Legal

Analysis of flaws in Provisions of Rape in India

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This Blog is written by Andre Sachdeva from Vivekananda School of Law and Legal Studies, VIPS, New Delhi. Edited by Prakriti Dadsena.

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INTRODUCTION

“While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”

Justice Arjit Pasayat

Rape is the most gruesome and inhumane crime to happen to an individual. Sexual offenses such as rape violate the integrity, innocence, and honor of a woman. The destruction of a female’s physical and mental equilibrium by an individual of such a cruel and sadistic mentality, and their tendency to commit rape put these women through a severe emotional crisis and transforming them into a walking corpses. Sexual offenses, particularly rape, is one of the most common crimes in India.

The word rape comes from the Latin term “rapio” which means “to seize”. The term rape in its most basic sense refers to “the ravishing and violation of a woman”. Essentially, rape is defined as the sexual experience of any woman above the age of a certain number of years, despite her will, or of a girl child under the age of that couple of years, whether with or without her assent.

PROVISIONS IN THE LEGISLATURE

The term “rape” was first mentioned in our country when Section 375 of the Indian Penal Code, 1860 was written. According to which, a man is said to have committed rape when he has sexual intercourse with a woman under the following circumstances:

1. Against her will.

2. Against her consent.

3. With her consent, when her permission has been acquired by placing her or anybody she is interested in danger of death or harm.

4. When the man knows he is not her husband and she gives her consent because she believes he is another guy to whom she is or thinks herself to be lawfully married.

5. With her consent, if, at the time of giving such assent, she is unable to grasp the nature and consequences of that to which she consents due to unsoundness of mind or drunkenness, or the administration by him directly or via another of any stupefying or unwholesome substance.

6. When she is under the age of sixteen, with or without her assent.

Exceptions: Sexual intercourse between a man and his wife, if the wife is not under the age of fifteen, is not considered rape.

The main components of rape legislation, as described in Section 375 of the Indian Penal Code, are “sexual intercourse with a woman and the absence of consent.” A penetration would satisfy to constitute the sexual intercourse required for the commission of the crime of rape under this provision of the IPC. But Section 375 excluded Marital Rape, Same-sex rape and considers any sexual activity conducted by a female under the age of sixteen to be rape, even if she consents.
The definition of “rape” got updated on 3 January 2013 by the Criminal Law (Amendment) Act 2013 which also raised the legal age of a minor to eighteen. However, even after the 2013 revisions, marital rape is still not considered a crime if the wife and husband continue to live together. Section 376B of the IPC of 2013 makes sexual intercourse between a man and his wife during separation criminal by up to seven years in prison. Thus, unless the two are separated, forced intercourse by a man on his wife is not deemed rape.

Prior to the Supreme Court’s momentous verdict on September 6, 2018, all sexual behavior between same-sex persons, whether consenting or coerced, was criminal in the same way as rape. Even today, if the victim is transgender, the rapist is only penalized by up to two years in jail under the Transgender Persons (Protection of Rights) Act 2019.

DEVELOPMENT OF RAPE LAWS IN INDIA

The well-known Mathura Case, i.e. Tukaram v. the State of Maharastra [1], and the public controversy that accompanied it resulted in the reforms of the Criminal Law Amendment in 1983. The 16-year-old girl was raped inside the premises of the police station.

The burden of proving consent was shifted on the accused in the instance of custodial rape under Section 376 of the IPC. The statute altered Section 114(A) of the Indian Evidence Act, which stated that if the victim does not consent to sexual intercourse, in such a case the court shall surmise she did not consent.
The heartbreaking Delhi Gang Rape Case on December 16, 2012, in the country’s capital, horrified the whole nation. Six men viciously raped a 23-year-old woman on a moving bus. This provoked widespread protests across the country. The Justice Verma Committee was tasked to review sexual offense legislation before the public outpouring of rage subsided. The developments made by the said task force resulted in the 2013 Criminal Law (Amendment) Act. As a result of this modification, new offenses which include stalking, acid attacks, and voyeurism was added to the definition of rape. Now, even threatening to commit rape is considered a crime. The minimum punishment was increased to ten years from seven. In cases where the victim died or was left in a vegetative state, the minimum punishment was doubled to 20 years.

The Nirbhaya Case of 2012 resulted in the bringing up of the Fast Track courts to be set up to rapidly provide justice to rape victims. Five fast-track court systems were initiated in Delhi in the year 2013 so as to handle rape cases. This also led to positive developments such as the coming up of the Nirbhaya Fund which was to provide funds to those who were victims of sexual assault.

CASE LAWS AND THEIR IMPACTS

The Indian Judicial System played a negative as well as a positive role to bring justice to those who had fallen prey to sexual assaulters. Although positive reforms were seen, the major problems of rape trials in India cannot be neglected. The concept of consent and the judgment of what constitutes consent is stifling justice in the country. The basic interpretation of sexual assault is defined as sexual intercourse without consent. In today’s time, various definitions have been derived from the word consent.

In the case of Mohd. Habib v. State [2], the Delhi High court on the mere assumption that there is no injury on the private parts let the rapist be off the hook. The High Court did not examine the most crucial aspects, such as the victim’s age (seven years), a torn hymen, and bite scars on her body. Even eyewitnesses who witnessed this horrible act were powerless to overturn the High Court’s ruling.

In the case of Independent Thought v. UOI [3], the apex court ruled that sexual intercourse with a girl under the age of 18 is considered rape regardless of whether she is married or not and that the exception carved out in the IPC fosters a superfluous, capricious, and the synthetic distinction between a wedded girl child and an unwed girl child, and is thus liable to be thrown out.

Suo moto v. the State of Rajasthan [4] is commonly referred to as the German Lady rape case. It is a historic decision that establishes principles and rules for the preservation of women’s dignity. The court here stated that “In order to combat the increasing crime against women and to ensure protection and preservation of their human rights – the criminal justice system needs to be addressed from the point of view of systemic victim support service. There is need to promote the proactive role of police as well as trial courts”.

In the State of Punjab v. Gurmit Singh & Ors [5], the Court ruled that the proceedings should be conducted in private, as required by Section 327 of the Criminal Procedure Code of 1973. The victim’s anonymity must be kept throughout the judicial processes.

CURRENT LEGAL POSITION

The crime of rape under Section 375 of the IPC has rendered both penile and nonpenile intrusion into a woman’s body cavities by a male an offence. The Section has also clarified that penetration implies “penetration to any extent,” and that absence of bodily resistance is irrelevant in determining whether an offense has been committed.

The new provision of 376A, which punishes the assaulter with life imprisonment, causes the individual to die or to remain in a chronic vegetative condition. In the instance of gang rape, the perpetrators, regardless of gender, should not be imprisoned for less than 20 years, but maybe sentenced to life in prison, and shall give adequate compensation to the victim to cover medical expenses and rehabilitation.

The CrPC, 1973, and the IEA, 1872 were amended to make necessary adjustments, such as making the recording of statements more victim-friendly, making the victim’s character unimportant, and so on.

ANALYSIS

The Indian criminal justice system has to be retrained on rape law. Taking into account all of the above considerations, it is possible to infer that the definition of ‘Rape’ should be broadened and, in theory, should encompass acts of forced oral sexual intercourse, sodomy, and penetration by foreign objects. There have been cases where investigative bodies have asked the victim ludicrous questions concerning the sort of garments she was wearing at the time, how many times she was penetrated, and how long it took to penetrate her. There is no explicit statute that protects girls from such mistreatment. It should be acknowledged that the victim’s behavior is irrelevant in rape cases, and that even a woman with bad morals is entitled to fundamental rights, and that no one may violate her right to privacy, dignity, and physical integrity. Furthermore, the dreadful and humiliating practice of the ‘Per Vagina test’ should be outlawed since it violates a woman’s fundamental rights, making it constitutionally unlawful and leaving the survivor emotionally traumatized. Finally, there is a need for marital rape legislation as well as gender-neutral rape legislation for male and transgender victims.

CONCLUSION

If rape laws are to be a deterrent, the courts and government must make several adjustments. To limit the number of escaped convicts and to decrease such horrific acts, the court should not impose minor fines of imprisonment up to seven years. As a result, in the interests of justice and society, these perpetrators should be sentenced to life in prison.