INTRODUCTION
Justice Krishna lyer has said that “Mine are the tears that froze with the pain, mine is the pain that has no name.” This is the real story of Indian women which Justice Krishna lyer has portrayed beautifully in few words.[1]
The greatest tragedy has been the grave injustice done to half of the humanity. i.e Women. Even at present, men are under the impression that their position is much stronger than the women in society. Women struggle for equality in the society is backed by the law and to some extend by the right-thinking people in the society.[2]The problem of violence, especially, violence against women is not a new one and evidence of such violations can be found throughout in the historical records of any culture.[3]By reaching twenty first century women have become more independent and therefore, not willing to submit to the domination by males. Although, a new phase has entered in the women’s position, still, her exploitation continues, whether it is rigid societal norm or it is psychologically by the male dominated society. Still she is beaten, tortured, kidnapped, burnt, murdered and raped. Her position is not better one.[4]
The basic reason for violence against women is their inferior status educationally, economically, politically, and sociallyin a male dominated society. Other factors responsible for increasing criminalization of society, media images, inadequate means to address the cause and consequences of violence, poor enforcement of legal provisions, unabashed consumerism and erosion of family values have all added to it.[5]There are cries for harshest penalties, but often times such cries eclipse the real plight of the victim. Rape is an experience which shakes the foundations of the lives of the victims. For many, its effect is a long-term one, impairing their capacity for personal relationships, altering their behaviour and values and generating endless fear. In addition to the trauma of the rape itself, victims have had to suffer further agony during legal proceedings.[6]
Thus, conceptualizing violence against women as a human rights violation typically means demanding changes in local cultural practices concerning sexuality, marriage, and the family. Women’s vulnerability to violence depends on entrenched sociocultural practices involving marriage, work and religious and secular ideologies of masculinity and femininity. Conventions on the rights of women typically require states that ratify them to change cultural practices that subordinate women. The 1992 Declaration on the Elimination of Violence against Women issued by the CEDAW committee says that “States should condemn violence against women, and should not invoke any custom, tradition, or religion or other consideration to avoid their obligation with respect to its elimination”.[7]
CURRENT LEGAL FRAMEWORK
The role of Judicial interpretation in shaping legal responses to rape has evolved significantly, reflecting shifts in societal attitudes, human rights principles, and legal frameworks. Before analysing the juridical response in this area, a study of present legal framework is necessary.
The “Nirbhaya Act”, also known as “the Criminal Law (Amendment) Act of 2013”, was approved by Parliament to alter Section 375. [8] This was done to remove uncertainty in the former law and provide for strong punishment in situations of the rarest incidents of sexual violence. New offences like, acid attack, sexual harassment, voyeurism, stalking had been incorporated into the Indian Penal Code. Also, provisions of Indian Evidence Act, Crpc were amended so far it related to sexual offences.
[1] Justice Krishna lyer, “Human Right to be Women” inWomen March towards Dignity, Social and Legal Perspectives (1993), p.1.
[2] Subhash Chandra Singh (ed.), “Women and Law” in Gender Justice(New Delhi: Serials Publication, 2009) 223.
[3]Prof. Rattan Singh, “Violence Against Women: Some Protective Measures,”LJ, Vol. 20, No. 0972-382X, (2012).
[4]Id at 30.
[5] Subhash Chandra Singh. (ed.), “Violence Against Women with Special Reference to Sexual Harassment at the Work Place in India” in Gender Justice (New Delhi: Serials Publication, 2009) 223.
[6]Delhi Domestic Working Women’s forum v. Union of India (1995)1 SCC 14.
[7] Sally Engle Merry,“Women, Violence, and the Human Rights System” Marjorie Agosin. (ed.), (Jaipur and New Delhi: Rawat Publications,2003) p.90.
[8]Indian Penal Code. S. 375.