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Capital punishment for rape

December 30, 2022

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The article is written by Tushar Singh Samota, a law student from University Five Year Law College, Rajasthan University. The concept of Section 375 of the Indian Penal Code, 1860 is discussed in this article. The conversation will be bolstered by discussing the provision of capital punishment for rape, as well as its related judicial decisions.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Rape is derived from the Latin term rapio, which implies forced seizing. Rape is a type of sexual assault that involves sexual intercourse with another person without his or her permission. It is one of the most severe crimes against an individual that affects society. It is a heinous crime that brings shame to the entire human species. Rape is a violation of the victim’s fundamental rights, as it violates Article 21 of the Indian Constitution. Apart from this, it violates the victim’s body, mind, and privacy, as it is the most ethically and physically repugnant crime in society.

In India, rape is the fourth leading crime against women. According to the National Crimes Records Bureau’s (NCRB) 2021 annual report, 31,677 rape cases were filed in India in the year 2021, or around 87 rape crimes each day on average were recorded. Among this data, Rajasthan has the largest number of rape cases in the country, followed by Madhya Pradesh and Uttar Pradesh. Since a substantial number of incidents go unreported in India, the country has been labelled as having one of the lowest per capita rates of rape recorded. India’s predicament is worrisome. For the same reason, India has been labelled as the most hazardous country for women. However, in recent years, there has been an increase in the willingness to report rape crimes since multiple episodes of rape have gained considerable media exposure and have sparked public outrage, finally leading to the Government of India amending the rape laws.

The Nirbhaya Case broadened the definition of rape by including penetration in any region of a woman’s body. The author attempts to discuss Section 375 of the Indian Penal Code, 1860 by examining its objectives and essentials in this article. The article will also discuss capital punishment for rape by going over all of its punishment provisions.

What is Section 375

Section 375 of the IPC,1860 amended by the Act of 2013 defines rape as follows: A man is considered to commit ‘rape’ if he,

Penetrates his penis to any extent into a woman’s vagina, mouth, urethra, or anus, or induces her to do so with him or any other person; or
Inserts, to whatever extent, any item or portion of the body other than the penis into a woman’s vagina, urethra, or anus or forces her to do so with him or another person; or
Manipulates any portion of a woman’s body to produce penetration into the vagina, urethra, anus, or any other part of her body, or forces her to do so with him or another person; or
Places his mouth near a woman’s vagina, anus, or urethra or forces her to do so with him or another person when the situation fits any of the following seven definitions:

Against her wishes.
Without her permission
With her permission, when her consent has been gained by putting her or anyone in her care in danger of death or injury
With her permission, when the man is aware that he is not her husband and her permission is provided because she believes he is another man to whom she is or considers herself to be lawfully married.
With her permission where, at the time of giving such consent, she is unable to grasp the nature and consequences of that to which she consents due to unsoundness of mind or drunkenness or the administration by him directly or via another of any stupefying or unwholesome substance.
With or without her consent while she is under the age of eighteen.
When she is unable to express permission.

Explanation I: The vagina includes the labia majora in this part.

Explanation 2: Consent is defined as an unequivocal voluntary agreement when a woman signals her intent to participate in a certain sexual act using words, gestures, or any other kind of verbal or nonverbal communication with the proviso that a woman who does not physically reject the act of penetration should not be considered to have consented to the sexual activity merely because she does not physically oppose it.

Following the Delhi Gang Rape case in 2012, various laws were altered, including raising the consent age from 16 to 18. Even the concept of rape has been enlarged; presently, penetration entails penetration to any extent, according to this provision. For rape cases, the government has also developed a fast-track judicial system.

Fast-track judicial system

Fast track courts (FTCs) were initially proposed by the Eleventh Finance Commission in 2000, with the goal of significantly reducing, if not eliminating, pendency in the district and subordinate courts during the following five years. The Centre provided Rs 502.90 crore in response to the Finance Commission’s report to establish 1,734 more courts in various states over a five-year period. Later that year, the central government discontinued funding for fast-track courts. This decision of the government was challenged in the Supreme Court in 2011, but the Apex court stated that it was up to the states to keep or close these courts based on their financial circumstances.

Following the gang rape and murder in December 2012, the Union government established the ‘Nirbhaya Fund,’ revised the Juvenile Justice Act (2015), and established fast-track Mahila Courts. In 2019, the government authorised a proposal to establish 1,023 fast-track special courts (FTSCs) around the country to expedite the resolution of ongoing rape cases under the Indian Penal Code (IPC) and offences under the Protection of Children from Sexual Offences Act (2012). FTSCs are specialised courts that are meant to deliver justice quickly. They have a superior clearing rate as compared to ordinary courts and hold fast trials. It also increases the foundation for deterrents for sexual offenders.

Section 375 exceptions

The Indian Penal Code, 1860, contains two exception clauses, the first of which states that performing a medical procedure or intervention does not constitute rape and the second exception states that engaging in sexual activity with one’s wife who is not under the age of eighteen does not constitute rape.

The Indian Penal Code, 1860 was amended later to raise the age requirement from 15 to 18 years. In Independent Thought v. Union of India (2017), the Supreme Court decided that having sex with a girl under the age of 18 constituted rape, regardless of whether or not she is married. According to the Court, Exception 2 creates an unnecessary and artificial distinction between married and unmarried female children and has no reasonable connection to any specific aim sought.

This arbitrary difference violates both Article 15(3) and Article 21 of the Constitution’s spirit and ethos. It also contradicts the concept behind various laws, such as the female child’s physical integrity and reproductive choice.

The objective of this Section 375

Section 375 of the IPC discusses rape and related activities if committed by a man, which can subject him to punishment under Section 376 of the IPC. Section 375 was in the IPC at the time of its introduction, but its scope was expanded following the Criminal Law Amendment of 2013. Previously, penetration of the penis into a woman’s vagina, urethra, anus, or mouth was deemed rape. However, it is now deemed rape whenever a male enters any instrument or other part of his body into a woman’s vagina, urethra, anus, or mouth. The goal of Section 375 of the IPC may be understood by Justice Krishna Iyer’s statements in the case of Rafiq v. State of UP (1980) when he stated that a murderer destroys the body of a victim, but a rapist kills the spirit. As a result, rape is a more terrible crime against humanity than murder. Section 375 is critical in bringing justice to the women who have been robbed of their souls by those offenders.

Essentials of this Section

To hold a person guilty of Section 375, the following essentials are required:

Acts have been done against her will

If someone does an act that is against the woman’s will, then that person will be held liable for rape as held in the case of Himachal Pradesh v. Mango Ram (2000). The Supreme Court in this case ruled that the girl attempted to oppose the accused from doing the act, but the accused overcame her, and the act was conducted against the victim’s will, making the accused accountable for rape.

The act was committed without her permission

According to Section 375(2), engaging in sexual activity against the women’s will constitutes the crime of rape. If the consent is not given voluntarily, the other party may be held criminally liable as held in the case of The Queen v. Flattery (1877). In this instance, the girl was in poor condition and went to the accused’s clinic, where she was recommended to have surgery, which she accepted. During the operation, the accused had sexual relations with the girl. The court ruled that the consent was invalid and acquired via mistake. As a result, the accused was charged with rape.

Consent gained by deception, fraud, or mistake

If consent is acquired during sexual interaction with a woman by deception, fraud, or mistake, such consent won’t be considered legitimate, and the accused may still be held accountable for the rape offence. In the case of Chandigarh Union Territory v. Bhupender Singh (2008), the prosecutrix and the accused engaged in sexual activity, which caused the prosecutrix to get pregnant and have an abortion. Later, she learned that the defendant was already married and had children and that during the encounter, he had broken his pledge. She filed a lawsuit against the defendant. The court ruled that because the accused had sexual intercourse with the victim while under the influence of deception or fraud, the victim’s consent was invalid, and the accused was found accountable under Section 375.

Consent was gained when the subject was inebriated, drunk, or under the influence of drugs or alcohol

Consent received when unwell and intoxicated cannot be considered legitimate consent under this Section as held in the case of Mahmood Farooqui v. State (Govt. of NCT of Delhi), 2017.

Consent gained by threatening a person of interest with death is not legitimate consent

If a woman’s interested person, such as her children, parents, or spouse, is threatened with death and her consent is gained in such a scenario, it cannot be considered genuine consent as held in the case of Prakash v. State of Maharashtra (1992). In this case, the police officer and a businessman detained the husband of the victim, where her consent was obtained to have sexual intercourse. The court ruled that permission obtained by the woman is not valid if a person of her interest is threatened with harm or death. As a result, the police officer and the businessman were held responsible for the offence.

Females under the age of eighteen, with or without her consent

Sexual intercourse with a woman, with or without her consent, while she is under the age of 18 constitutes rape. A woman under the age of 18 is deemed incapable of consenting to sexual intercourse. The Criminal Law (Amendment) Act of 2013 raised the consent age from 16 to 18.

In the case of Harpal Singh & others v. State of Himachal Pradesh (1980), the prosecutor, a little girl under the age of 16, was sent by her mother to see her sick aunt in the village. While she was leaving, the accused approached her and informed her that her brother was ill at the clinic. She raced after him, and he along with two others locked her in a room. Following that, they had sexual relations with her against her consent. She was later rescued by her family, who chose to remain silent. The incident was later reported in a newspaper, and the police launched an investigation. The accused said that the girl was used to sexual intercourse and consented to it.

The Supreme Court found sufficient evidence to indicate that she was under the age of 16 at the time of the sexual encounter, and so her consent was invalid. Thus, Section 376 of the Indian Penal Code was invoked to charge the accused with rape.

Females who are unable to articulate consent

In the case of Tulsidas Kanolkar v. Goa State (2003), the victim was mentally ill. The accused took advantage of her mental state and engaged in sexual relations with her. No one knew about it until the victim’s family discovered she was pregnant. When asked who had taken advantage of her, she pointed the finger at the accused. The case was brought against him, and he pleaded guilty by consent in the form of acquiescence to the conduct. It was determined that the accused took advantage of the patient’s mental disability and helplessness.

In such a case, there is no need for consent because a mentally challenged girl cannot offer consent, and submitting does not indicate permission, which can be owing to fear, tainted by coercion, or impaired due to mental impairment. The culprit was sentenced to ten years in jail and fined Rs. ten thousand.

The Committee and Amendment

The Indian Criminal Law (Amendment) Act, 2013, also referred to as the Nirbhaya Act, was passed by the Lok Sabha on March 19, 2013, and the Rajya Sabha on March 21, 2013. It modifies the Indian Penal Code (1860), Indian Evidence Act (1872), and Code of Criminal Procedure (1973) regarding laws relating to sexual offences. The Bill was approved by the President on April 2, 2013, and it became effective on April 3, 2013. Millions of Indians who had earnestly wished for progressive and comprehensive regulations on sexual offences have had their aspirations shattered by the Act’s implementation. While the Act enacted certain much-needed remedies, it overlooked several others.

The Bill was signed into law by India’s President, Pranab Mukherjee, in response to the protests in the Nirbhaya rape case in 2012. Following the occurrence, there was widespread public outrage, with thousands taking to the streets to protest the state’s indifference to sexual crimes and asking that improvements be made to current legislation. In reaction to the gang rape, on December 24th, 2012, a Verma Committee was formed, chaired by Justice (Retired) J.S. Verma, former Chief Justice of India. This Committee was established to review the legislation about sexual assault against women. Gopal Subramanium, a former solicitor general, and retired Judge Leila Seth made up the other two members of the committee. Within a fortnight, it collected over 70,000 answers from the general public and produced its report in less than a month. Several suggestions were made by the Committee.

Following that, certain changes were made to Section 375 of the Act to provide stricter penalties for sexual crimes and to define sexual assault. Additionally, the provision makes it clear that the term ‘penetration‘ refers to ‘penetration to whatever extent‘ and that physical resistance is irrelevant to determining whether a sexual assault has occurred. Except in very extreme circumstances, the penalty is incarceration for a minimum of seven years, with the possibility of life imprisonment, as well as a fine. When circumstances are severe, the penalty is strict imprisonment for a time that must not be less than 10 years but may go as far as life imprisonment, as well as being subject to a fine.

Amendments made to Section 376 following the 2012 Delhi gang rape case

Following a horrific gang rape of a girl in Delhi in 2012, the Verma Committee was created, and its recommendations resulted in substantial rape legislation revisions. Some proposals were made like introducing marital rape and not needing sanction for the prosecution of armed personnel. However, the law altered in the following areas:

The Act was amended to include Section 114A of the Indian Evidence Act, 1872, which stipulates that it is necessary for the victim of a sexual offence to indicate before the court in her testimony that she did not consent to the sexual intercourse in order to infer the absence of consent in the case.
Prohibiting queries regarding the victim’s past sexual experience or immoral character during cross-examination.
Ignoring the question of prior sexual experience, and
Other procedural issues in the Code of Criminal Procedure, 1973, about an investigation by female police officers, video recording of statements before magistrates, the time limit for completing an inquiry, the need for trial procedures in camera, and so on.

The Kathua Rape Case and the Criminal Law (Amendment) Act of 2018

The Criminal Law (Amendment) Act, 2018, revised Chapter XVI of the Indian Penal Code, 1860, to establish stiffer punishments for rapists, particularly those targeting girls aged 12 to 16 years. This was done in reaction to widespread indignation over the alleged gang rape and murder of an eight-year-old girl in Rasana hamlet near Kathua, Jammu & Kashmir in the case of Mohd. Akhtar v. The State Of Jammu And Kashmir (2018), also known as the Kathua rape case. With the advent of this amendment following changes were introduced:

Rape against a woman under the age of 12 now carries a fine and/or rigorous imprisonment for 20 years or life imprisonment or death.
Gang raping a minor under 12 is now punishable with a life sentence in prison, a fine, or death.
Rape of a woman under the age of sixteen is punishable by up to 20 years in jail or life imprisonment.
The individual will be imprisoned for the rest of his or her natural life if awarded life imprisonment.
For the rape of a female above the age of 16, the minimum punishment is ten years in jail.

Requirements for establishing guilt in rape cases

The victim must go through a protracted investigative procedure and submit to several tests to establish the defendant’s guilt of rape. The procedure is complicated. However, it is crucial to establish the rapist’s guilt. The methods used to gather, evaluate, and use to establish the guilt of rapists are as follows.

Investigation and assessment of the attacker

No one should reveal the name or other information that might reveal the identity of any individual against whom a rape violation has been committed vide Section 228A of the Indian Penal Code. Anyone who divulges the identification will be penalised with either type of jail for a duration that may last up to two years and will also be subject to a fine.

In addition, Section 53 of the Criminal Procedure Code mandates that any examination of the female must be performed by or under the direct supervision of a registered female medical professional exclusively. As a result, these considerations should be kept in mind when conducting an investigation.

Tests for establishing guilt in rape cases

In rape cases, a comprehensive examination of the evidence collected from the scene of the occurrence, as well as medical testing, must be undertaken to convict the rapist. The methods are as follows:

The filing of an FIR

It is one of the most crucial measures in showing guilt. To begin the criminal justice process, an FIR must be filed at the local police station.

The location, date, and time of the offence

The victim must provide the female officer with complete information about the location, date, and time of the offence.

The victim’s mental condition

Before taking the victim’s statement, the female medical professional should assess her mental health, determine whether she is in a healthy frame of mind to speak freely, and determine whether she has any physical injuries.

Victim’s statement

The victim must provide all information necessary to prosecute the rapist, including details on how the rape occurred if the victim was related to the rapist, and other pertinent information.

The victim’s consent

As the entire case hinges on a woman’s consent, this is one of the most critical and crucial parts of any rape case. The woman must reveal whether she gave permission voluntarily or under duress, such as a death threat. In Tulsidas Kanolkar’s case, the victim was mentally ill, and the accused raped her. As a result, the Court concluded that the accused took advantage of her mental state. Section 375 of the Indian Penal Code clearly states that permission gained owing to mental illness/unsoundness of mind is not consent. It equates to rape.

Victim’s age

Determining the victim’s age is crucial because rape occurs when a husband rapes his wife if she is under 15 years old. The husband is not permitted to engage in sexual activity with his wife if she is under the age of fifteen. If the woman is younger than 18, it is also considered rape, whether permission was given or not. Asifa Bano, an 8-year-old girl from Kathua, was gang raped by some of the men in the Kathua Rape Case. The Court ruled in this instance that it was a clear case of rape since it makes no difference whether the girl consented or not because sexual intercourse with a woman under the age of 18 constitutes rape.

An eyewitness account

Another crucial part of the inquiry is the testimony of any eyewitnesses. As a result of the testimony, it is easier to determine whether or not rape occurred.

Medical Exam

Following the filing of an FIR, witnesses are medically examined for evidentiary purposes. This examination aids in determining whether the claimed accused committed the rape or not.

Examined clothing

The victim’s clothes are often collected and submitted for forensic examination to detect traces of DNA and identify the accused. The presence of sperm marks on the garments is a significant factor in determining the rapist’s guilt. Furthermore, the garments are examined to see whether there are any blood or saliva markings on them.

Fingernail sanding

The collecting of fingernail scrapings is also significant in determining the rapist’s guilt since it may leave behind foreign DNA or fibres under the victim’s fingernails.

Physical harm to the body

The injuries on the body assist in grasping the intensity of the violence committed and the force used on the victim, etc. The victim in Mukesh & Anr v. State for NCT of Delhi & Ors (2017), was gravely hurt. The doctor examined her after the rod was placed in her private areas and discovered that just 5% of her intestines were still inside of her. Therefore, it was clear from the injuries that she had been raped.

Sighting of items

At this stage items such as clothing, footwear, carpets, pillows, hair, saliva, semen stains, etc. are sent to a lab for analysis and DNA testing.

Two-finger rule

It is a test to determine the laxity of the vaginal muscles and whether or not the hymen is stretchable. It is a test in which the doctor inserts two fingers into the victim’s vagina to determine whether or not intercourse has occurred and whether or not she is sexually active. However, in the case of Lillu v. the State of Haryana (2013), this test was found to be illegal and a violation of her privacy, bodily and mental integrity, and dignity. As a result, it is not performed in India.

As a result, these are some of the requirements for proving culpability in rape cases in India.

Punishment

Section 376 establishes penalties for the crime of rape. The Criminal Law Amendment Act of 1983 significantly modified this clause. While subsection (1) deals with the rape penalty, subsection (2) deals with unique cases in which rape has been committed but in a more severe manner.

Subsection 1 of Section 376 specifies that anybody who commits rape will be sentenced to harsh imprisonment for a minimum of seven years and a maximum of life imprisonment, as well as a fine. Whereas subsection 2 as previously stated, deals with 14 different types of rape scenarios. Whoever commits rape in these circumstances will be sentenced to a minimum of ten years in jail and a maximum of life imprisonment. The following scenarios have been identified where rape is perpetrated:

Police officer: When a police officer rapes a woman while she is in his custody, the custody of another police officer under his command, or inside the boundaries of the police station to which he has been assigned.
Public servant: When a public servant rapes a woman in his care or the custody of a public servant subordinate to him.
Armed forces: When a member of the armed forces commits rape while deployed.
A member of the jail’s management or personnel.
A member of the hospital’s management or personnel.
Individuals in a position of power, control, or domination.
The victim’s relative, guardian, or instructor.
Engages in rape during community conflict.
Harasses a pregnant woman.
Commits rape on a woman under the age of 16.
Commits rape on a woman who is unable to agree.
Repeatedly rapes the same woman.

Penalties for resulting in death or a vegetative state

If a person violates a law that is punishable under Section 376’s subsection (1) or subsection (2) and inflicts harm on a woman during the violation, and thus results in her demise or puts the woman in an ongoing vegetative state, then that person is subject to punishment under Section 376A.

In the aforementioned situations, he will be subject to a penalty that includes strict incarceration for at least 20 years and life imprisonment. Under this provision, ‘life imprisonment’ means confinement for the balance of the offender’s natural life. As it is a cognizable, non-bailable, and non-compoundable offence, the Court of Sessions will try the case.

Sexual harassment during separation by husband

When a husband has sex with his wife when they are separated, whether by a divorce judgment or not, Section 376B lays out the consequences. The following elements need to be present for this Section to be applicable:

The woman shall not reside with her husband;
They must be separated by a court order or by legal means;
The husband must have engaged in sexual activity;
It must have occurred without her permission.

Thus Section 375 defines sexual intercourse as any of the behaviours listed in clauses (a) to (d). The punishment offered for this Section is as follows:

A person found guilty by this provision faces a sentence of imprisonment that must not be less than 2 years and may not exceed 7 years, as well as a fine. The fine must be accepted accordingly. Since it is a cognizable offence but only upon the victim’s complaint thus, it is non-bailable and non-compoundable. The Court of Sessions will hear this matter.

Sexual intercourse by an authority figure

By this Section 376C, anybody who is:

In a position of authority or
In a fiduciary relationship; or
Being employed by the government serving as a superintendent or
Manager of a jail, remand facility, or other facility used for detention; or
Managing or working for a hospital;

exploits his position by trying to persuade or entice any woman who is in his care, under his supervision, or present on the premises to engage in sexual activity with her, even if rape is not involved, he faces a prison sentence of at least five years and up to 10 years, as well as a fine. In this section, sexual intercourse refers to any of the behaviours listed in Section 375’s clauses (a) through (d).

In this section’s explanation, labia majora is included in the term ‘vagina’. For this Section, when referring to a jail, remand home, another place of confinement, or a women’s or children’s institution, ‘superintendent’ includes anybody who has power or influence over the inmates and finally the terms ‘hospital’ and ‘women’s or children’s institution’ have the same meaning as in Explanation to sub-section (2) of Section 376.

This provision is cognizable, non-bailable, non-compoundable, and triable in the Court of Sessions. The term ‘custody’ under Section 376C implies guardianship that must be legal. It must occur as a result of some laws or custody granted by a court of law or otherwise. Furthermore, it was determined that intercourse must take place in a location where the woman was detained to be covered by this clause. Because the intercourse did not take place within the confines of the school, the requirements of this Section are not met.

Gang rape

Section 376D outlines the penalties for gang rape. If a woman is raped by one or more individuals constituting a group acting in furtherance of a common aim, each of those persons is judged to have committed the rape offence. It is cognizable, non-bailable, non-compoundable, and triable before the Court of Sessions.

The punishment for this offence is as follows: anyone found guilty of an offence under this provision will face a sentence of at least 20 years in prison, with the possibility of life imprisonment. The term ‘life imprisonment’ refers to confinement for the rest of a person’s natural life. A fine will also be imposed on him.

The proviso of this Section states that the fine levied must be appropriate in order to cover the victim’s medical bills and rehabilitation and any fine levied in accordance with this Section must be paid to the victim.

Capital punishment

When we hear the phrase capital punishment, the first thing that springs to mind is what it is and why it is necessary. The capital penalty, commonly known as the death penalty, is a legal process in which a person is executed as a punishment for a crime by the state. It is only used in the rarest of rare circumstances, i.e. when the offence is of such a type that it cannot be vitiated without the death sentence.

It differs from other penalties in that it is irrevocable. A guy who has been executed for a crime cannot be brought back to life. It is now done in 58 different nations. The legality of capital punishment has been called into doubt multiple times in India. There is disagreement among judges on the use of the death penalty, as it violates reformative philosophy, which is the foundation of penalties in India. According to courts in India, it contradicts Articles 19, 20, and 21 of the Indian Constitution. However, it is acceptable since it is vital to give the death sentence for offences such as waging or attempting to wage war against the government of India, murder, dacoity with murder, criminal conspiracy, etc.

But since its introduction in the Indian judicial system, the Supreme Court has deliberated extensively on the actual meaning of life imprisonment. In the case of Gopal Vinayak Godse v. State of Maharashtra and Others (1961), the Supreme Court concluded that unless the sentence of life imprisonment was mitigated or remitted by competent authorities by applicable criminal provisions of the IPC or CrPC, a prisoner condemned to life imprisonment is compelled in law to spend the whole period in jail.

The issue was questioned again in 1976 in the case of the State of Madhya Pradesh v. Ratan Singh & Ors. (1976), the court ruled that a life sentence does not automatically expire after 20 years in jail, including remissions. The guidelines in the Jail Manual or the Prison Act of 1894 could not take precedence over the criminal provisions of the IPC. The relevant authority has the power to commute either the entire or a portion of the sentence. If it chooses not to commute the sentence, no writ may be used to free the prisoner.

A prisoner condemned to life imprisonment may be considered for remission by authorised authorities, but they have no right to be freed after serving a definite time of imprisonment, as determined in Mohd. Munna v. Union of India & Ors (2005). The petitioner, in this case, argued that he should be freed from jail after serving 21 years and that he should be compensated for his purported imprisonment over the 14-year limit.

The court dismissed the appeals, ruling that there is no provision in either the IPC or the CrPC requiring a prisoner condemned to life imprisonment to be freed after 14 years in jail. Remission cannot be claimed as a right by convicts serving life sentences.

Rape and capital punishment

In Muslim-majority nations, the punishment for rape is instant death. In situations of rape, capital punishment is a contentious subject in India. In Laxman Naik v. State of Orissa (1994), a 7-year-old girl was sexually abused by her uncle and the Court determined that the victim’s injuries were sufficient to demonstrate the severity with which the rape and murder were conducted, and the perpetrator was sentenced to death.

The Nirbhaya Gang Rape case, also known as the Delhi Gang Rape case, is a well-known example of capital punishment. People’s outpouring of rage and sadness in the aftermath of the rape and murder gave birth to expectations for change in India. In this instance, the Supreme Court ruled that the severity with which the act was perpetrated cannot be overlooked, and there is no hope of redemption. Hence the accused should be hanged in such cases.

The Indian government established an ordinance that provides for the death sentence in cases of rape that results in death or leaves the victim in a ‘persistent vegetative condition.’ It is still debatable whether or not the accused of rape should face the death penalty.

Loopholes in this Section

Section 375 read with Section 376 of the Indian Penal Code, 1860 contains several flaws, which is why the legislation has so far failed to reduce the rising number of rape cases in India’s expanding country. Three notable flaws in these clauses that have existed since 1860 are highlighted below.

The term ‘rape’ has a limited meaning

‘Sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape,’ says Section 375 of the Indian Penal Code, 1860, which has an exemption clause that includes some pretty antiquated notions. By Section 376 of the Indian Penal Code, rape is punishable by imprisonment of any kind for a term of not less than seven years nor less than life or a term of up to ten years, as well as a fine, unless the victim is the rapist’s wife and she is not under the age of twelve, in which case he should be punished by imprisonment of any kind for a term of not less than two years, fine, or both. Given the current scenario, it is vital to modify human conceptions and give the notion of rape a new depth.

Almost all offences should have precise interpretation rules in place to ensure that there are no loopholes or potential for unfairness in the social context. The recent change in the definition of rape is due to an increase in such behaviour and a more liberal interpretation of the law.

Marital rape: a contentious issue

This idea is based on Exception 2 of Section 375 of the Indian Penal Code, which states that any sexual act conducted by a man on his wife, even if done without her permission, does not constitute rape as long as she is not a minor. In the case of Subhra Chakraborthy v Bhodhisathwa Gautam(1995), the Supreme Court ruled that rape is a violation of basic human rights as well as a violation of the victim’s most precious fundamental right. A married woman enjoys the same rights as a single woman, including the right to privacy and the freedom to govern her own body. These rights cannot be diminished in any manner by marriage.

If data in this respect are considered, 18% of Indian women are unable to tell their husbands ‘no’ when they do not want to engage in sexual intercourse with them, according to the National Family Health Survey 5 (2019-2021) research. According to the survey, more than one-fifth of married women in India are unable to say ‘no’ to their spouses when they do not want to engage in sexual intercourse with them. With such appalling figures and contradicting legal interpretations, all that can be expected in this area is progressive and sensible thinking in India about marital rape.

Need for legal acknowledgement of adult male rape victims in India

Recognizing male sexual assault victims as a remote reality has been disregarded by portraying sexual violence as a female issue. The lack of legal action against male sexual victimisation is mostly attributable to a reduction in reporting of male sexual violence and victims’ unwillingness to come forward. If a man is sexually attacked by another man or any such unnatural offence occurs Section 377 of the Indian Penal Code, 1860 applies; but, if he is assaulted by a woman, there is no specific legal provision.

It is vital to pay particular attention to the definitions, classifications, and forms of sexual victimisation that must be changed to reduce gender discrimination.

Case laws on the death penalty

Surendra Koli v. State of UP, (2011)

One of the surprising updates for Indians in 2007 was Nithari Kand. In the case of Surendra Koli v. State of UP, (2011), the bodies of the murdered girls were discovered in the gallery behind the home and the nala next to the house. The killings committed by appellant Surendra Koli were heinous and barbarous. He followed a specific plan when performing these killings. He would observe tiny girls passing by the home and, taking advantage of their vulnerability, pull them inside a certain residence where he would strangle them and, after murdering them, try to have sex with the body before cutting off their body parts and eating them. Some body parts were discarded by dumping them into the passage gallery. As a result, the relevant home had devolved into a virtual slaughterhouse where innocent children were routinely killed.

The case was determined to be among the rarest of rare cases, and hence no pity could be granted to appellant Surendra Koli. He had perpetrated such a heinous act against fifteen girls and was sentenced to death.

G.S.Mani vs Union Of India (2019)

In the case of G.S.Mani v. Union Of India (2019), also known as the Hyderabad veterinarian case, the female doctor was alone in her scooter. She parked at the Shamdabad plaza, from which she took a cab to her workplace. Meanwhile, four accused were watching her, which prompted them to puncture her scooter when she was away. When she returned from work, she discovered that her scooter had been punctured. Meanwhile, the four accused arrived and began forcing her, raping her, and at last burning her body. The evidence was clear-cut for the death penalty, but when the police confronted the accused, it raised issues about our Indian criminal justice system.

State of Maharashtra v. Vijay Mohan Jadhav and Ors. (2019)

The victim in this case of State of Maharashtra v. Vijay Mohan Jadhav and Ors. (2019), travelled to the Shakti Mills with her colleague, Anurag, for a project that entailed photographing abandoned buildings in Mumbai. They came across Salim and Vijay Jadhav, who were eventually recognised as the suspects. Both of them originally assisted the victim and his companion in entering Shakti Mills’ premises but afterward called their other friend, who was a juvenile. Then the three of them shackled Anurag and after that they brought the victim to an isolated room where they viciously raped the victim one by one and took her images, telling her that if she complained about them, those photographs would be circulated.

In this case, it was determined that all of the defendants were guilty of various offences like gang rape, disrobing, and unnatural acts. Two of the accused were hung to death by Session Court, while the child was tried by the Juvenile Justice Board. The victim further challenged it and demanded the death penalty. The appellant court ruled that if any mercy is shown toward the accused, it would render a mockery to the justice system and thus award those accused the death penalty.

Vinay Sharma v. Union of India (2020)

The Vinay Sharma v. Union of India (2020) case, commonly known as the Nirbhaya gang rape case, outraged the nation’s conscience. The tragic and violent tragedy occurred on a bus in the cold weather of Delhi. Six of the defendants viciously raped the girl, resulting in her death. An iron rod was pushed into her private regions as well, and she was tossed nude onto the road. All of her physical and emotional torment culminated in her death. When the matter came before the court, one of the defendants committed suicide in jail, and another was a minor. Therefore he was not put to death. However, the other four suspects were condemned to death and were hanged. This decision was reached after considering the aggravating and mitigating considerations. If any mitigating variables existed, they were overwhelmed by the aggravating factors. The death penalty was given because life imprisonment was deemed insufficient in light of the relevant facts of the crime and the barbaric torture inflicted on the victim, which resulted in her death.

Guidelines for assisting rape victims issued by the Supreme Court

In Delhi Domestic Working Women’s Forum vs. Union of India (1994), the Supreme Court determined that in rape cases, the investigative agency and the lower courts occasionally adopt a wholly apathetic approach toward the prosecutrix, and to help rape victims, the Supreme Court, as a result, issued the following directives:

In situations of sexual assault, complainants should be given access to legal counsel. Having someone familiar with the criminal justice system is essential. The victim’s advocate’s duties would include guiding the victim to other organisations for the assistance of a different kind, such as mental health counselling or medical aid, in addition to explaining the nature of the proceedings to the victim, preparing her for the case, and helping her in the police station and court.
Making sure that the same person who defended the complainant’s interests at the police station also represents her throughout the case is essential to guaranteeing continuity of assistance.
Legal aid may be necessary since the victim of sexual assault may be disturbed when she arrives at the police station. A lawyer’s advice and assistance would be tremendously valuable to her at this time, as well as when she is being questioned.
Before any questions were asked of the victim, the police should inform her of her right to representation, and the police record should reflect this. A list of advocates willing to intervene in these situations should be kept at the police station for victims who do not have a lawyer in mind or whose own counsel is unavailable.
The court will appoint an advocate as soon as feasible after receiving an application from the police; nevertheless, advocates will be authorised to function at the police station before asking or getting leave from the court to ensure that victims are questioned without undue delay.
The victim’s confidentiality must be protected as much as possible in all rape proceedings.
Given the Directive Principles specified in Article 38(1) of the Indian Constitution, the formation of a Criminal Injuries Compensation Board is essential. Rape victims typically incur severe financial losses. Some people, for example, are too traumatised to work again.
If the culprit is found guilty, the court will compensate the victims, and whether or not the offender is found guilty, the Criminal Injuries Compensation Board will make an award. If the rape caused these occurrences, the Board will take them into account along with missed payments due to pregnancy and birthing expenses.

Furthermore, since a victim of sexual assault requires completely different treatment from both society and the state authorities, the state authorities, in particular the Director General of Police and the State’s Home Ministry, have a responsibility to provide proper guidelines and instructions to other authorities on how to handle such cases. The doctor examining the rape victim must be cautious. In most circumstances, the rape victim should be evaluated by a female doctor.

Conclusion

Worshipping ladies or mothers is widely practised in India. However, we can see the paradigm fading away these days. Women are now viewed as sex objects and raped for men’s enjoyment or pleasure. India’s predicament is the worst. Because of some guys, a female does not feel secure travelling alone at night, wearing short clothes, or going clubbing at night. We have several laws in place to protect their life, yet they appear to be riddled with loopholes.

Rape is considered the most heinous crime against women, and data reveal that it is pretty widespread in India. The distinction between will and consent is essential in such an offence. The Indian Penal Code provides a clear definition of consent. On the other hand, the will is still not well defined. Because there is no correct definition, consent and will are understood as the same thing, so a distinction must be made between these concepts. Typically, the expression ‘against her will’ refers to a man having sexual contact with a woman despite her objections and reluctance. On the other hand, an act of reason followed by thought would be included in the term ‘without her consent.’ Section 375 of the Indian Penal Code is one of the most discussed parts owing to the growth in the number of rape cases in India in the last few years has brought substantial modifications in the Section but there are still quite a few existing issues that need to be rectified.

We have several rules in place to control such heinous crimes, but when it comes to implementation, we lack somewhere. As a result, the offence is viewed differently, which might result in a miscarriage of justice. Significant changes are required, which can be accomplished by altering legislative attitudes.

Frequently asked questions (FAQs)

What exactly is gang rape? Is it necessary for every member of the group or gang to commit sexual assault to face punishment?

Section 376D of the Indian Penal Code defines gang rape and acknowledges that it is not required for each member of the group to commit the crime of rape to have a high degree of guilt. The law punishes any behaviour in support of the group’s shared intention as if it were the crime of rape itself. This means that even people who stand guard at doors or withhold the victim cannot get away with a reduced sentence by saying they did not commit the sexual assault.

In comparison to the POCSO Act, how is rape under IPC narrower in scope?

According to the definition of Section 375, the perpetrator of rape under the Indian Penal Code can only be a male. However, when it comes to child sexual abuse victims, the Protection of Children from Sexual Offenses Act of 2012 is gender-neutral. The offence of penetrative sexual assault (specified in Section 3 of the POCSO Act) is substantially comparable to rape under the Indian Penal Code. In cases of child sexual abuse, both the victim and the offender might be male or female, and female abusers are legally recognised in this context.

From the viewpoint of the law, who may be a rape victim?

Only women are recognised as rape survivors under Section 375 of the Indian Penal Code. The POCSO Act acknowledges that any child (of any gender) might be the victim of penetrative sexual assault. This, however, excludes adult male survivors of penetrative sexual assault, whom the law does not recognise as rape victims. Section 375 of the IPC excludes adult male survivors of penetrative sexual assault as a category.

References

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