Shalini Phansalkar Joshi. J, Former Judge, High Court of Bombay, writes on how our judicial system fights against sexual crimes.

Last week’s incident of gang rape and brutal murder of a 27-year-old government veterinary doctor in Hyderabad has once again sent shock waves across the nation, with a cruel reminder of a similar equally brutal incident of Nirbhaya. Although sexual violence and its apprehension has become a part of everyday life of women, its manifestation in such a barbaric form, shudders every person and every parent with its stark reality. The irony is that although there are comprehensive laws to deal with offences of sexual violence, incidents of rape are on the rise.

One of the few incidents of sexual violence still in the memory of the country was the gang rape of a teenage girl by two police constables at a police station in the presence of her husband and what came to be known as Mathura Trial. As an aftermath of the case, amendments were made in the Criminal Amendment Act in 1983 and Section 376 (2) of Indian Penal Code 1860 was introduced, categorizing offences of gang rape; rape by persons in authority like police or public officers; rape on a child below the age of 12 years as more grievous and mandating stricter and harsher punishment. Following the case, changes were also introduced in the Criminal Procedure Code 1973 mandating in-camera trial and protection of the victim’s identity. At the same time Section 114A was introduced in Evidence Act  1872, laying down presumption of the absence of consent on the part of the victim and shifting the burden to prove her consent for sexual intercourse on the accused.

Today the law recognizes all forms of sexual abuse, like, stalking, voyeurism, disrobing, insertion of any material object like stick or any other body part, like finger, apart from or in addition to, male organ, as a sexual assault and has prescribed mandatory graded punishment for the same.

The Nirbhaya incident in 2012 once again exposed the utter inadequacy of both the substantive and procedural laws to meet these challenges. Hence the three member committee, headed by Justice J. S. Varma, former Chief Justice of India,  submitted its report, suggesting several changes in all three laws, viz. CrPC, IPC and Evidence Act. On the basis of the report, Criminal Amendment Act of 2013 was passed by the Parliament Considering the vagueness of ‘violation of modesty’ and limited connotation of the word ‘rape’, sexual offences are categorized as ‘sexual assault,’ to include every sexual act, whether it is penetrative or otherwise. Now the law recognizes all forms of sexual abuse, like, stalking, voyeurism, disrobing, insertion of any material object like stick or any other body part, like finger, apart from or in addition to, male organ, as a sexual assault and has prescribed mandatory graded punishment for the same. For the first time, the provisions were made in the law for awarding death penalty if sexual assault results in victim being reduced to a vegetative state or if sexual assault is committed by a repeat offender. Taking into consideration the rising incidents of sexual assault on children below the age of 12 years, a separate legislation “The Protection of Children from Sexual Offences Act 2012” is brought on statute book with effect from 14/11/2012, to fill the lacunas in substantive laws, considering the peculiar nature of sexual abuse to which a child is subjected. The Act has made, for the first time, sexual offences gender-neutral and contains several provisions to make the investigation and trial process more child-friendly, by establishing special courts for trial of these offences.

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Meanwhile, without waiting for the legislature to make changes in laws, the Apex court has, through its authoritative pronouncements and landmark decisions, continued to galvanize and evolve the law. Taking note of the criticism meted out to victims of the sexual assault in the Court during the course of cross-examination, the Supreme Court, in the case of State of Punjab Vs. Gurmit Singh and Ors. AIR 1996 SC 1393, directed the trial Courts, to examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. It was categorically observed that, “If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. In fact, insisting on corroboration to her testimony is adding an insult to her injury.” Further, being aware of the embarrassment, which victims of sexual offences were facing while giving evidence in the Court, Supreme Court has directed that, as far as possible, such cases of sexual assault be tried by women Judges and also, as far as possible, the names of victims should not be disclosed in the orders passed by the Court. In State of Punjab Vs. Ramdev Singh (2004) 1 SCC 421, while emphasizing that the Court should deal with cases of sexual offences sternly and severely, it has been observed by the Supreme Court that, sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a female. It has been further held that rape is a crime against basic human rights.

Being aware of the embarrassment, which victims of sexual offences were facing while giving evidence in the Court, Supreme Court has directed that, as far as possible, such cases of sexual assault be tried by women Judges and also, as far as possible, the names of victims should not be disclosed in the orders passed by the Court.

In the case of Delhi Domestic Working Women’s Forum Vs. Union of India (1995) 1 SCC 14, the Supreme Court gave guidelines for providing legal aid to the victims of sexual offences and further directed the National Commission for Women to evolve a suitable scheme for providing compensation to such victims. In the case of Bodhisatwa Gautam Vs. Subhrachakraborty (Ms) (1996) 1 SCC 490, the Supreme Court even awarded interim compensation to the victim. The seeds of recent amendment in Cr.P.C. of adding Section 357-A providing for establishment of Victim Injury Compensation Fund, are found in these pronouncements of the Supreme Court.

It is pertinent to note that, much before Legislature deleted Clause 4 of Section 155 of Evidence Act dealing with the character of the rape victim, the Apex Court has, about 25 years ago, in the case of State of Maharashtra Vs. Madhukar Mardikar AIR 1991 SC 20 , held that, “even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes… Therefore, merely because she is a woman of easy virtue, her evidence cannot be ‘thrown overboard’. Further In the case of Lillu Rajesh and Anr Vs. State of Haryana MANU/SC/0369/2013. the Supreme court had said that “Undoubtedly the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity,” the apex court has directed that” medical procedures should not be carried out in a manner that constitutes cruel, inhuman or degrading treatment…”

In the case of Sakshi Vs. Union of India And Ors. AIR 2004 SC 3566 , the Supreme Court has gone a step ahead and has directed the Legislature to make suitable changes in the law to make it more comprehensive to cover all forms of sexual abuse to which children are subjected. The Court has laid down detailed guidelines as to how the evidence of victims of child sexual abuse or rape should be recorded not only in-camera but there should be a screen or some such arrangements so that the victim does not see the body or face of the accused while giving evidence. Further, the questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident, should be given in writing to the Presiding Officer of the Court, who may put them to the victim in a language which is clear and is not embarrassing. It was further directed that such victims of child abuse or rape, while giving testimony in the Court, should be allowed sufficient breaks as and when required. All these directions were found subsequently incorporated by Legislature in the newly enacted Protection of Children from Sexual Offences Act, 2013.

Thus, the decisions of the Judiciary have been instrumental, in not only heralding a change in court processes but also in legislative laws.

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Shalini Phansalkar Joshi. J, Former Judge, High Court of Bombay, is guest writer with Population First. This series is being published in collaboration with Laadli. The views expressed are the author’s own.

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