Chapter 5

conclusion and suggestion

“Justice will not be served until those who are unaffected are as outraged as those who are.”
Benjamin Franklin

Sentencing or final pronouncement or a judgment is a crucial step in deciding or disposing of

the case. As has been argued repeatedly, the sentencing pattern around the world showcases
judicial autonomy rather than providing justice to the seeker. This thesis has made a humble
effort in summarizing the sentencing pattern in sexual offences and its aftermaths in brief.

To sum up this thesis, the first chapter introduces the sentencing policy concept and
highlights its significance in a prudent criminal justice system. This chapter further details the
research literature which are in accordance with the research. It poses a very pertinent
question as to whether a uniform sentencing policy in sexual offences adopted by the
judiciary at the sentencing stage can bring down the rate of sexual menace in India.

But before the researcher answers this question in the form of a finding, a quick gist of the
second chapter is worth mentioning as it tables down various sentencing practices being
followed in few of the major countries. Now, it has countries where a strict sentencing
guideline has been provided by the legislation to judiciary to bring about uniformity and to
establish a rationale for a particular crime in society. However, countries having such
guidelines has shown that they have nothing to lose as far as their law-and-order policy
implementation is sturdy. This chapter is of utmost significance as it provides a comparable
measure to support this study's findings. Countries having religious dominance and socialist
approach have been refereed on the rationale that they exhibit that sexual offences are not to
be tolerated at any cost.

Chapter Three talks about the various theories of punishment which are as old as humankind.
However, each of these theories' importance has not withered away. Instead, they still add a
flavour of justification to each kind of punishment that is accorded to any criminal in any part
of the world for their wrongdoing. Moreover, as time has travelled, these theories have seen
an umpteen change in its nature and rigidity. This chapter is particularly significant as it
offers a perspective to the punishments given under the Indian criminal justice system. This
chapter discusses a range of sentences from retributive to expiatory to reformation theory.
With each approach, the author has tried to point out the significance they held anciently and
how it has evolved.

Chapter Four embodies within its ambit the legislative endeavours put forth so far on sexual
offences in India. It incorporates clauses of the Indian Penal Code, 1860, which is
acknowledged as only India's criminal law. Though the provisions are self- sufficient and
have made some changes to be in tune with the times, however, many challenges are still
faced by it especially in the scenario where even women and children in every 09 minutes are
raped in one or the other corner of the country. Since IPC failed to deter criminals, the 2013
and 2018 amendments were introduced to make chapter XVI (sexual offences) more
deterrent. It also covers specific procedural requirements and some evidence law sections that
bear nexus to the sentencing policy and aids judicial system.

Nevertheless, the IPC did not provide boys with protection from sexual exploitation and in
the wake of spiking cases of child sexual abuse, in 2012, the Parliament passed the POCSO
legislation, which was gender-neutral and included child’s sexual violence and pornography
in addition to sexual misconduct. POCSO Act too, has witnessed a lot of amendments within
its short period of existence.

The chapter also mentions the POSH Act, 2013 and its ramifications in today's times. As
envisaged, the Act is a blend of provisions on deterrence and redressal of sexual assaults
against females in the office. The divisional bench of the Kerala High Court issued
judgement on 07.12.2020 ([Link] Pannian v. Central University of Kerala), reasserted that
the 2013 POSH Act does not contemplate a situation of discrimination on the basis of sex
whereas it specifically deals with discrimination at workplace.

The author in the same chapter has highlighted the relevant provisions of PWDVA, 2005,
which attempts to get rid of the shackles of patriarchal set up of Indian society at large. The
Act provides protection to women in the shared household from every state of violence
(sexual, bodily, emotional/psychological and financial).

The JJ Act, 2015 is passed by the Parliament of India to streamline the procedure of trail of
children in conflict with law between the age of 16-18 years of age to not to be tried as an
adult. The rationale behind inclusion of this Act in the chapter is that this act punishes
juveniles involved in heinous crimes only for a period of 3 years thereby setting bad example
for the like-minded potential juvenile offenders.

Chapter Five of the thesis is having a humanitarian approach as the researcher talks about the
mental agony of the victim and their near and dear ones on account of being a victim of
sexual offences. It has been seen that their family and the victim is outcasted and isolated
from the community because of the fact that they are not chaste and pure, no one is ready to
marry them and sometimes they are even more sexually harassed because of the societys’
perception of victim being a person of easy virtue. Furthermore, the researcher has by way of
a questionnaire, tried to explain the apathy of the convicts and their family in cases of false
complaints/FIR or wrongful conviction, as well as has even covered to what extent the
accused or convicts repent after their wrongful acts. Endeavours have been made to bring
onboard the real rate of the conviction and acquittal concerning sexual offences in India by
quoting NCRB reports.

The Sixth chapter is the core of this thesis for it covers the latest judgments given by the
Apex court and with the help of this chapter the researcher has tried to study the trend and
approach of the judiciary which pronouncing any case involving sexual offences. The court's
inclination has been observed to be more towards reformation side as they are cautious of an
accused surroundings’ which plays a central role in molding an intention requisite for a
committing an offence.

To conclude, the findings of the author are as follows:

1. The laws relating to sexual offences in India are women-centric, ignoring the male
counterparts who are also sexually harassed and mishandled by some, but as there is no
platform for any boy/man who has attained majority, hence most of them succumb to silence.

2. The data regarding sexual harassment is not readily available by any organization.
They are hesitant to share any such misconduct with an outsider for fear of being bloated by
the mainstream.

3. The courts' judgments/pronouncements exhibit a trend towards blending all the

theories of punishment. The courts are more inclined to consider the accused's rehabilitation
and reformation and seldom resort to setting an example for society in cases of external
pressure and outrage.

The courts are sounding more empathetic towards the accused in today's’ times and tries to
reinstate them back to the society as they are seen a mere victim of circumstances, at the
same time, more challenging and rigorous punishment is reserved for cases where
aggravating circumstances are outweighing mitigating circumstances, however, in such cases
also, the death punishment is certainly not the only choice of the judges.

Therefore, in such cases, a hefty amount of compensation is provided to the victim to assuage
them of their pain and award them equitable remedies with proportionate justice.

Providing for a sentencing guideline can be a significant step towards establishing uniformity
and certainty in terms of penal provisions. However, fettered number of rights given to the
judges are also the need of an hour. One can argue that no empathy should be shown towards
the accused of sexual offences. Still, it cannot be denied that treating all the accused equally
goes against Article 14 of our Indian Constitution which propagates ‘like should be treated
alike’.

7.2 Suggestions

Reference: [Link]
right-now/

The author has in order to make this world a better place has strived to suggest some neutral
measures like:
a. Sentencing guidelines

Guidelines for sentencing should be developed, and the “principle of proportionality” be

promoted for it specifies that sentence levied ought to proportionate to the offence
committed. Neither too less nor too much. This can be adopted as the motto of framing the
guidelines. The norms should be drafted so that a substantial part of the case is covered,
which will help the judge impose the punishment proportionally. The sentencing trend should
be perfectly balanced and be considerate of not only victims’ empathy but also the
accused/convicted and his family.

b. Organizational revamping

The law enforcement agencies play a pivotal role in enforcing the laws and bringing about
evident changes in the society. This issue has been discussed here considering three segments
who are equally involved in the process and they are as follows:

To begin with it has been observed that police officials who are first point of contact in cases
of sexual violence act recklessly and are reluctant to file a FIR and at times they ask
uncomfortable questions to victim and their family and feeling hapless the aggrieved decides
on not to proceed with the case further in fear of shame and stigma. Therefore, police
sensitization is the need of the hour so that the people are not scared of reporting their ordeal
to them irrespective of the class or segment they belong to.

Furthermore, the ordeal for the victim does not end here, for when they are shifted to the
government hospital for medical checkup, very often male doctors perform the test on female
victims using TFT and again the victim’s character is seen as one of reason of violence. Here
too, the author suggests that the medical test of a female victim of sexual violence be done
only by a female medical practitioner and the TFT should not be a criterion for recording the
evidence and 100% ban of Supreme Court

should be followed as it is not only a breach of right of privacy but also scientifically
inaccurate.207
c. Gender Neutral laws

An overhauling of some provisions of Indian Penal Code, 1860 be initiated to make it seem
more gender-neutral. Laws related to Sexual Harassment, Domestic Violence should be more
resounding to be gender-neutral as male counterparts have been ignored, and there is no
statutory protection given to them. Nevertheless, the author has suggested that the term
‘WOMEN’ should be dropped off from these women- centric laws, so that male and female
are treated at par in terms of the monetary and ancillary protections.
d. Change in the patriarchal mindset

It should not be ignored that uniform and transparent sentencing policy would not bring down
the rate of sexual offences in India for countries like Afghanistan, Bangladesh or Pakistan are
handing out the death sentence for rape and still, analysts in these areas are publicly reporting
that cases of rape are growing steadily and the conviction rate is abysmally low. So,
educating the masses and the youth about sex education is imperative and alongside this, the
implementation process and mechanism is to be kept the focal point to achieve the desired
vision of safe and secure society.
e. Mental age to be contemplated in POCSO
'Child' is defined as any person under 18 years in Section 2(d) of the POCSO Act, 2012. In
Mrs Eera v. NCT of Delhi208, the issue before the court was that because the victim was 38
years of age (having mental age 6-8 years), her building's watchman had sexually assaulted
her, whether the accused must be booked under the provisions of POCSO. The apex court
turned down the victim's plea (represented through her counsel) asserting that the language of
the legislation is clear and unambiguous, and its interpretation or scope cannot be widened by
the judiciary for it will amount to judicial legislation. On this basis, the author suggests that
the ambit of POCSO should be expanded to cover sexual assault with any child suffering
from any genetic

207 2013
208 AIR 2017 SCC 787

abnormality thus having the mental age of less than 18 years regardless of her biological age.

f. Legal awareness in elementary education

The author's suggestion is that the curriculum of students in schools should include the basic
knowledge of fundamental laws of the country, starting with the Constitution and IPC.
Creating an environment where young students are aware of some of their fundamental rights
and provisions for juvenile offenders and sexual offenders needs urgent attention to
effectively bring down the rate of involvement of juveniles in sex-related crimes. The taboo
around the sex should be tackled mindfully, and the myths around sex education involving
only sexual intimacy should be cleared and reproductive health, sexually transmitted
diseases, contraceptives, gender identity, equality and self-worth and importance of consent
are all significant themes of sexual violence and they must be emphasized on so that the
young minds are not misled and harassed.

Last but not the least the role of the judiciary should not be ignored as they are entrusted with
the task of setting an example once for all in cases of sexual assaults. Hence, as observed by
Attorney General KK Venugopal that judges too should be sensitized over the significance
and the visions the enacted statues play in any legal system and get rid of the gender
stereotype and patriarchal mindset for it will have a damaging effect on the victim and the
society. His observation came in the wake of some infamous judgements given by few High
Courts wherein sexual assaults accused was given bail on the condition if he agrees to tie
rakhi from his victim and swears to protect her and furthermore in another judgment the
accused was absolved on the condition of marrying the rape survivor. Lately on January 15
and 19, 2021 the judgment pronounced by the Bombay High Court Nagpur bench also
created a furore when a ladyship acquitted the accused on the ground that groping a victim
without taking her clothes off would not be a fit case to be made out in POCSO as there is no
skin-to-skin contact (Satish Ragde v. State of Maharashtra209, Libnus v. State of
Maharashtra210). These and many other such cases only succeed to victimize the survivor
even more.

209 Criminal Appeal No.161 of 2020

210 Criminal Appeal No.445 of 2020

g. Speedy trial

One of the rights, as enunciated in UDHR 1948 and Indian Constitution 1950, is the right to a
speedy trial. This forms the core of a robust democratic system. As was recommended by the
Malimath committee in 2003 and JS Verma Committee in 2013 that the prosecution of rape
case should be completed within four months and so the author insists and endorses this idea
for rebuilding and restituting the lost faith of the citizens in the judiciary.

h. Marital rape to be criminalized

Marital rape is the act of forcing your spouse into sexual act without their consent, and it is
seen as entirely legal and justified as the husband has the license to rape his wife with
impunity forcibly. India is out of 36 countries which has till date not impeached this practice,
and it is a complete manifestation of patriarchal mindset deeply ingrained in our system.
Hence the author suggests that the exception Section 375 of IPC be repealed so that
irrespective of marital status everyone has the right to control over their body.

In the end, it can be seen that the law is in written form, but the sentencing system is not.
Multiple punishments have been imposed, but no one knows how the system is working and
so nothing can be measured in the absence of a legal basis to be gauged with. The judicial
discretion would be cabined, which is required to combat disparity. The discretion would still
be there along with acquiring uniformity and a standardized set of norms.

In Jagmohan Singh vs State of Uttar Pradesh211 case verdict given by the hon’ble court
while describing the method adopted by India for sentencing noted that the impossibility to
lay down uniform standards clouds the core of the criminal law as managed by India.
Ultimately, this method empowers judges to exercise extensive discretion in deciding the
degree and form of penalty.

Sentencing cannot only be considered as an art, for due to the abstractness in this art, it gave a
lot of disparity. It should now, after analyzing the scenario, be considered as science for
following a set of principles that regulate the sentencing process in a

211 (1973) 2 SCR 541

standardized format. Further, there is no denying that once the guidelines have been framed,
there will still be a disparity in sentencing since the range would cover different years of
punishment.

To achieve the purpose of law of creating a deterrence in society and to rehabilitate the
offender, the two aspects are required to be implemented: the immediacy of punishment and
consistency of punishment for lack of these two emboldens the offender with a thought of
escape which might lead to an offence in the future as well.
Chastisement alone is not the elucidation of overthrowing the incidence of sexual assaults,
since often other circumstances play a significant role in influencing society's mindset. The
author at the end of her work is of the view that to avert a crime from happening, situations in
which they take place should be checked, but whenever a crime so monstrous occurs then no
laxity on the part of administrative or judicial hands be appreciated or overlooked and
retributive sentence be handed down to the accused by adopting a time-bound route.
Furthermore, if all the above recommendations are cautiously implemented and inducted in
our existing framework then the India of one’s dreams will be a reality soon for everyone
irrespective of their status and gender.

Sentencing policy of any country is significant to govern the administration of legal sanctions
for individuals held guilty of any crime, as these policies are the major breakthrough in
shaping the vast array of institutional arrangements responsible for ensuring range of
processes from nature and duration of punishment to release decisions. Thus, it can be
concluded by stating that sentencing process aids in crime reduction and facilitates reparation
and ensures determinate punishment. It has a complex structure as each sentence has to be
attuned with the public mood and depict society’s mindset, hence it becomes imperative on
the part of the judge to be cautious before sentencing as they have to take into consideration
all the sociological and physiological factors too to arrive at a sentence which is able to
resonate with the public cry and is worth public confidence.