Equality is a word, so often used in the media these days, that people seem to be talking about it and analysing it like never before. This word has been particularly associated with ‘gender’. Various movements and revolutions have been pioneered with the intention of integrating gender equality in our society. Governments and organisations have been scratching their brains to develop various methods to achieve the same. Legislations were introduced with the purpose of empowering women and condemning crimes against women and for stringent punishments. However, even after all these steps, questions are still asked, ‘how far have these steps brought us?’
Before moving towards this question, let’s try to understand what exactly gender inequality or gender bias means. Gender inequality in India refers to the various educational, economic and political differences between men and women. Gender bias in criminal investigations is a different arena altogether. Women and girls in India are unable to overcome the barriers set by our society on their way to find justice. The situation of treatment given to female perpetrators is quite the opposite. They tend to be treated with leniency by the courts and the standards employed may come off to be clement and unfair. This article talks about both and discusses the possible measures to overcome the same.
SITUATION OF FEMALE VICTIMS OF CRIME:
Human Rights Watch, in its article discussing the situation of female victims of crime in India, has stated that “women and girls in India are often afraid to report attacks because of fear of being stigmatized, and because they feel unable to overcome institutional barriers in a criminal justice system that offers no protection to victims or witness.”[1] Females in India are subjected to humiliating comments, gestures and treatments by law enforcement officers and medical professionals. “Senior politicians and religious leaders have shown this ‘blame the victim’ mentality towards rape on several occasions since the Delhi gang rape, and police often follow suit.”[2] Indian legislation has made several laws to address gender-based violence which includes the Criminal Law (Amendment) Act, 2013, the POCSO Act, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, etc.
Numerous researches observe that there are tenacious gaps seen within the law enforcement system. Indian law states that in sexual abuse or sexual assault cases, a trained female officer should record the victim’s testimony and have her statement recorded by a judicial magistrate as quickly as possible. The amendments to the Code of Criminal Procedure in 2013 mandates that law enforcement officers are to register the complaints and failure to do so can lead to imprisonment for two years. Despite all this, the police often show non-adherence to these rules. One can see resistance on their part while filling a FIR, especially, if the victim comes from a marginalized society or if the perpetrator belongs to a powerful community. This behaviour was observed in the case Barkha and her husband when the police in Lalitpur district in Uttar Pradesh refused to record their compliant after Barkha and her husband were attacked by three men belonging to a dominant class. “If you’re a woman in distress, the last thing you want to do is go to the police,” said Vrinda Grover, a human rights lawyer based in New Delhi.[3]
Female victims of crime suffer loss of privacy and safety if the case does eventually make it to a trial. the explosion of media in the last few decades has complicated the matter. The credibility of the victim is questioned and the victim is first made to face the court of the media. On the social media giants, victims may be subjected to slut-shaming, cyber-bullying, sexual slurs and stigmatization. This gets even worse when the woman belongs to a marginalised class. During the trial, the victim’s attire, her life and her character are often scrutinized and degraded by the defence lawyer. The victim feels terrorized and unsafe during the trial and the trauma of repeating the testimony is unexplainable. Even after the trial, the deep scar left by the proceedings and constant humiliating comments has never healed for many. After a certain point of time, it becomes difficult to distinguish who is the perpetrator and who is the victim.
SITUATION OF FEMALE CRIMINALS IN INDIA:
There is no doubt about the fact that women in our country have faced discrimination, oppression and violence inflicted by the society. However, this is no reason for our judiciary to treat female offenders with more leniency than the male offenders. The judges tend to take into account the biases prevalent in our society while sentencing the female accused. “Even the Supreme Court of India has opined that in our country, gender is a relevant circumstance taken into consideration while deciding the quantum of punishment to be given to female criminal.”[4] A deep study into the cases were the accused is a female, throws light over the fact that the courts have been using the gender role of a woman to be submissive, passionate and compassionate just to maintain the foundation of the family, to mitigate a woman’s liability of a crime. This can lead to the conclusion that the judiciary sees the female gender as the one that needs to be protected and are “stuck to the archaic assumption of women as a weaker sex in general.”[5]
Section 2 of the Indian Penal Code explicitly states that every person shall be liable under the Code, which points out that, crime has no gender and law doesn’t differentiate between criminals. Therefore, neither should our judges. In various cases, it is seen different sentences are awarded for the same crime, usually lesser for the female than for the male. The case of Nirmala Devi v. State of Himachal Pradesh would be the perfect illustration for this, where the accused woman and her male accomplice were found guilty of drugging and robbing a man. The accused woman was awarded a sentence of two years in jail whereas the prescribed sentence is ten years of rigorous imprisonment. One cannot deny the fact that the familial situation of the offender should be considered while awarding the sentence but, this is done to make sure that women of different backgrounds face no disparity. Gender as a factor will always be taken into consideration while deciding the cases but, there must be an attempt to follow a more gender-neutral standard while deciding the culpability of women criminal.
CONCLUSION
Gender- neutrality doesn’t mean victimizing one gender in lieu of protecting the other. We need to safeguard the female victims and approach female perpetrators with more gender-neutrality. We can start with the basic unit of our society, family. We can ingrain in our children, boys and girls, that both the sexes are on equal footing and enabling one doesn’t mean depriving the other.
Female victims of crime need to be treated with respect by the people of our society and by the law enforcement officers. The gaps in the working of the justice need to be filled with proper communication and coordination. There should be clear and unequivocal policies regarding the handling of crimes against women. “In addition, the police need to be more accountable by working with other institutions and advocacy group, and must be educated about the ‘dynamics of rape and how they differ from other crimes.”[6] Imbibing inter-gender equality, that is, treating women of different backgrounds equally, is an important step. It is not just the responsibility of the law enforcement officers but, of each and every one of us to respect and protect the right to privacy and security of the female victims. They deserve a chance at normal.
Female perpetrators are to be treated just like other perpetrators. Law is not different for them. There has to be usage of gender-neutral language by the courts and show some specific standard, that is just and reasonable, while sentencing female criminals. Everyone should be deterred from committing a crime and women are no exception to this. an important step in this regard would be employing more female judges to understand the cases involving a female offender and ensure better understanding of the facts. “However, there cannot be a uniform criminal justice system for both male and female offenders as it would be just superficial fairness when at present both are still not on an equal footing.”[7]
As law students, we can try to create legal awareness regarding rights of women and tell them women are just as strong as men. Pro women laws are supposed to safeguard the real sufferers and not push with the contention that women are weak and hence need special benefits. Justice is the right of both and we must strive to provide that right equally to both.
[1] Jayshree Bajoria, ‘Everyone blames me; Barriers to justice and support services for sexual assault survivors in India’, URL https://www.hrw.org/report/2017/11/08/everyone-blames-me/barriers-justice-and-support-services-sexual-assault-survivors
[2] Nita Bhalla, ‘Analysis: How India’s police and judiciary fail rape victims’, URL https://mobile.reuters.com/article/amp/idINDEE90F0AY20130116
[3] Gardiner Harris, ‘For rape victim in India, police are often part of the problem, URL https://www.nytimes.com/2013/01/23/world/asia/for-rape-victims-in-india-police-are-often-part-of-the-problem.amp.html
[4] Niharika Tiwari, ‘Gender disparity in the criminal justice system of India, URL https://blog.ipleaders.in/gender-disparity-criminal-justice-system-india/
[5] Id.
[6] Prachi Sharma, M K Unnikrishnan, Abhishek Sharma, ‘Sexual violence in India: addressing gaps between policy and implementation’, Health Policy and Planning, Vol. 30, Issue 5, June 2015, page 656-659
[7] Id. at 3
YLCC would like to thank Chaitrali Mane for her valuable contribution in this article.
