The basic tenet of criminal jurisprudence is that crime is not genetic, that is, one is not born a criminal. As no iron curtain is drawn between constitution and the accused, an under trial or a convict, his basic human rights cannot be put to jeopardy for an accused or a convict by the mere reason of accusation or conviction, is not denuded from his fundamental rights guaranteed in the constitution [1] .

The distinction between gender and sex is often ignored by those who claim to be the sentinels of gender justice. While once in a while one hears voices against the injustice towards women, our justice system often turns a blind eye to the brutality with which all criminals are treated. It is true that the purpose of a punishment is deterrent and punitive in nature and the offender deserves a hard handed treatment as a retribution for his action, this cannot justify the acts which border brutality. Police, which is the first instrument in the process of ensuring criminal justice, often fails to justify its actions of dishonoring gender dignity of other genders when they interact with them in the society and particularly when they investigate crimes in which they are the suspects, détinues or the accused. [2] Men, women, transsexuals, all fall in the grind of this insensitivity perpetrated in the hands of those in charge of safeguarding the fundamental rights of convicts and other participants( victim, witness etc) in a criminal trial.

The fact however remains that while substantive law fails to acknowledge the thin line of distinction between gender and sex and transsexuals and male criminals continue to be treated inconsiderately, our procedural laws, furthered by judicial activism; do provide some sense of sensitivity towards women. Spurred by judicial pronouncements, Code of Criminal Procedure (hereinafter CrPC or the Act) has been amended time to time to introduce elements of sensitivity towards women. This paper is an attempt to trace the gender-sensitive provisions of CrPC, supported by judicial pronouncements, restricting the scope of gender to women. The discussion runs in three parts: part I dealing with provisions when women are offenders, part II when they are victims of criminal offenses and part III when they are witnesses in a criminal trial. The last part will be followed by a conclusion with an analysis whether these laws provide adequate protection to women and whether the available procedure are being implemented in reality or are merely a letter of law. The CrPC amendments of 2005 and 2008 have been taken as the backdrop of the discussions in this paper. As it is not possible to cover all sections reflecting sensitivity towards women in the prescribed word-limit, the author has narrowed down the scope of discussion to the most important provisions under each part. Part II and subsequently III discuss in detail the special provisions for women in rape cases and other atrocities of women-trafficking, domestic violence and dowry deaths and sexual harassment at work have been excluded from the discussion.

Part I

Accused

Arrest

The Indian criminal jurisprudence has been sensitive to the fact that women, being physically weaker, are often mistreated by police while arrest and consequently, provisions preventing any physical or sexual assault while arresting them find place in CrPC.

Section 46 of the code enlists the details of how arrests have to be made by the police [3] . Parliament, through the 2005 Amendment Act to CrPC introduced in section 46, sub clause 4 to ensure that women offenders are not mistreated while being arrested by the police officers. It read:”Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offense is committed or the arrest is to be made.” The history of this provision can be traced back to the report submitted by the National Human Rights Commission in 1997. The report examined the complaints of human rights violation through abuse of powers of arrest and detention given to the police. According to this report, the NHRC requested that all Indian state governments “translate these guidelines into their respective regional language and make them available to all Police Officers and in all Police Stations. [4] ” The report includes the following guideline pertaining to the arrest of women, “As far as is practicable women police officers should be associated where the person or persons being arrested are women. The arrest of women between sunset and sunrise should be avoided” [5] . The incorporation of this provision in CRPC was spurred by the case law produced by the Courts in response to the demand for protecting women. In Christian Community Welfare Council of India and another v Government of Maharashtra & another [6] ,the High Court of Bombay made it mandatory for the presence of a woman officer for arresting a woman. The Supreme Court however reversed the judgment [7] , accounting for the situations when arresting a woman is crucial but logistical impediments make the presence of a woman officer difficult. The 2005 amendment act was a closer embodiment of the Supreme Court decision as it gave the police some leeway to arrest females even in absence of lady officers.

2008 Amendment to CrPC saw further sensitizing of arrest procedures with regards to women when a proviso to clause 1 of section 46 was added to ensure that the clause 1 is not misused to offend women who are arrested. As interpreted by Courts, un-amended section 46(1) implied that arrest being a restraint of the liberty of a person, it can be effected by actually contacting or touching the body of such person or by his submission to the custody of the person making the arrest as a mere oral declaration to arrest without actual contact or submission does not amount to arrest. [8] 

The proviso states that “Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.” The proviso permits the physical arrest of a woman by a female officer or unless the circumstances make it an indispensible necessity for the police office to make use of physical force to restrain and arrest her. Even then, the use of force should be reasonable and not more than required to prevent the offender’s escape. [9] 

search

Section 47 [10] places restrictions on police while searching for the offender in a place occupied by a pardanasheen woman, in which case she will be adequately notified by the police before search giving her time to remove herself from the sight before the police commences with the search.

Clause 3 [11] of section 51 as well as clause 3 [12] of section 100 makes it mandatory that the search of a female is conducted only by a lady to ensure that her dignity is not violated in any form. [13] 

Section 53(2) [14] and 54 [15] , that allows for the medical examination of the accused make it mandatory for the police to ensure that female arrestees are examined only by registered female doctor or under her close supervision.

bail

CrPC empowers every arrestee with the right to be released on bail when arrested for a bailable offence. It is the duty of the police officer to inform him of his right to be released on bail [16] . Women however are given the privilege of a bail even in circumstances When a female is arrested for a non-bailable offence, even if the offence is very serious (punishable by death penalty even), the court can release her on bail as provided in section 437(1) of CrPC [17] . For instance where a young woman of two infant children was accused of murder along with her husband and her husband was incarcerated for the crime as an under trial, the accused in such facts and circumstances of case would be entitled to be released on bail as per the provisions of this section [18] . This provision is not to be taken violative of article 14 of the Constitution as it discriminated between male and female offenders because article 14 had to be read subject to article 15(3) of the Constitution under which the State Is empowered to make special provisions for women and children.

Detention

Even though CrPC is silent on the issue of separate provisions for detention of women offenders, Supreme Court in Sheela Barse case [19] held that female suspects must be kept in a separate lock-up in the police station. They should not be kept where male suspects are detained. Various states have, by orders made it mandatory that all female prisoners have to be imprisoned in a separate building or in separate part of the same building which is completely separate from the male prisoners. [20] 

In R.D. Upadhyay vs. State of AP. [21] , gender specific issues of women have been dealt with by the Supreme Court in detail and minimum standards laid for the care of the mother and the child. In pursuance of this, women inmates are allowed to keep their children up to six years of age. Pregnant women in prisons have to be given proper pre-natal and post-natal care [22] .

Section 416 [23] provides the provision of postponement of capital sentence awarded to a women if she is carrying a child. The High Court is also empowered by this section to commute the sentence of death penalty to that of life imprisonment. The purpose behind this provision is to ensure that the unborn child is not penalized for the crimes committed by the mother.

Part II

Victim

Colonial law treated women as chattels: fragments of property of their male messiahs. It took two centuries to liberate the country, and another half to liberate the thoughts. In 1970, India witnessed a rape trial that mocked the very fundamentals of our constitution: equality and justice were stifled as Supreme Court refused to penalize a police personal charged of raping a tribal minor girl, in police custody, on grounds of the girl’s ‘questionable sexual conduct’ in past. This was the infamous Mathura rape trial [24] .

Efforts of women activists and judicial intervening finally paid off and the last decade saw attempts to ensure there weren’t any Mathuras with the promulgation of the 1983 amendment. In 1983, the government passed the Criminal Law Amendment Act, which created a rebuttal presumption in cases related to custodial rape [25] . Custodial rape, gang rape, rape of pregnant women and minor women were recognized as rape offenses by introduction of sections 376A to 376D in the IPC. The government also made amendments stipulating that the penalty for custodial rape should not be less than seven years’ imprisonment; and it provided for in camera proceedings [26] and made the disclosure of the victim’s identity a punishable offence. [27] Publication of proceedings in a rape trial could be possible only with prior permission of the Court. This clause however was amended by the 2008 amendment to facilitate the dissemination of information regarding the atrocities on women and their rights through media. Therefore, the 2008 amendment allows the publication of proceedings in a rape trial provided confidentiality of name and address of the parties is maintained [28] .

Women rights activist claim that despite the 1983 amendment which did bring some procedural improvement in the state of women in rape trials, not much was reflected in reality. These amendments were not enough to stem the rise in the number of cases of sexual violence against women [29] . One crucial defect in the law was the definition of rape under Section 375 of the Indian Penal Code (IPC), which took into account only penile-vaginal penetration. Other physical and mental injuries were left to be dealt with under Sections 354 and 509 of the IPC as `outraging the modesty of a woman’. [30] 

In 1996, the substantive redundancy of these laws was exposed in the Gurmeet Singh case [31] where the trial court acquitted the rapists disbelieving the version of the prosecutrix( despite section 114A of Evidence Act that allows the assumption of truth in the statement of the victim in rape trials and placing of the burden of proof on the accused) and delay in lodging the FIR, . The Supreme Court, however was emphatic to the cause and laid down certain guidelines to be followed in case of rape trials [32] :

Delay in lodging FIR is not material if properly explained.

Testimony of the prosecutrix in cases of sexual harassment in cases of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty in convicting the ccused on prosecutrix testimony alone.

Trial of sexual offences should be in camera and invariably by a lady judge wherever available.

Court must restrain making observations that probably the prosecutrix is a girl of loose moral character.

Court is under an obligation to see that prosecutrix is not unnecessarily harassed and humiliated in cross examination in case of rape trial.

In the case of Dildar Singh v. State of Punjab [33] , it has been held by Hon’ble Apex Court that delay in lodging of the first information report cannot be used as ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report.

Some of these guidelines were translated into law by subsequent amendments to Indian Criminal Law. Later, vide the 2003 amendment to Indian Evidence Act, a proviso was added to section 146 which allowed for cross examination. It made it impermissible to question the prosecutrix in a rape trial regarding her past sexual conduct and history. [34] 

With the 2005 amendment to CrPC, section 53A [35] was added to incorporate provisions for medical examination of the rape accused to provide evidence. As for the examination of the rape victim, she cannot be medically examined without her consent, as stated in 164A [36] of CrPC. In case she is unable to express her consent, a person competent to consent on her behalf will do so. Also, the medical examination of both the accused and the victim has to be conducted within 24 hours of receiving the information of the offense.

Notified on 31 December 2009 was the latest amendment in CrPC in an attempt to sensitize the criminal laws towards protection of women further. Many provisions were introduced to minimize the harassment faced by victims during the process of investigation and trial in a rape case.

The amendment act introduces a proviso in section 157 [37] stating that the statement of the victim in a rape case has to be recorded , as far as feasible, by a lady officer, in a place she feels comfortable in: preferably her house and in presence of her parents, guardians, near relatives or a social worker. This was primarily done to avoid the humiliation the victim has to suffer in revisiting the details of the horrifying incident in front of police men and others in a police station. Besides this, the act allowed audio-video electronic means to record statement under 161 and 164 of CrPC to facilitate victims who are not in the physical or psychological state to be present in person before the magistrate for a statement. The amendment act adds to section 327, the provision of a lady judge trying a rape case as far as possible so as to bring a compassionate thought to the proceedings.

One of the major contributions of the 2008 amendment act is the introduction of section 357 A [38] in CrPC providing for the provision for compensation to victims for injuries suffered. Though this provision is not women-specific, it can prove to be a major instrument for justice by providing the rape victims adequate compensation for the physical and emotional torture they were subjected to. Compensation for rape was recognized by the Supreme Court for the first time in the Chandrima Das case [39] where the court held that the relief can be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional provisions( as her fundamental right to life and dignity is violated in a crime of this heinous a nature); and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the ‘Moral Code of Conduct’- adopted by the General Assembly of the United Nations. Activists hope that 357A will not merely be a procedural puppet in the hands of the state government and be actually utilized in facilitating some compensations to the unfortunate victims of rape and sexual violence. The amendment also has provision of right to appeal for victims. Currently, the right to appeal lies with the state which directly fights the case with the accused. Under the proposed change, the victim can independently hire a lawyer and go in for an appeal in addition to what the state does [40] .

Part III

Witness

Police is authorized by section 160 [41] of CrPC to summon a witness during investigation in case. This power however is limited by the proviso to sub-section 1 that restricts the police from summoning a male below fifteen years of age or a woman other than the place of his or her residence. A woman accused or a witness should not be summoned or required to attend at any police station under section 160 but they must be enquired only by women police or in presence of woman police at the place where they reside. [42] It was considered by the Supreme Court , in the Nandani Satpathy [43] case, to be a matter of public policy to keep minor children and women away from police company except as much as possible till the time community confidence and consciousness will regard the police force as entitled to better trust and soften the stigmatizing provisions now writ across the code. [44] 

In the landmark case of Sakshi v Union of India [45] , the Supreme Court realized and acknowledged the pain and trauma a woman goes through when she is asked to reiterate the soul-scathing instance of rape and prescribed guidelines for treatment of victims and witnesses in a rape trial. The court accounted for the fact that the mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses and can put them in a state of shock, making it difficult to give a true testimony [46] . Therefore, a screen or some such arrangement can be made where the victim or witness do not have to undergo the trauma of seeing the body or face of the accused.

In State of Maharashtra and P.C.Singh v Dr. Praful Desai [47] , the Supreme Court explicitly recognized video conferencing as a means of recording evidence in a rape trial to facilitate the victim-witness to answer questions without fear or embarrassment.

The latest amendment to CrPC seems to be a manifestation of this guideline by the Court as it adds to section 275 [48] , a proviso allowing audio-video electronic means to witness in presence of advocate of the accused so as to facilitate their testimony if they feel uncomfortable facing the accused and others in the court room.

Conclusion

Though amendments over the last two decades have introduced some element of sensitivity in our criminal laws, skeptics have their reservations regarding the same. The way women have been treated in criminal justice system in the past makes it difficult to place faith in it. For instance, the 2008 amendment act introducing the provision of women judges hearing rape cases is being frowned upon by some women rights activists and is being seen as a means of ‘ghettoizing’ [49] female judges, confining them only to women related matters. There seems some legitimacy in this accusation as if providing male judges was the problem to be solved, why is one ignoring the male defense lawyers projecting scathing questions to the victim. Moreover, since there are lesser number of female judges in the country, waiting for the appointment of one in a rape trial will delay the justice further by weeks.

Despite the gender-sensitive provisions like women officers arresting female offender, the system fails to account for practical impediments like the skewed ratio of male and female officers [50] .

A gender-sensitive, rather than a gender-biased system seems a more wholesome solution to the approach as law as without the backing and support of law-enforcement authorities, the laws made are hollow words, which go unnoticed. Gender sensitivity, not gender, is the watchword, for patriarchy is endemic to the system, not a trait of males alone [51] . Thus, what is needed today is not merely simulated sensitivity in procedural law, rather its reflection in reality to ensure that no woman is wronged in the hands of those claiming to dispense justice.