Rape is the fourth most common crime against women in India. The demonstration might be completed by physical power, or where the individual is under danger or control, or with a man who is unequipped for legitimate assent. As indicated by the National Crime Records Bureau (NCRB) 2013 yearly report, 24,923 rape cases were accounted for crosswise over India in 2012. Out of these, 24,470 were carried out by somebody known to the victim (98% of the cases).
India has been portrayed as one of the “nations with the most reduced per capita rates of rape”. Countless go unreported. The readiness to report the assault has expanded as of late, after a few episodes of assault got across the board media consideration and activated open dissent. This drove the Government of India to change its reformatory code for wrongdoings of assault and rape. As per NCRB 2015 insights, Madhya Pradesh has the most noteworthy crude number of assault reports among Indian states, while Jodhpur in Rajasthan has the most astounding per capita rate of assault reports in urban areas taken after by Delhi the capital city.
The Evolution of Anti-Rape Laws in India Since 1860
Since the word ‘rape’ was first mentioned in the Indian Penal Code, the way our legal system deals with the crime of rape has changed repeatedly.
We would have to take a look at the Indian Penal Code to see how our anti-rape laws have changed over time, but let us first see how it looked originally.
1860: Indian Penal Code
The first time ‘rape’ was mentioned in our legal structure was when the IPC was written in 1860. Section 375 to Section 376E of the Indian Penal Code refers to ‘sexual offenses’. It defined rape as sex without consent, with consent but under the fear of death or with consent but under false pretenses. It also defined ‘statutory rape’ as sex with a woman under the age of 16. It makes no mention of rape as a crime against a male, since Section 377 – the one that makes gay sex illegal – covers that already.
However, Section 377 criminalizes both participants while including male victims in Section 375 would have criminalized only the rapist and not the victim. This loophole discourages male rape victims from complaining against their rapists because it would mean opening themselves up to prosecution too. The 1860 version of the IPC also ignored sex without consent between a husband and wife (aka marital rape), a clause that is missing from our anti-rape laws even today. The punishment for gang rape and repeat offenders was harsher. All in all, the minimum punishment for rape was as lenient as two years in prison (the same as perjury) and the worst-case scenario was a life sentence. The first change to this very ‘general’ outline of rape comes after the Mathura Rape Case in 1972.
1983: The Criminal Law (Second Amendment)
On March 26, 1972, a young Adivasi girl named Mathura was raped by two policemen while in custody. Her family lodged a complaint against the two policemen and the trial went all the way to the Supreme Court. The policemen were acquitted because Mathura was apparently ‘habituated to sexual intercourse’, they could prove that she was sexually active but not that she had been raped. The Supreme Court Justices even said that Mathura had raised no alarm, there were no visible marks of injury or struggle and because she was used to sex, she might have incited the cops to have intercourse with her. This verdict resulted in outrage across the country. Lawyers observed that instead of relying on hard evidence, the Court has let the cultural taboo of pre-marital sex influence its decision. They said that ‘submission’ during the rape had been misunderstood for ‘consent’ just because of this taboo.
Women’s groups held protests and marches, demanding a change in the law. This change came in 1983 to Section 114 (A) of the Indian Evidence Act. Until this point, rapes by public servants had completely been ignored by our legal system. But with this case, a new category of rape called ‘Custodial Rape’ was introduced to include rapes of women while in custody of public servants. While so far the woman had to prove that the sex was not consensual, this amendment said that a court should presume a woman who says she did not consent is telling the truth. This made the idea of ‘consent’ an integral part of rape. Also, it was this amendment that banned the publication of victims’ identity and prohibited the ‘character assassination’ of rape victims in court. It’s thanks to this amendment that rape victims now have pseudonyms like ‘Nirbhaya’.
2002: Amendment To Indian Evidence Act
Even though the 1983 Amendment prohibited ‘character assassination’, it wasn’t defined to include the cross-examination of a rape victim. This was pointed out in a PIL filed by an NGO named Sakshi. They pointed out that women didn’t feel comfortable about reporting rape because “the intention of the defence in rape trials had become to humiliate and degrade the sexual integrity and personal space of the victim” rather than to treat them as someone who had undergone mental and physical trauma and someone who needed to be protected.
Taking note of this, the Supreme Court asked the Law Commission to review our rape laws and recommend changes. They found that Section 155 (4) of the Indian Evidence Act 2002, the defence lawyer could discredit a rape victim’s testimony by proving that she was of ‘immoral character’. This scenario included questioning her about past sexual acts. They identified that it was this specific clause that deterred rape victims from filing a case.
So, this clause was amended in 2002. After this amendment, the cross-examination of a rape victim was prohibited. Another reason why women refrained from reporting rape was the dreaded 2-finger test, in which a medical examiner inserts ‘2 fingers’ into the vagina to check its laxity. This test made women feel like objects in evidence, violating her privacy and integrity, instead of treating her like a trauma victim. Since cross-examination was out, medical examination became central to the case and therefore, this test couldn’t be prohibited. However, practitioners examining the victim had to provide all the necessary information to the victim and explain why the tests are essential, to not discourage anyone from filing a rape case.
2012: Protection of Children From Sexual Offences (POSCO) Act
Statistics indicated that India saw a 336% increase in child rape cases from 2001 to 2011. The National Crime Record Bureau statistics state that 48,338 child rape cases were recorded during this period. This alarming trend led to the need for a ‘special legal procedure’ for child victims of sexual offences. So far, the only mention of sexual offences against children was the ‘statutory rape’ clause mentioned in the IPC that criminalized sexual intercourse with a girl below the age of 16, regardless of consent.
However, the process of trying such a case was no different from a case that involved someone over 16. The resultant POSCO Act understood the special situations in which a child could be assaulted. For example, recognizing that the perpetrator might be someone close to the child or his/her guardian, the Act made the police in charge of protecting the child during the investigative process.
Now the police would have to make sure the child received protection (by placing the child in a shelter home) and providing emergency medical treatment. It also provided for special courts that could conduct the trial in-camera and without revealing the identity of the child, keeping it as child-friendly as possible. The Act said that cases of child sexual abuse should be fast-tracked within a year and that reporting such cases should be mandatory. That way, it’s the legal duty of anyone who knows of the offence to report it. Another big loophole was that it did not specifically mention crimes against male-children. This loophole was rectified in 2012 with POSCO or the Protection of Children From Sexual Offences Act. The new Act was gender-neutral and recognized other forms of penetration apart from peno-vaginal penetration. The Act also included the abetment of child sexual abuse as an offence and included non-penetrative assault, sexual harassment and child pornography.
2013: Criminal Law (Amendment) Act
On December 16, 2012, a 23-year-old physiotherapy intern, Jyoti Singh was brutally gang-raped in a moving bus. After struggling to survive in the hospital, she succumbed to her injuries on December 28. The brutality and violence of the case led to widespread protests around the country.
The public wasn’t only demanding a change in the law, but also a change in how the crime of rape was looked at. This was a turning point for anti-rape laws in India – now it wasn’t just a violent crimes issue but it was also a women’s rights issue. This forced the legal system of India to reconsider the existing laws and led to the realization that many other crimes that were specifically against women like stalking, acid attacks, and voyeurism were missing from our legal framework.
To make sure something like the Nirbhaya case never happened again, the government wanted to amend the existing laws to cover ALL crimes against women and make punishments as harsh as possible. This led to the 2013 Criminal Law Amendment. Under this change, new offences such as stalking, acid attacks, and voyeurism were added into the definition of rape. Even the threat of rape is now a crime. The minimum sentence was changed from seven years to 10 years. In cases that led to the death of the victim or the victim being in a vegetative state, the minimum sentence was increased to 20 years. This was the first time the vegetative state was included since the landmark Aruna Shanbaug case where Aruna Shanbaug was a nurse at KEM Hospital Mumbai when she was sexually assaulted by a ward boy, resulting in her being in a vegetative state in 1973 until her death in 2015. Hers was the landmark case that legalised passive euthanasia.
While the Nirbhaya case was on trial, the character of the victim came into play even with the 1983 and 2002 amendments in force. Considering how public this case was, a lot of the character assassination came from outside of court, from TV debates and Parliament discussions. Since the victim was a young professional, her independence and ‘western’ lifestyle were treated as ‘invitations’ for rape. To avoid this in the future, this amendment reiterated that the ‘character of the victim’ was totally irrelevant to rape cases.
Since one of the accused in this case was a juvenile and ended up being tried as such, another flaw in the system was identified. So, the age for being tried as an adult for violent crimes like rape and murder was changed from 18 to 16, that to the Juvenile Justice Act.
2018: Criminal Law (Amendment) Ordinance
In January 2018, an 8-year-old girl named Asifa Bano was raped and murdered in the district of Kathua in Jammu and Kashmir. Seven people were named in the case chargesheet, four of whom were police officers charged for attempting to cover up the case. The main accused, Sanji Ram, is a priest at the temple where the rape evidently took place. His nephew and son, both juveniles, were also accused.
This case led to national outrage, especially because it was against a child, but also because it took place in a temple and was perpetrated by a priest. It quickly became politicised along the Hindu-Muslim lines. All this against the backdrop of a political upheaval as the PDP and BJP alliance broke in Jammu & Kashmir, the state in which this crime took place.
The pressure on the government to legally address this crime led to an almost immediate policy change with this Ordinance only 3 months after the incident. This change was mainly made to POSCO since it was against a child. It made rape of a child below age 16 punishable by a minimum of 20 years imprisonment but provided for the death penalty for the rape of anyone below age 12.
While the death penalty for rape has long been demanded, this is the first time, where it has actually been introduced. It also altered the fast-track clause from a year to 6 months, so that such cases would find justice without being coloured by politics. Since this Amendment was an Ordinance, it still needs to be discussed in the Parliament in order to become an Act. This discussion will most likely take place this year, and considering the political pressure involved, it will probably be passed with little discussion. This can be problematic since even this one (like all its predecessors) is not without its flaws.
Rape in India is a cognizable offense. There are numerous arrangements in different Acts. The word assault is lawfully characterized u/s 375 of Indian Penal Code, 1860. It characterizes the assault and furthermore endorses its discipline. At whatever point a man Penetrate or does sex with a lady without her assent or will it adds up to assault. Penetration here implies that even a scarcest of the bit of penile penetration or any other means used will add up to assault, unruptured hymen of lady does not demonstrate that assault was not dedicated.
U/s 228A of Indian Penal Code, No person can disclose the name of the rape victim and if anybody discloses the name, he shall be punished with either description for a term which may extend to two years and shall also be liable for fine.
Section 376 (2) (g) Explanation 1. of Indian Penal Code defines gang rape states that where a woman is raped by one or more in a group of persons, each of the persons shall be deemed to have committed gang rape, when the offence is committed in furtherance of their common intention.
376A Intercourse by a man with his wife during separation – Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
376B Intercourse by public servant with woman in his custody- Whoever, being a public servant, takes advantage of his officials position and induces or seduces, any woman, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.
376C Intercourse by superintendent of jail, remand home etc. – Whoever, being the superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children s institution takes advantage of his officials position and induces or seduces any female inmate of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.
Explanation 1. – Superintendent in relation to jail, remand home or other place of custody or a women s or children s institution includes a person holding any other office in such jail, remand home, place of institution by virtue of which he can exercise any authority or control over its inmates.
Explanation 2 – The expression ” women’s or children’s institution ” shall have the same meaning as in Explanation 2 to sub-section(2) of Section 376].
376D Intercourse by any member of the management or staff of a hospital with any woman in that hospital. Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may be extend to five years and shall also be liable to fine.
The disciplines as endorsed for rape shift and rely on the conditions subsequently the courts have been given the freedom to force the disciplines beginning from 7 years up to life detainment. The law of rape in India forces a compulsory commitment upon the courts to manage such cases by giving satisfactory and extraordinary purposes behind granting lesser sentence. The Supreme Court has underlined the need to look the conditions by the court granting the sentence. The sentence granted must rely on the lead of the blamed, the state and age of the sexually attacked female and gravity of the criminal demonstration. Courts have likewise stressed that the wrongdoings of savagery upon ladies must be extremely managed arrive open hatred of the wrongdoing needs reflection through the inconvenience of suitable sentence by the courts which may fill in as an obstacle for the commission of like offenses by others. The Supreme Court has assistance issued bearings to the National Women Commission for definition of plan for help to casualties of rape and thorough headings in such manner have been issued which are presently being taken after.
In the greater part of the assault cases, the procedures of the court are held in camera and the personality of the casualty is kept mystery, she is anyway subjected to genuine round of questioning amid the preliminary by the safeguard advises which are regularly distinct and uncovering which may humiliate the casualty yet the courts have the constraint of striking a harmony between the privileges of the prosecutrix and the blamed.
We can anyway aggregate up by saying that assault is an attack of the body and identity of the casualty which leaves a changeless scar on her persona and the people doled out to manage such cases should deal with the issues in more touchy and other conscious ways.
Written by- Harshit Malhotra
University Five Year Law College, University of Rajasthan