Cases of sexual offences against women and children has been on the rise in India. However, thanks to the “Me Too” movement which started in the US and eventually found its way to India in 2016, we read about and from sexual assault survivors sharing their experiences. It led to the downfall of many public figures in the fields of politics, business, entertainment industry, and elsewhere. Sexual offences in India against Women and Children are a big reason to worry.
This article takes a high-level view of the laws relating to sexual offences. It classifies offences into offences against women outside marriage, within marriage and against children. It also observes that some legal provisions are stacked against men in that they presume that certain offences can only be committed by men, and suggests that it is time to make sexual offence laws gender-neutral.
Child sexual abuse (CSA) has long been a closet topic in India. The criminal justice system and the public discourse has also largely ignored this serious issue.
Sexual offences against women in India outside marriage
Almost all women, at every stage of their life, have had the experiences of facing and dealing with unwelcome male attention. Yet, shockingly, Indian laws against sexual harassment were not codified until the shocking case of Bhanwari Devi, a Government social worker, that took place in Rajasthan.
Bhanwari Devi was gang-raped in front of her husband in 1992 by higher caste neighbors who were Gujjars (the village’s affluent and dominant caste group). Bhanwari Devi and her husband, Mohan Lal Prajapat, were from the low-caste potter (kumhar) community. The men were angry with her for trying to prevent a nine-month-old Gujjar girl's wedding a few months earlier. Bhanwari Devi herself was unable to seek and get justice, but her case eventually resulted in the Supreme Court formulating guidelines to deal with sexual harassment at the workplace. Her attackers were cleared of rape charges and freed by the lower trial court, while her appeal has been heard just once in the High Court for 22 years after the offence was committed. In the interim, two of the accused died.
Bhanwari Devi’s ordeal triggered public outrage and activism, leading eventually to new legal protections against sexual abuse in the workplace for millions of Indian women. Her employer, the state, denied liability because she had been assaulted in her own fields, but activists filed a PIL petition in the Supreme Court demanding that "workplaces must be made safe for women, and it should be the employer's responsibility to protect women employees at every move."
In Vishaka v. State of Rajasthan, the Supreme Court of India issued the "Vishaka Guidelines," which require employers to take action to protect female workers from sexual abuse at work, and to include procedures for mediation, arbitration, or prosecution. To ensure that the same guidelines protect workers in both the formal and informal sectors, India passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act in 2013.
In addition to the above Act, various sections of the Indian Penal Code deals with sexual offence against women in India.
While most sexual offences against women are now punishable, there has not been much progress in situations where the sexual offence is committed by a husband on his wife. In India, marriage between a man and a woman means that both parties have agreed to engage in sexual activity. The same is mentioned in the Indian Penal Code of 1860. Six definitions are used in Section 375 to describe the crime of rape. “Physical intercourse or sexual acts by a man with his own woman, the wife not being under fifteen years of age, is not rape,” according to one exception.
Such provisions raise the question as to constitutionality of Section 375, as it is the only offence in the IPC that discriminates against men. Over time, there have been several efforts to set aside the discriminatory provision making only a husband liable for marital rape.
Another common abuse of women is in the form of physical violence by the husband. The legal term for this is “domestic violence”. To curb this, in 2005, a law called “Protection of Women from Domestic Violence Act, 2005” was passed. This law was biased strongly in favour of the woman (probably rightly so). The number of cases under this Act bear witness to the success of the law in fishing out and encouraging oppressed women caught in an unhappy marriage to come out of their shell against adult men with whom they are trapped in marriage.
Sexual offence against Children in India:
The first large-scale government-sponsored research study to determine the magnitude and type of child abuse in India was commissioned in response to growing concerns about female infanticide, child rapes, and institutional abuse of children.
The report covered 13 states and in all these states, the study found shockingly widespread mental, physical and sexual violence against children. Emotional abuse was reported by every second child, physical abuse reported by 69 percent of children, and sexual abuse by 53 percent of children. “Persons known to the child or in a position of confidence and responsibility” were responsible for half of the recorded sexual abuses. Until 2012, the only sexual crimes against children acknowledged by law were those protected by three non-specific sections of the Indian Penal Code (IPC). Increased advocacy in the media and public debate around child safety issues led eventually to the government passing a law named "The Protection of Children from Sexual Offences (POCSO) 2012."
POCSO 2012 has changed the scene of India's CSA problem. It has established and criminalised a variety of improper sexual practices that threaten children. The number of recorded cases is increasingly growing, showing that the legislation has made a significant contribution to public education, sensitization of the criminal justice system, and making CSA reporting not only permissible, but also mandatory. Yet, the problem of child sexual offence persists in India and needs to be dealt with more strictly.
Sexual harassment of, and false sexual offences alleged against men
We often unthinkingly say that women are not protected enough legally speaking, in India. The wake-up call here is the discovery that there are many false allegations and sexual harassment of men at the workplace by women, more commonly when the woman is in a superior position. In a recent study conducted by an unnamed source in January 2021 in the University of Delhi showed that out of 136 reported case of rape and sexual assault, 71 cases were instances of false allegations. So perhaps, the time has come to correct the excessive swing of the pendulum in favour of women and bring in fair gender-neutral codified laws for sexual assault in India.
Rajesh is a qualified CA & CWA. He has served as a Director of PricewaterhouseCoopers, a Director of a large urban co-operative bank and Dean of a B-School over the years. He has taught Finance for over 20 years & trained participants from several Companies and B-Schools. He is an educator and a learner (he believes both are inextricably intertwined), and a knowledge product developer. Law Gyani, which he has founded to help Law Students with their exam preparations, and to understand nuances of the law.
Law Gyani’s mission is to make available better, easier-to-use and richer content to the legal community. Our first offering is a Q&A product, aimed at helping LL.B. students to appear for their examinations. While we have begun with answering questions from the last 10 years’ question papers of the Mumbai University’s 3-Year LL.B. course, Law Gyani is committed to expanding the content to cover Q&A on all law papers of most Universities in India.