Author: Ankita Maji
India’s anti-rape laws are spread over three different pieces of legislation- The Indian Evidence Act 1872, The Indian Penal Code 1860 and the Code of Criminal Procedure 1973. With the passage of time there has been an increase in the number of cases that were reported along with an increase in the number of convictions under this offence. Even though our anti-rape laws have undergone several amendments over the years to incorporate the changing dimensions of this crime, our laws continue to falter in the field of proper implementation.
In the past few years, Delhi has earned the title of ‘India’s Rape Capital’, with more than 560 cases of rape being reported in the city, but in India, the offence of rape is far more deep - rooted and widespread. Lack of public safety and stigmatisation of the victim coupled with inactive courts in India as some of the factors as to why this crime continues to thrive.
India has witnessed several countrywide demonstrations demanding the basic dignity, safety and respect for women in India. Political movements and debates were regarded as the need of the hour. The offence of rape continues to remain one of the most underreported yet frequent crimes in India. Rape has been connected with other social issues of class oppression and the patriarchal roots in India, which manifest women as vulnerable to violence in her family as well as in public areas and workplaces.However, the whole issue has been centred around ‘enacting harsher laws’ and ‘enforcing strict punishments’ and somehow fails to recognise the deeper problems circling it i.e., obstacles faced in reporting it, the carelessness involved in conducting a thorough investigation, protecting the witness and imparting justice without any fear or bias.
The word ‘Rape’ is derived from the Latin word ‘Rapere' which means to steal, carry away or seize. Forced seizure and rape were considered as acceptable means of claiming a wife, as an affirmation of the strength and masculinity of men. If we take a look at its history, rape was not considered to be an offence as women were seen as property (of men) and therefore had no rights. During the colonial rule, the issue of rape was inextricably connected to the nationalist-feminist argument of the oppression of British state as a foreigner-coloniser. Post-independence, during the feminist movements in 1970s, rape by army personnel, police officers, security forces, and landlords became contentious issues.
The word Rape first appeared in our Indian Penal Code in 1860. Sections 375 to 376E of our Indian Penal Code deals with the offence of rape under ‘sexual offences’, which defined this offence as sex without consent or sex under false pretences or fear of death. It also included the meaning of ‘Statutory rape’ as having sex with a woman below the age of sixteen. These provisions were silent regarding the same offence being committed against the other gender and only mentioned male either as an accused or under Section 377 which criminalised gay sex. Due to this, male victims were fearful of reporting offences of rape against them, as this meant presenting themselves up for prosecution too. The rape laws of 1860 also ignored the concept of Marital Rape (non-consensual sex between husband and wife), and provided a menial punishment of imprisonment for upto two years, with the maximum being that of a life sentence. However, the interpretation of these provisions, as well as the view of our justice system towards our rape laws, has undergone a lot of changes over time.
AMENDMENTS OVER THE YEARS:
The first-ever amendment regarding the general outline of rape came after the Mathura Rape Case of 1972. Mathura, a young adivasi girl was raped by two policemen while in custody. Feminist movements all over the country came together, creating a large scale national uproar. The acquittal of the accused by the Supreme Court due to the absence of locus standi led to protests and movements in many states like Delhi, Pune, and Maharashtra. Lawyers like Upendra Baxi, Ragunath Kelkar, Lotika Sarkar and Vasudha Dhagamwar questioned this judgement and many feminist groups started their campaigns for reopening of this case. This case introduced another category of rape, known as the ‘Custodial rape’, for women who were raped while in the custody of public servants and officials. The punishment for the same was a mandatory imprisonment for ten years, accompanied by in-camera trial. The 1983 Amendment of Section 114(A) of the Indian Evidence Act, also stated that the court shall presume that there was absence of consent by the woman unless proved otherwise, making ‘consent’ an important ingredient of this offence. The amendment also prevented the disclosure of the identity of the victim, and the categories of ‘mass’ and ‘gang’ rape were also added to the existing definition of rape. In State of Maharashtra v Madhukar N. Mardikar[i], the court held that the unchastity of a woman cannot be regarded as an invitation for others to violate her and that she is entitled to protection against such persons under the law.
These amendments also sparked a lot of debates among various feminist groups and mainstream media. Those who supported the in-camera trial were of the opinion that it protected the identity of the victim, while those against it stated that it did not allow for public monitoring of rape cases. The burden of proof clause which was upon the accused until proven guilty also received a lot of criticisms as it violated the basic principle of a man being innocent until proven guilty. The Supreme Court, based on a public interest litigation by (PIL) by an NGO named Sakshi, directed the definition of sexual intercourse to be widened under Section 375 IPC, and the Law Commission in its 172nd report recommended making the rape laws gender neutral. Even though the rape laws continued to remain gender specific, the report led to the Amendment of Section 155(4) of Evidence Act in 2002, where a victim’s testimony could be denied on the ground of her ‘immoral character’ and involved questions about her past sexual life, which discouraged victims from reporting. The amendment prohibited the cross-examination of the rape victims. Since cross-examination was barred, the two finger test during the medical examination became important and couldn’t be stopped. The Court however, directed the practitioners to inform the victim regarding the necessity of the test and other essential information, to not deter the victims from reporting.
According to the statistics of National Crime Record Bureau (NCRB) atleast 48,338 rape cases were reported against children between the period of 2001-11. So far, the only provision for offences against children was the ‘Statutory Rape’ clause in IPC, however, this alarming rise in offences against children called for the need of a separate law in favour of child victims. The Protection of Children from Sexual Offences Act (POCSO), was established in 2012, for promoting fast track cases of children within a year of reporting, in a child friendly manner.
The new Act was also gender-neutral and took into consideration other forms of penetration apart from penile-vaginal penetration, as well as sexual assault, non-penetrative assault, abetment of children in sexual offences and child pornography.
The 2013 brutal gang rape of a 23 year old student in Delhi shook the entire nation to its core, This case was a turning point for anti-rape laws in the country, as it forced the justice system of the country to reconsider its laws and revealed that crimes like stalking, voyeurism and acid attack were absent from our legal provisions. Further, this led to amendment and passing of the Criminal Law (Amendment) Act, 2013, with changes in Section 375 IPC, of Criminal Procedure and Evidence Act, to make the offences against rape and sexual assault harsher. The punishment of imprisonment for committing rape was increased from seven to ten years, and in case it resulted in the death or in vegetative state of the victim, the minimum punishment imposed was of twenty years. Even with this case, the character of the victim was questioned, which was prohibited by the amendments of 1983 and 2002. The western lifestyle and independence of the victim were largely debated upon, among the media houses as well as in the Parliamentary discussions. Once again with this amendment, it was emphasised that the character of the victim should not be the subject of discussion in any rape case. Also, one of the offenders in this case was 16 years of age, and was treated as a juvenile under the law. It was argued that the offender possessed the mental understanding of the severity of the crime and therefore should be tried as an adult. With this, the Juvenile Act was amended to lower the age of offenders from 18 to 16 in cases of heinous offences like murder or rape.
The rape and murder of an eight year old girl, Asifa Bano, took place in the Kathua district of Jammu and Kashmir, in 2018. The main accused Sanji Ram, was a priest in a temple where the rape supposedly took place. His son and nephew, who were juveniles, were also the accused. The fact that the victim was a child, and that it occurred inside a temple and by a priest sparked a lot of unrest in the country. Political clashes took place along the lines of Hindu-Muslim religion, with the PDP and BJP ending their alliance in the state of Jammu and Kashmir. There was a huge pressure on the government to legally address this crime, and led to the passing of the Criminal Law (Amendment) Ordinance, 2018, within 3 months of the incident. The POCSO Act now imposed death penalty for rape of a girl below the age of 12, with the minimum punishment being that of imprisonment for twenty years for rape of a girl below the age of 16.
LOOPHOLES IN OUR RAPE LAWS:
Even though the definition of rape is quite an elaborative one, which aims at covering all aspects of this heinous crime, the exception clause appears as the crack in it. As mentioned earlier, the definition of rape originally means ‘forceful seizure’, irrespective of the relation of the person- be it brother, or husband, or someone totally unknown. What the laws fails to consider is that a wife is a woman first and will continue to be so, and any crime against her will be a crime against womanhood. So if the position of being a wife creates vulnerability, wherein the husband can have sexual intercourse without her consent, the law itself goes against its very purpose which is to protect woman from such offences. This arbitrary immunity given to a husband in the name of marriage is purely unacceptable. The two main ingredients of rape-coercive and non-consensual intercourse are being ignored here, making it one of the most erroneous statues of the Indian Penal Code.
The offence of rape against male has been in existence since the medieval times, where it was the right of a soldier to violate soldiers of the defeated enemy. With the growth in civilisation, cases of male rape have been reported, though in a very indiscernible form. It is a myth that sexual acts are committed by homosexuals and only against women. Section 377 of IPC talks about unnatural offences and states, ‘Whoever voluntarily has carnal intercourse against the order of nature with any man, women or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.’ However, it talks about voluntary acts and fails to take into account acts without consent or sexual assault. Also the phrase ‘carnal intercourse against the scope of nature’ limits the scope of this definition and fails to analyse the situation where a man is assaulted sexually with a weapon. The debate that Section 375 should be gender neutral or that male rape should be recognised has been going on for a long time now.
It has been stated that 90% of child victims know their perpetrators, with almost half of them being members of the family[ii]. Sexual offences by members of the family is termed as Incest and the offender is termed as Paedophile. Offences by fathers, brothers, grandfathers are quite common yet underreported due to the concept of family honour and victim blaming and guilt. At present, if a father rapes his own child, he shall be dealt with under the rape law, which has no provision for offences committed by one’s own family member. A separate law or clause should be enacted/ inserted for offences by paedophiles and for the safety of the victim.
It is in the nature of law to keep pace with the changing times, and develop accordingly. Rape laws are an important instrument for battling this heinous crime, which affects such a large population of the society. Any crime, apart from affecting the victim creates a degree of seriousness in the society regarding the apprehension of the crime.
As it was observed in Rafiques’s case, 1980, by Justice Krishna J. Iyer, "When a woman is ravished, what is inflicted is not mere physical injury but the deep sense of some deathless shame… judicial response to human rights cannot be blunted by legal bigotry."[iii] Rape laws in order to be effective as well as deterrent should have a cooperating victim, professional investigation, diligent prosecution and a speedy trial, and in the absence of which, it shall fail the victim and the ends of the justice. The failure of law to provide justice reflects the failure of society to protect its people and preserve humanity.
[i] (1991) 1 SCC 57 [ii] https://www.sdcda.org/preventing/sex-offenders/facts-about-sex-offenders.pdf [iii] https://timesofindia.indiatimes.com/india/Friendly-rape-verdicts-worry-SC/articleshow/1264368.cms