Sexual Offences Against Women: Analysis the Legal Framework

ABSTRACT 

Sexual offence against women is a serious offence in India. After the amendment of Criminal Act  in 2013 and 2018 there is so many changes in legal framework but only these changes are not enough to provide protection. 

Sexual Offence against women is the violation of human rights and dignity, imposing a significant  challenge to the criminal justice system in India. Under article 14, 15 and 21 Constitution of India  provide Right to Equality, Freedom from Discrimination and Right to Life, despite of these  provisions still the cases for rape, sexual harassment, molestation, stalking etc are reported widely. 

In this research paper there is analysis of some legal framework for sexual offences in India like,  Bhartiya Nyaya Sanhita, Constitution of India, Sexual Harassment of Women at Workplace  (Prevention, Prohibition and Redressal) Act, University Grants Commission On (Prevention,  Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher  Education Institutions (Regulations, 2015) etc. 

Key Words: Sexual Offence, Sexual Harassment, Bhartiya Nyaya Sanhita, Constitution of India  etc 

INTRODUCTION  

Sexual Offence is an offence against women which is a heinous crime that involves physical contact with women without her permission which cause physical, mental harm to women. When  women joining the work place it would experience incidents of sexual harassment. Sexual offence  includes Rape, Sexual Assault, Sexual Harassment etc. Concept of sexual offence is derived from  various countries. 

The Indian Penal Code (1860) did not provide for specific protection of women from harassment  at work places.1 but under The Bhartiya Nyaya Sanhita (BNS), 2023 provide special protection for  sexual offence under new chapter for crimes against women and children. 

Gender Equality includes protection from sexual harassment and right to work with dignity, which  is a universally recognized basic human right. Article 11 of the Convention on the Elimination of  All Forms of Discrimination Against Women (CEADW) states.1 

According to The Indian Penal Code ,1860 Offence means a thing made punishable by the Code,  or under any special or local law. The punishments to which offenders are liable under the  provisions of this Code are death or imprisonment for life both rigorous and simple, or forfeiture  of property or fine.2 

Section 10 of The Indian Penal Code, 1860 defines ‘WOMAN’ means female human being of any  age. Chapter XVI, XX and XXII discussed the offences against the women.2 

In Bhartiya Nyaya Sanhita, (2023) chapter V sections 63 – 99 covers offences against women.  Sections 63- 73 talks about sexual offences, Section 74- 79 deals with criminal force and assault  against women. 

DEFINITIONS OF DIFFERENT TYPE OF SEXUAL OFFENCES AGAINST WOMEN  There are some types of sexual offences – 

1. Sexual Assault – Sexual Assault means, when a person touch a person sexually with  intention and there is no consent of the victim to the person to touch themselves, this is  called Sexual Assault. The word ‘sexual offence’ defined in Indian Penal Code, 1860.  
2. Rape – Rape means physical relation with victim forcefully without her consent. They use  over power on the victim for sexual intercourse.  

Rape is a crime which infringe basic human rights and also violate the victim’s  fundamental rights (like- Right to life Right to dignity etc).3In Ancient time rape was not  a crime against women but a violation of the property rights of Father, Brother or Husband  by the rapiest. The women considered as property in ancient time, and when a rape was  committed then rapiest have to marry with her or had to pay compensation.3 Section 63 of  Bhartiya Nyaya Sanhita, 2023 deals with Rape offence.

3. Sexual Harassment – Sexual Harassment means when someone wants physical favor,  ostensibly sexual comments/jokes, showing pornography in public place/ workplace/  private place. This type of behaviors violates victim’s fundamental rights like – right to live  peacefully, right to live with dignity, right to equality. It causes negative effects on victim’s  health, profession and personal life. “Sexual Harassment of Women at Workplace Act,  2013” are made for this offense. 
4. Sexual Exploitation – Sexual Exploitation means, when someone exploit someone, like  when a person says to a person that they will defame her with his private picture, they will  post it on social media etc. This type of offense is called Sexual Exploitation. 
5. Sexual Intercourse by Husband upon his wife during Separation – According to  Bhartiya Nyaya Sanhita, 2023 Sexual intercourse with his wife upon his wife during  separation without her consent is also a kind of sexual offence. It defines under the Section  67 of BNS. And for this offence he is also liable for punishment for imprisonment not less  than 2 years but it may extend to 7 years and fine. It is a bailable and Cognizable offence.  For this only victim has to right to sue.4

Historical Background and Status of Women in India at Ancient Time 

In the Vedic period, the women enjoyed equal status with men. They were respected and  honoured.5 

In Vedic Period, the education of women was looked upon as so important that the Atharvanaveda  asserted, the success of women in her married life depends on her proper training during  Brahmacharya.5 

A thousand years BC Hindu women appear to have been as free as Trojan dames or the daughters  of judge. Hymns in the Rig Veda mentioned them with respect and affection.5

Mill states about Hindu women, nothing ca exceed the habitual contempt which Hindu entertain  for their women. They are held in extreme degradation, excluded from reading the scared books,  deprieved of education and in the paternal property. That remarkable barbarity. 

Constitutional Provisions for Women 

Article 15 of the Indian Constitution, prohibits the discrimination on the ground of sex. This is the  fundamental right of every individual. 

Article 15(3), the state is permitted to make any special provisions for women, thus carving out a  permissible departure from the rigorous of this Article.6 

Article 15 and 16 do not prohibit special treatment of women. The Constitutional mandate is  infringed only where the females would have received same treatment with males but for their  sex.6 

The Constitution does not prohibit the employer to consider sex in making the employment  decisions where this is done pursuant to a properly.6 

In the case of, Air India Cabin Crew Assn vs Yeshaswinee Merchant 2003, This is a landmark  judgement of Supreme Court, Court held that gender equality in Air India’s retirement policies  for flight attendants. The Supreme Court affirmed that female air hostesses are allow to perform  flying duties until age 58.7  

Article 16(2) of the Indian Constitution, states that ‘An incident of sexual harassment of a female  at the place of work, amounts to violation of her Fundamental Right to gender equality.8 

In the case of Apparel Export Promotion Council vs A.K. Chopra 1999, Supreme Court re affirmed the principles laid down in the Vishakha judgement, it emphasizing that sexual  harassment of women in the workplace is a clear violation of their fundamental rights under  Article 14, 19 and 21 of the Indian Constitution.9 

Article 19 of the Indian Constitution, talks about the Right to Freedom. This is a Fundamental  Right which gives every individual to express their feelings in the Indian Territory. Women have also right to expression. If anyone try to do any type of Sexual Offence than it seems to be  infringement of the Fundamental Right of Women. 

Article 21 of the Indian Constitution, talks about the Right to life and Personal Liberty, this Article  give right every citizen to right to live without any restriction and without any physical and mental  harm. This article also provides to live with dignity. 

Laws & Acts Related to Protection for Women From Sexual Offences Bhartiya Nyaya Sanhita (BNS), 2023  

Section 63 to 77 of the Bhartiya Nyaya Sanhita under chapter V deals with the Sexual offences  against women. Sexual offences like Rape, Sexual Harassment etc. 

Section 63 of the BNS talks About Rape. 

Section 64 of the BNS talks about Aggravated Rape.10 

Section 65 of the BNS talks about Rape in certain cases. 

Section 66 of the BNS talks about the punishment for causing death of victim. The punishment is  rigorous imprisonment for not less than 20 years, which can extend to life imprisonment. 

Section 67 of the BNS talks about Sexual intercourse by husband upon his wife during the period  of separation. 

Section 68 of the BNS talks about Sexual intercourse by a person in authority. It means the person  who is in the position of fiduciary relationship like public servant, superintendent of jail etc. 

Section 69 of the BNS talks about criminalizes sexual intercourse through deceitful. It means A  false promise to marry, made without intention to marry and makes physical relationship. 

Section 70 of the BNS deals with Gang Rape. 

Section 71 of the BNS talks about Punishment for repeat offenders.

Section 72 of the BNS talks about prohibition of victim’s identity of certain sexual offences by  publishing. 

Section 73 of the BNS talks about prohibition of any publishment of court proceeding of the that  matter which comes under section 72 of BNS without prior permission of the Court. 

Section 74 of the BNS talks about penalty for assault against women with intention. Section 75 of the BNS talks about sexual harassment. 

Section 76 of the BNS talks about Assault against women with the intention to disrobe her or make  her naked. 

Section 77 of the BNS talks about Voyeurism, it means taking pictures, watching continuously,  spreading a woman’s picture of private act. This section also deals with the punishment for it. 

Constitution Of India  

Some Article of Indian Constitution provides Fundamental Rights which protects women’s rights  also. When Sexual offences committed then it also violates the Women’s Fundamental Rights. 

Article 15 – This article talks about Freedom from discrimination. No one can discriminate with  someone on grounds of sex, caste etc.11 

Article 16 – This Article talks about equality of opportunity. No one can discriminate on the  grounds of sex, caste, race etc. This means women have also right to take positions in public  opportunity without any discrimination.12 

Article 21 – This Article talks about Right to Life and Personal Liberty, which means every  individual has the right to live peacefully and without any physical and medical harm. If anyone  commit the sexual offence against women then this is the violation of women’s fundamental  right.13 

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

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 to  provide protection against sexual harassment of women at workplace and for the prevention and  redressal of complaints of sexual harassment.14 

Section 14 of this Act provides for punishment for false or malicious complaint and false evidence. This section also balances between protection of right of women to work with dignity and the  prevention of false or malicious complaint and false evidence.14 

Section 3 of this Act provides for the prevention of sexual harassment of women at any  workplace.14 

University Grants Commission On (Prevention, Prohibition and Redressal of Sexual  Harassment of Women Employees and Students in Higher Education Institutions  (Regulations, 2015)  

These Regulations are formulated with an objective of prevention, prohibition and redressal of  sexual harassment of women in colleges and universities. In contains total 12 regulations.14 

Regulations 2 explains the meaning of sexual harassment. It includes a creation of hostile  environment against women and quid pro quo15for sexual favors. 

Rule 12 provides for the importance of non – compliance i.e. withdrawal of the grants of the  college or the university, department, removing the name of the university, or college from the list  of UGC, withholding the grants, withdrawal of affiliation etc.16 

“Zero Tolerance for Sexual Harassment of Students and Women in Colleges and Universities  Policy” has initiated by Maharashtra State Commission for Women with an objective of PUSH.16 

PUSH stands for People United against Sexual Harassment.17 

In the case of Vishakha vs State of Rajasthan 1997, the Supreme Court has laid down exhaustive  guidelines for the prevention of sexual harassment of women at their work place. The court held  that it is the duty of the employer or other responsible person in work places or other institutions,  whether public or private, to prevent sexual harassment of working women.18

Reasons Why Sexual Offences are Increasing Day by Day 

People having a habit o sex and the desire to have multiple sex sources. Most people used to extra marital and pre- marital sex relations. 

o Lack of personality  

o Hooliganism  

o Intoxication 

o Drug habit 

o Seen given in the TV shows 

o Illiteracy  

o Madness etc. 

When young male and female are in contact, also lead a physical intercourse in between them. And  once it done people can’t control over them to do sexual intercourse. 

Sometimes late marriages also lead to do sexual offences. And Separation of marriage also lead  sexual offences. 

Illiteracy also makes people mad for sexual intercourse. Some people do these offences because  of typical mindset like how girls can go out at night, how girls do jobs, how girls wear some fancy  dresses etc. 

Suggestions how to reduce Sexual Offences  

o Aware people about how much fatal is Sexual Offence. 

o Give Sexual Education to all. 

o Make laws more effective. 

o Take action quickly on these offences. 

o Give decisions fast by the Courts. 

o Engage men in the campaign which are starts for reducing these offences, etc. 

If we aware people how fatal these offences are. And aware them which kinds of infections,  diseases may occur. 

If we give sexual education to people then they will understand about fatalities of disease. If laws are effective then people will afraid to do such offences. 

If anyone file a FIR then authority should take action quickly, they shouldn’t ignore such FIRs. If courts give decisions fast then culprit will afraid to do such offences. 

If we engage men in campaign which are starts to stop such offences then men will understand  about the seriousness of those incredible offences. 

Conclusion  

In every society, they make some regulations to prevent Sexual Offences. By those regulations  people refuse to do such offences. Through this paper we can understand something important. 

Sexual offences are a serious violation of human rights and dignity, it causes significant harm to  individuals, families and society. To reduce such offence, we need to educate people, aware people,  effective laws etc. 

Need to create a safe, peaceful and respectful society.  

Sexual Crime Against Women is a heinous crime. Sexual crime is an outcome of the typical  mindset like they hate to see women progress, hate to see girls wearing fancy and short dresses,  hate to see girls going out at night etc. 

We have many more legal provisions to prevent such offences. Our Constitution of India provides  some provisions to do something for self and protection from crimes. BNS, Bhartiya Nyaya  Sanhita provides provisions to protection from crimes. 

There are some unreported cases. People don’t want to go to file these cases because they don’t  want to disclose that they were suffer from these offences.  

By working together, we can reduce sexual offences and create a society that values and respects  the dignity and rights of all individuals.

Reference(S):

1. Lina Gonsalves, Women and Human Rights, (1st edition, 2011, published by APH  Publishing Corporation, S.B. Nangia),67 
2. Dr. S.R. Myneni, Law Relating to Women (3rd edition, 2013, Asia Law House, S.P. Gogia)  165 
3. Lina Gonsalves, Women and Human Rights (1st edition, 2011, published by APH  Publishing Corporation, S.B. Nangia),81 
4. Bhartiya Nyaya Sanhita by Raman Devgan  
5. https://devgan.in/bns/section/67/#:~:text=BNS%20Section%2067%20%2D%20Sexual% 20intercourse,Devgan.in 
6. Dr. S.R. Myneni, Law Relating to Women (3rd edition, 2013, Asia Law House, S.P.  Gogia)2, 3, 4, 5 
7. Professor M.P. Jain, Indian Constitutional Law, (6th edition, 2010, Lexis Nexis),992
8. Air India Cabin Crew Assn vs Yeshaswinee Merchant (2003) 6 SCC 277: AIR 2004 SC  187. 
9. Professor M.P. Jain, Indian Constitutional Law, (6th edition, 2010, Lexis Nexis), 1023
10. Apparel Export Promotion Council vs A.K. Chopra, AIR 1999 SC 625: (1999) 1 SCC 759.
11. Aggravated Rape – Rape by someone having authority and control over the victim.
12. Professor M.P. Jain, Indian Constitutional Law, (6th edition, 2010, Lexis Nexis),987
13. Professor M.P. Jain, Indian Constitutional Law, (6th edition, 2010, Lexis Nexis),1020
14. Professor M.P. Jain, Indian Constitutional Law, (6th edition, 2010, Lexis Nexis),1179
15. Bhagyashree A. Deshpande, Women & The Law (Edition 2018, Shree Ram Law House),  252, 253 
16. Quid Pro Quo- A Latin phrase means ‘something for something’ or ‘this for that’.
17. Bhagyashree A. Deshpande, Women & The Law (Edition 2018, Shree Ram Law House),  253 
18. Vishakha vs State of Rajasthan (1997)6 SCC 241 and AIR 1997 Supreme Court 3011.