The U.S. Supreme Court reversed its 49-year-old landmark Roe vs Wade (410 U.S. 113) decision on June 24, 2022, which established the constitutional right to abortion in the United States.

In the present case of Dobbs vs Jackson Women’s Health Organization, the petitioner challenged Mississippi’s ban on abortion after 15 weeks. By its majority, the American Supreme Court affirmed Mississippi’s law banning abortions after 15 weeks and overruled its previous decision of Roe vs Wade.

This law article deals with the facts, arguments, and decisions of the Roe vs Wade case, keeping in mind the recent related developments.

Facts of the Roe vs Wade Case

It was the period of the 1970s in the United States. During that time, it was illegal to perform abortions in Texas without a physician’s consent unless it was to save the mother’s life.

In 1973, an unmarried pregnant woman, Jane Roe (name changed), brought a suit against Texas abortion laws on behalf of herself and others. There was a claim that doctors could not follow state abortion laws because they were too vague. And also, according to the United States Constitution, abortion right is protected by the fundamental “Right to Privacy.”

Arguments Given by Roe

These were the points put forward by Roe in the Roe vs Wade case:

• The Texas law violated the Bill of Rights’ rights to marital, family, and sexual privacy;
• The law violates the 14th Amendment of the U.S. Constitution;
• It violates the right to liberty of individuals;
• Abortion is an absolute right – a woman can end a pregnancy at any time, for any reason, however, she chooses.

Arguments Given by the Texas State

The Texas state made the following points:

• The 14th Amendment protects a fetus as a “person”;
• The government has a responsibility to protect the health of people, maintain medical standards, and protect prenatal life;
• The state has a compelling interest in protecting prenatal life from conception.

The question before the U.S. Supreme Court was: “Are women entitled to terminate their pregnancies by abortion under the United States Constitution”?

Judgement of Roe vs Wade (January 22, 1973)

In the majority opinion of 7:2 written by Justice Harry A. Blackmun, the Supreme Court held that abortion during the first trimester of pregnancy is an absolute right of the women. Justice Harry Blackmun delivered the opinion for the majority held that according to the due process clause of the 14th Amendment to the United States Constitution, pregnant women have a constitutionally protected right to an abortion under the “Right to Privacy” provision.

An abortion is within the right to privacy protected by the Due Process Clause of the 14th Amendment. The right to abortion is violated by a state law that restricts abortion regardless of pregnancy stage or other interests. Pregnant women’s health and “human potential” are legitimate state interests, but the relative weights of each interest change during pregnancy, and the law must take these variations into account.

The court further added that the decision regarding abortion during the first three months of pregnancy belongs to the woman and her doctor.

Nevertheless, the court found that the right to abortion is not absolute and must be balanced with the government’s interest in protecting women.

In addition, the court deemed abortion a “fundamental right,” which mandated that courts evaluate challenged abortion laws using the “strict scrutiny” standard, the strictest level of judicial review available in the United States.

Judgement of Dobbs vs Jackson Women’s Health Organization (June 24, 2022)

In this decision, Justice Samuel Alito delivered the judgment with the 6:3 majority and upheld Mississippi’s abortion law banning abortion after 15 weeks.

Overruling Roe vs Wade, the court ruled that there is no constitutional right to abortion. The time has come for the government to heed the Constitution and put abortion under the control of elected representatives.

In his view, the decision in Roe vs Wade is not only a wrong decision, but it amounts to an abuse of judicial authority. Also, the Constitution does not mention abortion, and abortion is not implicitly protected by any constitutional provision, including the Due Process Clause of the 14th Amendment.

Conclusion

With Roe vs Wade overturned, abortion access in the U.S. is no longer constitutionally protected. In light of the court’s decision, now individual states can decide whether abortion should be free or restricted. States now can even criminalise abortion.

However, many philanthropists argue that abortion right is a matter of personal freedom. According to them, banning or restricting abortions violates women’s rights because they have all control over their bodies and should have the freedom to decide whether to continue a pregnancy or not.

One big question also arose after the overruling of the Roe vs Wade decision is what happens if any pregnancy is due to the result of sexual violence like rape!

Read Next:
1. Is an Unmarried Woman Legally Allowed to Have an Abortion in India?
2. Medical Termination of Pregnancy Act, 1971

References: CNBC | Britannica

What Is the Roe vs Wade Case? Explained in Easy Words
Ritesh Kumar

Due to the Medical Termination of Pregnancy (Amendment) Act, 2021, now an unmarried woman can also seek abortion on the grounds of contraceptive failure. If the unmarried woman is above 18 years of age and is pregnant on account of contraceptive failure, in that case, she can get her pregnancy terminated legally up to 20 weeks under the Medical Termination of Pregnancy Act, 1971.

The Amendment Act 2021 has also increased the gestation limit from 20 to 24 weeks only if:

1. pregnancy is due to sexual assault like rape;
2. pregnancy is harmful to the physical and mental health of the baby or mother;
3. the baby may develop physical abnormalities after birth;
4. due to contraceptive failure.

If the pregnancy is up to 20 weeks, in that case, only one doctor’s consent is required. And if the gestation period is between 20 to 24 weeks, then two registered medical practitioners’ consent is required. In case the girl is below 18 years of age, then her guardian’s consent is also required.

Under section 312 and section 313 of the Indian penal Code, 1860, if anyone forces a woman for abortion and causes miscarriage without the woman’s consent, they shall be punished with imprisonment for life or imprisonment up to ten years and fine.

Further, under section 5A of the Medical Termination of Pregnancy Act, 1971, if a registered medical practitioner reveals the name and other details of the woman whose pregnancy has been terminated, in that case, they shall be liable for imprisonment up to one year or fine or both.

Read Next: What Is the Roe vs Wade Case? Explained in Easy Words

Is an Unmarried Woman Legally Allowed To Have an Abortion in India?
Ankita Trivedi

According to UN Women, an organization that promotes women’s legal rights, every third woman across the globe has experienced violence, either sexual or physical, by a close companion, a non-partner, or both. According to it, in 2018, an estimated one in seven women had experienced physical or sexual violence from an intimate partner or husband.

Further, the International Men Gender Equality Survey conducted by International Centre for Research on Women noted that 1 in 5 men forced their wife or partner to have sexual intercourse with them. The data also shows that 20% of Indian men admit that they forced their wives or partners to have sexual intercourse.

Marital rape is not a crime in India because of which we do not have any specific data against such an act. The Indian criminal law treats marital rape under the clout of domestic violence. Recent results from India National Family Health Survey-5 (NFHS) indicate that nearly three out of ten women experience some form of domestic violence.

Based on data collected by the National Commission for Women, domestic violence against women increased significantly during the lockdown. In the case of domestic violence against women, the data shows a 79% increase from 2019.

What Is Marital Rape?

Marital rape refers to sexual relations between spouses without the consent of the other. The term ‘marital rape’ refers to any sexual act committed by a husband without the consent of his wife, carried out by force or physical violence. Simply put, forced sexual intercourse within a marriage constitutes marital rape.

As per section 375 of the Indian Penal Code, rape is “non-consensual sexual contact with a woman.” However, if a wife is over 15 years old, a husband is exempt from penal consequences for coercing her into intercourse without her consent.

Must Read: Rape In Indian Penal Code, Section 375

In Independent Thought vs Union of India (2017), the Supreme Court increased the age limit from 15 to 18 years. This exception ensures that there will not be rape charges filed against a husband who has sexual relations with his wife who is over 18 years of age without her consent. Because of this exception, husbands have been immune from any rape committed by them on their wives.

This exception in section 375 of IPC is the apple of discord behind the decade-long uproar for criminalizing rape in marriage. At present, the only recourse available in India for victims of marital rape is section 498A of the IPC and Domestic Violence Act, 2005, which deal with cruelty to protect victims against their spouse’s perverse sexual conduct.

18 Reasons Why Marital Rape Should Be Criminalised

Many prominent jurists, women’s rights activists, and social activists have argued for criminalising marital rape. Here is the list of all arguments:

1. Marriage cannot be viewed as a license for a husband to coerce sexual relations on demand.

2. Marriage cannot mean irrevocable implied consent.

3. Article 14 of the Indian Constitution protects people’s right to equality, and marital rape violates that right of a married woman.
Forced sexual cohabitation is also a violation of the fundamental right under Article 21.

4. Marital rape is in direct conflict with section 375 of the IPC. Specifically, section 375 intends to protect women and punishes those who violate them through inhumane acts. Section 375 cannot achieve its objective by exempting husbands from punishment since the consequences of rape are the same whether a woman is married or not.

5. By creating two categories based on marital status, the exception of section 375 IPC immunises men from actions committed against their wives.

6. A woman’s dignity is suppressed in the case of spousal rape if it is not criminalised, which would mean less value is placed on her dignity while she is married.

7. It is a crime against humanity. It is the most heinous violation of a women’s bodily integrity.

8. As an unmarried woman, a married woman has the same right to control her body.

9. According to the Supreme Court in State of Karnataka vs Krishnappa (1993), “sexual violence, as well as being humiliated, is an unlawful intrusion into the privacy and sanctity of a woman. Likewise, the court ruled that non-consensual sexual interaction amounts to physical and sexual violence.”

10. In Suchita Srivastava vs Chandigarh Administration (2009), the Supreme Court equated the right to choose a sexual activity with Article 21 (right to personal liberty, privacy, dignity, and bodily integrity).

11. The Supreme Court recognised the right to privacy of all citizens in Justice K.S. Puttuswamy vs Union of India (2017). An important aspect of privacy is decision-making privacy, particularly when it comes to decisions about one’s sexuality, procreation, or intimate relations.

12. In Joseph Shine vs Union of India (2018), Justice Chandrachud posed the question of whether a woman or a man loses sexual autonomy when they marry. I think ‘no’. In addition, he noted that “the right to refuse sex should also exist after marriage.”

13. In all of these decisions, the Supreme Court upheld Article 21 of the Constitution as granting all women the right to abstain from sexual activity, whether or not they are married.

14. Criminalising marital rape gives women basic human rights while also gives them a sense of security against the most heinous crime that can happen inside marriage. They will get the right to say ‘NO’ when they do not want to indulge in sexual intercourse.

15. Most importantly, criminalising marital rape will provide direct legal remedies for seeking justice.

16. Section 9 of the Hindu Marriage Act, 1955 has been challenged in a Public Interest Litigation because it forces estranged spouses to reconcile. By moving to the court and seeking restitution of conjugal rights, a partner who is living apart can force their partner to stay together. In a marriage, this can also be a factor that leads to marital rape.

17. Taking no action against marital rape violates very fundamental rights of women: their right to privacy, their right to protection from exploitation, their right to bodily integrity, and their rights guaranteed by Article 21 and Article 14 of the Indian Constitution.

18. The Kerala High Court in 2021 noted that treating a wife’s body as something owing to the husband and committing a sexual act against her will is nothing but marital rape. The court observed:

• When the husband disregards the autonomy of his wife, and even though this conduct is not illegal, it falls under the definition of physical and mental cruelty.
• Nowadays, in modern social jurisprudence, husband and wife are treated as equal partners in marriage, and the husband has no right to claim any superiority over the wife about her body or personal status.
• Any disrespect or violation of one’s physical integrity is a violation of one’s right to respect their physical and mental integrity.
• Although marital rape does not qualify for criminal recognition under the Penal Code, courts consider it to be cruelty. Accordingly, the court considered marital rape a valid ground for divorce.

J.S Verma Committee Recommendations

The committee discussed exception (2) of section 375 IPC and recommended that this exception must be removed. In the committee’s opinion, the relationship should not be used to justify leniency in such cases of rape. The fact that the victim and the defendant are married is not a defence that can justify rape. The committee recommended that the Criminal Law Amendment Act, 2013, include marital rape as an offence.

8 Arguments Against Criminalising Marital Rape

As a coin has two faces, many people believe that criminalising rape in marriage will be detrimental to Indian society. Here is the list of all arguments against criminalising marital rape:

1. In its submission to the Delhi High Court in January 2022, the Union Government stated that criminalising rape would thwart the marriage institution and become an easier way for harassing spouses.

2. Justice Dipak Misra, the former Chief Justice of India, said that “in my opinion, marital rape should not be regarded as a crime in India, as it will create anarchy in families, and our country relies on its family platform for its success of upholding family values.”

3. A man’s sexual acts with his wife cannot be recorded as evidence in court, as there is no lasting evidence in such a case.

4. In 2016, an Indian official told the Rajya Sabha that the concept of marital rape is international and could not be applied in Indian contexts due to factors such as poverty, illiteracy, social customs, faiths, and sanctity of marriages.

5. Women may feel pressured to report marital rape due to social stigma, child impact, and family shame.

6. On the question that the husband raped his wife, the wife’s testimony is often the only evidence of the rape.

7. There may have been consensual sexual activity between the spouses before the rape, so DNA or semen samples would be irrelevant.

8. Because both the husband and wife would have engaged in sexual relations frequently, it is almost impossible to prove the absence of consent.

Marital Rape – Conclusion

Raped victims are victims of violence, and the fact that the perpetrator and victim are married enhances the severity of such cases. Merely because the accused is husband and victim is wife, the offence of rape cannot be called off and be categorised as forced rape resulting in domestic violence. Individual autonomy is of the utmost prerogative of Article 21. “Rape is rape, be it marital or non-marital, the victim is women only.”

Read Next:
1. What Is the Legal Status of Marital Rape in India?
2. Death Punishment for Every Rape Has a Problem!
3. Impact of Digital Technology on Domestic Violence

Why Marital Rape Should Be Criminalised and Why It Shouldn’t
Ritesh Kumar

Child marriage means a marriage where two individuals marry before attaining the age of majority. For marriage, the girl’s age should be 18 years and the boy’s 21 years.

Child marriage is the bad reality of our society, and even after enacting several laws by the parliament, these kinds of marriages are still in practice in India.

Although both boys and girls are the sufferers of child marriage, comparatively, the girl child is the one who suffers the most. Early marriage leads to early responsibilities, early pregnancy, no access to education, etc. Even the girl is not mentally, emotionally, or physically prepared for the marriage and subsequent responsibilities. Such marriage takes away the childhood of a girl.

Child marriage is a violation of human rights as well as the Fundamental Rights of an individual.

In this law note, we will learn about the laws related to child marriage and the issues faced by the girls and boys who enter such marriages.

Meaning of Child Marriage

“Child” means a person who has not completed the age of 21 years in the case of males and 18 years in the case of females”. “Child Marriage” means a marriage to which any of the contracting parties is a child.

Development of Laws on Child Marriage

The origin of child marriage is not certain, but this is a very old concept, and even after making various laws to stop this practice, it is still prevalent in India, especially in rural areas.

The movement against child marriage was first started after the case of Queen vs Haree Mohan Mythee (1890), in which an 11-year-old girl died due to injuries sustained during sexual intercourse with her 35-year-old husband.

The age of consent for sexual intercourse was increased from 10 years to 12 years by the Criminal Law (Amendment) Act, 1891, to protect women from immature cohabitation. Later in 1929, the age of consent was again increased from 12 to 13 years by the same amendment in case of child marriages.

In 1927, a Bill to prevent the solemnisation of child marriages among Hindus by declaring such marriages void if either party was under the age of marriage was presented by Rai Sahib Har Bilas Sarda. The Bill was then converted into the Child Marriage Restraint Act, 1929.

Legislative Provisions for Child Marriage

Legislative provisions brought by the parliament to prevent or restrain child marriages are:

The Child Marriage Restraint Act, 1929

The Child Marriage Restraint Act applies not only to Hindus but also to all the citizens of the society. Initially, the age prescribed in this Act for marriage was 14 years and 18 years for females and males, respectively. Later by an Amendment Act of 1949, the age limit of girls was raised to 15 years. After that, through an amendment in 1978, the age of both boys and girls was increased to 18 and 21 years respectively.

It is believed that an increase in the age of marriage will be better for the development of a girl and her child.

The Child Marriage Restraint Act gives the power to the court to penalise the groom who is above 21 years of age with 3 months of simple imprisonment and a fine for marrying a minor girl. And if the groom is between 18 – 21 years, he shall be punished with simple imprisonment of up to 15 days or a fine of Rs. 1,000 or both.

Parents or guardians can be penalised with simple imprisonment of 3 months along with a fine.

However, a similar option did not exist for a female adult who married a minor boy, probably due to the rare occurrence of such cases.

The Hindu Marriage Act, 1955

The Hindu Marriage Act lays down various conditions for solemnising a valid marriage between a male and a female. Before the enactment of the Child Marriage Restraint Act, 1978, if a male is a minor and has to marry, then the consent of a guardian is a must in such cases. But after the enactment of the Child Marriage Restraint Act, 1978, the age of marriage was increased to 18 years for females and 21 years for males and consent of guardians is not required in such cases.

Section 5 provides the essential conditions for a valid marriage. And if any marriage is performed in contravention of section 5(iii), which specifically lays down the age of parties for performing a marriage, then such a marriage will be voidable.

The Prohibition of Child Marriage Act, 2006 (PCMA)

As per the Prohibition of Child Marriage Act, any party to a child marriage can declare their marriage to be voidable. And a girl can file a petition for a voidable marriage until she attains the age of 20 years or till her remarriage. This Act also allows a girl to take maintenance and residence from the male member (groom) or his parents.

Punishments given under PCMA are quite higher than the Child Marriage Restraint Act of 1929 as the punishment for male adult or anyone who performs, conducts, directs, or abets any child marriage has been enhanced to 2 years of rigorous imprisonment or with a fine up to one lakh rupees or both.

All the offences performed under this Act are cognizable and non-bailable and also allow for an injunction to restrain child marriages.

The provision declaring child marriage invalid and void in specific cases, including kidnapping, abduction, or trafficking of minors, is perhaps the most significant modification made by the Act.

Child Marriage and Reproductive Rights

Every human being has a right to marry voluntarily and the right to reproduction. Child marriage indeed leads to loss of childhood, early pregnancy, etc.

Marrying a girl in her childhood will undoubtedly result in infringement of her reproductive rights as at that age when she is not mature enough to take care of her, how can we expect her to take care of a baby?

The girl is tiny, and she is more prone to become the victim of marital rape, sexual abuse by her husband, undesirable pregnancy, early maternity, and, most importantly, her life is not her own anymore. It is being controlled by her husband or in-laws.

However, Human rights campaigners have long contended that the government must be held responsible for the abuse of reproductive rights because they have a responsibility to defend the human rights of their citizens.

Case Laws Related to Child Marriage

Case laws related to the provisions of child marriage are given below.

Jitender Kumar Sharma vs State (2010)

The court stated that the Prohibition of Child Marriage Restraint Act, 2006, is secular and overrides the Hindu Marriage Act, 1955. However, even after the enactment of the Prohibition of Child Marriage Restraint Act, 2006, there are still certain gaps in the law because it does not prohibit child marriage. The practise of child marriage has been discouraged by regulation, but it is not entirely prohibited.

Naumi vs Narottam (1962)

The Himachal Pradesh High Court held that child marriage is neither void nor voidable.

Mohinder Kaur vs Major Singh (1971)

The Punjab and Haryana High Court observed that the solemnisation of child marriage is not a defence to a claim for conjugal rights restitution.

Conclusion

Child marriage is a severe social problem that infringes on the reproductive rights of girls, which make up the majority of their human rights.

Early marriage and motherhood infringe on a girl’s freedom to manage her own body, limit her educational and professional options, and cause problems for her and her children.

As a result, the human rights of a female child are violated at a time in her life when they are most vulnerable. And even though there are specific legislations enacted by the government to prohibit child marriages, child marriage is still prevalent in our society.

Read Next:
1. What Are the Laws Related to Child Abuse in India?
2. Laws and Policies for the Protection of Children in India
3. What Is the POCSO Act and What Rights It Provide to a Child

Legality of Child Marriage Under Indian Laws
Anushka Saxena

Rape includes all kinds of sexual assault involving non-consensual intercourse with a woman as defined under section 375 of the Indian Penal Code, 1860. In India, the only kind of non-consensual sexual intercourse is exempted from the definition of rape, and that is Exception 2 to section 375 involving an unwilling sexual assault between a husband and a wife who is over 15 years of age.

The concept of marital rape in India is decriminalised by assuming implied consent on behalf of the wife.

In one of its judgments, Kerala High Court has stated that unwilling sexual assault on the wife by the husband amounts to physical and mental cruelty and will be a ground for divorce under the Protection of a Woman from Domestic Violence Act, 2005. It was also noted that a woman does not owe her body to her husband.

India comes under one of 36 countries where marital rape is not criminalised. The legal status of marital rape in India brings up a lot of questions in mind like-

1. After marriage, is the consent of the woman for sex not necessary?
2. Is there any difference in the trauma faced by a 14-year-old girl and a 20-year-old girl in the case of non-consensual intercourse with her husband?
3. Does a woman lose the right to her own body after marriage?
4. Is the legal status of marital rape in India violative of fundamental rights like the right to live life with dignity, right to privacy, right to equality?

Our judicial system should consider all these questions while viewing writ petitions filed on the constitutionality of Exception 2 of section 375 of the Indian Penal Code.

Read Next:
1. 12 Most Important Legal Rights of Indian Women
2. Why Marital Rape Should Be Criminalised and Why It Shouldn’t

What Is the Legal Status of Marital Rape in India?
Ankita Trivedi

India is a developing country, but still, rape is a persisting problem at present. Rape is a mark of disgrace that has existed for a long time.

According to data from the National Crime Records Bureau (NCRB), a total of 32,559 incidents of rape were reported during 2017, which rose to 33,356 cases in the year 2018. Also, 91 rapes were reported every single day across the country in 2018. These are just the cases that are registered.

Most of the victims do not even register the cases in fear that they will not either be believed, or this will, in turn, create damage to one self’s image. Every year only a small proportion of rapes make it to the court.

However, the willingness to report rape has increased in the last few years, after several incidents of rape cases received widespread media attention and public protest. This has also led the Indian Government to reform its Penal Code for crimes of rape and sexual violence.

Rape

As defined in Section 375 of the Indian Penal Code, a man is said to commit the ‘rape’ if he penetrates his penis into the vagina, mouth, urethra, or anus of a woman to any extent; if he inserts any object or a part of the body, not being the penis, into the vagina, the urethra, or anus of a woman, or makes her do so with him or any other person, or if he applies his mouth to the vagina, anus, urethra of a woman, or makes her do the same with him or any other person.

The court decides the acts mentioned above are rape on the following points:

1. It happens without her consent and against her will.
2. She agrees, but just because she or someone she knows is in danger.
3. She agrees because she believes the other person to be her husband.
4. When she is under 18 years of age.
5. The act is performed with her consent, but at the time of giving consent, she is of unsound mind, intoxicated or unconscious.

Gang Rape

Section 376 of IPC defines gang rape as where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention; each of those persons shall be deemed to have committed the offence of gang rape. In short, when a woman is raped by one or more persons of a group, each of them has committed the gang rape.

Aggravated Rape

Aggravated rape is an offence of rape that is committed when either the victim or that criminal is in a special position. Rape, which results in the death of the victim or her ending up in a permanent vegetative state, and gang rape, is another form of aggravated rape.

Marital Rape

Marital rape is an act of sexual intercourse by a man with his wife without her consent. It is not a criminal offence under the IPC. Section 375 of the Indian Penal Code considers forced sex in marriages as a crime only when the wife is below age 15.

If a couple is married, but living separately, then the ‘marital rape’ exception no longer applies, and the husband can be convicted of rape if there is no consent. The punishment for the husband is imprisonment for a term of between 2-7 years with a fine.

Related: What Is the Legal Status of Marital Rape in India?

Some Recent Rape Cases in India

Ajmer Rape Case, 1992

The Ajmer rape case of 1992 was one of India’s biggest cases of coerced sexual exploitation. The incident happened in Ajmer, Rajasthan. In this case, a group of men was found to be targeting young girls.

Firstly, Farooq Chisty tricked a girl from Sophia Senior Secondary school, Ajmer, and captured her obscene photos. After that, he blackmailed the girl by saying that he would show the pictures to her friends and classmates. In time, other girls were also raped and sexually exploited. This cycle continued so forth.

The incident came out after ‘Navjyoti,’ a local paper, published some nude images and a story that spoke about school students being blackmailed by local gangs. At last, 18 serial offenders were charged in court. Eight out of them were convicted for life, and four among them were later acquitted in 2001.

Delhi Gang Rape Case, 2012

The case is also known as the Nirbhaya Rape case. In 2012, a 23-year-old student was gang-raped on a bus. The girl was with her male friend, and they boarded an off-duty bus to return home after watching a movie at an upscale mall. Six men who were already on the bus raped the girl after brutally assaulting her with an iron rod. Her friend was beaten by the same rod. They were then thrown out of the bus, naked. The victim died after two weeks.

Mumbai Gang Rape Case, 2013

This case is most famously known as the Shakti Mills Gang Rape case. In 2013, a 22-year-old photojournalist was gang-raped by five persons, including a juvenile, when she had gone to the deserted Shakti Mills compound, near Mahalaxmi in South Mumbai, with a male colleague for an assignment. Her colleague was beaten and tied with the belt during the incident. Three of the accused, who were adults, were hanged till death, and the juvenile was sent to a correction facility for three years to the Juvenile Justice Board and sentenced to three years (including time in custody) in a Nasik reform school.

Rape of 86-Year-Old woman, Delhi, 2020

The woman was outside her house, waiting for the milkman in the Chhawla village area of Delhi on September 7, 2020, when a 32-year-old man allegedly approached her. The man took her to a nearby farm, and he raped her there. The accused is a resident of the Rewla Khanpur locality in Delhi. The woman was rescued by local villagers who heard her sound of cries while passing by the farm. They rescued the woman and caught the accused red-handed. Villagers handed over the accused to the police.

Rape and Murder of 13-Year-Old Girl, Uttar Pradesh, 2020

The incident took place in August 2020 in Pakaria village in the Lakhimpur Kheri district. The girl went to pee out in the fields. When she didn’t return home after a long time, the family went to search for her. They said that they found serious injuries on the body. The post-mortem examination concluded that she had died from strangulation after being raped.

Hathras Gang Rape Case, Uttar Pradesh, 2020

The incident took place in Hathras, Uttar Pradesh, on September 29, 2020. As per reports, a 19-year-old girl was working in her field when four men dragged her by her dupatta and gang-raped her. The girl had multiple fractures and was in the intensive care unit for two weeks. At first, she was taken to the Chand Pa police station, where the police rejected her claims and, according to the family, also humiliated them. Just before she died on 29th September 2020, she was moved to Delhi, but unfortunately, she succumbed to her injuries.

Reasons Behind Rape

We all know the famous statistics. In India, a woman is raped every 15 minutes, and this includes the cases that are not reported. In my opinion, the reasons for the RAPE of a child or woman are:

1. Low status of women: In India, gender equality is still prevailing. Also, India is amongst the countries in the world that have the lowest women’s health and safety. Women are treated as inferior. A wife’s duty is considered to serve his husband.

2. Inappropriate guidance in sex education: We Indians hesitate in talking about sexuality, reproductive rights, menstruation, or sexual desires. But the reality is this aspect has a lot of potential to change the current landscape. Providing adolescent education or sex education in primary school might remove the root cause of the problem.

3. Lot of laws but no justice: India has too many laws, but the problem lies with the enforcement. Delay in trials, slow investigation, and low rate of conviction is other important cause. The conviction rate in India is around 26%. India has about 15 judges for every 1 million people, while China has 159 judges.

In the Hyderabad case, the police refused to lodge a complaint and did not track her phone, saying that she must have ‘eloped with her boyfriend.’ The woman’s family had also told the National Commission for Women that Hyderabad Police wasted precious time, which could have saved her life.

4. Lack of Public Safety: There is no safety for women. Women who drink, smoke, or go to pubs are seen as morally loose in Indian society. No matter what time of the day it is, a woman is seen as an object of entertainment. Street lights in many cities are still extremely poor. Also, the absence of women’s toilets is a cause of serious concern to women’s safety.

5. Blaming clothing: People often judge girls by their clothes. Nevertheless, the victims are often blamed for wearing provocative clothes. A legislator in Rajasthan suggested banning skirts as a uniform for girls in private schools, citing it as the reason for increased sexual harassment cases.

6. Less number of female police: According to studies, it can be concluded that women are more likely to report sexual crimes to female police as they are more comfortable with them. When a woman reports to male police, they often have a fear of being demeaned by them. Women, most of the time, prefer to stay silent or ignored when they face sexual violence. They believe that if they speak up, nobody will support them.

“The police refused to file a complaint. Instead, they asked my sister such vulgar details; it was as if she was being raped all over again. There was no lady police officer; they were all men. My sister cried in front of them and kept asking, ‘would you still ask such questions if I were your daughter?‘” – The rape victim’s sister said in a telephone interview from her village.

How Decriminalizing Prostitution Reduces Rape?

India, by decriminalizing prostitution (making prostitution legal), can reduce sexual offences in society. Decriminalizing sex provides an anonymous, appealing, and easily accessible outlet for sex to otherwise violent individuals.

With a legal and easier alternative available, people who wish to satisfy their sexual urges or desires will resort to prostitutes rather than committing heinous sexual crimes such as rapes for the same purpose.

When the Rhode Island legislature inadvertently decriminalized indoor prostitution for several years, the state saw a 30 percent decline in reported rapes and a 40 percent decline in female gonorrhea incidence.

Also, with the closure of brothels in 1959, Queensland experienced a 149% increase in the rate of rape. When prostitution is decriminalized and regulated, sexual predators are less likely to strike at any random woman.

Legal Provisions Related to Rape

Indian Penal Code, 1860

Section 228A: Disclosure of the identity of the victim of certain offences, etc.

The section was added by Criminal Law (Amendment) Act, 1983. This section of IPC makes disclosure of the identity of rape victims a punishable offence. As per the section 228A, if any person prints or publishes the name of the victim or any matter from which the identity of a victim of any of the offences under sections 376, 376-A, 376-B, 376-C, and 376-D may be known, shall be punished with simple or rigorous imprisonment for a term extending up to two years and also be liable to fine.

Section 376(1): Punishment for Rape

This section provides for the punishment of the Rape. As per this section, any person who commits rape shall be punishable with rigorous imprisonment of either description for a term of not less than 10 years, but it may extend to imprisonment for a lifetime and shall also be liable to fine. It also provides for the exception a person is not punishable for the cases that are provided under section 376(2) of the IPC.

Section 376(2) (a), (b), (c) and (d): Punishment for Custodial Rape

This section of the IPC provides for custodial rape. If rape is committed on a woman in their or their subordinate’s custody – a police officer, within the limits of the police station to which he is appointed, or in the premises of any station house whether or not situated in the police station to which he is appointed, or on a woman in his custody or in the custody of a police officer subordinate to him, or by a public servant, or by the management or the staff of a jail, remand home or other places of custody, or a women’s or children’s institution, or being on the management or on the staff of a hospital, shall be punishable with rigorous imprisonment for a term of not less than 10 years, but it may extend to imprisonment for lifetime and shall also be liable to fine. A court may also impose imprisonment of description for a term of less than ten years for an adequate and special reason.

Section 376(2) (e), (f): Punishment for rape on a pregnant woman and to a woman who is under 12 years of age

As per this section, if any person commits a rape to a woman knowing her to be pregnant or less than the age of 12-years-old shall be punishable with rigorous imprisonment for a term of not less than 10 years, which may extend to imprisonment for lifetime and shall also be liable to fine. A court may also impose a sentence of imprisonment of description for a term of less than ten years for an adequate and special reason.

Section 376(2) (g): Punishment for Gang Rape

This section provides for the punishment of gang rape. Gang rape is defined above. A person committing a gang rape shall be punishable with rigorous imprisonment for a term of not less than 10 years, which may extend to imprisonment for lifetime, and shall also be liable to fine. A court may also impose a sentence of imprisonment of description for a term of less than ten years for an adequate and special reason.

Section 376A: Punishment for causing death or resulting in a persistent vegetative state of the victim

As per this section, if any person at the time of committing offences provided under sub-section (1) or sub-section (2) of section 376 of IPC causes the death of a woman or such bodily injury that may result in the death or causes a woman to be in the persistent vegetative state shall be punishable with rigorous imprisonment for a term of not less than 20 years, but it may extend to imprisonment for life or with death.

Section 376B: Sexual intercourse by husband upon his wife during separation

If any person commits sexual intercourse with her wife, who is living separately under a decree or separation or otherwise, shall be liable to punishment with imprisonment of either description for a term of not less than 2 years, and it can also be extended for a term of 7 years and also be held liable to fine.

Section 376C: Sexual intercourse by a person in authority

According to this section, any person who being in a position of authority or a fiduciary relationship; or a public servant; or superintendent or manager of jail; or being on the management of the hospital or being on the staff of a hospital, induces or seduces any woman to have sexual intercourse with him, such sexual intercourse can be said as rape and shall be punishable with rigorous imprisonment of either description of not less than 5 years, and it may extend to 10 years and shall also be liable to fine.

Section 376E: Punishment for repeat offenders

This section provides punishment for the offenders, who are being convicted for the second time for rape, rape causing death or resulting in a permanent vegetative state, or gang rape. Such an offender shall be punishable with imprisonment for life or with death.

Criminal Procedure Code, 1973

Section 164A: Medical Examination of the Victim of the Rape

Under this section, provisions for the medical examination of the rape victim are given. It provides that the medical examination should be conducted by a registered medical practitioner employed in a hospital run by a Government or by a local authority. It also states that the victim should be sent to such a registered practitioner within 24 hours from the time of receiving the information about the commission of the offence.

Section 327(2): Court to be open

This section provides for the trial of rape or an offence provided under section 376, 376A, 376B, 376C, or 376D of the IPC, to be conducted in front of the camera. It also provides that if the presiding judge thinks it to be fit or an application by either of the parties received, it may allow a particular person to access the room or building where the trial is being held.

Anti-Rape Bill

Anti-Rape Bill came into force in 2013. It provides for life term punishment and even death sentence for rape convicts. It also provides punishment for strict offences like acid attacks, stalking, and voyeurism. It has amended various sections of the IPC, CrPC, and the Protection of Children from Sexual Offences Act.

For the first time, the law defines stalking and voyeurism as non-bailable offences, in case they are repeated. It has also defined an acid attack as a crime and granted a victim the right to self-defense. The law has also fixed the age for consensual sex, i.e., 18 years. It also provides that all the hospitals should provide medical treatment free of cost immediately to rape and acid attack victims.

Conclusions

Rape cases in India are rising day by day. Women are not safe, neither in the daylight nor in the night. In India, a woman is reportedly raped every 15 minutes. Moreover, Rape is the fourth most common crime against a woman in India.

Although there are laws in India to protect a woman from sexual offences and rape, talking about justice, is rarely received in India. Also, the conviction rate is too low in India.

Often, rape victims do not report to the police because they hesitate to make a complaint due to the stigma attached to it in society. Society, most of the time, blames only the victim either by saying they have male friends or they wear provocative clothes, or they walk out of the home at night.

Majorly, victims do not come forward to complain because they are not aware of the laws that have been made for their protection and safety. Honestly speaking, it is bitter but true; even police officials do not worry about the victims.

India still needs to make more strict laws for rapes. The women neither ask nor deserve to be raped, abused, or assaulted.

In my view, providing self-defense training to a woman should be made mandatory at the school level. Providing adequate sex education at the primary level of school can also help reduce rape in India to some extent.

Measures need to be taken by the Government to introduce laws to every citizen. We should establish zero-tolerance policies for sexual harassment and violence at the place where we live or work.

But, again, the question that arises is what if the laws have been made and there is no change in society? What about the mentality of the people living in society? What about old customs and traditions?

Read Next:
1. Why Marital Rape Should Be Criminalised and Why It Shouldn’t
2. Major Amendments Made By the Criminal Law (Amendment) Act, 2018

Rape in India – IPC
Subhashini Parihar

Punishment for Rape in India

There should be merciless and inexorable punishment for offenders of sexual assault. They are a menace to the civilized society and should be punished in the severest terms.

“Judges who bear the sword of justice should not hesitate to use that sword with the utmost severity if the gravity of the offense so demands.”

Rape Every Hour in India!

Nowadays, with the passage of every single hour comes news of a rape case. It has become like a ringing bell which rings after every hour to remind us that culprits need to get a stringent punishment else it is not going to stop.

It is often said that “Justice should not only be done but should also be visible.”

Death Penalty in Rare of the Rarest Cases

My question is that the Indian Penal Code already defines the death penalty in ‘rare of the rarest cases‘ as propounded in Bachan Singh vs. the State of Punjab, but where are these cases?

How many cases have been put under the category of rare of rarest theory? How many death penalties have already been given to the culprits? What’s the percentage of hanging to death?

I know you are surprised because you must be able to count it on fingers, as there are very few death penalties given.

Deterrent Theory of Punishment for Rapes

In order to minimize cases like rape, we need to adopt the “deterrent theory of punishment.”

As in today’s era, people have lost their thinking power as to what is right and wrong.

In my view, the death sentence is nothing but a joke for the person accused of rape. The punishment should be such which would deter the whole society as to make them think that if they commit such offense, then they are are going to suffer the pain.

Rape has nothing to do with the age factor; whether a girl or a woman, a mother or a sister, all are carrying the same portion of respect.

Knowledge of Sex Education from Early Age

From the very basic, families need to impart sex education as it is essential to their children. Somewhere families lack in doing this. They hesitate to confront their children on sex education, which in fact, is so important. We have to break this barrier of hesitation!

Conclusion

India is among the top ten countries for the offense of rape. People do not have a fear of committing this offense.

Austin, in his definition of the law, said, “law is a command of sovereign passed by sanction.”
We need to work on sanctions!

This article has been written by Arushi, who is a final-year law student from New Delhi, India. Opinions expressed are hers.

Editor’s Note

Death in rape cases is much needed, but we have to think that if there is a death penalty for every rape case, then there may be an increase in the number of murders after rape. The rapist would be incited to murder the victim after rape so as to erase all proofs.

Rapes are usually committed in isolation. The victim is the only primary testimony to the incident of rape. Until we strengthen our police system, make CCTV cameras available in isolated streets and corners, raise mass awareness, the idea of the death penalty for EVERY rape case sounds a bit scary.

The day we have a robust mechanism in place, there should be no delay in hanging the rapist, the moment charges against him are proved.

What do you think?

Read Next:
1. What Is the Legal Status of Marital Rape in India?
2. Why Marital Rape Should Be Criminalised and Why It Shouldn’t

Death Punishment for Every Rape Has a Problem!
Arushi

SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 BARE ACT

An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and of matters connected therewith or incidental thereto.

Where as sexual harassment results in violation of the fundamental rights of a woman to equality under Article 14 and 15 of the Constitution of India and her right to life and to live with dignity under Article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes right to safe environment, free from sexual harassment;

And where as the protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on 25 June, 1993 by the Government of India;

And whereas it is expedient to make provisions for giving affect to the said Convention for protection of women against sexual harassment at workplace.

Be it enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows-

CHAPTER I – PRELIMINARY

1. Short title, extent and commencement.

1. This Act may be called the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

DOWNLOAD PDF FOR THIS ACT. PDF IS COLOURFUL AND HAS LINKS JUST LIKE THIS WRITTEN POST

2. It extends to the whole of India.

3. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions.

In this Act, unless the context otherwise requires-
(a) “aggrieved woman” means-
(i) in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;
(ii) in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house;

(b) “appropriate Government” means-
(i) in relation to a workplace which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly-
(A) by the Central Government or the Union territory administration, the Central Government;
(B) by the State Government, the State Government;

(ii) in relation to any workplace not covered under sub-clause (i) and falling within its territory, the State Government;

(c) “Chairperson” means the Chairperson of the Local Complaints Committee nominated under sub-section (l) of section 7;

(d) “District Officer” means an officer notified under section 5;

(e) “domestic worker” means a woman who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or full time basis, but does not include any member of the family of the employer;

(f) “employee” means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name;

(g) “employer” means-
(i) in relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf;
(ii) in any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace.

Explanation-
For the purposes of this sub-clause “management” includes the person or board or committee responsible for formulation and administration of polices for such organisation;

(iii) in relation to workplace covered under sub-clauses (i) and (ii), the person discharging contractual obligations with respect to his or her employees;
(iv) in relation to a dwelling place or house, a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker;

(h) “Internal Committee” means an Internal Complaints Committee constituted under section 4;

(i) “Local Committee” means the Local Complaints Committee constituted under section 6;

(j) “Member” means a Member of the Internal Committee or the Local Committee, as the case may be;

(k) “prescribed” means prescribed by rules made under this Act;

(l) “Presiding Officer” means the Presiding Officer of the Internal Complaints Committee nominated under sub-section (2) of section 4;

(m) “respondent” means a person against whom the aggrieved woman has made a complaint under section 9;

(n) “sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely-
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

(o) “workplace” includes-
(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services or financial activities including production, supply, sale, distribution or service;
(iii) hospitals or nursing homes;
(iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
(v) any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey;
(vi) a dwelling place or a house;

(p) “unorganised sector” in relation to a workplace means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.

3. Prevention of sexual harassment.

(1) No woman shall be subjected to sexual harassment at any workplace.

(2) The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment-
(i) implied or explicit promise of preferential treatment in her employment; or
(ii) implied or explicit threat of detrimental treatment in her employment; or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety.

CHAPTER II- CONSTITUTION OF INTERNAL COMPLAINTS COMMITTEE

4. Constitution of Internal Complaints Committee.

(1) Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee”:
Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.

(2) The Internal Committee shall consist of the following members to be nominated by the employer, namely-
(a) a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees:
Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub-section (l):
Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation;

(b) not less than two members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;

(c) one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment:
Provided that at least one-half of the total Members so nominated shall be women.

(3) The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer.

(4) The Member appointed from amongst the non-governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed.

(5) Where the Presiding Officer or any Member of the Internal Committee-
(a) contravenes the provisions of section 16; or
(b) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or
(c) he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or
(d) has so abused his position as to render his continuance in office prejudicial to the public interest, such Presiding Officer or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.

CHAPTER III – CONSTITUTION OF LOCAL COMPLAINTS COMMITTEE

5. Notification of District Officer.

The appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer for every District to exercise powers or discharge functions under this Act.

6. Constitution and jurisdiction of Local Complaints Committee.

(1) Every District Officer shall constitute in the district concerned, a committee to be known as the “Local Complaints Committee” to receive complaints of sexual harassment from establishments where the Internal Complaints Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself.

(2) The District Officer shall designate one nodal officer in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned Local Complaints Committee within a period of seven days.

(3) The jurisdiction of the Local Complaints Committee shall extend to the areas of the district where it is constituted.

7. Composition. tenure and other terms and conditions of Local Complaints Committee.

(1) The Local Complaints Committee shall consist of the following members to be nominated by the District Officer, namely-
(a) a Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women;

(b) one Member to be nominated from amongst the women working in block, taluka or tehsil or ward or municipality in the district;

(c) two Members, of whom at least one shall be a woman, to be nominated from amongst such non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment, which may be prescribed:
Provided that at least one of the nominees should, preferably, have a background in law or legal knowledge:
Provided further that at least one of the nominees shall be a woman belonging to the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or minority community notified by the Central Government, from time to time;

(d) the concerned officer dealing with the social welfare or women and child development in the district, shall be a member ex officio.

(2) The Chairperson and every Member of the Local Committee shall hold office for such period, not exceeding three years, from the date of their appointment as may be specified by the District Officer.

(3) Where the Chairperson or any Member of the Local Complaints Committee-
(a) contravenes the provisions of section 16; or

(b) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or

(c) has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or

(d)  has so abused his position as to render his continuance in office prejudicial to the public interest,
such Chairperson or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.

(4) The Chairperson and Members of the Local Committee other than the Members nominated under clauses (b) and (d) of sub-section (1) shall be entitled to such fees or allowances for holding the proceedings of the Local Committee as may be prescribed.

8. Grants and audit.

(1) The Central Government may, after due appropriation made by Parliament by law in this behalf, make to the State Government grants of such sums of money as the Central Government may think fit, for being utilised for the payment of fees or allowances referred to in sub-section (4) of section 7.

(2) The State Government may set up an agency and transfer the grants made under sub-section (1) to that agency.

(3) The agency shall pay to the District Officer, such sums as may be required for the payment of fees or allowances referred to in sub-section (4) of section 7.

(4) The accounts of the agency referred to in sub-section (2) shall be maintained and audited in such manner as may, in consultation with the Accountant General of the State, be prescribed and the person holding the custody of the accounts of the agency shall furnish, to the State Government, before such date, as may be prescribed, its audited copy of accounts together with auditors’ report thereon.

CHAPTER IV – COMPLAINT

9. Complaint of sexual harassment.

(1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at work place to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:
Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:
Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.

(2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.

10. Conciliation.

(1) The Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation:
Provided that no monetary settlement shall be made as a basis of conciliation.

(2) Where a settlement has been arrived at under sub-section (I), the Internal Committee or the Local Committee, as the case may be, shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation.

(3) The Internal Committee or the Local Committee, as the case may be, shall provide the copies of the settlement as recorded under sub-section (2) to the aggrieved woman and the respondent.

(4) Where a settlement is arrived at under sub-section (1), no further inquiry shall be conducted by the Internal Committee or the Local Committee, as the case may be.

11. Inquiry Into complaint.

(1) Subject to the provisions of section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code, and any other relevant provisions of the said Code where applicable:
Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub-section (2) of section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police:
Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.

(2) Notwithstanding anything contained in section 509 of the Indian Penal Code, the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section 15.

(3) For the purpose of making an inquiry under sub-section (I), the Internal Committee. or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents; and
(c) any other matter which may be prescribed.

(4) The inquiry under sub-section (I) shall be completed within a period of ninety days.

CHAPTER V – INQUIRY INTO COMPLAINT

12. Action during pendency of inquiry.

(1) During the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to-
(a) transfer the aggrieved woman or the respondent to any other workplace; or
(b) grant leave to the aggrieved woman up to a period of three months; or
(c) grant such other relief to the aggrieved woman as may be prescribed.

(2) The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.

(3) On the recommendation of the Internal Committee or the Local Committee, as the case may be, under sub-section (1), the employer shall implement the recommendations made under sub-section (1) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be.

13. Inquiry report.

(1) 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 often days from the date of completion of the inquiry and such report be made available to the concerned parties.

(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.

(3) 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 be-

(i) 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;

(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15:
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, as the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

(4) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him. Punishment for false or malicious complaint and false evidence.

14. Punishment for false or malicious complaint and false evidence.

(1) Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint under sub-section (I) or sub-section (2) of section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be prescribed:
Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this section:
Provided further that the malicious intent on part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action IS recommended.

(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that during the inquiry any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness or the District Officer, as the case may be, to take action in accordance with the provisions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed.

15. Determination of compensation.

For the purpose of determining the sums to be paid to the aggrieved woman under clause (ii) of sub-section (3) of section 13, the Internal Committee or the Local Committee, as the case may be, shall have regard to-
(a) the mental trauma, 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.

16. Prohibition of publication or making known contents of complaint and inquiry proceedings.

Notwithstanding anything contained in the Right to Information Act, 2005, the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner:
Provided that information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.

17. Penalty for publication or making known contents of complaint and inquiry proceedings.

Where any person entrusted with the duty to handle or deal with the complaint, inquiry or any recommendations or action to be taken under the provisions of this Act, contravenes the provisions of section 16, he shall be liable for penalty in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist, in such manner as may be prescribed.

18. Appeal.

(1) Any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3) of section 13 or subsection (l) or sub-section (2) of section 14 or section 17 or non-implementation of such recommendations may prefer an appeal to the court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may be prescribed.

(2) The appeal under sub-section (1) shall be preferred within a period of ninety days of the recommendations.

CHAPTER VI – DUTIES OF EMPLOYER

19. Duties of employer.

Every employer shall-
(a) provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the work-place;

(b) display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under subsection (I) of section 4;

(c) organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;

(d) provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;

(e) assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;

(f) make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of section 9;

(g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force;

(h) cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;

(i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;

(j) monitor the timely submission of reports by the Internal Committee.

CHAPTER VII – DUTIES AND POWERS OF DISTRICT OFFICER

20. Duties and powers of District Officer.

The District Officer shall-
(a) monitor the timely submission of reports furnished by the Local Committee;
(b) take such measures as may be necessary for engaging non-governmental organisations for creation of awareness on sexual harassment and the rights of the women.

CHAPTER VIII – MISCELLANEOUS

21. Committee to submit annual report.

(1) The Internal Committee or the Local Committee, as the case may be, shall in each calendar year prepare, in such form and at such time as may be prescribed, an annual report and submit the same to the employer and the District Officer.

(2) The District Officer shall forward a brief report on the annual reports received under sub-section (1) to the State Government.

22. Employer to include information In annual report.

The employer shall include in its report the number of cases filed, if any, and their disposal under this Act in the annual report of his organisation or where no such report is required to be prepared, intimate such number of cases, if any, to the District Officer.

23. Appropriate Government to monitor implementation and maintain data.

The appropriate Government shall monitor the implementation of this Act and maintain data on the number of cases filed and disposed of in respect of all cases of sexual harassment at workplace.

24. Appropriate Government to take measures to publicise the Act.

The appropriate Government may, subject to the availability of financial and other resources,-
(a) develop relevant information, education, communication and training materials, and organise awareness programmes, to advance the understanding of the public of the provisions of this Act providing for protection against sexual harassment of woman at work-place,

(b) formulate orientation and training programmes for the members of the Local Complaints Committee.

25. Power to call for information and inspection of records.

(1) The appropriate Government, on being satisfied that it is necessary in the public interest or in the interest of women employees at a workplace to do so, by order in writing-
(a) call upon any employer or District Officer to furnish in writing such information relating to sexual harassment as it may require;

(b) authorise any officer to make inspection of the records and workplace in relation to sexual harassment, who shall submit a report of such inspection to it within such period as may be specified in the order.

(2) Every employer and District Officer shall produce on demand before the officer making the inspection all information, records and other documents in his custody having a bearing on the subject matter of such inspection.

26. Penalty for non-compliance with provisions of Act.

(1) Where the employer fails to-
(a) constitute an Internal Committee under sub-section (1) of section 4;

(b) take action under sections 13, 14 and 22; and

(c) contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made there under, he shall be punishable with fine which may extend to fifty thousand rupees.

(2) If any employer, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to-
(i) twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offence:
Provided that in case a higher punishment is prescribed under any other law for the time being in force, for the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment;

(ii) cancellation, of his licence or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity.

27. Cognizance of offence by courts.

(1) No court shall take cognizance of any offence punishable under this Act or any rules made there under, save on a complaint made by the aggrieved woman or any person authorised by the Internal Committee or Local Committee in this behalf.

(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

(3) Every offence under this Act shall be non-cognizable.

28. Act not in derogation of any other law.

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

29. Power of appropriate Government to make rules.

(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely-
(a) the fees or allowances to be paid to the Members under sub-section (4) of section 4;

(b) nomination of members under clause (c) of sub-section (I) of section 7;

(c) the fees or allowances to be paid to the Chairperson, and Members under sub-section (4) of section 7;

(d) the person who may make complaint under sub-section (2) of section 9;

(e) the manner of inquiry under sub-section (I) of section 11;

(f) the powers for making an inquiry under clause (c) of sub-section (2) of section I I;

(g) the relief to be recommended under clause (c) of sub-section (I) of section 12;

(h) the manner of action to be taken under clause (i) of sub-section (3) of section 13;

(i) the manner of action to be taken under sub-sections (1) and (2) of section 14;

(j) the manner of action to be taken under section 17;

(k) the manner of appeal under sub-section (1) of section 18;

(l) the manner of organising workshops, awareness programmes for sensitising the employees and orientation programmes for the members of the Internal Committee under clause (c) of section 19; and

(m) the form and time for preparation of annual report by Internal Committee and the Local Committee under sub-section (I) of section 21.

(3) Every rule made by the Central Government under this Act shall be laid as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

(4) Any rule made under sub-section (4) of section 8 by the State Government shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.

30. Power to remove difficulties.

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act, as may appear to it to be necessary for removing the difficulty:
Provided that no such order shall be made under this section after the expiry of a period of two years from the commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

Related:

• Maternity Benefit Act, 1961
• Married Women’s Property Act
• Hindu Adoptions and Maintenance Act, 1956
• Dowry Prohibition Act, 1961
• Protection of Women From Domestic Violence Act, 2005

Sexual Harassment of Women at Workplace Prevention, Prohibition and Redressal Act, 2013
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