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COVER LETTER This is Mayuresh Srivastav, pursuing B.A. LL.B. (Hons.) from Chanakya National Law University, Patna.

I am elated to submit the Abstract for my Research Paper titled Criminal Amendment Act 2013: Changing Scenario of Physical Privacy of Women under the subtheme New Vistas of Physical Privacy introduced by the Criminal Law Amendment Act, 2013., in anticipation of your positive response. Name of the Author: Designation: Affiliation: E-mail ID: Mobile No.: Mayuresh Srivastav Students of 3rd Year Chanakya National Law University, Patna mayureshs380@gmail.com 08544147488

Address of Communication- Chanakya National Law University Nyay Nagar, Meethapur Patna, 800001

CRIMINAL AMENDMENT ACT 2013: CHANGING SCENARIO OF PHYSICAL PRIVACY OF WOMEN

CRIMINAL AMENDMENT ACT 2013: CHANGING SCENARIO OF PHYSICAL PRIVACY OF WOMEN ABSTRACT Physical privacy, one of the valuable assets of women, defines the essence of her womanhood. Privacy is a space in which women remain herself. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. To check the unlawful intrusion to the physical privacy has always been the prime concern of any government. Hence due to the nationwide outrage over horrifying Nirbhaya Rape Case propelled government to review and amend the archaic penal statutes to check the unwarranted intrusion with the physical privacy from women. Taking instance from the recent amendment, the present research will highlight the transformation brought by the amendment towards physical privacy. Following this will be the backgrounds which lead to the amendment. Authors further highlight the constitutional as well as international schemes regarding physical privacy. Further, the paper will give the broad outline of new offences recognized by the said amendment and how much will it be effective in the current scenario? At last authors will conclude the research paper by analyzing the various myths and facts of the amendment regarding the security of women and also suggesting some measures for securing women privacy

CRIMINAL AMENDMENT ACT 2013: CHANGING SCENARIO OF PHYSICAL PRIVACY OF WOMEN

CRIMINAL AMENDMENT ACT 2013: CHANGING SCENARIO OF PHYSICAL PRIVACY OF WOMEN

PROLOGUE The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. In the current global scenario, there is a widespread increase in the offences towards the women. The dehumanizing acts of physical violence on women escalating in the society. The physical privacy of the women is at stake. Sexual violence is not only an unlawful invasion of the right of privacy and sanctity of a woman but also a serious blow to her honor. This intrusion to her physical privacy, indelibly leaves a scar on the most cherished possession of a woman i.e. her , honour and reputation. Physical privacy is an interest that man should be able to assert directly and not derivatively from his efforts to protect other interest. Hence to safeguard the physical privacy of the women has always been the prime concern of any civilized government. After the Nirbhaya incident, government propelled to constituted a committee under the flagship of Justice J.S. Verma and on whose recommendation the penal statutes of the country has been amended to secure the security of women in India. The new amendment which has incorporated various provision to safeguard the physical privacy of women, has extracted its root from the provision of various international charters and constitution of India. In this series taking the instance from Article 21 of the constitution reads as No person shall be deprived of his life or personal liberty except according to procedure established by law.1 In interpreting this Article in the case of Kharak Singh vs. State of Punjab2 Justice Subbarao writing for the minority was of the opinion that the word 'liberty' in Article 21 was comprehensive enough to include privacy also. He said that although it is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the right is an essential ingredient of personal liberty. Thus in this case Justice Subbarao, plughing lonely the furrow, highlighted that Article 21 also include right to privacy which is the Fundamental Right guaranteed to every persons and cannot be abridged by the state. Later in the case of Govind v. State of

1 2

Article 21 of the Constitution of India. AIR 1963 SC 1295.

CRIMINAL AMENDMENT ACT 2013: CHANGING SCENARIO OF PHYSICAL PRIVACY OF WOMEN

M.P.3Mathew, J. developed the law as to privacy from where it was left in Kharak Singh. The learned Judge referring to view of Douglas J. in Griswold v. Connecticut4, opined that the right to privacy has been implied in Art. 19(1)(a) and (d) and Article 21 of the Constitution of India. Thus in India, after this judgment physical privacy has become the important component of the Article 21 as well as article 19 of the constitution and state has now delegated with an obligation to check the unlawful intrusion to this right whether it is from the state or from any of its individual. Apart from constitution, there are various international charters where the right to privacy has been recognized as the inherent right of any individual and which is also inviolable by the act of individual as well as of state. The Article 12 of the Universal Declaration of Human Rights 1948 refers to privacy and it states that "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks." Further Article 17 of the International Covenant on Civil and Political Rights (to which India is a party), refers to privacy and states that: "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation." Further The

European Convention on Human Rights, in Article 8 states that There shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others." Thus, taking the nuances from said provisions, the new amendement has added a new vista to ensure the physical privacy of the women which was found to be shattered after Nirbhaya tragedy. The amendment tries to act as a coolant to pacify the agitation of mass to make the stern legislation relating to sexual violence to women. The amendment came down heavily upon the hollow amid aversions of the people towards the women and indecent remark upon the women and included certain provisions to check this type of the shallow activities and recommended to make it a penal offence. The amendment also resemble the dicta of Shri Bodhisattwa Gautam vs. Miss Subhra Chakraborty5
3

where the Honble

AIR 1975 SC 1378. (1965) 381 US 479. 5 (1996) 1 SCC 490.


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CRIMINAL AMENDMENT ACT 2013: CHANGING SCENARIO OF PHYSICAL PRIVACY OF WOMEN

Supreme Court of India in the reference of sexual offence It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India. BACKGROUND OF THE CRIMINAL AMENDMENT ACT 2013 This amendment is the outcome of the horrifying gang rape with the physiotherapy student on the busiest road of Delhi in mid of December, which lead to her death after 13 days in Singapur while treatment. After this incident, a serious agitation took place in the county. The tension was mounteed all round. This incident also received national and international coverage and was rebuked by the various national and international organizations. This brings to the fore an activist interrogation about the cognisibility of such incident. This brutal incident raised a serious question into the mind of every individual on the soil that, do the judicial process and its traditional methodology has made the Judicature look archaic, with eyes open on law and closed on society, forgetting the integral yoga of law and society ? Is there is no remedy toward the escalating torment of the women by in the women dominated society. Were the legal system of the country has gone so paralysed that it cannot put a leash upon the offences against women. Does it has gone impotent that it cannot act as a sentinel of the women chastity and honour. Thus in the wake of public protest government of India constituted a a judicial committee headed by Justice (Retd.) J. S. Verma, former Chief Justice of India.. The Committee submitted its report after a month. The committee considered about 80,000 suggestions received by them during the period from public in general and particularly eminent jurists, legal professionals, NGOs, womens groups and civil society. This report submitted by the committee clearly highlighted the lacunas on the part of government and policy which is the root cause of such offences in the country. Accepting the suggestions of the committee, The Cabinet Ministers on 1 February 2013 approved for bringing an ordinance, for giving effect to the changes in law. Later the ordinance was subsequently replaced by a Bill with numerous changes, which was passed by the Lok Sabha on 19 March 2013. The ministry of law and justice accepted around 80 percent of the suggestions recommended by the commission. Thus the government to give effect the said amendment, amended the various penal statutes of the land so that the crime against women can be curbed and the unlawful intrusion to the physical privacy of women can be checked.

CRIMINAL AMENDMENT ACT 2013: CHANGING SCENARIO OF PHYSICAL PRIVACY OF WOMEN

TRANSFORMATION AFTER THE CRIMINAL AMENDMENT ACT, 2013 The ordinance which was passed as the Criminal Law (Amendment) Act, 2013, has brought about several significant changes to the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872. The new amendment brought several transformation to protect the privacy and honour of women in India. The new amendment has enhanced the term of imprisonment prescribed for the offence which falls under the category of assault or criminal force to woman with intent to outrage her modesty (section 354). While earlier the accused was liable to imprisonment of a term which could extend to two years or fine or both, now, the same offence is punishable with a term of one year which may extend up to five years and shall also be liable to fine. New sections like 354 A, 354 B, 354C and 354D in the Indian Penal Code by the amendment which deals with assault or criminal force to woman with intent to outrage her modesty. Section 354A defines sexual harassment as acts like forcibly showing pornography, physical contact and advances involving unwelcome and explicit sexual overtures, demanding or requesting sexual favours, any other unwelcome physical, verbal or nonverbal conduct of sexual nature. Section 354 B deals with offence where criminal force or assault is used up on a woman with the intention of disrobing her or compelling her to be naked in public and penalizes the same with an imprisonment term which shall not be less than three years but may extend to seven years and also attract fine Section 354 C deals with the offence of voyeurism. This section talks that watching or capturing the images of a woman engaging in a private act where she expects privacy and observation by the perpetrator or any other person at the behest of the perpetrator is not likely. Such watching or capturing images of a woman is criminalized and attracts an imprisonment term which shall not be less than one year but may extend to three years and fine. Also on a subsequent conviction the minimum imprisonment term shall be that of three years extendable to seven years and also fine. Section 354 D criminalizes the act of stalking, the last offence in the category of sexual harassment. It means following a person and making or attempting to make contact for personal interaction, despite a clear disinterest being displayed by the other person. Stalking may be committed both physically and through electronic media. If a man stalks a woman, he

CRIMINAL AMENDMENT ACT 2013: CHANGING SCENARIO OF PHYSICAL PRIVACY OF WOMEN

may be punished with imprisonment of up to three years for the first time, and five years for the subsequent convictions This amendment has made special provisions for acid attacks. Under the new section 326A a person who throws or administers acid on another person and causes damage or deformity is liable for an imprisonment that is not less than ten years, and may extend to life imprisonment. A new section, 376A has been added which states that if a person committing the offence of sexual assault, "inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean the remainder of that persons natural life, or with death." In case of "gang rape", persons involved regardless of their gender shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life and shall pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim. Certain changes has been introduced in the Cr P C and Evidence Act, like the recording of statement of the victim, more friendly and easy, character of the victim is irrelevant, presumption of no consent where sexual intercourse is proved and the victim states in the court that there has been no consent, etc. ANALYSIS OF THE CRIMINAL AMENDMENT The Criminal Law (Amendment) Act aims to amend the existing provisions in criminal law in order to improve the safety of women. The Act seeks to make changes to the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act. The Bill will introduce unprecedented provisions in the Indian Penal Code which would criminalise sexual voyeurism and stalking and would amend legal provisions to protect the privacy of individuals, such as discontinuing the practice of examination of the sexual history of the victim of a sexual assault for evidence. With instances of threats to individual privacy on the rise in India, it is high time that the criminal law expands its scope to deal with offences which violate physical privacy. The amendment added stalking as an offence in IPC. Stalking causes mental trauma and agony to the victim. It is a blatant intrusion into an individuals privacy, where the stalker attempts to establish relationships with their victim which the victim does not consent to and

CRIMINAL AMENDMENT ACT 2013: CHANGING SCENARIO OF PHYSICAL PRIVACY OF WOMEN

is not comfortable with. The stalker also intrudes into the victims private life by collecting or attempting to collect personal information the victim may not want to disclose, such as phone numbers or addresses, and misusing it. If the stalker is left undeterred to continue such actions, it can even lead to a threat to the safety of the victim. Cyber-stalking is a phenomenon which can prove to be even more invasive and detrimental to privacy, as most cyber-stalkers attempt to gain access to private information of the victims so that they can misuse it. Stalking, in any form, degrades the privacy of the victim by taking away their choice to use their personal information in ways they deem fit. Thus recognizing stalking as an offence would not only protect the physical privacy rights of the victims, but also nip potentially violent crimes in the bud. Further recognizing voyuerising as an offence . It blatantly defies reasonable expectations of privacy that individuals have about their bodies, such as controlling its exposure to others. Voyeurism is an offence to both the privacy as well as the dignity of a person, by infringing upon the right of individuals to control the exposure of their bodies without their consent or knowledge, either through unwarranted observation of the individual, or through distribution of images or videos against the wishes or without the knowledge of the victim. The provision seeks to protect victims of voyeurism, who have been watched, or recorded, without their consent and under circumstances where the victim could reasonably expect privacy, and where the victims genitals, buttocks or breasts have been exposed. A reasonable expectation of privacy means that in the circumstances, whether in a public or a private place, the victim has a reasonable expectation that she is not being observed engaging in private acts such as disrobing or sexual acts. The current amendment of the Indian Evidence Act talks regarding the admissibility of evidence in the different courts. In cases of rape or sexual assault and related crimes, the evidence of consent often considered is not just that of the consent of the woman in the act at that time itself, but rather her previous sexual experience and promiscuous character. Even though it has been widely censured by the highest court,6 such practices continue to dominate and prejudice the justice of victims of sexual assault and harassment.7The examination of the victims sexual history in court is an unwarranted intrusion into their privacy through public

"Women groups protest anti-rape ordinance". DNA. 4 February 2013. http://www.dnaindia.com/india/report_women-groups-protest-anti-rapeordinance_1796191. Retrieved 5 ,February 2013. 7 2013. http://articles.timesofindia.indiatimes.com/2013-01-23/india/36504649_1_reportgangsexual-assault. Retrieved 4, February 2013.

CRIMINAL AMENDMENT ACT 2013: CHANGING SCENARIO OF PHYSICAL PRIVACY OF WOMEN

disclosure of the sexual history and details of her sexual life, which causes potential embarrassment and sexual stereotyping of the victim, especially in a conservative, patriarchal society like in India. With the new amendments, such evidence will not be permitted in a court of law, hence, it will act as a safeguards against defendants attempting to influence the court's decision through disparaging the character of the victim, and will protect the disclosure of intimate, personal details like previous sexual encounters of the victim. CONCLUSION The recent transformation into the penal statutes, on the recommendation of Justice Verma committee is a significant step to ensure the safety and privacy of the women. The recommendation has added a new vista to the physical privacy and shown the mirror of the constitution of India. It also reflects the wise and just guarantees of womens equality. As the Act is often criticized for being gender bias, but in reality this criticism is bereft of merit and will certainly bring the new dawn in the life of women. They can now feel themselves secure and can lice their life with utmost dignity and prestige. In villages, towns and cities, we know that the poor do not enjoy the luxury of a private bathroom in their homes. This makes the young girls and women particularly vulnerable to sexual abuse even as they perform routine activities of bathing, attending to the call of nature in fields and open public places. They are always fearful of men who may use this occasion to watch them or take pictures of them as they perform these private activities. The offence added after amendment, seeks to uphold the dignity of women and makes the violation of their fundamental right to privacy a crime. Women are often gripped by fear and anxiety due to being repeatedly followed by a man, girls and women have been forced to drop out of education, quit jobs and even change homes to escape the stalker. By recognizing several act as an offence, the law can actually prevent rape and other forms of aggravated sexual crimes and save innocent women from being brutally sexually assaulted or killed. The codification of this crime will fill an important lacuna in the present law. Only in situations where a man repeatedly follows a woman, either physically or through the Internet and this causes her fear or distress, will the crime of stalking be recognised as such.. This amendment will certainly takes us toward a step forward in our collective struggle to end sexual violence in India.

CRIMINAL AMENDMENT ACT 2013: CHANGING SCENARIO OF PHYSICAL PRIVACY OF WOMEN