Nirbhaya Rape case- A game changer verdict on women and the criminal law.
Introduction
"Brutality against women is a exemplification of traditionally dissimilar power relations between men and women, which have diode to domination over and narrow-mindedness and intolerance against women by men and to the hindrance of the total evolution of women, and that violence against women is one among the crucial social mechanisms by which women are forced into a lower-ranking position in distinction with men”.
Women Empowerment is basically to increasing and improving the social, economic, political and legal strength of the women, to make sure equal-right to women, and to make them confident enough to call their right. Thus, women empowerment is a multi-dimensional exercise which should enable individuals or a group of individuals to realize their full identity and powers in all spheres of life.
Swami Vivekananda, stated that, There is no chance for the welfare of the world unless the condition of women is improved. It is not possible for a bird to fly on only one wing. "koffi Annan, former Secretary General of the U.N.O., also rightly pointed out that, There is no instrument more efficious than the empowerment of women for development of a country”.
Now move towards the Nirbhaya case it is a verdict which sensitized the whole world regarding the rights, dignity and safe environment for women. There was a public movement for more effective, efficacious, and stringent law against the violation of human rights, privacy, dignity and self- esteem of women.
Formation of J.S Verma Committee
This all compelled the Union government of India to set-up Justice J.S Verma Committee and on the basis of the report of this committee radical changes were introduce in the Indian criminal law by Criminal law (Amendment) Act of 2013. This amendment Act ‘which provides for the amendment of the Indian Penal Code, 1860; Code of Criminal Procedure 1973; Indian Evidence Act, 1872; and Protection of Children from Sexual Offences Act, 2012 in relation of sexual offences associated laws. Act broadenthe scope of definition of “rape” and provided for capital punishment in rape cases that cause the death of the victim or leave her in a permanent lethargy state. Act also provides for several new offences to make law more stringent’.
This case basically involved two questions:
Whether dyeing declaration requires corroboration to be relied upon?
Whether this case was fit for the award of ‘death sentence’ and be treated as ‘rarest of rare’ case for capital sentences?
Just after the incidence of ‘nirbhaya’ December 16, 2013 – the horrific gang- rape. There was a mass movement and protest against the present law on rape, punishment of rape and other crimes against of women, For days together; there was mass protest, in Delhi and many parts of India, against criminal law system prevailing at present.
Ultimately the Central Government constituted a three members Committee, on December 23, 2012, under the chairmanship of Justice J.S. Verma, Former Chief Justice of India, to review the present day criminal laws relating to women and suggest necessary alteration for the reform of India's sexual violence laws.
The Committee gave its report in a record time of 30 days only. The report, after reviewing the present laws, submitted on January 23, had made recommendations on laws related to rape, sexual harassment, trafficking, and child sexual abuse, medical examination of victims; police, electoral and educational reforms. The Report consists of 630 pages suggesting amendments to criminal laws to provide for higher punishment to rapists, including those belonging to police and public servants.
The Committee gave its recommendations on various aspects of criminal law or objectionable behaviour against women like eve-teasing, voyering, acid attack, trafficking in women, sexual harassment of women at work place, child sexual abuse, Khap Panchayat and Honour Killing and on sentencing and punishment.
Significant new provisions introduced in Criminal Law
As a result of this Report, various new offences were incorporated in the Indian Penal Code, 1860 (list has been provided below), and required changes have also been incorporated within the Code of Criminal Procedure of 1973 and the Indian Evidence Act of 1872 by the Indian Parliament.
Further, the Parliament also passed much awaited law the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 in abidance of guidelines provided by the Supreme Court in judgment delivered by Hon'ble Chief Justice J.S. Verma in Vishaka'scase. Thus, the Nirbhaya rape case has been instrumental in revolutionizing the Indian criminal law which fulfilled the long awaited requirement of the Indian criminal law which included exacting provisions for sexual assault and sexual harassment of women at work place.
Some of new offences introduced in the Penal Code of India are:
Section 326A-Voluntarily causing grievous hurt with the utilization of acid
Section 326B -Voluntarily throwing or attempting to throw acid
Section 354A-Sexual Harassment.
Section 354B-Assault or use of criminal force to disrobe a woman
Section 354C-Voyeurism
Section 354D- Stalking
Section 370 - Trafficking Women.
Section 370B- Exploitation of Trafficked Person
Sections 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB and 376E relating to rape law, some of which have been substituted/newly added by the Criminal Law (Amendment) Act, 2013 and further amended/inserted by the Criminal Law (Amendment) Ordinance, 2018.
It has been provided only if the rape is being committed by a police officer, public servant, jail authorities, hospital authorities, relative, guardian or teacher or on a pregnant women, while committing rape causes injury to the victim or does rape repeatedly, commits rape on mentally and physically challenged lady, the minimum term of imprisonment shall be ten years, which can reach to imprisonment for life, which shall mean imprisonment for the remaining part of that person's natural life, and shall even prone to fine. (Section 376(2) (n)).
Similarly, Sexual intercourse by husband upon his wife during separation has also been made punishable under section 376B.
Under section 376D 'gang rape’ has been made a distinct and an aggravated sort of offence and stringent punishment has been provided. The punishment provided for is “rigorous imprisonment for a term which shall at least twenty years, but which can reach to life which shall mean imprisonment for the residue of that person's natural life and with monetary amount".
Compensation and Alternative facilities to Rape victims
Recently introduced Section 376B of the Code of Criminal Procedure of 1973 has additionally created a motivating and loads seek for provision that
“The compensation collectable by the authorities below section 357A shall be in incorporation to the payment of fine to the victim below section 326A or section 376D of the Indian Penal Code’’.
Under section 357C of the code of Criminal Procedure of 1973, it’s been provided “free treatment shall be provided to a rape victim”. It affirm that 'All medical-centre, public or non-public, whether or not pass the Central Government, the authorities, native bodies or the other person, got to directly, offer the first-aid or medical treatment, freed from value, to the victims of any offence lined below section 326A, 376,376A, 376B, 376C, 376D or section 376E of the Indian Penal Code, and have to be compelled to directly inform the police of such incident”.
The Indian Evidence Act of 1872 has additionally been amended to subsist with the situations and to implement the decisions of the Supreme Court. The section 146 provision incorporated provides that questions on the character and former sexual expertise shall not be place to a rape victim in interrogatory. “It provides as follows associate exceedingly( in a very) prosecution for an offence below section 376, section 376A, section 3768, section 376C, section 376D or section 376E of the Indian Penal Code or for endeavour to execute any such offence, where the question of consent is an problem, it shall not be legitimate to cite as evidence or to put questions in the cross-examination of the victim as to the universal virtuously wrong character, or previous sexual expertise, of such victim with anyone for proving such consent or the standard of consent’’.
New section additionally embarrass of the presumption of law concerning the consent of the rape victim. The section 114A states that:
In a prosecution for rape below clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause(I) , clause (o), clause (k), clause (f), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the defendant is proved and also the question is whether or not it was while not the consent of the victim ostensible to have been raped and such woman states in her corroboration before the court. That she did not consent, the court shall presume that she didn’t consent.
Court to respond to the cry of the society
The court conjointly recognized that Society's reasonable conjecture is that deterrent penalty equivalent with the gravity of the offence be awarded. When the crime is cruel, sterling the collective wanting of the community, sympathy in any kind would be misplaced and it would shake the credence of public within administration of criminal justice system. “As seen in Om Parkas v State of Haryana, (1999) 3 SCC 19, the Court should reply to the cry of the society associated to settle what would be a deterrent penalty for what was an apparently despicable crime".
This incidence sparked public protest not solely in New Delhi but nationwide. We have the at tendency to sleep in a decorous community where law and order is supreme and also the citizens fancy inviolable fundamental human rights. Therefore, the court was required to respond to the cry of the society, Furthermore, the court is to align good values and examples for the posterity as crime against women not solely affects women's self esteem and dignity, however conjointly degrades the pace of societal development.
Suggestion to uplift the status of women in the society:
These suggestions were conjointly made by Humble Justice R. Bhanumathi in her separate judgement delivered:
Severe legislation and punishments alone may not be ample for fighting increasing crimes against women.
In our tradition – bound society, certain attitudinal amendment and change in the mindset is required to respect women and to ensure gender justice.
Right from childhood years’ kids have to be compelled to be hyper sensitized to respect women.
Gender equality should be made a part of the school curriculum.
Banners and placards in the convenience vehicles like Autos, taxis and bushes etc. Should be ensured.
Sensitization of the general public on gender justice through T.V, media and press ought to be welcomed.
Use of street lights, well lighted bus stops and extra police patrol throughout odd hours must be ensured.
Police/security guard should be devoted at dark and lonely places like parks, streets etc.
Mobile apps for immediate assistance of women ought be introduced and effectively maintained.
The school teachers and old esters should be trained, not only to conduct regular character building and ability enhancing exercise, but also to keep a watch on a particular behavioural pattern of the youngsters therefore building them gender sensitive.
The educational institutions, Government Institutions, the employers and everyone involved should take steps to form apprehension with reference to gender sensitization and to respect women.
Conclusion
India is known fоr а lоt оf things. The роsitive ones are its сulture, diversity оf religions, сriсket рrоwess, beautiful scenic beauty. But оften, а few inсidents tаke рlасe whiсh mаke these роsitive fасtоr stake а bасkseаt in fоreign, аnd even domestic рubliс орiniоn. The Nirbhаyа inсident wаs the sраrk whiсh ignited the fire оf negаtive public орiniоn аbоut Indiа.
It wаs reсently рrinted in Sex Rоles, а jоurnаl аnаlysing wоmen’s issues, gаve асаdemiс bасking tо sоmething we аll Indian’sarea awareоf. It highlighted hоw “beliefs thаt blаme wоmenfоr their victimisation, in turn, рrоvide legitimасy viоlenсe аgаinst wоmen”.
Аlmоst nоn-existent implementations оf government sсhemes fоr betterment оf wоmen’s situаtiоn is оne оf the mаin reаsоns fоr the dire situаtiоn оfwоmen in Indiа. Аlthоugh the sаme саllоus аttitude is visible in а lоtоfрlасes, it аffeсts the рrоblem оf wоmen more. This is beсаuse the саllоus аttitude is nоt just аdministrаtive оr роlitiсаl, it is rооted in sосiety аnd mоrаlity.
After the Nirbhаyа rарe саse, where а wоmаn wаs brutаlly rарed sоlely beсаuse she wаs оutlаteаt night, аndwas enjоying her freedоm аnd her life with her mаle friend, our government hаs аlthоugh tаken steps tо improve the соnditiоn, it hаs nоt helрed the wоmen much.
Аt sоme роint the рrоtests by wоmen were аt its рeаk. But in the due соurse оf time, it lоst its sраrk аnd ultimаtely faded аwаy. But still, the Nirbhаyа rарe саse, knоwn tо be the mоst hоrrifiс саse of а сrime аgаinst wоmen in the histоry оf Indiа, hаs а lasting imрасt оn the Indiаn рорulance.
References
“The united Nations declaration on the elimination of violence against women”.
Indian Penal Code,1860
The Code Of Criminal Procedure,1973
The Indian Evidence Act,1872
https://www.thehindu.com/news/resources/full-text-of-justice-vermas-report-pdf/article4339457.ece
Criminal Amendment Act,2013
Written by- Pranzal Saini, student of BA.LLB. (III) Year from Mody University of Science and Technology, Sikar, Rajasthan