rape laws
source: https://indianexpress.com/

Introduction

Rape is defined as unlawful sexual intercourse or any other sexual penetration of the vagina, anus, or mouth of another person, with or without force, by a sex organ, other body parts, or foreign object, without the consent of the victim. Rape is one of the heinous crimes which is forgoing against women in the world. According to Justice Arjit Pasayat, “while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. This article pointed out landmark judgments towards crime against women and also a provision which regulates and punishes crimes against women.

The cases which lighten up rape laws in India

India was the most dangerous country in the world for women due to the high risk of sexual violence and being forced into slave labour.[1] The brutality of the sexual assault that leads the victim into a coma for about 40 years was the first case that attracted the Indian people to pay attention to the crime against women in the country.[2] The Supreme Court ruled that individuals have the right to die with dignity[3] allowing passive euthanasia with guidelines. The Apex court in 2011 recognizes passive euthanasia in Aruna Shanbaug case by which it has permitted withdrawal of life-sustaining treatment from a patient not in a position.

Following Aruna Shanbauq case in the year 1973, there was another case called Mathura gang rape case,[4] this case had changed the perspective of judging rape cases in India which led to public outrage and leads to criminal law amendment act in 1983. In this case, a 16 years old girl was raped in a Police station. In this case, the session Court held judgment in favour of the accused person stating that there is no injury for the sign of rape in Mathura’s body and the girl has not raised any alarm which stated the consent for sexual intercourse. But the Bombay High Court has differentiated the term ‘rape’ and ‘sexual intercourse’ and mother was minor and his consent was not valid why invalid. But the Supreme Court of India rejected this case stating Mathura’s body bore no outwards sign of rape.

[5]This judgment leads to a huge protest by many women activists all over the nation. Consecutively, eminent law professors wrote an open complaint letter to the Chief Justice of India opposing this judgment. This protest has resulted in the criminal law amendment act 1983.

Features of criminal law amendment act 1983

The infamous Mathura case has made significant amendments in the Criminal Procedure Code in 1983, particularly it has recognized custodial rape and enhanced punishment for offences of custodial rape under section 376 of the Indian penal code 1860. It also bought amendment in section 114(A) of Indian evidence act which speaks about the consent of a  woman, the amendment states that if the victim States before the court that she did not consent, the court shall presume that she did not consent. This amendment tries to overcome the gender inequities which can exist at workplaces, police stations, jails, and other such situations, in which the victim is overpowered and a forceful sexual act committed.

Another important dimension that should be looked into while examining the victim the doctor should also understand the put up the resistance of the victim’s ability against the accuser advances is largely dependent on gender-based power relations. There could be situations where a woman is overpowered and subject to sexual intercourse without her consent, but is left with no injuries, or few injuries, that might be seen as evidence of resistance.[6]

Following this rape series another important judgment stated in Vishaka vs. State of Rajasthan[7], which dealt with the evil of sexual harassment of women at the workplace. It is a landmark judgment which sets out the guidelines for preventing sexual harassment at workplaces and to impose strict punishment. The enacted new law was called The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.

Guidelines set out by Vishaka case

  1. It is the duty of the entrepreneur to provide a safe working environment and also recommended for the composition of the internal complaints committee to prevent sexual harassment at workplace
  2. It is the duty of the entrepreneurs to take necessary actions against any employees act which leads to sexual harassment
  3. The employer is also required to monitor the timely submission of reports by the internal complaints committee.

Role of law Commission

172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape.

  1. Rape should be replaced by the term sexual assault.
  2. ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal, and object/vaginal.
  3. R laws should be made gender-neutral as custodial rape of young boys has been neglected by law.
  4. A new offence, namely section 376E with the title unlawful sexual conduct should be created.
  5. 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
  6. the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.[9]

The case where the whole world turned around the issue

The Nirbhaya case kicked off a wave of sustained protest in India and more open dialogue about sexual violence, eventually prompting a response from the government. ” A cultural silence was broken”. It was a moment in time where it seemed that India was breaking the cultural taboo of speaking about sexual violence”, says Bajoria, the HRW researcher.

In this case, where 23 years old Jyoti Singh a female physiotherapy intern was beaten, gang-raped, and torture on the private bus on Dec 16, 2012. This cruel incident it has led to many protests among peoples and many women activist to raise their voice towards this incident and leads to candlelight March in December 2012.[10]

 Recommendations of Justice Verma Committee

On December 23, 2012, a three-member committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court, was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women.

The Committee submitted its report on January 23, 2013. It made recommendations on laws related to rape, sexual harassment, trafficking, and child sexual abuse, medical examination of victims, police, electoral and educational reforms.[11]

Grounds work of legislation towards sexual offences

 The law of rape is not just a few sentences. It is a whole book, which was clearly demarcated chapters and cannot be selective. We cannot read the preamble and suddenly reach the last chapter and claim to have understood and applied in-Kiran Bedi, joint commissioner, special Branch. As Kiran Bedi said there are many provisions and even enactments which regulate sexual offences towards women let’s take a look into the penal provisions which regulate and punish sexual offences.

The definition of rape is given under the Indian penal code [12]375. Sexual Assault: Sexual assault means

  1. The introduction (to any extent) by a man of his penis, into the vagina (which term shall include the labia majora), the anus or urethra or mouth of any woman or child.
  2. The introduction to any extent by a man of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a woman.
  3. The introduction to any extent by a person of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a child.
  4. Manipulating any part of the body of a child so as to cause penetration of the vagina (which term shall include labia majora) anus or the urethra of the offender by any part of the child’s body;

In circumstances falling under any of the six following descriptions:

  • Firstly, against complainant’s will.
  • Secondly, without the complainant’s consent.
  • Thirdly, with the complainant’s consent when such consent has been obtained by putting her or any person in whom the complainant is interested, in fear of death or hurt.
  • Fourthly, with the complainant’s consent, when the man knows that he is not the husband of such complainant and that the complainant’s consent is given because the complainant believes that the offender is another man to whom the complainant is or believes herself to be lawfully married.
  • Fifthly, with the consent of the complainant, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by the offender personally or through another of any stupefying or unwholesome substance, the complainant is unable to understand the nature and consequences of that to which such complainant gives consent.
  • Finally, with or without the complainant’s consent, when such complainant is under eighteen years of age.

The consent shall be a valid defence provided if the complainant is between sixteen years and eighteen years of age and the accused person is not more than five years older.

Punishment of Rape

A man is guilty of rape if he commits sexual intercourse with a woman either against her will or without her consent as enumerated under Section 375 IPC. The Supreme Court of India has to enter protected section 375 of IPC in Sakshi vs Union of India[13]in this case where the accused threatened the victim and raped her.

Punishment for rape is a enumerated in section 376 of Indian penal code 1860Where a person is subjected to sexual assault by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang sexual assault within the meaning of this section and who has a commit sexual assault under the circumstances given under section 375 of IPC shall be punished for imprisonment for a term not less than 7 years but which may extend to ten years and shall also be liable for fine. [14]

Significance of the Criminal Law Amendment Act 2013

[15] The criminal law amendment act 2013 is also popularly known as anti-rape law. It has amended the following acts:

  1. Indian penal code 1806
  2. Indian evidence act 1872
  3. Code of criminal procedure 1973
  4. Protection of children from sexual offences act 2012

Indian penal code

It has inserted various provision regulating and punishing sexual offences towards women it has been inserted section 166A, 326A-Acid attack, 354A, 354B, 354C- voyeurism, 354 D stalking, 376 A, 376 D- gang rape and even it redefined the definition of rape which is stated in section 375 and also modified punishment for rape which is stated in section 376 of Indian penal code.

Code of criminal procedure 1973

It has amended section 197 and 309 of code of criminal procedure 1973 which states that trail to be held on a day-to-day basis, in case of rape cases trial to be completed within 2 months of filing a charge sheet. And insert a new provision 376 A-E which states to provide free medical aid to the victim covered under section 376 A-E.

Indian evidence act 1872

Inserted section 52 A evidence of character or previous sexual experience is not relevant, 114 A presumption as to the consent of the victim, and 119 special provisions for evidence of the differently-abled people.

Conclusion

The national crime records bureau on October 21, 2019, released its report for the year 2017 which stated that 3,59,849 cases of crime against women were reported in the country, the crime rate per 1,00,000 women increased to 58.8 people in 2008 in comparison with 57.9 people in 2017. Like the world is modernizing the crimes are also modernizing, crimes are becoming more digitalized.

There are a number of programs like  ‘Beti Bachao Beti Padhao’ – educate the daughter’s save the daughter and governmental scheme to prevent crimes particularly crimes against women.

Every citizen enjoys a fundamental right enriched in a constitution of India to live with human dignity, equality and even there is a special provision in the Constitution of India Article 51A (e) provides that it shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women. So rather than giving strict punishment towards the rapist the government might confirm with confirmation of punishment for those cruel rapists who just like that take the lives of women and children.


Author:

poonguzhale J. Poonguzhale | School of Excellence in Law, Chennai


References:

[1] The world’s most dangerous countries for women, by Thomson Reuters Foundation, 2018

[2] Aruna Ramachandra Shanbang Vs. Union of India, 1973

[3] Article 21 of the constitution of India 1950 guarantees the fundamental right to live life with human dignity.

[4] Tukaram Vs. State of Maharashtra AIR 1979 SC 185

[5] https://www.latestlaws.com/articles/critical-analysis-of-rape-laws-in-india-and-judicial-opinion-by-sakshi-rewaria/ published on August 8, 2018, accessed on July 7, 2020

[6] Tukaram and Another Vs. State of Maharashtra, Cr L J 1864 of 1978.

[7] Vishaka Vs. State of Rajasthan AIR 1997 SC 3011

[8] “India’s New Labour Law – Prevention Of Sexual Harassment At The Workplace – Employment and HR – India” Mondaq.com published on 9th may 2013, accessed on 17 July 2020

[9] The 172 law commission report 2000.

[10] https://www.thehindu.com/news/national/chronology-of-events-in-nirbhaya-cases accessed on 17 July 2020

[11] https://www.thehindu.com/news/national/2013-justice-verma-panel-report-wanted-changes-to-sexual-harassment-law/article25221588.ece accessed on 16th July 2020

[12] Section 375 of Indian penal code 1806, amended in the criminal amendment act 2013.

[13] Shankshi Vs. Union of India 39 (1997) 2 SCC 453

[14] Section 376 of the Indian penal code 1806 amendment carried out by the recommendation by the 172nd law commission report.

[15] Criminal law amendment act 2013

3 COMMENTS

LEAVE A REPLY

Please enter your comment!
Please enter your name here