
The Judiciary by various judgments has ensured that the basic human rights of a woman whether as a victim or as an accused should be protected. The national commission for women which is a quasi judicial body was set up to ensure security and justice to women in India. By constitution, women are granted positive discrimination and reservation of seats in Panchyat, Judiciary or any department. Various debates on protection of women, especially after the Verma Committee suggestions, resulted in amendments to the Indian Penal Code 1860 and Criminal Procedure Code 1973 which were introduced with a view to make them more helpful and effective. An effort to provide protection to women is also made by Sections 124 to 128 of the CrPC by provisioning maintenance to not only wife but also women in live-in relationships.
Therefore, the Judiciary has played a very important role in providing protection and dignity to women in India in all spheres. It is and always will be the watch-dog of the constitution as well as democracy
CONCLUSION AND SUGGESTIONS
Crime against women has been a prevalent concern all around the globe for centuries now. Although the judiciary and legislature has ensured protection and equality to women in all spheres, what needs to be done is awareness and speedy justice. Speedy justice is not merely an aspect of the right to life with dignity, but is essential for the efficacy of the law and its desired impact, as well as for prevention of its violation. The government somewhere during the pandemic forgot to be concerned about domestic violence to women at home. What need to be done is taking measures to address violence against women in preparedness and response plans for COVID-19 by governments and policy makers. To ensure protection, the preventive, curative and systematic methods must provide support to the survivors of violence and early detection cases. Training can be given to the healthcare providers to provide better quality of care and counseling services to victims of violence. Facilitating hotlines, telemedicine services, shelters, rape crisis centers, counselling for survivors of violence can be ensured. The media especially should be using a stage of information provider in better means. By organising campaigns about women's health, awareness and sensitizing mental health issues. Media can be used as a source to raise issues and concerns.
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3rd year, BALLB (Hons.)
Alliance School of Law Alliance University, Bangalore