Lady Shri Ram College for women

Semester 4
Skill Enhancement Course
Your Laws Your Rights
Assignment
Submitted by – Arpita Choudhary
Roll no.- 234
Guided by- Professor Mehak
 There are various crimes committed against women in India. Critically
analyze the legal safeguards provided to women in India against domestic
violence, rape, and sexual harassment?

Introduction-
Violence against women starts from the womb and continues until they die. The constitution has
guaranteed equal rights to women but despite that they have constantly faced violence which is
the reflection of structural and institutional inequality prevailing in the society. Rape has been
rampant in the Indian society and it is largely the result of patriarchal mindset, which objectifies
women body, and therefore sees it as a commodity to satisfy men’s lust. Robert Bahledia argues
that although patriarchy is now draped in clothing of postmodern civilisation with all its superficial
artifice and guile, it operates in exactly the same way that it did thousands of years ago. Malavika
Karlekar argues that the ever-present fact of violence both overt and covert physical and non-
physical has an overwhelming influence on feminine identity formation; she further argues that at
every stage there is discrimination and violence against girl children and later women within the
household either natal or conjugal. Ved Kumari argues that term offences against women is used
to focus on those offences in which only women are victims like – Rape, Dowry harassment, dowry
death, cruelty to married women, sati, child marriage, female infanticide, female foeticide, sex pre
selection, sexual harassment at workplace, domestic violence, trafficking of women and girls etc.
Women became prime focus of criminal justice administration in India when insensitivity of
Supreme court to rape victims was highlighted in Mathura case.

Domestic Violence against women-

Complementary relations of women and men are transferred into a hierarchical relation due to the
nature of work performed by women which led to system of violence coming into place. Domestic
violence is the most frequent form of violence practised against women in India, it implies a
situation where home and its support structure perpetuate violence of different kinds like physical,
psychological, and emotional thereby taking away their dignified lives. According to National
Crime Records Bureau ‘Crime in India’ 2019 report about 70% of women in India are victims
of domestic violence. There are aberrant events such as sati (widow immolation), witch hunts,
striping and shaping of women particularly those from lower caste. Tan Chang Hang argues that
marital rape is a little discussed form of violence against women, he argues against spousal
immunity. Harihar Sahoo, Manas Ranjan Pradhan argue that domestic violence is recognized
as the significant barriers of the empowerment of women, with consequences of women’s health,
their health health-seeking behaviour and their adoption of small family norm. Domestic violence
can be in any form including- Direct physical violence, mental abuse, emotional abuse, nonverbal
threats, psychological abuse.
To counter this menace Government of India enacted a legislation known as Prevention of
Domestic Violence Act (PDVA). Article 498 A of IPC also deals with offence committed against
the wife by her husband and relatives, however, PDVA was enacted to cater to different kinds of
violence faced by women in their homes.

Key provisions of act against Domestic Violence are as follows-

Domestic Violence Act, 2005, or Protection for Women against Domestic Violence (PWDVA),
has been passed to improve the position of women in the domestic front. The Protection of Women
from Domestic Violence Act 2005 (DVA) came into force in [Link] Act includes physical,
sexual, verbal and psychological violence that is constantly perpetuated against women in the
domestic sphere by either use of physical force or verbal abuse. Primarily DVA is meant to provide
protection to the wife or female live-in partner from violence at the hands of husband or male live-
in partner or relatives. Act has widened the ambit of who all can file the complaint against
violence in the domestic sphere by including mother, sister, wife, widow or partners, provides live-
in partners with legal remedy and complaint can be filed against any male and female members
living in the domestic space. Provision for providing the aggrieved party with medical aid and
alternate shelter homes are mentioned if the situation is grim. After hearing of the case, the
directions can range from counselling to stopping forced evictions of women to jails and
punishments.

Critique
Pin-Hsien Wu, Reviewing the Implementation of Domestic Violence Act, argues that duty of
Protection Officer and magistrate are ambiguous and un-clarified. This act has been throttled by
institutional machinery like police and society behavioural that has left the guilty unpunished
and researches and studies show that the Act has not be fully utilized to achieve its ends. Anomalies
in reporting is due to various factors like- Marriage as an institution in India is considered very
sacrosanct; further accentuated by the structural dependency of women on men, socialization
process in India has made women accept violence as normal.
Lack of training of police officers leads to the re-victimization of women within the justice
system, either through police non-response to calls for help, sending women back home to their
abusers by branding their victimization as mere domestic disputes, or magistrates allowing for
numerous continuances of cases, prolonging the court process and forcing victims to come to
court to face their trauma time and again.
The dual system of Family court as well as criminal court makes the legal proceeding complex
and tedious. Framers of the law have put their faith in all women being essentially honest victims,
without worrying about proof of claims. Police and its ancillary agencies are insensitive towards
domestic violence and most of the times, the police officer either does not write the report or
rebukes the victim and says to go back home. Other loopholes in act include- disparities in
implementation, fading attempts of NGO as service providers, failure in mandating criminal
penalties etc.
 Rape-
National Crime Records Bureau Data 2020, number of rape cases registered all over India below
18 years is approximately 9433, while rape cases registered above 18 years for 2020 is more
than 24554 cases. Out of these rape cases carried out, 93.3 % of offenders were acquaintances
to rape victims. Only in 50% of cases was investigation carried out by the police and disposed of
by the courts. Such a slow rate of conviction for registered cases points out towards the general
insensitivity towards the crime that persists. Rape causes infringement of women’s rights and
liberty. It is defined as intentional and unlawful sexual intercourse with a woman without her
consent. In the case of Tukaram and Ors v. State of Maharashtra in 1972, a teenage Adivasi
girl named Mathura was alleged to be raped by two policemen while she was in their custody
and this case created a nationwide uproar which eventually led to the Criminal Law
Amendment Act of 1983. in 1972, a teenage Adivasi girl named Mathura was alleged to be raped
by two policemen while she was in their custody. Rajasthan reported the maximum number of
rapes (5310) in 2020 while Uttar Pradesh reported 2769 cases. In case of rape of minors,
Madhya Pradesh recorded the greatest number of incidents with 3259 cases followed by
Maharashtra and UP. There is an increase of 9.4% in crimes against SCs and 9.3% against STs
from 2019. A total of 50,291 cases were registered for committing crime against scheduled castes
(SCs). The incidence of rape in urban areas stood at 897. According to a recent report by the live
mint, about 99% of cases of sexual violence of unreported. Section 375 of the Indian Penal
Code clarified that intercourse would account to rape only during the absence of the
woman’s consent and rape as a clearly defined offense was first introduced in the Indian Penal
Code in 1860. The definition of rape also included sex when consent has been obtained by putting
her or any person in whom she is interested in fear of death or of hurt. Section 376 provided for
seven year of jail term to life imprisonment to whoever commits the offense of rape.

Key provisions-
The rape law in India remains gender specific even today as the per perpetrator of the offense
can only be man so 172nd report led to the amendment in the Indian Evidence Act in 2002. A
new provision was inserted which barred putting questions during the cross-examination of
the victim as to her general immoral character in rape or attempt to rape cases. Protection of
children from sexual offenses Act was passed by the parliament in 2012 to effectively address
the evil of sexual assault and exploitation of a child. Under this act, children are individuals aged
below 18 years and the act is gender neutral it establishes special courts for the trial of offenses.
National commission for the protection of child rights have been made the designated authority
to monitor the implementation of the act. Criminal law (Amendment) Act was passed in 2013
because of the nationwide public outcry in 2012 following the December 16 gang rape and
murder which widened the definition of rape and made punishment more stringent. The 2013
Act increased jail terms in most sexual assault cases and also provided for the death penalty in rape
cases. Section 114A was inserted in The Indian Evidence Act, 1872, under which if a girl in her
testimony contends that there was no consent given by her then the court shall presume the same
and the onus to prove that there was consent lies on the accused. The amendment further introduced
section 228A in the IPC which dealt with the prohibition of disclosure of the identity of the victim.
The punishment for gang rape was increased to 20 years to life imprisonment. Ministry of
Home Affairs also listed measures taken by government to prevent crime against women like--
Emergency Response Support System- a pan India, single internationally recognized number-
112. MHA also launched a cyber- crime portal to report obscene content and released National
Database on sexual offenders. An online analytic tool for police was also launched called
Investigation Tracking System for Sexual offenses. The national level demonstration and
massive public outrage after the Nirbhaya case led the government to setting up of Justice J.S.
Verma committee which suggested removal of exception of marital rape. Tejaswini Malik
argues that over the years the offence of rape has been an issue which is dealt by government only
as a result of public outrage after new and more barbarous incidents take place because of this our
system still fails to provide the victims a safe and protective environment.

Critical appraisal-
PADMA BHATE-DEOSTHALI and SANGEETA REGE argue that access to abortion is
desperately needed when pregnancy is the result of rape, both within and outside marriage, and
especially when a girl has been raped and the availability of services remains highly restricted
because of the way abortion providers interpret the law. Every coin has two side, one here
represents the laws and administrative actions taken to prevent rape and other represents the
failure of implementation of these laws. Rape-victim go through mental harassment and get
intimidated during cross-questioning of the case. Investigation takes a lot of time causing delay
in justice and with no surprise, still there are cases where police do not register FIR indicating
gruesome politics and corruption. It is very sad that society always looks upon rape victims in a
very questionable way as if, it’s their fault and a rape victim should be put at guilty for that
violence and offense faced. Marital rape is also a rape and need of the hour is that Indian
jurisprudence understands the inhuman nature of marital rape and strikes down exception 2 of
section 375 which provides immunity to rapist husbands. Rukmini Sen argues that laws are not
evolving with time and section 375 has largely remained same since inception, thus, failing to cater
to new demands.

Sexual Harassment-
The Sexual Harassment of woman at workplace (Prevention, Prohibition and redressed) Act
2013 addresses the issue of workplace sexual harassment faced by women. Research on sexual
harassment has moved from prevalence studies to more sophisticated empirical and theoretical
analyses of causes and consequences of sexual harassment. Scholars have tried to provide an
overview of prevalence and measurement of harassment along with suggestions for developing
standard measures on Sexual harassment. The most prominent explanations of harassment are
discussed along Including societal, organisational and individual level approaches. Sex-based
harassment is behavior that derogates an individual based on sex and is fundamentally
motivated by the harasser's desire to protect or enhance his or her own sex-based status, a
desire that stems from the fact that social status is stratified by a system of gender hierarchy. Power
is at the core of feminist theories of sexual harassment, although it has rarely been measured
directly in terms of workplace authority. Supervisory authority, gender nonconformity, and
workplace sex ratios affect harassment and female supervisors are more likely to report
harassing behaviors and to define their experiences as sexual harassment. Sexual harassment
can serve as an equalizer against women in power, motivated more by control and domination
than by sexual desire.
There is considerable variation in the estimated proportion of women reporting experiences with
sexual harassment depending on the sample used 16 % to 90% of working women experience
sexual harassment in their lifetime. A US national women's study conducted by the Crime
victims and Treatment Centre found that 12% of women experience harassment in their
lifetime as depicted by Danske and Kilpatrick. Studies have shown that 1 out of every 3
working women are touched by sexual harassment. Sexual harassment increases financial
stress, largely by precipitating job change, and can significantly alter women's career attainment.

Legal safeguards against sexual harassment

In the famous Vishaka vs state of Rajasthan known as Vishaka Judgement case, judges directed
the government to enact a law to specifically deal with problem of sexual harassment at workplace.
As a result, Sexual Harassment at workplaces (Prevention, Prohibition and Redressal) Act,
2013 was enacted and the Act defines sexual harassment as unwelcome act and behaviour that
does not necessarily include physical contacts but are sexually coloured like commenting,
asking for sexual favours at the cost of career advancement of women, sending pornographic
clips or messages. These kinds of acts make the workplace unsafe for women thereby denying
them dignified life and this act specifically talks about setting up of Internal Complaints
Committee (ICC) who will entertain such complaints, investigate by hearing both the cases and
pronounce judgments.

Critics-
Despite Sexual Harassment at workplaces (Prevention, Prohibition and Redressal) Act, 2013
coming into being, this act is the most underutilized act. This is largely due to the lack of gender
parity in employment opportunities for women; Various researchers have found out that women
resist from filing a complaint due to the fear of losing their job. This is due to the gendered
construction of society that would always blame a woman for making sexual advances for
gaining favours. This actually goes deeper whereby women are not considered as efficient as
men so their rising high up in their careers is largely dependent upon how much ‘available’
they are for men. In fact, rarely is women credited for reaching the top due to her potentials
instead, she is always seen to have given that extra bit (made herself sexually available) to reach
the top. It turns out that the only, thing that is stopping the women to file the complaint is the loss
of reputation, stigma, and blame that is always put on women for playing a ‘victim card’.
A Kerala based study on the internal complaints committee in 15 government offices was
conducted whereby it was found out that neither woman knew about the Act, nor they were aware
that they are members of ICC that investigates such allegations. During the “# me too movement”
various case studies were unearthed but despite the victims coming out and opening taking the
names nothing substantial was done. Anju Thomas argues that educational institutions is where
victims face sexual harassment by denying them completion of their doctoral thesis, or
employment opportunities due to them not responding to sexual favours. This Act is available only
to organized sector workforce, in the present scenario where more than 95% of workforce is
employed in unorganized sector, they can’t avail the benefits of this act. This is further
compounded with the lack of job security and stigma associated with investigations that makes
this act toothless. Rebecca John argues that factory workers, construction workers and domestic
workers need this act the most but lack of institutional structures denies them to take the benefits
of this act.

Way forward-
The Prevention of Domestic Violence Act (PDVA) act will not be effective in reducing overall
levels of violence unless the patriarchal mindset of Indian society is dismantled. Performing
gender sensitization training of all protection officers, police, lawyers, magistrate judges, and all
other parties involved in the implementation of the Act. NGOs and the government must take
additional steps to ensure the Act is effective in protecting women. Socialization process should
be initiated in the schools by making it part of the curriculum and this Act should be publicized
through various social media platforms so that it reaches the wider audience. There is an urgent
need to train police officials to be sensitive to the plight of the victim who comes to the police
station to lodge a complaint for rape. Victims go through the ordeal of rapes through cross-
questioning in the courts that lead to them becoming more vulnerable; there should be Amendment
to the law so that victim’s statement is seen as evidences and no further cross-questioning should
be entertained. Marital rape should also be included in rape category thereby freeing the
women who is seen as a property of her husband. The rise in rape against children requires
another set of institutional practices that should take care of the psychology of the child.
Courts should resist from giving judgments that say to the victims that marry the offenders
because it takes away the victims dignified life. Victims must be encouraged to come forward
by setting clear definitions about sexual harassment in the workplace through regular training and
sexual harassment policy must be updated to include concrete steps on reporting harassment. Tan
Cheng Han has suggested that the immunity, archaic and inconsistent, as it is with status of
women today, ought to be abolished or at least substantially modified.
Conclusion
Patriarchal value system of the society has hidden of progressive legal safeguards by not
imparting information or making women aware of the prevalence of these acts. If implemented
properly, these acts have great potential to make a difference in the lives of women victimized
by domestic violence. However, various characteristics of Indian culture threaten the
effectiveness of these acts. To diminish these evil crimes of rape, domestic violence and sexual
harassment from our society, access to justice should be enhanced accompanied with
behavioural change of attitude and sensitization of people living around the society. For a safe
environment apart from strict laws, a proper gender sensitive institutional mechanism is required
to make the world a better place to dwell. Recommendations of justice JS Verma Committee
must be implemented to make marital rape a heinous crime. The main barrier to successful
implementation is the deeply ingrained patriarchal mindset of Indian society; women are
viewed as subordinate to men. Victims are continued to be seen as a scar on the fabric of
society which bears strong cultured and social norms echoing patriarchal values. Police
reforms, administrative reforms, legislative reforms must be done in a synchronized way to
eradicate evils against women from our society and a sense of fear must be developed in the
minds of those thinking to commit the crime. Speedy trials and women investigating officers
can further build confidence and make the victims have faith in the system and gender
sensitisation is need of the hour.

References-
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BAHLIEDA, ROBERT. “Chapter 1: THE LEGACY OF PATRIARCHY.” Counterpoints, vol.
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BHATE-DEOSTHALI, PADMA, and SANGEETA REGE. “Denial of Safe Abortion to

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Health/François-Xavier Bagnoud Center for Health and Human Rights, The President and
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