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INTRODUCTION

People living in a society must live in peace and harmony and also must be given the power to do anything they wish. This liberty that is given to them is conditional. If they do anything illegal or unlawful, they are held accountable for it. There arises the necessity of a good criminal judicial system.The main aim of the criminal system is to serve justice by means of a fair trial. It is to find the offenders and punish them in accordance with law and to protect the rights of the victims. The maxim ubi jus ibi remedium– where there is a right, there is a remedy is the sole principle by which the judicial system works.Fair trial must be conducted and must be ensured by following all the principles of justice and must be in accordance with law

WOMEN BEING THE TOPIC:

Living in the 21^st century, women not being given importance and value is still the number one social issue. Patriarchy, male chauvinism, Misogyny are all the different terms that are used nowadays to show the dislike or oppression towards women within the society itself. Oppression is not something that was just started one day, it is something that women all over the world have faced since time immemorial in different forms and from different people. In India, male domination with a complementary suppression of women has been continuing since pre-historic times:

Every two seconds, nine babies are born and about half of them are girls. Women contribute to about half the population, yet there still exists the problem of discrimination, disabilities, inequalities, and non-recognition of their rights in our male-dominated societ

Due to the rise of science and technology, there has been an increase in the rate of literacy. The growing awareness of women’s status has led to the measure of protection of women’s rights. These days, the idea that “women’s rights are human rights” seems obvious, but it was not until 1993, when the UN held a conference on human rights in Vienna, that the member states began to talk about abuses against women as “human rights” violations.[1]

CRIMINALISATION:

The criminalization of women in India is a complex issue that stems from a patriarchal culture that devalues and oppresses women. Despite significant progress in women’s rights and empowerment in recent years, women in India continue to face discrimination and marginalization, and are often treated as second-class citizens.Criminalisation of women occurs where abortion is illegal or legal only in limited circumstances, again including in cases of rape. In Colombia, for example,abortion is prohibited in all circumstances and women can be imprisoned for up to four and a half years for having abortions even in cases of rape or when their lives were at risk. Only narrow exceptions allow judges to waive penal sentences.

In some countries, women are imprisoned for leaving their homes without permission (“running away”). Many of these women leave in an attempt to escape from forced marriages, forced prostitution or physical or sexual violence by a family member.A study in Afghanistan in 2007 found approximately 20 % of the incarcerated women were charged with the offence of running away, often combined with another offence, such as adultery or theft.

Girls, in particular, tend to be treated more harshly for offences, which are atypical in terms of the behaviour expected of a girl, including “being beyond parental control”. Research in juvenile rehabilitation centres in Afghanistan, for example, found that 14 % of girl respondents were in detention, not because of an offence, but because they were without shelter. None of the boys reported being in detention as a result of being lost or without accommodation.

Women who are sex workers, including victims of trafficking, also face imprisonment in numerous countries for offences such as prostitution. International law prohibits discrimination, including discrimination based on sex. States therefore need to review their legislation, policies and practice in order to ensure that women are not penalised exclusively or disproportionately.

While not intending to characterise women detainees as “passive victims of the criminalisation system”, it is important to understand the role trauma and violence has played in the lives of these women and the links between offending and histories of prior abuse. For example, the South African study shows that domestic abuse is related to female offending in both direct and indirect ways. Similarly, studies in Australia, Canada and South Africa reveal high rates of violence prior to arrest and possible links with criminal conduct.

In the cases researched of women alleged or convicted of offences against life (assault, manslaughter or murder), experiences of domestic and sexual abuse often were the direct cause of incarceration. Many women surveyed in Argentina, for example, described how they used force against their abuser after suffering severe and ongoing domestic violence, including out of fear for the safety of their children. Such fears are not unfounded. Globally, two thirds of the victims of homicide were female in 2012 and almost half of all female victims (47 %) were killed by their intimate partners or family members, compared to less than 6 % of male homicide victims.

Women who come from countries where they are oppressed or unable to provide for their families are an easy prey for traffickers, especially if there is a history of abuse or other trauma. This can be seen in the frequent involvement of the recruitment of potential victims by women who were trafficked at one time[2].Proper economic and socio-psychological help must

be provided in order to identify victims of trafficking. Women that are mainly victims of trafficking for future sexual exploitation can be to some degree easier protected if decriminalisation and legalisation of prostitution occurs. Though legalisation has some strong positive effects (taxation of services is a benefit for the state budget and the health and social protection of prostitutes etc.) such an approach can only be applied where the proper social and cultural settings are present (mainly the absence of moral crusaders, acceptance of the sex industry, proper administrative screening and/or proper legislative framework)

. The question though arises if a potential legitimation would perhaps “(re)enforce” the development of such settings, if society would see that prostitution is not the root of evil? There are also other options to be considered, like the Swedish approach, where only clients and not prostitutes are penalised and—as some believe—thus eliminates or at least weakens the main motivational and facilitating factor behind human trafficking  Yet such anapproach also demands proper socio-cultural support and must include the development and implementation of additional intervention and support programs.

Violence against women has skyrocketed in the 2000s. Women are given very little or no security in the nation and are often subjected to some sort of abuse. If a survey is taken to ask any girl or woman whether they’ve faced any kind of violence, the answer will be a yes. Violence against women is of various types and can happen at any place like home, public place, or office. Violence which are counted as crimes under the Indian Penal Code are rape, kidnapping, and abduction, torture physically and mentally, dowry deaths, wife battering, honour killing, sexual harassment, molestation, trafficking of girls, etc. Rape laws have been made stricter after the cruel case of Nirbhaya^[3] which shook the conscience of the entire nation. A 23-year-old woman was brutally gang-raped in a moving bus by a group of 6 people out of which there was a juvenile. The juvenile was the most brutal out of the accused. Women are even abused at the workplace. The famous 1997 case Vishaka v state of Rajasthan^[4] formulated the very famous Vishaka guidelines and made it mandatory for both private and public sectors to establish mechanisms to redress sexual harassment complaints. In Kerala, three women died back-to-back in 2021. A similar factor in the three cases is that all of them were married and were often abused and harassed over dowry payments. Hence, they are categorized under dowry deaths. There are several acts and laws that govern the various offenses and injustices against girls and women.

Realizing the need of setting up an agency to fulfill the surveillance functions as well as to facilitate grievances of women, Government enacted the National Commission for Women Act, 1990. Even though there are acts and provisions in IPC that restrict and prohibit these acts and various precedents based on offences against women, there are still such offences happening at the same rate. Women do not feel very secure due to these horror stories of various outbreaks of violence taking place everywhere.

CONCLUSION:

Physical and sexual violence against women is legitimised precisely by the criminal narrative constructed against the women community, itself an outcome of procedural violence. In fact, these processes are indistinct and inseparable. Women  are collectively punished by the upper castes and state alike for purported offence or harm by any one of them. This has extended to settlement burnings, mob lynchings and sexual assault. The violence women face is legitimised by the narrative of their criminality and used to justify their extrajudicial punishment. The specter of criminality looming over the communities is a breeding ground for the dominance of the state. The criminal justice system initiated by the police has germinated, nourished and allowed for the erasure of gendered violence against women by sustaining the myth of their criminality.

[1] 1993 UN Conference on Human Rights in Vienna

[2] Mandisa and Lanier 2012

[3] Mukesh and Anrs. v. NCT Delhi (Nirbhaya Case),(2017) 6 SCC 1

[4] Vishaka & Ors. v State of Rajasthan & Ors., (1997) 6 SCC 241

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ARTICLE WRITTEN BY ROSHNI SABU, FINAL YEAR STUDENT,KERALA LAW ACADEMY LAW COLLEGE.