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AN EXTENSIVE STUDY OF RAPE LAWS IN INDIA AND SOCIAL TRANSFORMATION: A COMPARATIVE STUDY
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AN EXTENSIVE STUDY OF RAPE LAWS IN INDIA AND SOCIAL
TRANSFORMATION: A COMPARATIVE STUDY
AUTHORED BY- ANISHA BHAGAT
(Student at Amity University,
Jharkhand, Ranchi)
CO-AUTHOR- OM RAJ ANKIT
(Student at Amity University,
Jharkhand, Ranchi)
ABSTRACT
This
paper provides a theoretical analysis of anti-rape legislation and their
transition from being a criminal against property to a crime against a woman's
bodily integrity. This paper discusses how the Indian Penal Code's anti-rape
laws evolved over time, starting with the Mathura rape case and ending with the
most recent Kathua rape case. It traces its roots back to the English common
law. It goes into great detail about the changes brought about by the 2013 and
2018 criminal law amendment acts. It examines the suggestions put out by the
Justice Verma Committee regarding contentious issues like gender neutrality and
capital punishment, among others. It examines a number of rulings exposing the
misogynistic stance taken by courts that hinder.
I've
organized this paper into six chapters for this reason. An introduction is
covered under Chapter 1. The definition and types of rape are covered in
Chapter 2. I conducted an analytical analysis of rape law in India in chapter
3. Examined the evolution of rape
legislation in India and social change in chapter 4. In chapter 5, examined the
Criminal Law (Amendment) Act of 2013. In the final chapter, I came to a
conclusion.
Keywords: Rape laws, Criminal law amendment act, rape, criminal
law
CHAPTER-1
INTRODUCTION
Even
though rape is one of the worst and most heinous crimes in history, it has
taken a long battle for it to be identified as an offense against the bodily
integrity and sexual freedom of women. Women had no rights and were treated
like mere property for most of history, hence rape is only considered a
crime.
The
concept of rape as a crime underwent a major modification with the passage of
time due to changes in cultural norms and beliefs. The anti-rape laws were
first mentioned in the IPC in 1860. The Indian rape laws have their roots in
English common law. Sir Matthew Hale, a lawyer from the seventeenth century,
described rape as "an accusation readily to be made and hard to prove, and
harder to be defended by the party accused, though never so innocent",
which highlights the prejudiced attitude of colonial courts towards the
victims. Because it was thought that the ladies might be lying, the trial
courts focused more on establishing the victim's innocence than on establishing
the accused's guilt. Focusing on her past sexual relationships or her virginity
was what ultimately decided how the case turned out.
The Criminal Law Amendment
Act of 2013, which not only created numerous new sexual offences but also
toughened fines and penalties in an effort to reduce the incidence of rape, is
compared and critically analyzed in this study. There are more and more
incidents of sexual assaults on women in Indian cities. Though on a Personal
observation: Some provisions really don’t support giving the most comprehensive
care.
The victims of this horrific
act should receive in terms of justice.
CHAPTER-2
RAPE: THE HEINOUS CRIME: AN ANALYSIS
In
this chapter, I will examine what rape is, what it means, and attempt to
understand the many sorts of rape. Rape, in a very broad sense, refers to any
act of violence without the consent of the victim. The Oxford Dictionary
defines rape as "to force somebody to have sex with you when they don't
want to, either by provoking them or resorting to violence"
Rape
is defined in Section 375 of the Indian Penal Code.[1]
In accordance with Indian Penal Code section 375, it is possible to say that :
A man raped a woman under specific circumstances. The following are:
1.
Without
the concern woman's consent (in the time of intercourse)
2.
Without
the concerned women's consent.
3.
If
consent was given, but it was revoked because she was threatened and
intimidated.
4.
If
the girl gives her consent even though the man is well aware that she is not
his wife because she believes he is her legal husband.
5.
If
the girl gives her consent but is inebriated or has a compromised mental state
at the time.
6.
If
a girl is 16 years old, she may be sexually assaulted with or without her
consent.
Any
sexual encounter is regarded as rape if it occurred. In accordance with A.
Nicholas' book "Men Who Raped: The Psychology of the Offender,"
According to the criminal psychology perspective, there are three different
types of rape which are the following:
1.
Anger
rapist
2.
Power
rapist
3.
Sadist
rapist
4.
In
general rape can be categorized into seven categories. Those are following
below:
5.
Date
rape
6.
Gang
rape
7.
Spousal
rape
8.
Rape
of children
9.
Statutory
rape
10.
Prison
rape
11.
War
rape
12.
Rape
by deception
13.
Corrective
rape
CHAPTER-3
RAPE LAWS IN INDIA: AN ANALYTICAL
STUDY
I
shall conduct a thorough analysis of India's rape law in this chapter. The
Indian penal code contains an anti-rape provision. The Indian Penal Code's
Section 375 outlines what constitutes rape. On the other hand, Section 376 of
the Indian Penal Code lists the punishment of rape. According to the
justification provided in section 375 of the Indian Penal Code, It only takes
"penetration" to engage in "sexual intercourse," which is
required for the crime of rape.[2]
In the case of rape, complete penetration is not necessary; "if any part
of the male organ passes the woman's labium of the pudendum, regardless of how
slight, has occurred within, amounts to rape. "The one and only crucial
factor is whether the male organ enters the person of the lady to determine whether
it is rape or not."
In
accordance with current law, it is not crucial that the "hymen" be
ruptured. In the well-known R. V. Furroll case, a youngster who was six years
older was sexually assaulted yet suffered no bodily harm and had no damage to her
private parts. But she developed "gonorrhea" following that incident,
much like the accused. In this instance, it was decided that the defendant had
committed rape. [3]
Therefore,
it is crucial to demonstrate whether or not a particular encounter was raped.
It is not a rape if there is consent. However, it is crucial that consent be
given voluntarily. In contrast to the Indian Contract Act of 1872, the
definition of "free consent" in this context is different.
Misrepresentation is not a necessary component to the application of the
criminal law in cases of rape.
The
stigma of rape has been present in society for a very long time. The definition
of "the ravishing or violation of a woman" in the dictionary is
"rape." Due to biological limitations, a woman who has been raped
cannot perpetrate another rape. After the incident, she is traumatized, and it
is very challenging for a woman to recover from this trauma. In India, rape is
a punishable offense. The several Acts contain numerous provisions. The Indian
Penal Code, 1860 provides a legal definition of rape under section 375. It
outlines the crime of rape as well as its penalty. Anytime a male approaches or
engages in sexual activity with a woman without her knowledge or permission, it
constitutes rape
The
concept behind the term "penetration" in this context is that even
the tiniest amount of interaction involving the penis and the female
reproductive organs qualifies as rape; an intact hymen in a woman does not
necessarily disprove rape. There are exceptions to it as well, such as when a
man engages in sexual activity with his wife who is older than 15 years old.
The Indian Penal Code's rape law has undergone numerous revisions. S. 376(2),
also known as custody rape, S. 376(A), also known as marital rape, and S. 376(B
to D), also known as sexual conduct not amounting to rape, were added as part
of an amendment in 1983.
According
to section 228A of the Indian Penal Code, it is illegal for anyone to reveal
the identity of a rape victim. If they do,
risk receiving one of the two possible, punishments as well as a fine.
A
presumption regarding the absence of consent may be made under section 114-A of
the Indian Evidence Act in some rape proceedings Code of Criminal Procedure,
Section 53(1)[4],
It is legal for a registered physician acting at the request of a police
officer, not below the rank of sub-inspector, and for any person acting in good
faith in his aid and assistance when a person is arrested on a charge of
committing an offense of such a nature and alleged to have been committed under
such circumstances that there are reasonable grounds for believing that an
examination of his person will provide evidence as to the commission of an
offense.
Provisions
for the medical examination of a rape victim are provided by Section 164A of
the Code of Criminal Procedure.
All
rape victims should get an in-camera trial pursuant to Section 327(2) of the
Code of Criminal Procedure.
Due
to the overwhelming workload of the Indian judiciary, decisions in rape cases
are rendered very slowly. Sometimes it arrives so late that one or both people
has already passed away. Since it is true that "Justice delayed is justice
denied," there should be prompt trials in rape cases so that the victim
receives justice.
In
this instance, there are two sides, just like on a coin. Sometimes a girl's
parents force her to register a complaint against the male she loves because
the law is very sympathetic to the girl, but many times girls also file
fictitious complaints in an effort to ruin a boy's life. The accused has
nothing left after the complaint is filed; whether or not he is found guilty,
his life is ruined. Therefore, in my opinion, a change that makes the law
operate properly and equalises the burden of proof for all parties is necessary.
The remark, "Law is there for vigilant," should be directly
contradicted by the phrase in question.
Rape
is a crime that has a terrible impact on the survivors and has been called the
"start of a nightmare." Depression, fear, guilt-complex, suicidal ideation,
decreased sexual interest, etc. are some of the aftershocks. "One becomes
afraid of'... "Half the human race," one victim writes. Regarding the
plight of women in society, Mr. Justice S. Ahmad stated, "Unluckily, a
woman in our nation pertains to a category or subsection in society who are in
an untenable situation due to several social barriers and impediments and have,
therefore, been victims of oppression at the hands of men with whom they,
regrettably, under the Constitution of India "enjoy equivalent status.[5]
Women
also have the right to life, liberty, and treatment as equal citizens, as well
as the right to be respected. They cannot have their honour or dignity
compromised or infringed upon. Additionally, they have the right to live a
moral and tranquil existence. In addition to violating the victim's most prized
fundamental rights, usually the right to life outlined in Article 21, rape is a
crime against basic human rights.
A
rapist damages and defiles the soul of a vulnerable girl, as Justice Arjit
Pasayat noted: "While a murderer destroys the bodily frame of the
victim."
In
the well-known case of Rafiq v. State, Justice Krishna Iyer famously said:
"A murderer destroys the body but a rapist kills the spirit."
SPECIAL
CASES OF RAPE, such as definitions of gang rape and rape committed on a female
under the age of twelve or while the victim is pregnant, Specific (and
occasionally augmented) (and sometimes increased) In some of these situations,
punishment in some of these cases, the defendant is given the burden of proof
instead of the victim. (Indian Penal Code, Section 376, Subsections 2(a)
through 2(g)).
CHAPTER-4
DEVELOPMENT OF RAPE LAWS IN INDIA AND
SOCIAL TRANSFORMATION: AN ANALYSIS
I
will go into the evolution of rape laws in India as well as the societal
upheaval in this chapter. This chapter will begin with the well-known Tukaram
v. State of Maharastra case, also referred to as the "MATHURA RAPE
CASE." This is a good cause to discuss from the standpoint of social
transformation because this is the first instance that led to public outcry,
and as a result of the demonstration, changes have been made to the current
law. In this instance, a 16-year-old girl from a tribal group was involved.
Mathura was sexually assaulted in a police station. Afterwards, Mathura's
family members filed a criminal complaint against the two police officers.
However,
the Indian Supreme Court dismissed this case and provided a justification.
Mathura's body "bared no visible indication of rape," according to
the statement, which explained why the case was dismissed. This decision
results in a massive nationwide movement led by numerous women's organisations.
Four prominent figures in the field of Professors of law objected to this and
sent a letter of open complaint to the Chief Justice of India judgment. In
1983, the criminal code was amended in response to the entire incident.
Therefore,
the 1983 Criminal Law Amendment was created in response to the Mathura Rape
Case.
1. Custodial
rape has been recognized for the first time thanks to the criminal law
amendment of 1983.
2. The rape
trials' closed proceedings.
3. Publication
of victims' names is also prohibited.
Another
well-known instance In this regard, Sakshi v. Union of India is crucial. NGOs called Sakshi filed a public
interest lawsuit to reinterpret the definition of rape. The Supreme Court of
India ordered the Indian commission to address the specific problem brought up
in the petition.
The law
commission of India published its 172 reports on the revision of rape law in
2000 after holding multiple conversations and meetings with Sakshi. [6]
The following list
summarises the 172 Law Commission report:
•
Sexual assault should be used in place of rape.
•
Sexual contact should be considered to be a kind of
penetration in all situations found in Indian Penal Code Section 375.
Section
146 of the Indian Evidence Act was amended in the year 2002. Additionally
important in this sense. This amendment states that it is not permitted that cross-examination
of rape victims that highlighted issues either directly or indirectly
considering the rape victim's moral character as well as any inquiries about
the the victims' prior sexual history.
The
force of the crowd has been felt in India after the Delhi gang rape case in
December 2012. People are starting to protest against this occurrence
throughout India. They battle for justice, a new legislation, and, most
crucially, a safe environment. Although social revolution and modifying the
legislation are very different things. The words "transformation"
literally imply "inspiration, invention, and appropriate execution. I'll
now go over the reasons why rape legislation has to be changed. It serves this
purpose. is significant to note that the National Commission for Women Act was
passed in 1990. In 1992, the panel was established after two years. Since that
time, the national commission for women has been working to recommend and advise
numerous crucial changes to the rape statute in order to improve its
effectiveness.
The
cause is likely our ingrained mentalities, which lead us to believe that rape
is a problem primarily affecting women. Rape, however, is never a female issue.
It is the flaw in our culture and a source of great shame. There are a fixed
number of reserved seats for women in the parliament. There are extremely few
amendments to laws relating to women. So, even though a certain percentage of
seats in Parliament are reserved for women, they should devote a certain amount
of time for discussion and discussion of issues relating to women, such as
strengthening rape legislation. Only then would it be beneficial to our
society.
CHAPTER-5
THE CRIMINAL LAW AMENDMENT ACT, 2013 AND 2018: AN ANALYTICAL
STUDY
People
began protesting following the Delhi Gang Rape crime, and many public
protection actions were taken. It becomes the nation's most urgent issue.
People join this demonstration from all throughout India, both physically and
digitally. Several people speak out against this occurrence on numerous social
media platforms. They only seek a safer and better nation for women. These
Protests are not just limited to our nation but also have an international
reach. It turns into the breaking news from across the globe. Following that,
the UN organisation for gender equality and Women's empowerment representatives
met with the Indian government and the Delhi government will take all necessary
measures to ensure the safety of women.
The
government then creates a committee to provide recommendations for both legal
changes and additional measures to end sexual violence. Justice Verma serves as
the chair of this committee. More than 80,000 recommendations are sent to the
justice Verma committee from all across the world. The committee's primary
goals are to develop a strict anti-rape law and to promote a safer society.
Justice Verma's report was
submitted after 29 days. In addition to calling for a stronger and better
anti-rape law the committee attempts to determine why it is happening. The
Justice Verma committee's report made several critical recommendations that can
contribute significantly to gender equality and societal change in addition to
calling for stricter laws against crimes against women. There are various items
in it, including the following described below:
·
Policing changes
·
Reforms in education
·
Boys receive special training.
·
Special training for law enforcement personnel
working in the criminal justice system
·
Opening of rape crisis centres
Finally,
the bill was approved by both the Lok Sabha and the Rajya Sabha on March 19 and
21, 2013, respectively. The president gave the law his assent on April 2, 2013.
The phrase "sexual assault" has been changed back to rape under this
new law. The criminal (amendment) act of 2013 states that marital rape is not
considered to be rape. Several legal experts, women's organisations, and NGOs
have criticised this.
THE CRIMINAL LAW AMENDMENT ACT, 2018
The
Indian Evidence Act of 1872, the Code of Criminal Procedure of 1973, and the
Protection of Children from Sexual Offences Act of 2012 all underwent revisions
as a result of the Criminal Amendment Act of 2018.
Sections
166A, 228A, and 376 of the IPC were revised, and three new sections, 376AB,
376DA, and 376DB, were added. The term of punishment for rape has been
increased in sub-section 1 of section 376 to include a fine in addition to an
imprisonment term of a minimum of ten years with a potential life sentence. [7]
The
addition of sub-section 3 further specifies the punishment for rape of a woman
under the age of sixteen, which includes strict imprisonment for a term that
must not be less than twenty years but may extend to life in prison and is also
punishable by a fine.
In
cases where a woman who is raped is under the age of 12, section 376AB has been
added after section 376A, which calls for strict imprisonment for a term of not
less than twenty years, but which may extend to life imprisonment, with a fine,
or with death.
A
woman under the age of sixteen who is raped by one or more individuals who form
a group or who act in support of a common goal is punishable by life in prison
and a fine under Section 376DA, which was added after Section 376D and deals
with the punishment for gang rape. According to Section 376 DB, each of those
responsible for a gang rape of a lady under the age of twelve shall be punished
with life imprisonment, a fine, or death.
CONCLUSION
We
can conclude from the above study that law is meaningless without correct
implication. For this reason, police reforms are crucial in putting an end to
violence against women. Police reforms are also required because rape victims
typically go to the police in the majority of cases. It's important to alter
people's mindsets and provide them with the right training for handling such a
delicate circumstance. Boys should also
need education starting in the elementary grades. They ought to receive
instruction on how to respect women. The most important thing to do in order to
eradicate rape from our culture in the future is to eliminate gender bias.
Nevertheless, we should speak up whenever we discover an injustice against
women because social transformation begin with us, since we are society and
power, and since we have seen in the past that our voice can make a
distinction.
Article Information
AN EXTENSIVE STUDY OF RAPE LAWS IN INDIA AND SOCIAL TRANSFORMATION: A COMPARATIVE STUDY
Authors: ANISHA BHAGAT, OM RAJ ANKIT
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/08
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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