LLM Group 5 Criminal Law and Criminal Administration Collective Violence and Criminal Justice System 2016 Question Paper with Solutions

In public and at work, as assault to outrage modesty under section 74, sexual harassment under section 75, disrobing under section 76, voyeurism under section 77, stalking under section 78 and acid attack under section 124. In custody and institutions, under section 68, which punishes sexual intercourse by a public servant, jail superintendent or hospital staff with a woman in his charge and does not require proof of force. And in the community, as honour crime and as witch hunting, the latter reached only by State statutes.

Judicial approach, phase one: deference to the investigating and trial court

The first approach treated the complainant's account with suspicion and the trial court's assessment of her behaviour as unreviewable. Tuka Ram v. State of Maharashtra, (1979) 2 SCC 143, the Mathura case, is the low point. Two policemen were acquitted of raping a young tribal girl inside a police station, the Supreme Court reasoning that there were no marks of injury, that she had not raised an alarm and that what had occurred was therefore passive submission rather than rape. The decision provoked an open letter from four law teachers, and the resulting campaign produced the Criminal Law (Amendment) Act, 1983, which created the offence of custodial rape, shifted the burden on consent in custodial cases, and provided for in camera trial.

Phase three: legislating where Parliament had not

The third approach is the most striking, and it is the one that distinguishes Indian constitutional practice. Vishaka v. State of Rajasthan, (1997) 6 SCC 241 arose from the gang rape of Bhanwari Devi, a saathin employed under a Rajasthan Government programme, in reprisal for her attempt to prevent a child marriage, and from the failure of the resulting prosecution. The petition was brought not on those facts but on the absence of any law on sexual harassment at work.

The Supreme Court held that the right to practise any profession under Article 19(1)(g) and the right to life with dignity under Article 21 include a safe working environment; that Article 51(c) read with Article 253 permitted it to draw on the Convention on the Elimination of All Forms of Discrimination against Women, which India had ratified; and that in the absence of legislation its guidelines would be binding under Article 141. They held the field for sixteen years, were applied to disciplinary proceedings in Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759, where the Court restored the dismissal of a superior and held that physical contact is not essential to sexual harassment, and had to be enforced against defaulting States and universities in Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297.

Phase five: the courts correcting the courts

The most recent approach turns the inquiry inward. Aparna Bhat v. State of Madhya Pradesh, 2021 SCC OnLine SC 230 arose from a High Court bail order requiring a man accused of molesting his neighbour to present himself at her house so that she could tie a rakhi on his wrist. Setting the condition aside, the Supreme Court held that bail conditions must not mandate or permit contact between the accused and the victim, that judgments must not use language about a woman's dress, behaviour or past conduct, that stereotypes such as the notion that a real victim resists or complains immediately have no place in judicial reasoning, and it directed gender sensitisation modules in judicial academies and in the syllabus for the Bar examination.

The same corrective runs through Attorney General for India v. Satish, (2022) 5 SCC 545, which set aside the holding that groping a child over her clothing was not sexual assault for want of skin to skin contact, and through State of Jharkhand v. Shailendra Kumar Rai, (2022) 14 SCC 299, which reiterated the prohibition on the two-finger test laid down in Lillu v. State of Haryana, (2013) 14 SCC 643 and directed that conducting it should amount to misconduct.

What the phases add up to

The limits of the judicial approach

Three limits should be stated. Courts act on the cases that reach them, and the largest losses in this field occur before any court is involved, at the point of registration, which is why Lalita Kumari v. Government of U.P., (2014) 2 SCC 1 had to hold that registration of an FIR is mandatory where the information discloses a cognizable offence. Guidelines are not administration: Vishaka was in force for sixteen years and Medha Kotwal Lele shows how patchily it was obeyed. And the courts have not touched the exception Parliament kept, since Independent Thought expressly left the position of adult wives open and the challenge to Exception 2 to section 63 of the Bharatiya Nyaya Sanhita remains pending, with the Union having opposed its removal.

What the judiciary could not do, and who did it instead

A judicial approach has boundaries, and naming them is part of answering the question properly.

Courts cannot fund an institution. Nipun Saxena v. Union of India, (2019) 2 SCC 703 is the illustration: the Court held that the identity of a victim of a sexual offence must not be disclosed, that the prohibition extends to a deceased victim and to a victim of unsound mind, and directed the establishment of One Stop Centres in every district and the keeping of identity in sealed cover. The prohibition on disclosure worked immediately because it operates on courts and the press; the One Stop Centres arrived slowly because they required money and staff, and the difference between the two halves of the same judgment is the clearest available measure of what judicial direction can and cannot achieve.

Courts decide the cases that reach them, and the largest attrition in this class of case occurs earlier, at the police station, which is why Lalita Kumari v. Government of U.P., (2014) 2 SCC 1 had to hold that registration of an FIR is mandatory where the information discloses a cognizable offence and that no preliminary enquiry is permissible.