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The Context:

UNITE is the theme of the call of United Nations to “Unite for Activism to End Violence against Women & Girls”. It is an initiative of the United Nations, which is to celebrate the International Day for the Elimination of Violence Against Women started on 25th Nov 2022 and will get concluded on 10th Dec 2022, that commemorates the International Human Rights Day.

Violence against women and girls is the human rights violation, which is in existence in every Country. It is one of the world’s most prevalent human rights violations, taking place every day in every corner of the world. It has serious physical, economic and psychological consequences on women and girls, preventing their full and equal participation in society due to safety concerns as well as demotivating discriminatory practices.

What could be called as violence against women:

As per United Nations, violence against women and girls includes any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women and girls. It also includes threats of such acts, coercion or arbitrary deprivation of liberty, whether the same is occurring in public or even in their private life.

Unfortunately, the violence is understood only as physical assault and sexual harassment and other forms of violence are yet to get accepted and get the desirable attention by the society. The lack of awareness about mental violence, which can be understood as eve teasing, discrimination, stalking get unnoticed and that lead to the physical violence at later stages. Limitation of career choices due to gender, discrimination in work allocation, tasks assignment based upon gender of the person shall also be considered as violence against women.

It is important to understand that if we could identify the violence, the violence which compels a woman to change her career choices, a violence or fear which stops a girl from not taking steps in a certain direction, then we could control the violence up to certain extent and then we could save the women from loosing her life or being victim of the acid attack. Physical violence against women mostly starts from mental and emotional violence. In certain cases it also get triggered from the economic violence. Accepting same is the first step towards controlling the same.

Recently I came across a judgement delivered by the Ld. Court of Metropolitan Magistrate, 28th Court, Esplanade, Mumbai. The judgement was delivered on 18th October 2022 in the matter of State of Maharashtra Vs Shailesh Jayantilal Tanna, that acquitted the accused from the charges of stalking. The case was after trial, which was initiated on the complaint of a woman who lodged the report after tolerating for three months as it is observed in the judgement itself. The informant approached police and lodged Report against one unknown person who was working in her vicinity and was stalking her since three months. He used to wave hands and stare at her from months and one day, that person came there and was staring and laughing at her and also made some gestures, due to which, she was frightened and felt that she should lodge Report against the said person.

Ld. Magistrate observed in the afore-mentioned case that:

“On perusal of evidence of the informant, though she deposed that, almost for three months before the incident dtd. 03/08/2017, whenever she used to leave from her building, the accused was continuously followed her on his bike and used to stare her. Further in view of the informant, it is clear that, the informant was walking on the footpath and as per her allegations, as per her allegations, the accused was following her on his bike. Basically she has deposed that, it used to happen in the morning time. On the busy roads of Mumbai, in the morning hours, when there is always rush of the people to reach the railway stations and their respective offices, is beyond explanation. Basically it is highly impossible to follow somebody who is walking on the footpath at busy morning office hours on bike from the other side of the road. So, basic version of the informant considering the situation of the road and the time and for long duration of three months, is impossible cannot be believed upon. Further, if at all the accused was following the informant for long duration of three months regularly then the question arise why she has not approached police immediately ? and why she waited for such a long period.”

With aforesaid observation Ld. Magistrate acquitted the accused while passing order that the accused is acquitted as per section 248(1) of the Code of Criminal Procedure, for the offence punishable under Section 354(d) of the IPC.

With all understanding of the law, I respectfully defer with the judgement as well as observations of the Hon’ble Court and would humbly submit that the Hon’ble Court has got confused in between mental as well as physical violence as the offence of stalking is recognised in the Indian Penal Code under Section 354D, which criminalizes stalking of a woman by a man. It includes the act of continuous following or contacting a woman by a man or attempts to contact a woman to build a personal relationship with that woman even when the woman has shown a clear lack of interest. Now, my question is that how the action defined under IPC could not take place in a busy street? Offcourse the probability to have physical assault could be reduced when there is busy street but the actions enumerated in Section 354D IPC could take place and the survivor must be trusted to that effect when she is consistent is saying that she is being continuously followed or contacted by any man otherwise the provision is going to be just the golden word in the Statute, which can never be used or invoked by any victim of stalking. The psychological effect of stalking and its impact on victim’s confidence and consequently her life cannot be underestimated. The victim can loose everything can never get over from that fear and realise her potential as an individual.

This kind of interpretation or decision or observation by the judicial officer shows the need to make everyone aware that there is difference in between mental and physical violence and IPC recognises both clearly while making separate provisions for stalking, assault and rape.

Section 354D IPC also includes acts of monitoring a woman’s electronic communication, which could be communication over emails, social media, etc. and also make the provision that first-time offenders are punished with either simple or rigorous imprisonment of up to 3 years and a fine while repeated offenders are punished with simple or rigorous imprisonment of up to 5 years and a fine but I am not going into cyber offences for the discussion in this article.

Places where Women get violated:

Practically, there is no place where violence against women don’t take place. Discrimination and consequent violence against women take place irrespective of Nation, social strata and the place. It happens within family, at work place, on street and also everywhere by the society in general. There may be exception but that can’t be that much as to deny the fact that women face violence in different forms and the society make it look as its normal rule of the society and therefore most of the violence go unnoticed and lead to the physical violence, which gets highlighted and creates fear in the society and more women loose confidence to walk freely on street. If we could accept that the eve teasing and stalking are offence against which the action is to taken then we can restrict scope for assault and acid attack kind of accidents. Law has ensured all this and have shown its commitment to eliminate violence against women but still we are having incidences of violence on daily basis.

Constitutional Commitment to Protect Women in India:

Constitution of India provides equality before law for women under Article 14. It also makes provision for the State to not to discriminate against any citizen on grounds of sex under Article 15 (1). It has also provided authority to the State to make any special provision in favour of women under Article 15 (3) of the Constitution. Article 16 makes provision for the equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. But it is matter of concern that while having provisions providing physical, mental and economic protection to women and also empowering State to take affirmative action in favour of women, India is yet to have the woman as Chief Election Commissioner, the Cabinet Secretary and also as the Chief Justice of India and many such posts where the women could participate in decision making process.

Women are being empowered with help of affirmative actions of the State and their hard work is being proved at all positions wherever they have been given role and responsibility, still women are yet to have adequate participation in decision making. While making this statement, I am conscious of the fact that we did have women Prime Minister and the Women President of India and presently also we have got the First Citizen being a woman, who is not from any privileged class and yet she is there because her merits got recognised. We need many such firsts to happen. These incidences make up hopeful and that is where it is important to talk about these issues because acceptance is the first step towards finding resolution for any issue.

Indian Laws to Protect & Empower Women:

India has been committed for the welfare of women and therefore in addition to protection made in the Constitution of India and provisions made in the Indian Penal Code, some special laws got enacted in due course of time to realise constitutional commitments made in the Constitution of India to ensure gender equality. In the year 1956, the immoral traffic (prevention) Act was enacted to ensure women security, later the protection of women from domestic violence Act was passed to protect women from the physical violence at home, The Parliament also passed law to prohibit child marriage Act to protect health and life of minor girl child and provide her opportunity to grow as an individual. Marrying a child means the end of girl’s education and her right to make choices in the life. Its proven fact that girls who marry in childhood are at greater risk to face violence by their partner than girls of the same age who marry later.

Not only this, the Law for prevention of children from sexual offences (POCSO) Act was also passed in the year 2012 to protect all children irrespective of their gender and POCSO is applicable above all other laws and practices in case of any conflict with provisions of this Act. Parliament has also taken care of the protection of women from economic violence against women and therefore there was enactment of the law on equal pay for equal work for both men and women. We also have laws to ensure no sexual harassment at work place and many such laws to ensure that women could also unlock their potential at perform with full of their capacity.

The Journey Ahead:

The solution lies in the road taken by all of us. We need to groom our boys to understand that “No” is a complete sentence in itself and it means the negative response to the advancement made by the man. The relationship cannot be forced and the consent to get into relationship has to be free and voluntary. Law is made to protect women from all possible violence in all walks of women life but still there are issues, which are yet to be resolved either due to lack of law or due to lack of the knowledge of the law or sometime the reason is the lack of its execution.

The law protects women from the domestic violence, protect them from economic violence while making laws like equal pay for equal works and protect from psychological violence while making law against eve teasing. But law still does not protect women from the violence by the partner/spouse, which lead to the sexual violence, i.e., forcing oneself on the partner due to conflict within legal provisions which are in conflict with POCSO and validate minor marriages which could include the probability of imposing oneself on minor girl. Here it is important to mention that POCSO imposes obligation on every citizen to report even if there is any probability of the sexual offence against any child. Conflict in between laws have to be reconciled while interpreting the same harmoniously in the interest of the rights of the girl child. United Nation considers child marriage refers being any marriage where one or both of the spouses are below the age of 18 and therefore, the marriage below 18 years is violation of the Universal Declaration of Human Rights, which states that “marriage shall be entered into only with the free and full consent of the intending spouses.” Girls, which are child brides could have probability to drop out of school and could also be prone to other forms of violence.

Change starts with us and therefore, we need to think that how could we eliminate the violence against women and that has to be more than celebrating any day or week for women. The first step could be to trust the survivor and then teach our next generation the real meaning of the word “No”. The power of no is to taught equally to girls and boys. We need to raise our boys while inculcating wisdom to respect the difference in between both genders and accept the meaning of the term “no”. We also need to teach boys to respect other’s space and to allow other’s to express freely and comfortably. We also require to raise our girls while giving them the confidence to say no and not to accept what is not acceptable to them. Give wings to girls to explore their full potential while training their mind to have no tolerance towards discrimination and consequently any form of violence. Let’s pledge to make ways to eliminate the violence against women as way of life and participate in creating a better society for all of us.

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Views of the Author are personal.