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Sexual crimes in India have always been a matter of great concern. As per the data released by NCRB 32,033 rape cases where reported in 2019, an average of 87 rape cases in a day was seen in the year. Uttar Pradesh and Rajasthan were among the states with worst record of rape and sexual crimes. This data should comes as a shock for the nation as even after such strict laws we are still not able to reduce the number of sexual crimes. The recent case of gang rape of a 50 year old woman in the village of Badaun, Madhya Pradesh has shaken the whole country.
This leads to several questions as to what is the reason behind such alarming rate of sexual offences. Are rape laws not strict enough? Are there any loopholes in the laws? Is punishment for rape under IPC not adequate?
Understanding the Concept of Rape under IPC
The offence of rape has been defined under Section 375 of Indian Penal Code. A man is said to have committed rape of a woman when he indulges into sexual intercourse with a woman against her will or without her consent. The Section provides with seven circumstances under which sexual intercourse by a man will be considered as rape:-
a. Against her will.
b. Without her consent.
c. With her consent, when her consent is obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
d. When woman gives consent believing that the man is her husband.
e. With her consent when given by reason of unsoundness of mind, or under influence of intoxication or any stupefying or unwholesome substance.
f. With or without her consent, when she is under eighteen years of age.
g. When she is unable to communicate consent.
Consent obtained by fear, misrepresentation, fraud, coercion, under mistake, or reason of unsoundness of mind is no consent. There is a fine distinction between “an act done against the will” and “an act done without the consent”. The Supreme Court has explained the difference between the two in the case of State of Uttar Pradesh v. Chottey Lal, (2011). The expression “against her will” would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other, the expression “without her consent” would comprehend an act of reason accompanied by deliberation.
The Section has also included two exceptions:
1. A medical procedure or intervention shall not comprise rape.
2. Sexual intercourse by a man with his wife, wife not being below 18 years is not rape.
The age limit in exception 2 was changed from 15 to 18 years in the case of Independent Thought v. UOI AIR 2017. The Supreme Court held that this exception was making an unnecessary distinction between a married girl child and an unmarried girl child which violated Articles 14, 15, and 21 of Constitution of India. It was also inconsistent with provisions of POCSO Act.
Punishment (Section 376)
1. Rape- Rigorous imprisonment for a term not less than 10 years which may extend to life imprisonment and also liable to fine.
2. Rape of a woman below 12 years of age- Minimum 20 years’ imprisonment or jail for rest of life or death.
3. Rape of a woman less than 16 years – Minimum punishment of 20 years imprisonment which may be extended to life.
4. Gang rape- Rigorous imprisonment for 20 years which may be extended to life and also liable to fine.
5. Gang rape on woman under 16 years- Imprisonment for life and liable to fine.
6. Gang rape on woman under 12 years- Imprisonment for life and liable to fine or death.
7. Repeat Offenders- A person who has already been convicted under the sections 376, 376A, or 376D and is subsequently convicted of an offence under these sections shall be punished with imprisonment for life or death.
Evolution of Criminal Law
The laws relating to sexual offences have gone through many reforms, courts in their judgement have decided many cases which were widely criticized and in order to nullify the effect of such decisions provisions relating to law of rape as stated earlier were extensively amended in 1983 vide Criminal Law (Amendment) Act 43 of 1983. One such case was Tukaram v. State of Maharashtra AIR 1979, popularly known as Mathura rape case. Mathura, an 18 year old Harijan girl was raped and molested by two police constables Ganpat and Tukaram at the police station after keeping her in the late hours of the night. The Supreme Court in this case reversed the finding of Bombay High Court and held that Mathura was subjected to no fear and since there was no resistance on her part it could be said that there was consent. This decision was not appreciated by the public and was said to be a failure of courts to safeguard rights of victims of rape.
Important Amendments in Criminal Law
The inadequacy of the laws of rape manifested in a number of judgements of the Supreme Court such as Tukaram v. State of Maharashtra AIR 1979, Sidheshwar Ganguly v. State of West Bengal AIR 1958, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983. It was an absolute failure to safeguard the rights of the innocent victims against such heinous crimes. The Parliament in order to strengthen the law brought several amendments to the penal laws and the procedural laws. Some of the important changes brought about by the Act 43 of 1983 and Act 13 of 2013 and other provisions are listed below:
(i) Consent of a woman of unsound mind or under intoxication: the clauses fifthly and sixthly were added by the Act of 1983 to Section 375. The consent of a woman who is of unsound mind or under influence of intoxicants would not be held as a valid consent because during that state she is unable to understand the nature and consequences of the act.
(ii) Burden of proof of innocence on accused: section 114A was inserted in The Evidence Act, 1872 which made the presumption of absence of consent of the woman if the case fell under section 376(2) clauses (a), (b), (c), (d), (e) and (g), IPC shifting the burden of proof of innocence on the accused.
(iii) Prohibition of disclosure of identity of the victim: section 228A, IPC clause prohibited the disclosure of identity of victims in rape cases under sections 376, 376A, 376B, 376C, 376D 0r 376E IPC.
(iv) Persistent vegetative state: clause 376A was added punishing the offenders an imprisonment for a term not less than 20 years or which may extend to life when the injury caused to the victim results in death of the woman or causes to woman to be in a Permanent Vegetative State (PVS).
(v) Trial in camera: section 327, CrPC, 1973 was amended making the provision for trial of rape cases or an offence under sections 376A to 376D, IPC in camera and publication of trial proceedings in such cases without the prior approval of the Court was also prohibited.
(vi) Custodial Rape: the clause 376C was added to punish a person who abuses his position of authority or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse not amounting to the offence of rape for a term not less than 5 years which may extend to 10 years.
(vii) Intercourse with wife during judicial separation prohibited: sexual intercourse with one’s own wife during judicial separation without her consent is punishable under 376B with imprisonment for a term not less than 2 years which may extend to 7 years.
(viii) Minimum punishment for rape: minimum punishment for rape under section 376 clause (1) provided imprisonment for 7 years which may extend to life and imprisonment for 10 years which may extend to life under clause (2) of IPC.
(ix) Prohibition of character assassination of prosecutrix: The Criminal Law (Amendment) Act 13 of 2013 inserted a “Proviso clause” to section 146 of The Indian Evidence Act, prohibiting questions about prosecutrix character in cross-examination.
Also read: HINDU LAW: DIVORCE BY MUTUAL CONSENT
Are Rape Laws gender-neutral?
The rape laws defined under IPC recognizes only female victims. Several countries such as United Kingdom, United States, Australia have provisions for gender-neutral laws. India is still behind in making laws for protecting male rape victims; it is a breach of their right to equality and right to life and personal liberty. The POCSO Act does protect male minors but there are no laws as to protect adult males from sexual offences. Section 377 also does not cover the whole issue of male rapes while criminalizing carnal intercourse against the order of nature. The number of false rape cases has also been increasing. The mental trauma that a false accusation can cause has been recognized for other offences but laws relating to false rape accusation are still to be made. This only adds to the unfairness of laws that a male accused is subject to in the country.
Status quo of rape laws in India
The current rape laws in the country have proven to be not as effective. However, with the increase of punishment and more strict laws defining various aspects of consent has helped in understanding the case of sexual offence in a new light.
Marital rape is an issue which has not been mentioned in the Indian laws; consent is a major condition in any case of rape but consent after marriage is not vital for sexual intercourse according to the laws. This breaches the right of bodily integrity of a person.
The long battle to get justice has often made the victims to not opt for reporting the crime and the social stigma that a case of rape can cause only worsens the situation. The victims needs proper counselling to inculcate confidence and initiate a case against the offender seeking justice. The delay in judgement often helps the offender to get an escape which breaches the purpose of law; speedy trial of such cases is needed. Also, new provisions must be added defining the offence of child sex abuse, incest and marital rape in the IPC.
The laws relating to rapes and sexual offences need reform in both statutory laws and procedural laws. These crimes are a huge threat for the society and new policies and laws can only help us curb this problem. An environment needs to be created which ensures the public that there rights are protected at all cost. Our aim must be to protect every citizen beyond the barriers of age, sex, caste, creed from all kinds of sexual offences.
Author: Surabhi Jha
Editor: Kanishka Vaish, Editor, LexLife India.