Empowering Women: Laws, Safety Measures & The Path Forward After R.G. Kar Hospital Tragedy

Published On - September 8, 2024

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Strengthening India’s Legal Framework to Combat Sexual Crimes: A Comprehensive Overview

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Introduction:

The recent tragic incident at R.G. Kar Hospital has reignited the conversation around sexual crimes against women in India. Despite the existence of stringent laws, the rising instances of such crimes demand a closer look at the current legal framework, its implementation, and potential reforms. This blog aims to provide a detailed overview of the legal protections available to women, the amendments made post-Nirbhaya, and the steps necessary to improve the system.

The Vishaka Guidelines and the Sexual Harassment of Women at Workplace Act, 2013

In 1997, the Supreme Court of India established the Vishaka Guidelines in response to the lack of legal provisions addressing sexual harassment at the workplace. These guidelines laid a framework for preventing and addressing sexual harassment, based on the fundamental rights enshrined in the Indian Constitution.

Key Provisions of the Vishaka Guidelines:

  1. Preventive Measures: Employers were required to take steps to ensure that no woman faced sexual harassment at the workplace.
  2. Redressal Mechanism: Establishment of a Complaints Committee at every workplace, headed by a woman, with at least half of its members being women.
  3. Awareness and Education: Employers were mandated to organize awareness programs to educate employees about the legal rights of women.

The Vishaka Guidelines laid the foundation for the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. This Act replaced the guidelines and established a more comprehensive legal framework.

Key Provisions of the 2013 Act:

  1. Internal Complaints Committee (ICC): Every employer must constitute an ICC at each office or branch with 10 or more employees. The ICC is responsible for investigating complaints and recommending actions.
  2. Local Complaints Committee (LCC): For establishments with fewer than 10 employees, or where the ICC is not feasible, a Local Complaints Committee must be constituted by the district officer.
  3. Time-bound Investigation: The ICC or LCC is required to complete the inquiry within 90 days, and the employer must act on the recommendations within 60 days.
  4. Employer’s Responsibility: Employers must take steps to prevent sexual harassment, including displaying notices, conducting awareness programs, and ensuring a safe working environment.
  5. Penalties: Non-compliance with the provisions of the Act can result in fines, and repeat offenses may lead to the cancellation of business licenses.

Preventing Sexual Crimes in the Workplace:

To effectively prevent sexual crimes in the workplace, it is crucial to foster a culture of respect and accountability. Organizations should implement comprehensive training programs that educate employees about acceptable behavior and the consequences of misconduct. Ensuring a transparent and accessible complaint mechanism, regular audits of workplace policies, and strong disciplinary actions against offenders are essential steps. Additionally, encouraging bystander intervention and creating a supportive environment where victims feel safe to report incidents can significantly reduce the occurrence of sexual harassment.

Post-Nirbhaya Reforms and the Indian Penal Code (IPC) Amendments

The horrific gang rape and murder of a young woman in Delhi in December 2012, widely known as the Nirbhaya case, led to widespread protests and demands for stronger laws to combat sexual crimes. The Criminal Law (Amendment) Act, 2013, introduced significant changes to the IPC, the Code of Criminal Procedure (CrPC), and the Indian Evidence Act. These provisions were carried forward and further refined in the Bharatiya Nyaya Sanhita (BNS) 2023, with stricter punishments and broader definitions to cover more offenses.

Key Amendments to the IPC (and Corresponding BNS Sections):

  1. Section 376 (Rape): The definition of rape was expanded to include non-penetrative acts, and the minimum punishment was increased to 10 years, which may extend to life imprisonment. (BNS Section 63)
  2. Section 376A (Punishment for causing death or resulting in a persistent vegetative state of the victim): This section provides for rigorous imprisonment for a term not less than 20 years, which may extend to life imprisonment, or death. (BNS Section 64)
  3. Section 376B (Sexual intercourse by husband upon his wife during separation): Punishable with imprisonment of 2 to 7 years and a fine. (BNS Section 65)
  4. Section 376C (Sexual intercourse by a person in authority): Punishable with imprisonment of 5 to 10 years and a fine. (BNS Section 66)
  5. Section 376D (Gang Rape): Introduced life imprisonment as the minimum punishment. (BNS Section 67)
  6. Section 354 (Assault or criminal force to woman with intent to outrage her modesty): Imprisonment increased to 1 to 5 years and a fine. (BNS Section 73)
  7. Section 354A (Sexual harassment): Punishable with imprisonment up to 3 years, or fine, or both. (BNS Section 74)
  8. Section 354B (Assault or use of criminal force to woman with intent to disrobe): Punishable with imprisonment of 3 to 7 years and a fine. (BNS Section 75)

The POCSO Act: Protecting Children from Sexual Offenses

The Protection of Children from Sexual Offenses (POCSO) Act, 2012, was enacted to provide a robust legal framework for the protection of children from sexual abuse and exploitation. It defines a child as any person below the age of 18 years and is gender-neutral.

Key Provisions of the POCSO Act:

  1. Types of Offenses: The Act categorizes offenses such as penetrative sexual assault, non-penetrative sexual assault, sexual harassment, and using a child for pornographic purposes.
  2. Mandatory Reporting: Any person, including a child, who has knowledge of the commission of an offense under the Act, is required to report the same to the authorities. Failure to do so is punishable under the Act.
  3. Special Courts: The Act mandates the establishment of Special Courts for the trial of offenses under the Act, ensuring child-friendly procedures.
  4. Child-friendly Procedures: The Act requires that the victim not be exposed to the accused, the identity of the child is protected, and the child is not unduly harassed during the investigation and trial.
  5. Punishments: The Act provides stringent punishments, ranging from imprisonment for not less than three years to life imprisonment and fines, depending on the nature of the offense.

Provisions in the Information Technology (IT) Act, 2000

The IT Act, 2000, includes provisions to combat online sexual harassment, pornography, and cyberstalking:

  1. Section 66E: Punishes the violation of privacy by capturing, publishing, or transmitting private images of individuals without their consent.
  2. Section 67: Penalizes the transmission of obscene content in electronic form.
  3. Section 67A: Specifically addresses the publication and transmission of sexually explicit material in electronic form.
  4. Section 67B: Addresses child pornography, making it a punishable offense to publish or transmit material depicting children in sexually explicit acts.

Forensic Evidence in Sexual Crimes

Forensic evidence plays a crucial role in the investigation and prosecution of sexual crimes. The following are common types of forensic evidence collected:

  1. Biological Evidence: Includes DNA samples, semen, blood, saliva, hair, and skin cells. DNA profiling from these samples can help identify the perpetrator.
  2. Physical Evidence: Clothing, fibers, or any objects found at the crime scene that may have traces of bodily fluids.
  3. Toxicology Reports: To determine if the victim was drugged or intoxicated at the time of the assault.
  4. Medical Examination Reports: Detailed examination of the victim’s injuries, which can corroborate the victim’s testimony.
  5. Trace Evidence: Includes any small or microscopic evidence, such as hair or fiber, that may have been transferred between the victim and the perpetrator.
  6. Digital Evidence: In cases of online harassment or cyberstalking, digital footprints, including emails, social media messages, and browsing history, are crucial.

Reasons for Rising Sexual Crimes in India

Despite the presence of laws, sexual crimes in India have been on the rise due to several factors:

  1. Social Stigma: Victims often refrain from reporting crimes due to fear of social ostracization and character assassination.
  2. Underreporting: Many cases go unreported, especially in rural areas, due to a lack of awareness and fear of police or judicial procedures.
  3. Ineffective Law Enforcement: Delays in investigation and prosecution, coupled with low conviction rates, embolden perpetrators.
  4. Cultural Norms: Patriarchal attitudes and gender inequality perpetuate the idea of women as subordinate, leading to higher instances of gender-based violence.
  5. Lack of Proper Education: Inadequate sex education and awareness about consent contribute to the normalization of sexual violence.
  6. Insufficient Education on ‘Good Touch and Bad Touch’: A significant gap in the educational system is the lack of teaching about ‘good touch’ and ‘bad touch,’ leaving children vulnerable to abuse. Making this education mandatory as part of the curriculum can empower children to recognize

State and National Schemes for Women’s Protection:

Various state and national schemes have been implemented to protect women and address gender-based violence:

  1. One Stop Centers (OSC): Established under the Nirbhaya Fund, these centers provide integrated support and assistance to women affected by violence, including police assistance, medical aid, legal aid, and counseling.
  2. Women Helpline Scheme (181): A 24×7 toll-free helpline that provides emergency response to women in distress.
  3. Mahila Police Volunteers (MPVs): An initiative where community-based volunteers act as a bridge between the police and the community to report cases of violence against women.
  4. Ujjawala Scheme: A comprehensive scheme for the prevention of trafficking and rescue, rehabilitation, and reintegration of victims of trafficking.
  5. Swadhar Greh: A scheme for women in difficult circumstances, providing shelter, food, clothing, and care.

Conclusion: Moving Forward

India has made significant strides in strengthening its legal framework to combat sexual crimes. However, the rising incidents of such crimes highlight the need for continued vigilance, awareness, and proactive measures. Education, law enforcement, societal change, and stringent legal provisions must work in tandem to create a safer environment for women and children.

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VISHAKA JUDGEMENT