Rape Laws and its Development in India

Women in India, in spite of a prohibitive and severe punitive approach of criminal law and untiring efforts of a host of women organisations and the National Commission for Women (NCW), constituted under the National Commission for Women Act 1990, to liberate them from the hitherto unjust social, political and economic subjugation and suppression, are being sexually exploited, abused and assaulted. During recent years, unfortunately, crimes against women are on the increase.[1] Rape is the most monstrous and insensitive crime against a woman, amongst the various crime against them. It makes a woman’s life worse than a corpse; the society refuses to accept a rape victim despite having no fault of a victim whatsoever, a woman who gets raped loses all the confidence and starts blaming herself for all the injustice that has been done to her.

The execution of convicts in the 2012 Nirbhaya gangrape and murder case was the first instance post-Independence in which four men were hanged to death together.[2] This development shows that India is trying to acquire a no-tolerance attitude towards heinous crimes against women. India has a long way to go, but it’s a positive sign towards achieving something big.

Rape is a cogent issue in cultures around the world and India is one of the worst affected countries with a large number of rape cases. For women across India, fear is an incessant companion which never leaves their path at any corner of their life. Rape is one of the growing problems in today’s society and with the passing time, it is getting even more difficult to overlook the surprising statistics about this crime. According to several reports of the Indian media, rape is becoming the fastest growing crime in India.

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RAPE LAWS IN INDIA

Section 375 of the Indian Penal Code,1860 describes the term ‘rape’. Conferring to section 375 of the Indian Penal Code, it says:

[3]Rape: A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions: –

  1. Firstly- Against her will.
  2. Secondly- Without her consent.
  3. Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
  4. Fourthly- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.
  5. Fifthly- With her consent, when, at the time of giving such consent, by reason of unsoundness of 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.
  6. Sixthly- With or without her consent, when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

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Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

State Amendment:

(Manipur)– (a) in clause sixthly, for the word “sixteen” substitute the word “fourteen”; and

(b) in the Exception, for the word “fifteen” substitute the word “thirteen”.

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According to the elucidation given in section 375 of the Indian Penal Code, the “penetration” is enough to commit the “sexual intercourse” which is essential for the crime of rape. Complete penetration is not required in case of rape which means that “if any part of the organ of male goes within the labium of the pudendum of the woman, no matter how little it amounts to rape”[4]. “The one and only essential ingredients are to consider whether it is rape or not is whether the male organ entered into the person of the woman”.[5] Apart from this, section 376 of the Indian Penal Code describes the punishment of rape.

The Criminal Law Amendment Act, 1983 has substantially changed Sections.375 and 376 of the IPC. Several new sections have been introduced therein- viz. Sections. 376(A), 376(B), 376(C),376(D) of the IPC.

Section 376(A) punishes sexual intercourse with the wife without her consent by a judicially separated husband. Section 376(B) punishes for sexual intercourse by a public servant with a woman in custody. Section. 376(C) punishes sexual intercourse by the superintendent of jail, remand house, etc. whereas, Section. 376(D) punishes sexual intercourse by any member of the management or staff of a hospital with any woman in that hospital.
These new sections were inserted with a view to stopping sexual abuse of women in several places and circumstances which though not considered as an amounting to rape by the law but were considered highly reprehensible.[6]

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Section 354 of the Indian Penal Code charges the culprit of an indecent assault made by him upon a woman but where rape is not committed. In simple words, this section prescribes punishment for anyone who assaults or uses criminal force to any woman with an intent to outrage her modesty.[7]

DEVELOPMENT OF RAPE LAWS IN INDIA

The social and the legal development of rape laws started with the Mathura rape case[8], it’s one of the first cases where public outrage was seen, people protested against the existing laws and demanded reforms in the law. In this case, a girl named Mathura of 16-years, who belonged to a tribal community was raped in one of the Police Stations in Maharashtra. The family members of the girl lodged a complaint against the police officers. The case went to the Supreme Court and the court rejected the case by stating that “Mathura’s body bore no outwards sign of rape”.

The judgment, in this case, outraged the people which led to huge movements and protests by several groups and organisations all over the nation. Subsequently, four law professors wrote an open letter to the then Chief Justice of India criticising the judgment. This protest and outrage led to an amendment in the Indian Penal Code in 1983. The chief elements of the criminal law amendment, 1983 were:

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  1. Custodial rape was recognised for the first time.
  2. Closed proceedings for the rape trials.
  3. It restricted the publication of the name of the individual.[9]

The case of Sakshi vs Union of India[10] is an important case as well, in the path of development of rape laws. In this case, to redefine the term rape, an NGO filed a Public Interest Litigation. The Supreme Court of India directed the law commission of India to look into the issues related to laws and come with plausible reforms. After several meetings and consultation with the NGO, the Law Commission announced its 172nd report on the reforms of rape laws. The gist of the report was that the term ‘sexual assault’ be used instead of ‘rape’ and all forms of penetration must fall under the horizon of Sexual intercourse under section 375 of the Indian Penal Code, 1860.

Once again, an amendment was done in the year 2002. Section 146 of the Indian Evidence Act, 1872 was amended. This prohibited any sort of cross-examination of rape victims which in any manner, directly or indirectly outrages the modesty of a woman or raises questions about the character of a rape victim. This also restricted asking questions from victims which make them remember the experience of assault over and over again.

The major change in the law came after the horrified and monstrous gang rape incident on 16th December 2012, in Delhi. The act was so inhuman and evil that it shook the entire country and made people across the country united against the very gruesome act. The whole nation protested for the victim to get justice. The victim’s mother fought for her daughter and she didn’t give up till the justice was delivered, although it was delayed for a long time.

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After witnessing the huge number of protests and outrage from the public, the government, at last, formed a committee to propose legal reforms to curb such incidents of sexual crimes against women. Justice Verma headed the committee, the committee received thousands of recommendations from all over the world. It was necessary to frame stringent rules so that no person in his right mind ever thinks of committing such a heinous crime again. The major aim of forming this committee was to make our country safer for women. The committee report recommended stringent rules to be inculcated in the criminal law; it also mentioned an important role in gender equivalence and social revolution. Lastly, the bill was passed in both the houses in 2013 and received the assent of the President as well. It contained various reforms including police reforms, educational reforms, special training for boys and for the officers who are in the criminal system etc. This amendment, again, changed the term ‘sexual assault’ to ‘rape’. The major downside of this law is that it is not gender-neutral, therefore, only a man can be a culprit or an offender. One more drawback is that marital rape is still not considered as rape, according to the Criminal Amendment Act, 2013. Additionally, now that homosexuality under section 377 has been decriminalised, the authorities must look into this and add provisions related to their safety under the criminal law as well. The safety laws to protect the homosexuals from getting assaulted or harassed must be considered and the laws to achieve a similar purpose be formed.

India, still, has a long way to go in order to achieve the freedom and safe environment for women. In a country, people have to work individually upon themselves as well as upon the society to achieve the big triumph. Slow and steady we go; must we go in the right direction to achieve the goal.

References:

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[1]Vibhute, K. (1999). VICTIMS OF RAPE AND THEIR RIGHT TO LIVE WITH HUMAN DIGNITY AND TO BE COMPENSATED: LEGISLATIVE AND JUDICIAL RESPONSES IN INDIA. Journal of the Indian Law Institute,41(2), 222-236. Retrieved June 7, 2020, from www.jstor.org/stable/43951715

[2]https://economictimes.indiatimes.com/news/politics-and-nation/nirbhaya-convicts-hanged-at-tihar-a-look-at-executions-in-independent-india/2012-nirbhaya-convicts/slideshow/74725334.cms.

[3]The Indian Penal Code, 1860.

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[4] PAREAS DIWAN, LAW RELATING TO DOWRY, DOWRYDEATHS, BRIDE BURNING,RAPE AND RELATED OFFENCES

(2010)

[5] Id.

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[6]https://www.advocatekhoj.com/library/bareacts/criminallawamendment/9.php?Title=Criminal%20Law%20%28Amendment%29%20Act,%202013&STitle=For%20sections%20375,376,376A,%20376B,%20376Cand%20376D%20of%20the%20Penal%20Code,%20the%20following%20sections%20shall%20be%20substituted,%20namely.

[7]http://www.legalserviceindia.com/articles/rape_laws.htm.

[8]Tukaram v. State of Maharashtra AIR 1979 SC 185

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[9]https://www.latestlaws.com/articles/critical-analysis-of-rape-laws-in-india-and-judicial-opinion-by-sakshi-rewaria

[10]AIR 2004 SC 3566

This Article Written by Vartika Srivastava, Student of Symbiosis Law School, Noida

Also Read – Rape – The Heinous Crime Amongst All Crimes

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