rape laws
source: https://www.newindianexpress.com/

Abstract

Rape is clearly a defined offence under the Indian Penal Code, 1860. According to the changing structure of the commission of crimes, it is necessary to amend and insert suitable provisions in criminal laws. Therefore, as per the situation, the legislature also works towards this and as a result, we have several important provisions relating to the heinous crime of rape awareness of which is important for every individual. This article aims at providing an overview of the rape laws in India.

What is ‘Rape’?

Meaning

The literal meaning of ‘rape’ is ‘forcible seizure’ as it is derived from a Latin term ‘rapio’ which means ‘to seize’. Thus, rape means sexual assault or say unlawful sexual activity. Sexual intercourse is usually carried out forcibly or under a kind of threat to the woman. The offence has been defined under section 375 of the Indian Penal Code, 1860. It is clear from the definition that it is a crime against a woman and committed by a man. Thus, only a man can be accused or charged with rape under the said section. There are various criminal law amendments done till date to the provisions related to the offence of rape which will be dealt with in this article.

Definition

The heinous crime has been defined under section 375 of the IPC, 1860. Various circumstances have been given under the said section in which a man would be said to have committed rape. Following is the definition as per the said section-

A man is said to commit the offence of rape if he- a) penetrates his penis into the vagina, mouth, etc. of a woman or makes her do so with him or any other person; or

  1. Inserts any object or part of his body other than penis into the vagina, the urethra, anus or any other part of her or makes her do so with him or any other person; or
  2. Manipulates any part of the woman’s body to cause penetration into her vagina, urethra, anus or another part of her or makes her do so with him or any other person; or
  3. Applies his mouth to the woman’s vagina, anus, urethra of such woman or makes her do so with him or with any other person;

Under any of the following circumstances-

  1. Against the will of such woman; or
  2. without the consent of such woman; or
  3. with the woman’s consent but the consent is obtained- i) by putting her or any person in whom she has an interest in fear of death or of hurt, or ii) by the reason of unsoundness of the woman’s mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent, or iii) when that man is aware that he is not her husband or the consent obtained is because she believes him to be her lawful husband; or
  4. with or without her consent when she is under the age of 18 years; or
  5. When she is not able to communicate her consent.

Here, maybe the expressions ‘against her will’ and ‘without her consent’ seem to have the same meanings but there is a fine distinction between both. The expression ‘against her will’ is wider than ‘without her consent’  and the former includes the later but vice versa is not correct. For example,  when consent is given out of threat, misrepresentation, etc., then though there is consent it is not free and thus, against the will. The meaning of the expression ‘against her will’ was given in the State of Uttar Pradesh v. Chottey Lal[1]. It explained the meaning of intercourse done by a man with a woman despite her resistance and opposition.

It also provides for the meaning of consent which means an unequivocal voluntary agreement when the woman by words, gestures or any other form of verbal or non-verbal communication communicates a willingness to participate in the sexual act[2].

When a woman does not physically resist the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity[3].

Section 375 also provides for exceptions, one of which expressly does not include marital rape within the definition of rape under this section (exception 2). It shall be noted that there is no provision that states marital rape as an offence in India on account of the matrimonial consent that a wife has given, provided the wife is not under the age of 16 years[4]. This section eliminates the possibility of the offence of rape being committed against male, transgender, and marital rape.

In Independent Thought v. Union of India and Anr[5], the Supreme Court criminalized the sexual intercourse with a minor wife aged between 15 and 18 years.

Note- Sexual violence against a male comes under section 377, IPC.

Important provisions

Another important provision is section 376, IPC which provides for the punishment for the one committing the offence. He shall be punished with rigorous imprisonment of either description for a term of ten years extendable to life imprisonment and is also liable to fine. But the subsection (2) provides for exception and the list of persons who are liable for punishment of rigorous imprisonment of a minimum term of 10 years that may be extended to life imprisonment and also liable to fine. Such persons are-

  1. A police officer who commits rape within the limit of the police station where he is appointed or in any station house’s premises or on a woman in his custody or in the custody of police officer subordinate to him; or
  2. A public servant commits rape on a woman in his custody or in the custody of a public servant who is subordinate to him; or
  3. Member of the armed forces commits rape in an area where he is deployed by the central or state government; or
  4. A person is on a place of custody commits rape; or
  5. Rape by a person being on the management or on hospital staff; or
  6. Rape by a relative, teacher etc. or rape during communal or sectarian violence, etc.

Section 114A in the Indian Evidence Act was inserted[6] which provides that in case of rape if the victim says that she did not give her consent then the court will presume the same. Also, the burden of proof was shifted on the accused in rape cases.

In Shanil v. State of Kerala[7], the court held that is the consent is given out of love on a promise of marriage then the sexual intercourse is not rape.

Other important provisions are Sections 376(A-E)

Section 376A- Provides punishment of minimum 20 years extendable till life imprisonment or death in case of rape and murder, aggravated rape, etc.[8].  The permanent vegetative state though is not defined but the Supreme Court defined it as a person who is alive but does not show any evidence of being aware of one’s environment.

Section 376B- Provides punishment for husband on having sexual intercourse with his wife without her consent who is living separately.

Section 376C–  provides for punishment for a person in authority who abuses such position or relationship to induce or seduce a woman in his charge or custody, etc. not amounting to rape.

Section 376D- Is a provision regarding gang rape which was important to introduce after the infamous Nirbhaya rape case. It holds each of them liable for committing the offence of rape and punishment is between the imprisonment of 20 years and life imprisonment and also with just and reasonable fine at least enough for the medical expenses of the victim[9].

Section 376E– provides for the punishment of life imprisonment for repeat offenders who have been previously convicted under sections 376 or 376A or D.

Section 228A is one important provision. In order to prevent social victimisation or ostracism of the victim of a sexual offence, this section was inserted. Any person who discloses the identity of a woman against whom any sexual offence is alleged to have been committed or is a victim of such sexual offence, be punished with imprisonment that may extend to 2 years and is also liable to fin. Subsection (2) provides for an exception that in certain cases, like printing or publishing victim’s name on the order of police officer investigating the offence acting in good faith or by or with authorisation of victim or by someone on her behalf in case the victim is dead or minor, shall not be liable to punishment under subsection (1).

In National Federation of Indian Women v. Government of Tamil Nadu[10], it was held that publishing the photographs of the rape victim in newspapers, journals and magazines would fall under the category of making disclosure of the identity of the victim and would fall u/s 228A, IPC.

Section 164A of the Code of Criminal Procedure gives the procedure of the medical examination of the rape victim as-

  1. The victim to be sent for medical examination within 24 hours of receiving the complaint.
  2. Examination to be conducted only if she gives her consent or consent by a competent person on her behalf.
  3. Examination to be conducted by a medical practitioner employed in a hospital run by the government or by local authorities and in the absence of such medical practitioner, it can be conducted by any other medical practitioner.

The medical practitioner conducting examination shall prepare a report which shall include the exact time of commencement and completion of the examination, the name and address of the victim and the person who brought her, her age, description of material taken for DNA profiling, the reason of conclusion, etc.

The Protection of Children from Sexual Offences Act, (2012) i.e. the POCSO Act, was introduced for safeguarding the interest and well being of children. It defines various offences like sexual assault, sexual harassment, etc. Following are the punishments for the offenders committing a crime against a child:

  • imprisonment of twenty years to life imprisonment u/s 4 and 6 for committing the offence of penetrative sexual assault u/s 3 and aggravated penetrative sexual assault u/s 5.
  • Imprisonment of three to five years u/s 8 for the offence of sexual assault u/s 7.
  • Imprisonment of five to seven years u/s 10 for the offence of aggravated sexual assault u/s 9.
  • Imprisonment for a term of three years u/s 12 for the offence of sexual harassment u/s 11.

Important amendments

When there is a massive change in the society in the structure of commission of crimes then there is need to amend or introduce new provisions in the laws. And therefore, the criminal laws in India have been amended several times because of the changing structure of crime commissions. Such important amendments were introduced in the years 1932, 1938, 1983, 2013, 2018 in criminal laws. Following are the three important amendments that resulted in major changes in the rape laws in India-

  1. The Criminal Law Amendment of 1983

This amendment was a consequence of a rape case known as the Mathura rape case[11] that took place in the year 1972. The brief facts are-

  • A young orphan girl, during the course of her employment, developed sex relations with the nephew of her employee.
  • The victim along with her brother filed a report stating her abduction.
  • Following a general investigation, the victim was asked to stay at the police station while everyone waited outside.
  • The victim was allegedly raped by two policemen there in the station.
  • The Sessions Court held the policemen not guilty on the ground that the victim was ‘habituated to sexual intercourse’ and her consent was voluntary.
  • On an appeal in the Bombay High Court, the Sessions Court’s judgment was set aside and the accused were held liable.
  • The accused appealed to the Supreme Court where they were acquitted. This led to a huge public outcry and protests leading to the amendment.
Following are the major amendments-
  • Introduced section 114A in the Indian Evidence Act, 1872.
  • Made custodial rape an offence in the IPC[12].
  • The burden of proof was shifted to the accused once sexual intercourse is established.
  • It banned publication of the victim’s identity except in certain cases[13].
  • The rape trials should be conducted as in-camera proceedings[14].
  1. The Criminal Law Amendment of 2013

This was the consequence of the infamous Nirbhaya gang rape[15] of a 23 years old physiotherapy student in a bus who died while undergoing treatment. The incident took place in the year 2012. It led to many protests and sought strong rape laws and led to this amendment. Following are the major amendments-

  • It incorporated offences like acid attack, stalking, sexual harassment, etc into the IPC.
  • The most important change was that it amended the definition of rape under section 375, IPC.
  • Two critical changes made were-i) the ‘character of the victim’ is now rendered totally irrelevant, and ii) there is now a presumption of ‘no consent’ in a case where sexual intercourse is established and the victim states before the court that she did not consent[16].
  • It also amended section 376(A-D), IPC.
  • Section 114A was inserted in the Indian Evidence Act which provides absence of consent shall be presumed in cases of aggravated rape.
  1. The Criminal Law Amendment Act of 2018

It was the consequence of the Unnao rape case that took place in the year 2017, an incident where a 17 years old girl was raped by a politician and the Kathua rape case[17] that took place in the year 2018 in Kathua, Jammu and Kashmir, where the 8 years old victim was raped repeatedly and then was murdered. The cases led to protests for amendments in rape laws and thus, leading to this Amendment. This Amendment Act was passed immediately after this incident and led to the following major amendments-

  • It amended the minimum punishment for the offence of rape from seven years to ten years.
  • Rape and gang rape of girls below the age of twelve years will carry minimum imprisonment of twenty years that is extendable to life imprisonment or death[18].
  • Rape of girls below the age of 16 years of age is punishable with imprisonment of 20 years or life imprisonment[19].
  • An appeal against a sentence passed under section 376, 376A(A-E), 376AB, 376DA, 376DB, IPC be disposed of within a period of six months from the date of filing of such appeal.

Conclusion

With time and as per situation, the judiciary and the legislature have always worked towards the suitable rape laws in the criminal laws. There have been important amendments in the provisions again and again when some new structure in the commission of rape has been observed in order to punish the offenders and safeguard the victims. The aim of this article is to make the readers aware of the important rape laws so that the purposes of the provisions is achieved effectively.


Author:

ku richa singh Ku Richa Singh | Law College Dehradun, Uttaranchal University


References

[1] (2011)2 SCC 550.

[2] Explanation 2, S.375 of the Indian Penal Code, 1860.

[3] Proviso, S.375 of the Indian Penal Code,1860.

[4] S.375 of the Indian Penal Code, 1860.

[5] (2017)10 SCC 800.

[6] The Criminal Law Amendment Act, 1983.

[7] 6 July 2020.

[8] S.376A of the Indian Penal Code, 1860.

[9] Proviso 1, S.376D of the Indian Penal Code, 1860.

[10] 15 June 2007.

[11] Tuka Ram v. Anr v. State of Maharashtra, AIR 1979 SCR(1) 810.

[12] S.376(2) of the Indian Penal Code, 1860.

[13] S.228A of the Indian Penal Code, 1860.

[14] S.327(2)2 of the Code of Criminal Procedure,1973.

[15] Mukesh v. NCT of Delhi.

[16] S.114A of the Indian Evidence Act, 1872.

[17] Mohd. Akhtar v. The State of Jammu and Kashmir, AIR 2018.

[18] S.376AB of the Indian Penal Code, 1860.

[19] S.376(3) of the Indian Penal Code, 1860.

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