www.whiteblacklegal.co.in ISSN: 2581-8503

VOLUME 1: ISSUE 9 ||January 2020 ||

Email: [email protected]

Website: www.whiteblacklegal.co.in

1 www.whiteblacklegal.co.in ISSN: 2581-8503

DISCLAIMER

No part of this publication may be reproduced or copied in any form by any means without prior written permission of Editor-in-chief of White Black Legal – The Law Journal. The Editorial Team of White Black Legal holds the copyright to all articles contributed to this publication. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of White Black Legal. Though all efforts are made to ensure the accuracy and correctness of the information published, White Black Legal shall not be responsible for any errors caused due to oversight or otherwise.

2 www.whiteblacklegal.co.in ISSN: 2581-8503

EDITORIAL TEAM

EDITOR IN CHIEF Name - Mr. Varun Agrawal Consultant || SUMEG FINANCIAL SERVICES PVT.LTD. Phone - +91-9990670288 Email - [email protected]

EDITOR Name - Mr. Anand Agrawal Consultant|| SUMEG FINANCIAL SERVICES PVT.LTD.

EDITOR (HONORARY) Name - Smt Surbhi Mittal Manager || PSU

EDITOR(HONORARY) Name - Mr Praveen Mittal Consultant || United Health Group MNC

EDITOR Name - Smt Sweety Jain Consultant||SUMEG FINANCIAL SERVICES PVT.LTD.

EDITOR Name - Mr. Siddharth Dhawan Core Team Member || Legal Education Awareness Foundation

3 www.whiteblacklegal.co.in ISSN: 2581-8503

ABOUT US

WHITE BLACK LEGAL is an open access, peer-reviewed and refereed journal provide dedicated to express views on topical legal issues, thereby generating a cross current of ideas on emerging matters. This platform shall also ignite the initiative and desire of young law students to contribute in the field of law. The erudite response of legal luminaries shall be solicited to enable readers to explore challenges that lie before law makers, lawyers and the society at large, in the event of the ever changing social, economic and technological scenario.

With this thought, we hereby present to you

WHITE BLACK LEGAL: THE LAW JOURNAL

4 www.whiteblacklegal.co.in ISSN: 2581-8503 2013 AMENDMENT IN RAPE LAWS. A FAILURE?

MEGHA SOLANKI*

ABSTRACT

The world’s largest democracy, witnessed a Gang rape which was not merely an offense against the human body but it was proof of distorting roots of humanity. India’s Brave Daughter, Hypothetically termed ‘NIRBHAYA”, a psychological intern was gang raped in a private bus, beaten and tortured to an extent that metal rods were used for penetration causing grave injury to her genitals, uterus and intestines. NIRBHAYA GANG RAPE1 highlighted the inadequacy of rape laws, the horrific crime triggered a firestorm of protests in India, it called out for rigorous and strong laws to protect women from such inhumane crimes in future while giving justice to the daughter of nation who suffered extreme agony, thereby losing her life two days after the incident. The torment suffered by Nirbhaya become a turnover for Indian laws, the lawmakers redefined rape involving all possible scenarios of rape in the state, from rape by offender in fiduciary relationship with the victim, to rape against the victim in Persistent vegetative state. The punishments for rape become more stringent including death for repetitive rape offenders. Unfortunately the Amendment of 2013 in India penal code 1860 did not fulfill what the lawmakers intended to achieve through the amended legislation. It has been observed that the more comprehensive the rape law became, the more the offense increased in the state.

This research paper is intended to study the aftermath of 2013 Amendment in rape laws, its inadequacy to achieve its desired goals and the reasons why even after the implementation of strong rape laws, rape still continues to be one of the primary concerns of the Indian society, increasing at an anticipated rate. This research reviews the issue of rape through observations, legislations, impact and the response of Indian society to the rape laws.

INTRODUCTION TO RAPE

It is well said that Rape has proved the degradation of humanity and appraisal of brutality in society. Rape an offense can be defined in layman language, as "forceful sexual intercourse

1. Ram Singh & Ors v State of Nct of Delhi, 2013

5 www.whiteblacklegal.co.in ISSN: 2581-8503 without consent of the other person". Indian society has witnessed the offense of rape since the ancient times. Whenever a war was waged in India, women were captured, abducted, raped by the enemies. During the reign of Mughal Empire, women were seen committing mass suicide to save their honor from being distorted at the hands of the enemies.

Traditionally, women were seen being raped with the intention of offender satisfying his sexual pleasure and as war prisoners. But in today’s world it has become as an act of revenge. Traditionally, it was seen that offenders who commit rape have certain motive to do so; it may be rage, dismantling the honor of the family. But now rape is committed as a common offense on the reason of will of the male gender.

Women were also abducted as leverage and raped in order to receive gains in the medieval India.

Rape is the fourth most common offense in India.

CHANGE IN RAPE LAWS AFTER NIRBHAYA GANG RAPE

The whole county was shaken by the incident of Nirbhaya rape case, the citizens demanded appropriate and realistic laws to protect the daughters of the nation. As response to suit the emerging needs of the society, amendments were made by lawmakers extending the connotation of the rape laws to include all possible situations of committal of rape with its stagnant and harsher penalized punishments.

Article 375 of the Indian penal code 1860 was amended, The court observed the suggestion made by petitioners in Sakshi vs union of india and ors 2and it incorporated the same in the amendment, the court recognized all forms of penetration to constitute the offense of rape which included penile/ vaginal penetration ; Penile/ oral penetration; finger/ vaginal; object/ vaginal penetration. Complete penetration was considered as a non essential element to constitute the offense of rape, “mere or slightest penetration of the male organ within the labia majora or the vulva or even an attempt of penetration would be sufficient to constitute the offense of rape3

2. 26 of May, 2004 3. State of Uttar Pradesh v Babulnath 1994 SCC 29

6 www.whiteblacklegal.co.in ISSN: 2581-8503 The amendment regarded consented sexual intercourse with a female below the age of 18 years as an offence of rape. The age of consent for sexual intercourse was increased from 16 year to 18 year.

Also absence of physical resistance to resist the act of penetration shall not be regarded as consenting to the sexual intercourse granting exceptions to medical procedure and sexual intercourse of husband with this wife, the wife not being under fifteen year of age.

Changes in section 376 of the Indian Penal Code 1860, post amendment-

 Forced Sexual intercourse by a man with his wife, under decree of separation was also made a penalized offense with minimum two year of jail term which may extend to seven years.  Section 376 was expanded to penalize rape committed by member of armed force deployed in central or state government area.  Judicial discretion to impose a reduced sentence than minimum prescribed punishment was deleted.  The amendment to section 376 made separate clause to identity rape that resulted into death and persistent vegetative state of victim with death penalty as a punishment.  Section 376C was amended to include rape by individual in fiduciary relationship with the victim or abuse of position of authority to seduce any women in his custody or charge to have sexual intercourse with him.  Section 376 D was introduced to penalize gang rape with higher punishment. Gang rape was defined as rape by “one or more person acting the furtherance of common intention” The section considered each of the offender to have committed the crime of rape penalized with minimal of 20 years imprisonment which may be extended to natural remainder life of the individual.  The amendment introduced section 376 E in the Indian Penal Code 1860, for repetitive offenders. Death penalty and imprisonment for natural remainder life was introduced as penalized punishment without parole.

STATISTICAL INFORMATION ON RAPE

The National Crime Records Bureau (NCRB) is a judicial autonomous body established under the Union Ministry of Home Affairs which is responsible for collecting and analyzing crime data as defined by the Indian Penal Code and special and local laws in the country while the

7 www.whiteblacklegal.co.in ISSN: 2581-8503 mentioned data can be accessed through data.gov in, open government data platform India. The crime data by the National Crime Records Bureau publishes Crime data every two years, the latest data shall by published in the year 2020 is awaited. The crime statistics indicate that since the amendment of 2013, the situation has got worse, not better.

In the year 2013, total convicts of rape were 8818. The top states/Union Territories with highest Rape convicts were Uttar Pradesh, Haryana, Madhya Pradesh, Haryana, , Delhi, Rajasthan, West Bengal, Punjab, Gujarat and Assam 4

Uttar Pradesh had 1612 convicts of rape in 2013, which were 19.8 convicts of total convicts in India. Madhya Pradesh had 1157 convicts of which accounted for 14.13 percent of the total convicts in India. Haryana had 805 convicts of rape which was 9.08 percent of the total convicts in India. Chhattisgarh had 582 convicts while Delhi had 497 convicts of rape in India. The top 5 states accounted 56.63 percent of rape cases in India.

According to statistics of 2018, one rape case is reported every 15 minutes in India with 89 average rapes on daily basis. Women reported 38,000 cases in the year 2018, out of which 87 percent led to charges and 27 percent lead to convictions- according to national crime record bureau (NCRB) while in 2016, the number of rape cases was 38,947. Every fourth victim is a minor while more than 50 percent of the victims fell in age category of 18-30 years, 18 percent above 30 and below 45 years. 2.1 percent in the age group of above 45-605

Among states, Madhya Pradesh reported the highest number of rape cases in 2018 which is 5,433. Followed by 4,335 cases in Rajasthan; Uttar Pradesh reported 3,946 cases.

4. Number of Convicts by the type of IPC offences in the end of the year, 2013 5. National Crime Records Bureau Data, 2018

Maharashtra reported 2,142 rape cases; Chhattisgarh reported 2,091 cases: Kerala reported 1,945 rape cases.

Followed by Assam where 1,648 were reported; the capital of India Delhi reported 1,215 rape cases while Haryana reported 1,296 cases; Jharkhand reported 1,090 and West Bengal reported 1,069 cases. The crime rate was more than 540 in the year 2013, increased to 581 in the year 2014 and almost 582 in 2015. The crime rate dropped by 35 percent to 379.3 in 2016; increasing to 388.6 in 2017 and dipping again in 2018 to 383.5.

8 www.whiteblacklegal.co.in ISSN: 2581-8503 But dipping crime rate must not confuse you. The actual number of crimes has increased by 1.3 per cent, in the year 2018 compared to 2017.

Despite various government campaigns such as “Beti Bachao Beti Padhao” – Educate the daughter, save the daughter – the crime rate per 100,000 women increased to 58.8% in 2018 in comparison with 57.9% in 2017.

REASONS FOR POSSIBLE FAILURE OF 2013 AMENDMENT IN RAPE LAWS

THEORY OF PUNISMENT

Each state has formulated penalized punishment based on its adopted theory of punishment embedded as the basic structure in the law of the land. While Islamic states have been seen following deterrence for punishment under which severe punishments are inflicted upon the offender to abstain him from re-offending, which also could be a lesson for the other members of the state. Some states follow retributive justice based on the Principle “Eye for eye and tooth for tooth” the object of this theory is to subject the convict to the same level of suffering as he inflicted on the victim. Whereas the largest democracy in the world, India follows Reformative theory, as the name suggests, which aims to reform the offenders by individual treatment and transform them into law abiding citizens by education and training.

Though the Reformative theory has been widely accepted by various jurists as it underlines betterment of human kind, the theory has been seen inoperative in the changing scenario of Indian society. The citizens of India as witnessed by brutality of certain offences and its anticipated increase even after increasing the punishment portray zero fear of law. While the theory of punishment may not be required to change for the low scale offences, deterrence must be followed for heinous crimes such as rape.

CAPITAL PUNISHMENT: NEED OF HOUR

India abides by the rule of rarest of rarest cases which states that imprisonment is the rule while death penalty is a exception. The lawmakers intend to give a chance to live to the violators of law by prescribing death penalty in rarest of offences. However, this rule is becoming inadequate to suit the scenario in Indian society. Offenders have been seen not fearing the

9 www.whiteblacklegal.co.in ISSN: 2581-8503 punishment of law as they know that they are less likely to be hanged. There should be absence of mercy in cases where the brutality of rape leads to death of the victim.

BRIBERY AMONG POLICE OFFICIALS

Bribery is one of the main concerns witnessed among the individuals in authority. It is evident that in criminal cases, investigation can make or break the deal. The investigating officer may be bribed by the offender to order to refrain from providing information that may strengthen the charges leveled against him. Necessary steps must be taken to ensure independence in investigation of heinous crimes. Law needs to be effective and the investigating agency needs to be more proficient and efficient.

LACK IN CRIMINAL JUSTICE SYSTEM

After the 2013 amendment in rape laws, the establishments of fast track courts have improved the trails in rape cases. However, the conviction rate for rape is only 27.2%. According to the 2018 report of National Crime Records Bureau; 1, 56,327 cases were on trail, out of these trail was completed for 17,313 cases resulting in conviction in only 4,708 cases. The low conviction rate persists despite of stringent anti- rape laws following the landmark case Ram Singh and others v State of Delhi 2013, popularly known as Nirbhaya gang rape. The low conviction rate shows that the offenders enjoy high levels of impunity, including being freed from charges.

DELAY OF JUSTICE

The large number of cases pending before the Indian judiciary is high in number. It took seven years and rejection of multiple mercy petitions by the Hon’ble President, to serve justice to Nirbhaya. The Nirbhaya gang rape received a huge amount of media coverage; there are hundreds of rape cases in the state which do not evoke this kind of response. The legislator can enact numerous laws, and yet it is fail if there is no appropriate implementation.

EVIDENT RAPE CASES POST 2013 AMENDMENT

 DR. PRIYANKA REDDY GANG RAPE

10 www.whiteblacklegal.co.in ISSN: 2581-8503 A twenty- seven- year old veterinarian Dr Priyanka Reddy was murdered and her body was set on fire after allegedly raping her in Shamshabad neighborhood in Hyderabad6. The veterinarian two- wheeled vehicle was parked outside of Shamshabad toll plaza, punctured. The group of accused men offered help to the doctor, thereby ended up brutally raping and murdering the doctor.

The Telengana police later found out that the gang rape was planned by the accused, the four accused deliberately deflated her scooter tyres and in the pursuits of helping her, gang raped her, asphyxiated her and dumped her body in the motorway underpass, before dousing it with kerosene and setting it alight.

On 6th of December 2019, the four accused were taken to the very bridge where they dumped the remains of the doctor for investigation, the accused allegedly tried to attack the police officials,

6. 27th of November, 2019 which lead to all the accused shot dead in an encounter. The hypothetical name given to the victim was “Disha”; however, her identify is completely revealed by the media.

 KATHUA GANG RAPE

The 7 refers to abduction, rape and murder of an 8 year old, Asifa Bano, in Rasana village near Kathua in Jammu and Kashmir. The victim disappeared for a week before her body was discovered by villagers, a kilometer away from the village. The motive behind this brutal rape and murder was to drive out the muslim community of bakarwals. Sanji Ram, the priest of the Hindu temple where the incident took place was found to be the main accused. His son vishal and his nephew, a juvenile, were also accused in the case.

The priest and the police officer who were also identified as accused are presently life imprisoned for 25 years. Court acquitted vishal due to lack of evidence and the son of priest, was tried at juvenile Court.

 UNNAO RAPE CASE Gang rape of a 17 year old girl in Unnao, Uttar Pradesh on 4th of June 2017 is popularly termed as “Unnao rape case”. The victim visited the house of sengar for seeking assistance in finding

11 www.whiteblacklegal.co.in ISSN: 2581-8503 employment, a member of legislative assembly of Uttar Pradesh, from the Unnao constituency, a member of Bhartiya Janata Party where the victim was allegedly raped.

Days later of the incident, the victim made attempts to immolate herself in front of the residence of shri Yogi Adityanath, Cheif Minister of Uttar Pradesh as no action was taken by the police against the accused.

Much later, in 2018 Father of the victim was placed in judicial custody, where he died due to

7. January, 2018

Severe injuries. The BJP minister was found to be responsible for death of the father of the victim. The minister is convicted with life imprisonment.

However, the threat on the life of victim consistently remained, on 28th July 2019, in truck collusion the victim sustained serious injuries and the other two relatives were found dead.

This incident is one of the numerous incidents where political affiliation is used for dominance.

Shakti mills gang rape is a brutal gang rape incident which took place at Mumbai in the year 2013. It is a horrific incident where a 22 year old photojournalist who was interning with an English language magazine in Mumbai, was gang rape by five people, one of them was a juvenile. The incident took place when the journalist visited shakti mills compound in south of Mumbai, on a consignment. The accused took pictures of the victim thereby threatening her to release pictures if the victim reported the incident.

The Mumbai session court awarded death penalty to three out of five accused for repetitive offenses. Among the other two accused, one was sentenced with life imprisonment and the other was a juvenile who was sentenced period of three years in reform school.

Other terrifying rape incidents that led people question the existence of humanity was barbaric rape of a 15 year old daughter by her father in oddisa's Jajpur district .Also it was later found that the accused was sexual assaulting the minor before the rape incident. June 2019.

12 www.whiteblacklegal.co.in ISSN: 2581-8503

SUGGESTIONS

 The laws in context of rape must be deterrent. Though the theory of reformative punishment seems adequate for lesser offences but harsh situations demand for harsh measures. To combat heinous offences such as rape, capital punishment must be given to the accused.

 Measures must be taken to fulfill the gap between legislation and implementation.

 While combating the increase in rape of women in India, efforts must be made to make rape laws gender neutral. The reciprocal sexual act of women against men must be penalized with same punishment as of rape.

 Awareness rising must be conducted at school level; the youth is indeed the future of the state. If the youth is directed on right path, it may help combating the offences.

 Efforts must be made to ensure Independence and de affiliation of police from external factors such as force of political power, bribery.

 A maximum period of disposing rape offences must be prescribed to the judiciary. This may provide relief to the rape victims by guaranteeing relief within a prescribed period.

 Efforts must be made to ensure public safety of women. The employers must be directed to ensure safety of female workers especially at night.

 The lawmakers to introduce laws to hang rapist between a specified periods after the conviction.

 Steps must be taken to provide training to women employees to protect themselves against forced sex.

 Efforts must be made to reach out to thousands of poor women who cannot report rape cases to the police.  Efforts must be made at educational settings to rip patriarchal values which could help India show some signs of abating rape crises.

13 www.whiteblacklegal.co.in ISSN: 2581-8503 CONCLUSION

While the 2013 amendment in rape laws cannot completely be regarded as a failure. More or less it did not achieve its anticipated goal. Rape is a crime against humanity, increasing with the increase in laws, the present scenario calls for deterrent or retributive measures to combat the brutal crime of rape in India.

The lawmakers and judiciary must take adequate steps to make India free from gender based violence. While strengthening law is the need of hour, irradiation of illiteracy and poverty can help in reduction of rapes in the state.

14