Mid-Day Explains | Women’s safety and justice: A deep dive into how the law protects women against sexual offences

Trigger warning: Mentions of sexual harassment, abuse and rape

There were 4,45,256 cases of crimes against women in 2022, which translates to approximately 51 cases every hour. Of this, the majority of crimes were categorised as cruelty by a spouse or his relatives (31.4%) followed by kidnapping and abduction (19.2%), assault with intent to outrage modesty (18.7%), and rape (7.1%). These statistics, as stated in the ‘Crime in India 2022' report by the National Crime Records Bureau (NCRB), highlight the dire state of women's safety in the country.

In light of recent events in India, including the Kolkata rape and murder, Badlapur sexual assault, Hema Committee report and many other cases, the discourse around the protection of women from sexual offences has once again gained momentum. People are not only demanding a thorough investigation into these matters but also strict punishment for the perpetrators. Amid this, the legal framework on sexual offences against women has also come under fire. There's a demand for stricter laws to ensure women's safety and social justice.

What do the current laws on this subject state and why do people feel there's a need for change?

Provisions for the protection of women against sexual offences

Manasi Chaudhari, advocate and founder of Pink Legal, informs, "We have two types of sexual offences laws in India. One comes under the Bharatiya Nyaya Sanhita (BNS) which defines what constitutes sexual harassment and criminalises these acts, for example, molestation, sexual assault, groping, trying to disrobe a woman, making vulgar faces or gestures, insulting the modesty of a woman, etc."

Chapter V of the BNS deals with offences against women and children. Sections 63-79 under this chapter state definitions and punishment for rape and other sexual offences.

"The second major law is the Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH Act)," she adds.

While these provisions currently exist in India's legal system, it wasn't always the case. They come into place or evolved over time and in order to determine what's needed to further improve the legal framework, it's important to understand how the laws have changed over the years.

Nausheen Yousuf, lawyer and founder-partner of TKNY Advocates and Legal Reservoir, gives a brief overview of the evolution and provisions of laws relating to sexual offences against women.

Rape and sexual offences laws
"The first major amendment in rape laws was made after the Mathura rape case in 1972. Mathura was a young tribal girl. She was working at a place and eloped with her employer. People filed an FIR in the police station. She was produced before the police. Then, two policemen in the police station raped her. An FIR was filed against those two officers. The matter went from the Sessions Court to the High Court, finally to the Supreme Court of the country, which eventually acquitted the accused stating that there was no injury on the body. Mathura did not put up a fight so it was by consent," Yousuf informs.

She further states, "What the court failed to understand is that there is something known as passive submission. In such gruesome situations, the body tends to freeze. One doesn't know how to respond and is not able to move or scream. The court misconstrued this as consent. There was a huge outcry at that point and hence, an amendment was made in 1983 mentioning custodial rape as an offence. Eventually, other specific cases of rape were also added."

Over the years, the discourse around these laws continued. The next major blow that shook the entire country, judicial system and policymakers was the Nirbhaya Rape Case in 2012.

After immense public outrage, Yousuf says, "sweeping reforms were introduced in 2013 by the Criminal Law Amendment Act, wherein rape was now taken in a wider definition that is not just penovaginal. It also included insertion or penetration of anything into women's private parts. There were also other amendments wherein situations like stalking (both physical and cyber) and voyeurism were also recognised as sexual offences."

Currently, a punishment of not less than 10 years is listed for perpetrators of rape.

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Domestic Violence Act, 2005
Yousuf reveals, "Domestic Violence Act in 2005, spoke about varied forms of violence in the domestic sphere, including sexual violence. For example, husband forcing himself upon his wife could be sexual violence, father-in-law not looking at you in a good way could be sexual violence, etc."

While domestic violence is often overlooked when speaking about sexual offences, it forms a major part of the crimes against women.

Workplace (Prevention, Prohibition and Redressal) Act, 2013
One of the most important developments in women's safety laws was the recognition of sexual harassment at the workplace. This was done after the Bhanwari Devi rape case.

Yousuf informs, "Bhanwari Devi was a woman working with the government of Rajasthan and her prime duty was to report to the government of any child marriage in the state. She reported the marriage of a six-month-old child and it was stopped on that particular day. Four men from that community (high-caste) came to her village and raped her before everybody. She filed an FIR. Her employer refused to help her out saying it was her issue. The case went ahead and the Vishaka guidelines were issued by the Supreme Court of India which identified sexual harassment at the workplace."

"The board came up with the guidelines in 1997 saying that a sexual harassment committee has to be formed in every government organisation. However, a drawback was that it was limited to government organisations. While issuing these guidelines, the Supreme Court also stated that laws should be formulated for sexual harassment in the workplace. Finally, this law was introduced in 2013 as the Women at Workplace (Prevention, Prohibition and Redressal) Act, also known as the POSH Act," she adds.

Protection of Children from Sexual Offences Act, 2012
"A few months before the Nirbhaya case in 2012, the Protection of Children from Sexual Offences Act (POCSO) was introduced. It acknowledged that children below the age of 18 are also at risk of sexual offences like rape, pornography, etc.," states Yousuf.

What is the challenge?

While laws are in place, the legal system is often blamed for failing to protect women from sexual offences. Where does the problem lie then?

Chaudhari believes it lies in the implementation of the laws. "Though we have great laws for women in India, the problem is the execution of laws. Victims face a challenge right from taking the first step, which is going to the police station to file a police complaint because they don't know what will come out of it. Will there be any result or will they just have to keep going around between police, lawyer and court with no result in the end?" she comments.

"Already, a victim comes with a lot of trauma and then they don't want to add on to that trauma by having people doubt their testimony. So, they may choose to just not go to the law or the legal system at all. Execution of laws is the most important for victims to first feel comfortable and safe to go and report. And secondly, to be able to report with some hope that they will get justice. If there is no hope, and if the only scenario that comes to your head is that you will just be stuck in a court case for years and years and nothing will come out of it, then it is a very sad state of affairs and victims will not feel like reporting," she adds.

Chaudhari further states, "For the justice system, the difficulty is the amount of backlog that court cases have. Every case takes a minimum of three to four years on average. And most cases go on for longer. Some cases go on for generations together. Even in the Nirbhaya case, it took eight years for the rapists to be given the death sentence. So, when that is the situation, the justice system is not able to deal with the cases efficiently."

"And secondly, there's a problem with the evidence. Criminal law says that you are innocent until proven guilty and you have to be 100 percent proven guilty. There should be no doubt. So, for that, you need strong evidence. And most of the cases of sexual assault or rape either happen behind closed doors where there are no witnesses or you don't have any kind of evidence. Some cases are reported very late and by the time they are reported, all evidence is gone. For example, if you go for a medical test immediately, you can get the evidence of samples or any deposits on the skin. But if you go after a few days or months, you will not have evidence. That is a problem they face," she further explains.

The challenge of courts being overburdened is echoed by Yousuf.

"The courts are overburdened. While people say that there needs to be a time-bound system, I believe some important aspects might be missed in an attempt to close the case hurriedly. Having more courts and judicial officers is the need of the hour," she says.

Additionally, Yousuf also feels some laws need to change.

"Section 377 of the IPC, which pertains to unnatural sex, was completely scrapped from the BNS. While the purpose is fair, there are also cases of women facing situations of unnatural sex from their husbands, which they are not comfortable with. So, there's no provision for that. Also, marital rape has not yet been criminalised," she expresses.

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Is the law enough?

While the legal system is one of the most important elements in navigating crime, other aspects also need to be considered, especially in cases of sexual offences against women.

"With regards to navigating sexual harassment cases, I still feel that a lot of sensitivity programs need to be done with executing agencies. Psychological counselling being provided to the victims is also important," believes Yousuf.

"Besides that, we need a lot of changes in the way society looks at rape cases. There is still stigma and victim shaming. Also, false rape cases are filed sometimes. Of course, there are a lot of factors to be considered. As per POCSO, even consensual sex between individuals below 18 years of age is not allowed. Awareness programs need to be conducted among teenagers about what could land them in trouble. Regarding sexual harassment in the workplace, a lot needs to be done on the ground level. Many organisations do not have sexual harassment committees and that needs to be looked at," she adds.

"I believe that a lot of training and awareness that happens in cases of sexual harassment, which is often given precedence over domestic violence. The latter is often not treated seriously, which needs to change. Also, the mindset that sexual violence can only be inflicted by strangers is wrong. What about sexual violence cases in the domestic sphere?" she asks.

While the legal system of India is key in providing justice to those who have faced sexual offence, mitigating the issue from the grassroots is important, which involves education, training and a mindset shift.