December 5, 2020

Evolution of Rape Laws in India

Rape is the fourth most common and heinous crime done against women in India, it causes physical and psychological trauma to the victim. We have demonstrated what are rape laws and how the rape laws have evolved in India to make the legal peregrinate of the victim less troublesome. With the help of case laws, we have construed what is consent in rape, the defence cannot use the past sexual relationship of a victim for the acquittal of the accused, the age of wife increased from fifteen to eighteen years to be a consenting adult. The Justice Verma Committee which was set up in 2013 amended the laws and made it more stringent. The laws were made stringent with the view that, a crime as abominable as rape would be curbed yet in 2018, 34,000 rapes were reported by women of which 85% were charged and a mere 27% convicted according to the National Crime Records Bureau. The laws pertaining to rape have become rigorous but it is writ large that this strictness is just on papers because the judiciary is overburdened with a plethora of cases. The judiciary has to be unburdened of cases so that the laws can be swiftly and promptly implemented.

Rape is the act of sexual intercourse with an individual without their consent that is committed through physical force, threat of injury or different pressure. Precedent-based law characterized rape as an unlawful intercourse by a man against a woman who is not his wife by criminal force or threat or which is against her will.

Sexual Assault is frequently clarified or pardoned as an indication of racial, ethnic, and class hatred or as coming from a patriarchal framework in which women are seen as the property of men. Whatever its origin, rape is an egregious wrongdoing and is treated as a lawful offense in many nations with custom-based law frameworks. In many rape trials, the guilt or innocence of the accused relies on whether the victim consented to sexual intercourse.[1]

Hence, consent of a woman plays a significant role in instances of rape. As it is defined under Section 375 of the IPC firstly that, ‘A man is said to commit rape if he attempts to compel himself against her will and furthermore without her consent.’ The victim’s absence of consent is the significant component. An absence of consent can incorporate the victim’s inability because of utilization of drugs or liquor, to state “no”. As under Explanation 2 of Section 375 it is stated that “Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. The terms stressed over here is unequivocal voluntary agreement to the specific sexual act which means it should be crystal clear whether a woman is willing to participate to that particular sexual act. There are no two ways about it, even a feeble hesitation would show that a woman is not willing to be a part of the sexual act. Such clear cut definition of consent under rape was much needed when the Hon’ble Supreme Court held that the act of rape was not committed in the case of Tuka Ram v State of Maharashtra.[2] In Tuka Ram v State of Maharashtra, 1978 also famously known as Mathura Rape Case, a girl of 16 years of age was raped by two policemen in the police station and yet the perpetrators were acquitted on two grounds, firstly, when the policeman held Mathura’s (the victim), hand she did not resist to it and thus consented to the sexual act and secondly, the two finger test was used to prove that the victim was habituated to sexual intercourse and the act was not an act of rape by the policemen but a consensual sexual act. This judgment created quite an uproar in the legal fraternity and the legal teachers under the guidance of Professor Upendra Bakshi wrote a letter to the then Prime Minister of India, in which it was beautifully stated that consent is a person’s own volition and a consent given under any kind of submission is no consent at all.

In most of the rape cases, the defence always tried to put down the case of the prosecution by putting up baseless arguments such as the victim was frequent to sexual intercourse, is of questionable character or of easy virtue and lewd behaviour.

The defence, just like the Indian society assassinates a woman’s character to overshadow the fault of its patriarchal offspring, the men or the accused in rape trials. Yet all hope is not lost as in case of State of Haryana v Prem Chand[3], the Supreme Court held that the character, status, reputation of a woman has no relevance in deciding the sentence of the accused in a rape trial. The aforementioned factors are alien and can never serve as mitigating factor in the matter regarding punishment of the accused. Hence, the dignity and decency of a woman must be upheld in all rape trials. Section 53A of the Indian Evidence Act, 1872 states that relevant evidences in a court shall not include evidences relating to past sexual experience or character of a victim. Therefore, with respect to question of consent in a sexual intercourse, alleged rape, evidence of the character of the victim or such person’s previous sexual intercourse experience with another person shall not be relevant on the issue of such consent or the quality of consent.

Whereas, consent given under misconception, that is when consent is obtained by a false promise to marry then that consent is not to be considered. Mere breach of promise to marry without mala fide intention, does not amount to deception. As in the case of Deelip Singh vs State of Bihar[4] on 3rd November, 2004 a girl who was below the age of her consent was falsely or fraudulently promised of marriage for which she consented for having sex with the accused but later when the girl got pregnant the accused was unable to marry her as his father precluded them from marrying. In this case, the woman took a conscious decision to participate in the sexual act only on being impressed by the promise that the accused will marry her and the promise was not false from the inception with the intention to seduce her to the sexual act. As a result, the conviction of rape was set aside and age of the woman was not taken into consideration as the law was not made at that time. At best, court decided that he would be liable for breach of promise to marry for damages in civil law and would have to pay a fine of Rs 50,000.

Also, regardless of whether there is a feeble no, or a slight hesitation of consent then it won’t be termed as rape. In the landmark case of Mahmood Farooqui vs State[5] (Govt. Of Nct of Delhi) on 25th September, 2017 the feeble no of the victim led to mere consent and the Supreme Court in it’s verdict did not find the Prosecution guilty. Here the victim was trying to stop the appellant but she was scared of his strength and as she did not want to get hurt, she pretended to have an orgasm. To this she said that recently there was the Nirbhaya Rape Case which shook the whole nation as when the victim tried to stop the offenders they brutally hit and raped her, the offender stating that if the victim in Nirbhaya Rape Case had not protested she would have lived. The prosecutrix claimed that she kept quiet in order to avoid any physical harm to her. Thus, a feeble no might be taken as a clue for participating voluntarily in the sexual act as held by the Hon’ble Supreme Court.

Another facet of rape is Marital Rape which has not been recognised by the legal system of India. Marital Rape is not unlawful as there is an exemption expressing that sexual intercourse by a man with his very own significant other (without her consent), the wife not being under fifteen years old, isn’t rape. In the 2007 Supreme Court Case of Independent Thought v Union Of India[6] the age of wife was enhanced from fifteen years to eighteen years. The Supreme Court accepted the argument that Exception 2 of Section 375 carves out unnecessary distinction between married of fifteen years of age and unmarried girl of eighteen years of age. Prima facie it looks like a first step towards criminalisation of marital rape but a closer examination of the judgement reveals that the issue at hand has been approached not from the point of view of complete removal of marital rape rather it was solely to bring the age of the married girl child in consonance with other prevalent special criminal statutes. It was also stated that this judgment shall not be taken as an observation in any way or the other with respect to the issue of marital rape.Thus the Indian society very conveniently refuses to accept the fact that rape by husband, who is a man, cannot be committed on his wife just because they are married.

The wrongdoing of statutory rape alludes to sexual intercourse with a minor (someone below the age of consent). Minors who are below the age of consent cannot lawfully agree to having intercourse. This implies sexual intercourse with them is illegal regardless of whether they signal their agreement. This has been defined under section 375 sixthly of the IPC. If a girl is underneath 18 years of age and she gives her consent then it will be considered as rape as she is a minor and the consent will not be pertinent.

Statutory rape laws vary by state, with states setting the age of consent differently. Many states punish statutory rape under laws addressing sexual assault, corruption of a minor, or carnal knowledge of a child. In more than half of the countries, statutory rape is a felony only if one of the participants is at least several years older than the other; if the two people are extremely close in age, but one of them is underage, some countries will not treat this as a crime or may treat it just as a misdemeanor.[7]

Presently, the punishment for rape as defined under section 376 of the IPC states that an individual who commits rape will be punished with rigorous imprisonment of either description for a term which will not be less than 10 years, yet may reach out to life imprisonment, and will likewise be liable to fine. After the Nirbhaya Rape Case in Delhi, the Criminal Law Amendment Act was passed in 2013 which enlarged the meaning of rape which from mere peno-vaginal penetration to more defined terms which have been added to Section 375 and has made the laws increasingly stringent. The Act which came into effect on April 2, 2013, expanded the prison terms and gave capital punishment in rape cases that causes death or leaves the victim in a vegetative state. The punishment for gang rape was expanded to 20 years of life imprisonment from the prior 10 years to life imprisonment.[8]

Nirbhaya Rape Case (Mukesh v NCT Delhi)[9] which took place on 16th December, 2012 broadened the definition of rape as a woman of 23 year old was brutally gang raped and murdered. This case shocked the conscience of the nation and led to collective outrage and protest. In response, the Government of India convened a three-member committee of retired justices headed by Justice J. S. Verma who were tasked with the production of a report suggesting changes in the criminal justice framework for enhanced punishment of offenders and faster access to criminal justice for the victims facing sexual offences.The committee, in its report (‘Verma Committee Report’), suggested monumental changes in criminal law from which the current wide definition of rape and other sexual offences emerged. It also prescribed procedural safeguards in cases of rape. Most of these suggestions were incorporated in the Criminal Law Amendment Bill, 2013 (‘2013 Amendment’) which introduced amendments in Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act.

Prior, there was no particular arrangement in law for offenses, for example, utilization of unwelcome physical contact, words or signals, request or solicitation for sexual favors, showing pornography against the will of a woman or passing sexual comments. In any case, the 2013 Act unmistakably characterized these offenses and allocated punishment. Correspondingly, stalking was made culpable with as long as three years in prison. The offense of acid attack was expanded to 10 years of punishment.

In January 2018, an eight-year-old young girl in Rasana town close Kathua in Jammu and Kashmir was abducted, raped and killed by a group of men. The updates of the stunning act led to nation-wide protests for harsher punishment. This led to the passing of the Criminal Law (Amendment) Act, 2018 which for the first time put death penalty as a potential punishment for the rape of a girl under 12 years, the minimum punishment is 20 years in prison.[10]

The difficulties faced by a victim of rape in the legal arena was eased out in the case of Delhi Domestic Working Women Forum v Union of India.[11] Through this case the National Commission of Women Act, 1990 was introduced in which the main steps taken were as follows :-

Firstly, compensation was provided for victims upon conviction of the accused which would be decided by the Courts.

Secondly, legal representation of the victims was ensured.

Thirdly, legal assistance during the time of questioning in the police station.

Fourthly, duty of police was laid out to inform the victim with respect to her rights to represent and duly mention the incident in Police Report.

Fifthly, a list of advocates who are willing to fight such cases to be kept in the police station.

Sixthly, advocate to be appointed by the court upon the application by the police.

Sevently, anonymity of victims during rape trials should be maintained.

Eighthly, with regard to Article 38(1) of the Constitution of India the Criminal Injuries Compensation Board should be set up since rape victims frequently incur substantial financial loss.

Ninthly, A new compensation scheme has been brought by National Legal Service Authority of victims of sexual assault.

Henceforth, rape and sexual assault are among the most injurious crimes a person can inflict on another. The effects of it are devastating, extending beyond the initial victimization to consequences such as unwanted pregnancy, sexually transmitted infections, sleep and eating disorders, and other emotional and physical problems. Understanding the frequency and context under which rape and sexual assault are committed is vital in directing resources for law enforcement and support for victims. These data can influence public health and mental health policies and help identify interventions that will reduce the risk of future attacks.

Thus, concluding my topic I would like to say that rape won’t stop in India until and unless the country makes the laws more stringent and implements them. Also, our country has an overburdened judiciary (lowest judge-to-citizen ratio in the world) which has hobbled crime prevention. As of 2018 there are 1,33,000 pending rape cases in the courts and it is the 4th most common crime against women in India.[12] India’s complex social landscape further creates difficulties for the delivery of justice.

[1] Anne L. Barstow, Rape Crime (April 11,2019), https://www.britannica.com/topic/rape-crime

[2] Tuka Ram vs State of Maharashtra (1978), AIR 185, 1979 SCR (1) 810

[3] State of Haryana vs Prem Chand and Others (1989), AIR 538, 1989 SCR Supl. (2) 496

[4] Deelip Singh vs State of Bihar (2005), 1 SCC 88

[5] Mahmood Farooqui vs State (2017), In the High Court of Delhi, CRL.A.944/2016

[6] Independent Thought vs Union of India (2017), In the Supreme Court of India, Writ Petition No. 382 of 2013

[7] FindLaw’s Team, Rape Crimes Defined, Common Defenses and Rape Penalties https://criminal.findlaw.com/criminal-charges/rape.html

[8] Soibam Singh, The Laws on Rape and Sexual Crimes (December 17, 2019), https://www.thehindu.com/news/national/what-are-the-laws-on-rape-and-sexual-crimes/article30233033.ece

[9] Mukesh vs NCT Delhi (Nirbhaya Case) (2012), Criminal Appeal No. 607/2017

[10] Supra 8

[11] Delhi Domestic Working Women Forum vs Union Of India (1994), 1995 SCC (1) 14, JT 1994 (7) 183

[12] Neeta Lal, Addressing Rape In India (January 21, 2020), The Diplomat, https://thediplomat.com/2020/01/addressing-rape-in-india/

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Author Details: Riddhiman Roy Choudhuri and Anshala Verma (2nd year students at KIIT School of Law)

The views of the author are personal only.

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