AN ANALYTICAL STUDY OF ANTI - RAPE LAWS IN INDIA: LEGAL FRAMEWORK AND SOCIETAL IMPACT BY - AADYA RASTOGI
AN
ANALYTICAL STUDY OF ANTI – RAPE LAWS IN INDIA: LEGAL FRAMEWORK AND SOCIETAL
IMPACT[1]
AUTHORED BY - AADYA
RASTOGI
ABSTRACT
The insidious act of rape
has become alarmingly prevalent in the contemporary times. With each passing
day, the statistics rise relentlessly, revealing a spectrum of victims that
includes a mere three- months-old infant to a venerable age of 80. Each statistic
represents the threat that has posed over the individuals of all ages. However,
the one constant element in this is the backward mindset of society and the
stigma of shame and loss of reputation that accompany these heinous acts that
continues to veil the victims. This cycle of shame and unsupportiveness often
make the victim feel isolated and surrounded by a blanket of guilt, as society
prioritizes the culture of victim blaming and silence rather than addressing
the atrocious crime itself.
The obstacles do not cease
to this point. When a victim and their family does take a courageous step to
seek justice and approach the judicial system, the authorities themselves act as
substantial impediments. The pronounced inequalities in power dynamics between
the politically powerful and the common citizens are also well portrayed by
cases like the Unnao and Ajmer rape cases.
While the legislature has
acknowledged the growing number of rape cases And has initiated the
implementation of stricter laws, there is still a considerable distance to
cover before victims can attain the justice they deserve.
INTRODUCTION
Rape, as defined under Sec.
375[2],
is the fourth common crime against women, and despite the existing taboo
against the rape of men, one in six men is raped in India. Rape is an evil that
exists in this society and takes place in every few minutes. The victims of this
heinous crime have to deal not only with the physical and psychological trauma
but also with the shame that the society has brought upon them. The male dominated
society regards the female victims as impure, disregards them and treats them
like accused. Moreover, their future generations also face criticism from the
society. Instead of getting support from family and authorities, they get
disrespect, as for the society it is the female’s fault for wearing short
clothes or staying outside late. The girls are taught from a young age to keep their
distance, dress properly while ignoring the fact that it should be the accused
who have gotten educated about respecting women According to the national crime
record bureau, 88 rapes occur on average per day in India. The conviction rate
in India is as low as 27.8%. This indicates that fewer than 28 people out of
100 were found guilty. The punishment for rape in India is either life
imprisonment or imprisonment for more than 7 years with a fine. [3]Are
the Indian authorities and laws stringent enough to reduce this gruesome crime?
An investigation has shown that due to poor investigation by the police and
family pressure on most of the victim, the offence often goes unreported. Only
310 out of 1000 sexual assaults are reported to the police. Research was
conducted by Rainn in which the victims were asked the reason to not report the
case to police. Among them, 13% believed that the police would not do anything
to help them.
The aim of this research
paper is to give a clear understanding of rape and to analyze the anti-rape
laws of India. Anti-rape laws are an essential part of the Indian legal system
yet the issue of sexual assault exists. The objective is to assess the
effectiveness of these laws and evaluate their impact on reducing sexual
violence.
DEFINING
RAPE
It is an unlawful sexual
activity, involving sexual intercourse against the will of victim. The act
maybe carried out by physical force, coercion or abuse of authority
The term rape originates
from the Latin word rapere which means to “to snatch, to grab or to
carry off”
Sec. 375 of Indian penal
code, 1860 defines rape as a man is said to commit “rape” if he –
a.
Penetrates his penis, to any extent, into the vagina, mouth,
urethra or an anus of a woman or makes her to do so with him or any other
person;
b.
Inserts, to any extent, any object or any part of the body,
not being the penis, into the vagina, the urethra or anus of a woman or makes
her to do so with him or any other person;
c.
Manipulates any part of the body of a woman so as to cause
penetration into the vagina, urethra, anus or any part of body of such woman or
makes her to do so with him or any other person;
d.
Applies his mouth to the vagina, anus, urethra of a woman or
makes her to do so with him or any other person,
Under the
circumstances falling under any of the following seven descriptions: -
i.
Against her will
ii.
Without her consent
iii.
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
iv.
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.
v.
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 the act to which she
gives consent.
vi.
With or without her consent, when she is under 18 years of
age.
vii.
When she is unable to communicate consent.
RAPE
IN INDIA
In 2019, one rape was
reported in every 16 minutes on average every day. The national average rape
rate was 4.9%. A total of 32033 cases were registered to the police out of
which 27093 cases were reported by people who were 18 years and above and 4940
cases were reported by minors.
Rajasthan recorded 5997
cases making it the state with most rape cases. While Nagaland, Tamil Nadu and
Bihar had the lowest rape rates.[4]
A survey was conducted by
the human rights watch project, according to which, more than 7,200 minors are
raped each year in India. The victims who report to the police were often
mistreated and suffered humiliation.
REASONS
FOR INCREASED RAPE CASES IN INDIA
1.
There are very fewer female officers. Statically, 161
district police station in Delhi has only one female officer. Women will more
likely report the rape case to a female officer
2.
The Indian society often blames the victim for dressing up
inappropriately
3.
Most families discourage the rape victims to report to the
police because of the shame followed after it. They often times criticize the
victim itself
RAPE
CASES IN INDIA
AJMER RAPE CASE
This case involved serial
rapes and blackmailing of girls by a local gang in Ajmer, Rajasthan in 1992.
The scandal involved new girls A specific group of influential men were
targeting young girls. First, they tapped a girl from Sophia secondary school
and took obscene pictures of her. Then they blackmailed her to introduce her
classmates and friends to them. Eventually the other girls were raped and
sexually exploited.
This scandal was exposed
when the local newspaper dainik navajyoti published some nude images and a
story about school students being blackmailed by a local gang.
When the investigation was
carried, it turned out that the police was already aware of the scandal since a
year but they allowed the politicians to stall the investigations[5]
The main accused Farooq
chistee was president of Ajmer Indian youth congress and therefore the
politicians had stopped this investigation to be carried out further. In 2007,
a fast-track court in Ajmer convicted Farooq, but in 2013, Rajasthan high court
released him on time served
RAJKUMAR SAHU VS STATE OF MADHYA
PRADESH, 2014 [6]
The appellant came to
visit the house of his neighbor and stayed the night. He had consumed alcohol
and a meal at his neighbor’s house and later, asked the eldest daughter to
sleep at a distance from her siblings. Around midnight, he raped her and caused
some grievous injuries and consequently she died.
The accused was convicted
for a minimum of 35 years of jail without remission.[7]
2012 DELHI GANG RAPE CASE [8]
This is also known as the
Nirbhaya case. The incident took place when a 22-year-old girl was beaten, gang
raped and tortured in a private bus.
All the accused were
arrested and charged with murder and sexual assault. The four adult defendants
were found guilty of rape and murder and three days later were sentenced to
death
NEEL KUMAR VS STATE OF
HARYANA[9]
Neel Kumar was alone at
home with his 4-year-old daughter and 2-year-old son while his wife had gone to
her parental home. Later the wife received a call from her brother-in-law
stating that her husband had raped her 4-year-old daughter. She went to take
her daughter but because of panchayats decision she had to leave her son and
daughter in the custody of her husband. The appellant and his family members
did not take the victim to get her injuries wounded and later the appellant
killed his 4-year-old daughter.
The accused was sentenced
to life imprisonment in jail for 30 years without remissions. [10]
EVOLUTION
OF ANTI – RAPE LAWS IN INDIA
CRIMINAL LAW (AMENDMENT)
ACT, 1983
The Mathura rape case[11]
resulted in the formation of new category of rape known as ‘custodial rape’. In
this case, a 16-year-old tribal girl named Mathura was raped in the police
station in 1972.
The sessions court held
that policemen were not guilty of the offence of rape as the girl did not raise
any objections and was habituated with the sexual intercourse.[12]
This judgement led to an upheaval and protests and led to criminal law
(amendment) act, 1983
CRIMINAL LAW (AMENDMENT)
ACT, 2013
The criminal law
(amendment) act, 2013 was the aftermath of the Nirbhaya case or the Delhi gang
rape case. The Nirbhaya case generated international coverage and, public
protests took place and a candle march was carried out.
After 6 days of incident,
a committee of judges was set up to make amendments in the criminal law dealing
with cases of sexual assault. The committee submitted a report that stated
failures on the part of government and police was the major reason for the
crime against women.
This new act incorporated
new offences like harassment, voyeurism, stalking have been incorporated in
Indian penal code.
The sections 326 A and 326
B were also inserted in the IPC that had provisions related to acid attack and
attempt to acid attack.
Section 326 A – voluntarily
causing grievous hurt by use of acid, etc.
Whoever causes permanent
or partial damage or deformity to, body of a person or causes grievous hurt by
throwing acid on or administering acid to that person, or by using any other
means with the intention of causing or with the knowledge that he is likely to
cause such injury or hurt, shall be punished with imprisonment of either
description of a term which shall not be less than ten years but which may
extend to imprisonment for life, and with fine.
Section 326 B – voluntarily
throwing or attempting to throw acid
Whoever throws or attempts
to throw acid on any person or attempts to administer acid to any person, or
attempts to use any other means, with the intention of causing permanent or
partial damage or deformity or burns or maiming or disfigurement or disability
or grievous hurt to that person, shall be punished with imprisonment of either
description for a term which shall not be less than five years but which may
extend to seven years, and shall also be liable to fine.
Section 354 was amended
and section 354A (sexual harassment), 354B (act with intent to
disrobe a women), 354C (voyeurism) and 354D (stalking) was
introduced.
Section 370 of the IPC was
also substituted with new sections, 370 and 370A which deals with trafficking
of person for exploitation.
Substitution of new
sections for sections 375 (rape), 376 (punishment for rape), 376A
(punishment for causing death or resulting in persistent vegetative state of
victim), 376B (sexual intercourse by husband upon his wife during
separation), 376C (sexual intercourse by a person in authority) and
376D (gang rape)
CRIMINAL LAW (AMENDMENT)
ACT, 2018
A report by “Thomas Reuters
foundation” ranked India as the most dangerous country for women due to sexual
violence, human trafficking, child marriage, etc[16].
The kathua rape case [17]which
involved the abduction, gang – rape and murder of an eight-year-old Muslim girl
by six men and a juvenile and the Unnao rape case that involves gang rape of a 17-year-old
girl by a former BJP MLA triggered the public and led to an indispensable needs
for this criminal amendment act.
This amendment introduced
three new sections in the IPC – 376AB (punishment for rape on women under
twelve years of age), 376DA (punishment for gang on women under sixteen
years of age), 376DB (punishment for gang rape on women under twelve
years of age )
PUNISHMENT
FOR RAPE IN INDIA
Section 376 of IPC defines
punishment for rape
1)
Whoever,
except in the cases provided for in sub- section (2), commits rape shall be
punished with rigorous imprisonment of either description for a term which 1 [shall not be less than ten years, but
which may extend to imprisonment for life, and shall also be liable to fine].
2)
Whoever,
(a) being a police officer, commits
rape—
(i) within the limits of the
police station to which such police officer is appointed; or
(ii) in the premises of any
station house; or
(iii) on a woman in such police
officer’s custody or in the custody of a police officer subordinate to such
police officer; or
(b) being a public servant, commits rape on a woman in such public servant’s custody or in the
custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in an area by the Central or a State Government commits
rape in such area; or
(d) being on the management or on the
staff 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 women’s or children’s institution, commits rape on any inmate of such
jail, remand home, place or institution; or
(e) being on the management or on the
staff of a hospital, commits rape on a woman in
that hospital; or
(f) being a relative, guardian or
teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or
sectarian violence; or
(h) commits rape on a woman knowing her
to be pregnant; or
(j) commits rape, on a woman incapable
of giving consent; or
(k) being in a position of control or
dominance over a woman, commits rape
on such woman; or
(l) commits rape on a woman suffering
from mental or physical disability; or
(m) while committing rape causes
grievous bodily harm or maims or disfigures
or endangers the life of a woman; or
(n) commits rape repeatedly on the same
woman,
shall be punished
with rigorous imprisonment for a term which shall not be less than ten years, but which may extend
to imprisonment for life, which shall mean imprisonment
for the remainder of that person’s natural life, and shall also be liable to fine.\
CONCLUSION
Cases of harassment of
women are on the rise in India. Men's attitudes towards women have not changed
much. There are few court cases against such sexual harassment that are not
considered human rights issues. Its victims would rather resign than seek
justice. However, it is extremely difficult for female plaintiffs to succeed in
such cases. There are many difficulties in proving such harassment. It's easy
to justify in the form of direct retaliation.
In the recent times, the
authorities have taken steps to make the rape laws more stringent but forming
and executing are two different scenarios. The poor execution of these laws and
delaying in hearing the cases make the victims hesitant towards approaching the
judicial system. Further, criticizing the victim and blaming them for something
out of their control is a common practice taken up by the society, followed by
the shame and loss of reputation that filing of case would bring to the family.
[1] Aadya Rastogi
[2] IPC, No. 45, Acts of
Parliament, 1860
[3]Debshankar(2021)https://www.lawhousekolkata.com/section-376-indian-penal-code-1860-ipc-punishment-for-rape/ Section
376 Indian Penal Code 1860 (IPC) Punishment for Rape.
[4] Diya Vig (2024) www.jaagrukbharat.com Rape Cases in
India - Statistics & State Wise Cases 2024
[5] Kartik Kanodia( 2024) https://lawfullegal.in/seeking-justice-the-1992-ajmer-rape-scandal-case/
Seeking Justice: The 1992 Ajmer Rape Scandal Case.
[6] 2014 AIR SCW 1795
[7] https://indiankanoon.org/doc/46587735/
(last visited June 30, 2024)
[8] Mukesh and Anrs. Vs NCT
Delhi (Nirbhaya Case)(2017) 6 SCC 1
[9] 2012 268 SC
[10] https://indiankanoon.org/doc/78732952/
(last visited June 30, 2024)
[11] Tukaram and others Vs.
State of Maharashtra, AIR 1979 SC 185
[12] Aishwarya Agrawal
(2024) https://lawbhoomi.com/mathura-rape-case/
Mathura Rape Case [Tukaram and Another vs State of Maharashtra]
[13] IPC, No. 45, Acts of
Parliament, 1860
[14] Ibid.
[16] Akash R.
Goswami(2019) https://blog.ipleaders.in/criminal-law-amendment-act-2018-2/ Criminal Law
Amendment Act, 2018
[17] Mohd. Akhtar vs The
State Of Jammu And Kashmir AIR 2018 SC