According to Section 375 of the Indian Penal Code, 1860:
A man is said to commit “rape” who has sexual intercourse with a woman under circumstances mentioned by the law.
Further, the sections dealing with the same are 376, 376A, 376B, 376C and 376D of the Indian Penal Code, 1860.
According to Merriam-Webster Dictionary, ‘Rape’ means unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person's will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception.
Rape in India is a cognizable offence. There has been a conscious development in the rape laws over the time. Although, there are a few issues yet to be taken care of and a few biases to get rid of. Further, it is just the few cases that make it to the national limelight and ensuing it, also get a quick judicial process or just a completed one with some luck. This is a harsh reality pertaining in the country and an expedited verdict for the cases is the need of the hour.
Development in Rape Laws:
‘Rape’ as an offence was initially introduced in the Indian Penal Code, 1860. Although, prior to this, there were a number of contradictory laws prevailing across India. The codification of the laws in India commenced with the enactment of the Charter Act, 1833 by the British Parliament which consequently led to the establishment of the first Law Commission under the chairmanship of Lord Macaulay.
Further in 1972, a young tribal (Adivasi) girl named Mathura was allegedly raped by a few policemen in the Desai Gunj Police Station in Maharashtra. When the case was heard in the sessions court, they passed a verdict confirming the sexual intercourse while at the police station, but not amounting to rape since it couldn’t be proven. While the sessions court held the two policemen not guilty, the High Court reversed their order. Although, when the case reached the apex court, it held that, “the intercourse in question is not proved to amount rape.”
It led to the Criminal Law (Second Amendment) Act of 1983. Section 114A was introduced in the Indian Evidence Act of 1872 which presumed that there was absence of consent in certain cases if the survivor says so and this applied to custodial rape cases. Section 228A was inserted in the Indian Penal Code, 1860, which made social victimization or disclosing the identity of the victim/survivor an offence.
A) How the Nirbhaya Case changed the Indian Laws:
On 16th December 2012, a 23-year-old medical student was gang raped and murdered in a fatal assault that occurred in Munirka, South Delhi.
Further, on 21st March 2013, the laws pertaining to rape stood amendments. The new laws were tougher – Criminal Law (Amendment) Act, 2013 for the punishment of sex offences and crimes with stringent punishments. The amendments pertained to the Indian Penal Code, Indian Evidence Act and Code of Criminal Procedure on laws regarding sexual offences.
Changes in law –
(a) Section 370 of the Indian Penal Code, 1860 has been replaced with new Sections 370 and 370A which deals with trafficking of persons for exploitation.
(b) The definition of ‘rape’ in the Indian Penal Code, 1860 was broadened and changed.
(c) Section 376A was added pertaining to the offence of sexual assault.
(d) Certain changes were made in the Criminal Procedure Code, 1973 and Indian Evidence Act, 1872 where the process of recording the statement of the victim has been made more victim friendly and easy but the two critical changes are:
1. The 'character of the victim' is now rendered irrelevant, and
2. There is now a presumption of 'no consent' in a case where sexual intercourse is proved and the victim states in the court that she did not consent.
(e) The age of consent was changed for women by raising it to 18.
(f) The Juvenile laws were also amended: rapists between 16-18 were now treated as adults.
Further, the government also launched the Rs. 2000 crore Nirbhaya Fund to support sexual assault victims. Moreover, 400 fast-track courts were also established to handle rape cases.
Rape Laws as Gender Biased:
The current rape laws do not consider male as a victim of rape and automatically assume them to be the perpetrator. There have been numerous cases in India pertaining to the rape of a male person, although the case is always registered under Section 377, which deals with unnatural sex.
Further, in the case of Priya Patel v. State of M.P., the court observed that the idea of a female raping a female doesn’t hold a ground since there is no penile-vaginal intercourse between them. This ground can be considered flawed since as there is certain empirical evidence which supports the contention of female on female rape. A survey was conducted by the Centre for Disease Control and Prevention which observed that out of 43.8% lesbians who were accounted as victims of sexual assault, 67.4% reported females as perpetrators.
(A) GUILTY UNTIL PROVEN INNOCENT?
In the cases pertaining to sexual offences, once the victim alleges the lack of consent, the onus is entirely on the accused to prove that the statutory presumption is false.
(B) MAYBE IS THE NEW YES?
Although, in the case of Mahmood Farooqui (Director of Peepli Live), he was accused of rape and later acquitted by the Delhi High Court. One of the grounds for the acquittal was that the negation of consent was not clear and the person who alleged the rape merely made attempts to resist ‘feebly’. The only distinction between sexual intercourse and rape is consent. In the verdict, the implication of the word ‘consent’ has been undermined or weakened, indicating that a woman while being subjected to sexual assault has to say no in clear words and any hesitation on that front would imply her consent to the act.
PUNISHMENT FOR MISUSE OF RAPE LAWS:
If the prosecution is seen to abuse or misuse the process of law, he/she would be liable under Section 182 of the Indian Penal Code, 1860 and other relevant provisions of the law. Section 182 deals with false information with the intent to cause a public servant to use his lawful power to the injury of another person.)
Gender-neutral rape laws are necessary for the purpose of dwelling in an egalitarian society. One can say that gender is in fact central to the understanding of how and why sexual violence takes place. The plight of our current rape laws will forever be a hindrance in delivering justice in its true sense. One has to start with making the roots stronger or the term ‘rape’ will always be a prefix to culture. Unless we amend the laws, we’ll keep protesting for the Nirbhayas of this country. Article 15(3) of the Constitution of India, 1950 states the necessity for making special provisions for women and children in the law and nothing shall stop the state from doing the same. Although, this does not refrain the government from protecting the male section of the society, the unfulfillment of which would mean a gross failure of state’s obligations to provide equal protection of law to every citizen of this country.
Authored by - Isha Shah
College - SVKM’s Pravin Gandhi College of Law