ANTI RAPE LAWS in INDIA: a REVIEW Apoorva Ramaswamy1
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ANTI RAPE LAWS IN INDIA: A REVIEW Apoorva Ramaswamy1 1 This paper has been prepared by me during the course of my internship at Economic and Political Weekly Research Foundation, Mumbai and gratefully acknowledge their support. ANTI RAPE LAWS IN INDIA PRIOR TO THE CRIMINAL LAW AMENDMENT ACT 2013: RAPE Section 375 and Section 376 of the Indian Penal Code, 1860 define the offence of rape and prescribe punishment for offenders under this law. These sections remained unchanged since their inception in 1860 till the time of the 1983 amendments following huge protests in the wake of the controversial Supreme Court judgement in the Mathura rape case. Section 375 gives the legal definition of the word rape. It states that a man is said to commit "rape" who, except in the case herein after excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- • First- Against her will. • Secondly- Without her consent. • 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. • 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. • 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. • Sixthly - With or without her consent, when she is under sixteen years of age. The only exception being that forced sexual intercourse by a husband with his wife; the wife being not less than 15 years of age does not amount to rape. As provided in Section 376, who ever commits the offence of rape shall be punished either with imprisonment for a period of seven years but which may be for life or for a term which may extend to ten years and shall also be liable to a fine. This does not apply in a situation of forced marital sex where the wife is more than twelve years of age. However if she is between twelve to fifteen years of age, the husband will be punished with imprisonment for a term which may extend to two years or with fine or both. The court may by adequate and special reasons which are given in the judgement impose a sentence of a term of less than seven years. This section defines rape as forcible penetration of the vagina by the penis. This raises questions about the adequacy and sufficiency of this definition of rape. The scope of the law does not extend to acts of forced oral sex, sodomy or penetration by foreign objects. This form of sexual violence is especially prevalent among children and young girls.2 It is included within the ambit of Section 354 which deals with outraging the modesty of a woman. Inclusion with Section 354 is a gross denial of justice as it prescribes a paltry sentence of two years for such a serious offence. It was in direct violation of the right to life with dignity and personal liberty available under Article 21 of the Constitution. This problem was pointed out by the NGO Sakshi in the form of Public Interest litigation.3 It was argued here that this narrow definition of rape runs contrary to contemporary understanding as the intention to humiliate and degrade the sexual integrity and personal space of its victims. The Supreme Court taking cognizance of this, directed the Law Commission to review the law on rape. The 172nd Report dated March 25, 2000 made recommendations to widen the ambit of the law to include forced oral sex, sodomy and penetration by objects. Also it recommended substituting the offence of rape with the offence of sexual assault. But nothing came out of this report and there was no change with respect to this aspect till the Criminal Law Amendment Act 2013. The most important factor in determining rape is consent. Its absence is what distinguishes rape from ordinary consensual sexual intercourse. Initially there was emphasis by the judiciary on the use of force and physical injuries on the body of the victim to prove that there had been rape. Passive submission would not constitute absence of consent. This made it extremely difficult for a woman to prove that she did not consent beyond all reasonable doubt as is required under the law. Even forensic evidence cannot be produced in all cases as unless the woman is medically examined within 24 years, it becomes difficult to prove rape. This perception negatively impacts especially those cases where consent is obtained by means of misrepresentation or fraud. This changed following the infamous judgement of the Supreme Court in Tukaram v. State of Maharashtra4 which acted as a catalyst for reform in rape laws. In the above case, Mathura a 16 year old tribal girl had been raped by two policemen within the police compound. The Supreme Court set aside the conviction by the High Court on the ground that she did not raise an alarm and there were no physical signs of injury on her body. Technically the law did not prevent the 2 Sudesh Jhaku v. K.C.J and Others [1996(3)AD Delhi 653] 3 Sakshi v. Union of India AIR 2004 SC 3566 4 Tukaram v. State of Maharashtra AIR 1979 SC 185 court from perceiving non wilful submission given as a result of force as no consent. Nowhere in the statute book has there been mentioned a need for physical marks of resistance or the use of force to signify lack of consent. All that is needed to be proved is sexual intercourse “without consent” as is aptly laid down in the legal definition. However the court held that the absence of injuries as also the fact that she had been sexually active in the past showed that she was likely to have consented to the act. This triggered a series of campaigns for changes in rape laws which finally led to the 1983 Criminal Law (Amendment) Act 1983. It produced the following results: • Firstly it was held that consent in case of a woman who was of unsound mind or is under the influence of intoxication at the relevant time will not be considered as valid consent. This is basically the existing fifth clause of Section 375. • A new category of offence that is custodial rape or rape by persons in authority was added in the form of Section 376B to 376D of the Indian Penal Code.5 Section 376B: Whoever, being a public servant, takes advantage of his official 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. Section 376C : 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 official 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. Section 376D: Whoever, being on the management of a hospital or 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 extend to five years and shall also be liable to fine. 5 Indian Penal Code, 1860 To put it simply if any of the persons in authority who are mentioned in the above sections by reason of their position induce or seduce a woman in their authority or custody to have consensual sexual intercourse with them not amounting to rape, they can be punished with a sentence which may extend to five years and even may be made to pay a fine. • Another Section 376A was added which basically states that forced sexual intercourse by a husband with his wife who has been living separately by virtue of a decree of law or custom, is liable to imprisonment which may extend to two years and also may be made to pay a fine. • Introduction of a minimum punishment of seven years in case of offenders under Section 375(1) and ten years which may extend to life for offenders under Section 375(2). Clause two basically deals with the notion of aggravated rape which includes custodial rape, gang rape, rape of a pregnant woman and rape of minor girls under the age of twelve years. • The Evidence Act, 1872 was amended by adding Section 114A. The effect was that the onus of proof regarding consent could be shifted to the accused in case of custodial rape. • By virtue of addition of Section 228A, the disclosure of victims in rape cases was made an offence.