This article is written by Swati Mishra, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

Introduction

In the State of Punjab vs. Gurmit Singh & Ors, the Supreme court observed that, “Rape is not merely a physical assault, it is often destructive of the whole personality of the victim. A murderer destroys the physical body of the victim, a rapist degrades the very soul of the helpless female.’’

The history of rape laws in India begins with the enactment of the Indian Penal Code, 1860 covered Sections 375 and 376. The original IPC 1860 does not identify rape properly and it did not count the majority of survivors. The rape laws under IPC have gone through several amendments. This journey started from Mathura Case and the last amendment took place as a result of the Unnao-Kathua Rape Case. Our lawmakers brought amendments which are progressive and tried to create an impact and fight a battle against sexual offences against women. However, it is shameful that behind bringing every amendment, there was the death of a woman. The focus of this article is to compare the rape laws before and after the Criminal Law Amendment, 2013.

Criminal Law Amendment before 2013

Criminal (Amendment Act), 1983

It was the famous ‘Tukaram and Another vs. State of Maharashtra’ commonly known as Mathura Rape Case which created an uproar on a national scale and later brought together various feminist groups across the country resulting in an amendment to the criminal law of that time. Mathura, a sixteen-year-old Dalit girl was raped by two policemen on March 26, 1972. After so much hardship, the case was somehow registered against the cops. The policemen were acquitted by the sessions court. Further on appeal, they were convicted by the Nagpur Bench of Bombay High court but again in 1979, the Supreme Court reversed the order of the High Court and acquitted the cops. Mathura was accused of ‘Habituated Sexual Intercourse’. The Highest Court of the land did not believe her as there were no injuries on the person of the girl and the incident was held to be a “ Peaceful Affair”. The judgement was highly criticised for taking ‘passive submission’ by the victim as her ‘consent’. As a result, the Criminal Law (Amendment) Act, 1983 was enacted to introduce significant changes.

Let us understand this amendment under the following heads:

• Definition of rape

The law conceptualized the definition of rape and recognised the coercive power which comes with the position of authority. To constitute the offence of rape under Section 375 of Indian Penal Code, 1860, there must be sexual intercourse by a man with a woman. There are six circumstances that constitute rape.

They are:

1. Firstly, the act was against her will;
2. Secondly, without her consent;
3. Thirdly, with consent obtained by putting the woman in fear of death or hurt;
4. Fourthly, with the consent given under misrepresentation of fact that the man is her husband;
5. Fifthly, consent given because of unsoundness of mind, involuntary intoxication or under influence of any stupefying unwholesome substance.
6. Sixthly, with or without her consent, when she is under sixteen years of age.

There were two exceptions:

1. One – Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
2. Two – Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.

Let us look at each of these factors in better detail. 

• Consent of the victim

The expressions ‘Against her will’ and ‘Without her consent’ have different meanings. Against her will means intercourse despite her opposition and implies an element of force or compulsion. Here it is to be noted that an act done against a person’s will does not necessarily mean that it is done without his/her consent. The expression ‘against her will’ has a much wider import than the term ‘without her consent’. An act done without one’s will shall always be without her consent but the converse is not true. For instance, a woman who agrees to sexual intercourse under the influence of an intoxicant or mistake of fact, will be said to have consented but that does not mean she was willing for it.

The sixth circumstance made sexual intercourse by a man should compulsorily be construed as rape whether it was with or without consent.   

The first four circumstances deal with the situation where a woman is capable of giving consent but it was either not obtained or if obtained, was obtained by way of putting her in fear or by way of fraud and the last circumstance deals with a situation where a woman is not capable of giving her consent.

• Marital rape

On the issue of ‘Marital Rape’, the amendment act was much influenced by ‘Ancient Indian Tradition’. It provided that if the husband performs sexual intercourse with his wife and wife is above fifteen years of age her consent becomes immaterial. The humorous thing is that our lawmakers were expecting a girl under fifteen years of age to show her valuable consent to such an act, which in most cases is practically not possible. Section 376A was also being added which provided punishment to a man for having sexual intercourse during judicial separation with his wife and maximum punishment provided for which was two years. In my personal opinion, the act was gender-biased and had a less sensible approach towards women in society. It disregarded the right to equality enshrined in Article 14 of our Indian Constitution.

• Custodial rape 

The Act added section 376(2) which provided punishment for rape by a person in authority. The person in authority mentioned in the Act was, ‘police officer, public servant, a person on the management or the staff of the jail, or person on the management or the staff of the hospital’. The minimum and maximum punishment for which is rigorous imprisonment for ten years and imprisonment for life respectively.  Four new sections were added 376A, 376B, 376C, 376D which provided for sexual intercourse by a person in authority not amounting to rape.

• Presumption of guilt

It was the most contested clause introduced by the amendment, according to which the onus of proof that the sexual intercourse was done with the consent of the woman shifted on the accused. It is presumed by the courts that if a rape victim is saying that she did not consent to the sexual intercourse, she is saying the truth. Section 114-A was introduced in the Evidence Act, 1872 which provides presumption as to non-consent of the victim. Though general rule in criminal cases is that there must be corroboration of the prosecution story by independent evidence. But looking at the very nature of the rape cases, in most cases independent witness is not available and the courts have to place reliance on circumstantial pieces of evidence. The Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, observed that “in the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration, as a rule, is adding insult to injury’’. 

• Identity of the victim

Our society is full of misogynist people and especially in a rape case, the victim is treated worse than the perpetrator. So, to secure the present and future of the victim, it was considered to be necessary not to reveal the identity of the victim. The Act prescribes punishment under Section 228-A IPC for any person who prints or publishes the name or information of the victim; unless such disclosure is with the consent of the victim or where victim died/minor/unsound mind with the permission of the next of kin or by or under the order of the court. Under Section 327(2), there shall be in-camera proceedings, in rape trials.  

From the above, it can be inferred that these were very radical changes brought in the existing laws relating to rape in the country. Also, it is evident from the above, that these were brought specifically to address the lacuna exposed by the Mathura case.

Amendments to the Indian Evidence Act: 2002

In 1997, a Delhi based NGO Sakshi filed a PIL in the Supreme Court. Through the PIL the NGO pointed out various loopholes of the criminal amendment act, 1983. It was contended that even though the character assassination of the victim is prohibited but it is not defined to include the cross-examination of the victim. The victim, having fear of questioning by the defence counsel, did not report the crime. Therefore, Section 155(4) of the Indian Evidence Act, 1872 was omitted by the Amendment Act,2002 which says that ‘’if a man is prosecuted for rape or attempt to ravish, it may be shown that the prosecutrix was of generally immoral character’’.

The defence lawyers used to discredit the testimony of the victim by proving her of ‘Immoral Character’. After this Amendment, the cross-examination of the victim was prohibited.

Why was the POCSO Act, 2012 introduced

Through the petition, it was also urged for a wider interpretation of the word ‘penetration’ by including within it all kinds of penetration: vaginal, oral, finger-vaginal etc. It was pointed out that sexual abuse of children particularly minor girl child by means and manner other than penile/vaginal penetration is common and may take the form of penile/anal penetration, penile/oral penetration, finger/vaginal penetration or object/ vaginal penetration. But the Apex court declined to alter the meaning of penetration on the ground that it may lead to confusion and chaos in the judicial arena and held that it was for the parliament not the court to consider the reforms in the existing law relating to rape in the interest of the society. This led to the enactment of the Protection of Children from Sexual Offences Act, 2012.

To protect children from sexual abuse, for the first time parliament came up with separate less ambiguous and more stringent legislation, that exclusively deals with legal provisions effectively addressing sexual abuse and sexual exploitation of children. The Act came into force on 14, November 2012. It has 46 provisions dealing with the protection of children from sexual assault, sexual harassment and pornography. It also provides for the establishment of special courts to deal with offences under this Act. Previously there was only one ‘Statutory Rape’ clause in IPC which was dealing with rape with a girl child under the age of 16 years, but this Act is gender-neutral. It recognised sexual offences with both girl and boy child, which was nowhere present earlier.

Criminal Amendment Act, 2013

On the night of 16, December 2012, a 23-year-old Paramedical student Nirbhaya, was brutally gang-raped, beaten, tortured in a moving bus. After fighting for her life she died of her injuries on 28, December 2012. This barbarous incident led to widespread protest across the country. The public was not only demanding the hanging of the accused but also a change in the rape laws of the country. After the Nirbhaya incident on December 23, 2012, a three-member committee was constituted headed by Late Justice J.S. Verma, former Chief Justice of Supreme Court of India with other members of the committee Justice Leila Seth, former Judge of High Court and Gopal Subramanium, former Solicitor General of India to recommend amendments to be made in Criminal Law for the Legislature to make rape laws and other crimes against women more combat. This led to the Criminal Law Amendment, 2013.

Again let’s understand the amendment in the following different head: 

• Definition

In present law, the offence of rape consists of four types of “sexual acts” as defined in Section 375 of the Indian Penal Code, the following are those four acts:

a.) “penetration of the penis into the vagina, mouth, urethra or anus.” 

b.) “inserting any object or any part of the body (for example finger) into the vagina, urethra, or anus.”

c.) “manipulation of any part of the body of a woman to cause such woman penetration into the vagina, urethra, anus or any part of the body of such woman.”

d.) “application of male’s mouth to the vagina, anus, urethra of the woman.”

The Interpretation of the word ‘Penetration’, which was earlier urged by the Delhi based NGO, Sakshi in its PIL, finally found its place in the legislation itself after this amendment. To constitute the offence of rape ‘Penetration’ is necessary, the depth and means of penetration do not matters. The explanation appended to Section 375, makes it clear that even the slightest penetration [Tarkeshwar Sahu v. State Of Bihar (Jharkhand)] of male organ into the female is sufficient to constitute ‘sexual intercourse’ and the depth of penetration is immaterial [Nathu Ram v. State of Haryana]. It is the ‘Penetration’ not ‘Ejaculation’, which is the sine qua non for the offence.

Section 375 also suggests that even if the perpetrator is making a woman commit the above-mentioned acts with a third person, he would be liable under this section. Even a threat to commit rape has also become a crime.

The seventh circumstance was also added which reads as, ‘When she is unable to communicate her consent’. It covers all forms of inability to communicate consent and it may be because of any reason. The proviso to Section 375 provides that a woman who does not physically resist the act of penetration of the penis into the vagina by a man shall not by reason only of that fact be regarded as consenting to the sexual activity. The consent must be active.

• Consent of the victim

Before the amendment of 2013, there was only a provision under Section 90 of the Indian Penal Code,1860 which provides for situations in presence of which consent would be vitiated. Situations which would vitiate the consent is fear or misconception of facts by the perpetrator, unsoundness of mind of person consenting, consent of child are some more situations in which consent obtained is not valid consent. The amendment of 2013 provided a positive definition. One of the main stresses given in this definition is on ‘communication of consent’ to a ‘specific sexual act’. Communication of the consent of a woman to engage in a sexual act can be given by words, gestures or through any other verbal or non-verbal communication medium. A voluntary agreement is still a key factor. Before the 2013 Amendment, courts used to call for additional evidence from the prosecution to corroborate the non-consent, for example, injury marks on the body but after the 2013 Amendment definition of consent clearly states that lack of resistance does not mean consent.

• Other forms of offences

Various other forms of offences are being added after this amendment. There were no specific provisions mentioned for these offences before this amendment. The criminal amendment act provides for specific provisions with stricter forms of punishment. These offences are:

• Sec. 354 of Indian Penal code, 1860 – Assault or Criminal Force to Woman with intent to outrage her modesty

In Tarkeshwar Sahu v. State of Bihar, (Jharkhand), the Supreme Court held that ‘Modesty’ is a virtue attached to a woman owing to her sex. However, if a woman is a consenting party, there cannot be an outrage of modesty. [Sadanand v. State]

• Sec. 354A, Indian Penal Code, 1860 – Sexual Harassment and Punishment for Sexual Harassment 

Sexual Harassment caused to a woman, particularly at a working place, drew the attention of Apex Court through various PIL petitions. Finally, through its landmark judgement in the Vishaka v. State of Rajasthan, the Supreme court filled the legislative vacuum in this aspect. 

• Sec. 354B, Indian Penal Code, 1860 – Assault or use of criminal force to women with intent to disrobe her

There are instances where a woman is forced to strip or forcibly stripped, which puts her in a very embarrassing situation. In Damodar Bahera v. State of Orissa, the accused persons removed the ‘Saree’ of the victim. They were held guilty under section 354/34 of IPC.

• Sec. 354C, Indian Penal Code, 1860 – Voyeurism

This section intends to protect the privacy of a woman. This section provides that any man who watches or captures the image of a woman engaging in a private act commits an offence. It also provides punishment for dissemination to the third person.

• Sec. 354D, Indian Penal Code, 1860 – Stalking

This section deals with two kinds of stalking, one physical stalking and the second, stalking on the internet, e-mail or other forms of electronic media. Ritu Kohli case was the first case of cyberstalking in 2001, she reported against Manish Kathuria who was stalking her on the internet. The IT Act had not come into force then. He was arrested under section 509 of IPC. This led to an amendment in the IT Act, 2008 section 66A was introduced. 

• Sec. 376A, Indian Penal Code, 1860 – Punishment for causing death or persistent vegetative state due to rape

The Aruna Ramchandra Shanbaug v. Union of India was a brutal rape case, in which Aruna Shanboug, who lived in a vegetative state for decades was allowed to die through passive euthanasia.  

• Sec. 509, Indian Penal Code, 1860 – Word, Gesture or Act intended to insult the modesty of a woman

In the case of Rupan Deol Bajaj v. K.P.S Gill, it was stated that:

“If the word uttered or the gesture made could be perceived as one which is capable of shocking the sense of decency of a woman, then it can be found that it is an act of insult to the modesty of the woman.”

• Section 326A, Indian Penal Code, 1860 – Acid Attack

Acid attack is a non-bailable and cognizable offence punishable under 326A of IPC. In Laxmi v. Union of India, the Supreme court has put a complete ban on the counter sale of acid.

• Duty of public servant and responsibility of hospitals

The role of the police on the night of 22, December 2012 was highly criticized. This amendment provides that if a public servant fails to record information in sexual offences cases or knowingly disobeying laws on the investigation, he shall be punishable with rigorous imprisonment for 6 months to 2 years and a fine. In case if a hospital fails to provide medical treatment to the victim it will be a punishable offence with punishment of 1 year and fine. In cases of acid attacks or rape, all hospitals whether public or private, are required to provide free medical treatment to the victim and immediately inform the police.  

The relevant sections under this head are:

• Sec. 166A, Indian Penal Code, 1860 – Public Servant disobeying direction under law.
• Sec. 166B, Indian Penal Code, 1860 – Punishment for non-treatment of victim.
• Sec. 357C – Treatment of victims, Code of Criminal Procedure, 1973 [Immediate first-aid or medical treatment will be provided free of cost by all hospitals to the victims of any offence covered under Sec. 326, Sec. 376, Sec. 376A, Sec. 376B, Sec. 376D, Sec. 376E of the Indian Penal Code, 1860; medical professionals are required to immediately report the crime to the police which is not in the interest of the survivor who may not want to report the crime.]

• Character of the victim

Though character assassination was prohibited under the previous act still there was a need to bring some stringent provision in this regard. This amendment created a bar to use victims past sexual history in determining the question of her consent. There was no specific provision barring the use of previous sexual history in rape cases, the Indian Evidence Act, 1872. Section 53A in the Evidence Act, 1872 was inserted which provides that, in a prosecution of sexual offences, where the question of consent is in issue, evidence of the character of the victim or such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.

Amendment made to prosecute juvenile offenders

The term ‘Juvenile’ denotes a person who has not attained the age of maturity, that he is not mature enough to understand the nature and consequence of his actions. Out of six accused in Nirbhaya case, one was a juvenile offender who was under 18 years of age. He was suggested as the most barbaric face of the heinous crime by the media and civil society. It was argued why not to treat ‘as an adult for an adult crime’. This led to an amendment to the Juvenile Justice act and brings Juvenile Justice (Care and Protection of Children) Act, 2015 Act which divided the crimes into three different categories i.e. the petty offence, serious offences and heinous offences. The act of juvenile justice treats a minor of age sixteen-eighteen years as an adult if he has committed any heinous crime in a conflict of the law. The crime will be examined by the Juvenile Justice Board to ascertain if the crime was committed as a ‘child’ or an ‘adult’.

An 8-year-old girl was raped in Kathua, a district of Jammu and Kashmir. It has been alleged that she was kept in a Shrine for several days and raped continuously and later murdered. Consequently, the Criminal Amendment Act, 2018 enacted which enhances the minimum sentence for the offence of rape against girl children of all three age categories. Under the new law, if the victim is under 12 years of age, the culprit faces a minimum sentence of 20 years, up from 10 years previously. The maximum punishment is the death penalty. In the cases of gangrape of a child under 12, the minimum punishment is life sentence (earlier 20 years) while the maximum is the death penalty.

Comparison between the amendments made before and after 2013

So from the above study, it can be said that every amendment was the result of some loophole, which needed to be fixed. It can be well said that laws changed drastically and that was changed for good. Amendment of 1983 was limited to a few changes to the existing law, on the other hand, Amendment of 2013 identified various areas of rape law that needed to change. It can be well understood by the table below:

Comparison between the amendments

Offence/Issue	Law before the 2013 Amendment	Criminal Law (Amendment) Act, 2013
Disobedience of law by a public servant	No specific provision, IPC, 1860.	Punishable with rigorous imprisonment for six months to 2 years and fine.
Rape resulting in death or vegetative state	Rape and murder dealt with as two separate offences. Rape: 7 years to life imprisonment, Murder: imprisonment for life or death, IPC, 1860.	Specific offence. Punishment 20 years to life imprisonment (rigorous imprisonment) or death.
Punishment for gang rape	10 years to life imprisonment and fine, IPC, 1860.	20 years to life imprisonment (rigorous imprisonment) and fine payable to the victim, that is reasonable to meet medical expenses.
Rape by armed personnel	No specific provision. Public servants include armed personnel. Punishment: 10 years to life imprisonment and fine, IPC, 1860.	Specific offence. Shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life.
Responsibility of Hospital	No specific provision, IPC, 1860 and CrPC, 1973.	Punishable with 1 year and/or fine. In cases of acid attacks or rape, all hospitals (public and private) are required to provide free medical treatment to the victim and immediately inform the police.
Acid Attacks	No specific provision. Covered under grievous hurt. Punishment: up to 7 years imprisonment, IPC, 1860.	Specific offence. Punishable with 10 years or life imprisonment and reasonable fine amount to meet medical expenses.
Punishment for repeat offenders	No specific provision, IPC, 1860.	Specific offence. Life imprisonment (rigorous imprisonment) or death.
Age of Consent	Specific provision, since the 1983 amendments in the rape law in the IPC, 1860.	18 years.
Touching	Outraging a woman’s modesty. Punishment: Imprisonment for a maximum of 2 years and fine, IPC, 1860.	Outraging a woman’s modesty: 1 to 5 years imprisonment and fine. Physical contact involving unwelcome and explicit sexual overtures: up to 3 years imprisonment and/or fine.
Stalking	No specific provision.	Specific offence. 1st offence punishable with 1 to 3 years imprisonment (Bailable). 2nd offence punishable with up to 5 years imprisonment (Non-bailable).
Voyeurism	No specific provision, Information Technology Act, 2000 protects both men and women. Punishment: up to 3 years and/or fine up to 2 lakh.	Specific offence. Only protects women. 1st offence punishable with 1 to 3 years imprisonment and fine. 2nd offence punishable with 3 to 7 years.
Other forms of rape	In the absence of penile-vaginal penetration offence of outraging the modesty of a woman punishable with maximum 2 years and fine, IPC, 1860.	Specific offence. Punishable with 7 years to life imprisonment (rigorous imprisonment).
Protection against disclosure of the identity of the victim	Provided in case of rape, custodial rape, rape of a judicially separated wife, abuse of power to obtain consent. Punishable with imprisonment for up to 2 years, CrPC, 1973.	Protection extended to victims of repeat offenders as well.
The requirement to fast track	No requirement to fast track sexual offence cases, CrPC, 1973.	Trial to be held on a day-to-day basis. In case of rape cases, trial to be completed in 2 months of the filing of the charge sheet.
Compensation	The State government has to prepare a compensation scheme for the rehabilitation of victims. The state or district legal service authority is to make compensation awards, CrPC, 1973.	Compensation awarded by the State is in addition to what is payable by the accused.
Previous sexual history	No specific provision barring the use of previous sexual history in rape cases, IEA, 1872.	Bars the use of past sexual history in determining consent of the victim. Bars evidence or questions in the cross-examination of the victim as to the general immoral character of the victim or past sexual history with any person.
Presumption of consent	Required the victim of rape to prove that she did not consent, IEA, 1872.	Shifts the onus on to the accused to prove that consent was given.
Punishment for rape	7 years to life imprisonment and fine.	10 years to life imprisonment and fine.

Conclusion

Upon considering the above facts we can conclude that the loopholes in the original law were first fixed by the Criminal Amendment Act, 1983 and the loopholes uncovered by the Amendment Act, 1983 were later on fixed by subsequent Amendment Acts. The Criminal Amendment Act, 2013 was very vast in its nature as compared to the previous one. It introduced a changed definition of rape and widened its scope, various new forms of offences against women, new forms of rape that includes means of penetration and other body parts of a woman which can be used for such penetration, enhanced punishment for offences, various procedural law dealing with rape offences. In other words, it tried to cover all the necessary aspects. 

After the Nirbhaya case, the government of India announced the Nirbhaya Fund of Rs. 10 Billion in the 2013-2014 Union Budget to enhance women’s safety and security in public spaces. However, the Act of 2013 was gender-biased, it completely ignores the fact that a man can also be a victim of such a crime. The lawmakers completely ignored the provisions for incept rape. This Act gave immense power in the hands of a woman. Justice Kailash Gambhir of Delhi High Court stated that penal provisions for rape are often being misused by women as a “weapon for vengeance and vendetta” to harass and blackmail their male friends by filing false cases to extort money and to force them to get married. The Act in itself is not sufficient to redress and seek justice against such heinous offences. The Government of India needs to make colossal investments in building the necessary infrastructure to deal with the crimes supplemented by meaningful reforms in the judiciary and modernisation of the police system across the whole of India.

References 

1. A Historical Analysis of Rape Laws in India (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3619807)
2. Criminal Law (Amendment) Act, 2013: Will it ensure women’s safety in public spaces? (https://www.researchgate.net/publication/260144553_Criminal_Law_Amendment_Act_2013_Will_it_ensure_women%27s_safety_in_public_spaces)

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