Tag: criminaljustice

Introduction

When I explored this topic, a video appeared in the search results. It was a satirical video¹. But I am more concerned with the letters on the blackboard in that video at 06:49. The phrase which was displayed was: “Sex is not a stigma, Ignorance is.” The phrase is eminently true of the situation prevailing not only in Indian society but in the world as a whole. Only some countries have managed to develop and deliver quality sex education to their citizens. More importantly, the need for sex education is not only necessary for young adults and teenage students, but also for the elderly members of society who are reluctant to talk about this concept logically but take it as a joke.

This ignorance is responsible for our encountering sex crimes in our daily lives. Some are reported while others are buried deep inside by the victim, his/her parents, relatives, or the police. In this twenty-first century, information about anything emerged as wealth. But regarding sex education, only a few are informed about the relevant information. Every person has some information about sex, but whether that information is helping to develop a law-abiding citizen is unknown. The rape convicts, testify in courts that they watched porn before committing the offence of rape. This shows that they have access to information but that information is injurious to not only their health but also the health of society at large. Penal provisions are intensified but are fruitless to restrain the offence of rape.

Now we shall focus on the legal aspects of sex education and the laws regarding it. POCSO was enacted to protect children from offences of sexual assault, sexual harassment, and pornography and to provide for the establishment of special courts for the trial of such offences and matters connected therewith or incidental thereto² as provided under the preamble to that Act.

Under this Act, we have some areas to focus on in detail in connection with sexual education under this article—

1. Definition of Child and legal grey area
2. Child pornography
3. Domestic relationship
4. Shared household
5. Special court and special procedures
6. Public awareness about the Act

Definition of Child and Legal Grey Area

Section 2 clause (d) of the Act defines “child” as a person under 18 years of age.

The first reason for this definition is that the Act is for the protection of the rights of children. The age group of teens, from 13 to 18 years old, is the most prone to sexual offences without being reported. In this phase, they are at the age of becoming sexually active. Due to hormonal changes, they eagerly move to sexual acts, and if they are not protected by any law, the offenders are ready to attack their physical and mental health through sexual offences.

The second reason is that sexual acts require free consent for being excepted to be rape or sexual offence. The law regards the consent of minors, which is also for more laws, a person under the age of 18 years, as no consent. So, consented sex is legal and not an offence only for persons above 18 years. And this creates a legal grey area among the person between the age group of 17-18 who consented to sex.

Under the Indian Penal Code, the maxim “Doli capax” is enshrined under section 83, which states that if an offence is committed by a child above 12 years of age, having sufficient maturity regarding the offences done by him, he can be prosecuted. But this Act is enacted for the benefit of the Child, and hence there is no such provision required. There is a different situation in which the juveniles are the offenders, and this is the main concern to be dealt with under the Act. The targeted juveniles act against the provision because,

1. Lack of proper sex education
2. Lack of awareness of the legal provisions of the POCSO Act.
3. Lack of awareness among the victim child who is victimised yet doesn’t know of being victimised.

When both juveniles consent to sex with sexual intent, they are liable to be tried and convicted under the Act’s provisions because their consent is no consent in the eyes of the law and they are both committing the sexual offence against each other under the Act’s provisions. This seems to be a harsh law regarding this situation, but it is, in fact, a good law. The only requirement is that such people be made aware of the Act. The Act is not against them. The Act only seeks to protect their rights against anyone who attempts to assault a child for sexual gratification. This view is also to some extent supported by different High courts in which cases like these appear and High Courts have repeatedly asked the concerned authorities to disseminate information about the Act, especially to teenagers. This will ensure:

1. Prevention of unwanted Child Pregnancy
2. Informed decisions by the Child about sexual acts.
3. Prevention of Sexual offences against the Child.
4. HIV/AIDS prevention.
5. Prevention of other sexually transmitted diseases; and most importantly
6. Avoidance of prosecution of such children in the legal limbo.

Therefore, the Child is more prone to sexual attacks when he doesn’t know about the sexual intents. The word “sexual intent” is of the utmost importance. The Supreme Court continuously decided through a catena of judgments that it is the Sexual intent that makes any act to be included in the offence of Sexual Assault and Sexual Harassment.

The decision of the Bombay High Court, which was stayed by the Supreme court for its nebulous interpretation of section 7 of the Protection of Children from Sexual Offences Act, 2013 (POCSO) about skin-to-skin contact constituting sexual assault, is worth mentioning here.

The appellant in Satish v. State of Maharashtra³ was acquitted under section 8 of POCSO by the High court citing an interpretation of section 7 of POCSO that there was no physical contact between the appellant and victim, that is skin-to-skin contact along with sexual intent but without penetration. The Bombay high court had an opinion which was challenged by the attorney general of India to the supreme court by noting that this interpretation would be against the law.

The court in Attorney General of India vs. Satish and Another⁴ dealt with this case and interpreted that only sexual intent is required and not skin-to-skin contact for the constitution of the offence of sexual assault. The term “physical contact” under section 7 does not require skin-to-skin contact but only “touch with sexual intent”. Another aspect of this definition is that it recognizes only biological age and not mental age as interpreted in the case.

EERA through Dr. Manjula Krippendorf vs. State (Govt. of NCT of Delhi) – It is essential to mention what the Supreme Court held in this case⁵:

“The Parliament deemed it appropriate that the term “age” be defined by chronological age or biological age as the safest standard rather than refer to a person who has mental retardation. It might be because different standards for mental retardation need to be established by a professional body.  Additionally, the degree varies. It appears that the Parliament did not take mental age into account. It is within the purview of legislative knowledge. It should be noted that Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2000, provided a procedure for age determination. The process was intended to establish biological age.  It should be noted that under Section 2(12) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), a person who has not reached the age of eighteen is considered a “child.” The method for calculating biological age has been provided.  This is provided to demonstrate that the age of the child has been purposefully set by Parliament and is based on biological age, and if any determination is necessary, it only concerns the biological age and nothing more.”

Hence, through this judgment, it is expected of the legislature to review this definition because the consent to sex is made by the mind, and if the mind is below the age of 18, the mind shall behave like a child, and a child is to be protected against all forms of offences. The prevailing legal grey area needs not be reviewed because such an area is very limited. Awareness about the legal provisions should be made available to this target group.

Child Pornography

The Act provides for the offence of Child pornography in section 2, clause (a) as any visual depiction of sexually explicit conduct involving a child, which includes

i. Photograph

ii. Video

iii. Digital or computer-generated image indistinguishable from an actual child and

iv. Image created, adapted, or modified, but appear to depict a child.

Section 13 provides for the use of children for pornographic purposes. This section does not differentiate it for personal use or distribution. Both are considered the same. The other notable term is sexual gratification, including

1. A representation of the sexual organs of a child.
2. Usage of a child engaged in real or simulated sexual acts whether with or without penetration
3. An indecent or obscene depiction of a child.

Sexual education in the world is mostly focused on the teenage group. It contains concepts about hormonal change, development of sex organs, safer sex, prevention of unwanted pregnancies, menstrual hygiene and mental health and sexual offences. Also, in the name of sex education, some people design sexually explicit content involving children and wish to take the protection of sex education as a defence. As there is a need to impart sex education among children, the offender of child pornography often takes the defence of imparting sex education when they are prosecuted, especially regarding a video or a book.

One such case is Fathima A.S. vs. State of Kerela⁶ in which the appellant took the defence of imparting sex education to his children.

The facts are worth noting: The appellant made her children aged 14 and 8, draw body art on her half-nude body and then posted the video. The court also noted in the case for bail that in the initial years of life, a child learns from his/her mother and this is not a thing which the mother should impart in such a manner. Hence, from this note, we can assume that there is a need to impart specialized sex education as per the age of the child.

Domestic relationship

The Act defined the term as having the same meaning as provided under Clause (F) of Section 2 of the Protection of Women from Domestic Violence Act, 2002.

The definition is explained here: “Domestic relationship” is defined as when two persons related with consanguinity, marriage, or relation being in nature of marriage, or adoption or who live or lived together in a shared household, or as family members living together in a joint family

If any person commits a sexual crime against a child while having a domestic relationship, such an offence will be an aggravated offence against the child. The child trusts the person having a domestic relationship with the child, and when such a person is to attack the child, then the law will be more strict in punishing such a person. 

Shared household

A shared household is defined in Section 2 (k) of POCSO as: “Shared household” means a household where the person charged with the offence lives or has lived at any time in a domestic relationship with the child.” These words are used to include the offence as an aggravated form of offence which is penalized with more punishment than the simple form. This definition is included in the Act because 80% of the sexual offences against the Child are done by persons who are relatives, family friends, or whom the Child trusts. Sections 5(n) and 9(n) are made aggravated through domestic relationships and shared households.

The reason for this is to protect the child at home.

Special court and special procedures

Sex education is not only about the dissemination of information about sexual offences, sexual acts and sexual problems, but also about how to deal with situations where someone becomes a victim of sexual offences. The Act makes special procedures regarding post-offence measures to punish the crime and rehabilitate the victim child.

Special courts are constituted which level sessions courts for the trial of offences under the POCSO Act. Section 28 declares the constitution of special courts for speedy trials. The same court is competent to try any other offence as it would be competent to try under the Code of Criminal Procedure, 1973. It has jurisdiction to try offences under section 67B of the Information Technology Act, 2000, which relates to the publication or transmission of sexually explicit material depicting a child.

In this digital era, crimes are committed digitally and the law has to evolve itself to punish such crimes. Hence, the jurisdiction makes a special court competent to try such offences against the child. The most important sections which the author considers most effective against crimes against the child are sections 24, 25, 29, and 30.

Section 25 makes provisions for the recording of statements of a child. It includes protective measures for the child, such as recording the statement in a place where the child can freely make a statement and to a female police officer as far as practicable and in civil dress, and avoiding contact of the child with the accused during the recording of the statement, so that fear in the child’s mind is washed out.

Moreover, the child is not to be detained in the police station at night. Also, the identity of such a child is not to be disclosed to any person whatsoever. Section 25 makes provision for recording statements by the magistrate under 164 CrPC as they are spoken by the child and without the presence of the advocate of the accused. 

Section 29 shifts the onus of proof on the accused in an offence under sections 3, 5, 7, and 9 under this Act. The court is mandated to presume the offence was committed by the accused until the contrary is proved. This is a major shift from the general criminal jurisprudence, which places the burden of proof on the prosecution to prove beyond reasonable doubt that the offence was committed by the accused.

The accused is given a defence under section 30 in any offence in which the culpable mental state of the accused is relevant that he/she had no such mental state at the time of the commission of the offence. ‘Culpable mental state’ under section 30 includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. Such measures are necessary to protect the child from being harassed at the hands of the accused or the family, which seldom report such cases. EERA through Dr. Manjula Krippendorf vs. State (govt. Of NCT of Delhi)⁷ demonstrates the significance of this provision—

The petition was filed in the High Court under section 482 to transfer the case to the special court constituted under the POCSO Act, 2012. The mentally retarded woman, aged 38, was subjected to rape. The mental age of that woman is approximately 6 to 8 years old, and there is a necessity for the trial to be conducted in a most congenial, friendly, and comfortable atmosphere, and the proceedings should be video-graphed. Hence, the petition was filed. The court rejected this reasoning, as the definition of a child under the Act is the biological one and not the mental one.

Public awareness about the Act

Section 43 makes provisions for Central Government and every state government to take all measures for public awareness about the Act by resorting to different media such as print, electronic, audio, video, or any such medium. The government is also required to inform the victim’s parents and government officials about the act. This will ensure that the offender under the Act does not escape after committing the offence under the Act, as when the child is informed, the child will report to parents, special juvenile police, or NGOs.

Conclusion

Finally, the Act establishes effective measures to combat sexual assault against children. But the need of the hour is more and more dissemination of sex education, not only among the children prone to such offences but also to the public at large and generally, so that the world can punish and recognize the offence, as it did in the cases of rape, dowry deaths, and domestic violence, under which the victims were reluctant to even report the offence, and instead of punishing the crime, we made the victims as the criminals. This situation is prevalent today for offences against children under 18 years of age.

The measure to prevent such behaviour is to impart sex education. But this should not be generalized to all age groups.  Instead, the groups are formed with age groups up to 6 years, then 7–12 years, thirdly, 13–18 years, and lastly, 19–24 years, and different topics are to be covered under this program. Sensible and balanced training in such topics by psychologists and teachers is required to make students aware of the negative and dark elements of society and when to do what in their lives so that they are not in trouble without fault.

---

Citations

1. Preamble to Protection of Children from sexual offences Act, 2012.
2. Satish v. State of Maharashtra; (2021) 1 Crimes 175.
3. Attorney General of India vs. Satish and Another, AIR (2022) SC 13.
4. Eera through Dr. Manjula Krippendorf vs. STATE (GOVT. OF NCT OF DELHI), AIR 2017 SC 3457.
5. Fathima A.S. vs. State of Kerela, (2022) 2 KLT 396.
6. Ibid n(5).

This article is written by Somnath Sharma, a law graduate.

Introduction

A prostitute is a person who engages in sexual activity with customers in exchange for financial gain. Different countries and even different parts of the same country have different views on prostitution, which can range from being illegal to be legalized and even regulated in some cases. The rules apply the same to business as they do to sexual entertainment. The changing legal and social climate surrounding prostitution has led to a wide range of conclusions across the globe. Prostitution has been viewed very differently by different people. Some see it as a form of cruelty or barbarism towards women and children that contributes to the emerging crime of human trafficking, while others have a very different view. India is home to the second-oldest prostitute industry in the world (after farming). Records from the past attest to its existence.

Whether or not sex workers have any rights and are instead treated as sexual objects is an open question. India has failed to adequately defend the rights of sex workers, despite being a member of various international accords on human rights, including women’s rights, and despite the Indian Constitution guaranteeing people’s rights against discrimination. In light of this, the article will discuss the human rights of sex workers in India and whether or not the Indian legal system recognizes these workers’ rights. Our discussion will also include an examination of the differences and similarities between the prostitution laws of various nations.

Budhadev Karmaskar v State of West Bengal & Others

Budhadev Karmaskar was charged with the heinous murder of a prostitute who refused to engage in sexual activity with him. In 2004, Calcutta High Court ruled that the appellant was guilty of murder, bringing an end to the proceedings. With the proclamation of the judgment of conviction, the appellant filed an appeal with the Supreme Court against the punishment imposed on him. In 2010, Criminal Appeal No. 135 was dismissed due to the Supreme Court’s affirmation of the Calcutta High Court’s ruling and the Supreme Court’s Suo Motto action of converting the appeal into Public Interest Litigation.

Case Facts

In 1999, the appellant Budhadev Karmaskar severely beat the head of a diseased sex worker in Calcutta’s red-light district when she refused to have a sexual encounter with him. In order to protect her sanity and dignity, the decedent’s head was repeatedly struck against the floor of a room, which resulted in her brutal death. Due to this act, the appellant was found guilty of the heinous crime of murdering a sex worker on charges of assault leading to death. Both the High Court and the Supreme Court upheld the conviction on the basis that sex workers should not be looked down upon, but should be able to engage in prostitution with dignity and free will, and not through coercion or deception.

The Supreme Court has also taken corrective measures to reinstate the current prostitutes who were forced to engage in prostitution against their will by constituting a panel led by Senior Advocate Mr. Pradip Ghosh, with 4 other panel members and other staff members assisting them. For this, the panel has proposed that the Central Government, the State Government, and the Union Territories each contribute Rs. 10,000,000/-, subject to approval by the Supreme Court, in order to teach vocational and technical skills to sex workers so that they can earn a living and be rehabilitated into society with dignity.

Issues

1. How should Article 21’s reach and its definition of “life” be applied to guarantee that sex worker and their progeny have access to the right to live with dignity?
2. To choose a location for the panel’s accommodations.
3. How can sex workers be rehired, saved, and rehabbed into a safer setting?

Justice Markandey Katju and Gyan Sudha Mishra, who made up the judicial bench, made their decisions on the issues raised in this order.

The institution of SC validates the sex labour industry

Sexual servitude is not illegal in India. Sexual service workers should be treated with respect and given the same legal protections as everyone else. This is what a three-judge bench of the Supreme Court (SC) ruled here. It is a historic ruling. It’s a huge relief for the sexual service providers who endure extreme exploitation

Paid sex work is not illegal in India

The Supreme Court of India has ruled that sexual labour is not among the activities that are prohibited by Indian law. Operating a brothel, soliciting in a public place, benefiting financially from the labour of a sex worker, and keeping or frequently associating with a sex worker are all illegal under the Immoral Traffic (Prevention) Act or ITPA. As has been widely reported in the media, the SC does not consider sex work to be a legitimate occupation. What the Supreme Court of India is saying is that everyone, regardless of occupation, has a right to live a dignified life under the Indian Constitution and that this constitutional protection must be taken into account by authorities as they enforce immoral traffic prevention laws.

What it proposes is that people should not verbally or physically abuse sex workers or coerce them into performing sexual acts, even though they are widely reviled and stigmatized by society. The Supreme Court rules that people who work in the sex industry should be treated with respect. The court ordered that law enforcement officers refrain from interfering with or prosecuting sex workers who are adults and who have given their informed consent. Article 21 of the Constitution guarantees every citizen the right to a life worthy of his or her profession.

The law should treat sex workers the same as any other profession. A uniform application of criminal law is required, regardless of age or level of consent. Since sex work is not yet illegal in India, the police should not interfere or take any criminal action against the worker if they are an adult and have given their informed consent.

The Supreme Court’s 2011 decision stands

The Supreme Court reaffirmed its ruling from Budhadev Karmaskar (2011), which held that sex workers have the same basic human rights as anyone else. In 2011, SC convened a panel to investigate how best to protect sex workers from exploitation, help those who have been trafficked recover, and create a supportive environment for those who want to keep working in the sex industry.

The government has published a bill titled “The Trafficking in Persons (Prevention, Care and Rehabilitation) Bill” in 2016, 2918, and 2021, but has taken no further action on it despite having reservations about four of the panel’s ten recommendations. So, until new legislation is introduced on the subject, the court issued an order mandating the immediate implementation of the six recommendations with which the central government has no objections.

Rights of Sex Workers

1. The law should treat sex workers the same as any other worker. Both the age of majority and the presence of informed consent must be treated equally under the law. The police have no right to intervene or undertake any kind of illegal activity if it is obvious that the sex worker is an adult and is giving informed consent.
2. Many people fear that police have a biased attitude toward sex workers. When a sex worker reports a crime, sexual assault, or other violation, the police must investigate the allegation thoroughly and take appropriate action.
3. According to “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence,” Ministry of Health and Family Welfare, and Section 357C of the Code of Criminal Procedure, 1973, any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance (March 2014).
4. Since voluntary sex work is not illegal and only the operation of a brothel is illegal, sex workers should not be arrested during a brothel raid.
5. State governments may be asked to survey all ITPA Protective Homes, with the goal of expediting the review and release of cases involving women held against their will as adults.
6. It’s been reported that law enforcement’s treatment of sex workers is frequently violent and hostile. As if they belong to some unrecognized group whose rights are ignored. All sex workers have the same constitutionally protected rights as any other citizen, and the police and other law enforcement agencies should be trained to respect those rights. The police should not verbally or physically abuse sex workers, force them to engage in sexual activity, or subject them to any form of violence.
7. The Press Council of India should be urged to issue guidelines urging the media to exercise extreme caution when reporting on sex workers’ identities in the wake of the arrest, raid, and rescue operations, whether the workers are victims or suspects, and when publishing or airing photographs that could reveal their identities. In addition, the media should be punished for broadcasting photos of sex workers with their clients under the guise of documenting a rescue operation in violation of the recently enacted Section 354C, IPC, which makes voyeurism a criminal offence.
8. Precautions taken by sex workers to ensure their own safety on the job (such as the use of condoms, etc.) must not be considered illegal or evidence of criminal behavior.
9. When making decisions about sex work, the federal and state governments should consult with sex workers and/or their representatives. This includes the creation of new policies and programs for sex workers as well as the revision or overhaul of existing legislation. They can be consulted before any decision that could affect them is made, or they can be given a voice on the decision-making panel.
10. Workshops should be held by the Central Government and the State Governments through the National Legal Services Authority, State Legal Services Authority, and District Legal Services Authority in order to educate sex workers about their rights regarding the legality of sex work, the rights and obligations of the police, and what is permitted/prohibited under the law. Sexual service providers should be made aware of their legal rights and how to exercise them to protect themselves from exploitation by traffickers and police.
11. No child of a sex worker should be separated from the mother on the sole basis that she is in the sex trade, as was already recommended in the 6th interim Report dated 22.03.2012. Furthermore, it should not be assumed that a minor who is living in a brothel or with sex workers has been trafficked.
12. If the sex worker claims the minor is her son or daughter, the child should not be forcibly separated from the sex worker pending the results of DNA testing. Mr. Jayant Sud, the learned ASG, has presented evidence that the Government of India has some reservations about the panel’s recommendations (with the exception of paragraphs 2, 4, 5, 6, 7, and 9). In addition to implementing the panel’s recommendations as mentioned above, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 are directed to comply with the provisions of the Act. This includes acting in strict compliance with the recommendations made in paragraphs 2, 4, 5, 6, 7, and 9.
13. Article 21 of the Indian Constitution guarantees every citizen the right to a dignified life, regardless of one’s occupation. Authorities tasked with enforcing the Immoral Traffic (Prevention) Act,1956 must do so with respect for the constitutional rights guaranteed to every citizen. After the summer break, we’ll get to work on the rest of the panel’s suggestions.

Conclusion

It is time to realize that getting rid of people who work in prostitution and outlawing prostitution practices won’t end the plight of people who work in prostitution; instead, it will only make their conditions worse because they will be forced to work in secret and will be mistreated in all situations because the act of prostitution won’t be recognized by the law. Since the act of prostitution won’t be recognized by the law, there is no legal status that will facilitate benefiting from and correcting the wrongs, in conclusion, the rehiring of people who have been exploited in the sex industry, whether they are prostitutes, sex workers, or victims of the sex trade, is a matter of right and not of sympathy or privilege.

This article is written by Uddeshya Tiwari, 3rd Year LLB student from Bharati Vidyapeeth University (New law College), Pune.

Introduction

It is crucial to understand both the terms, ‘crime’ and ‘society’ when we discuss crime and society. Because it is hard to comprehend crime without researching society as a whole, there is a relationship between criminology and sociology. The concept of deviation in society is where the idea of crime originates. Deviance entails defying a social convention and arousing hostility from others. Laws are standards that are established and upheld by the government. When deviation breaks the law, it is considered a crime.

What constitutes a crime?

A crime is any act, omission, or circumstance that is forbidden by law, which, if committed, results in legal action being taken by and on behalf of the state rather than a specific individual, and which, upon conviction, results in a punishment of some kind being meted out by state agents rather than the payment of compensation.

As a result of the aforementioned definitions, we can define crime as any morally or socially wrong deed committed by an individual or group of people against another person or the state that is against the law, and when convicted, punishment is meted out by the state rather than the specific offender. Crime can take many different forms, including crimes against people, crimes against property, organized crime, workplace crimes, political crimes, and corporate crimes.

For the same reason, many actions that are prohibited in one nation but permitted in another are legal in that nation. Alcohol drinking is one example, permitted everywhere but prohibited in Muslim nations. People’s perspectives on what constitutes a crime also alter as a result of cultural changes. As a result, there may be numerous causes of crime, which vary depending on the type of crime, the time and location where it occurs, and other factors. The criminalization and decriminalization of different phenomena is thus a continuous process.

Describing society

The Latin word “socious,” which means affiliation and friendship, is where the word “society” originates. Therefore, the definition of society is “a larger group of people who are connected.” Sociologists define society as a group of individuals who share a common environment, way of life, and culture. Individual and communal (shared) benefits can thus be distinguished, or in many situations found to overlap, insofar as a society is collaborative, it can enable its members to benefit in ways that would not otherwise be conceivable on an individual basis. In a dominating, bigger society, a group of people who share similar beliefs and norms might also be considered a society. A subculture is another name for something that is frequently used in criminology.

Societal definition of crime

In essence, crime is defined via the prism of society. An act is not criminal until society declares it to be so, and if society deems an act to be in line with its values, then it is not a crime at all. The primary purpose of laws is to punish criminal behavior, and these laws are the outcome of society’s desire to put an end to such activities. To better grasp it, consider the fact that witchcraft was once regarded as a crime and subject to punishment. People at that period were extremely devout, believed in witchcraft or black magic, and believed that witches assisted the devil in his evil deeds. Witchcraft, thus, became a felony and a basis for prosecution of anyone suspected of practicing witchcraft. The definition of crime by society is crucial because it influences the creation of laws that will stop it from happening. In defining crime, society’s perspective on the specific act is crucial because, for instance, if society does not view giving bribes as a crime, they will not be recorded as such and no laws will be passed on them even though they are morally wrong.

Money as a reason for crime

Money is one of the most crucial components of everyone’s life in the modern era. The value of money extends beyond a person’s bank account balance and includes things like their social standing, value, and even morals. People, therefore, place a higher emphasis on money than on relationships and pleasure. They place more value on others’ opinions of them than their own. Even colleges and universities do not instruct students on how to lead happy and fulfilling lives; rather, they focus on teaching them how to increase their income, which subtly equates wealth with value. People who are in awe of students who study and choose careers in science rather than the arts since, traditionally, they have a better chance of making more money, would be an example. People who make less money feel unworthy as a result, and they are forced to engage in criminal activity to increase their income and improve their self-worth.

Variations in crime

Due to advancements in technology, crime has changed significantly over time along with societal change. People used to believe that crimes were primarily perpetrated by people from lower socioeconomic classes who were trying to get materialistic things and had little other options than to use illegal means to accomplish so. But rich individuals can commit crimes as well as poor people, and most of the time they can do it without leaving any evidence. Anyone can commit a crime, regardless of their social, political, or economic standing. It has been said that crime doesn’t go away; it just changes.

Do the crime figures include any errors?

The functionalism perspective is perhaps the least appreciated of the main paradigms or ways of looking at crime in sociological techniques. Everything has a function, according to functionalism. Sociologists such as Emile Durkheim postulated that since crimes happen in every culture, they must have a purpose otherwise they would not be widespread. Crime provides targets for societal moral outrage, maintaining society and fostering stronger solidarity.

Particularly Marxists contend that many crimes perpetrated by the wealthy are not recorded in crime statistics. The wealthy are less likely to be under investigation or to become suspects since they can more easily afford skilled lawyers who can clear their names or even bribe officials to stop the investigation altogether. Marxists would add that since the wealthy are the class that creates the laws, a large portion of the detrimental behavior that they do participate in is legal.

Crimes perpetrated by “middle class” people (as opposed to “blue collar” laborers) are referred to as “white-collar crime.” It is typically used to describe the crimes most associated with the middle class, such as fraud and tax evasion, rather than, for example, violent crimes that just so happened to have been committed by a middle-class person. Although theoretically, it could mean any crime committed by members of that class, it is typically used to describe the crimes most associated with the lower class.

Because many white-collar crimes are more difficult to identify, prosecutions are less likely. The crime is frequently perpetrated at a distance, possibly via computer, rather than face-to-face, and victims are frequently spread and remote (for example, there may be thousands of fraud victims who may never be aware that a crime has taken place).

Both victims and witnesses to crimes are less inclined to come forward because of these two factors. In the past, these crimes have been dealt with more leniently, and occasionally, white-collar criminals’ associates will assist in “brushing it under the carpet” to escape the unfavorable publicity. Therefore, thieves discover new and improved ways to accomplish a crime.

These days, cybercrime, often known as computer crime, is very common. The offense is perpetrated when someone uses a computer to carry out unlawful activities such as cyberpornography, fraud, infringement of intellectual property, identity theft, or invasion of privacy. With the development of technology, cybercrime, particularly over the Internet, has become more prevalent.

The advancement of technology has led to new criminal opportunities. Cybercrime typically involves an attack on data about people, businesses, or governments. Even though these attacks lack a physical component, they still affect a person’s or a company’s virtual body since, in the digital age, our virtual identities are vital components of daily life.

Consequences of crime

Most often, crime had a detrimental impact on society in terms of its economy, social structure, and political climate. The following are the consequences of crime on contemporary society: –

• Hinders societal development

Crime frequently impedes society’s development. For instance, the rise in crime rates forces the government to allocate resources to crime reduction rather than investing them in profitable areas. Building jails, buying tools to fight crime and paying those working in the criminal justice system all cost enormous sums of money. In this approach, crime prevention costs the government more, which slows down social advancement.

• It leads to the killing of people

In countries where crime rates are rising, there are more fatalities each year. Crime directly results in death through violence, such as the terrorist attack on the Pentagon and the World Trade Center on September 11, 2001, in the United States, which left about 2996 people dead and over 6000 injured.

• The expense of living in society rises as a result

The cost of living in society also rises as a result of crimes being committed there. This occurs in several ways, including the costs required by society to prevent crimes, investigate and punish criminal activity, and maintain those who have committed crimes behind bars. For instance, the criminal must be imprisoned after being charged. Criminals require pricey housing, clothing, and food.

Conclusion

The saying “money is the root of all evil” makes it obvious that crime is a combination of many various aspects of our lives, with money being the first and most significant factor. A person may commit various crimes to obtain money if there is a lack of funds and he cannot meet his needs. The need for retribution is a key motivator for criminal behavior. Both crime and society are a part of society, and their relationships are interdependent. Since society determines whether a particular act is considered criminal or not, crime is always committed in society. Crime is also more likely to occur where there is society because of social conflict and other factors.

References

1. Encyclopedia Britannica. [Online] August 22, 2022.
2. Rao, C N Shankar. 2019, Sociology, Karnataka: S. Chand Publishing, 2019.

This article is written by Kanika Arora, from Delhi Metropolitan Education (Affiliated to GGSIPU).

Introduction

We are living in the 21st century, in the era of developing thoughts and new cultures, with the people having new and old traditions which makes us a member of society. Someone or the entire society may feel uneasy when someone presents themselves or their job in an unusual way. But does the action offend someone or is it merely a novel or original way for the author to express themselves or their work? Because of these divergent points of view, the term “obscenity” is ambiguous, making it difficult to distinguish between what is and is not offensive. The Latin word obscene, which means “offensive,” especially when modest, is where the word “obscene” originates. Obscene, which according to the Oxford dictionary is “offensive or unpleasant by accepted standards of morality and decency,” seems to be a straightforward word with a straightforward definition.

Tests of obscenity

According to established moral and decency norms, the Oxford Dictionary defines obscene as “offensive or repulsive.” There are mainly three tests to check the content or whether any art or gesture is obscene or not.

Miller test

As a result of the Miller v. California ruling by the US Supreme Court, the United States of America uses the renowned Miller test (1973). Due to online obscenity cases, this test had difficulties. In this instance, Melvin Miller sent five suspicious brochures to the restaurant’s manager via mail. In one instance, Melvin Miller sent the restaurant’s management five suspicious flyers that prominently featured pictures of men and women engaging in various sex acts.

There are three parts to the Miller test. They are:

• The average person, enforcing the contemporary community standards, would find that work, taken as a whole, appeals to the prurient interest.
• Whether the work depicts or describes, in a patently offensive way, sexual conduct is specially defined by the applicable state law.
• The work, taken as a whole, is short of serious literary, artistic, political, or scientific value.

Hicklin test

This test is a legal test for obscenity that came from the English case Regina v. Hicklin (1868). The case was based on the interpretation of the word “obscene”. Henry Scott resold copies of anti-Catholic leaflets in this test, which is quite lenient. Hicklin held that Scott’s purpose had not been to corrupt public morals but they expose the major issues related to the Catholic Church, so Scott’s intention was innocent. The Supreme Court used the Victorian-era Hicklin test in its famous decision in Ranjit Udeshi v. the State of Maharashtra (1964). The test assessed obscenity by the standard of an individual who was open to immoral influences and would likely be corrupted or depraved by the material in question.

Community standards test

This test was applied in India. According to the Community Standards Test, a gesture or piece of content is only offensive if the overall dominating theme is anti-modern.

The Indian Penal Code 1860

Section 292 Sale of pornographic materials, etc.

1. For sub-section (2), a book, pamphlet, paper, writing, drawing, painting representation, figure, or any other object, shall be deemed to be obscene if it is lascivious or appeals to be so, if its effect, or the effect of any one of its items, is particularly repulsive, is if taken as a whole, such that it tends to corrupt and deprave whoever:
2. sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, reduces, or has possessed any pornographic literature, pamphlets, papers, artwork, drawings, paintings, representations, or figures, or any other pornographic material; or
3. imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed, shown in public, or otherwise put into circulation, or
4. takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any made, produced, bought, kept, transferred, displayed publicly, or otherwise put into circulation for the aforementioned purposes, or
5. advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offense under this section, or that any such offensive item can be obtained from or through any individual, or
6. offers or attempts to do any act which is an offense under this section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, with imprisonment of either description for a time that may last up to five years.

Section 293 Sale, etc., of obscene objects to a young person.

Anyone who sells, rents, distributes, exposes, or circulates any of the pornographic items mentioned in the last section to anyone under the age of twenty, or who offers or attempts to restrict the sale and publication of pornographic books, pamphlets, and other materials that are considered to be “lascivious” will be punished on first conviction by imprisonment of either description for a term that may not exceed three years and by a fine that may not exceed two thousand rupees; on second or subsequent conviction, by imprisonment of either description for a term that may not exceed two years and by a fine that may not exceed two thousand rupees.

Section 294 Obscene acts and songs.

Whoever, to the annoyance of others:

1. does any obscene act in any public place, or
2. sings, recites, or utters any obscene song, ballad, or words, in or near any public place, shall be punished with imprisonment of either description for a term which may increase to three months, pay a fine, or pay both.
3. The terrible gang rape and murder of victim Jyoti Singh, often known as the Nirbhaya case, prompted the addition of Section 354D to the IPC by the Criminal Law Amendment Act of 2013. It includes keeping an eye on a woman’s online activities, such as her email or other correspondence. Consequently, gathering images of women from their social media profiles would fall within the purview of this section. If found guilty, the offender would be sentenced to three years in prison and pay a fine.

Obscenity in India

Model and actor Milind Soman was booked by the Goa Police for obscenity, days after he posted a photograph of himself running nude on a beach in the state. He is not the only famous person having issues with the Goa Police this week for “obscenity” – actor Poonam Pandey and her husband were detained for a contentious photo shoot, a clip of which went viral online.

What about freedom of expression?

Freedom of speech and expression is not unqualifiedly guaranteed. Article 19 of the Constitution of India, which guarantees the right also provides for reasonable restrictions on various grounds, including that decency and morality. This means that free speech must be assessed against the moral standards of the contemporary community when it comes to prosecuting obscene conduct or content.

As Section 81 of the IT Act expressly provides, any offense involving obscenity in electronic form may be tried under that law rather than the IPC.

Information Technology (Amendment) Act, 2008

Section 67(A) Punishment for publishing or transmitting material containing the sexually explicit act, etc., in electronic form. -Whoever publishes or causes to be published in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with either type of prison time that may last up to seven years as well as a fine that may amount to ten lakh rupees.

Can consent be used as a defense? 

Sharing pornographic images in a WhatsApp group may subject the sender to legal action under Section 67 and Section 67A of the IT Act. By Section 354A of the IPC, showing someone pornography is a form of sexual harassment. Nude photos cannot be shared, even with the recipient’s approval. The sender is not permitted to raise it in opposition.

Related case laws

Suhas Katti v. State of Tamil Nadu

It was the first significant case involving cybercrime in Indian history. A divorced woman who used to receive unwelcome sexually graphic images and communications from a man filed the lawsuit. He was keenly interested in marrying her. Through a fake email address set up to annoy the victim, he frequently sent her offensive messages and pictures. The police investigated the incident after the victim reported it and made guilty an arrest. It was later discovered that the man was a relative of the woman and began harassing her after she turned down his marriage proposal. The culprit was found under Sections 67 of the IT Act as well as Sections 469 and 509 of the IPC. The perpetrator was imprisoned in the main prison and given a fine payment requirement.

What do obscenity laws say about Ranveer Singh, who was arrested for uploading nude photos?

The Mumbai Police have filed a case against Bollywood actor Ranveer Singh under the pertinent sections of the Indian Penal Code in the wake of the continuing controversy surrounding the actor’s uploading of nude photos on his Instagram account (IPC). The actor had recently modeled for a nude photo shoot for the Paper magazine

Sections 292, and 294 of the IPC, as well as sections 509 and 67(A) of the Information Technology (IT) Act, have all been used to charge Ranveer Singh with obscenity. Young individuals wanting to get into the sector are being urged by him to follow similar paths to success and wealth.

What does Indian law say about obscenity?

According to Section 294 of the Indian Penal Code, it is unlawful to engage in or utter anything defamatory in public (IPC). For an obscenity to be considered a crime under the IPC, it must “annoy others.” For breaking this law, the maximum punishment is three months in jail. Under Section 292, indecent literature is subject to similar penalties. The section specifically outlaws the sale, display, and distribution of “obscene” content and spells out the consequences for breaking it.

Anyone who sells or wants to sell, permits to hire, distributes, shows, or circulates any such offensive object to a person under the age of 20 would be subject to punishment, according to the law’s Section 293 (Sale, etc., of Obscene Objects to Young Persons). A fine of up to two thousand rupees and a term of imprisonment of either kind that may last up to three years; for a subsequent offense, a term of imprisonment of either kind that may last up to seven years and a fine of up to five thousand rupees.

By using words, gestures, objects, or making noises or actions with the goal that they are heard, seen, or perceived by a woman, by Section 509, a woman’s privacy may be purposefully infringed (word, gesture, or act intended to insult the modesty of a woman). A year in jail, a fine, or both are possible penalties for violators. The laws governing obscenity have altered as a result of the growth of the Internet and social media. The Information Technology Act’s Section 67 may be used to bring legal action against anyone who sends or uploads objectionable content online. However, the phrases “obscene” and “obscenity” are not specifically defined in Indian law.

Conclusion

One of the words in our Indian laws with ambiguous or unclear connotations is ‘obscenity’. Obscenity’s definition does shift from time to time. What is offensive today may not be considered offensive in the future. The proper level of obscenity in movies, web series, the arts, visuals, and literature has not yet been established in our nation, which makes it too vital to address at this time. The conflict between the various cultures and religions that make up our nation is inevitable. Because these are significant issues that could damage the feelings of particular individuals or communities; artists should not be prevented from expressing their opinions when they touch on these types of issues connected to someone’s culture or religion. All literary, artistic, and other creations do not incite hatred in people.

References

1. What does it mean when someone is obscene?, https://www.merriam-webster.com/dictionary/obscene
2. Ranjit D. Udeshi v. State of Maharashtra, 1965 AIR 881, 1965 SCR (1) 65.
3. Suhas Katti v. State of Tamil Nadu, C No. 4680 of 2004.

This article is written by Kanika Arora, from Delhi Metropolitan Education (Affiliated to GGSIPU).

INTRODUCTION

The global crime rate increases day by day at a highly accelerated rate. Criminology is a science based on the understanding of crime, policy and social justice. In the sense of applying theoretical knowledge to practical experience, it strengthens the work of law in practical lives. Criminology examines various fields like the behaviour of people who commit the crime, reasons why people commit a crime, the effect of crime on society and methods to prevent crime. The main goal of criminology is to find the cause of committing the crimes and the ways to prevent them. It examines the deviant behaviour of individuals who commit a crime and the impact on society at large.

Mostly crime is considered to be man dominant area in our society. Women are considered to be of a polite and spiritual character and they are considered to be the foundations of a family. Feminist criminology developed as a school in criminology because the major criminology theories were for men. It is a study mainly that focuses on women offenders, women victims and the impact of female criminality in society. Feminist criminology includes how women are ignored and stereotyped in criminology. Women committing murder, robbery, theft, and dacoity are easily escaped by the laws protecting them. Women committing the crime are generally stereotyped as mentally unstable. Claire M. Renzetti is the first person who brought the concept of feminist criminology¹ where the author mentions the development of criminology and examines the diversity of feminism.

BRANCHES OF FEMINIST CRIMINOLOGY

Liberal feminism concentrates more on political rights and equality. Liberal feminists’ main aim was gender equality in the field of education, workspace, marriages etc. Their main aim was that women should not be dependent on men for their living, they should also provide for their families. They also support reproductive rights such as abortion rights and strive towards ending sexual harassment against women. This increased the opportunities for women in society. As the women tend to go out for full-time jobs and not be dependent on men, they too might end up committing crimes.

Radical feminism does not oppose men, it opposes the system of patriarchy. It raised the consciousness regarding women’s suppression and it focuses on sexuality. They view male power as the cause of all problems. They argue that men tend to control women, and there are more female victims of male violence. Men always desire to control women and women being oppressed tend to commit crimes so that they can be relieved from the male dominant society.

Marxist feminism tends to argue about economic stability. Economic relation brings gender inequality where men are paid more comparative than women. Women are prevented from participating in all aspects of society as they are controlled by men as well as capital. Crime against women is common in capitalist society as higher economic imbalance creates higher gender inequality that causes violence against women.

Socialistic feminism correlates the relation between class and gender. It mainly draws many concepts of Marxist feminism where crimes against women happen not due to patriarchy but the economic dependence on men. There is discrimination against women in the workspace.

Postmodern feminism mainly focuses on the de-stabilisation of patriarchal norms and living in a gender-neutral society so that the male dominance in the society will be lesser and crimes against women will also decrease.

Ecofeminism is another branch of criminology where it is stated that women have a special biological and spiritual relationship. Like the exploitation of nature, women are exploited by men. A line of defence is also set up as against the domination of men on the planet².

THEORIES ON FEMINIST CRIMINOLOGY

Many stereotypical theories like Sigmund Freud’s Theory suggest that women commit crimes due to penis envy and they thought that they were not equal to men so they started committing crimes he said that female crime is just like longing for a penis. In Strain theory³, it was stated that most people try to achieve their goals but in order to achieve their goals faster, they tend to commit crimes. Feminists rejected this theory because women were not as financially independent as men to have their own goals and they commit far lesser crimes than men.

In societal disorganization theory, due to environmental circumstances or due to some cultures and depending upon who lives where; this was not accepted by feminists as it was stated that women under the control of men tend to commit fewer crimes. Control theories⁴ are not widely accepted because they focus on the class to which people belong and their tendency to commit the crime by including factors like attachment, educational commitment, academic involvement and social rules.

IMPACT OF FEMINIST CRIMINOLOGY

Neglecting female offenders, it is generally assumed that men are only the offenders. It is considered a tradition that women are soft and they do not commit any crimes. Women who challenge the patriarchal gender role structure are viewed as unruly women worthy of punishment. As far as the treatment of females within the criminal justice system is concerned, females should not be given lenient sentences as compared to that men when both people are involved in the same crime, just because she is a female.

The Justice system always refers that women are always society-centric and they have lots of responsibilities in the family as well as in society as a whole. So, women are given lesser punishment than men. Feminist criminology asks why women are supposed to be a victim every time & are supposed to commit fewer crimes than men just on the basis of their gender. According to a WHO⁵ report, 30% of women experience physical or sexual violence at some point in their lives and these violent acts are done by their intimate partner. Feminist criminology makes us think from different perspectives and makes us connect our ideas and help us to conclude a better solution in solving these problems.

FEMINIST CRIMINOLOGY IN THE 21^st CENTURY

There is a huge acceptance of feminist criminology nowadays. There can be lots of research and challenges that can be taken up in this field. The criminal justice system thinks differently about female offenders in the 21^st century where there are several concepts and angles to perceive female offenders. Feminist criminology focuses on the concept that why men and women differ in the path of crime using sex as a control variable; they determine the factors conducting much research that predicts female criminality. This is still needed in the 21^st century because empowering people is the most important and many people are still not aware of many crimes.

Feminist criminology also forms a global perspective and they study across the world regarding this subject. The focus on crime against women is an international issue faced by all women around the world. Abuse of women like child marriages, cheap labour and some traditional practices like female genital mutilation is the focus area in which feminist criminology must conduct further studies. Criminal justice policies are not the same across the world where women are severely punished for violating gender norms, they are often treated as offenders rather than victims too in some aspects.

CONCLUSION

Feminist Criminology is constantly developing and it has undergone various amount of changes. Though still people lack awareness of the feminist criminology concept, there are still places where women are punished for violating gender norms. There are only certain theories and limited publishments in journals regarding feminist criminology. Violence against women is not considered to be a new phenomenon. The study regarding feminist criminology is not explored in depth. The ideas of women thinking about social roles, ideas, and gender norms can also be brought here. Gender-based issues in the criminal justice delivery system can also be given a much wider discussion. Feminist criminologists can look upon the hindrances in achieving their goals so that they can help female offenders and victims to get a better justice delivery.

CITATIONS

1. 1^st Edition Routledge Bo.                                                         
2. LANE, P. (1998). Ecofeminism Meets Criminology. Theoretical Criminology, 2(2), 235–248.
3. Merton Strain theory of Deviance 1938.
4. Hirschi’s social bond theory.
5. Global and Regional estimates of violence against women, WHO Report, https://apps.who.int/iris/bitstream/handle/10665/85239/9789241564625_eng.pdf;jsessionid=A79DF84C464E0F3B278B3A87C6F44407?sequence=1.

This article is written by Sree Lekshmi B J, a third-year law student of Sastra University, Thanjavur.

INTRODUCTION

Marriage brings two individuals together as spouses and their bond is recognized by the community in the form of marriage rituals. Different religions perceive the concept of marriage from different perspectives. Hindu marriages are considered to be a union of two souls so that they can perform dharma (responsibility/duties). The Christian marriage happens for uniting with someone for the rest of their lives. Consummation also is a vital part of all marriages. Our society only takes consummation after marriage as a sacred one and it does not recognize consummation before marriages. Hence, engaging in a sexual activity/intercourse with a person other than their spouse is considered to be a wrongful act. Rape is a serious crime. Rape is defined legally as when a male penetrates a female’s vagina, anus, or mouth with a penis or any other object either with her consent (falling under any of the seven descriptions mentioned in Section 375 of the Indian Penal Code, 1860) or without her consent subject to the exception mentioned therein.

SECTION 375 AND SECTION 90 OF THE INDIAN PENAL CODE, 1860

Section 375 of the Indian Penal Code, 1860 states that a man commits rape when he penetrates his penis or inserts any object or part of the body other than the penis or manipulates any part of the body of a female so as to cause penetration into vagina, anus, urethra or mouth of a woman or applies his mouth in vagina, anus, urethra of a woman with or without consent as per any of the following seven descriptions-

1. Against her will
2. Without her consent
3. With her consent, when consent is obtained by putting her or any other person she is interested in fear of death
4. With her consent, when a man knows that he is not her husband and consent is given by her because she believes that he is another man whom she believes herself to be lawfully married
5. With her consent, where the consent is obtained in the state of intoxication or in the state of unsoundness
6. With or without consent when she is under eighteen years of age
7. When she is unable to communicate the consent.

The person having sexual intercourse on the pretext of a false promise of marriage would amount to rape and he will be punished under Section 376 of the Indian Penal Code, 1860.

The consent is obtained by the misconception of fact under Section 90 of the Indian Penal Code, 1860.  Section 90 of the Indian Penal Code, 1860 has defined consent in negative terms, as it states that consent is not intended to be consent when it is given under fear of injury or misconception of the fact and the person doing the act knows or has the reason to believe that the consent was given in consequence of fear or misconception of fact. Consent implies the freedom of judgement and deliberation. The consent is only free when the person is not blinded by anger or deceived or ignorant or subject to duress. When a person had sexual intercourse on account of a false pretext of marriage, it is clearly a misconception of the fact and such misconception of fact has no value. It may arise out of fraud or misrepresentation of facts. Consent plays a major role in criminal law, its absence or presence makes a difference of crime and innocence. Thus, the promise to marry (upon which the consent is given to have a sexual relationship) which is not fulfilled subsequently, will be a misrepresentation of fact. In Vijayan Pillai v State of Kerala¹ case, consent was defined as the ‘active will’ in the mind of a person to act on the knowledge of what is to be done.

Nowadays, our society gets more influenced by western countries. People may accept free sexual relations with each other while still being unmarried and the law acknowledges live-in relationships too. Choosing to enter a premarital sexual relationship is a part of individual autonomy but the issue arises only when there is a consenting relationship based on misrepresentation of the promise of marriage.

JUDICIAL PRONOUNCEMENTS

There are various judgements pronounced by the various courts of the country regarding the misconception of fact on the false promise of marriage. In Naushad v State of Uttar Pradesh² case, the accused committed sexual intercourse with the aggrieved party by giving false assurance that he would marry her but after she got pregnant, he refused to marry her. It is evident in this case that the aggrieved party had sexual relation with the accused on the promise of marriage but the accused never intended to marry her and had sexual intercourse with her consent which was based on a misconception of fact as defined in Section 90 of the Indian Penal Code, 1860, so it amounts to rape.

In Yedla Srinivasa Rao v State of AP³, the victim use to cook in her sister’s house during the daytime. The accused used to visit the house and persuade the victim to have sexual intercourse by telling her that he would marry her. The accused had forced the intercourse without her will or consent and the accused promised to marry her. When she became pregnant he refused to marry her. The SC observed that it was a false promise made by the accused and the intention even from the beginning was not honest and the consent obtained from the victim is not valid consent so this act amount to rape. In Deepak Gulati v State of Haryana⁴ case, it was stated that intercourse under the promise to marry constitutes rape only if from the initial stage the accused had no intention to keep the promise. The accused is convicted only if the intention is mala fide.

Clause fourthly of Section 375 of IPC will apply when the accused had impersonated the husband of the victim and the victim gives the consent believing him to be a man to whom she is or believes to be lawfully wedded. Thus, the accused who knew that he is not the husband but represented himself to be the husband, is liable for rape.

LEGAL POSITION IN INDIA

Section 114 A of the Indian Evidence Act, 1972 provides that in the case of rape under Section 375 of IPC if the victim states in her evidence before the court that she did not consent then the court shall presume that the victim did not consent for the act. The false promise to marry is clearly a misconception of fact so the court shall not take the consent into account. But many contrary judgements have been given on consent obtained from the misconception of fact like in Jayanti Rani Panda v State of WB⁵ case a fully grown girl consented to the act of sexual intercourse on a promise of marriage and continued to indulge in such activity until she got pregnant, there is no misconception of fact and Section 90 cannot help. However, sometimes the strict interpretation of without consent may be punishable as rape so there must be an amendment in legislation like sexual intercourse with the victim on the pretext of a false promise of marriage so that the accused may not be acquitted of rape.

According to the survey conducted by The Hindu⁶, 25% of rape cases filed are the breach of promise to marry. Some male activists argue that these are false cases framed against the accused and could be treated as false rape cases. They also argue that Section 375 is an exhaustive provision under IPC where each explanation has its own meaning and it is distinct from one another and there is only narrow scope of a misconception of a fact, the victim is aware of the facts and circumstance of the act. It cannot be held invalid on a mere false promise.

CONCLUSION

Rape is considered to be a grave offence that has long-lasting effects on the minds of the victims. Rape reduces a woman to an animal used for sexual desires so it must be punished severely. In various cases, it has been seen that sexual intercourse has occurred on the false promise of marriage. If these are not punished then more and more crimes would occur so there must be a proper legislative amendment to deal with the accused who committed sexual intercourse with consent on the false promise of marriage. This sexual exploitation attacks the modesty of a woman. It must not be a chance for any person to exploit a woman in the name of a false promise of marriage. Thus, the accused should be punished for rape under section 376 of the Indian Penal Code, 1860 so that sexual intercourse based on the false promise of marriage will be prevented in the future.

---

CITATIONS

1. HC: CRL.A No. 1851 of 2006.
2. AIR 2014: SC 384.
3. SC Appeal (crl.)  1369 of 2004.
4. AIR 2013; SC 2071.
5. 984 Cri LJ 1535 (Cal).
6. Rukmini S, ‘The many shades of rape cases in Delhi’ The Hindu (New Delhi, 29 July 2014), https://www.thehindu.com/data/The-many-shades-of-rape-cases-in-Delhi/article60437026.ece.

This article is written by Sree Lekshmi B J, a third-year law student from Sastra University, Thanjavur.

Victimology is the study of the investigation of the exploitation and connection of casualty and wrongdoer and the cooperation among the casualty and the law enforcement framework. Wrongdoing is a result of society and social circumstances. Nobody is conceived as a criminal. “Each holy person has a past and each delinquent has a future,” goes a famous saying. Hindu Jurisprudence thinks about compensation and contemplation for criminals to have both ‘prayaschita’ and transformation.1 Each individual including criminals has a divine flash and what is expected on our part is to ignite and revive it to empower the general public to recover and, recover him and to re-establish and restore him in the public eye as a helpful, also useful individual. The motivation behind discipline in criminal cases is both reformatory and reformative. The reason is that the individual seen as at fault for committing an offense is made to understand his shortcoming and is stopped from rehashing such acts in the future. The reformative angle is intended to empower the individual worried to yield and atone for his activity and make himself OK to the general public as a valuable social being. From a restricted perspective, victimology is an observational, genuine investigation of survivors of wrongdoing and as such is firmly connected with criminal science and hence perhaps viewed as a piece of the overall issue of crime. In a more extensive sense, victimology is the whole assortment of information with regard to casualties, exploitation, and the endeavors of society to unreasonable the privileges of the person in question. Consequently, it is formed of information drawn from such fields as criminal science, regulation, medication, brain research, social work, legislative issues, training, and policy management.²

VICTIMOLOGY IN INDIA

In Rattan Singh v. Province of Punjab³, Krishna Iyer, J. held that ―it is a shortcoming of our statute that the survivors of the wrongdoing don’t draw in the consideration of regulation. Without a doubt, casualty restitution is as yet the evaporating point of our criminal regulation. This is a lack in the framework which should be rectified by the council. More consideration ought to be attracted to this matter.

In Maru Ram v. Association of India⁴, Krishna Iyer, J. held that while the social obligation of the criminal to re-establish the misfortune or mend the injury is a piece of the correctional activity, the length of the jail term is no restitution to the injured or dispossessed yet is vanity compounder with savagery. Victimology should track down satisfaction not through barbarity but rather by mandatory recoupment by the miscreant of the harm incurred not by giving more agony to the wrongdoer but rather by reducing the loss of the pitiful.

In Dayal Singh v State of Uttaranchal⁵, the Supreme Court held that the criminal preliminary is implied for doing equity to all-the charged, the general public, and the person in question. The courts not only realize the capability to guarantee that no blameless man is rebuffed, yet additionally that the liable man doesn’t get away.

CHILD AS A VICTIM OF CRIME

India records 19% of the world’s youngsters and 1/3rd of the country’s populace, for example, 440 million youngsters are under 18 years and almost 40% of the kids are needing care furthermore, security. On the off chance that the youngsters are not as expected prepped by shielding them from any sort of misuse, attack, and so on the destiny of our future society will be a question mark. Kids’ government assistance and security are fundamental for the brilliant eventual fate of India. Child misuse is a complicated issue and an extraordinary danger that involves serious concern. In the greater part of youngster misuse cases, ―the abuser is either connected with, a known individual or more unusual etc. It is extremely challenging to distinguish whether offender is an abuser because of reasons most popular either to the casualty youngster or to their folks.

A genuinely mishandled child implies a kid under 18 years old, whose guardians or others are concerned, causes upon the youngster an actual injury or real mischief, which incorporates beating, hitting, kicking, consuming, or in any case hurting a kid truly. The UNICEF, Save the kids, and Legislature of India together directed an overview in 2007 and viewed that as 65% of younger students in India are exposed to beating basically the school’s educators actually proceed to follow the well-known adage, spare the bar and ruin the child which was a conventional shrewdness.

PSYCHOLOGICAL MISTREATMENT AND CHILD NEGLECT

It is basically an embarrassment for youngsters. It is otherwise called obnoxious attack, mental maltreatment, and mental abuse. It incorporates acts or inability to act by guardians, overseers, peers, companions, family members, and others that have caused or could cause serious conduct, mental, close to home, or mental trouble/injury. Psychological mistreatment can have all the more dependable negative mental impacts than some other types of misuse.⁶

In Smriti Madan Kansagra v. Perry Kansagra⁷, it was held that guiltless youngsters are utilized as the apparatuses of retaliation by malicious prosecutors who cause extreme mental maltreatment for the kid, in this way truly influencing the kid in his/her later piece of life.

“Disregard” has not to be understood from a restricted perspective of refusal to give food and dress, yet from a more extensive perspective in the setting of the current day social yearnings and necessities of kids which incorporate, love, due care and concern, training and so on. At the point when a youngster endures disregard in the setting of this large number of fundamental necessities, he makes certain to be genuinely hit, reflecting unfavorably upon her intellectual capacity and that is mental injury.⁸

Child sexual maltreatment, as per P.D. Mathew, incorporates utilizing, utilizing, actuating, or forcing, any kid to take part in illegal and reach, it additionally incorporates the utilization of youngsters helping other people to take part in express sex.

The term ‘missing youngsters’ incorporates runaway children, kids who are kidnapped, and those who get lost or isolated from their families. Be that as it may, the single biggest part adding to these enormous numbers is runaway kids between the ages gathering of 10 and 18. While some leave home for paltry reasons like not having any desire to study, others are compelled to escape from what they say is a hopeless existence. Many pass on their homes to get by or to get away from misuse, while a huge number succumb to trafficking.⁹

VICTIMIZATION AGAINST WOMEN

Orientation-based savagery targets influence ladies and young ladies lopsidedly. Around 1 of every 3 ladies overall have encountered sexual and different types of savagery. Ladies are likewise considerably more reasonable than men to be killed by their close accomplices or relatives. Violations including brutality against ladies are among the most under-announced and to the least extent liable to end in conviction. Survivors frequently face critical hindrances because of holes in criminal regulation and system, orientation generalizations, casualty accusing, and deficient actions of law enforcement establishments and experts, prompting optional exploitation.

Viciousness against ladies and young ladies is one of the world’s most pervasive common freedoms infringement, occurring consistently, many times over, across the globe. It has serious short-and long haul physical, monetary, and mental results on ladies especially young, forestalling their full and equivalent support in the public arena. The greatness of its effect, both in the existence of people, families, and society, all in all, is unfathomable.¹⁰ Conditions made by the pandemic – including lockdowns, diminished versatility, elevated confinement, stress and monetary vulnerability – have prompted a disturbing spike in aggressive behavior at home and have additionally uncovered ladies and young ladies to different types of viciousness, from kid union with lewd behavior on the web.

CONCLUSION

The effect of wrongdoing on the people in question and the families can range from serious physical and mental wounds to gentle disturbances. A survey¹¹ of the lawful structure according to freedoms of survivors of wrongdoing uncovers that aside from giving pay, very little has been done either legally or through plans to address the whole scope of issues looked at by casualties of wrongdoing. Because of the shortfall of any regulation on this angle the victim of wrongdoing for example the casualty is appeared to be overlooked. Notwithstanding, it is expressed that in India the casualties don’t have legitimate freedoms and security, they have the right to assume their part in criminal procedures which will quite often bring about disinterestedness in the procedures and subsequent twists in law enforcement organizations. Numerous casualties don’t go to the police out of dread of unfriendly exposure and pointless provocation. Be that as it may, in the event of youngsters, he is obscure to the equity arrangement of the country which results in the expansion in the unregistered cases which prompts the disappointment of rebuilding of the youngster into the general public. Aside from the deferral or even shortfall of equity, the casualties face comparable rates sometimes and they track down a protected spot in the public eye and see no future possibilities for carrying on with their existence with poise. In respect of this, the courts need to show the incredible feeling of obligation and to be more delicate while managing issues where a youngster is a person in question.

CITATIONS

¹ Karamjit Singh v. State AIR 2000 SC 3457.

² Randhawa, Gurpreet Singh, Victimology and Compensatory Jurisprudence, 1st Ed., Central Law Publications,

Allahabad, 2011, p. 42.

³ Rattan Singh v. Province of Punjab, 1979 (4) SCC 719.

⁴ Maru Ram v. Association of India, Krishna Iyer, 1981 (1) SCC 107.

⁵ Dayal Singh v State of Uttaranchal, 2012 (8) SCC 263.

⁶ Deccan Herald dt. 14th August 2009.

⁷ Smriti Madan Kansagra v. Perry Kansagra, MANU/DE/0386/2017.

⁸ Lubna Mehraj and Ors. v. Mehraj-ud-Din Kanth, MANU/JK/0252/2003.

⁹ Humaira Ansari &Surekha S. “Missing‖ DNA, Mumbai, 19 July 2008.

¹⁰ Ending violence against women, https://www.unwomen.org/en/what-we-do/ending-violence-against-women/faqs/types-of-violence ( available at 2 July,2022).

¹¹ Kumaravelu Chockalingam, ― Measures for Crime Victims in the Indian Criminal Justice System.

This article is written by Arpita Kaushal, a student of UILS, PUSSGRC, HOSHIARPUR.