sex and sacred: redefining sexuality in the land of kamasutra

SEX AND SACRED: REDEFINING SEXUALITY IN

THE LAND OF KAMASUTRA

Dissertation submitted in part fulfillment for the requirement of the

Degree of

LL.M.

Submitted by Supervised by

GAURI SACHDEVA DR. RUHI PAUL

National Law University

Delhi (India)

2016

i

DECLARATION BY THE CANDIDATE

I hereby declare that the dissertation entitled “Sex and Sacred: Redefining Sexuality in

the land of Kamasutra”submitted at National Law University, Delhiis the outcome of

my own work carried out under the supervision of Dr. Ruhi Paul, Associate Professor,

National Law University, Delhi.

I further declare that to the best of my knowledge, the dissertation does not contain any

part of work, which has not been submitted for the award of any degree either in this

University or in any other institution without proper citation.

GAURI SACHDEVA

Roll No. 10 LLM 15

National Law University, Delhi

New Delhi

June 6, 2016

ii

CERTIFICATE OF SUPERVISOR

This is to certify that the work reported in the LL.M dissertation entitled “Sex and

Sacred: Redefining Sexuality in the Land of Kamasutra” submitted by Gauri Sachdeva at

National Law University, Delhi is a bona fide record of his original work carried out

under my supervision. To the best of my knowledge and belief, the dissertation: (i)

embodied the work of candidate himself; (ii) has been duly completed; and (iii) is up to

the standard, both in respect of content and language, for being referred to the examiner.

Dr. Ruhi Paul

Associate Professor,

National Law University, Delhi

New Delhi

May 30, 2016

iii

Acknowledgment

I would first of all like to thank the Almighty for giving me the brains and brawn

to work.

Next to him, can only be the Hon’ble Vice Chancellor of the University, Dr.

Ranbir Singh. I would like to thank him for creating the University from the scratch, so

that students like me get an excellent environment to learn and grow while having access

to world class facilities like completely digitalized library with all the online databases,

leading journals, books and magazines which is a great boost to enhancing research

skills.

I know it’s a little unfair on my part that I mention your name a little late sir, Dr.

G.S. Bajpai. In very little time you have had a deep impact on my ideas. Your innovative

ways of teaching helped me in deciding my direction of research for coming up with the

dissertation as I present it before all today. Your Research Methodology classes were a

great combination of laughter and learning as you sprinkled words of wisdom and

anecdotes in between your lecture.

Without your guidance and moral support, I would have been no where today and

I am not just talking about the Dissertation. And you know it, Dr. Ruhi Paul. You have

been a friend, a philosopher, a guide, a mentor, an all in one combo. It has been my

privilege and honour being your student and getting an opportunity to work under your

supervision. We have had our share of disagreements but you have given me ample space

to grow, while still showing me the direction holding the torch of knowledge always

lighting up my dark days. I will never forget our conversations on the interpretation of the

pictures. They will always bring a smile on my face!

iv

Further, I would like to thank my “Contemporary Issues in Criminal Law” course

professor, Dr. Mrinal Satish. I hope your eye for detail work has rubbed on me and my

Dissertation makes some sense! Your great insight into the subject of sexual offences

also as being a member of J.S. Verma Committee has been of great benefit to me and the

society. The way you handled the class lectures on such a sensitive issue goes on to show

the great human being you are.

Lastly, I would like to borrow from Dr. ChinmayiArun’s project the title, and

refer my work as “The Dirty Picture Project” as run by the Centre for Communication

and Governance (Just Kidding). We do have a connection! CHEERS!

Disclaimer- The pictures are not meant to be offensive or obscene or hurt anyone’s

sentiments.

v

List of Acronyms and Abbreviations

Acronyms/ Abbreviations Full Form

& And

AIDS Acquired Immune Deficiency Syndrome

AIR All India Reporter

CriLJ Criminal Law Journal

Cr. P.C. Criminal Procedure Code

Ed. Edition

HIV Human Immunodeficiency Virus

ILO International Labor Organization

IPC Indian Penal Code

LCI Law Commission of India

LCR Law Commission Report

LGBT Lesbian Gay Bisexual Transgender

p. Page

PIL Public Interest Litigation

PITA Immoral Traffic in Women and Children

(Prevention) Act

POCSO Protection of Children from Sexual Offences

QBD Queen’s Bench Division

NACO National Aids Control Organization

NCW National Commission for Women

SC Supreme Court

SCC Supreme Court Cases

SITA Suppression of ImmoralTraffic in Women

and Girls Act

v. Versus

vol. Volume

vi

List of Statutes

Criminal Law (Amendment) Act, 2013

Code of Criminal Procedure, 1973.

Constitution of India, 1950

Domestic Violence against Women Act, 2005

Drugs and Cosmetic Act, 1940

Indian Evidence Act, 1872

Indian Medical Council Act, 1956 (Professional Conduct, & Ethics) Regulations, 2002)

Indian Penal Code, 1860.

Information Technology Act, 2000

Juvenile Justice (Care and Protection of Children) Act, 2015.

SC/ ST Prevention of Atrocities Act, 1989

Special Marriage Act of 1954

The Essential Commodities Act, 1955

The Human Immunodeficiency Virus And Acquired Immune Deficiency Syndrome

(Prevention And Control) Bill, 2014

The Immoral Traffic in Women and Children (Prevention) Act, 1986

The Indian Contract Act, 1872

The Protection of Children against Sexual Offences Act, 2012

The Suppression of Immoral Traffic in Woman and Girls Act, 1956

The Transfer of Property Act, 1882

vii

List of Cases

INDIAN CASES

Vishaka v. State of Rajasthan AIR 1997 SC 3011

Smt. SudeshJhakuu v/s. K.C.J. (1998) CriLJ 2428

Sakshi v/s. Union of India &Ors (2004) 5 SCC 546(I)

State of Punjab v. Major Singh AIR 1967 SC 63

Fulsing vs State of Harayana (1979) 4 SCC 413

Jaikumar vs State of M.P. (1999) 5 SCC 1

Shivmohansing Vs State of Delhi AIR 1977 SC 949

S.C. Bahri vs State of Bihar AIR 1994 SC 2420

Rajeev vs. State of Rajasthan AIR 1996 SC 787

Bodhisattva Gautam vs SubharaChakrobarty (1996) 1 SCC 490

T.K. Gopal alias Gopi vs State of Karnataka (2000) 6 SCC 168

Machhi Sing vs State of Punjab AIR 1983 SC 957

Gurubaksha Sing vs State of Punjab AIR 1980 SC 1632

Soman v. State of Kerala 2012 (12) SCALE 719

State of Punjab v. PremSagar (2008) 7 SCC 550

RamashrayaChakravarti v. State of Madhya Pradesh (1976) 1 SCC 281

Dhananjoy Chatterjee alias Dhana v. State of W.B. (1994) 2 SCC 220

State of MadhyaPradesh v. Ghanshyam Singh (2003) 8 SCC 13

State of Karnataka v. Puttaraja (2004) 1 SCC 475

Union of India v. Kuldeep Singh (2004) 2 SCC 590

ShaileshJasvantbhai v. State of Gujarat (2006) 2 SCC 359

viii

Siddarama v. State of Karnataka (2006) 10 SCC 673

State of Madhya Pradesh v. Babulal (2008) 1 SCC 234

Santosh Kumar Satishbhushan

Bariyar v. State of Maharashtra (2009) 6 SCC 498)

State of Uttar Pradesh v. Sanjay Kumar (2012) 8 SCC 537

S. S. Ahluwalia vs. UOI (2001) 4 SCC 452

Common Cause, A Registered Society vs. Union of India(1999) 6 SCC 667

OTHER CASES

Popkin v. Popkin (1794) 1 Hag. Ecc. 765n.

Reg v. Clarence (1888) 22 Q.B.D. 23.

S. v. H.M. Advocate 1989 S.L.T. 469.

The People v. John Z 29 Cal. 4th

756, 60 P. 3d 183, 128

Cal. Rptr. 2d 783.

Consolidated Coal Company,

a Corporation v/s. Harold F. Vandruff 641 A. 2d 1161 (Pa. 1994).

and

Gertrude Vandruff v/s. Mary Lousie Cunningham

Director of Public Prosecutions

Respondent v. Morgan [1976] A.C. 182; [1975] 2 W.L.R. 913.

Naz Foundation v. NCT of Delhi Crim. Misc. Case No. 2054/2001.1092013

and Others'

TABLE OF CONTENTS

S. No TITLE

PAGE

NO.

Declaration by the Candidate i

Certificate of Supervisor ii

Acknowledgment iii-iv

List of Acronyms and Abbreviations v

List of Statutes vi

List of Cases vii-viii

CHAPTER 1

INTRODUCTION

1 – 13

1.1 INTRODUCTION 2-6

1.2 CONCEPTUAL CONTEXT 6

1.3 LITERATURE REVIEW 6-8

1.4 STATEMENT OF RESEARCH PROBLEM 8

1.5 RESEARCH DESIGN 9

1.6 RESEARCH OBJECTIVE 10

1.7 RESEARCH QUESTIONS 10

1.8 RESEARCH HYPOTHESES 11

1.9 RESEARCH METHODOLOGY 11

1.10 TOOLS FOR DATA COLLECTION 12

1.11 SCOPE OF STUDY AND LIMITATIONS 12- 13

CHAPTER 2

HISTORICAL EVOLUTION OF SEX AND

THEORETICAL FRAMEWORK

14 – 33

2.1 INTRODUCTION: SEX IN HISTORY 15

2.1.1 THE HEBREW FAMILY 15 –16

2.1.2 THE GREEK FAMILY 16-17

2.1.3 THE ROMAN FAMILY 17-18

2.1.4 THE CHRISTIAN FAMILY 18-20

2.1.5 THE FAMILY IN THE MIDDLE AGES 20 – 21

2.1.6 CURRENT SEXUAL STANDARDS 22-23

2.1.7 SEX IN THE 21st CENTURY 23-24

2.2 SEX BEHAVIOURS AND CRIMES 25-27

2.2.1 WHAT IS NORMAL SEX? 25

2.2.2 SEXUAL STANDARDS 25- 27

2.2.3 NORMAL SEXUAL BEHAVIOUR 27

2.3 FEMINIST PERSPECTIVE AND SELF-

CRITIQUE DISCOURSE TO SEXUAL CRIMES

27-29

2.4 THEORIES OF SEXUAL DEVIANCE 29-33

2.4.1 THE SOCIAL CONTEXT OF SEXUAL

DEVELOPMENT

30-31

2.4.2 INDIVIDUAL- LEVEL EXPLANATION OF

SEXUAL DEVIANCE

31

2.4.3 THE SOCIAL LEARNING MODEL 32

2.4.4 THE CONSTITUTIONAL MODEL 32

2.4.5 THE RISE OF SOCIOBIOLOGY 32-33

2.5 CONCLUSION

33

CHAPTER 3

INTERNATIONAL AND NATIONAL LEGAL

FRAMEWORK

34 – 49

3.1 INTERNATIONAL FRAMEWORK 35-39

3.1.1 THE ERA OF SILENCE 35-

3.1.1.1 ABSENCE OF LEGAL CONDEMNATION

THROUGHOUT HISTORY

35-37

3.1.1.2 THE NUREMBERG (IMT) AND TOKYA (IMTFE)

TRIBUNALS

37-38

3.1.1.3 SUMMARY: THE ERA OF SILENCE 38-39

3.1.2 THE ERA OF HONOR 39-42

3.1.2.1 GENEVA CONVENTIONS 39-41

3.1.2.2 INTERNATIONAL TREATY LAW, POST-

GENEVA CONVENTIONS

41-42

3.1.2.3 SUMMARY: THE ERA OF HONOR 42

3.1.3 A NEW DIRECTION- TOWARDS A NEW ERA? 43-45

3.2 INDIAN CONSTITUTIONAL ASPIRATIONS 46-49

CHAPTER 4

CRITICAL ANALYSIS OF EXISTING LAWS ON

SEXUAL OFFENCES AND RELATED ACTS

50-116

4.1 CRITIQUE TO THE CRIMINAL LAW

(AMENDMENT) ACT, 2013

50-74

4.1.1

BACKGROUND TO THE JUSTICE VERMA

COMMITTEE

51-52

4.1.2 BACKGROUND TO THE CRIMINAL LAW

AMENDMENT ACT, 2013

52

4.1.3 CRITIQUE TO AMENDMENTS 53-72

4.1.4 INCONSISTENCIES WITHIN THE 2013 ACT 72-73

4.1.5 OVERLAP AND INCONSISTENCIES OF THE 2013

ACT WITH OTHER LAWS

73-74

4.2 PROSTITUTION: PROFESSION OF SEX

TRADE

75-82

4.2.1 INTRODUCTION 75

4.2.2 LAW COMMISSION SUGGESTIONS 76-77

4.2.3 IPC PROVISION ON PROSTITUTION 77-78

4.2.4 SITA TO PITA: THE 1986 AMENDMENT 78-79

4.2.5 PROPOSED 2005 AMENDMENTS 79-80

4.2.6 RESEARCHER’S SUGGESTIONS 81-83

4.3 “LGBT COMMUNITY”: ARE THEY A PART OF

“COMMUNITY”?

84– 91

4.3.1 INTRODUCTION 84-85

4.3.2 NAZ FOUNDATION CASE 86-87

4.3.3 CURATIVE PETITIONS IN SUPREME COURT 88-89


4.4 LAWS RELATING TO SEXUALLY

TRANSMITTED DISEASES WITH A FOCUS ON

HIV INFECTED PEOPLE

92 – 102

4.4.1

4.4.2

INTRODUCTION

WHAT IS AIDS

92-93

93

4.4.3 LEGAL PROVISIONS IN INTERNATIONAL

CONVENTIONS

93-94

4.4.4 LEGAL PROVISIONS IN INDIAN LAWS 94-102

4.4.5 RESEARCHER’S SUGGESTIONS 102

4.5 MEDICAL EXAMINATION OF SEXUALLLY

ABUSED VICTIMS

103-106


4.5.2 POINTS TO BE NOTED 104-105


4.6 REVERSE ONUS CLAUSE FOR ALL SEXUAL

OFFENCES: SHIFT IN BURDEN OF PROOF

107-110

4.7 NIRBHAYA CASE STUDY AND JUVENILE

JUSTICE (CARE AND PROTECTION OF

CHILDREN) ACT, 2015

111-116


4.7.2 BACKDROP

112-113

4.7.3 JUVENILE IN CONFLICT WITH LAW AND THE

ACT

113-114


CHAPTER 5

SENTENCING GUIDELINES

117-133

5.1 INTRODUCTION 117-120

5.2 SENTENCING: RELEVANT PROVISIONS –

PRINCIPLES AND PROCEDURE

120-124

5.3 SENTENCING: DIFFERENT APPROACHES AND

EXPECTATIONS

125-126

5.4 SENTENCING: APPROACH TOWARDS

DIFFERENT TYPES OF OFFENCES AND

NATURE OF PUNISHMENT

126-127

5.5 SENTENCING DISCRETION 127-131

5.6 RESEARCHER’S SUGGESTIONS 131-133

CHAPTER 6 OFFENDING IDENTITIES- VICTIMS AND

OFFENDERS: WHOSE REHABILITATION?

134-149

6.1 INTRODUCTION 134

6.2 VICTIMOLOGY:VICTIM REHABILITATION 134- 149

6.2.1 INTRODUCTION TO VICTIMOLOGY 135

6.2.2 U.N. PRINCIPLES OF VICTIMOLOGY 135

6.2.3 DEFINITION OF VICTIM 136

6.2.4 COMMISSION AND COMMITTEE REPORTS 136-137

6.2.5 COMPENSATION AND CONSTITUTION 137-147


CHAPTER 7 CONCLUSION& SUGGESTIONS 150-156

7.1 CONCLUSION 150-152

7.2 SUGGESTIONS 153-156

BIBLIOGRAPHY

156-167

1

CHAPTER 1

INTRODUCTION

The Dissertation project undertaken by the researcher is based upon the below mentioned

working premise/ assumption:

“We legislate first, and think afterwards; complexity is heaped upon

complexity and confusion becomes worse confounded”1

1Sorabjee,Solo J. and Arvind P. Datar, NaniPalkiwala, The Courtroom Genius ,4

th ed.(2012),p.g. 27.

http://www.cgstatic.info/code/r.php?r=yahoo%7Ccomplexity%2520is%2520heaped&t=1&did=1&uid=1001663494_3232235877&type=bl&subid=992_2147483&rkw=complexity+is+heaped&rurl=http%3A%2F%2Frostrumlegal.com%2Fthe-criminal-law-amendment-bill-2013-a-critical-analysis%2F&domain=rostrumlegal.com&lnktype=10&v=0.116&browser=Chrome_47&country=IN&_=1453453455444

2

1.1 INTRODUCTION

The word “SACRED” has its origin in the Latin term ‘consecrate’. It has many

connotations to it and is synonymous with something connected with a god or goddess and

treated as holy; it is also sometimes related with the teachings of a religion. However, the

researcher uses the word in the title to indicate something blessed, blest, hallowed,

sacrosanct, sanctified or supreme. The researcher would like to urge the reader to question

himself/ herself as to what comes to his/ her mind when one thinks of sex as to being the

most sacrosanct thing?

A priest would say it is the religious teachings of the scripture which he preaches and

the words of that particular God which are to be given supreme importance. Eg.

Homosexuality might be frowned upon by few religions along with prostitution. Whereas, a

lawyer would say it is the law which decides what is most supreme and binding on its

citizens. So the law will decide the validity and prevalence of homosexuality or prostitution

in a society. On the other hand a Humanitarian would say that it is the “choice” of the

individual which decides what is of the utmost importance. Whether it will be the right to

personal space/ privacy giving individual liberty and choice prominence or whether it will get

determined/ influenced/ regulated by religious teachings or socio-economic considerations or

legal factors.

Thus, along these lines the researcher would like to develop a research and finally

leave the readers with a question mark on when we say or the popular belief that sex is

sacred……what do we really mean? (Apart from the common notion of having a single

sexual partner in marriage or treating husband-wife sexual relations as sacred or not having

multiple sexual partners which refers to remaining a virgin as propagated by various religious

beliefs). Though these too end up having consequences as these customs start reflecting in

our laws. For example: the provision of adultery in Indian Penal Code or not giving

importance to “consent” and not legally recognising marital rape or prohibiting prostitution).

Also, in the ancient India women held a high place of respect in the society as

mentioned in Rigveda and other scriptures. Volumes can be written about the status of our

women and their heroic deeds from the vedic period to the modern times. But later on,

Comment [HC1]: Also herself

Comment [HC2]: And also socio- economic considerations.

3

because of social, political and economic changes, women lost their status and were relegated

to the background. Many evil customs and traditions stepped in which enslaved the women

and tied them to the boundaries of the house2.

The official statistics showed a declining sex-ratio, health status, literacy rate, work

participation rate and political participation among women. While on the other hand the

spread of social evils like dowry deaths, child marriage, domestic violence, rape, sexual

harassment, exploitation of women workers are rampant in different parts of India.

Humiliation, rape, kidnapping, molestation, dowry death, torture, wife-beating etc. have

grown up over the years3.

Change in life style, living standards, disparity in economic growth due to

urbanization and changes in social ethos and lack of concern for moral values contribute to a

violent approach and tendencies towards women and children, which has resulted in an

increase in crime against both. But, as usual, our legislatures were least concerned when it

comes to bring appropriate legislation for protection of women. Crime against women and

their exploitation has multiplied many folds in the recent years because of the inefficiency in

implementation of law.

On December 4, 2012 the Criminal Law (Amendment) Bill, 2012 was introduced in

Parliament to amend criminal laws on the recommendations of the National Commission for

Women and the Law Commission’s 176th Report.4 The Bill defines rape as a gender

neutral offence, specifies punishment for acid attacks and failure of a public servant to

perform his duties.

The barbarous Rape incident that occurred in Delhi5 was result of this attitude of our

legislature. Further, the protest in the Delhi after the barbarous Rape incident indicated

demand of the whole of India, the enormity as well as the seriousness for an immediate

reform in Rape and Sexual Offence Laws. Though this was not the first time when the need

2Aruna Goel, Violence and Protective Measures for Women Development and Empowerment, ed. (1) 2004, pp.

3-4. 3Awadhesh Kumar Singh and Jayanta Choudhury, Violence against Women and Children-Issues and Concerns,

ed. (1) 2012, p.1. 4 Statement of Objects and Reasons, Criminal Law (Amendment) Bill, 2012.

5ShubomoySikdar, ‘Gang-raped in moving bus, girl fights for life in Delhi hospital’ (thehindu.com 2012)

<http://www.thehindu.com/news/national/gangraped-in-moving-bus-girl-fights-for-life-in-delhi-

hospital/article4208833.ece> accessed 22 Feb 2015.

4

to revise laws regarding this matter was felt, it is indeed tragic that the brutal gang rape of a

young, defenseless woman on December 16, 2012 by a group of perverted men in the heart of

the nation’s capital was needed to bestir the government into action realizing the gravity of

the situation, which could no longer countenance delay in taking necessary steps to provide

adequate measures for the safety and protection of the womenfolk in the country.6

In the backdrop of this incident, the Central Government setup Justice Verma

Committee headed by former CJI of India, J.S. Verma to make recommendation on the

inefficiency of Rape Laws and other laws for Protection of Women, in IPC because of great

hue and cry by the Indian masses. The three member Committee, chaired by Justice J.S.

Verma, submitted its report on January 23, 2012.7 Subsequently, on February 3, 2013 the

Criminal Law Amendment Ordinance, 2013 that gave effect to some of the provisions of the

Bill, came into force.8

Not only this, the President of India promulgated The Criminal Law (Amendment)

Ordinance, 2013 (hereinafter refer as Ordinance,2013), which amended several laws related

to protection of women, as an immediate measure to calm down the anger of the masses. The

Ordinance, 2013 was full of anomalies, which were prima facie because of the fact that it was

hurriedly enacted. The Department-related Parliamentary Standing Committee on Home

Affairs examined the Criminal Law (Amendment) Bill, 2012 and tabled its Report in

Parliament on 1st March, 2013.9 Keeping in view the recommendations of the Department-

related Parliamentary Standing Committee on Home Affairs, the recommendations of Justice

Verma Committee and the views and comments received from various quarters including

women groups, the Government drafted the Criminal Law (Amendment) Bill, 2013. On 19

March 2013, it was passed by the Lok Sabha. On 21st March, it was a surprise for everyone

that the law which touches the life and soul of every individual of this country was passed by

6J.S. Verma Committee Report, Page 16, Para 36.

7 Report of the Committee on Amendments to Criminal Law, January 23, 2013.

8 PRS Legislative Research, The Criminal Law (Amendment) Bill, 2012 and Ordinance, 2013.

9PRS Legislative Research, The Criminal Law (Amendment) Bill, 2012 and Ordinance, 2013.

5

Rajya Sabha in just one day discussion10

. It replaced the promulgated Ordinance, which

lapsed on April 04, 2013.11

Further, the Act came into effect from 3 February, 2013 itself.12

Further, failure of good governance is the obvious root cause for the current unsafe

environment eroding the rule of law, and the want of needed legislation as highlighted by J.S.

Verma Committee. If there was a felt need for more laws, there are many recommendations

of various expert bodies and judicial decisions that remain unimplemented. The Law

Commission’s 84th Report in 198013

and its 172nd Report of 200014

relating to this subject,

the National Police Commission Reports recommending autonomy and seminal improvement

in the quality of the police force, which is the principal machinery for the maintenance of law

and order, continue to gather dust for decades due to the apathy of all the political

dispensations. The Supreme Court’s judgment of 2006 in Prakash Singh’s case15

giving

certain directions for the autonomy and improving the quality of the police force remain to be

implemented by all the governments. Action in this behalf does not brook any further delay,

if there is a genuine desire to honour the purpose of constituting this J.S. Verma Committee,

as it stated for itself.16

During their exercise, the Committee had been reassured that strict observance and

faithful implementation of the constitutional mandate and the existing laws by a competent

machinery is sufficient to prevent, and if need be, to punish any sexual harassment or assault;

and the improvement needed in the laws, if any, is marginal, to await which is no excuse for

the impairment of the rule of law. Correction of the societal mindset of its gender bias

depends more on social norms, and not merely on legal sanction. The deficiency in this

behalf has to be overcome by the leaders in the society aided by the necessary systemic

changes in education and societal behaviour. This view of the Committee was buttressed by

the fact that the executive, meanwhile, has taken several measures to this effect under the

available regime, and the judiciary too has issued several directions under the existing laws to

10

K.Balchand, ‘Anti-rape Bill passed’ (thehindu.com 2013) <http://www.thehindu.com/news/national/antirape-

bill-passed/article4534056.ece> accessed 20 Feb 2015. 11

Section 30(1), Criminal Law (Amendment) Act, 2013. 12

Section 1(2), Criminal Law (Amendment) Act, 2013. 13

Law Commission of India report titled Rape and allied offences: Some Questions of substantive law,

procedure and evidence. 14

Law Commission of India report titled “Review of Rape Laws”. 15

Prakash Singh v. Union of India, (2006) 8 SCC 1 : (2006) 3 SCC (Cri) 417. 16

J.S. Verma Committee Report, Para7.

Comment [HC3]: Give full citation of this case

Comment [HC4]: Who assured it to the committee? This has been mentioned in the J.S. Verma Committee Report. Its not mentioned. But I think the Delhi Chief Minister had called a meeting to reinforce stricter security for women and working of helplines, etc.

6

ensure safety and protection of the dignity of women in public places and in public

transport.17

However, the researcher feels that even the laws are lacking and need rework.

1.2 CONCEPTUAL CONTEXT

Discourses about sex and sexuality seem to have become more public and, in many

ways, more acceptable in recent years. We have become much more open to discussing

varieties of sex and sexual activity, and to pondering over our relevant appetites,

insufficiencies and achievements to the point where prominent newspapers now have resident

sexologists to answer our questions, and sex blogging on the internet has become almost

passé. Indeed, the recent media picnic over a music video by pop divas Lady Gaga and

Beyoncé featuring lesbian tropes emphasize the ravenousness with which we digest apparent

sexual deviance.18

A decade ago, discussions of sex work were focussed around feminist-inspired

arguments of the exploitation of women, or public health warnings against the physical,

mental and emotional impact of sex work on its “victims”- be they prostitutes or clients.

Public discourses on sex itself were confined to news reports of rape or other sexual violence,

the moral depravity of prostitution and paedophilia, child sexual abuse, or education about

safe sex. It is a turning point in the development of such discourses that a group of British

academics can gather under the self-styled label of “critical sexology” to discuss sexuality

and non-normative sexual practices and identities, that they can discuss these issues in the

public forum offered by the University, and that they can be funded to do so.19

In my case,

get marks for making a dissertation on it.

1.3 LITERATURE REVIEW

The researcher found a lot of work done by various authors on the interface of sex,

crime and morality which helped in understanding the dimensions to the concepts and their

inter-relationship as part of the fundamentals of the research undertaken by the researcher.

17

J.S. Verma Committee Report, Paras 5&6. 18

Sharon Hayes and Belinda Carpenter with Angela Dwyer, “Sex, Crime & Morality”, ed. (1) 2012. 19

Ibid.

7

(Sharon Hayes and Belinda Carpenter with Angela Dwyer, “Sex, Crime & Morality”, ed. (1)

2012.) Further, various Law Commission Reports along with special Committee Reports like

the Maliamath Committee and the J.S. Verma Committee reports helped in supplementing the

understanding of existing legal framework or the proposed pending amendments of various

Bills. Furthermore, there has been a lot of work on understanding the “normal sexual

behavior” according to various parameters and trying to find reasons for deviance, which

again is a subjective term as the researcher understands. (Stephen T. Holmes and Ronald M.

Holmes, “Sex Crimes Patterns and Behavior”; Tony Ward, Anthony Beech, “An integrated

theory of sexual offending”, Aggression and Violent Behavior 11 (2006) 44–63.) Some work

had been done in the area of analysing the legal international and national framework of

sexual offence laws. (J.S. Verma Committee report was a good starting point; Alona Hagay-

Frey, “Sex and Gender Crimes In the new International law”, ed. (1) 2011; Rana Lehr-

Lehnardt, “One Small Step for Women: Female- Friendly Provisions in the Rome Statute of

the International Criminal Court”, 16 BYU J.P.L. 317, 320- 322 (2002), p. 320; Susan

Brownmiller, Against Our Will: Men, Women and Rape (Simon & Schuster, 1975) 31)

Coming to the aspect of analysing the current laws on sexual offences, not much work

had been done in the area of analysing the Criminal Law (Amendment) Act, 2013. This gave

the researcher a starting point to dwelve on. There was plenty of data on Prostitution. (Teela

Sanders, Maggie O’ Neill and Jane Pitcher, “Prostitution sex work, policy & politics”, ed.(1)

2009;Svati P. Shah, “True Sex and the Law Prostitution, Sodomy, and the Politics of Sexual

Minoritization in India, edited by Sanjay Srivastava, “Sexuality Studies”, ed.(1) 2013, pp.

141-160 ) However, very less data concretely discussing the drawbacks of the current Indian

law.The researcher further found that there was a lot of material on LGBT rights. (Rosie

Harding, “Regulating Sexuality Legal consciousness in lesbian and gay lives”, ed.(1) 2011;

Danish Sheikh, “The Road to Decriminalization: Litigating India's Anti-Sodomy Law”, Vol.

16, Issue 1, Yale Human Rights and Development Journal;

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1117&context=yhrdlj; “Men

Having Sex with Men”, see, e.g., LGBT Section 377, LAWYERS COLLECTIVE, available

at http:/ /www.lawyerscollective.org/vulnerable-cormmunities/1gbt/section-377.html.) Again,

a lot of legal data on HIV/ AIDS. (http://www.helplinelaw.com/civil-litigation-and-

others/RHPI/rights-of-hivaids-patients-in-india.html as last visited on 22/05/2016;

http://www.prsindia.org/billtrack/the-human-immunodeficiency-virus-and-acquired-immune-

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1117&context=yhrdlj

http://www.helplinelaw.com/civil-litigation-and-others/RHPI/rights-of-hivaids-patients-in-india.html


http://www.prsindia.org/billtrack/the-human-immunodeficiency-virus-and-acquired-immune-deficiency-syndrome-prevention-and-control-bill-2014-3126/

8

deficiency-syndrome-prevention-and-control-bill-2014-3126/, as last visited on 22/05/2016.)

But no laws on STDs as a whole.) There was very little or infact no data on the critical

analysis on medical examination. (J Indian Acad Forensic Med. October-December 2013,

Vol. 35, No. 4 , “Medico-legal Examination of Accused of Alleged Rape Cases A

Prospective Study”; http://medind.nic.in/jal/t13/i4/jalt13i4p332.pdf.) There was no data on

critical analysis of the procedural aspects of the trial of sexual offence laws. Moreover, since

the Juvenile Justice Act, 2015 had been just passed, there was hardly any data on the analysis

of the Act. Further, there was some passing material regarding the sentencing guidelines.

(Mahendra K. Sharam, Foreword by Hon’ble Chief Justice A.K. Mathur, “Minimum

Sentencing For Offences in India Law and Policy”, ed. (1) 1996); Sentencing Policy,

Victimology and compensation to

thevictims;http://mja.gov.in/Site/Upload/GR/Workshop%20Paper_sentencing%20victimolog

y%20-%20uday%20b%20shukla.pdf., as last visited on 20/05/2016.) However, there are no

laws to guide the same like in U.S. and U.K. in the Indian context. Lastly, it was found that

the guidelines in the Indian context regarding victimology are still unclear and need further

clarification and need data collection and analysis to evaluate the schemes.

1.4 STATEMENT OF RESEARCH PROBLEM

The researcher does not support the view that there are sufficient/adequate laws

relating to sexual offences and related acts and would like to explore the idea that even the

laws are lacking/ insufficient/ inadequate on various issues or contradictory to each other in

nature and thus need serious rework and improvement, which the researcher has tried to

establish through the research undertaken. The view is contradictory to the opinion of J.S.

Verma Committee Report.

http://medind.nic.in/jal/t13/i4/jalt13i4p332.pdf

http://mja.gov.in/Site/Upload/GR/Workshop%20Paper_sentencing%20victimology%20-%20uday%20b%20shukla.pdf


9

1.5RESEARCH DESIGN

The researcher has followed the scheme of chapterization to present the information

and its analysis. Chapter 1 introduces the issue, gives its conceptual framework along with

the research scheme. Chapter 2 discusses the evolution of sex, “normal sexual standards” and

theories of deviance” among other things giving the conceptual framework. Chapter 3 gives

the international and national legal framework. Chapter 4 gives an overview of the laws

relating to sexual offences and related acts like the critique of The Criminal Law

(Amendment) Act, 2013 and laws relating to prostitution, persons with sexually transmitted

diseases, LGBT community, medical examination of victims and a shift in burden of proof in

the form of reverse onus clauses for proving sexual offences. Chapter 5 discusses the lack of

sentencing guidelines while awarding punishment to sexual offenders. Chapter 6 discusses

the issue of offending identities and deciding whether as a society we want victim

rehabilitation or offender rehabilitation or both while deciding who the real victim is. Lastly,

Chapter 7 ends the research listing the key takeaways as conclusion and giving suggestions.

Comment [HC5]: Plz give a brief of all chapters here.

10

1.6 RESEARCH OBJECTIVE

This research aims at bringing to light the repercussion, both negative and positive,

anomalies and efficiency of the sexual offence laws substantive as well as procedural in India and

explore the idea of a single comprehensive legislation dealing with the same instead of the

present provisions which are scarce/ inadequate/ lacking, scattered and contradictory in nature as

provided for in various legislations, to actively advocate the cause of gender justice, which we

have been trying to advocate for decades while giving a cursory glance to the conceptual/

theoretical framework to normal sexual standard and theories of deviance along with

international and national institutional/ constitutional frameworks.

1.7RESEARCH QUESTIONS

The researcher will try to answer the following research questions as formulated below by

undertaking research on the broader topic analysis of if the sexual laws in India are at their

optimum or not:

RQ 1: Whether the historical evolution of sex, sexual behaviours and theories of

crime, the theories of sexual deviance and the feminist perspectives of crimes provide

a valid justification for “sexual deviance in individuals” or not?

RQ 2: Whether the current international and national constitutional and institutional

legal frameworks provide for a sufficient indepth overview for development of a

comprehensive understanding on sexual laws or not?

RQ 3: Whether the suggested amendments made through Criminal Law

(Amendment) Act, 2013 along with the laws on prostitution, LGBT community,

persons with sexually transmitted diseases specially HIV Infected people, laws

regarding medical examination, sentencing guidelines and victim/ offender treatment,

rehabilitation, restitution, assistance are adequate to cater to the critical needs and

demands of a sexually charged society (seeing the population growth rate as being the

second most populated country after China) which have been finally adopted or not?

Comment [HC6]: This is value laden statement for which you have no data

Comment [HC7]: I didn’t understand what you mean by this.

11

1.8RESEARCH HYPOTHESES

The research is based on the following assumptions, which need to be checked for the truth in

them:

H1: “Sex” is a commodity20

.

H2:“Sexual relations” are contracts21

.

Exceptions: The only exception to sexual relations being a contract are that:

(i) The consent is revocable at any given point of time, even after communication

of acceptance has reached and part performance of contract has been

performed.

(ii) Past sexual reputation/ history does not matter.

(iii) Contracts maybe for consideration22

or arising out of natural love and

affection.23

H3: “Informed/ Choiced Consent” is the most “SACRED” when it comes to the

performance of the contract concerning “SEX” by a person, but it should be without

any sort of “compulsion”. Also, understood as “free consent”24

.

1.9RESEARCH METHODOLOGY

The research methodology adopted to undertake the instant project/ dissertation is

doctrinal in nature. Various books, journals, articles, newspaper reports, law commission

reports and committee reports along with helpline websites have been referred to prove/

disprove and thus answer some of the most common conceptions to understand various

connotations or shades to “sexuality” which have been explored by the researcher in the

current legal context in India. The researcher first went through the existing material to

understand the research that has already been done to formulate research questions so that

researcher could add to the existing information and analysis in the subject areas chosen.

20

Not covered under The Essential Commodities Act, 1955. 21

As defined under Section 2(h), The Indian Contract Act, 1872. 22

As defined under Section 2(d) of The Indian Contract Act, 1872. 23

Also, “Gifts”are permitted under Section 122 of The Transfer of Property Act, 1882. Further, a person maybe

a heir or legatee under intestate or testamentary succession. 24

Free consent as defined in The Indian Contract Act, Section 13. Also, refer “free will” as propagated by

Rousseau on the development of “Social Contract Theory” and explained by Osho.

12

1.10 TOOLS FOR DATA COLLECTION

Various tools have been employed to undertake the current research study like case

law analysis; constant comparison of international and national constitutional- institutional

legal framework; textual analysis of various law commission and committee reports and

content analysis of the pending bills, current legislations and proposed amendments. Also,

case study analysis has been done of Nirbhaya case to understand the JJ Act amendment

implications on child delinquency. Lastly, talking to various academicians for their opinion

and suggestions.

1.11 SCOPE OF STUDY AND LIMITATIONS

The researcher has tried to explore the concept of “normal sexual standards”, a

misnomer as it has no single definition and its shades varies from religious, to medical, to

legal, to social and psychological standards. Further, it is not very fashionable for sociologists

nowadays to be involved in social engineering; a more lofty detatchment seems to be

preferred. Yet in a curious way that same lofty detatchment is a hallmark of other groups who

are not always given the warmest of welcomes in sociological circles and who, like many

sociologists, are not really detatched at all. Detatchment is all very well, but Howard

Beckers’s pertinent question forces us to reappraise our position from time to time. Becker

wanted to know ‘whose side are we on?’25

And the answer is I suppose likely to change at

frequent intervals.

The researcher would like to say that the scope of study covers sexual deviance, crime

and law in detail, they being the prime focus areas of research.

Further, research has been carried out within the limited time frame squeezed out

during the LL.M. coursework, in comparison to the time that might be required to take on a

vast topic like the one undertaken by the researcher.

Also, the idea is absolutely original, that is to consolidate and reframe laws relating to

sexual offences and related acts and no work has been done on it before in the Indian context.

25

Philip Bean, “Rehabilitation and Deviance”, ed. (1) 2013, p. vii.

13

Therefore, owing to the newness work had to be done on it from scratch as there is no

previous work on the issue in the Indian context.

Lastly, I the researcher am just a LL.M. student who has not even completed her

masters. So, given my limited knowledge and expertise, I tried to best cover the topic with

my limited knowledge horizon, while still trying to expand it.

14

CHAPTER 2

HISTORICAL EVOLUTION OF SEX AND THEORETICAL

FRAMEWORK

15

2.1 INTRODUCTION: SEX IN HISTORY

To understand the role and practice of sexual behaviour, it is necessary to view it in

historical perspective. One way to do so is to analyse certain family types, as they existed

throughout the ages, and their modal viewpoints on sex and sexuality. This is the approach

that will be taken in this chapter. Several types of families- ancient Jewish, Greek, Roman,

and Christian- will be examined, along with their historical periods, to provide some

perspective on today’s views on sexual activity, both “normal” sex and socially judged

criminal sex offenses. These particular cultures were chosen for a reason. It is hoped that the

evolution of sexual expression, freedom of behaviour, and philosophy through time will be

made clear through this chapter. The general pattern that should emerge at the end of the

chapter is that as society progressed and humans began to conquer their environment, the

philosophical support for repression of human sexuality (both male and female) began to

relax. This pattern changed when the early Christian Church began to dominate the common

culture of Europe and the rest of the enlightened world. This dominance continues to

dominate our view of sex and its place in our lives.26

The various “Family Types” are

discussed as follows27

:

2.1.1 THE HEBREW FAMILY28

Several centuries before the time of Christ, the ancient Jewish family had

characteristics that grew out of necessity, because of the Jew’s social status as well as the

harsh environment that they lived in. The early Hebrew tribes were a small group of nomadic

people who roamed around in desolate locations for centuries. Because of their circumstance

and core religious values, they were persecuted by other cultures over the course of history.

The harsh physical, social, and political environment they lived in prompted them to develop

a strong case of community and family to keep them together as a people.29

The first recorded

Jewish wedding (Isaac and Rebecca) takes place after the symbolic sacrifice of the first

Jewish son, referred to as “the binding of Isaac. This emphasizes the sacred nature of

26

Stephen T. Holmes and Ronald M. Holmes, “Sex Crimes Patterns and Behavior”, 3rd

ed. 2009, p. 49. 27

Anne Hamer Pors. Sexuality and Gender Roles in First Century Greco-Roman-,Jewish-, and Emerging

Christian Cultures- A Comparitive study, Stud. No.: 20062218, Religious Roots of Europe, Aarhus University,

February 2013. 28

Stephen T. Holmes and Ronald M. Holmes, “Sex Crimes Patterns and Behavior”, p. 50. 29

Don Feder, The Jewish Roots Of Family Values, ISSUE BRIEF, MARCH 2011 IF11C01.

Comment [A8]: Not clear It means that he got committed.

16

marriage in Jewish tradition. The Hebrew word for a Jewish marriage is “kiddushin”—

sanctification or holiness.30

Overall, the early Hebrew families had four distinguishing

characteristics. They were patriarchal, patrilineal, patrilocal, and polygynous. Sex in the

Hebrew family was primarily reserved for procreation and for the pleasure of the male.

Women were not to enjoy sex; instead it was their “pleasure” to raise the children and take

care of the home. Further, Cares and Cusick analyzed a sample of 76 clinical case files31

from

a Jewish domestic violence services agency, and found that 53 of the cases (70%) explicitly

identified ways in which husbands used Jewish holidays, laws, or customs to reinforce

abusive behavior.32

In order to stop sexual abuse and incest in the community, Jewish leaders

must follow the guidelines laid down33

at various instances. For example, recently34

all the

orthodox leaders had a meeting in Jerusalem.

2.1.2 THE GREEK FAMILY35

Greek society is characterized by heterogeneity due to the coexistence of traditional

values along with modern and post-modern trends following changes in social structures and

institutions.36

According to the Greek legislation the legal age for sexual relations or age of

consent is: for heterosexual relations the age of 15 as specified by Section 339(1) of the Penal

Code, which reads: “One who commits an indecent act with a person under fifteen years of

age, or causes this person to commit or undergo such an act through deception, is punished

...37

However, Article 347 holds a further prohibition of “seducing” a young male person if

the actor is an adult and sets the age of consent for male homosexual activity to 17.38

Before

30

Ibid. 31

Cares, Alison and Gretchen Cusick. “Risks and Opportunities of Faith and Culture: The Case of Abused

Jewish Women.” Journal of Family Violence 27 (2012) 427–435. 32

Bianca Hasten, B.A. Annotated Bibliography, “Sexual and Domestic Violence Against Jewish Women”. 33

Dorff, Elliot. “The Role of Rabbis, Cantors, and Educators in Preventing Abuse and Repairing Its

Consequences.” Shine the Light: Sexual Abuse and Healing in the Jewish Community. Ed. Rachel Lev. Boston,

MA: Northeastern University Press, 2003, 177– 189. 34

“Orthodox Jews convene to stop domestic and sexual abuse”, http://www.91mobiles.com/hp-hp-15-ab516tx-

t0z59pa-core-i5-6th-gen-8-gb-1-tb-windows-10-laptop-price-in-india-93059#user_reviews, as last visited on

4/6/2016. 35

Stephen T. Holmes and Ronald M. Holmes, ““Sex Crimes Patterns and Behavior””, 3rd

ed. 2009, p. 51. 36

Katerina Vassilikou, Academy of Athens, “Sex education and sex behaviour in Greek adolescents: a research

review”, Social Cohesion and Development 2014 9 (2), 143-154. 37

Ibid. 38

Children Sexual Abuse, http://www.interpol.int/Public/Children/ Social cohesion and development

SexualAbuse/NationalLaws/CsaGreece.pdf, as last visited on 30/05/2016.

Comment [A9]: Where? And by whom?

http://www.91mobiles.com/hp-hp-15-ab516tx-t0z59pa-core-i5-6th-gen-8-gb-1-tb-windows-10-laptop-price-in-india-93059#user_reviews

http://www.91mobiles.com/hp-hp-15-ab516tx-t0z59pa-core-i5-6th-gen-8-gb-1-tb-windows-10-laptop-price-in-india-93059#user_reviews

17

the time of Christ, the ancient Greek family took a pragmatic view of sexuality and how sex

was to be practiced both inside and outside the family. Like the early Hebrew tribes, the

purposes of hetrosexual sex was seen to be procreation and, of course, marital enrichment.

One of the unique factors of how sex was viewed in Greek society stemmed from the strong

public and communal encouragement of homosexuality. For many in Greek society, the

highest form of love affair was considered to be that between two males, one an adult and the

other a young boy before puberty. In other words, homosexuality and pedophilia was

institutionalized in Greek society and was part of their common culture. The status of the

woman was low in the Greek family. The married woman was low in the Greek family. The

married woman had principally only two roles: wife and mother. Sex in ancient Greece was

not only for procreational but also recreational purposes. Homosexuality, lesbianism,

hedonism, polytheism, and a warlike and monogamous family structure were all traits that

typified the ancient Greek family.

2.1.3 THE ROMAN FAMILY39

Like the Greek family, the Roman family was patriarchal, patrilineal, patrilocal, and

monogamous. Like many cultures around the world, sex was a matter of vital importance to

the Romans, not only was it necessary for producing the next generation, but it also played a

central role in their culture as a whole. Sex and sexuality were omnipresent forces in just

about every facet of Roman life –in rituals and art, in politics and literature, in love and war.40

Nevertheless, the Roman family type was very important in the sexual history of the family,

because the Roman family was the first family type that allowed equality for males and

females. Belief in equality of the sexes led to the concept of bi- humanity- what was good for

one sex was equally good for the other. Thus, the world of the private life, the home and

family, was just as important as the world of the public sphere. Just because one was different

from the other did not make one more important than the other. The sexual values of the

family included not only sex as procreation but also sex as recreation. Sex was something that

was viewed as a normal part of a personality and was to be enjoyed. There was nothing

wrong with sex. The jurists frequently define the minimum female age in terms of physical

39

Stephen T. Holmes and Ronald M. Holmes, ““Sex Crimes Patterns and Behavior””, 3rd

ed. 2009, p. 52. 40

Kyle M. Tyner,Roman Social-Sexual Interactions: A Critical Examination of the Limitations of Roman

Sexuality, Department of Classics, University of Colorado at Boulder, April 2, 2015.

Comment [A10]: Source of this information? Stephen T. Holmes and Ronald M.

Holmes, ““Sex Crimes Patterns and

Behavior””, 3rd ed. 2009, p. 51.

Comment [A11]: Source of this information? Stephen T. Holmes and Ronald M.

Holmes, ““Sex Crimes Patterns and

Behavior””, 3rd ed. 2009, p. 51.

18

maturity41

, any sources, like this one, point clearly to age twelve as the conventionally set

minimum.42

Modern perceptions of Rome overwhelmingly paint Roman sexuality in a rather

scandalous light. The modern imagination tends to regard Rome as a mecca of vice from the

foregone days of old, but in reality, as the researcher will aim to demonstrate in this thesis,

the Romans were not any more sexually peculiar than a number of modern societies.43

Neither

homosexual nor hetrosexual sex was sinful. Roman religion was predicated upon a plurality

of gods, and these gods did not only deal with vengeance and war. There were gods of

emotion and pleasure as well. Even when an individual became intoxicated, it was sometimes

viewed as though he or she had received special visitation from the gods. From all the special

traits of the Roman family, the Christian family arose. But because early Christians were a

small group of people, persecuted and reviled, it was only natural that they would overturn

and replace many of the social and sexual values that the Romans held dear.

2.1.4 THE CHRISTIAN FAMILY44

The biblical idea of marriage and family along the revelation- historical way of

reasoning has the creational order as its foundation45

.46

After years of persecution, the

Christian family gained power and recognition in Rome through an edict issued by Emperor

Constantine in 313 AD. Unlike the other three family types that have been discussed, the

Christians believed that it was better to remain single, but if you could not contain yourself, it

was better to marry than to burn (in hell)47

.48

The sum and substance of traditional Christian

sexual morality consists in the judgment that sexual intercourse ought to take place only

between a man and a woman who are married to each other.49

As St. Paul stated, “It is better

41

she must be “capable of sexual relations,” viripotens; see Case 13 and also, e.g., Labeo, D. 24.1.65,36.2.30. 42

Bruce W. Frier and Thomas A.J. McGinn, American Philological Association, CLASSICAL RESOURCES

SERIES, Joel Lidov, Series Editor NUMBER 5, A Casebook On Roman Family Law. 43

Kyle M. Tyner, Roman Social-Sexual Interactions: A Critical Examination of the Limitations of Roman

Sexuality, Department of Classics, University of Colorado at Boulder, April 2, 2015. 44


ed. 2009, p. 53. 45

(Köstenberger 2004:31). 46

J M Vorster, Christian ethical perspectives on marriage and family life in modern Western culture, School of

Ecclesiastical Sciences, North-West University (Potchefstroomcampus), HTS 64(1) 2008. 47

(I Corinthians 7:9). 48

For example, John G. Milhaven, reviewing Charles E. Curran's latest book, Contemporary Problems in Moral

Theology (New York, 197o ) says: Curran refuses to accept the teaching of theologians that all sexual

intercourse and any direct sexual stimulation outside marriage is always gravely wrong. 49

THEOLOGICAL TRENDS SEX IN CHRISTIAN MORALITY,

http://www.theway.org.uk/Back/11Roach1.pdf, as last visited on 30/05/2016.

Comment [A12]: Source? Stephen

T. Holmes and Ronald M. Holmes,

““Sex Crimes Patterns and Behavior””,

3rd ed. 2009, p. 52.

Comment [A13]: Follow a uniform mode of citation.

Comment [A14]: What is it?

http://www.theway.org.uk/Back/11Roach1.pdf

19

that you remain as I” (that is, single). Of course, Jesus never uttered such words as these, but

he may have set an example of his erotic- phobic posture (If the scriptures are factually

accurate) when he doctrinally refused to be born of a natural sexual union between a husband

and a wife and also when he refused to marry. Many theologians, and even the popular book

the Da Vinci Code by Dan Brown, proposed that Jesus may have indeed married Mary

Magdalene- if for no other reason than that there was a severe Roman tax placed upon single

males once they reached a certain age. This tax almost ensured that every man would marry,

because the average man at that time would have found it very difficult to pay the tax. The

Christian family incorporated many of the same traits as the earlier family types. It insisted,

for example, on monogamy (if a man could not control himself, he therefore had to marry)

but did not allow for divorce. The purest men did not marry at all, but instead dedicated all

their efforts to the work of preparing for the next world. Sex was considered utilitarian; it was

not to be used for recreation, as was the practice of Romans. Sex was for procreation and not

for pleasure. After all, Mary, the mother of Jesus, was a virgin and did not involve herself in a

conjugal fashion with her husband, Joseph. The Holy Spirit mystically impregnated her, and

Joseph had nothing to do with the pregnancy. Moreover, Mary was free from the stain of

original sin, a Christian dogma that was not made an integral part of the belief of the Church

until several hundred years later. It does not appear that Jesus was as firmly opposed to the

joys of sex, as were many of his followers. After his death, however, the institution of the

Church soon began to take a firm stand against the evils of sex and sexuality. This is best

seen in many of the early Christian saints and martyrs. The status of women fell drastically

during this time. Women, after all, were considered to be the source of evil. If not for Eve,

Adam would not have sinned. She led him to the devil’s temptation and enticed him into sin.

The concept of women as evil took deep root at this time; some early Church fathers became

so entrenched in their belief in the inferior position of women that one theologian even stated

that he believed that women were nothing but phlegm and bad blood. But women were

needed despite all their supposed bad characteristics, for women begat the Church’s most

prized possessions, future followers and believers. It is easy to see with these early teachings

how the sexual philosophy of traditional repressive asceticism began and permeated the

sexual value structure of the early Christians. These feelings, with all the positive and

negative values and attitudes attached, have certainly stayed with us to the present time. Sex

is something to be done with someone with whom one has a positive emotional relationship.

Comment [A15]: Source? Stephen

T. Holmes and Ronald M. Holmes,

““Sex Crimes Patterns and Behavior”,

3rd ed. 2009, p. 53.

20

In some conservative Christian religions, procreation must still be a possibility. The

violations that occur during daily transactions in our sexual lives are violations only because

somewhere someone somehow designed arbitrary norms to establish normalcy and deviancy.

The feelings of violations must somehow be negated. It is no wonder that a person feels

somewhat helpless because of “normal” transgression of standards devised by statistics,

culture, and religion.

2.1.5 THE FAMILY IN THE MIDDLE AGES

As the family moved into the Middle Ages, the Church seized control and still exercises

control to a great extent over attitudes and values on sex. The Church ecclesiastically

mandated a list of sins that proscribed certain sexual acts that the Church believed were

against natural and Church law. For example, masturbation was considered to be a sin

punishable by a year of penance. Subsequent acts of masturbation resulted in longer periods

of penance outside the Church. Women were considered to be sinners if they loitered around

the church building after midnight. There were sanctions against having sex with one’s

spouse on holy days and for 40 days before and after Easter, and against acts of

homosexuality. Obviously, birth control and abortion were viewed as abominations, because

neither would lead to population increase, thus violating the primary purpose of marriage.50

Sex during this time became intimately connected with procreation. And the status of

women fell dramatically. The wife, a carnal creature, satisfied the carnal nature of man.

Under the Church’s view, the pure love relationship should never be consummated or tainted

by sex unless one could not control oneself. True love at this time was an idealized, platonic

arrangement, a love that was often never consummated.51

Under the ever- watchful eye of the Church, sex was utilitarian- its sole purpose was

procreation. This position was so firm that the Church went so far as to consider it sinful for a

husband and wife to have sexual intercourse once the wife passed childbearing age.52

But sex still had a degrading connotation attached. For example, newlywed couples

were encouraged to refrain from sex on their wedding night. If they could not restrain

50

Stephen T. Holmes and Ronald M. Holmes, ““Sex Crimes Patterns and Behavior”, 3rd

ed. 2009, p. 56- 57. 51

Ibid. 52

Ibid.

21

themselves, they could pay the Church a moderate fee, which would allow the act to occur. In

addition, a man who had intercourse with his wife could not go to Church until after he

bathed. A newlywed couple could not attend church until 30 days had passed after their

wedding. Upon their return to church, they were to bring a gift as a form of penance. After

childbirth, the woman had to wait 40 days before she could return to church.53

There were proscribed days when sex was taboo. At one time, husbands and wives

could have intercourse only on Tuesdays and Wednesdays. The other days were taken up

with the duty of being a good Christian.54

The Middle Ages was truly a time of intense struggle for power between the Church

and the State. One manner in which the Church was able to gain such control was to gain

authority over marriage and the family. They did and did well. There were Church laws

passed that allowed sexual intercourse only on certain days of the week (as mentioned earlier)

and demanded that coitus terminate when procreation was not a biological possibility. It

refused to allow divorce, allowing separation “from bed and board”. Members of the Church

were now bound to the arbitrary rules and Church laws passed by a professed celibate

clergy.55

As time passed into the early 20th

century, especially in the United States, sex was

being viewed more as a right of both sexes. Women demanded and won equal rights in all

stages of their lives. While the women’s movement has not been completely successful, as

men generally are compensated more than women in the workplace, women have won the

right to exercise their freedom in the area of sex and sexuality. The development of the birth

control pill and other methods changed the course of women’s sex lives at least to the extent

that they were now biologically free to engage in recreational sex without the worry of an

unwanted pregnancy. Finally, technology caught up with emerging values.56

53

Stephen T. Holmes and Ronald M. Holmes, ““Sex Crimes Patterns and Behavior”, 3rd

ed. 2009, p. 56- 57. 54

Ibid. 55

Ibid. 56

Ibid.

22

2.1.6 CURRENT SEXUAL STANDARDS57

A perusal of varied literature on Indian society and culture, particularly generated by

ethnographers, historians, Christian missionaries and subsequently by anthropologists and

sociologists, suggests that the twentieth century recorded certain changes of far reaching

importance in the family system under the influence of westernization, industrialization,

modernization and greater population mobility across the sub-continent. Ever since then the

Indian family has progressively confronted and combated various kinds of problems and

challenges, and yet India does not have any family policy per se so far; albeit the Government

of India has indeed taken several useful legislative measures relating to widow remarriage,

women’s right to property, practice of child marriage, succession, adoption and maintenance,

dowry, dissolution of marriage affecting different communities and most recently domestic

violence, which have impacted the Indian family system in more ways than one. It is,

however, recognized that the formulation of a single national policy given the large size and

heterogeneity of a society like that of India is really a difficult task. Barriers to the creation of

a comprehensive national policy in India are intricate parts of Indian ethos and ideology.58

Attitudes toward sex and sexuality have changed drastically since the time of the early

Jewish family. In the early history of the United States, sex was still viewed as a method of

propagation of the species. At the beginning of the 20th

century, the status of women was still

low. Women were beginning to elevate their own status, fighting for their own rights- the

right to vote, for example- and as the society moved into the mid- 20th

century, women were

demanding equal rights in all spheres of their lives, including their sexual lives and identity.59

The old double standard began to crumble in the 20th

century, but there is no doubt that

remnants of the standard are still with us today. There are still many who believe that it is

permissible for men to “sow wild oats” but not for women. Where did we get this idea and

value? Such values and attitudes have been passed down from one generation to the next,

with each generation accepting, changing, and adding to it in various ways. What is needed at

a particular time by one generation influences what is deemed important and vital to the

existence of the society.60

57

Stephen T. Holmes and Ronald M. Holmes, “Sex Crimes Patterns and Behavior ”, 3rd

ed. 2009, p. 58- 59. 58

J. P. Singh, Problems of India’s Changing Family and State Intervention,

http://www.un.org/esa/socdev/family/docs/egm09/Singh.pdf, as last visited on 30/5/2016. 59


ed. 2009, p. 58- 59. 60

Ibid, p. 58- 59.

http://www.un.org/esa/socdev/family/docs/egm09/Singh.pdf

23

Consider the current relatively liberal attitudes toward homosexuality, birth control, and

abortion. All three of these practices represent some form of population control. If, because

of some natural or human- made catastrophe, society suddenly needed a great increase in the

number of children born, it is reasonable to expect that there would be a change in society’s

values and attitudes toward these practices.61

The sexual standards that are apparent in today’s society reflect the current needs of

society. The philosophy of traditional repressive asceticism of early family norms is no

longer a mainstream sexual standard. Sex only for the male and solely for procreation is not a

viable standard for members of today’s society. We have also moved away, as a society, from

restricting sexual expression to those persons who are married.62

Some people feel that sex is too restricted, even among those who are in love and share

some form of personal and relational commitment. This hedonistic philosophy includes the

view that virginity, chastity, and monogamy are outdated and to a degree nonsensical. Those

who hold this philosophy- a true “playboy” philosophy of sexual anarchy- may believe it a

“waste” to restrict oneself to one partner or to be virginal. In this philosophy, virginity and

faithfulness in monogamy are viewed as less than desirable. One should exchange sexual

favors, and to restrict these favors is to circumvent one’s own pleasure as well as those of the

various partners one may come into contact with. Needless to say, not everyone agrees with

either of the sexual philosophies.63

2.1.7 SEX IN THE 21st CENTURY

The sexual standards of today are a modification of the sexual standards and practices of

yesterday. It would be nonsensical to believe that, just because we live in the 21st century, we

are beyond the moulding and shaping of sexual folkways and mores of years and generations

past. We are products of that time and of those people.64

61

Ibid. 62


ed. 2009, p. 58- 59. 63

Ibid. 64

Ibid.

Comment [A16]: Under this heading, you hvent discussed anything new happening in 21

st century.

Its discussed on next page, that how conception of sex with regard not only being enjoyed by men has changes and there is more openness and the taboo or hush-hush thing is disappearing.

24

So, what are the current standards that we live by in this view millennium? There are

several, and let us examine each in this section.65

The days of old double standard is fading. The double standard holds that sex is

something to be enjoyed by males only. Sex for enjoyment is the purview of the male, and he

will practice sex with those females under his control. Women are not to enjoy sex, and they

are to be sexually active only when procreation is a possibility. The sole purpose of sex for

the female is to continue the survival of the species. The purpose of sex for the male is a

combination of enjoyment and procreation. Needless to say, the main purpose for him is

enjoyment and relationship enrichment. The content of this chapter makes it easy to see

where the origins of the sexual philosophy arose. The sexual proscriptions of the early

Church leaders demanded sexual behaviours that were in line with the teachings of the

Church and its insistence upon morality in all aspects of life, including the sexual part.66

There is a reverse double standard also. This sexual standard allows complete freedom for

the female while restricting the sexual activities for the males. This has never been a general

sexual standard for any society. In most societies, the culture allows males more freedom in

their sexual lives than females. In this philosophy, however, the males are not allowed any

more sexual behaviors than the females in the single standard philosophy. Obviously, since

historically societies have been controlled by males, the men would not allow this type of

sexual standard to become the norm. Women are to be kept in a subservient position. Women

were seen as chattel. They were to be under the control of the men, as fathers, husbands, and

slave owners. Men, then, would not permit a sexual standard that would allow women to

receive more pleasure than the male counterpart.67

There is a third standard, the one and a half standard. In this standard, the old double

standard is kept for the male. The man may have as many sexual partners as he may have

without the necessity of love or strong affection. For the female, she may be sexual with a

male with whom she feels love or strong affection. What this does in effect is to allow the

woman sexual experiences before marriage as long as there is love or strong affection.68

65

Ibid. 66


ed. 2009, p. 58- 59. 67

Ibid. 68

Ibid.

25

2.2 SEX BEHAVIOURS AND CRIMES

Few topics arouse more attention of people than sex and sex crimes. The sex offender

is viewed by many as a moral degenerate and one who preys upon moral citizens at an

alarming rate with relative impunity.69

The crimes committed, such as rape, lust murder, and

child molestation, appal and disgust, but they attract and fascinate at the same time. Rapists,

serial killers, lust murderers, and others galvanize the concerns of those who are victimized

and those who experience their actions second hand through the media. Rarely a day passes

without some type of sex crime or scandal being reported on the evening news.70

2.2.1 WHAT IS NORMAL SEX?

We are then left with a simple question about human sexual behaviour. What is

normal? The answer to this apparently simple question is a complex one. When one asks

“what?” there is a demand to the receiver of the question to respond in a very simple way.

But to answer such a question with a simple answer is akin to opening Pandora’s box. What

is normal to one person may be quite offensive or even bizarre to another. Even as one ages

from adolescence to older adulthood, private sexual standards may change. What is offensive

or practiced may change.71

2.2.2 SEXUAL STANDARDS

There are at least four sexual standards used to determine normalcy. Naturally, not

everyone agrees on which standard is the most important and which one is best suited for

their own purposes of rationalization and explanation. The decision of what is normal

depends not only on the person but also on the general and particular circumstances. The four

standards are the statistical, cultural, religious, and subjective standards as explained below72

:

69

Tony Ward, Anthony Beech, “An integrated theory of sexual offending”, Aggression and Violent Behavior 11

(2006) 44–63. 70


ed. 2009, pp. 7-8. 71

Ibid. 72

Ibid, pp. 13-19.

26

(a) The Statistical Standard73

The statistical standard is quite simple and makes numbers the deciding criterion. For

example, if more than 50% of the population practice a certain sexual behaviour, it is then

considered normal. This statistical standard, then, validates normalcy for a person or a

group of persons who practice that particular act.

(b) The Cultural Standard74

A society has structures that transmit to its members what is considered to be appropriate

behaviour. In other words, any society has a set of rules and regulations with changing

sanctions that accommodate transgression of its rules, which often take the form of laws,

statutes, and ordinances. Transgressions or violations will also likely invoke some type of

punishment or sanction. Sanctions will vary from one transgression to another. Some

transgressions- for example loitering or littering- may result in fine. More serious

transgressions may result in prison sentences or even death.

(c) Religious Normalcy75

Historically, religion has played an important and vital role in developing the value

systems of societies and individuals. Only a few years ago, many Christians were guided

by strong and absolute guidelines. Certain acts constituted grievous or moral sins. If one

committed a moral sin and died without the opportunity to confess those sins, one was

assured of the inevitable punishment, eternal damnation in the fires of hell. Less grievous

sins were venial sins. The penalty for these transgressions was not as serious as the fires

of hell. Instead, an individual may be forced to spend a little more time in purgatory

before joining their maker in heaven. The commandments of the faith have in the past

been dogmatic and many placed behaviours into categories of wrong or right, sin or not.

This leaves the religious person with a comfortable position of knowing how a particular

behaviour is judged.

73

Ibid, pp. 13- 19. 74

Ibid, pp. 13-19. 75

Ibid, pp. 13- 19.

Comment [A17]: In footnote, mention the appropriate page Pages 17-19 already mentioned.


27

(d) The Subjective Standard76

The subjective standard is perhaps the most important in any person’s life. This standard

legitimizes behaviour in the same fashion as statistical, cultural, and religious standards,

but at a personal level. For instance, take the last time you drove slightly above the speed

limit on an interstate highway. Chances are there were many drivers passing you drove

along. Even though you were violating the speed limit, others were doing the same thing,

and you may have rationalized your lawbreaking, saying, “They were driving much

faster.”

2.2.3 NORMAL SEXUAL BEHAVIOUR

So the question to be adequately addressed is, “What is normal sexual behaviour?”

Those acts that threaten the public morality must be effectively deterred and those who

violate them must somehow be punished or rehabilitated. Recognizing that norms and

values are not static and will change over time necessitates that society and the common

culture must continually define and redefine what behaviour is acceptable and what is not.

For this reason, might it not be better to use the terms acceptable and unacceptable

behaviour rather than normal and abnormal.77

2.3 FEMINIST PERSPECTIVE AND SELF- CRITIQUE DISCOURSE TO

SEXUAL CRIMES

Conflicts among various feminist viewpoints about the silencing of the female voice

and how to enable it to be heard, generally, as well as how to make the female voice heard in

the international law arena as to how to handle sex crimes in the framework will be taken

under this heading.78

The critique of the feminist discourse that focuses on sex crimes, particularly the

radical feminist discourse, is primarily that it ignores the possibility that women can be

76

Ibid, pp. 13-19. 77

Ibid, pp. 18-19. 78

AlonaHagay- Frey, “Sex and Gender Crimes In the new International law”, ed. (1) 2011.


28

independent agents. For example, the discourse’s focus on German women raped by Russian

soldiers toward the end of WWII views them solely as victims and absolves them of all

responsibility for the Holocaust.79

More specifically, one of the critiques of Mac Kinnon, as the prominent spokesperson

of the radical perspective, is that her view of “sex” solely as a site of danger means that

women are always potential victims of sex crimes.80

Halley comments that MacKinnon’s

model is based on the perception of a hierarchy between men and women, and that,

consequently, her analysis of all sexual issues takes place through this prism of the

domination of women. Halley claims that this absolutist viewpoint is likely to overlook other

interests of justice, and also to cause harm from this type of analysis of every sexual act.81

In addition, a fundamental paradox exposed by the critique of the feminist discourse is

that the feminist appeal to courts of law (whether state or international) accepts the rules of

the game of the international institutions. And because those institutions were created by

male eyes and hands, this appeal also accepts the gender arrangement that the court imposes-

the same patriarchal social structure that harms the status of women.82

In general, the feminist streams of thought can be divided into radical feminism,

identified with MacKinnon, which fought for the recognition of rape as a war crime and as

“genocide” under certain circumstances, and other approaches which express concern that

recognition of these crimes will perpetuate the status of women as victims and create

distinctions between one rape and another. According to this latter view, rape is a serious

offense which must be denounced as such, irrespective of which party perpetrates it or how.83

79

On this issue, see the article by Pascala R. Bos, “Feminists Interpreting the Politics of War Time Rape: Berlin,

1945; Yugoslavia, 1992-1993”, 31(4) Signs J. Women Culture &Soc’y 995 (2006) (hereinafter PascalaBos). 80

Moreover, because radical feminism views sexuality as the site of male dominance, even sexual intercourse

that is not acknowledged by law or society as rape could be considered a form of male dominance. Aeyl M.

Gross, “Impersonation as Another Person: Imitation and Gender Insubordination in the Trial of Hen Alkobi” in

Orna Ben- Naftali & Hannah Naveh, eds., Trials of Love, (Ramot, Tel- Aviv University, 2005) 365, 392

[Hebrew](hereinafter Aeyal Gross). 81

Janet Halley, “Take a Break from Feminism?” in Karen Knop, ed., Gender and Human Rights (Oxford, 2004)

57, 65-66 (hereinafter Janet Halley, Take a Break from Feminism?); Janet Halley, Rape at Rome, supra note 3,

pp. 6-8. 82

Daphne Barak- Erez, “Introduction: The Legal Feminism of Catherine A. MacKinnon and the Move from the

Margin to the Centre” in Daphne Barak- Erez, ed., Legal Feminism in Theory and Practice (Resling, 2005) 18-

19 [Hebrew]; Janet Halley, Take a Break from Feminism?, supra note 68, pp. 65-66; Aeyal Gross, supra note

67, p.395. 83


29

An issue that proponents of both feminist streams of thought agree upon is that

women who have been raped during conflict must be treated as war victims.84

However, they

are likely to disagree about the definition of some of the situations the researcher calls

“survival sex”. These are acts of sexual intercourse between women who are prisoners and

the soldiers in charge of them, or between a population that has been conquered and the

conquering army, on the basis of “consent” given in a general context of coercion and lack of

freedom.85

The discussion about sex and gender crimes in international law must continue, but

with an awareness of the potential risks that exist. Examples of these risks are that (i) women

may become stigmatized as victims; (ii) the inclusion of the offense of rape in the existing

crime categories in international law could result in the exclusion of other sex and gender

crimes that do not fit into the criteria of the existing crime categories; and (iii) the way the

male legal system deals with issues perceived as “female” can create certain problems.86

2.4 THEORIES OF SEXUAL DEVIANCE

Exactly what causes deviant or violent offenders to behave the way they do is a

question that has perplexed the medical and social sciences for years.87

Almost any sexual behaviour can and may in some societies or cultures be considered

a forbidden act or one that deserves a criminal sanction. Looking at pornography, engaging in

premarital sex, exhibitionism, kleptomania, prostitution, sexual assaults, rape, erotic hanging,

bondage, sadomasochism, necrophilia, and even homicide all can in some cases be construed

to have a sexual dimension. Individuals who engage in these prohibited behaviours may be

called neurotics, sexual variants, psychopaths, or even criminals. The negative connotation

associated with the label of sexual deviant is devastating despite the context in which the

event, actions, or even the attraction occurs. In contemporary society, those convicted of a

84

Karen Engle, “Feminism and Its (Dis) Contents: Criminalising Wartime Rape in Bosnia and Herzegovina”, 99

Am. J. Int’l L. 778, 786 (2005) (hereinafter Karen Engle). 85

AlonaHagay- Frey, “Sex and Gender Crimes In the new International law”, ed. (1) 2011. 86


Roland Paulauskas, “Is Causal Attribution of Sexual Deviance the Source of Thinking Errors?”,International

Education Studies; Vol. 6, No. 4; 2013.

30

sexual offense are often required to register with the state, and certain restrictions may be

placed on where they can live and the people with whom they associate.88

According to the integrated theory of sexual deviance, the various factors that

determine sexual deviance in individuals are diagrammatically represented below:

2.4.1 THE SOCIAL CONTEXT OF SEXUAL DEVELOPMENT

One of the most important of all anthropological, sociological, and physiological facts

is that the human race is segregated into two sexes89

. This segregation of sexes sets the stage

for not only the reproduction of the species but for most of adult behaviour90

. Children learn

very early in their lives the roles prescribed for their biological gender. As a child’s

88

Stephen T. Holmes and Ronald M. Holmes, “SEX CRIMES PATTERNS AND BEHAVIOR”, 3rd

ed. 2009,

pp. 29- 30. 89

(Sumner, 1906); Stephen T. Holmes and Ronald M. Holmes, “Sex Crimes Patterns and Behavior”, 3rd

ed.

2009, pp. 32- 33. 90

(Freud, 1930; Kinsey, 1947); Stephen T. Holmes and Ronald M. Holmes, “Sex Crimes Patterns and

Behavior”, 3rd

ed. 2009, pp. 32- 33.

Comment [A20]: Source?

Comment [A21]: This is not the university approved reference style


31

understanding of the distinction between the sexes grows, children learn how to interact with

members of the opposite sex in socially desirable ways. With the onset of puberty, many boys

and girls will commence predating behaviour and will hold hands or share a kiss, often

mimicking the sexual and social behaviour exhibited by parents, older siblings, or celebrities

they see on television. This progression continues into adulthood, with individuals

accommodating their lives to be in line with normative definitions of appropriate

development. These definitions and rules relate not only how the sexes socially relate to one

another, but also the types of sexual or semisexual acts that they engage in.91

2.4.2 INDIVIDUAL- LEVEL EXPLANATION OF SEXUAL DEVIANCE92

One of the most prominent explanations why sexual offenders, especially violent

sexual offenders, commit the crimes they do is that there is something inherently wrong with

the functioning of the offender’s brain. In essence, both the psychological and the psychiatric

model often posit that the cause of most deviant sexual crimes is inherent within the

individual.

Psychological models tend to emphasize both individual and environmental

influences on criminality. The other model that most students in the social and behavioural

sciences are familiar with are psychiatric models. Most psychological models tend to denote

various personality characteristics exhibited by offenders that if identified could predict

future criminal behaviour93

. The emphasis for these theories is the identification of aberrant

behaviour or tendencies and how they are acquired, evoked, maintained, or modified94

.

Psychiatric models follow the traditional psychoanalytic perspectives established by the

famous father of this school, Sigmund Freud (1856- 1939). The crux of theories making up

the psychiatric model derives their power by examining and exploring possible motivations

and drives of offenders.

91

Ibid, pp. 30- 31. 92


ed. 2009, pp. 32- 33. 93

(Vito & Holmes, 1994); Stephen T. Holmes and Ronald M. Holmes, “Sex Crimes Patterns and Behavior”, 3rd

ed. 2009, pp. 32- 33. 94

(Bartol&Bartol, 1999); Stephen T. Holmes and Ronald M. Holmes, “Sex Crimes Patterns and Behavior”, 3rd

ed. 2009, pp. 32- 33.



32

2.4.3 THE SOCIAL LEARNING MODEL95

Another prominent theoretical model that seeks to explain why individuals engage in

sex offences is the commonly known as the social learning model. This model is not only the

most popular but also is the model most thoroughly researched of all the explanations of

criminal behaviour. The social learning model proposes that individuals learn criminal acts

and deeds and acquire motivations to commit crime from those things and people around

them. The social learning model acknowledges that there may be differences in individuals

and their cognitive skills and recognize that some people are just “wired” differently from

others.96

2.4.4 THE CONSTITUTIONAL MODEL97

In today’s world, almost all would agree that a person’s psyche and the environment

the person is brought up in play an important role in the person’s propensity to engage in a

life of crime and an even more important role in the propensity to engage in a sex crime. We

all have heard and have come to accept that the major correlates of criminal behaviour are

poverty, inadequate educational opportunities, alcohol or drug dependency, and being a

product of a broken home. In essence, most constitutional criminologists at the time believed

that a large proportion of criminals were thrust into a life of crime not because of the social

environment in which they were raised, but rather because of heredity.

2.4.5 THE RISE OF SOCIOBIOLOGY98

While most contemporary criminological theorist discount the relative importance of

biological theories in understanding the nexus of crime causation, the publication of

Sociobiology in 1975 by Edmund O. Wilson began to change many people’s view of the role

that biology was not the sole determiner of an individual’s decision to engage in a life of

95


ed. 2009, p. 36. 96

Tasha Jean Youstin, “Theory and Sexual Offences: Testing the extent to which social learning theory can

account for participation in illegal sexual behaviour (a thesis presented to the Graduate School of the University

of Florida in Partial Fulfillment of the requirements for the Degree of Master of Arts) University of Florida,

2007. 97


ed. 2009, p. 39. 98

Ibid, p. 43.

33

crime, but rather it played a role in that biological and genetic conditions affecting how

individuals perceive the way they fit into the social environment around them. In this view,

biology, the environment, and social learning are all factors to be considered when examining

why some people decide to engage in a life or crime and others do not.

2.5 CONCLUSION

Sexual behaviour has changed drastically through the ages, both in purpose and in

character, from a strictly utilitarian purpose with procreation as a goal to goals of recreation

and enrichment. But even with these different approaches to sex, and from a position that

many would consider to be behaviour within the normal range, there are many who operate

outside what are now considered acceptable parameters of sex and violate the law in the

process- individuals whose sexual behavioural patterns society has judged to be not only out

of the normal but criminal as well.

Comment [A25]: Not clear. I think some words are missing.

34

CHAPTER 3

INTERNATIONAL AND NATIONAL LEGAL FRAMEWORK

3.1 INTERNATIONAL FRAMEWORK

Under this section the researcher shall embark on a historical journey from the cradle of

international criminal law and trace the development of the sexual crimes. In this journey the

study of sexual crimes shall be divided into the following eras:

35

3.1.1 THE ERA OF SILENCE

This era can be studied under the following headings:

3.1.1.1 ABSENCE OF LEGAL CONDEMNATION THROUGHOUT HISTORY

Throughout history, women have suffered from mass rape during times of war. In

1204, the Crusaders raped women in Constantinople.99

In 1937, Japanese soldiers raped

women in Nanking.100

During WW II, German soldiers raped many Jewish101

and Russian

women,102

and toward the end of the war, Russian soldiers raped German women.103

In 1971,

Pakistani soldiers raped Bangladeshi women104

and American soldiers raped Vietnamese

women.105

We cannot identify a specific moment in history when rape during war was

declared a criminal act in the international context.106

Further, the passage which refers to a “beautiful woman” from among the enemy,

who has been taken captive and her captor desires her. According to the Bible, if the warrior

was aroused by a woman taken into captivity during war, he was permitted to “take her” by

force.107

These arrangements indicate that the phenomenon was so common that Jewish law

elected not to establish an absolute prohibition. This approach enabled supervision and

prevention of the kinds of problems likely to occur in the absence of formal arrangements.

These rules permitted a warrior who saw a “beautiful woman” during war, whom he desired,

99

Susan Brownmiller, Against Our Will: Men, Women and Rape (Simon & Schuster, 1975), p. 35. 100

Interestingly, this event is commonly referred to as the “Rape of Nanking”, thus focusing on the city and not

on the actual victims of rape- the women. Rana Lehr- Lehnardt, One Small Step for Women: Female- Friendly

Provisions in the Rome Statute of the International Criminal Court”, 16 BYU J.P.L. 317, 320- 322 (2002), p.

320. 101

Joan Ringelheim, “Women and Holocaust: A Reconsideration of Research”, 10 Signs J. Women

Cuture&Soc’y 741 (1985) (hereinafter Joan Ringelheim); Catherine MacKinnon, “Genocide’s Sexuality”, supra

note 1, p.317. 102

Rana Lehr-Lehnardt, “One Small Step for Women: Female- Friendly Provisions in the Rome Statute of the

International Criminal Court”, 16 BYU J.P.L. 317, 320- 322 (2002), p. 320. 103

PascalaBos, supra note 66. 104

Rana Lehr-Lehnardt, “One Small Step for Women: Female- Friendly Provisions in the Rome Statute of the

International Criminal Court”, 16 BYU J.P.L. 317, 320- 322 (2002), p. 320. 105

Susan Brownmiller, Against Our Will: Men, Women and Rape (Simon & Schuster, 1975) 31 106

Ibid, p. 35. 107

However, the Bible requires a month- long cooling-off period, enabling the woman to mourn her parents’

home and adjust to the new situation. If the man tired of her, he was not permitted to make her a slave. Instead,

he was required to free her, and he could not trade or sell her to someone else. Note that this law permitting

marriage to a non- Israelite woman is an exception, because the Bible relates negatively to marriages with non-

Israelites. It seems that the temptation of battle, during which women were as a matter of course permitted to the

conquering party, overrode this prohibition.

36

to take her as a wife even against her will, whether or not she was married and had a family.

This led to various laws: a “beautiful woman” did not actually have to be beautiful; it was

prohibited to take more than one woman; and it was prohibited to pressure her during the war

and to scare her into acquiescing.108

The historical development of women’s rights in war and their anchoring in

international law took place in a non-uniform manner. For example, Totila the Ostrogoth,

who conquered Rome in 546 A.D., forbade his soldiers from raping the women of the

city.109

One of the oldest surviving legal codes is the Articles of War published in 1385 A.D.

by Richard II of England. Among the 124 articles defining the rules of conduct for soldiers,

King Richard prescribed the punishment of hanging for any soldier brazen enough to force

himself upon a woman, and a similar punishment was prescribed for soldiers who dared to

plunder a church.110

Nevertheless, later during the 17th

century, the Dutch jurist Hugo Grotius

wondered about the fact that certain states accepted the violation of the dignity of women in

wartime as a permissible act, whereas during the same time period other states ruled

otherwise.111

In 1785, the U.S. and Prussia agreed in the Treaty of Amity and Commerce that

in the event of a war between them, children and women would not be molested. In order no.

20 of the U.S. General Winfield Scott in 1847, severe punishment was provided for soldiers

who committed rape. The Lieber Code of 1863, adopted by the U.S. and several European

countries, provided in Article 44 that soldiers committing acts of rape against the population

of an invaded country would be punished with death.112

The Hague Conventions of 1899113

and 1907114

(“Hague Conventions”) did not explicitly refer to rape and other sexual violence,

but they provided in general language that there is an obligation toward “family honors” and

“religious convictions and practice”. These words were interpreted as granting protection to

women against sexual violence.115

108


Susan Brownmiller, Against Our Will: Men, Women and Rape (Simon & Schuster, 1975) 34. 110

Ibid. 111

Ibid. 112

Ibid. 113

Hague Convention (II) Laws and Customs of War on Land, 29 July 1899, 32 Stat. 1803. 114

Hague Convention (IV) Respecting the Laws and Customs of War on Land, with Annex of Regulations, 18

October 1907, 36 Stat. 2277. 115

YougindraKhushalanai, Dignity and Honor of Women as Basic and Fundamental Human Rights (M. Nijhoff,

1982) 145.

Comment [A26]: Does the law say that a woman need not be beautiful? yes

37

In light of the horrors of World War I, a Commission was established in 1919 to

determine the responsibilities of the war’s instigators and to enforce penalties.116

This

Commission placed the offenses of rape and forced prostitution near the top of thirty-two war

crimes.117

Nearly 20 years later, the greatest horror ever documented in human history began-

WWII. Again, sexual attack was an inseperable part of the inter-ethnic battle and it

concomitantly continued to be a characteristic of gender subordination. During WWII, many

sex crimes occurred- both as encouragement for the fighting forces and as part of the policies

of the conquering forces.118

Both the Nazi and the Japanese regimes institute various forms of forced prostitution

and ignored the high frequency of acts of rape. For example, the Japanese regime established

the institution of “comfort women”, women who were kidnapped and imprisoned in order to

satisfy the sexual desires of the fighting soldiers.119

Despite the fact that the international

community was aware of these sexual atrocities, not a single step was taken to prevent them.

Although the Allied Forces reacted to the atrocious international crimes that were committed

by establishing two international tribunals to prosecute the accused but the era of silence

continued.120

3.1.1.2 THE NUREMBERG (IMT) AND TOKYA (IMTFE) TRIBUNALS

At the end of WWII, international tribunals were established in Nuremberg (the

International Military Tribunal in Nuremberg (IMT)) and in Tokyo (the International Military

Tribunal for the Far East (IMTFE)). These tribunals prosecuted the major war criminals for

“crimes of war”, “crimes against peace” (known today as the crime of “aggression”) and

“crimes against humanity”. This was the first time, international law imposed criminal

116

This commission is referred to by various titles: the “War Crime Commission”, the “Peace Conference

Commission”, “The Commission on Responsbility of Authors of the War”, and simply as the “1919

Commission”. See Kelly Dawn Askin, War Crimes against Women, p. 42. 117

The crime of rape is listed fifth, and immediately afterwards is forced prostitution or, in the words of the

commission: “kidnapping of children and women for purposes of forced prostitution”. The offenses preceding

these crimes were murder and slaughter, killing prisoners, torture of citizens, and intentional starvation of

citizens. On this issue, see History of the United Nations War Crimes Commission and the Development of the

Laws of War (London: H.M. Stationary, 1948). 118

Theodor Meron, “Rape as a Crime under International Humanitarian Law”, 87 Am. J. Int’l L. 424, 425

(1993). 119

See Etsuro Totsuka, “Commentary on a Victory for ‘Comfort Women’: Japan’s Judicial Recognition of

Military Sexual Slavery”, 8 Pac. Rim L. &Pol’y J. 47 (1999). 120


38

responsibility on individuals and not states. Establishment of these tribunals commenced a

trend that developed from the end of WWII, when it had become clear that the absence of

legal oversight mechanisms was liable to lead to violations of the basic human rights and

fundamental principles on which world order is based.121

3.1.1.3 SUMMARY: THE ERA OF SILENCE

The foregoing review demonstrates that prohibitions against sexual violence towards

women during war have existed for over 200 years. However, historically, both treaty and

customary international law have ignored sex crimes, have not explicitly addressed them in

the laws, and have not punished the sex criminals.122

While there have been legal statements

denouncing the practice of sexual violence in war, and an undertaking to end the sexual

violence that became so common during wars and armed conflicts, the measures taken were

insufficient to protect women. Moreover, sex crimes in times of conflict have always been

perceived as lesser crimes and perhaps even excused, as compared to other crimes against

“the rules of war”.123

As summarized by Theodor Meron:

“In many cases, however, rape has been given license, either as an encouragement for

soldiers or as an instrument of policy. Nazi and Japanese practices of forced prostitution and

rape on a large scale are among the egregious examples of such policies.124

”

Upon the conclusion of the Nuremberg and Tokyo tribunals, the Allied forces began a second

series of trials with the objective of bringing lesser war criminals to justice. These trials were

conducted in national military tribunals, which were authorized by Control Council Law No.

10 (CCL10).125

The CCL10 included “rape” in the crime category of “crime against

humanity” (in contrast with gender crimes and other sex crimes, which were not included in

the CCL 10). However, the crime of “rape” was not counted as a “war crime”.126

121

AmnonReichman, “Universal Jurisdiction in State Courts- Destroying Sovereignty or Creating World

Order”, 17 Mishpat v’ Tzava 49, 60-61 (2004) [Hebrew]. 122

Jocelyn Campanaro, “Women, War and International Law: The Historical Treatment of Gender Based War

Crimes”, 89 Geo. L. J. 2557, 2559 (2001). 123

Ibid. 124

Theodor Meron, “Rape as a Crime under International Humanitarian Law”, 87 Am. J. Int’l L. 424, 425

(1993), p. 426. 125

Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and

Against Humanity, 20 December 1945, 3 Official Gazette of the Control Council for Germany 49. 126

Theodor Meron, “Rape as a Crime under International Humanitarian Law”, 87 Am. J. Int’l L. 424, 425 (1993)

39

As the CCL 10 authorized the prosecution of any war criminal (not solely criminals from

the “aggressor” countries), an opportunity was created to bring many rapists to justice. Yet

the crime of rape was not included in even one indictment.127

3.1.2 THE ERA OF HONOR

Toward the conclusion of the Era of Silence, at the end of WWII, the atrocious sex crimes

which had been committed by soldiers on both sides of the conflict, on the basis of race and

gender, had finally begun “to be seen”. This is certainly true of the crimes committed by the

defeated side, which were no longer completely transparent in the eyes of the victors.

However, they were still not given appropriate weight, and they were given legal recognition

only by analogy. The age of silence only finally ended when the Geneva Conventions

explicitly recognized the crime of rape. This opened a new era- the Era of Honor. No longer

silence and transparency. The crime of rape was given content. The attacking army was

obliged to protect women’s honor. The harm to rape victims as persecuted ethnic victims was

recognized not as a physical or a mental injury, but as an injury to their honor.128

3.1.2.1 GENEVA CONVENTIONS

The beginning of the Era of Honor is marked by the signing of the Geneva

Conventions.129

These Conventions provide that grave breaches of humanitarian norm in the

context of an international armed conflict lead to individual criminal responsibility and

universal jurisdiction. Article 3 is common to all four Geneva Conventions and it provides

that some of these acts are also prohibited in conflicts that are not international. However, it

does not contain any references to sex crimes.130

127

AlonaHagay- Frey, “Sex and Gender Crimes In the new International law”, ed. (1) 2011, p. 67. 128

AlonaHagay- Frey, “Sex and Gender Crimes In the new International law”, ed. (1) 2011, p. 69. 129

The Geneva Conventions were supported by almost every country in the world- 192 countries ratified them.

Orna Ben- Naftali & Yuval Shany, International Law Between War and Peace (Ramot, Tel Aviv University,

2006), p. 131. The Geneva Conventions are as follows: First Geneva Convention “For the Amelioration of the

Condition of the Wounded and Sick in Armed Forces in the Field”, 27 July 1949, 118 L.N.T.S. 303; Second

Geneva Convention “For the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of

Armed Forces at Sea”, 12 August 1949, 75 U.N.T.S. 85; Third Geneva Convention “Relative to the Treatment

of Prisoners of War”, 12 August 1949, 75 U.N.T.S. 85; Fourth Geneva Convention “Relative to the Protection

of Civilian Persons in Time of War”, 12 August 1949, 75 U.N.T.S. 287 (hereinafter Geneva Conventions). 130

A peremptory norm is considered part of the customary international law and thus obligates every country in

the world, even if it is not a signatory to the Geneva Conventions. Originally rape was not considered part of the

customary law, but due to the atrocious acts committed during armed conflicts in recent decades

40

The international community related explicitly for the first time to “rape” in the

Geneva Conventions of 1949 in the context of the protection of civilians during war. Article

27 provides:

Women shall be especially protected against any attack on their honor, in particular

against rape, enforced prostitution, or any form of indecent assault.131

Although this provision obligates the conquering army to protect women from rape, the

wording of the Convention does not explicitly provide that acts of rape or sexual violence are

crimes or prohibited acts. However, the criminality of these words could be deduced by

interpretation of Article 3(c), which prohibits “outrages upon personal dignity”.

The language of these provisions clearly distinguishes between rape as it relates to an

attack on honor132

and other non-gendered crimes related to an injury to dignity.133

On this

basis, from the perspective of the Geneva Conventions, rape is an injury to the woman’s

“honor” in its social meaning, rather than “dignity” in the sense of her inherent dignity as a

human being. This treatment not only diminishes the value of the harm, but it also obscures

and fails to acknowledge the cruelty of the physical injury. It diverts the discussion toward

the social aspect of the injury and diminishes the aspect that is personal to her. This treatment

also reduces motivation to bring the attacker to justice for the crime of “rape” and leads the

system to punish criminals for crimes that seem to be more serious. As Charles worth

explains: The provision assumes that women should be protected from sexual crimes because

they implicate a woman’s honor, reinforcing the notion of women as man’s property, rather

than because they constitute violence.134

131

Fourth Geneva Convention. 132

The term honor was conceptualized by Orit Kamir. “Honor societies” are those in which “honor”, on the one

hand, and “shame”, on the other hand, serve as two sides of the same value by means of which social structure

and hierarchcal status are constructed. Dishonourable behaviour is perceived as casting a strain of disgrace on a

person’s good name and brings shame and humiliation. This stain of shame adheres to the individual’s honor,

and also casts its shadow on the honor of everyone who is defined as related to or allied with the person. Thus in

many societies the rape of women is considered an injury to the entire community’s honor and as a defect and a

“mark of Cain” on the victim, which can never be erased. See Orit Kamir, Israeli Honor and Dignity: Social

Norms, Gender Politics and the Law (Carmel, 2004) [Hebrew], pp. 19-25. 133

In contrast with “honor”, the concept “dignity” was conceptualized by Orit Kamir as a universal concept and

a uniform feature of all human beings. In order to acquire honor, one must act in accordance with a specific

social code. In contrast, “dignity” is an inherent characteristic with which each human being is born. See, Orit

Kamir, Israeli Honor and Dignity: Social Norms, Gender Politics and the Law (Carmel, 2004) [Hebrew], pp. 27-

34. 134

Hilary Charlesworth, Feminist Methods in International Law, 93 AJ.I.L., p. 386.

41

This discussion about the Era of Honor would be incomplete without referring to Janet

Halley, who supports the position taken by the Geneva Conventions. In her opinion, the

Geneva Conventions protect both women and men as part of their universal protection of

human beings. She believes that the declaration of women and men:

“There is no trace of the patriarchal conception of honor in the pattern or in the words that

construct it, I would hazard to say. Rather, we have universal rights of man, and the claim

that they require specification because of the special harms that befall women.”135

3.1.2.2 INTERNATIONAL TREATY LAW, POST- GENEVA CONVENTIONS

During the fifty years after the Geneva Conventions, many treaties were signed which, to

some extent, compensated for the vaccum created after the trials at Nuremberg, Tokyo and

the CCL 10. These treaties aroused hope that international law would deal appropriately with

the issues affecting women.136

Although they certainly were no wonder drug which could

cure years of neglect of the treatment of women’s rights in international law, nevertheless,

these treaties played an important role in developing international humanitarian law, which

was customary, for the most part. These treaties were also a significant factor in raising

awareness about the need for effective deterrents against gender crimes, as well as

punishments for sex criminals.

Another document directly related to the problems associated with women and war is the

“Declaration on the Protection of Women and Children in Emergency and Armed Conflict”.

This declaration recognizes that women fall victim, all too often, to inhuman acts during

armed conflicts and therefore need special protection. However, it is only a declaration-

without binding legal force. Moreover, this Declaration fails to refer at all to rape or other

gender crimes during war.

135

Janet Halley, Rape at Rome: Feminist Interventions in the Criminalization of Sex- Related Violence in

Positive International Criminal Law”, 30(1) Michigan J. Int’l Law 75 (2008), p. 61. 136

Jocelyn Campanaro, “Women, War and International law: The Historical Treatment of Gender Based War

Crimes”, 89 Geo. L. J. 2557, 2559 (2001), p. 2562.

Comment [A27]: What declaration? Geneva Conventions as they apply to men and women equally.

42

Throughout the twentieth century, many documents related to human rights have been

signed. In addition to the Geneva Conventions, the following were drafted137

:

The Universal Declaration of Human Rights from 1948;

The International Covenant on Civil and Political Rights from 1966;

The Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW) from 1979 and

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment from 1984.

However, these documents, which do not deal specifically with conflicts or wars, also

do not directly relate to the issue of sexual violence.

Changing this situation requires, first, the explicit recognition of sex crimes as an

international crime, which emphasizes the physical and the mental harm to the woman, and,

second, the implementation and enforcement of the international prohibition, by prosecuting

the sex criminals who until now have been completely immune.

3.1.2.3 SUMMARY: THE ERA OF HONOR

The signing of the Geneva Conventions broke the silence. Sex crimes were no longer

transparent; international law recognized that sex criminals must be pursued. However, in

exchange, these obligations included the problematic wording regarding “honor” by which

the Geneva Conventions analyse sexual offenses and distinguish them from other crimes that

are covered by the Geneva Conventions. Furthermore, the “honor” paradigm perpetuates the

historic patriarchal baggage that sex offenses carry as inferior crimes, as crimes of property,

torts and plunder, and as crimes against society’s honor, rather than crimes against the body

and dignity of the woman who has been attacked.

Unfortunately, the treaties and conventions signed after the Geneva Conventions also

failed to provide effective and operative tools for condemning and eradicating sex crimes in

the international arena. Only when the new era commences three decades later- with the

establishment of the ICTY and ICTR- does genuine change begin to take place.

137

Convention against Toture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December

1984, UN Doc. A/39/46.

Comment [A28]: To? Present day




43

3.1.3 A NEW DIRECTION- TOWARDS A NEW ERA?

Fifty years have passed since the time of the Nuremberg and Tokyo trials, a time when

international law was silent and ignored the horrendous sex crimes began to be painted in

with the colors of honor, and international law’s treatment of this subject reflected the gender

subordination of women. Also, during this same period, women’s political power began to be

consolidated. This development had a significant impact. Yet at the same time as these

developments, shocking gender crimes were central features of both the war in Yugoslavia

and the war in Rwanda. They could no longer be ignored: rape and sexual slavery were used

as tools of conquest and were part of the national struggle and ethnic cleansing that

accompanied these battles. In both of these wars, atrocious sex crimes were perpetrated as

part of the official policies of the war.

In 1993, as a result of these horrendous crimes, feminist women became involved in

international humanitarian law in order to fight against the atrocious crimes. They also sought

to use them as a platform for feminist change of the international criminal law.138

These wars led to the establishment of two international criminal tribunals- one for the

former Yugoslavia (the ICTY) and one for Rwanda (the ICTR) - both prosecuted sex crimes

against women. As demonstrated, these tribunals made great progress with respect to the

treatment of sex crimes during war in international law. Sex crimes were no longer related to

as offenses that were subordinate to other serious crimes, but were treated instead as

independent international crimes which stood on their own two feet. But, ultimately, neither

the ICTY nor the ICTR provided meaningful legal tools which could enable further

progress.139

These tribunals did not interpret the traditional crime categories in a manner that

was broad enough when they applied them to sex crimes. They selectively applied only some

of the existing crime categories, and in ways that were insufficient to deal with sexual

offenses.

138

Janet Halley, Rape at Rome: Feminist Interventions in the Criminalization of Sex- Related Violence in

Positive International Criminal Law”, 30(1) Michigan J. Int’l Law 75 (2008), p. 5. 139

See Kelly DawinAskin, “A Decade of the Development of Gender Crimes in International Courts and

Tribunals: 1993 to 2003”, 11 Hum. Rts. Br. 16, 17 (2004).

44

One of the greatest successes of the ICTY is that it established rules of procedure and

evidence suited to the special nature of the evidence in sexual offenses.140

For example, Rule

96 provides the following rules for evidence in the case of sexual assaults:

(i) no corroboration of the victim’s testimony shall be required;

(ii) consent shall not be allowed as a defence if the victim

(a) has been subjected to or threatened with or has had reason to fear violence,

duress, detention or psychological oppression, or

(b) reasonably believed that if the victim did not submit, another might be so

subjected, threatened or put in fear;

(iii)prior sexual conduct of the victim shall not be admitted in evidence.

The ICTY Rules are intended to soften the harsh effects of the legal proceedings

and somewhat ease the burden on victims testifying about the atrocities. They are especially

intended to protect victims, to the extent possible, from difficult interrogations and a “second

rape” by defense counsel.141

Although the ICTY decisions created historically significant advancements in the

anchoring of sex crimes under international law, these decisions were sometimes

accompanied by a heavy price. For example, exposure of private information that a victim

has revealed as part of medical and psychological treatment as the tribunal allowed the

defense to use these records and submit them as evidence in the trial.142

Whereas, all was going for ICTR it unfortunately did not go far enough. Thousands of

testimonies and reports documenting innumerable sexual offenses notwithstanding, the

number of criminals prosecuted for sex crimes was and remains miniscule. It was criticized

for not conducting appropriate investigations and for refusing to amend indictments related to

sex crimes during armed conflict- despite the vast amount of evidence before the tribunal

about thousands of Rwandan women who were subjected to degradation and many kinds of

140

Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, 11

February 1994, UN Doc. IT/32/rev.44(Last rev. 10 December 2009) (hereinafter ICTY Rules). 141

On the phenomenon of women seeking justice in the legal system and experiencing it as a second rape, see

Judith Lewis Herman, Trauma and Recovery: The Aftermath of Violence- From Domestic Abuse to Political

Terror. 142

Prosecutor v. Furundzija, Decision [on Defense Motion to Strike Testimony of Witness A], Case No. IT-95-

17/1-T (ICTY, 16 July 1998).

Comment [A32]: Not clear As its sometimes seen as violation of privacy of the victim.

Comment [A33]: Rephrase it

45

gender abuses. In order to contend with the challenges it faced, the ICTR needed to integrate

sensitivity to gender and therapeutic issues into its investigations, but it did not.143

During the same time period that the ICTY and the ICTR continued to issue important

legal precedents, and slowly but gradually included sex crimes in the traditional crime

categories, the ICC was established by authority of the Rome Statute as the first permanent

International Criminal Court. This statute currently represents a broad consensus of 113

countries and reflects the accumulated legal experience of the ad hoc tribunals. The Rome

Statute is considered the modern international criminal code, creating a new status quo. This

code also deals with sex crimes in international law: no longer silence, no longer an honor

injury, but an offense under some of the traditional crime categories in international law.

To summarize, two eras have passed. No more silence. No longer only an honor

injury. A new era has already begun, an era in which sex crimes are recognised as physical

and psychological injuries, an era in which special care for victims of sex crimes is part of

international law. The Rome Statute explicitly recognizes gender crimes and embeds sex

crimes within some of the existing, traditional crime categories. However, is this sufficient?

Is this the change that we had hoped for when we embarked on our journey?

Certainly not. The journey is incomplete.

143

Human Rights Watch, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath

(1996) 1-2.

46

3.2 INDIAN CONSTITUTIONAL ASPIRATIONS

“A murderer kills the body but a rapist kills the soul”

– Justice Krishna Iyer.

Rape, sexual assault, eve-teasing and stalking are matters of serious concern – not

only because of the physical, emotional and psychological trauma which they engender in the

victim, but also because these are practices which are being tolerated by a society ostensibly

wedded to the rule of law.144

The fundamental rights to life with human dignity145

, to equality146

, and to work in

ones chosen profession or trade147

inherently include protection from sexual harassment. It is

indubitably the position that the Constitution guarantees fundamental freedoms to women. In

view of Article 15(3), which enables the State to make special provisions for women and

children, the equality of women and children is firmly enshrined in Article 14 as well as

144

J.S. Verma Committee Report, Page 1, Para 1. 145

Constitution of India, Article 21. 146

Ibid Articles 14 and 15. 147

Ibid Article 19(1)(g).

47

Article 15(1) of the Constitution. It is also necessary to note that Article 21 applies equally to

women. Article 21A, which guarantees the right to education applies to ‘all children’

irrespective of gender. Article 23 prohibits traffic in human beings and forced labour. Article

24 protects children and enjoins that no child below the age of 14 years will be employed to

work in any factory or mine or hazardous employment. It may also be noticed that Article

51A (e) provides that it shall be the duty of every citizen of India to renounce practices

derogatory to the dignity of women.148

In fact, the Preamble to the Constitution guarantees social, economic and political

justice which, in the view of the J.S. Verma Committee, would include gender justice, liberty

of thought, expression, belief, faith and worship; equality of status and opportunity that

would again reinforce the theory of equality; while fraternity enjoins citizens to treat each

other with respect and dignity, regardless of gender.149

The right to be protected from sexual harassment and sexual assault is, therefore,

guaranteed by the Constitution, and is one of the pillars on which the very construct of gender

justice stands.150

This right is buttressed by the directive principles of State policy contained in Articles

38, 39 and 39A of the Constitution, which are to be construed harmoniously with the

fundamental rights in Part III; and these fundamental principles bind the State in performance

of its task of governance of the country.151

A fortiori, the duty of the State, therefore, is to provide a safe environment, at all

times, for women, who constitute half the nation’s population; and failure in discharging this

public duty renders it accountable for the lapse. The State’s role is not merely reactive to

apprehend and punish the culprits for their crimes; its duty is also to prevent the commission

of any crime to the best of its ability. Crimes against women are an egregious violation of

148

J.S. Verma Committee Report, Page 2, Para2. 149


See also the observations of the Supreme Court of India in Vishakha v. State of Rajasthan, AIR 1997 SC 3011

and Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625. 151

J.S. Verma Committee Report, Page 2, Para 5.

Comment [A34]: This thesis require your views and not the view of Committee. Plz don’t copy and paste. I have tried to paraphrase

48

several human rights demanding strict punishment with deterrence to prevent similar crimes

in future by the likeminded.152

Amartya Sen in ‘The Idea of Justice’ echoed the same sentiment, that ‘institutional

virtuosity’ by itself is not enough without ‘individual virtuosity in the following words:

“…There is no automatic guarantee of success by the

mere existence of democratic institutions…The

success of democracy is not merely a matter of

having the most perfect institutional structure that

we can think of. It depends inescapably on our actual

behaviour patterns and the working of political and

social interactions. There is no chance of resting the

matter in the ‘safe’ hands of purely institutional

virtuosity. The working of democratic institutions,

like all other institutions, depends on the activities of

human agents in utilizing opportunities for reasonable realization…”153

These indeed compel to admit to only one answer that whatever be the political

orientation, the Indian State has failed to look at this issue in a substantive manner. While it is

acknowledged and greatly applauded, the concerns of feminists and various persons who

have spoken in support of women, it is still felt distressed to say that all organs of the State

have, in varying degrees, failed to fulfil the promise of equality in favour of women. It is also

noticed that the high instances of female foeticide and infanticide, poor maternity and child

care, women’s diseases turning chronic, women being subjected to malnutrition, are

outrageous stains on a free India. They disclose the inbuilt subconscious bias of those who

rule against women. The J.S. Verma Committee reminded the State that gender equality and

safeguarding of human rights is a Millennium Development Goal (to be achieved by the year

2015) under the United Nations Millennium Declaration.

152


Amartya Sen, The Idea of Justice. 2011 Harvard University Press.

Comment [A35]: Plz don’t copy and paste from verma committee. I have tried to paraphrase the whole paragraph.

49

In our tradition bound society, structured on the basis of conservative values, when a

woman is subjected to sexual assault in any form, it translates into a multiple crime. She is

raped at home (literally and figuratively) and in public, followed by demeaning medical

examination, examination and cross-examination by the police and in court, in salacious

media reports, and in the insensitive response of society, including family and acquaintances.

In sum, the victim suffers intermittent rape in full public glare.

Another humiliating aspect of the crime against women is that her status in the

patriarchal structure of society also impedes her access to justice. The inequities of social

status, caste prejudices, and economic deprivation further compound the gender injustice.

50

CHAPTER 4

CRITICAL ANALYSIS OF EXISTING LAWS ON SEXUAL

OFFENCES AND RELATED ACTS

4.1 CRITIQUE TO THE CRIMINAL LAW (AMENDMENT) ACT, 2013

This project work discusses the major amendments of the sections regarding sexual

offences in the Indian Penal Code, Criminal Procedure Code, POCSO Act and The Indian

Evidence Act. The insertion of the new provisions and the amendment of the existing

provisions have been dealt with in detail in the present work. Also, the analysis of the

appropriateness of the amendment and comparing it to with what the Verma Committee had

recommended in their work has been taken up.

51

4.1.1 BACKGROUND TO THE JUSTICE VERMA COMMITTEE

The key objective of the Commission was to review for possible amendments to the

criminal law and suggest measures for faster trials and harsher penalties for vicious offences

related to violence against women.154

Taking further cognizance of the strident storm of

public protests in general and a tribute to Nirbhaya in particular, on January 23, 2013, the

commission submitted its recommendations by identifying ‘lack of good governance’ as the

central cause of violence against women. The commission goes on to criticize the

government, the abysmal and old-fashioned police system alongside public apathy in tackling

violence against women, and thereby, recommends dramatic transformation in legislations. It

made recommendations on laws related to rape, sexual harassment, trafficking, and child

sexual abuse, medical examination of victims, police, electoral and educational reforms.155

The Committee adopted a multidisciplinary approach interpreting its mandate

expansively. The Report deals with sexual crimes at all levels and with the measures needed

for prevention as well as punishment of all offences with sexual overtones that are on affront

to human dignity.156

This is on the basis that the issue of sexual assault against women is one

that goes to the core of social norms and values. The Report also deals with the construct of

gender justice in India and the various obstructions to this. The Committee’s approach is

founded on achieving the guarantee of equality for all in the Constitution of India.

The comprehensive 630 page report, which was completed in 29 days, was

appreciated both nationally and internationally. This eventually led to the passing of

the Criminal Law (Amendment) Act, 2013, which was criticised as not adequately applying

the Committee’s work and recommendations. The committee in its report blamed the

government, police insensitivity and gender bias for the rising crimes against women in the

country. It also created some offences like disrobing a woman, voyeurism, stalking and

trafficking.

154

Bhattacharya, Rituparna, Criminal Law (Amendment) Act, 2013: Will it ensure women’s safety in public

spaces?; available at: http://www.spaceandculture.in/index.php/spaceandculture/article/view/11/2; accessed on

14.02.2016. 155

“How the police cracked the Delhi gang-rape case” available at http://www.ndtv.com/article/cities/how-the-

police-cracked-the-delhi-gang-rape-case-306698; accessed on 14.02.2016. 156

Sandeep Joshi, “Verma Committee moots severe punishment for voyeurs, stalkers” available at

http://www.thehindu.com/news/national/verma-committee-moots-severe-punishment-for-voyeurs-

stalkers/article4369797.ece; accessed on 14.02.2016.

52

In a meeting at UN Women, Justice Verma stated that, “to ensure its success, it is

important that the Act be implemented with dedicated human and financial resources, and

clarity in roles and responsibilities. A law is only as good as the systems and individuals that

implement them. Mindsets and attitudes need to change so women can truly be respected

equally and value in society.”157

4.1.2 BACKGROUND TO THE CRIMINAL LAW AMENDMENT ACT, 2013

The Act recognizes the broad range of sexual crimes to which women may fall victim,

and a number of ways in which gender based discrimination manifests itself. It also

acknowledges that lesser crimes of bodily integrity often escalate to graver ones. It seeks to

treat cases as “rarest of the rare” for which courts can award capital punishment if they decide

so. The Act clarifies and extends the offense of sexual assaults or rape as a result of abuse of

position of trust. As per the Act, the police will also be penalized for failing to register FIRs –

this will make it easier for rape victims to report their cases.

The Act introduced unprecedented provisions in the Indian Penal Code which

criminalises sexual voyeurism and stalking and amends legal provisions to protect the privacy

of individuals, such as discontinuing the practice of examination of the sexual history of the

victim of a sexual assault for evidence. With instances of threats to individual privacy on the

rise in India, it was high time that the criminal law expands its scope to deal with offences

which violate physical privacy.

The Act has also been widely criticized for not following the recommendations of the

Verma Committee that had been specifically constituted to observe and recommend changes

in the present penal provisions.

157

“UN Women welcomes India’s Criminal Law (Amendment) Act as a deterrent to violence against women”

available at http://www.unwomensouthasia.org/2013/un-women-welcomes-india%E2%80%99s-criminal-law-

act-as-a-deterrent-to-violence-against-women; accessed on 13.02.2016.

53

4.1.3 CRITIQUE TO AMENDMENTS

Relevant provisions have been analysed below, comparing the earlier existing

provisions, the recommended changes and the final amended provisions along with the

researcher’s suggestions:

(I) Sexual Harassment – Section 354 and allied sections

Sexual harassment is bullying or coercion of a sexual nature, or the unwelcome or

inappropriate promise of rewards in exchange for sexual favors.158

The critical factor is the

unwelcomeness of the behaviour, thereby making the impact of such actions on the recipient

more relevant rather than intent of the perpetrator.The essentials of the offence of sexual

harassment as defined in the case of Vishaka v. State of Rajasthan159

are –

1. physical contact and advances involving unwelcome and explicit sexual overtures; or

2. a demand or request for sexual favours; or

3. making sexually coloured remarks; or

4. forcibly showing pornography; or

5. any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

According to the Indian Constitution, sexual harassment infringes the fundamental right of a

woman to gender equality under Article 14 and her right to life and live with dignity under

Article 21.

1.1 Earlier Provisions:

Before the passing of the Act, the provisions in the IPC that dealt with sexual harassment

existed but there was no such provision that clearly laid down the punishment for sexually

harassing a person. The provisions were160

-

158

Paludi, Michele Antoinette; Barickman, Academic and Workplace Sexual Harassment. SUNY Press. pp. 2-5

(1991). 159

Vishaka v. State of Rajasthan and Ors. AIR 1997 SC 3011 160

“Laws on Sexual Harassment: Existing Indian laws” available at http://safedelhi.jagori.org/deal-with-sexual-

harassment/legal-information; accessed on 14.02.2016.

54

Section 209: Obscene acts and songs, to the annoyance of others like:

a) does any obscene act in any public place or

b) sings, recites or utters any obscene song, ballad or words in or near any public place.

Punishment: Imprisonment for a term up to 3 months or fine, or both.

Section 354:Assault or use of criminal force on a woman with intent to outrage her modesty.

Punishment: 2 years imprisonment or fine, or both.

Section 509: Uttering any word or making any gesture intended to insult the modesty of a

woman.

Punishment: Imprisonment for 1 year, or fine, or both. (Cognisable and bailable offense).

1.2 Suggestion By Verma Committee:

The provision suggested by the Verma Committee has been reproduced below161

:

354. Sexual Assault and Punishment for sexual assault

(1) The following acts shall constitute the offence of sexual assault:-

(a) Intentional touching of another person when such act of touching is of a sexual

nature and is without the recipient’s consent;

(b) Using words, acts or gestures towards or in the presence of another person which

create an unwelcome threat of a sexual nature or result in an unwelcome

advance.

Explanation: For the purposes of this section, ‘acts’ shall include the display and

dissemination of pornographic material.

(2) Any person who commits the offence described in sub-clause (a) of sub-section (1)

above shall be punishable with rigorous imprisonment that may extend to five years, or

with fine, or both.

(3) Any person who commits the offence described in sub-clause (b) of sub-section (1)

above shall be punishable with imprisonment of either description that may extend to one

year, or with fine, or both.

161

J.S. Verma Committee Report.

55

1.3 New Amended Provisions:

The newly amended provisions are elaborated upon below:

(a) Section 354A – Sexual harassment has been made a gender neutral offence

(with regard to the victim, as it does not specify a woman). However, the

accused can only be a man, which means the offence is not gender neutral

with regard to the accused. Whereas earlier, a man who makes unwelcome

sexual advances, forcefully shows pornography or demands/requests sexual

favours from a woman commits the offence of sexual

harassment simpliciter under section 354A; this is punishable by

imprisonment of up to three years. Making sexually coloured remarks also

amounts to sexual harassment, which is punishable by imprisonment for up to

one year.162

(b) Section 354B – If a man assaults or uses criminal force to any woman or abets

such act with the intention of disrobing or compelling her to be naked in any

public place, he commits an offence under section 354B, which is punishable

with imprisonment between three and seven years. This section deals with a

very specific offence and adds to and supplements the provision dealing with

the offence of outraging the modesty of a woman.163

This is a welcome

provision in view of the fact that many cases have been reported in the news

of women being stripped in public as an instrument of punishment mostly in

backward areas.

(c) Section 354C – Any man who watches, or captures the image of a woman

engaging in a private act in circumstances where she would usually have the

expectation of not being observed either by the perpetrator or by any other

person at the behest of the perpetrator or disseminates such image shall be

punished. Under Section 354C, such a person is liable. In case of first

conviction, imprisonment is not to be less than one year, but may extend to

three years, and shall also be liable to fine, and on a second or subsequent

162

“Simplifying the Criminal Law (Amendment) Act, 2013” available at

http://grayscale.org.in/entries/general/simplifying-the-criminal-law-amendment-act-2013-%E2%80%93-ipc-

part-i-; accessed on 13.02.2016. 163

“Changed Legal Position On Sexual Offences -Understanding Criminal Law (Amendment) Ordinance, 2013”

available at http://nlrd.org/resources-womens-rights/rape-laws/government-notifications-advisories-rape-

laws/changed-legal-position-on-sexual-offences-understanding-criminal-law-amendment-ordinance-2013;

accessed on 14.02.2016.

56

conviction, punishment with imprisonment of either description for a term

which shall not be less than three years, but which may extend to seven years,

and shall also be liable to fine.164

(d) Section 354D – Stalking has been made a specific offence under this new

section. If a man stalks a woman, he may be punished with imprisonment of

up to three years for the first time, and five years for the subsequent

convictions. However, the offence is subject to certain exceptions like where a

person can show that the acts done were in pursuance of some law, amounted

to reasonable conduct or in order to prevention of some crime. As per the

definition in Section 354D the offence was gender-neutral offence, making the

crime of stalking punishable for both the gender whether male or

female.However, the Amendment Act of 2013 changed ‘Whosoever’ to ‘Any

Man’ making the offence of Stalking a gender-specific offence. Section 354D

of the Ordinance of 2013, was highly inspired from the definition of ‘Stalking’

in Section 2A of the Protection from Harassment Act, 1997 passed by British

Parliament on 25th

November 2012.165

Under the Act, the offence is limited to the physical act of following or

contacting a person, provided that there has been a clear sign of disinterest, or

to monitoring the use by a woman of the internet, email or any other forms of

electronic communication.

1.4 Researcher’s Suggestion:

The recently added offences after Section 354 apart from S. 354A, that is Sections 345B,

354C and 354 D all should be made gender neutral with regard to the victim. This would

mean that not only a woman, but any man, child, transgender could be victims to the newly

created offences.

(II) Rape – Sections 375 and 376

Justice Krishna Iyer in the case of Rafiq v. State of U.P. made a remark that, “a murderer

kills the body, but a rapist kills the soul”. The Parliament by means of Amendment Act, 2013

has enlarged the ambit of rape by making certain non-penetrative act as offence amounting to

164

Section 7, Criminal Law (Amendment) Act, 2013 165

“The Criminal Law (Amendment) Bill, 2013 – A Critical Analysis” available at http://rostrumlegal.in/the-

criminal-law-amendment-bill-2013-a-critical-analysis; accessed on 15.02.2016.

57

rape. The Amendment Act, 2013 repealed the Ordinance (Amendment) Act, 2013 which was

having wider ambit, thereby raising serious questions regarding the lacunas or loopholes that

the judiciary could confront in future.

2.1 Earlier Provisions

Sections 375, 376 and 376 A-D of the IPC cover rape. However, medical examination was

not an exception under the old provision. Rape under the IPC had been interpreted to mean

only penile-vaginal intercourse.

2.2 Suggestion by Verma Committee:


:

375. A man is said to commit rape if he—

(a) penetrates the vagina or anus or urethra of a person with—

(i) any part of his body including his penis or,

(ii) any object manipulated by him, except where such penetration is carried out for

proper hygienic or medical purposes; or,

(b) manipulates any part of the body of a person so as to cause penetration of the vagina

or anus or urethra of another person; or,

(c) engages in “cunnilingus” or “fellatio”,

under the circumstances falling under any of the following six descriptions:—

Firstly.—Against the person’s will; or,

Secondly.— Without the person’s consent; or,

Thirdly, With the person’s consent, where such consent has been obtained by putting the

person, or any other person in whom the person is interested, in fear of death or of hurt;

or,

Fourthly.— With the person’s consent, when the man induces the person to consent to

the relevant act by impersonating another man to whom the victim would have

otherwise knowingly consented to; or,

Fifthly, With the person’s consent, when at the time of giving such consent, by reason of

166


58

unsoundness of mind or intoxication or the administration by the man personally or

through another of any stupefying or unwholesome substance, the person is unable to

understand the nature and consequences of the action to which he/she gives consent; or,

Sixthly, When the person is unable to communicate consent either express or impliedly.

Explanation I.— For the purposes of this section, “penetration” means penetration of the

vagina, anus or urethra to any extent.

Explanation II.—For the purposes of this section, “vagina” shall also include labia

majora.

Explanation III: Consent will not be presumed in the event of an existing marital

relationship between the complainant and the accused.

Explanation IV. - Consent means an unequivocal voluntary agreement when the person

by words, gestures or any form of non-verbal communication, communicates

willingness to participate in the specific act.

Provided that, a person who does not offer actual physical resistance to the act of

penetration is not by reason only of that fact, to be regarded as consenting to the sexual

activity.

2.3 New Amended Provision

Section 375 – Under the new section, a man is said to commit rape if there is:

Penetration of penis into vagina, urethra, mouth or anus of any person, or making any

other person to do so with him or any other person;

Insertion of any object or any body part, not being penis, into vagina, urethra, mouth

or anus of any person, or making any other person to do so with him or any other

person;

Manipulation of any body part so as to cause penetration of vagina, urethra, mouth or

anus or any body part of such person or makes the person to do so with him or any

other person;

Application of mouth to the penis, vagina, anus, urethra of another person or makes

such person to do so with him or any other person;

59

Lastly, touching the vagina, penis, anus or breast of the person or makes the person

touch the vagina, penis, anus or breast of that person or any other person.167

As times have changed, so have laws on rape. Some states including India have moved

away from the traditional point of view that sexual penetration is necessary for rape to

occur.168

The 2013 Act expands the definition of rape to include oral sex as well as the

insertion of an object or any other body part into a woman’s vagina, urethra or anus. The

initial debate to expand the meaning of penetration and give a broader definition to rape was

given in the cases of Smt. SudeshJhakuu v/s. K.C.J.169

and others and Sakshi v/s. Union of

India &Ors170

. Thus, overruling the earlier decisions of State of Punjab v. Major Singh171

as it interpreted that according to the dictionary meaning of the words “sexual intercourse” is

hetrosexual intercourse involving penetration of the vagina by the penis. Thus, if the hymen

is ruptured by inserting a finger, it would not amount to rape. Further, as before the

amendment the trend was to treat sexual violence, other than penal/ vaginal penetration, as

lesser offences falling under either Section 377 or Section 354 IPC and not as a sexual

offence under Sections 375/ 376 IPC. Infact, when this question was referred to the Law

Commission of India, it suggested the same interpretation, that is usage of Sections 377 and

354 IPC in its 156th

LCI Report.

The punishment for rape is seven years at the least, and may extend up to life imprisonment.

Any man who is a police officer, medical officer, army personnel, jail officer, public officer

or public servant commits rape may be imprisoned for at least ten years. A punishment of life

imprisonment, extending to death has been prescribed for situations where the rape concludes

with the death of the victim, or the victim entering into a vegetative state. Gang rape has been

prescribed a punishment of at least 20 years under the newly amended sections.

The new amendment defines ‘consent’, to mean an unequivocal agreement to engage in a

particular sexual act; clarifying further, that the absence of resistance will not imply consent.

167

“Changed Legal Position On Sexual Offences -Understanding Criminal Law (Amendment) Ordinance, 2013”

available at http://nlrd.org/resources-womens-rights/rape-laws/government-notifications-advisories-rape-

laws/changed-legal-position-on-sexual-offences-understanding-criminal-law-amendment-ordinance-2013;

accessed on 14.02.2016. 168

Stephen T. Holmes and Ronald M. Holmes, “Sex Crimes Patterns and Behavior”, ed. (3) 2009, p. 227. 169

(1998) CriLJ 2428.

170(2004) 5 SCC 546(I)

171 AIR 1967 SC 63.

60

Non-consent is a key ingredient for commission of the offence of rape. The definition of

consent therefore is key to the outcome of a rape trial, and has been interpreted systemically

to degrade and discredit victims of rape.

2.4 Researcher’s Suggestions

The absence of law on marital rape (sexual assault) (where the girl is not below 15

years of age), would also fail the objective as married women cannot be protected.

The law under 376-A and exception under 375 should be deleted as there is no

difference between marital rape and sexual assault. As the S. 3 of Domestic Violence

Act172

is only applicable in grave life threatening scenario the need for consent of

woman isn’t important leaving her as an object of sex. Further, Marital rape is a crime

in a number of countries, such as UK, Turkey, Canada, USA.8 In 1993, the United

Nations’ General Assembly had adopted a Declaration of Elimination of Violence

against Women which specifically included marital rape as a crime against women.173

Sir Mathew Hale which appears in his History of the Pleas of the Crown (1736), vol.

1, ch. 58, p. 629 said “in marriage [the wife] hath given up her body to her husband,”

that he founded the proposition that a husband could not be guilty of rape upon his

lawful wife on the grounds (a) that on marriage a wife “gave” up her body to her

husband; and (b) that on marriage she gave her irrevocable consent to sexual

intercourse. These two grounds are similar, though not identical. Thus, in Popkin v.

Popkin174

, Lord Stowell, in a suit by a wife for divorce a mensa et thoro, stated, “The

husband has a right to the person of his wife,” though he added the important

qualification, “but not if her health is endangered.” The first edition of Archbold,

Pleading and Evidence in Criminal Cases (1822), at p. 259, stated simply: “A husband

also cannot be guilty of a rape upon his wife.” However, in Reg v. Clarence175

, there

was no unanimity among the judges of a full court of Crown Cases Reserved on the

effect of Hale’s proposition. Wills J. said:

“if intercourse under the circumstances now in question constitute an assault on the

part of the man, it must constitute rape, unless, indeed, as between married persons

172

Domestic Violence Act, 2005. 173

Article 1, Declaration on the Elimination of Violence against Women. 174

(1794) 1 Hag. Ecc. 765n. 175

(1888) 22 Q.B.D. 23.

61

rape is impossible, a proposition to which I certainly am not prepared to assent, and

for which there seems to me to be no sufficient authority.”176

For the reasons given by Lord Justice- General in S. v. H.M. Advocate177

, with which

we respectfully agree, the idea that a wife by marriage consents in advance to her

husband having sexual intercourse with her whatever her state of health or however

proper her objections (if that is what Hale meant), is no longer acceptable. It can

never have been other than a fiction, and fiction is a poor basis for the criminal law.

The extent to which events have overtaken Hale’s proposition is well illustrated by his

last four words “which she cannot retract.”

Thus, marital rape is not the creation of a new offence, it is the removal of a common

law fiction which has become anachronistic and offensive and it is our duty to

conclude and act upon it as Section 498A IPC is not sufficient to deal with it178

and

many young women have shared their experiences of forced sex within marriage in

India.179

A further, clarification should be made that the crime of forcible rape is committed

even if the female victim consents to an initial penetration by her male companion,

and then withdraws her consent during an act of intercourse, but the male continues

against her will as held in the case of The People v. John Z.180

Further, the researcher

completely supports the “Affirmative Consent Standard” which requires that, for

sex to be considered consensual, it must have been consented to by the woman in

advance. In short, if the instigator of a sexual interaction wishes to do anything, he or

she must inquire whether his or her partner wishes to proceed, and that partner must

receive freely given consent to continue. In the absence of such consent, the activity

cannot be seen as voluntary for both parties.181

The consent should be explicitly

confirmed before going ahead with the act of sexual intercourse.

Under the Ordinance sexual assault includes a variety of un-consented sexual conduct,

ranging from touching of private parts to penetrative sexual assault. The punishment

176

Regina v. R. (H.L.(E.)). 177

1989 S.L.T. 469. 178

Flavida Agnes, “Section 498A, Marital Rape and Adverse Propoganda”, NLUD Contemporary Issues in

Criminal Law Module. 179

K.G. Santhya and Shireen J. Jejeebhoy, “Young women’s experiences of forced sex within marriage:

evidence from India”, SEX WITHOUT CONSENT YOUNG PEOPLE IN DEVELOPING COUNTRIES”,

edited by Shireen J. Jejeebhoy, Iqbal Shah, ShyamThapa, ed. (1) 2010, p.59. 180

29 Cal. 4th 756, 60 P. 3d 183, 128 Cal. Rptr. 2d 783.

181“From No Means No to Only Yes Means Yes: The Rational Results of an Affirmative Consent Standard in

Rape Law”, Vanderbilt Law Review, Vol. 58:4:132]

62

for all forms of sexual assault under the Ordinance is the same: seven years to life

imprisonment. It does not provide a gradation in penalties on the basis of the gravity

of the offence. The Ordinance is at variance with the POCSO Act that penalises

touching a minor’s private parts with imprisonment for three to five years and

penetrative assaults with imprisonment for seven years to life imprisonment.182

As per

the Verma Committee Report, the punishment for penetrative sexual assault should

seven years to life imprisonment, and for non-penetrative assaults should be up to five

years.

In various countries penetrative and non-penetrative assaults carry different penalties.

For instance, in UK, France, Germany non-penetrative assaults carry a lower

punishment than penetrative assaults.183

In Canada, where ‘sexual assault’ includes

both penetrative and non-penetrative acts, the term of imprisonment extends from one

to ten years based on the gravity of the offence.184

The researcher recommends punishment according to Gravity of offence to evaluate

proportional gradation of punishment.

Rape should be made a gender neutral offence with respect to the victim as not only a

woman but even a man or a transgender can be subjected to such a crime. Often the

members of the marginalised sex like ‘Transgender’ are also victim of this offence

and as such they cannot claim any protection because the crime of rape is not gender

neutral.185

Though, there have been debates for long if gender neutrality reflect a

change in the reality of sexual victimization or a successful deflection of efforts to end

such victimization?186

In short, gender neutrality means everybody gets to be

masculine.187

Further, Novotny takes issue with the growing recognition of male

victimization and suggests that gender neutrality within rape might form part of a

backlash against feminism: that it is a form of “gender disguise”; that gender

182

Section 3 and 4, Protection of Children from Sexual Offences Act, 2012. 183

Section 222-23 and 222-27, French Penal Code; Section 177(1) and (2), German Criminal Code, 1998;

Sections 1, 2 and 3 United Kingdom’s Sexual Offences Act, 2003. 184

Section 271, Canadian Criminal Code, 1985. 185

UpendraBaxi, Human Rights Violations against the Transgender Community (Peoples Union for Civil

Liberties, Karnataka (PUCL-K) 2003) available at

http://ai.eecs.umich.edu/people/conway/TS/PUCL/PUCL%20Report.html; accessed on 14.02.2016. 186

Patricia Novotny, “Rape Victims in the (Gender) Neutral Zone: The Assimilation of Resistance?”,NLUD

Contemporary Issues in Criminal Law Module. 187

LaniGuinier and her co-authors make this point in the context of legal education. Guinier et al., Becoming

Gentlemen: Women, Law School, and Institutional change (1997).

63

neutrality suggests men and women are equally victimized; that gender- neutral rape

statutes may have undermined rape law reform; and that men and women "experience

sexual assault differently.”188

Jurisdictions that have adopted gender-neutral laws include: Canada, all Australian

states, the Republic of Ireland, Finland, England and Wales, and the vast majority of

states within the United States. Other jurisdictions, such as England and Wales, have

extended the definition of rape to include male victims, but do not recognize females

as principal offenders (although women can be convicted as accessories). While most

reform jurisdcitions do recognize same-sex rape, Indiana is unusual in that it has a

gender- neutral law that only recognizes rape between hetrosexuals.189

During the war in Iraq it surfaced that many women officers also involved themselves

in torturing the prisoners by variant sexual assaults190

. This strengthened the

assumption that even women can be perpetrator of such crimes. There are two

occasions when the need for gender neutrality arises even in India. Firstly, when

during some communal or casteist violence a women is found to be

participuscriminus. Secondly, when a transgender person is an offender. The recent

case of PinkiPramanik, where her partner filed a case of rape against her, shows the

very real possibility of female to male transgender persons or male to female

transgender persons (either pre- or post- transition) causing sexual assault on a

woman191

. Rape should further be made gender neutral with regard to the accused in

the circumstances discussed further.

The debate on as to what should be the age of consent 16 v/s 18 years has existed

from time immemorial, as highlighted in various commission reports, reproduced

below192

:

188

Philip N.S. Rumney, “In Defence of Gender Neutrality Within Rape”, NLUD Contemporary Issues in

Criminal Law Module. 189

Ibid. 190

Seymour M. Hersh, Torture At Abu Gharib (Newyorker.com 2004) available at

http://www.newyorker.com/archive/2004/05/10/040510fa_fact; accessed on 14.02.2016. 191

Arvind Narrain, The Criminal Law (Amendment) Bill 2012: Sexual Assault as a Gender Neutral

Offence (Economic and Political Weekly 2012) available at http://www.epw.in/web-exclusives/criminal-law-

amendment-bill-2012-sexual-assault-gender-neutral-offence.html; accessed on 14.02.2016. 192

PRS Legislative Brief, Criminal Law (Amendment) Bill, 2012 and Ordinance, 2013.

64

Commissions Age of consent Reasons/ remarks LCR 42nd, 1971 16 Misinformation about

victim’s age should be a

defence when the victim is

between 12 -16 years.

LCR 84th, 1980 18 As marriage of a girl below

18 is prohibited, sexual

intercourse should also be

prohibited.

LCR 156th, 1997 18 As age for kidnapping was

increased from 16 - 18 years.

LCR 172nd, 2000 16 -

NCW, 2006 18 Consented activity is exempt

if victim is 16-18 years old

and accused ≤ 5 years older

than victim.

Verma, 2013 16 Consented sexual activity

with persons above 16 years

should not be penalised.

The researcher recommends that the age of consent should be increased to 18 years

uniformly throughout all legislations for all categories of people. This should be in

line with the understanding that the mental maturity of a person for the purpose of

decision making comes with time and the appropriate age for the same is the age of

majority which is 18 years for both girls and boys alike. Also, this would help in

preventing child- sexual abuse and early teen sexual exploitation193

, making the age of

consent in line with the legal definition of child under the Convention on Protection

for Child Rights, whichalso defines children same as under the POCSO, that is up till

18 years. This is line with the view that how all sexual encounters can be neatly

divided into two categories- rape and sex- and one considers sex to be presumptively

good, then statutory rape laws certainly seem retrograde, intrusive, and unduly

paternalistic.194

This dichotomous view of sex has been completely repudiated by a

193

Anuja Gupta and Ashwini Ailawadi, “Childhood and Adolescent sexual abuse and incest: experiences of

women survivors in India, Sex without consent young people in Developing Countries”, edited by Shireen J.

Jejeebhoy, Iqbal Shah, ShyamThapa, ed. (1) 2010, p. 171. Also, see Indira Jaising, “The vulnerability of

adolescence: legal responses to non- consensual sexual experiences of young persons in India, Sex without

consent young people in Developing Countries”, edited by Shireen J. Jejeebhoy, Iqbal Shah, ShyamThapa, ed.

(1) 2010, p. 215. 194

See Catharine A. MacKinnon, Reflection on Sex Equality Under Law, 100 YALE L.J. 1281, 1300 (1991).

But cf. Lynne Henderson, Just What Part of No Don’t You Understand?, 2 TEX. J. WOMEN & L. 41, 57

(1993) (presenting a description of a continuum between rape and sex).

65

host of significant authorities.195

Indeed, it seems that for teens, factors such as

immaturity, sexual naivete, and vulnerability to coercion combine to insure that many

sexual encounters fall far short of the ideal of “consent” as the factors which dilute it

are fear, coercion, peer pressure, and a desire for male attention.196

Further, the

problem with statutory rape law enforcement is not that it is difficult to prove. Indeed,

statutory rape laws are fine examples of strict liability offenses. What is difficult

about statutory rape is selecting which rapes, of the millions that take place is

selecting which rapes, of the millions that take place every year, merit prosecution.

Beginning in the 1990s, the criminal justice system launched a “reinvigorated” attack

on the crime of statutory rape. Efforts to prosecute statutory rape cases have focused

on three general categories of these crimes: cases resulting in pregnancy, cases that

are easily identified, and cases that involve conduct that is constructed as prurient,

predatory or a violation of social norms.197

The prior sanction to prosecute a government servant for rape needs to be removed as

the Armed Forces Special Powers Act which allows Indian security forces to raid any

premises without a warrant and arrest or shoot anybody they find suspicious, among

other powers. This should be in line with the amendment made under s. 197 Cr PC. A

security officer doing so will only face prosecution with prior government sanction.

The law is in effect in northeastern India and Kashmir. Further, it is recommended

that special commissioners in conflict areas who have the power to “initiate action for

redress and criminal prosecution in all cases of sexual violence against women by

armed personnel” should be appointed.

Under the Ordinance, penetration or touching by the penis, other body parts or objects

for ‘proper medical or hygienic purposes’, even if without the victim’s consent, is not

punishable. It is unclear under what circumstances penile penetration may serve a

hygienic or medical purpose under Section 375(5) IPC.

195

See Henderson, ibid. See generally Robin L. West, The Difference in Women’s Hedonic Lives: A

Phenomenological Critique of Feminist Legal Theory, 15 WIS. WOMEN’S L.J. 149, 266-68 (2000) (describing

how a woman “consent(s)” to unwanted sex and therefore becomes a “giving self” in order to avoid pain and

suffering). 196

Michelle Oberman, “Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape”, NLUD

Contemporary Issues in Criminal Law Module. 197

Ibid.

66

The Act penalises different categories of sexual assault with different penalties

dependent on the nature of the relationship between the victim and the perpetrator.

The term of imprisonment for sexual assault is seven years to life imprisonment; and

for custodial sexual assault is from 10 years to life imprisonment.

Sexual assault by a member of the hospital management or staff upon a ‘person’ in

the hospital carries the same penalty as a custodial assault. The provision does not

distinguish the relationship between a hospital staff with a ‘patient’, and any other

‘person’ in the premises of the hospital under Section 376(2)(e).

(III) Eve-Teasing- Section 509 IPC

Many women’s groups complain about this term, which underplays the seriousness of the

sort of harassment that women face on the street or on buses and in other public places.

3.1 Earlier Provision

Earlier, the cases could be registered under Section 509 of the penal code (using words or

gestures to “insult the modesty” of a woman, punishable by one year in jail or a fine) or

Section 294 (committing an obscene act or singing an obscene song or ballad in a public

place, punishable with three months in prison or a fine).

3.2 Suggestions by Verma Committee

In a section on the problem, the Verma committee quoted copiously from a 2012

Supreme Court judgment that noted “eve-teasing generally occurs in public places which,

with a little effort, can be effectively curbed.” The court called the results of not making

the effort to do so “disastrous.” (Chapter 5, page 142)

The committee recommended spelling out the behaviors that are normally considered

eve-teasing in a completely overhauled Section 354 (the section presently used to

prosecute sexual assaults that are not rape). “Using words, acts or gestures towards or in

the presence of another person which create an unwelcome threat of a sexual nature or

result in an unwelcome advance” would be punishable by a year in jail or a fine, or both.

(Appendix 4, page 436)

67

For the most egregious form of eve-teasing – groping – the committee recommends up to

five years in prison. (Appendix 4, page 436). It also recommends repealing Section 509.

3.3New Amended Provision

In section 509 of the Penal Code, for the words "shall be punished with simple

imprisonment for a term which may extend to one year, or with fine, or with both", the

words "shall be punished with simple imprisonment for a term which may extend to three

years, and also with fine" shall be substituted.

3.4 Researcher’s Suggestions

The offence of eve- teasing should be made gender neutral with regard to the victim as

not only a woman but even a man or a transgender maybe subjected to the same.

(IV) Section 273 Cr PC


“273. Evidence to be taken in presence of accused. Except as otherwise expressly

provided, all evidence taken in the course of the trial or other proceeding shall be taken in

the presence of the accused, or, when his personal attendance is dispensed with, in the

presence of his pleader.

Explanation.- In this section," accused" includes a person in relation to whom any

proceeding under Chapter VIII has been commenced under this Code.”

4.2 Suggestions by Verma Committee


:

In section 273 of the Code of Criminal Procedure, before the Explanation, the following

proviso shall be inserted, namely: — “Provided that where the evidence of a person

below the age of eighteen years who is alleged to have been subjected to an offence

punishable under Sections 354, Section 354A, Section 354B, Section 354C(2), Section

376(1), Section 376(2), Section 376A, Section 376B(1), Section 376C or Section 376F, is

to be recorded, the court may take appropriate measures to ensure that such person is not

198


68

confronted by the accused while at the same time ensuring the right of cross examination

of the accused.”.


The new amended provision added has been reproduced below:

"Provided that where the evidence of a woman below the age of eighteen years who is

alleged to have been subjected to rape or any other sexual offence, is to be recorded, the

court may take appropriate measures to ensure that such woman is not confronted by the

accused while at the same time ensuring the right of cross-examination of the accused.".

4.4 Researcher’s Suggestion

This proviso should be made applicable to women across all age groups and not only for

women below the age of 18 years, as the trauma of facing and having a direct

confrontation with the accused and the humiliation that the victim would be subjected

will remain the same if not more. The idea of this proviso was infact suggested by Law

Commission as it observed that in an appropriate case it may be open to the prosecution

to request the court to provide a screen in such a manner that the victim does not see the

accused while at the same time provide an opportunity to the accused to listen to the

testimony of the victim and give appropriate instructions to his counsel for an effective

cross- examination. The suggestion for incorporating special provisions in child sexual

abuse cases was raised earlier in the case of Sakshi v/s. Union of India199

.

(V) Section 53 of the Evidence Act


“53. In criminal cases, previous good character relevant.—In criminal proceedings, the

fact that the person accused is of a good character, is relevant.”

199

(2004) 5 SCC 518.

69

5.2 Verma Committee’s Recommendation

After section 53 of the Indian Evidence Act, 1872 the following section shall be inserted,

namely:—

“53A. In a prosecution for an offence under Section 354, Section 354A, Section 354B,

Section 354C, Section 376(1), Section 376(2), Section 376A, Section 376B(1) or Section

376C of the Indian Penal Code or for attempt to commit any such offence, evidence of the

character of the victim or of his or her previous sexual experience with any person shall not

be relevant.


After section 53 of the Indian Evidence Act, 1872, the following section shall be inserted,

namely:—

"53A. In a prosecution for an offence under section 354, section 354A, section

354B, section 354C, section 354D, section 376, section 376A, section 376B,

section 376C, section 376D or section 376E of the Indian Penal Code or for

attempt to commit any such offence, where the question of consent is in issue,

evidence of the character of the victim or of such person's previous sexual

experience with any person shall not be relevant on the issue of such consent or

the quality of consent.".


Previous good character should not be considered for any sexual offence, not only for those

mentioned in the section 53 A. For eg. Even for the provisions under the Sexual Harrassment

Act, previous conduct and character should not be made relevant to determine the quality of

consent. Thus, the new amended section 146 of the Evidence Act should be repealed.

Further, it should be clarified that past sexual history with the accused should also not be

taken into consideration while determining consent of the victim like it was decided in

Consolidated Coal Company, a Corporation v/s. Harold F. Vandruff and Gertrude

Vandruff v/s. Mary Lousie Cunningham200

200

641 A. 2d 1161 (Pa. 1994).

70

(VI) Section 114 The Indian Evidence Act, 1872


“114A. Presumption as to absence of consent in certain prosecutions for rape.—In a

prosecution for rape under clause

(a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of

section 376 of the Indian Penal Code, (45 of 1860), where sexual intercourse by the

accused is proved and the question is whether it was without the consent of the woman

alleged to have been raped and she states in her evidence before the Court that she did not

consent, the Court shall presume that she did not consent.”

6.2 Suggestion by Verma Committee

For section 114A of the Evidence Act, the following section shall be substituted,

namely:—

‘114A. (1) In a prosecution for rape under sub-section (2) of section 376 or for gang rape

under Section 376C of the Indian Penal Code, where sexual intercourse by the accused is

proved and the question is whether it was without the consent of the other person alleged

to have been raped and such other person states in his/her evidence before the court that

she or he did not consent, the court shall presume that she or he did not consent.

Explanation.—In this section “sexual intercourse” shall mean any of the acts mentioned

in clauses (a) to (c) of section 375 of the Indian Penal Code.


For section 114A of the Evidence Act, the following section shall be substituted,

namely:—

'114A. In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause

(e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m)

or clause (n) of sub-section (2) of section 376 of the Indian Penal Code, where sexual

intercourse by the accused is proved and the question is whether it was without the

consent of the woman alleged to have been raped and such woman states in her evidence

before the court that she did not consent, the court shall presume that she did not consent.

http://indiankanoon.org/doc/101247334/

71

Explanation.— In this section, "sexual intercourse" shall mean any of the acts mentioned

in clauses (a) to (d) of section 375 of the Indian Penal Code.'.


Presumption as to absence of consent should be extended to all sexual offences. Or in

other words shifting of burden of proof from prosecution to the defense. For example

under section 354 of the Indian Penal Code also. This presumption is based on the fact

that no woman would call for a “false accusation” in the nature of sexual offences as

India is still a conservative society and such offences are looked down and frowned upon,

due to the societal taboo and no one would want to be subjected to the humiliation

associated with it.

Further, it should be clarified that the burden of proving honest and reasonable

belief(“Burden of Proof”) in consent should be on defendants unlike some western cases

which have decided otherwise. For example, in Director of Public Prosecutions

Respondent v. Morgan201

.

Moreover, the defense of mistake of fact about whether a woman consents to

intercourseshould not be allowed to evade liability. This should be made clear by the

legislature explicitly as like most crimes require proof of the actor’s mens rea (guilty

mind) George Fletcher notes that “no term (is) fraught with greater ambiguity, but for our

purposes mens rea means, roughly, that the actor must be at fault for his conduct. “Fault”

is not202

a precise concept; it can range from having a specific purpose in mind to being

unaware of some circumstance about which the law expects awareness.203

The researcher

feels if there is a fault, there should be a punishment.

Lastly, various Supreme Court judgments have already specified even the legislature

should also make it clear that rape by deception, that is a consent procured through

deception is no consent at all.204

The three situations illustrated by author were: (i)

Fraudulent consent which could be through various ways like impersonation of a

201

[1976] A.C. 182; [1975] 2 W.L.R. 913. 202

Ben A. Mcjunkin, “Deconstructing Rape By Fraud”, Columbia Journal of Gender and Law. 203

Douglas N. Husak and George C. Thomas III, “Date Rape, Social Convention, And Reasonable Mistakes”,

NLUD Contemporary Issues in Criminal Law Module. 204

Jed Rubenfeld, “The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy”, NLUD

Contemporary Issues in Criminal Law Module.

72

woman’s husband; (ii) sex falsely represented as a medical procedure, while there could

be more grounds like false promise of marriage etc, unconscious and intoxicated sex or

even rape by fraud.

Just to clarify it more fundamentally, there should be a change in the way a rape trial

happens.205

The burden of proof should be on the defendant to show that there was

consent instead of it being on the prosecution to prove all the sequence of events to

establish the act of rape (burden of performance), which can be put to a question by just

creating a doubt in the minds of the jury. Thus, the “burden of proof” to prove rape

“beyond reasonable doubt” should not be on prosecution. Instead, proving consent

beyond reasonable doubt should be on the defense, as no woman

would like to “shout out false rape”, considering the social stigma and humiliation

attached to it.

4.1.4 INCONSISTENCIES WITHIN THE 2013 ACT

Under the Criminal Law Amendment Act, 2013 certain acts may constitute separate

offences under different sections of IPC and may bear different penalties for similar

offences.

Table : Comparison of provisions relating to similar offences

Offence

2013 Act

Punishment

1.) Gang sexual assault by a

private person

Sec. 376D 20 years to life

imprisonment and

compensation.

Gang sexual assault by a

public servant

Explanation 2, Sec. 376(2) 10 years to life

imprisonment and fine.

2.) Touching by use of

criminal force to outrage the

modesty of a woman

Sec. 354

1 to 5 years imprisonment

and fine.

205

Corey Rayburn, “To catch A Sex Thief: The Burden of Performance in Rape and Sexual Assault Trials”.

73

Unwelcome physical contact

as sexual harassment

Sec. 354A Up to 3 years imprisonment

and/or fine.

3.) Verbally outraging a

woman’s modesty

Sec. 509

Up to 3 years imprisonment

and fine.

Making sexually coloured

remarks

Sec. 354A Up to 1 year imprisonment

and/or fine.

4.1.5 OVERLAP AND INCONSISTENCIES OF THE 2013 ACT WITH OTHER

LAWS206

The IPC is a general law. Actions penalised under the IPC may also be punishable

under special laws. Special laws such as SC/ST Prevention of Atrocities Act and the PCSO

Act seek to protect certain class of persons on account of their vulnerable position in society.

The punishment for offences under the Ordinance is higher than under these special laws.

Though the Criminal Law Amendment Act, 2013 has amended Section 42, PCSO, 2012

according to which the higher of the two prescribed punishments should be awarded in

certain specified cases when the offence is punishable both under IPC and PCSO Act.

Furthermore, some offences under the Act only protect women, whereas, under the

special laws, they protect both men and women. The striking fact being that both PCSO and

the Criminal Law (Amendment) Act, 2013 have provisions giving them overriding effect.

The following table depicts the variance in these provisions.

206

PRS Legislative Brief The Criminal Law (Amendment) Bill, 2012 and Ordinance, 2013.

74

Table : Comparison of offences and punishments under the Act and other laws207

Offence against minors

PCSO Act, 2012

Act, 2013

Age of consent 18 years. No reduction

within marriage.

18 years. In marriage 16

years for girls.

Offence Information Technology

Act, 2000

Act, 2013

Capturing the image of

private parts

Protects both men and

women. Punishment: up to 3

years and/or fine up to Rs 2

lakh.

Only protects women.

Punishment: 1 to 3 years

imprisonment and fine (On

1st Conviction) Second

offence with 3 to 7 years and

fine.

Offence

SC/ ST Prevention of

Atrocities Act, 1989

Act, 2013

Disrobing Protects both men and

women. Offence need not

take place at public place.

Punishment: 6 months to 5

years.

Only protects women.

Punishable when committed

at public place. Punishment:

3 to 7 years with fine.

207

Sources: Protection of Children from Sexual Offences Act, 2012; Information Technology Act, 2000,

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Criminal Law

(Amendment) Ordinance, 2013.

75

4.2 PROSTITUTION: PROFESSION OF SEX TRADE

4.2.1 INTRODUCTION

A prostitute or a tawaif or a devadasi as different times have called them in India — are

the facilitators of what some people say the “oldest profession of the world”, Prostitution. It is

$100 billion global industry whose legal status varies from country to country, an industry

which is unarguably ubiquitous in all the countries with their own variations, an industry

whose history can be traced to 4000 years back to ancient Babylon. But surely one must not

be naive enough to think that this so called “oldest profession” is driven by need of physical

pleasure only, but is rather driven by the economic and psychological distresses which

contribute majorly to the entry of prostitutes in this profession.208

It is the exchange of sexual

favors for economic or monetary gain. Prostitution takes many forms, and it is necessary to

look at its various forms and the extent of its practice to get some idea of its dynamics.209

208

“Prostitution in India”, http://www.youthkiawaaz.com/2011/03/prostitution-in-india/, as last visited on

1/04/2016. 209

Stephen T. Holmes and Ronald M. Holmes, “Sex Crimes Patterns and Behavior”, ed. (3) 2009, p.69.

http://www.youthkiawaaz.com/2011/03/prostitution-in-india/

76

4.2.2 LAW COMMISSION SUGGESTIONS

The 64th

Law Commission of India Report was on “The Suppression of Immoral

Traffic in Woman and Girls Act, 1956.” The Commission had taken up the subject in view

of the importance of the aspect of preventing the traffic of women and children for immoral

purposes. It maybe mentioned that Article 23(1) of the Constitution prohibits traffic among

human beings. Then Article 35(a)(ii) gives the exclusive power to Parliament to confer

punishment under this part. Article 35(a) also gives power to the Parliament. Also, Article

39(f) of the Constitution provides that State shall in particular direct its policy towards

securing that childhood and youth are protected against exploitation and against moral and

material abandonment.

The LCI further said that as far as prostitution is concerned they said that wider view

should not be adopted and they further explained and classified the conduct into four

categories210

:

(i)approved by law.

(ii)permitted without approval or disapproval of law.

(iii)disapproved but not prohibited by law.

(iv) prohibited by law.

Prostitution falls partly within category (iii) and partly within category (iv). The fact that

certain types of prostitution are not completely prohibited by law, does not necessarily mean

they are completely prohibited by law.

In India prostitution is legal but the other related activities such as soliciting, pimping

and brothels are illegal. There are more than 20 million prostitutes in India if a Human Rights

Watch report is to be believed — and as many as 35% of them enter at an age less than 18.

Prostitution was once upon a time a theme of Indian literature and arts for centuries. In Indian

mythology there are many references of high-class prostitution in the form of celestial

demigods acting as prostitutes.211

They are referred to as Menaka, Rambha, Urvashi, and

Thilothamma. They are described as perfect embodiments and unsurpassed beauty and

feminine charms. Even during the medieval period and rule of mughals they were treated

very royally — Sanskrit plays have been written on this, even now, they form a central theme

210

64th LCI Report.

211Teela Sanders, Maggie O’ Neill and Jane Pitcher, “Prostitution sex work, policy & politics”, ed.(1) 2009, p. 1.

http://www.youthkiawaaz.com/hub/?p=41

77

for many movies. Some of these movies have been able to provide an insight to the plight of

the prostitutes in our country. But the true face still lies hidden. Ever since the downfall of

Mughal Empire the conditions have deteriorated to deplorable levels. Exploring through the

causes of prostitution, the first and the foremost factor is Poverty.212

Poverty is one of the main causes which brings helpless woman to the doors of

prostitution. A woman distressed economically, often ill treated by parents or seduced by

boyfriend who later turns out to be a pimp or procurer, and lastly uneducated or with a very

low education level seldom finds any other avenues to feed herself other than prostitution.

There are other social factors which are degrade the status of a woman. One such factor is the

view of women being a commodity – which is pervasive in popular manifestations of culture

in India.213

The harsh reality is, that women who have had sexual experiences are considered

to be ‘used goods’ or ‘characterless’ and are unlikely to ever marry. She becomes an

impoverished cultural outcast.214

Religious prostitutes, child prostitutes, rapes, inability to arrange marriage are some of the

other reasons which pushes the woman on the downslide from which there is no coming

back.

India is one of the biggest market for prostitution in Asia with Mumbai alone accommodating

200,000 prostitutes. Trafficking, sex tourism and ‘clandestine’ nature of the industry is

further imposing problems and spread of HIV/AIDS is on the rise at an alarming rate with

woman being more prone to infection. Because of such nature and lack of regulatory body the

real magnitude of severity of the actual situation cannot be comprehended.215

4.2.3 IPC PROVISION ON PROSTITUTION

Further, Section 372 IPC makes the following provision:

“372. Selling minor for purposes of prostitution, etc.—Whoever sells, lets to hire, or

otherwise disposes of any 1[person under the age of eighteen years with intent that such

person shall at any age be employed or used for the purpose of prostitution or illicit

intercourse with any person or for any unlawful and immoral purpose, or knowing it to be

212

64th LCI Report.

213Sarah Kingston, Prostitution in the Community Ättitudes, action and resistance”, ed. (1) 2014, pp. 1-18.

214Ibid.

215Ibid.

http://www.youthkiawaaz.com/2010/12/prostitution-in-india-can-it-ever-be-a-matter-of-choice/

http://www.youthkiawaaz.com/2010/12/prostitution-in-india-can-it-ever-be-a-matter-of-choice/

http://www.youthkiawaaz.com/topic/poverty/

http://www.youthkiawaaz.com/2010/01/human-trafficking-in-south-asia-fight-back/

78

likely that such person will at any age be] employed or used for any such purpose, shall be

punished with imprisonment of either description for a term which may extend to ten years,

and shall be liable to fine. 2[Explanation I.—When a female under the age of eighteen years

is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or

manages a brothel, the person so disposing of such female shall, until the contrary is proved,

be presumed to have disposed of her with the intent that she shall be used for the purpose of

prostitution. Explanation II.—For the purposes of this section “illicit intercourse” means

sexual intercourse between persons not united by marriage or by any union or tie which,

though not amounting to a marriage, is recognised by the personal law or custom of the

community to which they belong or, where they belong to different communities, of both

such communities, as constituting between them a quasi-marital relation.]”

Also, the amended Sections 370 and 370 A in the Criminal Law (Amendment) Act,

2013 cater to sexual exploitation of trafficked “persons” and “minors”.

4.2.4 SITA TO PITA: THE 1986 AMENDMENT

Also, The Immoral Traffic in Women and Children (Prevention) Act (PITA),

governing sex work and trafficking, was amended to its current form in 1986.216

PITA’s

origins can be traced back to India’s signatory status in the 1950 United Nations International

Convention for theSuppression of Traffic in Persons and of the Exploitation of

Women.217

After signing the Convention, India enacted the Suppression of ImmoralTraffic in

Women and Girls Act of 1956 (SITA), which toleratedprostitution, recognizing its necessity

despite its evil.218

The underlyingaim of SITA was “to inhibit or abolish commercialized vice

namely, thetraffic in women and girls for the purpose of prostitution as an organizedmeans of

216

The Suppression of Immoral Traffic in Women and Girls (Amendment) Act, 1986. 217

See The Suppression of Immoral Traffic in Women and Girls Bill, 1956, No. 58A, Acts of Parliament, (1956),

available at http://socialwelfare.delhigovt.nic.in/immoraltraffact.htm; Convention for the Suppression of the

Traffic in Persons and the Exploitation of the Prostitution of Others, July 25, 1951, 96 U.N.T.S. 271; Ctr. for

Feminist Legal Research, The Prevention of Human Trafficking Bill, (Oct. 2006) (draft),

http://www.cflr.org/Draft.htm. 218

See The Suppression of Immoral Traffic in Women and Girls Bill, 1956, No. 58A; Kotiswaran. Under SITA,

prostitution is defined as: “the act of a female who offers her body for promiscuous sexual intercourse for hire,

whether in money or in kind and whether offered immediately or otherwise.” § 2(f). Sections 7(i) and 8(b) of the

1956 Act penalize the practice of prostitution in or near a public place, including soliciting or seducing for

prostitution. §§ 7(i), 8(b); SITA penalizes brothel owners for living off the earnings of a prostitute and for

procuring, inducing or trafficking for prostitution. §§ 4, 5; Further, section 10 provides for the release of

offenders on probation or after admonition. § 10.

http://socialwelfare.delhigovt.nic.in/immoraltraffact

79

living.”219

The reference to “organized” in the statutes essentially allows a woman to carry

out prostitution privately without facing criminal penalties.220

In 1986, SITA was amended without fundamental difference to become PITA. The

stated objectives of the new Act were to move from suppression to prevention of

prostitution.221

The Immoral Traffic (Prevention) Act or PITA, a 1986 amendment of

legislation passed in 1956 provides for the rehabilitation for the sex workers, who come

forward and demand it, but what good does it serve if the families of these rescued women do

not accept them back. These schemes need to have an empowering impact for these

women.222

4.2.5 PROPOSED 2005 AMENDMENTS

In 2005, proposed amendments to the ITPA included criminalization clients of sex

workers, as is the case in Sweden, and would have enabled aggressive ‘rescue and

rehabilitation’ programmes for sex workers, who would be figured as victims of human

trafficking by virtue of their selling sexual services. Both of these sets of amendments met

with much criticism from Indian sex workers’ organizations, lesbian, gay, queer, and

transgender rights groups and HIV/ AIDS advocates. At the same time, there was agreement

on both sides of the debate on the amendment that would have eliminated the ITPA’s anti-

solicitation clause, which, in the absence of a clear injunction against the exchange of sexual

services and money in the law, criminalises sex workers most directly, as well as leaving sex

workers open to being targeted for harassment and extortion through broad and often vague

interpretations of what constitutes solicitation.223

The ITPA has generally been used to control urban, brothel-based sexual commerce,

reflecting the state’s priority in containing visible prostitution in public spaces, rather than

219

The Suppression of Immoral Traffic in Women and Girls Bill, 1956, No. 58A at pmbl. 220

The Suppression of Immoral Traffic in Women and Girls Bill, 1956, No. 58A at pmbl. In colonial India

prostitution was viewed as a “necessary evil.” The implementation of SITA did not dramatically alter this

attitude, maintaining India’s toleration of the practice. 221

The Suppression of Immoral Traffic in Women and Girls (Amendment) Act, 1986,

No. 44. 222

Ibid. 223

Svati P. Shah, “True Sex and the Law Prostitution, Sodomy, and the Politics of Sexual Minoritization in

India, edited by Sanjay Srivastava, “Sexuality Studies”, ed.(1) 2013, pp. 141-160.

http://www.youthkiawaaz.com/2010/06/prostitution-booms-as-commonwealth-approaches/

80

eliminating prostitution altogether. The repeal of the anti- solicitation clause would have been

significant, given that the ITPA does not render the exchange of money and sexual services

illegal per se. Rather, a host of activities around prostitution are rendered illegal, including

(but not limited to) solicitation and ‘surviving from the earnings of a sex worker’, a clause

that ostensibly targets pimps, but ends up rendering anyone living with someone selling

sexual services, including family members, vulnerable to harassment in the name of

upholding the law. The proposed amendments included enhancement of penalties. Also, it

included an expanded definition of prostitution as ‘sexual exploitation or abuse of persons for

commercial purposes or for consideration in money or in any other kind.224

In this case, legal advocates were key in demonstrating the link between increased

criminalization and increased HIV transmission rates, and in demonstrating the converse as

well. Whereas the proposed reforms aimed to centre a link between prostitution and human

trafficking, advocates of the revised law were unable to clearly show how the revision would

control HIV transmission.225

The 2005 process resulted in the proposed reforms being submitted to Parliament by

then- Home Minister Shivraj Patil. Coalitions of sexual rights’ organizations were extremely

successful in demonstrating the controversy surrounding these particular amendments, and

won a victory when the matter was referred to a Parliamentary Standing Committee for

review, rather than being brought to a vote, as a result of coordinated protests and lobbying

efforts. The Committee’s report, released in 2006, expressed the need for caution regarding

the reforms, and stayed the process pending resolution of several issues in the draft

legislation. Despite this setback, the Women’s and Home Ministries preserved in their efforts

to push their reforms, until the armed Mumbai attacks in November 2008, which resulted in

Shivraj Patil being forced to resign his post. The combination of the attacks and the loss of a

key ministerial advocate closed the possibility for these reforms being passed, for the

moment, and gave non-abotionist sex worker activists, advocates, and allies a legislative

victory, in that sexual commerce was not further criminalized by an amended ITPA.226

224

Svati P. Shah, “True Sex and the Law Prostitution, Sodomy, and the Politics of Sexual Minoritization in

India, edited by Sanjay Srivastava, “Sexuality Studies”, ed.(1) 2013, pp. 141-160. 225

Ibid. 226

Ibid.

81

4.2.6 RESEARCHER’S SUGGESTIONS

The definition of “Prostitute” should be made to include transgenders and male

prostitutes also across all provisions as some provisions like Section 2 (f) has gender

neutral definition as it uses the word “prostitute” but provisions like Sections 5, 7 and

20 have “woman or girl” substituted for “person”. The 1986 amendments to PITA are

contradictory and need clarification.

Further, prostitution is only penalized when it takes place at public places. This

division between public and private places needs to be done away with as “brothels”

are generally not public places. Thus, this distinction creates confusion in the law as

provided by Sections 7 and 8 of PITA, 1986. They are further contradictory to Section

20 under which a magistrate may remove prostitute from any place.

Moreover, the definition of child and minor under PITA, 1986 as someone who has

not completed sixteen years and completed 16 but not 18 years has to be looked into

as it is contradictory laws and to the Convention on Child Rights to which India is a

signatory.

“Prostitutes” should be added to the definition of “victim”, so that theyand their

dependents are provided with rehabilitation compulsorily in order to completely

eradicate the sex industry.

The age limit of 18 years under Section 372 IPC should be expanded without putting

any age bar in order to ban prostitution and selling them for sex work uniformly

across all age groups as this in conflict with the amended Sections 370 and 370A of

the IPC.

The researcher further feels that the concept of “corrective institution” and “protective

homes” under Section 10-A and Section 21 of PITA, 1986 are unexplained, unclear in

themselves and there needs to a specified distinction between their characteristics and

criteria for granting license by state governments. The researcher feels that instead of

these the prostitutes if poverty stricken should resort to normal “shelter homes”.

82

These prostitutes should be compulsorily provided rehabilitation227

by providing them

with vocational training and education. Lately, there have been questions rising with

the growing importance of the mandate of legalizing prostitution in India. While that

is certainly not a great solution for the given problems which require more of a

paradigm shift in the mindset of people, but given the clandestine nature and no

regulation of industry, it would certainly be a step towards damage control as

prostitution is currently not illegal in India. Further, these women and their children

and other dependent family members should be provided with rehabilitation facilities,

while giving the prostitutes the status of “victims” under the criminal law.

The registration of prostitutes should be made compulsory to keep a check on their

number and further growth in their community, whereby workers would have their

own identity, access to public facilities, and other services. A serious check on the

spread of HIV/AIDS will help in controlling the other related activities which have

associated with the prostitution etc.

Thus, the researcher does not agree with the recommendations of the NCW Panel

which was constituted after the filing of a PIL to the Supreme Court regarding

rehabilitation of sex workers, which court in its order dated Aug 24, 2011 the court

had asked the NCW members to attend the Panel’s meetings as it has proposed to

legalise prostitution.228

“Prostitutes” should be added to the definition of “victim”, so that theyand their

dependents are provided with rehabilitation compulsorily in order to completely

eradicate the sex industry and not only when they give their application under Section

19 of the PITA, 1986.

The age limit of 18 years under Section 372 IPC should be expanded without putting

any age bar in order to ban prostitution and selling them for sex work uniformly

across all age groups.

227

Paola Monzini, “Sex Traffic, Prostitution, Crime and Exploitation”, ed. (1) 2006, pp. 137-154. 228

http://timesofindia.indiatimes.com/india/Proposal-to-legalize-prostitution-to-be-placed-before-SC-panel-

NCW/articleshow/44973994.cms

83

These prostitutes should be provided vocational training and education and their

products should be marketed so that they do not face the same trouble all over again.

Lately there have been questions rising with the growing importance of the mandate

of legalizing prostitution in India. While that is certainly not a great solution for the

given problems which require more of a paradigm shift in the mindset of people, but

given the clandestine nature and no regulation of industry, it would certainly be a step

towards damage control as prostitution is currently not illegal in India. Further, these

women and their children and other dependent family members should be provided

with rehabilitation facilities, while giving the prostitutes the status of “victims” under

the criminal law. The registration of prostitutes should be made compulsory to keep a

check on their number and further growth in their community, whereby workers

would have their own identity, access to public facilities, and other services. A serious

check on the spread of HIV/AIDS will help in controlling the other related activities

which have associated with the prostitution etc.

Thus, the researcher does not agree with the recommendations of the NCW Panel

which was constituted after the filing of a PIL to the Supreme Court regarding

rehabilitation of sex workers, which court in its order dated Aug 24, 2011 the court

had asked the NCW members to attend the Panel’s meetings as it has proposed to

legalise prostitution.229

229

http://timesofindia.indiatimes.com/india/Proposal-to-legalize-prostitution-to-be-placed-before-SC-panel-

NCW/articleshow/44973994.cms

84

4.3“LGBT COMMUNITY”: ARE THEY A PART OF “COMMUNITY”?

4.3.1 INTRODUCTION

The prominence of relationship recognition and same-sex marriage in lesbian and gay

struggles for legal equality has led to a wealth of academic commentary and debate, and the

place, utility and aims of same-sex marriage remain hotly contested.230

Attitudes

homosexuality are changing.231

In 2009, the Indian LGBT (Lesbians Gay Bisexuals and

Transgenders) community took its first step towards equal sexual citizenship through the

Delhi High Court's judgment in the matter of Naz Foundation v. NCT of Delhi and Others'232

the Bench, comprising then of Chief Justice of the High Court Justice A.P. Shah and Justice

Muralidhar, crafted a 105-page document that is considered a landmark moment in Indian

judicial history. The judgment not only empowered a historically marginalized community,

but it also laid the foundation to strengthen other human rights struggles in the country with 230

Rosie Harding, “Regulating Sexuality Legal consciousness in lesbian and gay lives”, ed.(1) 2011, p. 2. 231


The full text of this judgment is easily available on the web at http://www.iglhrc.org/binary-data/ATTACHMENT/file/000/000/274-1.pdf.

85

its expansive reading of constitutional rights. Yet for all the revelry that surrounded the

judgment, there was an equally fierce backlash that played out across Indian television

screens as advocates for the movement faced off with opponents from religious groups of all

faiths and denominations. It was inevitable then, that within two weeks of the decision, an

appeal was filed before the Supreme Court of India.233

A brief overview of the constitutional rights scheme vis-2i-vis the judiciary might be

useful at this juncture. Part III of the Indian Constitution guarantees a set of fundamental

rights ranging from Article 14, which provides for the right to equality before the law and

equal protection under law, to Article 21, which guarantees the right to life and personal

liberty. One of the fundamental rights, Article 32, provides for the right to approach the

Supreme Court of India for the enforcement of rights guaranteed under Part III. Subordinate

to the Supreme Court are the various State High Courts, which may be approached for

constitutional remedies under Article 226.234

In July of 2001, a set of raids rocked the city of Lucknow and the LGBT community:

first on a public park frequented by the MSM235

community, and next on the offices of two

NGOs working on safe sex issues that led to the arrest of a total of ten people. The operation

was conducted on the basis of a complaint filed with a Lucknow police station, wherein it

was alleged that a certain Suresh had sodomized the complainant. Notable in the incident was

the climate of homophobia stoked by the media, which indulged in sensationalizing

headlines,236

and the Magistrate concerned further refusing bail to the men. In that denial of

bail, instead of siding with the relevant law, the Magistrate clearly proceeded on the basis of

his perceptions regarding homosexuality: "They... are polluting the entire society by

encouraging the young persons and abetting them for committing the offence of sodomy."237

233

Danish Sheikh, “The Road to Decriminalization: Litigating India's Anti-Sodomy Law”, Vol. 16, Issue 1, Yale

Human Rights and Development Journal;

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1117&context=yhrdlj. 234

Ibid. 235

“Men Having Sex with Men”, see, e.g., LGBT Section 377, LAWYERS COLLECTIVE, available at http:/

/www.lawyerscollective.org/vulnerable-cormmunities/1gbt/section-377.html. 236

See, e.g., Gay Culture Started In UP In 1998 Itself, TIMES OF INDIA, July 10, 2001. 237

NARRAIN, supra note 14, at 70 n.10 (2004), quoting Crim. Misc. Case No. 2054/2001.1092013]

86

4.3.2 NAZ FOUNDATION CASE

It was towards the end of the same year that Naz Foundation, a Delhi based NGO

working on HIV/AIDS issues, filed a petition before the Delhi High Court. The petition asked

the Court to read Section 377 of the Indian Penal Code as excluding acts of consensual

private sex from its purview.238

This wording was important, since asking the Court to wholly

strike down the law would have had a direct impact on child rights groups that used the law

to prosecute child sexual abuse. 2001 was also the year that my family moved back to India

after a decade in the Middle East. In the midst of navigating reverse culture shock, I learned

the meaning of the word "homosexual" and first encountered the vague anxiety that it could

possibly apply to me. There was nothing in the world of popular culture to address that

anxiety, though, the books and movies available to me maintained a studied silence on the

issue. I made do with reading my fantasies into those stories, dismissing my casual reversal

of the protagonists' respective genders as an insignificant quirk. Also seemingly insignificant

was the intense friendship I had fostered with a male classmate, failing to recognize in our

back-and-forths the echoes of fullfledged relationships to come.239

In 2003, the Government of India responded to the Naz Foundation petition. The

response came in the form of an affidavit, with the Ministry of Home Affairs questioning the

locus standi of the petitioner, asserting that "Section 377 has been applied to cases of assault

where bodily harm is intended and/or caused and deletion of the said section can well open

flood gates of delinquent behaviour and be misconstrued as providing unbridled licence for

the same."240

The affidavit noted that there was no evidence for the fact that homosexuality

was tolerated in Indian society prior to colonial rule and went on to conclude that

"[o]bjectively speaking, there is no such tolerance to practice of homosexuality/lesbianism in

the Indian society."241

It further observed that "[w]hile the Government cannot police

morality, in a civil society criminal law has to express and reflect public morality and

238

Writ Petition at 7-27, Naz Foundation v. NCT of Delhi, 160 DLT 277 (2009), available at

http://www.lawyerscollective.org/files/High%20Court%2Writ%2OPetition.pdf. 20. Counter-Affidavit on behalf

of Ministry of Home Affairs, para 9, available at http://www.awyerscollective.org/files/MHA%20Affidavit.pdf.

21. Id. 22. Id. 239




Counter-Affidavit on behalf of Ministry of Home Affairs, para 9, available at

http://www.awyerscollective.org/files/MHA%20Affidavit.pdf. 241

Ibid.

87

concerns about harm to the society at large." This first round was unsuccessful: the Delhi

High Court dismissed the petition in 2004 on the ground that the petitioner was not affected

by Section 377 and hence had no locus standi to challenge the law. In the same year, the

Court rejected a review petition challenging this order. On an appeal filed by Naz

Foundation, the Supreme Court of India passed an order in 2006 remanding the case back to

the Delhi High Court so the matter could be heard on its merits.242

Back in the Delhi High Court, the Health Ministry joined the fray in the year 2006,

but in support of Naz Foundation: an affidavit was filed by the National Aids Control

Organization that the enforcement of Section 377 was a hindrance to HIV prevention efforts.

Corroborating similar contentions made by Naz Foundation, the affidavit stated that by

driving high risk activities underground, Section 377 made it extremely difficult to get

needed information and services to those most at risk of contracting HIV. By the time the

case came up for final arguments before the Court, the Delhi-based group Voices Against 377

had also joined Naz with its own petition, while the respondents list was supplemented by

B.P. Singhal, a conservative activist, and Joint Action Committee, Kannur, an activist group

which was primarily opposed to HIV/AIDS organizing.243

The Alternative Law Forum came

on board at this time as counsel for Voices against 377. The LBGT community followed the

arguments in the Delhi High Court chambers with great interest-as did many human rights

activists. Transcripts of the proceedings were widely circulated,244

and in November of 2008

the arguments came to a close, the case reserved for judgment. The next few months involved

a terse waiting period for the LGBT community and its supporters. At the same time, gay

pride celebrations were becoming more popular in India, with the summer of 2009 finding

major pride gatherings in Delhi, Chennai, Bangalore, and Kolkata. Then, as if to celebrate the

spirit of pride itself, the Delhi High Court gave its judgment just a week after the pride

marches.

However, all joy was lost when the Supreme Court reversed the Delhi High Court

judgment and kept the earlier view of criminalization of carnal intercourse which was

“unnatural” in nature.

242

Jyoti Puri, “Decriminalization as Deregulation? Logics of Sodomy Law and the State”, edited by Sanjay

Srivastava, “Sexuality Studies”, ed.(1) 2013, pp. 141-160. 243

Documents relating to the Naz Foundation case, available at www.lawyerscollective.org/vulnerable-

communities/gbt/section-377.html#more-168 (last visited Apr. 6, 2016). 244

Ibid.

88

4.3.3 CURATIVE PETITIONS IN SUPREME COURT

The Supreme Court in Feb, 2016 referred a batch of curative petitions against Section

377 of the Indian Penal Code, a colonial-era provision criminalising consensual sexual acts of

Lesbian, Gay, Bisexual and Transgender (LGBT) adults in private, to a five-judge

Constitution Bench for a possible back-to-roots, in-depth hearing.245

A three-judge Bench of Chief Justice of India T.S. Thakur and Justices Anil R. Dave

and J.S. Khehar gave credence to arguments that the threat imposed by the provision amounts

to denial of the rights to privacy and dignity and results in gross miscarriage of justice.246

Chief Justice Thakur said the petitions pose several questions with “constitutional

dimensions of importance” while dictating the order of reference to a Constitution Bench he

would be setting up shortly. This Bench neither admitted the petitions nor issued notice to the

government, leaving it to the future Constitution Bench to do so, if found necessary.247

Rebelling against its own procedural conventions in dealing with curative pleas, the

Supreme Court indicated its openness to re-consider the constitutionality of Section 377 with

new eyes.248

Chief Justice Thakur told senior advocate Anand Grover, appearing for petitioner Naz

Foundation, that the new Bench may not limit itself to the narrow confines of the curative law

— the Curative Bench will only entertain if petitioners prove that its review verdict violated

principles of natural justice and the judges were biased — and opt for a comprehensive

hearing of the arguments placed for the protection of the dignity and rights of the LGBT

community.249

The indication came when Mr. Grover asked whether the three judges would also be

present on the “curative bench.” As per the apex court’s RupaHurra judgment in 2002, the

245

http://www.thehindu.com/news/national/supreme-court-refers-plea-against-section-377-to-5judge-

bench/article8183860.ece (last visited April 7, 2016) 246

Ibid. 247

Ibid. 248

Ibid. 249

Ibid.

http://www.thehindu.com/news/national/supreme-court-refers-plea-against-section-377-to-5judge-bench/article8183860.ece

http://www.thehindu.com/news/national/supreme-court-refers-plea-against-section-377-to-5judge-bench/article8183860.ece

89

Bench considering curative pleas should necessarily have the three top judges of the Supreme

Court.250

In his opening argument to the Bench, senior advocate Kabil Sibal submitted that a

person’s sexuality was his or her most precious, most private of rights.

In a rare development, Lok Sabha recently voted against introduction of a private

member’s bill brought by Congress member Shashi Thraoor to decriminalise homosexualty.

The introduction of the bill which sought amendment to the IPC by seeking to “substitute a

new section for section 377 of the IPC” was objected to by BJP member Nishikant Dubey.

Dubey said he was opposing the bill not because of any religion, vedas or ‘puranas’ but

because of the Supreme Court judgement.251


Decriminalization is only the first goal in a journey towards full moral citizenship: a

journey that transitions from the right to be let alone to the right to be recognized by the

State. This new paradigm raises a range of issues relating to positive political claims.252

The first issue revolves around the legal recognition of same-sex relationships in

India. A system of legal pluralism dominates Indian family law, with religious groups

governed by separate codes, all of which clearly restrict marriage to mixed-sex

couples within religious boundaries. The first redefinition of marriage and sexual

union in India happened with the passage of the Special Marriage Act of 1954, which

permitted secular marriage across caste and communities, though still framed within

the bounds of heterosexual unions. The exclusion of same-sex couples from this

institution denies them a range of basic entitlements available to heterosexual couples.

The first question to explore would hinge on the feasibility of advocating for same-

sex marriage rights, or instead arguing for civil unions. If we pursue both options

250

Ibid. 251

http://indianexpress.com/article/india/india-news-india/shashi-tharoors-bill-to-decriminalise-homosexuality-

defeated-in-ls/., as last visited on 1/05/2016. 252



http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1117&context=yhrdlj.

http://indianexpress.com/article/india/india-news-india/shashi-tharoors-bill-to-decriminalise-homosexuality-defeated-in-ls/


90

simultaneously - and I believe this might be the best path - the secondary set of issues

would revolve around how we conceive of and advocate for these new legal

frameworks. Arguments for same-sex marriage would almost certainly have to focus

on amending the secular marriage law as opposed to religious laws. On the question

of civil unions, it would be worth considering whether we should imagine the

institution as one available to heterosexual couples as well.253

The second major issue is that of anti-discrimination provisions for LGBT people at

the institutional level. Indian anti-discrimination laws have been largely focused on

reservation, with other aspects such as equal opportunity and diversity promotion for

all vulnerable groups having only gained importance recently. The new interpretation

of Article 15, if it stands, will play an important role in making positive legal claims

with respect to creating safe institutional spaces for LGBT people. The arguments for

relationship recognition and non-discrimination represent a new challenge to the

rights movement, in that they shift from a paradigm of tolerance to that of staking a

positive political claim.254

The third issue I'd like to highlight moves between the two claims: the status of the

transgender community in India. Unlike the gay, lesbian, and bisexual community, the

transgender community's status of criminalization hasn't been completely erased since

the Delhi High Court's judgment. The 2011 Police Act enacted by the State of

Karnataka resurrects the spirit of the draconian Criminal Tribes Act of 1871, which

reversed the principle of presumption of innocence, mandating local governments to

keep registers of the names and residences of hijras as automatic suspects for crimes.

The hijra community is also targeted through the rampant misuse of the Immoral

Trafficking Prevention Act. While the Act's objective is to criminalize institutional

structures that result in human trafficking, it ends up primarily targeting the visible

253




Ibid.

91

figure of the sex worker and enables the police to arrest and intimidate the transgender

sexworker population.255

If the hijra community is hyper-visible in the domain of criminal law, it

encounters complete invisibility when it comes to civil law. Identity documents

ranging from driver's licenses to ration cards don't allow for a transgender option, thus

depriving the community of a range of state entitlements. Beyond identity documents,

Sexual Reassignment Surgery (SRS), an essential aspect of realizing transgender

identity, remains prohibitively expensive. Those seeking the surgery often rely on

unqualified medical practitioners, which in turn exposes them to post-operative

complications. And when it comes to the legal recognition of transgender

relationships, the law again falls short. India's secular marriage legislation and its

individual religious legal codes clearly restrict marriage to male-female couples, thus

disallowing the transgender community access to this institution. Even as the Naz

litigation approaches its possible end, another major suit is set to begin. The National

Legal Services Authority of India recently filed a petition before the Supreme Court

of India asking for the recognitionof a range of rights for the transgender community

in India. Amongst the various measures that the petition asks for are directives to the

government ensuring access to basic necessities like shelter, food, clothes, medical

facilities, education, and identity documents, as well as a realization of the

transgender community's right to marriage and adoption.256

These aren't the only

conversations afoot, of course. Voices of change within the courtrooms speak in

tandem with whispers of change outside.257

255

Ibid. 256

Ibid. 257

Ibid.

92

4.4 LAWS RELATING TO SEXUALLY TRANSMITTED DISEASES

WITH A FOCUS ON HIV INFECTED PEOPLE

4.4.1INTRODUCTION

HIV/AIDS is one of the biggest challenges faced by India among other Sexually

Transmitted Diseases. There are about three million people suffering from HIV/AIDS in

India. The socioeconomic condition of the country coupled with the traditional outlook and

the myths associated with the things has made it more vulnerable to the disease. Poor literacy

level is one of the biggest causes of the spread of the disease. The disease has a very serious

social stigma attached with it. People infected with HIV/AIDS are discriminated at every

place and are looked upon in the society. The major field where they feel the effects of this

disease is at the workplace. The disease not completely curable but measures can be followed

93

to prevent it. Imparting knowledge and creating awareness amongst the people with regard to

the disease, its causes, its effects can help in reducing it from spreading further.258

4.4.2 WHAT IS AIDS

Acquired Immune Deficiency Syndrome (AIDS) is the term given to a combination of

symptoms which results from a breakdown of the immune system. It is the final stage of HIV

infection, which causes severe damage to the immune system and causes fatal infections.

This is a disease in which the defense system of the human body is weakened and gives rise

to a variety of symptoms leading to various disorders and set of diseases. AIDS is caused by a

virus known as HUMAN IMMUNODEFICIENCY VIRUS (HIV). The virus attacks the

immune system and leaves the body vulnerable to a variety of life-threatening infections and

cancers.

HIV is transmitted primarily through sexual intercourse (including oral, vaginal, and anal

sex), through transfusion of infected blood, by use of non sterile, HIV infected or

contaminated syringes and needles and from an infected mother to her unborn child.259

4.4.3 LEGAL PROVISIONS IN INTERNATIONAL CONVENTIONS

Union of India has signed various treaties, agreements and declarations relating to

HIV/AIDS, the protection of rights of those who are HIV positive, those who are affected by

HIV/AIDS and those who are most vulnerable to HIV/AIDS in order to secure their human

rights and prevent the spread of HIV/AIDS. The two conventions that aim at non

discrimination on the basis of creed, political affiliation, gender, or race are the International

Covenant on Civil and Political Rights, the International Covenant on Economic, Social and

Cultural Rights. They also cover within their ambit nondiscrimination of the people infected

with HIV.260

258

http://www.helplinelaw.com/civil-litigation-and-others/RHPI/rights-of-hivaids-patients-in-india.html as last

visited on 22/05/2016. 259

Ibid. 260


visited on 22/05/2016.



94

The Universal Declaration of Human Rights also lays down that the principle of non-

discrimination is fundamental to human rights law. It equally applies to people suffering from

HIV/AIDS because they have to suffer a very high level of stigma and discrimination. It lays

down certain work related provisions for a HIV/AIDS infected people which includes right to

life, liberty and security of person, no person should be subjected to forced testing and/or

treatment or otherwise cruel or degrading treatment, all people including HIV+ persons have

the right to work and participate in the cultural life of the community, to enjoy the arts and to

share in scientific advancement and its benefits and all persons including the people living

with a positive 'HIV' diagnosis are equal before the law and are entitled without any

discrimination to equal protection by the law.261

People diagnosed with HIV+ are also entitled the rights enshrined in Art. 25(1) of the

Declaration which includes the right to adequate standard of living, assistance, medical care

and necessary social services, and the right to security in the event of unemployment

according to their needs and their treatment choices.262

The UNAIDS Guidelines, 1996 emphasizes on the duty of the states to engage in law reform.

It also guides the states to identify legal obstacles so as to form an effective strategy of

HIV/AIDS prevention and care. It also lays stress on enactment of anti-discrimination and

other protective laws that would protect HIV/AIDS diagnosed people from discrimination in

both the public and private sectors would ensure their privacy, confidentiality and ethics in

research involving human subjects and would lay emphasis on education and conciliation and

provide for speedy and effective administrative and civil remedies.263

4.4.4 LEGAL PROVISIONS IN INDIAN LAWS

There is no comprehensive law in India to deal with menace of HIV/AIDS and protect

the people infected with the disease from discrimination and the social stigma attached with

this disease. The law of land, the Constitution of India, 1950 guarantees every justice, liberty

and equality. Article 14 guarantees the right of equality of treatment to the HIV/AIDS

261

Ibid. 262

Ibid. 263

“http://www.helplinelaw.com/civil-litigation-and-others/RHPI/rights-of-hivaids-patients-in-india.html” as last



95

patients. Articles 15 and 16 protect them against discrimination. Article 21 of the

Constitution protects their right to life and personal liberty and ensures their right to privacy.

The Directive Principles of State Policy also cast a duty upon the States to ensure right to

livelihood and prevent discrimination. Article 39 of the Constitution directs the States to

ensure that all the citizens including the HIV/AIDS patients have an adequate mean of

livelihood. Article 42 casts a duty upon states to make provisions for securing just and

humane conditions of work. States have been entrusted with the duty to improve public

health vide Article 47 of the Constitution.264

1.)LEGAL PROVISIONS IN INDIAN MEDICAL COUNCIL ACT, 1956 (Professional

Conduct, & Ethics) Regulations, 2002)

The Medical Council of India lays down certain duties that have to be observed by the doctors

towards the HIV/AIDS patients. These are enumerated below265

:

Duty to take care and to take informed consent from the patient.

Disclosure of information & risks to the patient

Provide information of options available & benefits

Duty to warn

To admit patient in emergency without consent

The physician should not abandon his duty for fear of contracting the disease himself.

2.) LEGAL PROVISIONS IN IMMORAL TRAFFICKING PREVENTION ACT, 1986

Immoral Trafficking Prevention Act, 1986 deals with sex work in India. The Act

provides for conducting compulsory medical examination for detection of HIV/AIDS. It also

made provisions for compulsory testing.266

3.) HIV/AIDS Bill, 2007

HIV/AIDS Bill is a joint initiative of the government and civil society. The Bill

specifically prohibits discrimination of HIV/AIDS patients in public as well in private

spheres. The Bill prohibits discrimination of a HIV/AIDS patient in matters of employment,

education, healthcare, travel, insurance, residence and property, etc, based on their HIV

status. It takes within its ambit all acts and omissions whether actual or perceived which are

264

Ibid. 265

Ibid. 266

Ibid.

96

discriminatory on the basis of HIV status.267

The Bill provides that the consent for HIV testing and research must be specific, free and

informed. Consent for HIV-related testing, treatment and research. It further guarantees the

confidentiality of HIV status of the person and also provides the exceptions under the

information can be disclosed. A duty is imposed upon HIV/AIDS patient to prevent

transmission of HIV virus through different means. The HIV/AIDS patients have been given

a universal and free access to comprehensive treatment for HIV/AIDS and also for its

prevention, care and support. The Bill specifically provides for protection of risk reduction

strategies from civil and criminal liability and law enforcement harassment. According to the

Bill, every person has the right to information and education relating to health and the

protection of health from the State. The major focus of the Bill is upon women and young

persons. It puts an obligation upon the State to institute IEC programmers which are that are

evidence-based, age-appropriate, gender-sensitive, non-stigmatizing, and non-

discriminatory.268

The Bill provides for appointment of health ombudsmen in every district to provide easy and

quick access to health services for all persons. It also makes provisions for internal

complaints mechanisms in institutions. Grievance readdress provisions also include special

procedures in courts with emphasis on fast trials and creative readdress. The Bill also

recognizes certain rights for women, children and persons in the care and custody of the State

who, due to social, economic, legal and other factors, find themselves more vulnerable to

HIV and are disproportionately affected by the epidemic. It also recognizes the link between

sexual violence and HIV and provides for counseling and treatment of sexual assault

survivors and directs the setting up of sexual assault crisis centres.269

267

Ibid. 268

Ibid. 269




97

4.) The Human Immunodeficiency Virus And Acquired Immune Deficiency Syndrome

(Prevention And Control) Bill, 2014270

The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome

(Prevention and Control) Bill, 2014 was introduced in the Rajya Sabha on February

11, 2014 by the Minister for Health and Family Welfare, Mr. Ghulam Nabi Azad.

The Bill seeks to prevent and control the spread of HIV and AIDS, prohibits

discrimination against persons with HIV and AIDS, provides for informed consent

and confidentiality with regard to their treatment, places obligations on establishments

to safeguard their rights, and creates mechanisms for redressing their complaints.271

Prohibition of discrimination against HIV positive persons: The Bill lists the various

grounds on which discrimination against HIV positive persons and those living with

them is prohibited. These include the denial, termination, discontinuation or unfair

treatment with regard to: (i) employment, (ii) educational establishments, (iii) health

care services, (iv) residing or renting property, (v) standing for public or private

office, and (vi) provision of insurance (unless based on actuarial studies). The

requirement for HIV testing as a pre-requisite for obtaining employment or accessing

health care or education is also prohibited.272

Every HIV infected or affected person below the age of 18 years has the right to

reside in a shared household and enjoy the facilities of the household. The Bill also

prohibits any individual from publishing information or advocating feelings of hatred

against HIV positive persons and those living with them.273

270

http://www.prsindia.org/billtrack/the-human-immunodeficiency-virus-and-acquired-immune-deficiency-

syndrome-prevention-and-control-bill-2014-3126/, as last visited on 22/05/2016. 271

Ibid. 272



Ibid. 273

Ibid.





98

Informed consent and disclosure of HIV status: The Bill requires that no HIV test,

medical treatment, or research will be conducted on a person without his informed

consent. No person shall be compelled to disclose his HIV status except with his

informed consent, and if required by a court order.274

Informed consent for an HIV test will not be required in case of screening by any

licensed blood bank, a court order, medical research, and epidemiological purposes

where the HIV test is anonymous and not meant to determine the HIV status of a

person. Establishments keeping records of information of HIV positive persons shall

adopt data protection measures.275

Role of the central and state governments: The central and state governments shall

take measures to: (i) prevent the spread of HIV or AIDS, (ii) provide anti-retroviral

therapy and infection management for persons with HIV or AIDS, (iii) facilitate their

access to welfare schemes especially for women and children, (iv) formulate HIV or

AIDS education communication programmes that are age appropriate, gender

sensitive, and non stigmatizing, and (v) lay guidelines for the care and treatment of

children with HIV or AIDS. Every person in the care and custody of the state shall

have right to HIV prevention, testing, treatment and counselling services.276

Role of the Ombudsman: An ombudsman shall be appointed by each state

government to inquire into complaints related to the violation of the Act and the

provision of health care services. The Ombudsman shall submit a report to the state

government every six months stating the number and nature of complaints received,

the actions taken and orders passed.277

274

Ibid. 275

Ibid. 276



Ibid.



99

Guardianship: A person between the age of 12 to 18 years who has sufficient maturity

in understanding and managing the affairs of his HIV or AIDS affected family shall

be competent to act as a guardian of another sibling below 18 years of age. The

guardianship will be apply in matters relating to admission to educational

establishments, operating bank accounts, managing property, care and treatment,

amongst others.278

5.) National Policy on HIV/AIDS and the World of Work Policy

The National Policy on HIV/AIDS and the World of Work is a policy

document formulated by the Ministry of Labor& Employment was launched at 43rd

Session of the Standing Labor Committee. The Policy was developed by the Ministry

of Labor& Employment after consultations with ILO (International Labor

Organization), NACO (National Aids Control Organization) and Social partners. The

policy is aimed at generating awareness about HIV/AIDS, encourage action to prevent

its spread and further improve and develop the support and care initiatives at the

workplace. It objective is to prevent transmission of HIV infection amongst workers

and their families; protect right of those who are infected and provide access to

available care, support and treatment facilities, deal with issues relating to stigma and

discrimination related to HIV/AIDS by assuring them equity and dignity at the

workplace and ensure safe migration and mobility with access to information services

on HIV/AIDS.279

278

Ibid. 279

http://www.helplinelaw.com/civil-litigation-and-others/RHPI/rights-of-hivaids-patients-in-india.html, as last


Court proceedings: Cases relating to HIV positive persons shall be disposed off by the

court on a priority basis. In any legal proceeding, if an HIV infected or affected

person is a party, the court may pass orders that the proceedings be conducted (a) by

suppressing the identity of the person, (b) in camera, and (c) to restrain any person

from publishing information that discloses the identity of the applicant. When passing

any order with regard to a maintenance application filed by an HIV infected or

affected person, the court shall take into account the medical expenses incurred by the

applicant.


100

The policy says that HIV/AIDS screening should not be required of job applicants or

persons in employment or for purposes of exclusion from employment or worker

benefits. In order to assess the impact of HIV, employers may wish to do anonymous,

unlinked HIV prevalence studies in their workplace. These studies may occur

provided it is undertaken in accordance with the ethical principles of scientific

research, professional ethics and the protection of individual and confidentiality.

Where such research is done, workers should be consulted and informed that it is

occurring. Testing will not be considered anonymous if there is a reasonable

possibility that a person’s HIV status can be deduced from the result. It also provides

that HIV infection is not a cause for termination of employment. Persons with HIV

related illnesses should be able to work for as long as medically fit in appropriate

conditions.

The other legislation, polices and agencies which provide protection to the HIV/AIDS

patients are280

:

Daman, Diu Public Health Act, 1985 Goa, Amended in 1986

Indian Penal Code, 1860

Drugs and Cosmetic Act, 1940

Juvenile Justice (Care and Protection of Children) Act, 2000 and 2006.

Maharashtra Protection of Commercial Sex Workers, Bill, 1994.

Medical Termination of Pregnancy Act, 1971

Narcotic Drugs and Psychotropic Substances Act, 1985

National AIDS Control Organization (NACO), Department of AIDS Control, Policies

and Guidelines.

Antiviral Therapy Guidelines for HIV infected Adults and Adolescents including Post-

exposure.281

i. Condom Promotion by SACS - Operational Guidelines

ii. Data Sharing Guidelines

280

http://www.helplinelaw.com/civil-litigation-and-others/RHPI/rights-of-hivaids-patients-in-india.html, as last

visited on 22/05/2016. 281

Ibid.


101

iii. Guidelines for HIV Care and Treatment in Infants and Children, Nov 2006

iv. Guidelines for HIV Testing, March 2007

v. Guidelines for Network of Indian Institutions for HIV/AIDS Research

vi. Guidelines for Prevention and Management of Common Opportunistic

vii. Infections

viii. Guidelines for Setting up Blood Storage Centres

ix. Link Worker Scheme(LWS) Operational Guidelines

x. NACO Ethical Guidelines for Operational Research

xi. NACO IEC Operational Guidelines

xii. NACO Research Fellowship-Scheme Under NACP-III

xiii. National Guidelines on Prevention, Management & Control of

Reproductive Tract Infection

xiv. National Guidelines on Prevention, Management & Control of RTI

including STI

xv. National Policy on HIV/AIDS and the World of Work

xvi. Procurement Manual for National AIDS Control Programme (NACP-III)

xvii. Standards for Blood Banks and Blood Transfusion Services

xviii. Surveillance Operational Guidelines

xix. Targeted Intervention for Migrants – Operational Guidelines

xx. Targeted Interventions for High Risk Groups (HRGs)

xxi. Targeted Interventions for Truckers – Operational Guidelines

xxii. Voluntary Blood Donation – An Operational Guidelines

xxiii. National AIDS Control and Prevention Policy (NACPC)

xxiv. National Blood Policy (NIHFW)

xxv. National AIDS Control Programme (NIHFW)

xxvi. National AIDS Prevention and Control Policy

xxvii. Suppression of Immoral Traffic in Women and Girls Act, 1956

xxviii. Young Persons (Harmful Publications) Act, 1956

xxix. National AIDS Prevention and Control Policy

xxx. The Indian Employers' Statement of Commitment on HIV/AIDS

xxxi. Joint Statement of Commitment on HIV/AIDS of the Central Trade

Unions in India

102

xxxii. ILO Code of Practice on HIV/AIDS and the World of Work

xxxiii. State AIDS Control Societies

xxxiv. National Human Rights Commission


The researcher suggests that under a comprehensive legislation for sexual offences

and related acts, an exclusive part needs to deal with all Sexually Transmitted

Diseases and not just HIV/ AIDS.

The researcher suggests that the legislation of Uganda, “The HIV and AIDS

Prevention and Control Act, 2014” be taken up as a role model for the purpose of

drafting provisions under a comprehensive legislation which shall include an act to

provide for the prevention and control of HIV and AIDS, including protection and

counselling, testing, care of persons living with and affected by HIV and AIDS; to

establish the HIV and AIDS Trust Fund; and for other related matters.282

Also, provisions should be made to make registration of HIV Patients to maintain data

records.

282

http://www.parliament.go.ug/new/images/stories/acts/2014/HIV%20and%20AIDS%20prevention%20and%2

0control%20act%202014.pdf, as last visited on 23/05/2016.

http://www.parliament.go.ug/new/images/stories/acts/2014/HIV%20and%20AIDS%20prevention%20and%20control%20act%202014.pdf

http://www.parliament.go.ug/new/images/stories/acts/2014/HIV%20and%20AIDS%20prevention%20and%20control%20act%202014.pdf

103

4.5 MEDICAL EXAMINATION OF SEXUALLLY ABUSED VICTIMS

4.5.1 INTRODUCTION

Sexual offences are the most heinous crimes against women. During examination of

an accused of alleged sexual assault preservation of evidences is an important task. In India,

owing to poor collection of medical evidences, conviction rate of accused is low. This study

aims at recording results of medical examination and knowing injury patterns of alleged

sexual assault accused along with preserving proper medico-legal evidence. A consecutive

series of 41 accused, were examined in the head-to-toe manner including genitals. Accused

were referred from emergency department with proper requisition for examination by

investigating police officer. After careful medical examination, samples were collected for

104

chemical analysis. We concluded that most of the accused were young unmarried males from

the age group 21-30 years. Fifty six percent accused were friend and 29.2% were known to

the victim. Only about a fifth of them were presented for examination on the day of incident

itself and none of them had evidence of any struggle injuries.283

4.5.2 POINTS TO BE NOTED

Among all the crimes, sex related crimes are most barbarous and humiliating,

following are some of the points to be noted regarding it:

[1] Rape is considered to be the most obnoxious and gravest form of human right violation.284

[2] Ancient societies counted rape among the crime listed in their law codes and even Bible

contains stories on rape. It is one of the most prevalent and fast growing crime affecting all

nations in the world today. For decades, the crime of rape has been known as the easiest the

world today. For decades, the crime of rape has been known as the easiest criminal allegation

to make by the alleged victim and the harder to disprove by the defendant.285

[3] Medical examination is a crucial piece of information which is required for collection of

medical evidences, their documentation and interpretation in court. It becomes more valuable

where there is no other witness to the incident.286

[4]Many important legal reforms are underway but statistics show a persistent rise in rape

incidence with poor conviction rates. This knowledge, along with the vast multitude of

emotional sequelae of rape and self-perceived inferior legal status of women, results in a high

percentage of unreported cases.287

[5] It is imperative that health care providers understand the horrific nature of sexual assault

in order to provide appropriate care. All medical care personnel involved in the care of

283

J Indian Acad Forensic Med. October-December 2013, Vol. 35, No. 4 , “Medico-legal Examination of

Accused of Alleged Rape Cases A Prospective Study”; http://medind.nic.in/jal/t13/i4/jalt13i4p332.pdf. 284

Ibid. 285

Ibid. 286


Accused of Alleged Rape Cases A Prospective Study”; http://medind.nic.in/jal/t13/i4/jalt13i4p332.pdf. 287

Ibid.

105

potential rape victims should be briefed in historic and modern legalities of sexual assault.

Specific training in emergent and chronic care, both physical and mental, in conjunction with

an understanding of rape legislation is vital if health care professionals are to appropriately

care for victims of rape.288

Though, a “GUIDELINES & PROTOCOLS Medico-legal care

for survivors/victims of Sexual Violence” have been issued by Ministry of Health and

Family Welfare, Government of India for reference dated 19th

March, 2014.

The guidelines are essentially aimed at doctors who might one day be called upon to

handle female victims of sexual assault / rape in the course of their duty whether in a

government hospital or even a private one. Sexual assault victims cannot be denied treatment

in either of these hospitals when they approach them as denial has lately been made a

cognizable criminal offence punishable with appropriate jail terms or fines or both. As is

known rape law has been made more stringent with zero tolerance for offenders and through

these guidelines the aim is to ensure a sensitive and humane approach to such victims, their

proper treatment apart from attending or treating doctors responsibility and duty in recording

and documenting the medical aspects in order that such cases when they come up before the

criminal justice system are not found wanting in the quality of evidence produced by the

prosecution during trial of free of cost.


The biggest lacuna/ drawback is that while it does make registration and reporting of

sexual assault cases compulsory to the police authorities, there is a provision of

“Informed Consent” of the victim if an adult or his/her parents or guardians if a child

which leaves it upto the patient/ guardian (gives them the choice by allowing them to

tick in the form) to decide if the collected material can be shared as evidence with the

examining police authorities, though it has already been held that medical tests are not

conclusive to determine if there has been rape or not. This choice of not sharing

potential evidence against the accused hampers with the examination procedure and

many times make the case weak as given in the form of Department of Healthcare

Guidelines289

288

Ibid. 289

DHR Guidelines, FORENSIC MEDICAL CARE FORVICTIMS OF SEXUAL ASSAULT, 2013.

106

There is no national sexual assault prevention program nor is there sexual assault

crisis centre which provides early clinical evaluation and could give biopsychosocial

support to the victims.290

The Conviction Rate as pointed out needs to be improved especially with regard to

cases that are reported otherwise low conviction rate may lower the confidence of

victims to approach the courts for asking for justice.

290


Accused of Alleged Rape Cases A Prospective Study”; http://medind.nic.in/jal/t13/i4/jalt13i4p332.pdf.

107

4.6 REVERSE ONUS CLAUSE FOR ALL SEXUAL OFFENCES: SHIFT

IN BURDEN OF PROOF291

The principle that a person should be presumed innocent until proven guilty is a

fundamental principle of procedural fairness in criminal law. Its justifications lie in the socio-

legal consequences of convicting an individual for the commission of a crime. This principle

acts as a protection against erroneous convictions and ensures that an accused is not

oppressed by the immense power and resources of the State.292

The opposite rule – a pre-

sumption of guilt – imposes an unfair burden on the accused that requires him to prove his

291

Juhi Gupta, “INTERPRETATION OF REVERSE ONUS CLAUSES”. 292

Victor Tadros& Stephen Tierney, The Presumption of Innocence and the Human Rights Act, 67(3) Mod. L.

Rev. 402 (2004).

108

innocence, failing which he is convicted. Such a burden is envisaged by reverse onus clauses

or reverse burdens, which supplant the hallowed presumption of innocence with the grossly

unjust presumption of guilt.

Since presumption of innocence is the fundamental element of a trial, the legal or

ultimate burden of proof is always on the prosecution to prove the guilt of the accused.293

The

prosecution must, therefore, prove a concurrence between mens rea and actus reus beyond

reasonable doubt in order to discharge its burden.294

The burden is on the accused to rebut the

court’s presumption that a particular exculpating circumstance was absent by raising either a

defence or an exception.295

Commonly referred to as the reverse evidential burden, it merely

requires proof from the accused, which satisfies the ‘prudent man’ standard or at least creates

reasonable doubt regarding one or more necessary ingredients of the offence. The prosecution

will continue to bear the legal burden to negate the exculpation of the accused. If the accused

succeeds in creating reasonable doubt, he will be acquitted because the prosecution has been

unable to prove his guilt.296

Thus, the legal burden of proving all necessary ingredients of an

offence is on the prosecution from the commencement to the termination of a trial.

One would imagine that given the near sacred status of the presumption of innocence,

it cannot be compromised in any circumstance whatsoever. Reverse onus clauses or reverse

burdens, however, constitute a singular exception to this fundamental rule, supplanting the

‘golden thread’297

of criminal law with a presumption of guilt. They strip the principle of its

very essence and replace ‘innocent until proven guilty’ with ‘guilty until proven innocent’,

making the accused a presumptive criminal who needs to prove his innocence. Reverse

onuses dilute the prosecution’s legal burden to the extent that the prosecutor is required to

prove only a minimum threshold (also referred to as the basic or predicate fact), which is the

293

The Indian Evidence Act, 1872, §101: Burden of Proof - Whoever desires any Court to give judgment as to

any legal right or liability dependant on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on the person. 294

Tadros& Tierney, supra note 2, 406. 295

The Indian Evidence Act, 1872, §105: Burden of proving that case of accused comes within exceptions-

When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case

within any of the General Exceptions in the Indian Penal Code (45 of 1860) or within any special exception or

proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the

Court shall presume the absence of such circumstances. 296

David Hamer, The Presumption of Innocence and Reverse Burdens: A Balancing Act, 66(1) Cambridge Law

Journal 142, 143 (2007); See also DahyabhaiChhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563. 297

Woolmington v. D.P.P., [1935] A.C. 462 (‘Woolmington’).

109

actus reus.298

Based on the minimal amount of proof adduced, the culpability of the accused is

presumed and the burdento establish absence of mens rea is then shifted to the accused.299

The

burden upon the accused in such cases, also known as the persuasive burden, is ultimate or

legal because failure to discharge it will result in the conviction of the accused.300

Therefore, unlike in a reverse evidential burden, where the accused only has to raise

reasonable doubt as to his guilt while the legal burden continues to persist on the prosecution,

in a reverse persuasive burden, the role of the prosecution ends once the burden shifts to the

accused.301

In most reverse onus clauses, the standard of proof to be met by the accused is a

preponderance of probabilities standard.302

The failure to meet this standard results in his

conviction even if reasonable doubt as to his guilt exists whereas in an ordinary offence

carrying a reverse evidential burden, reasonable doubt as to the guilt of the accused results in

his acquittal.303

There are various policy motivations that have been advanced to justify reverse

burdens. The argument of public interest combined with the magnitude of the evil sought to

be suppressed is the most common policy rationale advanced. As a result, the presumption of

innocence has been watered down on the pretext of public interest and speedy justice,

therefore justifying the inclusion of reverse onus clauses in socio-economic legislation.304

The

recommendations of the 47th Report of the Law Commission, 1972 suggest that since

offences relating to narcotics, corruption and food adulteration threaten the ‘health or

material welfare of the community as a whole’, special efforts are necessary for their

298

Byron M. Sheldrick, Shifting Burdens and Required Inferences: The Constitutionality of Reverse Onus

Clauses, 44(2) U. Toronto Fac. L. Rev. 179, 180 (1986). 299

Victor Tadros& Stephen Tierney, The Presumption of Innocence and the Human Rights Act, 67(3) Mod. L.

Rev. 402 (2004). 300

See generally State of Tamil Nadu v. A. VaidyanathaIyer, AIR 1958 SC 61 (discussing the concept of

mandatory presumptions creating reverse burdens). 301



While the standard of proof employed in most reverse onus clauses is one of preponderance/ balance of

probabilities, certain statutes prescribe the standard of proof beyond reasonable doubt such as the Narcotic

Drugs and Psychotropic Substances Act, 1985, the Essential Commodities Act, 1955 and the Wealth Tax Act,

1957. 303

Ibid. 304

Some statutory provisions employing reverse onus clauses in India are- the Food Adulteration Act, 1954,

§10(7-B), the Essential Commodities Act, 1955, §10C, the Customs Act, 1962, §§123, 138A and 139, the

Foreign Exchange Management Act, 1999, §39, the Narcotic Drugs and Psychotropic Substances Act, 1985, §§

35, 54 and 66, the Wealth Tax Act, 1957, §35-O and the Prevention of Corruption Act, 1988, §20.

110

enforcement.305

The Commission further emphasised that the injury to society was greater in

certain offences against public welfare in comparison to crimes having an identifiable victim,

such as murder.306

It was felt, therefore, that conformity with the traditional standard of proof

impeded the State’s efforts to prove the mental element that “undoubtedly exists” in such

offences, preventing the State from effectively addressing and regulating escalating instances

of such crimes.307

Reverse onus burdens are not confined to socio-economic offences and had

subsequently been incorporated into the Indian Penal Code, 1860, for the offences of rape and

dowry death.308

However, a closer look and analysis shows that it is not clear from the

wordings with the recent amendments if the burden of proof shifts beyond reasonable doubt

or is just a preponderance of probabilities standard analysis of the specific statutory

provisions utilising reverse onus clauses or beyond reasonable doubt as the researcher

suggests. Further, this reverse onus clause with regard to the shift in burden of proof should

be extended to all sexual offences.

305

Law Commission Of India, 47th Report- The Trial and Punishment of Social and Economic Offences 2, 4

(1972) (highlighting, inter alia, that avaricious or rapacious motive of the criminal, non-emotional background

of the crime, fraud as the mode of operation, etc.). 306



Law Commission Of India, 47th Report- The Trial and Punishment of Social and Economic Offences 2, 4

(1972) (highlighting, inter alia, that avaricious or rapacious motive of the criminal, non-emotional background

of the crime, fraud as the mode of operation, etc.). 308

Indian Penal Code, 1860, §114A (Earlier: Presumption as to rape) and §113B (Presumption as to dowry

death) (introduced on the recommendations of the 84th and 91st Law Commission Reports respectively).

111

4.7 NIRBHAYA CASE STUDY AND JUVENILE JUSTICE

(CARE AND PROTECTION OF CHILDREN) ACT, 2015

4.7.1 INTRODUCTION

The Juvenile Justice (Care and Protection of Children) Bill, 2014 (the “Bill”) was

introduced in August 2014 which has been passed by both Lok Sabha and Rajya Sabha. The

Bill has now gotten President’s assent, would constitute a valid and binding law and would

replace the Juvenile Justice (Care and Protection of Children) Act, 2000 (the “Juvenile Justice

Act”). The changing trend of juvenile delinquency had compelled the Government to review

the existing juvenile legislation as several studies have shown how juveniles are indulging in

serious crimes knowing that they’d be treated with leniency and have much less severe

punishments for offences committed by them. The main reason, however, was the protest

112

against juvenile laws throughout the country against the release of the minor convict in the

Nirbhaya case. Apart from that, the existing law failed in many cases to provide for the care

and protection that the children needed from the state authorities.309

4.7.2 BACKDROP

The gang-rape and fatal assault of a 23-year-old girl that occurred on December 16,

2012, in the heart of the Capital shook the whole country. Six men raped and brutally

assaulted the girl and beat up her male friend accompanying her in a bus in South Delhi. One

of the six convicts turned out to be a minor only with a margin of few months. The Indian law

requires a minor if accused of committing an offence, to be tried under the Juvenile Justice

Act in a Juvenile Court unlike the other 5 accused who have completed 18 years of age. In

July 2013, a Public Interest Litigation was filed in the Supreme Court of India for the trial of

the minor accused along with the other 5 accused, considering the gravity of the offence. But,

the Supreme Court, in keeping with the existing law of the country, allowed the Juvenile

Court to try the matter and the convict was sentenced to a 3 year term in a Special Home on

August 31, 2013, under the provisions of Section 15(1)(g) of the Juvenile Justice Act. The

whole country protested this lenient treatment of the convict and a huge portion of the

population demanded reform and criticized the sentence, including the family members of the

deceased victim. Finally in July 2014, the Ministry of Women and Child Development

announced the proposed Bill which has been drafted in order to have a deterrent effect on the

juvenile delinquents of 16-18 years of age and to provide better care and protection to the

children who are in dire need of such protection.310

Release of Nirbhaya Case Convict & the Concept of Ex-post Facto Law: The

scheduled release of the minor convict in the Nirbhaya case on December 20, 2015, after

completion of 3 years from the date of his detention, was criticized by a large number of

people and activists. Even the family members of the victim criticized the release and

expressed their helplessness in the matter. The Delhi Commission for Women had filed a

Special Leave Petition in the High Court of Delhi to stop the release but the High Court on

309

“JUVENILE JUSTICE ACT, 2015: IN LIGHT OF NIRBHAYA CASE”,

http://www.legalsalah.com/article_details.php?aid=67, as last visited on 4/6/ 2016. 310


http://www.legalsalah.com/article_details.php?aid=67, as last visited on 4/6/ 2016.

http://www.legalsalah.com/article_details.php?aid=67


113

December 18, 2015, declared that it would not interfere in this matter as the present law does

not allow it to stop the release. The protest against it is due to the attachment of the sentiment

of the general public towards this case, in particular. However, any interference with this

scheduled release would have posed an even greater threat than releasing him into the

society. The Indian Constitution gives protection against an ex-post facto law. The concept of

ex-post facto law was also included in the Universal Declaration of Human Rights, 1948.

This protection is one of those basic rights which a human being should enjoy in order to live

a free and sustainable life in the society.311

The Courts are the temple of law and they cannot arbitrarily deviate from any existing

provisions of a statute on a case to case basis. The Judiciary cannot become the lawmaker in

Indian Constitution and the provisions of any existing law override any opinion as long as the

provisions are in line with the Constitution. The supremacy of the Constitution and law over

any human being is the fundamental principle of this country and if the release of the minor

convict was stopped, it would have been a breach of this fundamental principle. In light of the

above, it can be said that even though equity would otherwise suggest, holding the law at the

highest position was the only justifiable option available to the Indian Judiciary.312

4.7.3 JUVENILE IN CONFLICT WITH LAW AND THE ACT

The Juvenile Justice Act deals with juveniles who are in conflict with law and

children who are in need of care and protection. A juvenile is defined to be a person who has

not attained the age of 18 years. The minimum age of a juvenile, who can be charged for

committing an offence is 7 years, in accordance with the provision of Section 82 of the Indian

Penal Code, 1860 (“IPC”). The Bill has brought significant changes in the treatment of

juveniles in conflict with the law. A juvenile in conflict with law is defined under the

Juvenile Justice Act as a juvenile who is alleged to have committed an offence. The salient

features of the Act regarding juveniles in conflict with law are discussed below, which are

also relevant with respect to the instant research undertaken313

:

311

Ibid. 312

Ibid. 313




114

The Act categorizes offences in three ways: 1 )Heinous offences, which attract a

minimum punishment of 7 years of imprisonment under the IPC or any other law in

force 2) Serious offences, attracting punishment ranging from 3 to 7 years 3)Petty

offences, punishable by less than 3 years of imprisonment.

A board naming the Juvenile Justice Board (“Board”) shall be constituted in every

district, which would include a Metropolitan or Judicial Magistrate and two social

workers (including at least one woman) for dealing with the juveniles in conflict with

the law.

A juvenile in conflict with law can be ordered to spend a maximum of 3 years in a

Special Home or such other institution fit for this purpose.

A juvenile, within the age-group of 16-18 years may be tried as an adult for

committing any heinous offence, in certain cases, irrespective of the date of

apprehension. Whereas, such a juvenile may be tried as an adult in case of committing

any serious offence only if he is apprehended after the age of 21 years, subject to the

prescribed conditions. However, in no circumstance, a juvenile can be given life

imprisonment without the possibility of release or death penalty for committing any

offence.

Provisions have also been made for determining the physical and mental capacity of

juveniles within the 16-18 years age group for determining whether they should be

tried as an adult for committing any heinous crime. The Board shall carry on a

preliminary inquiry to determine the apprehension in the juvenile of the consequences

of the offence and pass order to either go through counselling or perform community

services, or to be kept at an observation home, or to be sent to a Children’s Court for

the purpose of deciding whether such juvenile should be tried as an adult.

A Sessions Court, notified under the Commissions for Protection of Child Rights Act,

2005, shall serve the purpose of Children’s Court and shall decide whether a person

so recommended by the Board should be tried as an adult or not.

115


The Act is criticized for the lack of transparency of the age determination system and

the basis of the Bill which is believed to be misleading. Under this new legislation, a

preliminary enquiry will be conducted by the Boards to determine whether a juvenile

offender is to be sent for rehabilitation or to be tried as an adult. Section 19(3) says

that the enquiry will be assisted by experienced by psychologists, psycho- social

workers and other experts. The provision may affect the presumption of innocence

and lead to disproportionate procedure and arbitrariness under the Constitution.314

The UN convention or Beijing Rules 1985 states that age of juvenile to apply rules

can be b/w 7-18 years. So there is no binding convention that age of juvenile shall be

18 yrs only.315

The countries like USA, UK has already taken steps to amend their laws. In USA or

UK, if any juvenile committed heinous crime (rape, murder etc.) or a juvenile is

indulged with adult in any heinous crime than trial will be held in Adult court rather

than in Juvenile court like India.

The researcher further suggests that for both heinous316

as well as serious offences317

which constitute sexual offences of any sort the juveniles should be treated as adults.

This is very essential as if a person is ready to commit offences having consequences

of such gravity like creating MMS like it was seen in the D.P.S. R.K. Puram case few

years back, the children need to be treated as adults and face consequences for their

doing.

A board naming the Juvenile Justice Board (“Board”) shall be constituted in every

district, which would include a Metropolitan or Judicial Magistrate and two social

314



315

“Critical Analysis of Juvenile Justice Act”, http://www.omabc.com/national/indian-laws/strategic-affairs/jj-

act/critical-analysis-juvenile-justice-act/, Posted by Mahesh Arora on Jan 23, 2014 in Juvenile Justice Act, as

last visited on 4/6/2016. 316

For which the juvenile maybe treated as an adult already under Section 16(1) of the JJ Act, if he is above 16

years of age. 317

If the juvenile was between 16- 18 years of age but he is apprehended at 21 years. The provision undoubtedly

violates Article 20(1) of the Constitution, as it states that a person cannot be subjected to a penalty what would

have been applicable to him under a law in force at that time.


http://www.omabc.com/national/indian-laws/strategic-affairs/jj-act/critical-analysis-juvenile-justice-act/


http://www.omabc.com/author/mahesharora0812/

http://www.omabc.com/national/indian-laws/strategic-affairs/jj-act/

116

workers (including at least one woman) for dealing with the juveniles in conflict with

the law under the Act. For this provision to work it will need proper implementation

and timely regulation.

Rehabilitation of Juvenile – concept of rehabilitation is also under major threat as

numbers of special homes are far less than total number of convict juveniles and

conditions at established homes are really severe as per standards or requirements of

rehabilitation.318

There are no special provisions for separate special homes for boys and girls, totally

depend on discretion of state.319

The minor in special if attained age of 18 yrs then can’t be placed in special home any

more, also can’t be placed with adult prisoners. The state shall arrange special facility

to place accused but no special provision, this can lead to harassment of juvenile and

purpose of this act shall be in jeopardy.320

The Act needs to be supported with proper and illustrative rules and regulations in

order to implement the provisions in a manner which would not only be the deterrent

but also serve the main purpose of any juvenile legislation – to provide them with a

chance of leading a better life and the care and protection they need.

318









last visited on 4/6/2016.













117

CHAPTER V

SENTENCING GUIDELINES

5.1 INTRODUCTION321

There can be 2 approaches to sentencing- retributive or reformative.322

The retributive

approach is criticised from time to time by various scholars. According to them in such a

system the criminal serves as a ‘scapegoat’. Though we boast that we are moving towards

more civilized society our society at times exhibit its Stone Age rudiments. In case of report

of a heinous crime of larger social dimension, organizations, groups of people and media

pressurise the community of lawyers to persuade them not to accept the brief of such

321

Mahendra K. Sharam, Foreword by Hon’ble Chief Justice A.K. Mathur, “Minimum Sentencing For Offences

in India Law and Policy”, ed. (1) 1996, pp. 3-79. 322

Andrew Ashworth, “Sentencing and Criminal Justice”, ed. (5) 2010, pp. 71- 103.

118

criminal. Thus the pressure group in the society even deny the basic and fundamental right of

an individual to defend him. As such retribution does not, in fact, serve the purpose of

vengeance but it becomes an outlet for antisocial aggressiveness. According to Prof.

Sutherland, ‘in punishing criminals society expresses the same urge which in expressed by

the criminal in committing the crime’.

There are two aspects in reformative theory: (a) reform through punishment and (5)

reform as concomitant of punishment. The idea of rehabilitation is to return the offender to

society. It has been recognized that many criminals who are emotionally disturbed or product

of socio-economic environment, require thoughtful, individual and positive treatment to

Sentencing - Modern approach.

In matter of punishment for offence committed by a person, there are many

approaches to the problem. On the commission of the crime, three types of reactions many

generate: the traditional reaction of universal nature which is treated as punitive approach. It

regards the criminal as a notoriously dangerous person who must be inflicted severe

punishment to protect the society from criminal assaults. The other approach is therapeutic

approach. It regards the criminal as a sick person requiring treatment. While the third is the

preventive approach which seeks to eliminate those conditions from society which were

responsible for the crime causation.

Under the punitive approach, the rationalization of punishment is based upon

retributive and utilitarian theories. Deterrent theory which is also part of punitive approach

proceeds on the basis that the punishment should act as a deterrent not only to the offender

but also to others in the community.

The therapeutic approach aims at curing the criminal tendencies which were the

product of a psychological disease. There may be many factors, including family problems.

Therapeutic approach has been treated as an effective method of punishment which not only

satisfies the requirements of law that a criminal should be punished and the punishment

prescribed must be meted out by him, but also reforms the criminal through various

processes, the most fundamental of which is that in spite of having committed a crime, may

be heinous in nature, he should be treated as a human being entitled to all the basic human

rights, human dignity and human sympathy. Under this theory the Supreme Court of India in

a stream of decisions such as, (1) Sunil Batra v/s Delhi Administration and AIR 1980 SC

1579 (2) Charles Shobharaj v/s Central Jail, Tih (3) FransisCoarlie v/s Administrator De,

projected the need for prison reforms, the need to acknowledge the vital fact that the prisoner,

119

after being lodged in jail, does not lose his fundamental right and that he must be treated with

compassion and sympathy.

In some states in the U.S.A. emphasis was laid on psychotherapeutic treatment of the

offender while he was under detention. For that purpose, even psychopath sexual offender

laws have been enacted in certain states in the U.S.A. These laws treat the sex offenders as

neurotic persons and psychotherapy treatment is given to them during the period of their

detention which may in some cases, be an indefinite period, in the sense that they would not

be released till they are cured.

In India, statutory provision for psychotherapy treatment during the period of sentence

in jail is not available, but reformist activities are systematically held at many places with the

intention of treating the offender psychologically so that he may not repeat the offence in

future, and may feel repentant. In Fulsing vs State of Harayana323

the Supreme Court

observed that sentencing efficacy in case of lust loaded criminality cannot be simplistically

assumed by award of long incarceration, for often that remedy aggravates the malady. Hyper

sexed Homo sapiens cannot be rehabilitated by humiliating or harsh treatment. In this case

Mr. Justice V.R. Krishna Iyer gave correctional course through meditational therapy and

other measures hoping that the erotic aberrations of the offender may wither away

particularly when the offender had a reasonable prospect of shaping into a balanced person.

But this theory is not followed in the later decisions by the Apex Court as it was found that in

spite of devices having been employed and adopted within Jail premises so as to reform

offenders, there was negligible improvement in the commission of crime, crime instead of

declining, had increased and today, it has assumed dangerous proportion. While one person is

reformed and moves out of jail another offender is born. The apex court in Jaikumar vs

State of M.P.324

reminded that law courts exist for the society and ought to rise up to the

occasion to do the needful and act in a manner so as to sub serve the basic requirement of

society. The Law Courts have been consistent in the approach that a reasonable proportion

has to be maintained between the seriousness of the crime and punishment. True it is that

sentences disproportionately severe should not be passed but that does not give option to the

courts to award sentences manifestly inadequate since inadequate sentences would fail to

323

(1979) 4 SCC 413.

324(1999) 5 SCC 1.

120

produce a deterrent effect on the society at large. Though undue harshness is not required but

inadequate punishment may lead to sufferance of community at large.325

5.2 SENTENCING: RELEVANT PROVISIONS – PRINCIPLES AND

PROCEDURE326

The prescription of punishment in each penal section is only the measure prescribed

by law for dealing with offender who is proved to have committed that crime. But

determination of right measure of punishment is of a great difficulty. Punishment is an

authorization by the Legislature of employment of criminal sanctions while sentencing means

application by the Judiciary of a criminal sanctionauthorized. Magistrate is called upon to

exercise wide discretion which involves an onerous, delicate and complex duty. Our ancient

sages have prescribed best guideline - It should be decided according to law without anger or

greed. According to Justice Cardozo, “a judge even when he is free is still not wholly free, he

is not to innovate at pleasure; he is not a knight, errant roaming at will in pursuit of his own

ideal of beauty and goodness; he is to draw inspiration from consecrated principles. Where a

judge’s values and those prevailing in society clash, the judge must in theory, give way to the

“objective right”.327

In case of an offender other that a Juvenile, a magistrate, under section 29 of Cr.P.C.,

may pass a sentence of imprisonment for a term not exceeding 3 years or fine not exceeding

ten thousand rupees(fifty thousand as per Mah. State amendment) or of both. Here it is

important to note that under many categories of offences punishment prescribed is more than

the above prescribed limit, however while passing sentence in such cases magistrate cannot

exceed the sentencing limits but he has an option under S. 325 Cr.P.C. to forward accused to

the Chief Judicial Magistrate. A sentence of imprisonment in default, as per S.30 Cr.P.C.,

should not be in excess of power u/s 29 Cr.P.C. and should not exceed 1/4th of the term of

imprisonment which the magistrate is empowered to inflict. However, it may be in addition to

substantive sentence of imprisonment for the maximum term awarded by the magistrate

u/s29. In case of conviction of several offences at one trial, as per S.31 Cr.P.C., the court

325

Sentencing Policy, Victimology and compensation to the

victims;http://mja.gov.in/Site/Upload/GR/Workshop%20Paper_sentencing%20victimology%20-

%20uday%20b%20shukla.pdf., as last visited on 19/05/2016. 326

Peter Hungerford- Welch, “Criminal Procedure and Sentencing”, ed. (4) 2014. 327

Ibid.



121

may pass separate sentences, subject to the provisions of S.71 of the I.P.C. The aggregate

punishment and the length of the period of imprisonment must not exceed the limit prescribed

by S.71 I.P.C. S. 71 I.P.C. provides (1) that where an offence is made up of parts each of

which parts is itself an offence the offender can be punished only for one of such offences.

(2) That where an offence falls under two or more definitions of offences or where several

acts, each of which is a offence, constitute when combined a different offence, then the

punishment could be awarded only for any one of such offences. These are rules of

substantive law whereas S.31 Cr.P.C. is a procedural law.328

In case of several sentences to run concurrently it is not necessary to send offender for

trial before higher court only for the reason that aggregate punishment for several offences is

in excess of punishment which the magistrate is competent to inflict on conviction of single

offence. However, proviso to S.31 Cr.P.C. Provides that (a) in no case shall such person be

sentenced to imprisonment for a longer period that 14 years (b) the aggregate punishment

shall not exceed twice the amount of punishment which the court is competent to inflict for

single offence.329

Further, in the recent judgment the Bombay High Court while explaining s.427 CrPC

observed:330

“A plain reading of Section 427 makes it clear that ordinarily subsequent sentence of

imprisonment commences at the expiration of the imprisonment, not being life imprisonment,

to which a person has been previously sentenced unless the Court directs that the subsequent

sentence shall run concurrently with such previous sentence. It is obvious that sub-section (1)

of Section 427 confers power upon the Court to order concurrent running of subsequent

sentence with the previous sentence of imprisonment for a term and this power being

discretionary in nature, has to be exercised prudently in appropriate cases. So, when the

power exists, it becomes a part of public duty of the Court to apply its mind to the question of

exercise of the power one way or the other.

328



%20uday%20b%20shukla.pdf., as last visited on 20/05/2016.

329Ibid.

330(wp1437-13 C vs 2 decided on 22 July, 2013)



122

Having considered the relevant substantive and procedural aspects of sentencing it is

necessary to see as to how a judge or magistrate is expected to apply this provision. S.235(2)

Cr.P.C. mandates that accused must be heard on the question of sentence. This provision is,

in fact, a reflection of the new trend in penology. At such a stage judge is expected to

consider question of sentencing in light of various factors such as prior criminal record, age,

employment, educational background, home life, sobriety of the offender so also the factors

such as social adjustment, emotional and mental condition and prospect of his returning to

normal path. In “Shivmohansing Vs State of Delhi331

, the Supreme Court (Mr. Justice .V.R.

Krishna Iyer) observed, “Hearing is obligatory at the sentencing stage. The humanist

principle of individualizing punishment to suit the person and his circumstances is best

served by hearing the culprit even on the nature and quantum of the penalty to be

imposed.”332

In case of question of liability to enhanced punishment in consequence of previous

conviction S.236 Cr.P.C. comes in operation for sessions trial and S.248(3) in case of trial

before magistrate. S.248(3) Comes into operation when previous conviction is charged u/s

211 (5) Cr.P.C. and the accused does not admit previous conviction.333

S.354(3) Provides that when the conviction is for an offence punishable with death or,

in the alternative, with imprisonment for life or imprisonment for a term of years, the

judgment shall state, the reasons for the sentence awarded, and in the case of sentence of

death, the special reasons for such sentence. As per S.354(4) when the conviction is for an

offence punishable with imprisonment for a term of one year or more, but a court imposes a

sentence of imprisonment for a term of less than three months, it shall record its reasons for

awarding such sentence, unless the sentence is one of imprisonment till rising of the court or

unless the case was tried summarily.334

A Jail term should normally be enough to wipe out the stain of guilt. But the

ignobility associated with Jail and social stigma attached to it often renders the remedy worse

than the disease and the very purpose of sentence gets defeated. The ancient Indian Wisdom

331

AIR 1977 SC 949 332



%20uday%20b%20shukla.pdf, as last visited on 22/05/2016. 333

Ibid. 334

Ibid.



123

behind sentence was noble. It believed that soul of a convict becomes pure once he undergoes

a sentence.335

Crimes are not rooted always in the criminal tendencies and their roots may lie in

psychological factors induced by hunger, want and poverty. The law also believes that ‘if all

saints have past all sinners must have future’.336

Section 360 of the Criminal Procedure Code and the Probation of Offenders Act

recognize the importance of environmental influence in commission of crime and prescribe

remedy whereby offenders can be reformed and rehabilitated in the society. By virtue of S.8

(1) of the General Clauses Act in States where provisions of the probation of offenders Act

have been brought in force the provisions of S.360 Cr.P.C. need not be made applicable. S.3,

4 and 6 are the backbone of the Probation of offenders Act. S.3 empowers court to release

after due admonition an offender found to be guilty of having committed offences punishable

u/s 379, 380, 381, 404 and 420 I.P. Code or any other offence punishable with imprisonment

for not more than two years or with fine or both. The term previous conviction includes

previous order u/s 4of the Act. Sec. 4 authorises a court to release an offender on probation of

good conduct on his entering into a bond with or without surety to appear and receive

sentence when called upon during such period not exceeding 3 years and meantime keep the

peace and be of good behaviour, if the offence committed by him is not punishable with

death or imprisonment for life. The factors relevant u/s 4 are (1) circumstances of the case (2)

nature of offence (3) character of offender. S.6 prohibits court from sentencing an offender

under 21 years of age to imprisonment unless satisfied that it would not be desirable to deal

with him u/s 3 or S.4. The court has to record reasons in case where it passes any sentence of

imprisonment on an offender below 21 years of Age. S.6(2) makes it obligatory for a court to

call for report of probation officer and consider the same as well as any other information

available to it relating to character and physical and mental condition of the offender.337

Here it is relevant to consider the provisions of Juvenile Justice Act, 1986 in general

and S.21 and 22 in particular which provide for order which may be and which may not be

passed against juvenile delinquent. Similar provision with more child friendly approach find

335

Ibid. 336

Ibid. 337



%20uday%20b%20shukla.pdf, as last visited on 22/05/2016.



124

place in S.15 & 16 of The Juvenile Justice (care and protection of children) Act 2000. The

speciality of the New Act is reflected in the change of approach towards the problem which is

reflected in the terminology used ‘juvenile in conflict with law’ rather than the old ‘Juvenile

delinquent’.338

S.361 Cr.P.C. provides that when the court could have dealt with S.360 Cr.P.C. or the

provisions of The Probation of offenders Act or any Act for the time being in force for

treatment training and rehabilitation of youthful offenders but has not done so, it shall record

special reasons for not having done so. This section was incorporated in the Cr.P.C. 1973 for

the first time in order to avoid rendering such offenders hardened criminals by keeping them

along with other criminals in regular prison.339

The Indian Penal Code sanctions either a term of imprisonment or fine or both and it

is left to the discretion of the court whether to inflict a sentence of imprisonment or a fine or

both. If the law permits a sentence of fine as an alternative there is no need of sentence of

imprisonment unless the gravity of the offence or the antecedent of the offender demand it.

While deciding the question of quantum of sentence of fine the court should always bear in

mind that there should be some sort of nexus between the amount of fine imposed and the

potentiality of the accused to pay it. Fine is the only punishment in following cases (i)

Unlimited – S. 155, 156, 171 G IPC (2) Limit to Rs. 1000/- - S. 154, 294-A IPC (3) Limit to

Rs. 500/- - S. 137, 278, 171H, 171-I IPC (4) Limit to Rs. 200/- - S. 263-A, 283, 290 IPC.

Where no sum is expressed, S. 63 IPC expects that the fine imposed shall not be excessive.340

The 42nd Law commission recommended new forms of punishment such as341

- (1)

Community service (2) Disqualification from holding office (3) Order of payment of

compensation (4) Public censure.

338

Ibid. 339

Ibid. 340

Ibid. 341



%20uday%20b%20shukla.pdf

125

5.3 SENTENCING: DIFFERENT APPROACHES AND EXPECTATIONS

The court is expected to strike balance between too harsh and too lenient view while

awarding sentence. Through crime rate has increased abnormally as compared to it actual

sentencing his decreased to a considerable extent. Judicial decisions tilting towards benefit of

doubt many time invite criticism from the society. The apex court responding to this

criticism observed in 'S.C. Bahri vs State of Bihar342

:

“Crime and punishment have a moral dimension343

of considerable complexity that must

guide sentencing in any enlightened society. The criticism of Judicial sentencing has raised

its head in various forms, that it is inequitable as evidenced by desperate sentences, that it is

ineffective; or that it is unfair being either inadequate or in some cases harsh. It has been

often expressed that there is a considerable disparity in sentencing an accused found to be

guilty for same offence. This sentencing variation is bound to reflect because of the varying

degrees of seriousness in the offences and/ or verifying characteristics of the offender

himself. Moreover, since no two offences or offenders can be identical the charge or label of

variation as disparity in sentencing necessarily involves a value based judgment.”

In Rajeev vs. State of Rajasthan344

the Supreme Court cautioned:

“The punishment to be awarded for a crime must not be irrelevant but it should conform to

and be consistent with the atrocity and brutality with which crime is perpetrated, the enormity

of crime warranting public abhorrence and it should respond to society's cry for justice

against criminal”.

Sentencing is a neglected aspect as compared to the aspect of finding of guilt.

NegelWalkar has put this reality in apt words saying, 'if the criminal law as a whole is

Cinderella of jurisprudence then the law of sentencing is Cinderella's illegitimate baby'.

Sentencing generally passes a complex problem which requires working compromise

between reformative, deterrent and retributive views about punishment. Still a broad object of

punishment should not be forgotten that it is necessary to impress upon the guilty person that

342

AIR 1994 SC 2420 343

Ralph Henham, “Sentencing and the Legitimacy of Trial Justice”, ed. (1) 2012, p. 96. 344

AIR 1996 SC 787

126

crime does not pay and that sentence is necessary for his individual interest as well as in the

interest of society.345

Mr. Justice .V.R. Krishna Iyer in his address to National Correctional Conference held

in 1971 emphasised that the orthodox and ignorant approach of the judiciary must be

changed. He further emphasized the need for national training or refresher programme for the

criminal judiciary.346

The 47th report of the Law commission of India has identified the standards of

sentencing, “7.44 – A proper sentence is a composite of many factors, including the nature of

the offence, the circumstances – extenuating or aggravating of the offence, the prior criminal

record, if any, of the offender, the age of the offender, the professional or social record of the

offender, the background of the offender with reference to education, home life, sobriety and

social adjustment, the emotional and mental condition of the offender, the prospect for

rehabilitation of the offender, the possibility of a return of offender to normal life, the

possibility of treatment or a training of the offender, the possibility that the sentence many

serve as deterrent to crime by this offender or by others and the present community need.347

5.4 SENTENCING: APPROACH TOWARDS DIFFERENT TYPES OF

OFFENCES AND NATURE OF PUNISHMENT

Sentencing requires a deep thought because while sentencing there cannot be any

precedent as each case is unique in its features Basic factors which constitute circumstances

of a case may be:348

(1) Gravity of the offence (2) Degree of participation of the convict in

the offence (3) His subsequent attitude towards the case. For the purpose of sentencing

offenders can be classified as:349

(1) The casual (2) The habitual (3) The professional.

345

Sentencing Policy, Victimology and compensation to the victims;

http://mja.gov.in/Site/Upload/GR/Workshop%20Paper_sentencing%20victimology%20-

%20uday%20b%20shukla.pdf 346

Ibid. 347

Ibid. 348

Ibid. 349



%20uday%20b%20shukla.pdf

127

In cases of Offences against Women and Children sexual in nature350

: Our society in

its hypocrisy puts women on higher pedestal. But in practice it adopts a very different

approach. It therefore becomes the bounden duty of the judiciary not to extend benefit of

probation provision to the offender where honour and dignity of a woman is concerned. The

Law commission of India in its 172nd report has recommended incorporation of new

provision in the criminal laws to provide for stringent punishment for the offence of rape and

sexual offences of abuse of children. The Supreme Court in two decisions (i) Bodhisattva

Gautam vs SubharaChakrobarty351

& (ii) T.K. Gopal alias Gopi vs State of

Karnataka352

, has emphasized the victim oriented approach to be considered while

considering the question of sentence.353

5.5 SENTENCING DISCRETION354

In Machhi Sing vs State of Punjab355

, the apex court made an attempt to formulate

as to what constitutes a 'rarest of rare' case. The apex court laid down specific circumstances

under which 'the collective conscience' of the community may receive shock so as to

constitute a rarest of rare case. The circumstances are (1) manner of commission of murder

(2) motive for commission of murder (3) magnitude of crime (4) personality of victim. The

apex court after formulating the modalities stated that a balance sheet of aggravating and

mitigating circumstances has to be drawn up and in doing so the mitigating circumstances

have to be accorded full weightage and a just balance has to be struck between the

aggravating and mitigating circumstances before the option is exercised.356

While considering the question of laying down of standards and norms restricting the

area of imposition of death penalty the apex court in 'Mohammad Chaman vs State (NCT

Delhi) (2001) 2 Supreme Court case 28 observed, “by laying down standards it is meant that

350

Mahendra K. Sharam, Foreword by Hon’ble Chief Justice A.K. Mathur, “Minimum Sentencing For Offences

in India Law and Policy”, ed. (1) 1996, pp. 129-258. 351

(1996) 1 SCC 490 352

(2000) 6 SCC 168 353




Andrew von Hirsch, Andrew Ashworth and Julian Roberts, “Principled Sentencing Readings on Theory and

Policy”, ed. (1) 2009, p. 229- 294. 355

AIR 1983 SC 957. 356

Ibid.

128

murder should be categorized beforehand according to the degree of culpability and all the

aggravating and rigidly enumerated so as to exclude all free play of discretion, the argument

merits rejection such standardization is well high impossible firstly, degree of culpability

cannot be measured in each case, secondly, criminal cases cannot be categorized there being

infinite unpredictable and unforeseen variations; thirdly on such categorization the sentencing

process will cease to be judicial and fourthly, such standardization of sentencing discretion is

a policy matter belonging to the legislature beyond courts function.” In this judgment the

apex court even referred its own earlier decision in Gurubaksha Sing vs State of Punjab

AIR 1980 SC 1632.357

Sections 235, 248, 325, 360 and 361 Cr.P.C. deal with the power of the Court relating

to sentencing. However, CrPC does not provide any guidelines for sentencing and gives an

absolute discretion to the Judge to award any sentence within given parameters.358

The Committee on Reforms of the Criminal Justice System, 2003 established by the

Government of India to recommend changes in the Criminal Justice System in India, had

observed that the Judges were granted wide discretion in awarding the sentence within the

statutory limits. The Committee was also of the opinion that as there was no guidance in

selecting the most appropriate sentence in the given factual situation thereof, there was no

uniformity in awarding of sentence as the discretion was exercised according to the judgment

of every Judge. Thus, the Committee emphasised the need for having sentencing guidelines

to minimise uncertainty in awarding sentences. It recommended the appointment of a

statutory committee to lay down the sentencing guidelines.359

In USA, several States have introduced guidelines which indicate sentencing ranges

according to the type and seriousness of offence and criminal history/antecedents of the

offender. There is a permanent Sentencing Commission to monitor sentencing practice and an

appellate review is provided to determine the proprietary of departure from the guidelines. In

United Kingdom, Criminal Justice Act, 2003 provides the necessary guidelines on

Crl.Rev.P.No.338/2009 Page 46 of 112 sentencing. In India, the Government has not yet

evolved a sentencing policy and there is no legislation that provides guidelines in sentencing.

357




Ibid. 359

Ibid.

129

The only guidelines available to Trial Courts are through judgments of the High Court and

Supreme Court.360

In Soman v. State of Kerala361

, the Supreme Court laid down principles and

guidelines for determination of sentence. The relevant portion of the judgment is reproduced

hereunder:-

“Giving punishment to the wrongdoer is at the heart of the criminal justice delivery,

but in our country, it is the weakest part of the administration of criminal justice. There are no

legislative or judicially laid down guidelines to assist the trial court in meting out the just

punishment to the accused facing trial before it after he is held guilty of the charges.”

In State of Punjab v. PremSagar362

, this Court acknowledged as much and

observed as under -

“In our judicial system, we have not been able to develop legal principles as regards

sentencing. The superior courts except making observations with regard to the purportand

object for which punishment is imposed upon an offender, have not issued any guidelines.

Other developed countries have done so. At some quarters, serious concerns have been

expressed in this behalf. Some committees as for example Madhava Menon Committee and

Malimath Committee have advocated introduction of sentencing guidelines.”

Nonetheless, if one goes through the decisions of this Court carefully, it would appear

that this Court takes into account a combination of different factors while exercising

discretion in sentencing, that is proportionality, deterrence, rehabilitation etc. (See:

RamashrayaChakravarti v. State of Madhya Pradesh363

;Dhananjoy Chatterjee alias

Dhana v. State of W.B.364

;State of MadhyaPradesh v. Ghanshyam Singh365

;State of

Karnataka v. Puttaraja366

;Union of India v. Kuldeep Singh367

;ShaileshJasvantbhai v.

360

Ibid.

3612012 (12) SCALE 719.

362(2008) 7 SCC 550

363(1976) 1 SCC 281

364(1994) 2 SCC 220

365(2003) 8 SCC 13

366(2004) 1 SCC 475

367(2004) 2 SCC 590

130

State of Gujarat368

;Siddarama v. State of Karnataka369

;State of Madhya Pradesh v.

Babulal370

; Santosh Kumar SatishbhushanBariyar v. State of Maharashtra371

.372

In State of Uttar Pradesh v. Sanjay Kumar373

, the Supreme Court reiterated general

principles of sentencing reflecting the objective and need of a sentencing policy and the duty

of Courts while sentencing. The relevant portion of this judgment is reproduced

hereunder374

:-

“Sentencing policy is a way to guide judicial discretion in accomplishing particular

sentencing. Generally, two criteria, that is, the seriousness of the crime and the criminal

history of the accused, are used to prescribe punishment. By introducing more uniformity and

consistency into the sentencing process, the objective of the policy, is to make it easier to

predict sentencing outcomes. Sentencing policies are needed to address concerns in relation

to unfettered judicial discretion and lack of uniform and equal treatment of similarly situated

convicts. The principle of proportionality, as followed in various judgments of this Court,

prescribes that, the punishments should reflect the gravity of the offence and also the criminal

background of the convict. Thus, the graver the offence and the longer the criminal record,

the more severe is the punishment to be awarded. By laying emphasis on individualised

justice, and shaping the result of the crime to the circumstances of the offender and the needs

of the victim and community, restorative justice eschews uniformity of sentencing. Undue

sympathy to impose inadequate sentence would do more harm to the public system to

undermine the public confidence in the efficacy of law and society could not long endure

under serious threats.Ultimately, it becomes the duty of the courts to award proper sentence,

having regard to the nature of the offence and the manner in which it was executed or

committed, etc. The courts should impose a punishment befitting the crime so that the courts

are able to accurately reflect public abhorrence of the crime. It is the nature and gravity of the

crime, and not the criminal, which are germane for consideration of appropriate punishment

in a criminal trial. Imposition of sentence without considering its effect on social order in

368

(2006) 2 SCC 359 369

(2006) 10 SCC 673 370

(2008) 1 SCC 234 371

(2009) 6 SCC 498) 372




(2012) 8 SCC 537

374Ibid.

131

many cases may be in reality, a futile exercise. 23. The survival of an orderly society

demands the extinction of the life of a person who is proved to be a menace to social order

and security. Thus, the courts for the purpose of deciding just and appropriate sentence to be

awarded for an offence, have to delicately balance the aggravating and mitigating factors and

circumstances in which a crime has been committed, in a dispassionate manner. In the

absence of any foolproof formula which may provide a basis for reasonable criteria to

correctly assess various circumstances germane for the consideration of the gravity of the

crime, discretionary judgment, in relation to the facts of each case, is the only way in which

such judgment may be equitably distinguished. The Court has primarily dissected the

principles into two different compartments--one being the “aggravating circumstances” and,

the other being the “mitigating circumstance”. To balance the two is the primary duty of the

court. The principle of proportionality between the crime and the punishment is the principle

of just deserts. That serves as the foundation of every criminal sentence that is justifiable. In

other words, the “doctrine of proportionality”has valuable application to the sentencing

policy under the Indian criminal jurisprudence.”

5.6 RESEARCHER’S SUGGESTIONS

The researcher suggests chemical castration as a punishment to the offences of sexual assault

and rape offencespecially in case of brutality against children should be introduced.

As regressive as the term "castration" sounds, with its connotations of mutilation and

torture, there are countries where it has been made the penalty for sexual offenders,

especially those who sexually abuse and assault children. And these are not

authoritarian regimes, but developed nations such as the US, the UK, South Korea,

Germany, Denmark and Sweden, as well as Poland and Russia. Indonesia too is

contemplating a similar law for mandatory chemical castration in the wake of a spate

of sexual of sexual crimes against children, just as in India. The Catholic Church and

human rights groups in Indonesia have condemned the proposed punishment but its

supporters include President Joko Widodo.375

375

http://economictimes.indiatimes.com/news/politics-and-nation/why-chemical-castration-of-child-rapists-

molesters-is-a-solution-that-ignores-realities/articleshow/49610231.cms, as last visited on 22/05/2016.

http://economictimes.indiatimes.com/news/politics-and-nation/why-chemical-castration-of-child-rapists-molesters-is-a-solution-that-ignores-realities/articleshow/49610231.cms


132

India, too, considered the option of castration as a punishment for sexual offenders, in

an even more charged atmosphere. In December 2012, after the horrifying gangrape

and attack of a 23-year-old in Delhi, there were vociferous calls from the public to

castrate rapists, and the Justice Verma Committee set up to review the laws did indeed

address this. But the final report categorically rejected both mandatory chemical and

surgical castration, on the grounds that it was a violation of human rights and failed to

address underlying causes of sexual assault, such as power. The report also said more

research and consultation was needed to recommend voluntary chemical castration in

India.376

However, Blood curdling, horrific, sadistic, terrifying, shocking, cruel and brutal gang

rapes of toddlers in New Delhi, in October 2015, would definitely justify the Court to

suggest castration as an additional punishment for child abusers, especially child

rapists," Justice N Kirubakaran of the Madurai bench of the Madras High Court

pronounced recently in a case where a UK national was accused of sexually abusing a

boy, creating national headlines.377

The subsequent news reports might have omitted a few of the honourable judge's

adjectives quoted above but the sentiment was conveyed accurately enough: existing

laws were not enough, India must debate and discuss castrating those who sexually

abuse children so that it would act as a deterrent to others.378

Anticipating the protests that his statement would evoke, particularly on the grounds

that it would be a violation of human rights, Kirubakaran goes on to say that though

castration might sound barbaric, "barbaric crimes should definitely attract a barbaric

model of punishment."379

To which the researcher is in full agreement with.

376

http://economictimes.indiatimes.com/news/politics-and-nation/why-chemical-castration-of-child-rapists-

molesters-is-a-solution-that-ignores-realities/articleshow/49610231.cms, as last visited on 22/05/2016. 377

Ibid. 378

Ibid. 379

Ibid.



133

Another suggestion is to lay sentencing guidelines for the convenience of judges as to

decide the quantum of punishment as the punishments prescribed in certain sexual

offences have a wide gap in the inner and outer limits of prescribed punishments.

Here the “penal rehabilitation” or imprisonment is being referred to.

134

CHAPTER 6

OFFENDING IDENTITIES- VICTIMS AND OFFENDERS:

WHOSE REHABILITATION?

6.1 INTRODUCTION

The chapter discusses and raises the question as to whose identity is getting

offended?380

Whether the victim of the sexual offence is the abused or is the so called victim

trying to take advantage and harass the so- called offender with a false charge. Also, is it the

victim who needs to be rooted back in society after much humiliation and human rights

violation or the so- called offender who needs to be planted and settled to cope with the

stigma of being maybe a rapist at times in the society.

6.2 VICTIMOLOGY: VICTIM REHABILITATION

380

Kirsty Hudson, “Öffending Identities Sex offenders’ perspectives on their treatment and management”, ed.(1)

2005, p. 1.

135

6.2.1 INTRODUCTION TO VICTIMOLOGY381

Victims are unfortunately the forgotten people in the criminal justice delivery system.

Probably one of the best places to start examining the etiology of the victims of sexual assault

is the relationship between the victim and the offender.382

The criminal justice system tends to

think more of the rights of the offender than that of relief to the victims. The anxiety shown

to highlight the rights of the offender is not shown in enforcing law relating to compensation

which too has a social purpose to serve. The Court has to take into consideration the effect of

the offence on the victim's family even though human life cannot be restored, nor can its loss

be measured by the length of a prison sentence. No term of months or years imposed on the

offender can reconcile the family of a deceased victim to their loss, nor will it cure their

anguish but then monetary compensation will at least provide some solace.383

6.2.2 U.N. PRINCIPLES OF VICTIMOLOGY

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of

Power (UN General Assembly, 1985), provides the basic framework of principles which are

converted as victims’ rights by some of the developed countries.384

The international

standards expected of the countries in the treatment of victims by the CJS agencies at

different stages of the criminal process have been elaborately detailed in the UN Handbook

on Justice for Victims (United Nations Office for Drugs and Crimes, 1999, chapter III, pp.56-

76).385

The Basic Principles included in the UN Declaration for Victims are: 1. Access to

justice and fair treatment; 2. Restitution; 3. Compensation; and 4. Assistance.386

381

Ann Wolbert Burgess, Cheryl Regehr and Albert R. Roberts, “Victimology Theories and Applications”, ed.

(1) 2010, pp. 31-66. 382




%20uday%20b%20shukla.pdf., as last visted on 15/05/2016. 384

Harvey Wallace, Cliff Roberson, “Victimology Legal, Psychological, and Social Perspectives, ed. (3) 2011,

301. 385

Ibid. 386

Ibid.



136

6.2.3 DEFINITION OF VICTIM

Subsection (wa) has been inserted in Section 2 of the amended CrPCas below387

:

“(wa)‘victim’ means a person who has suffered any loss or injury caused by reason of the act

or omission for which the accused person has been charged and the expression ‘victim’

includes his or her guardian or legal heir”.

6.2.4 COMMISSION AND COMMITTEE REPORTS

The Law Commission, in its report in 1996, stated that,388

“The State should accept

the principle of providing assistance to victims out of its own funds, (i) in cases of acquittals;

or (ii) where the offender is not traceable, but the victim is identified; and (iii) also in cases

when the offence is proved”

The Justice V. S. Malimath Committee has made many recommendations of far-

reaching significance to improve the position of victims of crime in the CJS, including the

victim’s right to participate in cases and to adequate compensation. Some of the significant

recommendations include389

:

• The victim, and if he is dead, his or her legal representative, shall have the right to be

impleaded as a party in every criminal proceeding where the offence is punishable with seven

years’ imprisonment or more;

• In select cases, with the permission of the court, an approved voluntary organization shall

also have the right to implead in court proceedings;

• The victim has a right to be represented by an advocate and the same shall be provided at

the cost of the State if the victim cannot afford a lawyer;

• The victim’s right to participate in criminal trial shall include the right: to produce evidence;

to ask questions of the witnesses; to be informed of the status of investigation and to move

the court to issue directions for further investigation; to be heard on issues relating to bail and

387

Ibid. 388




Ibid.



137

withdrawal of prosecution; and to advance arguments after the submission of the prosecutor’s

arguments;

• The right to prefer an appeal against any adverse order of acquittal of the accused,

convicting for a lesser offence, imposing inadequate sentence, or granting inadequate

compensation;

• Legal services to victims may be extended to include psychiatric and medical help, interim

compensation, and protection against secondary victimization;

• Victim compensation is a State obligation in all serious crimes. This is to be organized in

separate legislation by Parliament. The draft bill on the subject submitted to Government in

1995 by the Indian Society of Victimology provides a tentative framework for consideration;

• The Victim Compensation Law will provide for the creation of a Victim Compensation

Fund to be administered possibly by the Legal Services Authority.

Article 21 of the Constitution guarantees ‘right to life’, which includes protection of

life and liberty of all members of the society. ‘Vigilantism’ as a phenomenon is on a rise in

our [Indian] society. This is dangerous and can pose serious threat to the Rule of Law and

peace in society. However, the desire for retribution leading to the victims taking ‘law in

their own hands’ can be effectively checked only where the victims perceive that the criminal

justice system will assure them justice and protection. The need to address cry of victims of

crime, for whom the Constitution in its Preamble holds out a guarantee for ‘justice’ is

paramount. The victims have right to get justice, to remedy the harm suffered as a result of

crime, as explained below.390

6.2.5 COMPENSATION AND CONSTITUTION

This right is different from and independent of the right to retribution391

,

responsibility of which has been assumed by the State in a society governed by Rule of Law.

But if the State fails in discharging this responsibility, the State must still provide a

mechanism to ensure that the victim’s right to be compensated for his injury is not ignored or

defeated. Right of access to justice under Article 39-A and principle of fair trial mandate right

390




Tom Daems, “Death of a Metaphor? Healing Victims and Restorative Justice”, Edited by Shlomo Giora

Shoham, PAUL Knepper and Martin Kett, “International Handbook of Victimology”, ed. (1) 2010, 491-510.



138

to legal aid to the victim of the crime. It also mandates protection to witnesses, counselling

and medical aid to the victims of the bereaved family and in appropriate cases, rehabilitation

measures including monetary compensation. It is a paradox that victim of a road accident

gets compensation under no fault theory, but the victim of crime does not get any

compensation, except in some cases where the accused is held guilty, which does not happen

in a large percentage of cases. In S. S. Ahluwalia vs. UOI392

, Hon’ble Supreme Court held

that in expanded meaning attributed to Article 21 of the Constitution, where the State fails to

protect the life of the people, it could not escape the liability to pay compensation to the

victims.Compensation for the violation of fundamental rights is given by way of penalizing

the State for violating the fundamental rights guaranteed by the Constitution of India and for

the breach of its public law duty.393

This compensation is in the nature of ‘exemplary

damages’ awarded against the wrongdoer for the breach of a public law duty. This is apart

from and in addition to compensation granted for the loss or injury under the law of torts. “It

is a weakness of our jurisprudence that the victims of the crime, and the distress of the

dependants of the prisoner, do not attract the attention of the law. Indeed, victim reparation is

still the vanishing point of our criminal law. This is a deficiency in the system which must be

rectified by the Legislature. We can only draw attention in this matter.”394

Thus, modern approach of victimology acknowledge that a crime victim has right to

be adequately compensated, rehabilitated and repaired irrespective of identification and

prosecution of offender and the payment of such compensation should be made by state.395

Justifications for Compensation: Various justifications for compensation have been used,

such as:

1. Benefit to the victims,

2. Symbolic social recognition for the victim’s suffering,

3. Deterrent effects on the offender as also the reformative effects on the offender as the

paying of compensation has an “intrinsic moral value of its own”.396

392

(2001) 4 SCC 452. 393

Juan Carlos Ochoa S., “The Rights of Victims in Criminal Justice Proceedings for Serious Human Rights

Violations”, ed.(1) 2013, pp. 23-25. 394

Justice Krishna Ayyar, 1980 [Source: "Rattan Singh vs. State of Punjab" AIR 1980 Supreme Court 84]. 395

William G. Doerner and Steven P. Lab, “Victimology”, ed. (1) 2012, p. 363. 396

S. Ravindra Bhat, J. Ms.X (substituted as per directions in para 26 of this Judgment) vs. State of Delhi NCT

& Another, W.P. (C) No. 2738/2006, Date of Judgment: 28th January, 2008, Delhi High Court, Available at:

http://lobis.nic.in/dhc/SRB/judgement/09-042008/SRB28012008CW27382006.pdf

139

Compensation has been incorporated in the Indian Justice system through the following:

1.)Scheme drafted by the NCW397

:

In India, pursuant to the Supreme Court directive in the Delhi Domestic Working Women’s

Forum case398

, the National Commission for Women drafted the Scheme for the

Rehabilitation for Victims of Rape, 2005. The scheme provided for the setting up of

Criminal Injuries and Rehabilitation Board at the District and State level and a National

Criminal Injuries and Rehabilitation Board. The scheme gives details about the constitution,

functions and the budgetary allocation of the Authorities constituted under it. It provides for

compensating rape victims, irrespective of whether the perpetrator has been brought to

justice. It provides for legal aid and other measures that will help such victims. However,

there is nothing suggestive of any further thinking on these issues, or executive will to take

the thought further.

SC in Bodhtswa case, 1996, recognized the right of the victim for compensation:

Court referred previous judgment of Delhi Domestic Working Women's Forum, case of 1994.

This decision recognises the right of the victim for compensation by providing that it shall be

awarded by the Court on conviction of the offender subject to the finalisation of Scheme by

the Central Government. If the Court trying an offence of rape has jurisdiction to award the

compensation at the final stage, there is no reason to deny to the Court the right to award

interim compensation which should also be provided in the Scheme. On the basis of

principles set out in the aforesaid decision in Delhi Domestic Working Women's Forum, the

jurisdiction to pay interim compensation shall be treated to be part of the overall jurisdiction

of the Courts trying theoffences of rape which, as pointed out above is an offence against

basic human rights.

397




Delhi Domestic Working Women's Forum vs. Union of India, (1995) 1 SCC 14.



140

2.) SC Views on Compensation: Need for long-term Rehabilitation399

:

“Survivors of rape should be compensated by giving them half of the property of the

rapist(s) as compensation in order to rehabilitate them in Society.” Court further

added that “Merely providing interim measures for their stay may protect them for

time being but long-term rehabilitation is needed as they (Family Members) are all

material witnesses and likely to be socially ostracized.”400

In “AnkushShivaji Gaikwad vs. State of Maharashtra”, 2013401

the Supreme Court

emphasized that victim is not to be forgotten in criminal justice system and Section

357 Cr.P.C. should be read as imposing mandatory duty on the Court to apply its

mind to the question of awarding compensation in every case.

In addition, compensation may be given for mental harassment, pain, suffering, and

for loss of earnings. The State is also liable for fundamental rights violations

committed by its servants, and should pay compensation for such injuries. In cases of

SHW, women may seek compensation for the violation of their fundamental rights.

It was held that the Government will be vicariously liable for the tortuous act of its

employees. It was on the basis of the above facts that the High Court had awarded a

sum of Rs.10 lacs as compensation for Smt. HanuffaKhatoon as the High Court was

of the opinion that the rape was committed at the building (Rail Yatri Niwas)

belonging to the Railways and was perpetrated by the Railway employees. Many

states are yet to finalise a scheme for compensation of victims of crime, including

violence against women, nearly four years afterthe Centre notified the provision for

providing relief by amending the Cr.P.C. After the notification of a new section in the

Cr.P.C. in December 2009, the Union Home Ministry had initiated the process of

making states notify the Victim Compensation Scheme in September 2010 but only

four states came up with a scheme within one year. Sikkim was the first to launch a

scheme in June 2011, while Karnataka notified it in February, 2012.402

399

Mukesh Yadav, Pramendra Singh Thakur, Pooja Rastogi, “Compensation and Rehabilitation of Rape

Survivors A Constitutional Right”, J Indian Acad Forensic Med. July-September 2014, Vol. 36, No. 3, ISSN

0971-0973; http://medind.nic.in/jal/t14/i3/jalt14i3p284.pdf.

400 P. Sathasivam, CJI, 23rd Jan 2014.

401 Common Cause, A Registered Society vs. Union of India, (1999) 6 SCC 667. 402




141

3.) Status of Victim Compensation Scheme in India403

:

a.)Scheme in place:

1. Rajasthan (Rs.2.00 Lakhs)

2. Assam (Rs.1.75 Lakhs)

3. West Bengal (Rs.20000 to 30000)

4. Union Territories (Rs.3.00 lakhs)

5. Goa (Rs.10 Lakhs)

6. Haryana (Rs.3.00 Lakhs)

7. Delhi (Rs.3.00 to Rs.5.00 Lakhs)

b.)Yet to take initiative for drafting the Scheme:

1. Jammu and Kashmir,

2. Kerala,

3. Tamil Nadu,

4. Madhya Pradesh,

5. Maharashtra,

6. Nagaland

7. Uttarakhand

Delhi is now after Delhi High Court intervention and amendment proposed in 2014

has enhanced compensation up to Rs. 5 Lakh.

Scenario in Delhi: A case study404

- The Delhi Victim Compensation Scheme, 2011

and (Amendment) 2014 has made provisions related to following issues:

Role of various authorities

Delhi State Legal Service Authority

Role of Police

Role of Divisional Commissioner

Role of High Court

Role of Victim Delhi High Court has shown serious concern related to

compensation and rehabilitation of rape victims.

Following issues need special consideration:

Man Power Shortage

403

Ibid. 404




142

Infrastructure and Equipment Shortage

Role of Forensic Sciences (including Forensic Medicine) in the criminal

investigations process and the justice dispensation system

Issue of Compensation

Terming the delay in paying compensation to victims of sexual violence as

"unacceptable", the Delhi high court ordered payment of nearly Rs.1.7 crore lying with the

government. On 16.04.2014, a Division Bench of Acting Chief Justice B D Ahmed and

Justice S Mridul asked the Delhi government to ensure that the money is disbursed to the 221

survivors within two weeks, after the issue is decided by authorities including the Delhi State

Legal Services Authority (DSLSA).405

The court was upset that despite its clear orders, the state government had delayed in

compensating the victims. It warned that if the government doesn't fall in line, it will be

constrained to treat the failure as contempt of court. The Delhi High Court also pulled up

DSLSA for delaying the release of compensation, and for taking long in deciding prima facie

if the case is genuine. HC also issued other key directions while hearing a case it initiated

suomoto after the Nirbhaya incident. The court is monitoring steps to improve the overall

safety of women in Delhi, including compensation to survivors of sexual violence such as

rape, setting up more CFSL facilities, and induction of more women policemen.

Lengthy Process, Little Action406

:

Only 483 of 3000 cases referred for relief in 2 years; Of the 483 cases, compensation

was awarded in 304 cases till April 2014

Fund Disbursal Slow

Why the delay?

Lack of awareness among survivors, police and lawyers about survivor’s right to be

compensated

Involvement of multiple agencies-police, Delhi State Legal Service Authority

(DSLSA)

405

Ibid. 406




143

Divisional Commissioner-who often blame each other for delay and files keep

shuttling among agencies

Most of the times, victims don’t get compensation as police fail to forward cases to

DSLSA, the sanctioning body.

Files get stuck with divisional commissioner who is responsible for disbursing funds

In past two and a half years, Govt. has used only Rs.2.06 crore of the allotted

Rs.15Crore

Step 1: Police after FIR has to inform (recommend) to the DSLSA for award

of Compensation

Step 2: DSLSA has to hold an Inquiry to see the suitability of case for award

of Compensation and submit recommendation to the Divisional Commissioner

Step 3: Divisional Commissioner has to disburse the Compensation Awarded

to Rape Victim Survivors/Legal Kins

Step 4: Victim and/or her representative can approach the High Court for

award of Compensation (within 3 years of incident)

Limitations407

:

DSLSA can’t award compensation on its own, recommendation by police a must

Courts can give compensation or refer it to DSLSA only if survivor or family

moves an application before it

If the offender is absconding or unidentified, survivor has to claim compensation

within 3 years of the incident

Solutions:408

Creating awareness and sensitizing police, survivors and lawyers

Notification of the amended scheme which aims at expediting the process

Make it a one-window facility

DSLSA should decide within a month if a case is fit for compensation

Compliance of a recent Delhi High Court order according to which Divisional

407

Ibid. 408




144

Commissioner should not take more than two weeks to disburse compensation

making the Scheme Better:409

Amended Delhi Victim’s Compensation Scheme aims at expediting the process of

providing compensation to rape and other assault victims

Amended scheme will help in rehabilitating all sexual victims

Victims of rape will be categorized under Sub-categories of gang rape and unnatural

sexual assault

Victim of unnatural sexual assault can get Rs.2-5 lakh

Enhanced Compensation and Speedy Disbursement410

:

Gang rape victims can get a compensation of Rs.3-7 lakh

Maximum compensation for loss of life up from Rs.5 lakh to Rs.10 lakh

Maximum compensation for rape increased from Rs.3 lakh to Rs.5 lakh

Relief amount for other injuries also up by Rs.1-2 lakh

Victims of acid attacks and burning will be compensated, depending upon nature of

injuries.

Victims of acid attacks and burning will be compensated, depending upon nature of

injuries.

4.) Domestic Violence against Women Act, 2005 reads Compensation Order411

:

“Section 22: In addition to other reliefs as may be granted under this Act, the Magistrate

may on an application being made by the aggrieved person, pass an order directing the

respondent to pay compensation and damages for the injuries including mental torture and

emotional distress, caused by the act of domestic violence committed by that respondent.

5.) Need for creation of ‘Victim Compensation Fund’ The ‘Victim Compensation

Fund’ shall comprise the following412

:

1. Budgetary allocation for which necessary provisions shall be made in the Annual

Budget by the (Concerned) Government.

409

Ibid. 410

Ibid. 411



0971-0973; http://medind.nic.in/jal/t14/i3/jalt14i3p284.pdf. 412

Ibid.

145

2. Receipt of amount of fines imposed under section 357 Cr.P.C., and ordered to be

deposited by the courts in the Victim Compensation Fund

3. Amount of compensation recovered from the wrongdoer/accused under clause 9 of the

scheme.

4. Donations/contributions from International /National/ Philanthropist/ Charitable

Institutions /Organizations and Individuals. Only few States has made these provisions

for creation of “Victim Compensation Fund”. State of Haryana and Delhi are few

examples in this regard.

6.) Compensation & Rehabilitation Provisions in POCSA, 2012:413

In appropriate cases, the Special Court may, in addition to the punishment, directpayment

of such compensation as may be prescribed to the child for any physical or mental trauma

caused to him or for immediate rehabilitation of such child.[Chapter VIII, 33 (8)] 414

Rulemaking Power of Central Government: The Central Government may, by notification

in the Official Gazette, make rules for carrying out the purpose of this Act. [Chapter IX,

45 (1)]415

Provisions further emphasize that in particular, and without prejudice to the

generality of the foregoing powers, such rules may provide for all or any of the following

matters, namely:

a. The qualifications and experience of , and the fees payable to, a translator or an

interpreter; a special educator or any person familiar with the manner of communication

of the child or an expert in that field, under sub-section (4) of section 19; sub-sections (2)

and (3) of section 26 and section 38; [Chapter IX, 45 (2) (a)]416

b. Care and protection and emergency medical treatment of the child under sub-section

(5) section 19; [Chapter IX, 45 (2) (b)] [1] c. The payment of compensation under

subsection (8) of section 33; [Chapter IX, 45 (2) (c)] [1] d. The manner of periodic

monitoring of the provisions of the Act under sub-section (1) of section 44. [Chapter IX,

45 (2) (d)]417

413

The Protection of Children against Sexual Offences Act, 2012, (Act No.32 of 2012). 414

Shemin Joy. Seven states laggard on giving relief to rape, acid attack victims. September 24, 2013, DHNS,

Available at: http://www.deccanherald.com/content/359195/seven-stateslaggard-giving-relief.html 415

Shemin Joy. Seven states laggard on giving relief to rape, acid attack victims. September 24, 2013, DHNS,

Available at: http://www.deccanherald.com/content/359195/seven-stateslaggard-giving-relief.html 416

Ibid. 417

Ibid.

146

7.) Provisions of Compensation in the SHW at Workplace Act, 2013418

:

On the completion of an inquiry under this Act, the Internal Committee or the Local

Committee, as the case may be, shall provide a report of its findings to the employer, or

as the case may be, the District Officer within a period of ten days from the date of

completion of the inquiry and such report be made available to the concerned parties.

[Para 13 (1)]419

Where the Internal Committee or the Local Committee, as the case may

be, arrives at the conclusion that the allegation against the respondent has been proved, it

shall recommend to the employer or the District Officer, as the case may be420

:

To take action for sexual harassment as a misconduct in accordance with the

provisions of the service rules applicable to the respondent or where no such service

rules have been made, in such manner as may be prescribed; [Para 13 (3)(i)]421

To deduct, notwithstanding anything in the service rules applicable to the respondent,

from the salary or wages of the respondentsuch sum as it may determine, in

accordance with the provisions of section 15; [Para 13 (3)(ii)] [2] Provided that in

case the employer is unable to make such deduction from the salary of the respondent

due to his being absent from duty or cessation of employment it may direct to the

respondent to pay such sum to the aggrieved woman; Provided further that in case the

respondent fails to pay the sum referred to in clause (ii), the Internal Committee or,

the Local Committee as the case may be, may forward the order for recovery of the

sum as an arrear of land revenue to the concerned District Officer. The employer or

the District Officer shall act upon the recommendation within sixty days of its receipt

by him. [Para 13 (4)]422

Determination of Compensation: For the purpose of determining the sums to be paid

to the aggrieved woman under clause (ii) of sub-section 13, the Internal Committee or

the Local Committee, as the case may be, shall have regard to: (a) The mental trauma,

418

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act

No.14 of 2013) Received Assent of the President of India w.e.f. 23rd April 2013 Notified on 6th December

2013. 419

Victim Compensation Scheme: RTI says Punjab Not Releases Grants. February 07, 2014, Face2News

Bureau, Available at: http://www.face2news.com/news/5240-victim-compensationscheme-punjab-not-release-

grants.aspx. 420




Victim Compensation Scheme: RTI says Punjab Not Releases Grants. February 07, 2014, Face2News

Bureau, Available at: http://www.face2news.com/news/5240-victim-compensationscheme-punjab-not-release-

grants.aspx, as last visited on 21/05/2016. 422

Ibid.



http://www.face2news.com/news/5240-victim-compensationscheme-punjab-not-release-grants.aspx


147

pain, suffering and emotional distress caused to the aggrieved woman; (b) The loss in

the career opportunity due to the incident of sexual harassment; (c) Medical expenses

incurred by the victim for physical or psychiatric treatment; (d) The income and

financial status of the respondent; (e) Feasibility of such payment in lump sum or in

instalments. [Para 15 (a, b, c, d, e)]423

8.) Criminal Law Amendment Act, 2013:424

Section 357A Cr PC which already makes a provision for victim compensation is now

further supplemented by Sections 357 B and 357 CCr. P.C. have also been added which

makes provision for victim compensation.

6.3 OFFENDER REHABILITATION

Ideas and practices associated with the rehabilitation of offenders have a long history,

stretching back at least as far as the eighteenth century.425

The violent and sexual offenders

assessment, treatment and management has always been a grave concern.426

However, as a

concept, rehabilitation is surprisingly difficult to pin down, such that when different writers,

theorists or practitioners refer to it, there is quite a good chance that they are not talking about

precisely the same thing. This is at least in part because ‘rehabilitation’can be understood

both as a general objective or goal, and as a process or set of practices (Rotman, 1990); but

attempts to define rehabilitation are also complicated by a proliferation of related terms.

Some of these (such as ‘reform’ and ‘redemption’) have a long history; others (such as

‘reintegration’, ‘resettlement’and ‘re-entry’) have more recent origins.

6.4 RESEARCHER’S SUGGESTIONS

A separate working definition of “Victims” who have been sexually exploited of

sexual offences or victims of sexual diseases (eg. HIV Patients) or prostitute which

could come under the category of sexual offences and other related acts to cover cases

423

Ibid. 424

The Criminal Law (Amendment) Act, 2013 (Act No. 13 of 2013 [2nd April, 2013] It shall be deemed to have

come into force on the 3rd day of February, 2013. 425

Gwen Robinson, Iain Crow, Offender Rehabilitation Theory, Research and Practice” , ed.(1) 2009, p. 3. 426

Jane L. Ireland, Carol A. Ireland and Philip Birch, Violent and Sexual Offenders Assessment, treatment and

management”, ed. (1) 2009, p. 27.

148

for compensation, rehabilitation, counselling, medical treatment depending on the

suitability of the applicability and needs in each individual case.

Further, it appears that Courts do not appear to be adequately sensitized towards the

Scheme, due to which cases in which compensation has been awarded are very few.

From the above line of cases, it becomes very clear, that, a sentence of imprisonment

can be granted for default in payment of compensation awarded under Section 357(3)

of Cr.PC. The whole purpose of the provision is to accommodate the interests of the

victims in the criminal justice system. Sometimes the situation becomes such that

there is no purpose is served by keeping a person behind bars. Instead directing the

accused to pay an amount of compensation to the victim or affected party can ensure

delivery of total justice.427

Therefore, this grant of compensation is sometimes in lieu of sending a person behind

bars or in addition to a very light sentence of imprisonment. Hence on default of

payment of this compensation, there must be a just recourse. Not imposing a sentence

of imprisonment would mean allowing the accused to get away without paying the

compensation and imposing another fine would be impractical as it would mean

imposing a fine upon another fine and therefore would not ensure proper enforcement

of the order of compensation.428

While passing an order under Section 357(3), it is imperative for the courts to look at

the ability and the capacity of the accused to pay the same amount as has been laid

down by the cases above, otherwise the very purpose of granting an order of

compensation would stand defeated. [Para 27] Compensation and Rehabilitation of

survivors of rape is need of the hour in view ofthe violation of fundamental rights of

the victim under Article 21 of the Indian Constitution. Court can play a great role in

delivery of justice by awarding compensation and directions for rehabilitation of the

victims. Ends of justice can be served if all the stakeholders do their duty in letter and

spirit of the Indian Constitution and other relevant Statutory provisions related to

compensation and rehabilitation of victims of crime especially victim of rape. There is

need to create awareness and education about these rights among all the sections of

427




Ibid.

149

the society by organizing CMEs, Seminar and Conferences. In the words of

SawamiSivananda “Every effect has a cause. Every consequence has an antecedent.

There must be perfect balance between the cause and effect, between the antecedent

andconsequence. The law of compensation keeps up the balance, and establishes

peace, concord, equilibrium, harmony and justice in Nature.”429

The researcher suggests that the ‘penal rehabilitation’ in the form of imprisonment is

not sufficient and has suggested stricter forms of punishment like chemical castration

be adopted in cases of grievous offences like of rape and sexual assault and retention

of death penalty in cases of repeat offenders and where victim has been left in a

vegetative state.

‘Penal rehabilitation’ be retained of less grievous forms of sexual offences balancing

the criteria of gravity of offence, need for detention, scope of improvement in

behaviour of the offender.430

Also, various programmes should be run by the government in corrective

institutions431

like jails to treat offenders and detect any behavioural, psychological or

social disorientation or symptoms of further deviance to protect society any repeat

offence, which are currently not offered in India. Though, there are activities to

engage and train/ divert the minds of criminals and make them fruitful.432

429




Gwen Robinson, Iain Crow, Offender Rehabilitation Theory, Research and Practice” , ed.(1) 2009, p. 8. 431

A.S. Raj, “The Early History of Modern Prison System”, foreword by Justice V.R. Krishna Iyer, Ïnstitutional

Corrections in the Administration of Criminal Justice”, pp. 7-14. 432

Sarah Brown, “Treating Sex Offenders An Introduction to sex offender treatment programmes, ed. (1) 2005,

p. 27.

150

CHAPTER VII

CONCLUSION& SUGGESTIONS

7.1 CONCLUSION

The researcher would like to sum up and answer the research questions raised in the

beginning of the dissertation as follows:

The historical evolution of sex, theories of crime, feminist perspective and theories of

sexual deviance to some extend are able to explain the possible biological, psychological and

sociological reasons for a shift from “normal sexual behaviour”. But what is “normal sexual

behaviour” is different according to different standards which maybe religious, medical or

legal depending from one civilization to the other.

151

Further, the current international and national constitutional legal framework does not

provide for a sufficient indepth overview for development of a comprehensive understanding

on sexual laws as they are inadequate, scattered, contradicting and full of anomalies.

The current laws which include the recent amendments made through Criminal Law

(Amendment) Act, 2013 are not adequate to cater to the critical needs and demands of a

sexually charged society but are definitely progressive in some aspects in comparison to the

original provisions and suggested amendments by the J.S. Verma Committee which have

been finally adopted. These include increasing the age of consent to 18years orincreasing the

scope of penetration in the definition of rape. However, the laws are still not gender neutral,

marital rape when the wife is over 15 years is still not a crime, etc. Secondly, the Indian laws

currently are not sufficient to deal with ‘the oldest profession of the world’ (read:

‘Prostitution’) as the laws are still tolerant/ permissive of the practice when done at individual

level though illegal when carried out at a commercialised level as the activities associated

like pimping, keeping brothels is banned but the act itself is legal. Thirdly, the present legal

status of ‘LGBT Community’ is not in line with the constitutional values and it needs to be

“cured” under the pending curative petitions filed by the Naz Foundation as our constitution

rightly prohibits any form of discrimination on the basis of religion, race, caste and sex as

enshrined under Article 14. Fourthly, the current international and national laws relating to

“HIV infected people” aren’t prudent enough to deal with the challenges and problems faced

by them persistently as there are some SC judgments which are indicative but the bills

haven’t been passed and are still pending. In fact, the researcher proposes that there should be

a comprehensive dealing with all sexually transmitted diseases and not just HIV/ AIDS.

Fifthly, the current guidelines and protocols laid down by various governmental/ private

authorities are not satisfactory to deal and handle the medical examination of sexually abused

victims and thus need further work on them as though there is mandatory reporting the

provision of “informed consent” poses hindrance in the investigative procedure and evidence

establishing. Sixthly, the Indian laws are in line but are bare minimum passable with regard

to the UN Declaration for Victims, which enumerate the principles of Access to justice and

fair treatment; Restitution; Compensation; and Assistance as there is a need for separate

definition to deal with “victims” of sexual offences and other related acts, which involves an

inclusive approach to add prostitutes, patients of sexually transmitted diseases and LGBT

Community. Lastly, the current prescribed punishments and sentencing guidelines are neither

harsh enough to punish the culprits and nor clear enough to guide the judges to decide the

152

quantum of punishment within the prescribed inner and outer limits respectively. Further, the

researcher has proposed chemical castration as the punishment in cases of rape and sexual

assaults while retaining death penalty in case of leaving the victim in vegetative state and

second time offenders.

The researcher therefore concludes that the current laws on sexual offences and

related acts in India are either lacking/ insufficient/ inadequate or contradicting and thus need

rework and serious legislative efforts to give them a makeover.

Thus, all the hypotheses made by the researcher, which were mostly the most popular/

common assumptions or statements have all been proved correct.

153

7.2 SUGGESTIONS

The instant research undertaken clearly shows that to comprehensively and

extensively review and amend all aspects of the laws andthe implementation of the laws

relating to sexual offences, and to deal with all legal aspects of or relating to sexual offences

there is a need to legislate a single statute by taking the South African legislation as a model

legislation namely,CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS)

AMENDMENT ACT of 2015or the legislation of Ireland or Cape Town both again of 2015

for incorporating changes which have recommended by the researcher to deal with the issue

of sexual offences and related acts holistically under an umbrella legislation. Some of them

being:

154

repealing the common law offence of rape and replacing it with a new expanded

statutory offence of rape, applicable to all forms of sexual penetration without explicit

consent, irrespective of gender (making the law gender neutral);

repealing the common law offence of indecent assault and replacing it with a new

statutory offence of sexual assault, applicable to all forms of sexual violation without

consent;

creating new statutory offences relating to certain compelled acts of penetration or

violation;

creating new statutory offences, for adults, by criminalising the compelling or causing

the witnessing of certain sexual conduct and certain parts of the human anatomy, the

exposure or display of child pornography and the engaging of sexual services of an

adult;

repealing the common law offences of incest, bestiality and violation of a corpse, as

far as such violation is of a sexual nature, and enacting corresponding new statutory

offences;

enacting comprehensive provisions dealing with the creation of certain new, expanded

or amended sexual offences against children and persons who are mentally disabled,

including offences relating to sexual exploitation or grooming, exposure to or display

of pornography and the creation of child pornography, despite some of the offences

being similar to offences created in respect of adults as the creation of these offences

aims to address the particular vulnerability of children and persons who are mentally

disabled in respect of sexual abuse or exploitation;

eliminating the differentiation drawn between the age of consent for different

consensual sexual acts and providing for special provisions relating to the prosecution

and adjudication of consensual sexual actsbetween children older than 12 years but

younger than 16 years;

criminalising any attempt, conspiracy or incitement to commit a sexual offence;

creating a duty to report sexual offences committed with or against children or

persons who are mentally disabled;

providing the IndianPolice Service with new investigative tools when investigating

sexual offences or other offences involving the HIV status of the perpetrator;

providing our courts with extra-territorial jurisdiction when hearing matters relating to

sexual offences;

155

providing certain services to certain victims of sexual offences, inter alia, to minimise

or, as far as possible, eliminate secondary traumatisation, including affording a victim

of certain sexual offences the right to require that the alleged perpetrator be tested for

his or her HIV status and the right to receive Post Exposure Prophylaxis in certain

circumstances;

establishing and regulating a National Register for Sex Offenders;

further regulating procedures, defences and other evidentiary matters in the

prosecution and adjudication of sexual offences;

making provision for the adoption of a national policy framework regulating all

matters in an Act, including the manner in which sexual offences and related matters

must be dealt with uniformly, in a co-ordinated and sensitive manner, by all

Government departments and institutions and the issuing of national instructions and

directives to be followed by the law enforcement agencies, the national prosecuting

authority and health care practitioners to guide the implementation, enforcement and

administration of the laws in order to achieve the objects of the Act;

making provision relating to the trafficking in persons for sexual purposes; and

to provide for matters connected therewith. For example: Compulsory Medical

Examination and providing Forensic Evidence for the purpose of investigation

without taking consent necessarily.

providing compensation, rehabilitation, medical services, counselling services and

equal opportunity in terms of vocational training/ career guidance to the victims to

enhance their future prospects. While, defining “victims” for sexual offences and

related acts separately.

Making chemical castration as the punishment in rape and sexual assault cases so that

the state does not end up spending money and feeding the offenders on

taxpayersmoney and instead find a permanent solution to the problem, which would

also have an implication of deterrence. Though, retaining death penalty in case of

vegetative state of victim and second time offenders.

Have a Reverse Onus clause that will shift the burden of proof in sexual offence cases

so that the defence has to prove consent beyond a reasonable doubt and not on the

prosecution to prove the sexual offense as far as the procedural evidentiary aspect is

concerned.

156

Making provisions to deal with sexually transmitted diseases and not just HIV/ AIDS.

Further, ensuring victims of these diseases to get equal opportunity to ensure their

constitutional rights.

There should be a separate provision to penalise false/ malicious accusations of all

sexual offences providing for hefty penalty/ fine and public apology, if it is

discovered and declared in the judgment that there was no commission of any sexual

offence.

157

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