We are in an era that interprets gender equality. Simultaneously, we must
provide certain privileges to vulnerable sections such as women, children, and
disabled persons. Within this category, women accused of crimes also have
specific privileges that must be adhered to during criminal proceedings.
We have likely heard the rule:
“A woman cannot be arrested before sunrise or after sunset.” Notably, the
abstract term here is “darkness.” Why should an accused woman be protected from
darkness? The answer is to prevent the “accused” woman from becoming a “victim.”
Therefore, even at the time of arrest, if the accused is a woman, her safety is
a priority for the fair trial of the accused.
To ensure this, amendments were made to Section 46 of the Criminal Procedure
Code 1973, specifically Section 6 in 2005, to emphasize the safety of women.
Furthermore, the UN Women Annual Report 2011 provided incentives and
constructive ideas to foster women’s empowerment and gender equality worldwide.
This article examines the arrest procedures for women in India, their rights
during these procedures, and some landmark cases where women’s rights during
trial were violated.
Abstract: This article aims to raise awareness about the provisions available
for female accused and the procedures to be followed when the accused is a
woman. It discusses the privileges established for them in India and from an
international perspective. Additionally, this article examines the necessity of
these privileges for women accused as opposed to men accused. It also explores
how prevailing laws have been misused by women. The article aims to discuss that
the privileges granted to women in criminal proceedings are subject to sexual
discrimination against men and offers further suggestions to protect the female
accused from becoming victims at the hands of higher officials, police officers,
jail wardens, and co-accused.
The Arrest of a Person:
The provisions for the “arrest of persons” are outlined in Chapter V, i.e.,
Sections 46 to 60A, of the Criminal Procedure Code, 1973. This chapter details
the process of a fair arrest. According to the High Court of Madras’s judgment
in the case of Roshan Beevi vs. Joint Secretary, Government of Tamil Nadu
(1983), there can be no second opinion regarding the method and execution of the
arrest of a person intended to be arrested. It must be performed only as
prescribed by the statute; any other method is forbidden. Otherwise, the entire
purpose of Section 46 (CrPC) would be rendered nugatory and functionless.
Therefore, ensuring a fair arrest should be the ultimate motive of the police
officer.
Procedure for the Arrest of a Woman:
One of the legislature’s primary motives is to safeguard women during their
arrest. The basic procedure for the arrest of a woman is laid down in Section 46
of the Criminal Procedure Code, 1973, and Section 46(4) as amended under Section
6 of the Code of Criminal Procedure (Amendment) Act, 2005. Section 46(4) states
that, barring extraordinary circumstances, no woman shall be arrested after
sunset or before sunrise. In such exceptional circumstances, a woman police
officer must make a written report and obtain prior permission from a First
Class Judicial Magistrate within whose local jurisdiction the offense was
committed or the arrest is to be made.
Furthermore, as per the National Human Rights Commission guidelines, a woman
police officer should be associated when a woman is being arrested. Section
60(1) stipulates that, according to the provision of Section 160(1), a woman
should not be called to the police station or any place other than her residence
for questioning. It also states that neither a male under 15 nor any woman shall
be required to attend any place other than where they reside. In the case of
Sheila Barse vs. State of Maharashtra (1983), the Honorable Supreme Court held
that it is the duty of the police officer making an arrest to ensure that
arrested females are segregated from men and kept in a female lock-up at the
police station. In the absence of separate lock-ups, the woman should be kept in
a separate room.
Search Procedure:
The search of an arrested person within his/her place of residence is a
significant part of the arrest procedure. Under Sections 47 and 51, the process
of executing the search is provided, along with separate provisions for women.
The person, place, or both can be searched by authorities executing the arrest.
Section 46(1) states:
“In making an arrest, the police officer or other person making the same shall
actually touch or confine the body of the person to be arrested unless there is
a submission to custody by word or action.” However, when a woman is to be
arrested, her submission to custody shall be presumed upon oral intimation
unless the circumstances indicate otherwise, and, unless the circumstances
require or the police officer is female, the police officer shall not touch the
accused woman to make the arrest.
Section 47(2) holds that if the police officer or any other person executing the
arrest warrant learns that the premises to be searched is the residence of a
woman who, according to custom, does not appear in public, then such police
officer or person shall inform the woman of her right to refuse the search
before initiating it.
Section 51(2):
As per the provision of Section 51(2) of the Criminal Procedure Code, 1973,
whenever it is necessary to search a woman, it should be performed by another
woman with strict decency.
Medical examination of Arrested woman:
According to Section 53(1) of the CRPC, if there is reasonable suspicion that
the medical examination of an accused person would indeed aid in the procurement
of evidence related to the offense committed, a registered medical practitioner
may carry out such an examination at the request of a police officer not below
the rank of sub-inspector or any other person acting in good faith.
However, if the accused brought for medical examination is female, the provision
is slightly different as per Section 53(2). In this case, whenever a woman is
being examined, the examination shall be made only by, or under the supervision
of, a female registered medical practitioner. The definition of a registered
medical practitioner is clearly stated in Clause B of the explanation to Section
53.
It states that a medical practitioner is a registered medical practitioner if he
or she possesses the necessary qualifications mentioned under Section 2(h) of
the Indian Medical Council Act, 1956, and his or her name is enrolled in the
state medical register. In addition to these provisions, it is stipulated that a
woman should be guarded by a female constable or police officer while being
questioned or arrested.
All necessary prenatal and postnatal care should be provided to females who are
arrested. Restraints for pregnant women should be used as a last resort, keeping
in mind that their safety and the safety of their fetuses should never be
compromised or put at risk. A woman should never be restrained during labor.
Rights of an Arrested Woman:
Maintaining the modesty of a woman is an important task, even if she is accused
of an offense. Therefore, certain general rights have been provided to arrested
women, along with some rights specifically allotted to them.
Right to Free Legal Aid:
The right to free legal aid has been provided under Article 39A of the
Constitution. This right accompanies those people who are incapable of bearing
the expenses of civil or criminal proceedings. It shall be the responsibility of
the state to provide that person with adequate legal assistance at states
expenses for proper representation in the court of law., this tree like
provision extends its branches to all sections of society, including woman.
According to Section 304 of CrPC, the State Legal Service Authorities shall bear
the cost of legal proceedings including the cost of printing and translation,
and fees of the Appointed legal counsel. If I woman is accused often offences,
she is entitled to exercise the right of free legal aid and hence, ensure her
proper representation in the court. this right was considerably exercised in
Jose nada cartoon what says state of Bihar 1979, where the tax code held that if
an accused is not able to afford legal services, then he asks are right to free
legal aid at the cost of the state.
Right to be Informed Regarding the Grounds of Arrest and Bail
Under the provisions of Section 50(1) of the CrPC, the arrested person is
entitled to be informed about the grounds of his/her arrest, and the police
officer or any other person executing the arrest shall communicate the same to
him/her. As per the judgment in D.K. Basu vs. State of West Bengal (1986), this
right is exercisable by both accused men and women. Furthermore, as per Section
50(2) of the CrPC, a woman should be informed of her right to be released on
bail after being arrested without a warrant for an offense other than a non-bailable
one, and after arranging sureties on her behalf.
Right Against Manhandling and Handcuffing
The submission to custody upon oral intimidation of arrest shall be presumed
when executing the arrest of an accused woman, as provided under Section 46(1)
of the CrPC. Moreover, if touching an accused woman is necessary to execute the
process of her arrest, it should be performed only by a female police officer,
except in situations of absolute necessity. In the case of Vibin P.V. vs. State
of Kerala (2012), it was observed that it is the duty of the law to protect an
individual from torture and abuse by the police and other law enforcement
officers.
Right to Inform Relatives or Friends
While arresting a woman or man, the police officer performing the arrest has the
duty to immediately provide information regarding such arrest and the place
where the arrested person is being held, to any of the relatives or friends of
the arrested person, whomever he or she nominates for the disclosure of the
information.
Right During Detention
A police officer is not authorised to detain an arrested person for more than 24
hours, which excludes the time of travel, in his custody under normal
circumstances. As mentioned earlier, in the case of an arrested woman, the
arrangements for her custody should be made with strict decency. In keeping with
moral norms, arrested men and women cannot be kept in the same lockup,
concerning the modesty of a woman. In the case of Gndharba Rath vs. Aparti Samal
(1959), the Orissa High Court observed that Section 56 makes it compulsory for a
police officer to make the arrest in a written order while specifying the person
to be arrested and the offense or other cause for which the arrest is to be
made, especially in cases where a police officer has deputed a subordinate to
arrest without a warrant.
Landmark Cases For Women’s Rights:
Bharati S. Khandhar vs. Maruthi Govind Jadhav (2012)
In the landmark case of Bharathi S. Khandhar vs. Maruti Govind Jadhav (2012),
the petitioner was aware of the provision of Section 46(1) but was not aware of
the provision of Section 36(4) of the Code of Criminal Procedure. Consequently,
she was arrested after sunset and mistreated by the police officers.
The Honourable Bombay High Court directed the Mumbai Commissioner of Police to
conduct an inquiry against the concerned police officers for the illegal
detention and arrest of the petitioner after 5:30 PM, which was after sunset.
The Director General of Police, State of Maharashtra, and the Commissioner of
Police, Mumbai were directed to issue instructions within a period of two weeks
to all the concerned officers to adhere to the mandate of subsection (4) of
Section 46 of the Code of Criminal Procedure, 1973, which states that the arrest
of any woman accused of any offence should not be made after sunset and before
sunrise.
Sheela Barse vs. State of Maharashtra(1983):
In Sheela Barse vs. State of Maharashtra (1983), journalist Sheela Barse
wrote a letter highlighting the custodial violence against women prisoners in
the police lock-ups of Mumbai. This letter was subsequently treated as a writ
petition. Following this case, various directives were issued to the State of
Maharashtra to ensure the protection of women prisoners in police lock-ups.
The Protection of the Accused in International Criminal Law According to
Human Rights Law Standards
The protection of the accused is invariably in the interest of the civilized
existence of law. All legal systems provide certain standards for the rights of
the accused. These rights guarantee that, should criminal proceedings be held,
no harm will come to the alleged offender, and their right to a fair trial will
be upheld. The principles developed in human rights law have been adopted at
both the national and international levels.
International Criminal law
Similarly, there is no general agreement among scholars regarding the definition
of International Criminal Law. According to one expert in this branch of law,
Creon, International Criminal Law governs international crimes as well as the
penal aspects of international law, including the body of law that protects
victims of armed conflicts, known as international humanitarian law. On the
other hand, Antonio believes that International Criminal Law is a body of
international rules designed to prescribe international crimes and to impose
upon states the obligation to prosecute and punish at least some of those
crimes.
Nevertheless, some features of International Criminal Law are widely recognized
in the literature. First of all, it is settled that it is a mixture of common
and civil law systems, especially from the procedural point of view. Secondly,
International Criminal Law is seen as an extremely complicated branch of law,
combining principles of criminal and international law, and is incorporated into
human rights and humanitarian law. The influence of international law on
International Criminal Law is particularly visible in the area of substantive
law. War crimes are believed to be derived from humanitarian law, while crimes
against humanity originate from human rights law.
It is agreed that the concept of International Criminal Law was born in 1945
when tribunals of historic importance were established for the purpose of
prosecuting and punishing the perpetrators of international crimes committed
during the Second World War. At the present time, the international community
can follow the proceedings carried out before the two ad hoc tribunals currently
functioning, that is, the ICTY and the ICTR, as well as the permanent ICC.
Undoubtedly, these three bodies are responsible for the current shape of the
protection of the accused at the international level, which has had a remarkable
impact on national laws. They definitely provide a higher standard for the
protection of the rights of the accused and the fair trial principle than those
observed in the laws of the historical tribunals. This is partially due to the
fact that, in between the establishment of the historical and modern tribunals,
the UDHR and the ICCPR were adopted.
The Rights of an Accused
Right to Fair Trial
As Judge Richard May and Marieke Wierda argue, “The objective and purpose of the
modern tribunal is to contribute to the restoration and maintenance of peace and
security in the former Yugoslavia and Rwanda. This is to be achieved through
conducting fair and experienced trials.” But what does it mean for a trial to be
fair? This expression, often used within the provisions of human rights law,
consists of distinguishable elements. Primarily, the right to have our trial was
prescribed in the provisions of Article 10 of the UDHR, stating, “Everyone is
entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of
any criminal charges against him.”
Furthermore, the scope was broadened by Article 14(1) of the ICCPR, stating:
“All persons shall be equal before the courts and tribunals in the determination
of any criminal charge against them, or of their rights and obligations in a
suit at law. Everyone shall be entitled to a fair and public hearing by a
competent, independent, and impartial tribunal established by law. The press and
the public may be excluded from all or part of a trial for reasons of morals,
public order, or national security in a democratic society, or when the interest
of the private lives of the parties so requires, or to the extent strictly
necessary in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice. However, any judgment rendered in a
criminal case or in a suit at law shall be made public, except where the
interests of juvenile persons otherwise require, or the proceedings concern
matrimonial disputes or the guardianship of children.”
Despite the fact that the provisions of Article 14 provide a list of certain
rights, there is no agreement on the concepts incorporated in this broad notion.
For example, according to Anthony Cassese, they are equality of arms, publicity
of proceedings, and the expeditiousness of proceedings, even though the right to
an expeditious trial is provided by Article 14(3)�.
Haji N.A. Noor Muhammad believes that elements of a fair trial are the equality
of parties, a competent, independent, and impartial tribunal established by law,
and a public trial. Moreover, the case law of the International Criminal
Tribunal seems to agree that the impartiality and independence of the tribunal
assist in ensuring the right to a fair trial.
As it was held in the Furundzija case, “The fundamental human rights of an
accused to be tried before an independent and impartial tribunal is an integral
component of the requirement that an accused should have a fair trial.”
However, other scholars believe that fair trial rights consist of all the rights
of the accused provided in Article 14 of the ICCPR, not limited to those
prescribed in Article 14(1). Nevertheless, for the purpose of this work, the
fair trial rights will be treated as in the text of the ICCPR, consisting of the
following: equality of arms, publicity of proceedings, impartiality, and
independence of the judges.
Conclusion:
The constant debates under discussion about the right of women gave rise to
various amendments in the criminal procedure code 1970 regarding its rights
during and after the process of arrest foreign accused it is essential to know
the proper procedure guideline underwrites by getting arrested and becomes even
more important if the accused is a woman’s woman or more vulnerable to social
levels to provide a safeguard to arrested in money criminal procedure code 1973.
Lay down and Amanda certain sections related to strict guidance procedures and
rights often arrested even if these sections had not existed many women would
have become victims of social and physical assessment abuses exploitations and
many more affiliations every person has the right to live with dignity no matter
whether the person is accused or a victim
References:
- https://legislative.gov.in/sites/default/files/A1974-02.pdf
- http://lawcommissionofindia.nic.in/reports/177rptp2
- http://blog.ipleader.in/arrest-of-a-woman-in-india-procedure-rights-and-landmark-cases/
- Book, Wroclaw Review of law of Administration and Economics.
- Universal declaration of Human Rights,UNGA Res 217A (III)(10 Dec 1948) UN Doc A/810 (UDHR).
- Code of Criminal Procedure Code(1973).
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