This article is written by Nishka Kamath, a graduate of Nalanda Law College, University of Mumbai. It is an endeavour to describe custodial law in India in great detail. It also has an overview of the history of custodial rape and anti-rape law movements, the grounds for an increase in rape cases, the top cases that brought in a reformation in laws relating to custodial rape, the traumatising effect of rape (commonly known as PTSD) on the victim, and the challenges in reporting custodial rape cases, inter alia. It also has a brief discussion on how we, as a society, can help curb the issue of custodial rape or rape in general.
It has been published by Rachit Garg.
Table of Contents
Please note: in moments of emergency, like an occurrence of rape, there are several 24 / 7 helplines, one of them is the AKS Foundation. One can always contact them on +91 8793 088 814 or email them at [email protected] for assistance in matters of sexual violence. It is always advisable to seek help and raise your voice in the event of such unfortunate events. Always remember, one must not keep mum, instead, they should come speak so the wrongdoers are punished and the victim gets the justice they deserve.
Rape, a four-letter word, has been known to ruin several lives. It not only ravages the victim’s body and mental serenity but also plunges them into severe emotional trauma, reducing them to a living corpse. It can be referred to as one of the most barbaric acts, violating not only an individual’s body but also their integrity, honor, and pride. Rape is a demon that inflicts long-lasting negative effects on the victim, both mentally and physically. Additionally, the victim’s family undergoes such a traumatic experience. It represents a blatant violation of human rights and goes against Article 21 (right to life) of the Constitution of India.
Sadly, even after India became free from the 200 year long oppression of the British Empire and even after seventy three years of independence, our nation has not escaped the clutches of a heinous crime like that of rape. It is a bitter truth that even in the 21st century, the victims of such atrocious activities are blamed, and society goes on victim blaming the individual by raising questions like:
“Why was she dressed up like that?”
“Why was she out with her friends past midnight?”,
“Why did she come home late?”
And the list goes on and on. As individuals belonging to the same society, it is high time we learn to raise our voice against such crimes and start understanding the plight of the person who has undergone such a traumatic experience.
The term ‘rape’ has been derived from the Latin word ‘rapio’ which means ‘to seize’. Thus, the offence of ape was said to be the ravishment of the woman and a forcible seizure of her as an individual. Rape is one of the most common and underreported crimes against women in India. We have come across several types of rapes, like “landlord rape”, “caste rape”, “rape by person in authority”, “class rape”, etc. Further, there are some classes of rape that are yet to gain full recognition in Indian society, namely, “martial rape”, and “rape of sex workers”.Furthermore, there is one category of rape known as custodial rape, which came into existence through an amendment in Section 375 and Section 376 of the Indian Penal Code, 1860, after the incident in 1980, which will be discussed in the following passages.While it is already tough to prosecute and punish an individual accused of committing rape, it becomes 10 times more challenging to penalise the accused when it comes to custodial rape. You may wonder why. The answer to that is because these charges are raised against public officers like the superintendent of a jail, the officer of a remand home, mental health care institutions, police personnel, or other such officers when the victim is in their custody. All the important pointers necessary to answer the aforementioned question are covered in this article. Further, in this article, the author has tried to shed light on all the important aspects of custodial rape, along with its history, landmark judgements, and preventive measures.
Custodial rape : an overview
Meaning of custody : a general perspective
In general terms, the word ‘custody’ can be defined as the legal right to take care of something or someone, especially children. It can be said to be the temporary possession or care of somebody’s property or assets; however, in the legal sense, it can be defined as the state of being imprisoned or detained, usually when their case is pending in trial.
An individual can be said to be in ‘custody’ when he/she is under the control, care, and supervision of another person or institution, and such a person having the authority is referred to as a custodian. Generally, the custodian has an absolute or high degree of control over the individual, this includes his/her-
- Food and water,
- Contact with the outside world and the like.
Further, the most common instances of custody are detention by the state, through any police, army, or security forces, which may be at police stations, lockups, prisons, or interrogation centres. Furthermore, the concept of ‘custody’ is also applicable to hospitals (both government and private), mental health care institutions, shelter homes, and juvenile houses. Moreover, a point must be noted that, it was in 1983 that importance was given to the term ‘custody’ and its scope was widened.
Now that we have read about custody, let’s dive deep into the actual topic at hand, i.e., custodial rape.
Essential ingredients of rape : a general view
The essence of the offence of rape as defined under Section 375 of the IPC is sexual intercourse by a male with a female against her will and without obtaining prior consent under any of the following conditions:
- Against her will,
- Without obtaining her consent,
- With obtaining consent by force by putting her or another individual in whom she is interested in the fear of causing death, hurt or injury,
- With obtaining consent under the pretext or misconception that the man is her husband,
- With obtaining consent by reason of unsoundness of mind or when she is heavily intoxicated or under the influence of any drugs or substance,
- Women under the age of 18, i.e., minor with or without her consent,
- When a woman is not able to give or communicate consent.
Thus, any activity belonging to the aforementioned seven categories will amount to rape.
What is custodial rape
As discussed above, a person is said to be in custody, when he/she is under the supervision or custody of a person or an institution who is said to be the custodian. This custodian has the absolute power of control over the individual, and this relationship of control and dependence imposes a strong duty of care and protection on the custodian. However, at times, these officials take undue advantage of their power and persuade female inmates to engage in sexual activity with them, this activity is termed as ‘custodial rape’. Custodial rape is a serious crime and a grave violation where the aggressor not only takes undue advantage of his authority to control the individual, usually a woman, but also violates the individual’s bodily integrity and the duty to care for and protect the citizens and their rights.
Further, the concept of custodial rape is applicable to the following personnel:
- The superintendent of a jail,
- The superintendent of a remand home,
- Management or staff of a hospital (government and private),
- Management or staff of any mental health care institutions,
- Management or staff of any rehabilitation centre,
- Officers, Management or staff or any juvenile or shelter home,
- Any other place of custody established by law.
History of custodial rape
Origin of custodial rape
In the late 1970s and early 1980s, with the declaration of a national emergency, powers were entrusted to the states, which is why officials started abusing their powers and torturing people. Further, many incidents of custodial rapes, too, came to light; here, police officers or public servants tortured individuals in the form of custodial rape. In such times of difficulty, officials used rape as an instrument to oppress the prisoners, and unfortunately, this crime still prevails in our nation.
During the period of national emergency between 1975-77, all the powers were vested in the state, which is why the public servants were not scared of any repercussions as such, as they were aware that they were in authority, thus having power in their own hands, and if evidence is found against them, they can safely erase or destroy it because it was within the premises. Several cases of custodial rape took place during this period, which are discussed in detail below. This period made it crystal clear that state power could be used to transgress or disregard the personal liberty of citizens, and these incidents awakened the conscience of society and the judiciary.
With all the campaigns and political pressure, there was an amendment in rape laws in 1983. However, the amendment was not very effective, thus, in 2013, significant changes were carried out in CrPC, IPC, and IEA which is mentioned below.
Top cases that brought changes in custodial rape laws
Between the 1970s and 1990s, there were three cases of custodial rape that were widely spread and gained political affluence too. The three cases were as follows:
- Mathura rape case in Maharashtra in 1974,
- Rameeza Bee rape case in Andhra Pradesh in 1978, and
- Maya Tyagi rape case Uttar Pradesh in 1980.
Protests were carried out against such atrocities by uniformed officials against the local public, and the Indian Government had to take the necessary actions to address the issue. The same is discussed in detail in the upcoming passages.
Beginning of the anti- rape campaign
Women’s rights movement received national attention when an anti-rape movement was carried out in 1980. Civil liberties organisations, after the end of the emergency period, gave special attention in matters relating to:
- Rape of women in police custody,
- Rape of poor at large, and
- Sexual molestation of tribal women
by the State Reserve Police (SRP), the Central Reserve Police (CRP), and other authorities of the Parliament.
There was a huge coverage by the media on the statements of victims of sexual crimes, and many individuals started to question the authority and power entrusted to police and state officials. Further, when, in 1980, the Supreme Court announced its verdict in the Mathura rape case, there was a national outcry. The police defended themselves by stating that she already had a boyfriend, and, hence, was a girl of immoral virtue, therefore she could not be raped. Sadly, the Apex Court accepted such an opinion. Then, there were several lawyers, namely, Ragunath Kelkar, Upendra Bakshi, Vasudha Dhagamwar, and Lotika Sarkar, who wrote an open letter questioning the validity and logic behind such a judgement. Via this letter, several feminist groups raised their voices against this heinous crime of rape and made efforts to bring it to light. The Forum Against Rape, which was later renamed as the Forum Against Oppression of Women, was one such feminist group that started a campaign to reopen the case. The main motive for starting such a campaign was that the Mathura rape case be tried again and that amends be made to the laws relating to rape. Furthermore, as per some reports, the police officials, too, carried out protests across the country.
Grounds for increase in rape cases in India
There are several reasons that have caused an increase in cases related to custodial rape and judicial violence in our country. Some of them are as follows:
Absence of stringent laws
In order to curb the issue of custodial rape and violence, it is important that strict and mandatory laws be enacted and passed. In India, custodial rape is criminalised, but custodial violence is not, which has been used as an advantage by those in power for several decades now.
No solid prison reforms
In India, prisoners are to date affected by poor prison conditions, overcrowding, an acute manpower shortage, and minimal safety against harm in prisons. Additionally, the entire system is opaque, leaving less room for transparency.
The police work under extreme pressure, and in order to reach a quick solution like obtaining evidence or making the individual confess something, they resort to violence.
By following the approach of “eye for an eye“, the individuals in power choose to use violence and force against the ones accused of a crime to obtain information.
Not following international standards
The United Nations Convention against Torture was signed by India in 1997, however, the provisions have yet to be properly followed in the country.
Further, India signed a convention titled United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) on October 14, 1997; however, this convention is yet to receive an approval.
Sometimes there can be a lack of understanding between two individuals, and at times, people are under the false notion that women never directly say yes, they think they need to be forced to have an intercourse, which is definitely not true. Men, at times, misinterpret the message a woman has to convey, which is why rape is still prevalent in our society.
Lack of sex education
Even in the 21st century, a basic prerequisite like that of sex education is still missing among the youth and society, as a result of which crimes like custodial rapes and sexual violence are still spreading at an alarming rate.
Effect of media and cinema
Media and cinema play a vital role in the ever increasing cases of rape and custodial rape, as many a times, women are simply objectified and portrayed as objects instead of human beings. Further, there are several uncensored vulgar dialogues, shows, and songs in the cinema that provoke individuals to commit such crimes.
Apart from the aforementioned reasons, the other rationales for custodial rapes could be as follows:
- Sexual weakness,
- Dominance of male in the society,
- Sadism, etc.
Several male officers have a tendency to get enticed by prisoners belonging to the opposite gender, and to satisfy their animal lust, they force women to have intercourse or commit rape when they are in their custody. At times, a public servant is also witnessed obtaining consent for engaging in sexual activity with the victim through his power or position.
PTSD in rape victims
Another horrible effect of undergoing such a barbaric activity is the Post-Traumatic Stress Disorder (PTSD). PTSD can be defined as a psychological disorder that can occur in people who have usually witnessed traumatic experiences, like:
- Natural disaster,
- A serious accident,
- A terrorist act,
- Any war or fights,
- Incident of rape, or
- Other violent personal assault.
People who have gone through such traumatic experiences have intense, disturbing thoughts and feelings that are related to those incidents that have a long lasting, traumatic effect on the victim even after the incident has come to an end. They may also encounter the event through flashbacks or nightmares. Such victims may also have feelings of sadness, fear, anger, etc., at times, they may also feel detached or estranged from other individuals in society.
Further, any individual who has undergone such a traumatic experience may refrain from engaging in any activity with people or situations that remind them of that event. They may also have quite a strong negative reaction to something as ordinary as a loud noise or an accidental touch.
Punishment for custodial rape
Legislations and penalty on custodial rape
Section 376 of the IPC
Section 376 of the IPC states that any individual who commits rape shall be penalised with rigorous imprisonment of either description or a term not less than 10 years, which can be extended to imprisonment for life. Section 375 defines rape, whereas Section 376 describes punishment for rape. Moreover, Section 376C of the IPC defines “sexual intercourse by a person in authority.” It is a new category of sexual offences that was added after an amendment.
The Section states that any individual who is in position or authority or in a “fiduciary” relationship or is a public servant, superintendent or manager of a jail, remand home or other place of custodianship established by or under any law for the time being in force, or a women’s or children’s institution; or on the management of a hospital or being on the staff of a hospital, abuses such a position or fiduciary relationship and tries to persuade or convince a woman who is in his custody or for whom he is in charge of, to engage in any sexual activity or have sexual intercourse with him will be penalised. The penalty for the same will be rigorous imprisonment for a period not less than 5 years and extendable for ten years, along with a fine.
Section 197 of the CrPC
An amendment was brought to Section 197 of the Criminal Procedure Code, 1973, that talks about prosecuting judges and public servants. The amendment to Section 197(1) was added to ensure that a prior sanction from the appropriate government for prosecuting a public servant for any offence related to sexual abuse is not a necessity. This amendment was carried for the obvious reason that Section 197 highly favours the protection of public servants from malicious prosecutions for any activity conducted in the course of their employment. No public officer can argue that sexual activity was conducted to discharge public duties, therefore, the modification was made to sanction penalising public servants for any offence like rape or other forms of sexual abuse.
Punishment for repeated offender
According to Section 376E of the IPC, any person who has been formerly convicted of an offence punishable under Section 376 or Section 376A or Section 376D (i.e., committing rape, causing death or vegetative state in the course of committing rape, or committing gang-rape) and is convicted for an offence under the aforementioned sections for the second time, a death sentence can be either pronounced or a sentence of life imprisonment can be ordered against him. However, a point must be made that a previous conviction must be present, followed by the next conviction, to sentence the offender.
Case laws on custodial rape
Tuka Ram and Anr. v. State of Maharashtra (1978)
On March 26, 1972, a young Harijan girl named Mathura was brutally raped by two police officials on the premises of Desaiganj Police Station in Chandrapur district of Maharashtra. This case led to an amendment to the rape law in India via the Criminal Law (Amendment) Act, 1983.
- A young girl named Mathura, nearly aged between 14-16 years, was an orphan belonging to an adivasi tribe. She lived with her brother Gama and they both worked as labourers to earn their livelihood.
- During her employment, she developed some intimate relationships with the son of Nushi’s sister, Ashok. The couple decided to get married, which is why she eloped with him.
- Now, considering her elopement, Gama filed a case against Nunshi, her husband Laxman and their son Ashok claiming that she had been kidnapped by the above individuals.
- On March 26, 1972, all the concerned individuals in default, including the above ones and their relatives, were summoned before the police station. After recording the statements, each of the accused started to walk out of the station. The activity occurred at 10:30 p.m.
- However, a constable named Ganapat asked Mathura to stay back. Sadly, after shutting the doors and turning off the lights, he took her inside a washroom and raped her. This teenage girl tried hard to resist and escape his clutches, but to no avail. Unfortunately, after Ganpat, another police officer named Tukaram entered the washroom and fondled her private parts. He even tried to commit rape but did not succeed as he was under the influence of alcohol. Tukaram was the head constable of the station at the time.
- Mathura was then sent back home and after returning home she narrated this incident to her family. On being medically examined, the doctor affirmed that Mathura was aged between 14 to 16 years and her hymen reveleaded old ruptures but there was no bodily harm.
- On 27th March, after being examined by Dr. Shastrakar, it was advised that an FIR be lodged. Very soon an FIR was filed against the officials.
Unfortunately, Mathura had to fight a long battle to get justice; however, at the end, the Apex Court succeeded in giving her the righteous treatment she deserved. Let’s have a look at each of the Court’s judgements.
Judgement of the Session Court
Sadly, the judge of the session court considered this barbarous activity to fall under the category of “consensual sexual intercourse”, as according to him, the girl was habituated to having intercourse. The judge further affirmed that both the accused were not guilty of committing rape, as she did not make any sound at the time of the incident as she was scared of Ashok and Nushi.
Judgement of the Bombay High Court
Fortunately, the Bombay High Court overturned the order of the session court judge and stated that it is highly unlikely that Mathura would make such advances when she, along with her brother, had just filed a case at the same police station. Further, the Court stated that, as the police officials were in a position of authority, the poor girl must have deduced that any resistance to the activity could pose a threat to her brother.
The Bombay High Court held that the accused were guilty of the offence, and sentenced Tukaram to one year of imprisonment and Ganpat to five years of imprisonment.
Judgement of the Supreme Court
The appellants contended for special leave, and the Supreme Court sadly overturned the High Court’s judgement. The accused were set free, and the Court agreed with the decision of the session court and held that this case was a case of consensual sexual intercourse. Further, the Supreme Court made a comment that as “no marks of injury” were found on the victim’s body, it could be stated that “there was no battle on her part” and since she did not “raise any alarm for help” she gave her consent for the sexual activity.
Reforms brought by the case
This case brought up a lot of awakening in society, and several protests were carried on for enacting a law that was more considerate towards the sentiments of the victims and protecting their human rights and dignity. This case led to the passing of the Criminal Law (Amendment) Act, 1983. This Act also brought major changes to Section 114(A) of the Indian Evidence Act. Further, Section 376 of the IPC was also amended, making custodial rape a punishable offence. Moreover, the Amendment prohibited the publication of the identities of the victims of rape, and it also stated that such proceedings must be carried out as in-camera proceedings.
Sheo Kumar v. State of U.P. and Ors. (1988)
Facts of the case
- In this case, Maya Tyagi, a six months pregnant lady was pulled out of the car, beaten black and blue and was forcefully stripped.
- Maya Tyagi, along with her husband, Ishwar Singh Tyagi, and two of his friends were travelling to attend a wedding, however, one of the car tires got punctured. On reaching a crossing, the driver went ahead to get the tire changed and Maya’s husband and his friends headed towards the market (bazaar), whereas Maya was seated in the car.
- Meanwhile, a man in plain dress stopped by and misbehaved with Maya Tyagi. She told him he had no manners whatsoever, meanwhile, her husband reached there and started abusing the man and threw him down. The person got up and left the place after which someone informed them that that person named Narendra Singh was the superintendent of the place.
- When the driver came back, all of them wanted to leave the place as they were frightened, but the car couldn’t start. So, Maya’s husband and his friends started to push the car with all their might.
- However, when the car had moved 4 to 6 paces, an army of around 10-11 policemen, including Narendra Singh, reached the place.
- The S.I. came from behind and fired on Ishwar Tyagi and his two friends, also attacking them with sticks (dandas). Further, four police officials pulled Maya Tyagi out of the car and started assaulting her. They even tore her blouse, petticoat, and saree, thus stripping her to nothing.
- When someone offered her a towel and a Tahmed she was not permitted to take it and cover her. She was also assaulted with lathis and slippers when she tried to cover her body.
- Later, she was paraded naked from the place of incident to the police station and was asked to take a round in the same condition around the police station.
- After that she was placed in a room with iron bars. Sadly, three sub-inspectors and three constables came there and raped her in turns. As a result, she started to bleed. Further, an inspector visited the room and assaulted her with a cane and pulled her breasts and inserted a stick (danda) in her vagina.
- A report was lodged under Sections 399, 402 and 307 of the IPC and Sections 25 and 27 of the Arms Act.
The Allahabad High Court held the accused guilty of committing rape. Three police officials were given the death penalty but were later overturned and sentenced to life imprisonment. The other police officials were punished with either imprisonment for up to seven years, three years, two years, or one year, according to the gravity of the act committed.
Reforms brought by the case
- This case led to a legal reform that marked the difference between custodial rape and rape.
- Maya Tyagi, the victim in the case, was supported by the then Prime Minister, Chaudhary Charan Singh, and several women’s organisations and political parties carried out protests against this mishap and atrocities by public officials.
- Further, a Parliamentary debate was held for the ever-increasing rates in rape cases.
Smt. Rameeza Bee v. D Armugam (1978)
This case stirred up extreme agitation in Hyderabad and other parts of Andhra Pradesh. Also, riots in the streets of Hyderabad were carried on. Here, a woman was allegedly raped by police constables, and her husband was killed because he raised his voice against such a barbaric act. Moreover, 18 police stations were burned down in protest, and 26 people lost their lives in police shootings. A curfew had to be imposed to control the riots.
Facts of the case
- On March 29,1978, Rameeza Bee, a working class woman, aged about 26 years along with her husband, Ahmed Husain, a rickshaw puller by profession were returning from a late night movie show.
- To answer nature’s call, her husband strapped out of the auto rickshaw, whereas, Rameeza remained seated inside the vehicle.
- Two constables, named Rao and Hussain, on watching her sitting alone, caught hold of her and dragged her to the Nallakunta police station. She kept protesting and saying her husband was with her and that she was waiting for her husband but the constables refused to pay heed to her cry.
- Meanwhile, Rameeza Bee was illegally detained and raped by police officials on that night.
- She was led into a room by sub inspector T. Surender Singh, who then locked the door of the room from the inside and asked her to remove her burqa. When she refused to do so, the inspector removed her burqa, her saree, petticoat and blouse.
- Rameeza tried to cover her body with her arms but the officer burnt her left arm near the elbow joint with a cigarette.
- A blanket was spread on the floor and the inspector and three policemen took turns to perform such a gruesome act.
- In the day, two policemen with Rameeza visited her residence to summon her husband to the station. Meanwhile, Rameeza narrated the whole incident to him and he protested against the assault. He was beaten mercilessly, to that extent that he suffered injuries in his kidney and lost his life.
There were a series of dissenting judgements given initially, but then a committee was set up that gave a just judgement. Let’s have a look at these judgments.
Judgement by Justice Mukhtadar Commission
The then Chief Minister, considering the violent protests across the state, was forced to institute a Commission of Inquiry, named the Justice Muktadar Commission, to inquire into and dig deep into the rape and murder cases of the victims. During the proceedings, the police tried their level best to fend for their fellow policemen by questioning Rameeza Bee’s character. They submitted evidence claiming that she was married several times and that her marriage with the deceased was invalid. They also asserted that Rameeza Bee was morally cohabiting with him and that she was a sex worker who was arrested in that context.
However, the Commission found the policemen guilty of rape and murder and implied that they be prosecuted for their wrongdoings.
Transfer of the case by the Supreme Court
The Supreme Court had transferred the case to the Karnataka High Court on the grounds that Justice K. A. Muktadar was already functioning as a Commission of Inquiry and that a fair trial could not be executed by a junior judge within the same state.
Judgement by Karnataka Session Court
The case was transferred to a District Court in Raichur, led by Session Judge K. B. Navadgi, for a just and fair trial. The Court reached the conclusion that Rameeza Bee was not a victim of rape. It further went on to claim that she was a “common prostitute” and her husband was a “pimp“. Sadly, the Court also said that Ahmed Hussain died a natural death as he took a cold shower after coming back from the Nallakunta police station and that he slipped on the floor, sustained injuries, and died before he was taken to the hospital.
The trial of the policemen was conducted in the Session Court of Karnataka. The police officers were acquitted in the case on the ground that the evidence submitted before the Commission was not admissible.
Reforms brought in by the case
In 1980, a request was made to the Law Commission to conduct research on the matter and suggest recommendations in the 84th Report, and a Bill was presented in Parliament in 1982.
State of Maharashtra v. C. K. Jain (1990)
Facts of the case
- In this case, a sub-inspector named Handraprakash Kewalchand Jain was accused of committing rape on a young, newly married girl who was aged between 19 to 20 years.
- The young couple were staying in a hotel room. The police officer, on the pretext that the couple revealed their false identity, asked them to accompany them to the police station, and on reaching the police station, the officer separated the couple.
- The police officer then took the girl to the first floor and started passing flirtatious comments on her, and when she refused to respond to them, he slapped her. He also went on demanding that she should lie about her age being 15 years to book charges against her husband, and when she refused to act as ordered, the officer threatened her, saying the consequences of such a denial would be dire. Her husband was kept in the other room, where he was beaten black and blue.
- In the morning, the parents of the couples were asked to visit the police station but when the couple claimed that they got married, their parents refused to accept them and left the police station in a moment of fury.
- The sub inspector then registered charges against the husband under Section 110 read with Section 117 of the Bombay Police Act,1951, and he was sent to court on his arrest. The case was filed under the allegations that he was witnessed misbehaving on a public street and was uttering filthy abuses in front of a lodge in Gujarat.
- After putting Mohammad Shaft behind the bars, the sub inspector sent a police officer to accompany the victim to allot a room to her at a hotel. Sadly, the sub inspector wanted to satisfy his animal lust and visited the same hotel and started knocking on the door. The girl, assuming it was her husband, opened the door.
- The sub inspector entered the room and asked the girl to disrobe, and when she refused, he threatened her with dire consequences. He then pushed her on the cot and forcibly undressed her, and had sexual intercourse with her. He said he would now send her husband back; however, after 30 minutes to satisfy his lust again, he returned and forcibly entered the room and raped her again.
- When her husband was back, she told him the whole story. Infuriated by the incident, her husband went back to the police station and informed police inspector Pathak about the same, who then informed his superiors of the incident.
- The victim and the sub inspector were sent for conducting a medical examination. A case was filed under Section 376 of the IPC.
The case went from session court to high court to the Supreme Court. Let us have a look at each of the court’s judgements.
Judgement of the Nagpur Session Court
The Nagpur Session Court sentenced the sub inspector to 5 years of imprisonment with an additional fine of ₹1000.
Judgement of the Bombay High Court
However, the Bombay High Court set aside the order and acquitted the inspector. The case was then appealed to the Supreme Court.
Judgement of the Supreme Court
The Hon’ble Supreme Court upheld the Session Court’s judgement and sentenced the accused to imprisonment for five years and a fine of ₹1000. The Court also stated that there must be no room for leniency in cases where the crime is committed by a person in uniform and that they should be penalised stringently.
P. Rajakumar v. The Additional Director General (2014)
Facts of the case
- In this recent case, the daughter of the victim filed a writ petition.
- Here, the victim, Chandra was brutally tortured by 7 male police officials while she was in police custody.
- The victim came from an economically backward section of society. In order to earn her daily bread and butter she used to wash dishes in a hotel.
- Chandra used to live in a rented apartment that belonged to Leelavathi.
- One fine day, Chandra was arrested by the police officials of Udumalpet Police Station, Tiruppur District, for allegedly murdering Leelavathi.
- After Chandra’s arrest, her daughter came to visit her And was in a state of utter shock to see her mother’s condition. She noticed that the police used 3rd degree measures on her, and also tortured her by injecting needles in her nails and fingers. They also hit her with lathis, inserted lathis in her private parts, hung her upside down thus making the conditions miserable.
- Even after carrying out several investigations by the Judicial Magistrate Udumalaipettai, the investigations did not favour the victim.
- Hence, a writ of mandamus was filed in the Supreme Court under Article 32 to transfer the investigation to another judicial magistrate.
- Here, the Court found that such a case falls under the ambit of the Supreme Court’s exception and, after looking into the facts of the case, ordered the Central Bureau of Investigation (CBI) to carry out an inquiry.
- The police officials were held guilty and suspended from their duties.
- It was also held that the state compensate the victim with an interim settlement of ₹2 lakhs.
Sheela Devi vs. State of Haryana and Anr. (2016)
Facts of the case
Not much information on the facts of this case is available; however, in this case, a woman was raped and murdered by a police constable. This incident occurred in the police station. This occurrence led to several protests across the state. Finally, the government had to take requisite actions and carry out amendments in matters relating to rape laws.
Amends brought in by the judgement
The Indian Government took quick action after the chaos that occurred, considering the unfortunate incident. Politician Raj Narain made an announcement that he will be fasting until the death sentence is pronounced against the rapists. After this incident, several amendments to the rape law as well as the legal definitions of rape were made.
Rajasthan custodial rape case
- In this case, a 35 year-old Dalit woman has claimed to have been raped by several police officials in Rajsthan’s Churu district after she was taken into police custody. She said, out of these police officials, one of them was the SHO (station house officer) of the Sardarshahar Police Station.
- The woman was allegedly raped, tortured, and detained by the police for several days on a stretch. She said, the police officials plucked her nails, hurt her eyes and later raped her and that the act was allegedly initiated by the SHO.
- She also claimed that she and her brother-in-law (now deceased) were framed in the case of theft and were wrongfully detained in the same case.
- The alleged victim also claimed that when she met her brother-in-law in the police station he told her how he was tortured and beaten to death in police custody.
- Considering all the above occurrences, a letter was written to the Chief Minister to seek relief; following which an FIR reporting the crime was lodged.
- The case has now been transferred to the Crime Investigation Department’s crime branch.
Case law on custodial rape where false allegations of custodial rape were imposed on police officials
The above cases were instances of police officials being guilty of the offence of custodial rape, however, there are some cases where false allegations are imposed on people in authority for one’s own ulterior motives. Below is one such case.
Arati Majhi v. State of Odisha (2014)
Facts of the case
- In this case, a petition was filed by the victim’s father under Section 176(1a) of the CrPC claiming that on 12th February, 2010, around 4 a.m., while a special inquiry was carried out by the Special Operation Group and Central Reserve Police Force for conducting anti-naxalite operations, the petitioner’s daughter and his nephew were taken into the custody of the Central Reserve Police Force (CRPF).
- He further claimed that his daughter and nephew were taken to the police camp at Paralakhemundi, where they were tortured and assaulted. Furthermore, his daughter was gang raped by the officials. Both the victims were then sent to judicial custody at R. Udayagiri sub-jail.
- The victim’s father claimed that the faces of his daughter and nephew were covered in black cloth when they were produced in front of the magistrate. Also, they were not permitted to address their grievances before the magistrate.
- The father then stated that he met his daughter once in March and five times later who kept narrating the same incident to him for which he tried to file a complaint but his efforts were in vain. Hence, he prayed that an enquiry be carried on in this matter.
- After submitting this petition, an enquiry was carried out and all the witnesses including the victim, her father, the officer who arrested her and the lady constable who escorted her to the court were cross-examined.
- On examination, it occurred that the facts given by the daughter and her father in the petition were contrasting. The victim said she was raped by five officers where as per the petition she was raped by three officers. Further, the victim claimed she was raped en route in a jungle while bringing her to Parlakhemundi, whereas, as per the petition, the victim was taken to the camp at Parlakhemundi and was raped and tortured there.
- Additionally, no complaint was filed when the incident occurred and that there is a delay of six long months in filing the application and there is no reasonable justification from the petiions’s side for such an inordinate delay.
- The facts of the case were examined and cross examination of the witnesses were conducted in a critical manner.
The Orissa High Court, considering the aforementioned facts, reached the following verdict:
- There is no need to conduct an inquiry into the alleged rape perpetrated by the police officer when there is no prima facie evidence.
- Further, the Court said that there is barely any scope for conducting an enquiry in this matter.
- Since no prima facie evidence exists against the officers, the girl cannot be said to have been raped in police custody and it a case of false allegations against the officials.
- The High Court dismissed the complaint on the grounds that there was no merit, whatsoever.
Present scenario of custodial rape in India
Sexual harassment or violence can be regarded as one of the markers of male dominance. Additionally, as per the report “Crime in India 2021’ published by NCRB, it was found that 31,677 cases of rapes were registered in India, with an average of 86 everyday and around 49 cases of crimes against women were lodged every hour.
There is no proper data on custodial rape cases, however, as per NCRB data, between the period of 2001 and 2018, only 26 were convicted of custodial violence, whereas, around 1727 deaths of such instances were recorded in our country. Further, from 2015 to 2019, 36% of deaths were reported to be by suicide when the individuals were in the custody of the police, whereas only 6% of the cases were recorded under the category of physical assault by police officials. Moreover, in the last 10 years, around 403 out of 1004 deaths in police custody, which accounts for about 40% of the total deaths, were listed under the category of death due to hospitalisation, illness, or natural death.
Also, as per the 2015 report published by the NCRB, titled ‘Crime in India 2015’, out of 34,651 rape cases in India, 95 were that of custodial rape. Amongst these cases, the highest number of custodial rape cases were recorded in Uttar Pradesh, with a whopping 91 cases, followed by Uttarakhand, where 2 cases of custodial rape were reported. Then, one case each of custodial rape was reported in Andhra Pradesh and West Bengal.
Moreover, in 2016, only 26 cases of custodial rape were reported. Out of these cases, 11 were from Uttar Pradesh.
Furthermore, as per the 2018 report by NCRB, Madhya Pradesh had the highest number of rape cases for three years, where out of 5433 cases, 54 cases were related to children below the age of six years.
The challenges against custodial rape
Custodial rapes typically occur at police stations, jails, and other places where the evidence is under the control of public servants or authorities. It becomes quite tough to register an FIR against such an individual, namely because of the following reasons:
- Police or other officials refuse to acknowledge or lodge a complaint of the victim. further , victims often face obstacles or difficulties in registering a complaint due to various reasons.
- There is political pressure on the authorities to subdue statistics on crimes, including statistics on custodial rape.
- The informal practices of police officials and other authorities are recorded in the form of a Community Social Register, commonly known as a CSR, instead of an FIR. This makes it quite easy to erase records of such offences.
- Further, Section 197 of the Criminal Procedure Code states that legal proceedings against a public servant cannot be conducted for any act he does to perform his official duty.
Law reforms on provisions relating to custodial rape
As observed above, the cases of custodial rapes were on the rise, and the process of penalising the officials for such barbaric crimes was quite challenging; hence, the women’s moment demanded that there be an enactment of law related to custodial rape. This led to a series of reforms, some of which are listed below:
Expansion of the term ‘custody’
Over a period of time and with the efforts put in by women’s movement activists’, the horizon of the term ‘custody’ has been given a broader meaning since 1983. Before 1983, it was “rape by police officials in the police station”, whereas now it includes:
rape by police officials in the police station and the victim in custody;
rape by a public servant committed on a woman when she is in his custody;
rape committed by an army official at a location where the forces are deployed;
rape committed by the management or staff in a jail, prison, remand home, women’s home or other such places where women are kept in custody; rape by hospital staff where a woman is in custody.
Burden of proof
Under criminal law, the burden of proof lies on the victims, i.e., they have to evince the guilt of the accused. Here, the accused is considered innocent until proven guilty. Further, under Section 114A of the Indian Evidence Act, 1872, the cases of custodial rape were investigated. As per Section 114A, if the prosecution achieves the goal of proving that the act of sexual intercourse was committed without obtaining her consent, then the court will presume the absence of the consent. With the addition of this latest provision, the accused has to prove the onus, i.e., that woman consented to sex.
Further, in the case of Nawab Khan and the State (1990), the Madhya Pradesh High Court reached a decision that if the victim on whom a sexual activity is conducted, states that it was by her consent, the court must accept such a declaration, and the burden of proof will fall on the accused to prove that the intercourse was consensual.
Non-performance of duty will result in penalty
An amendment was carried out in criminal law in 2013 that stated that if a government official does not lodge a report of rape charges even after the victim approached him to do so, it will be conceded that the officer assisted the offender to commit such an atrocious act. The same is punishable under the law. The amendment states that if the police officer does not lodge a complaint against the offender, he will be punished with imprisonment for life and also be held liable to pay a fine.
Action against not registering an FIR
When it comes to custodial rapes, there have been instances where the police officers have denied to record an FIR (First Information Report). However, with the 2013 Amendment that embodied Section 166A in the IPC that states that a public servant will be penalised if he/she refuses to register an FIR in the following cases that are cognizable in nature:
- Section 326A,
- Section 354,
- Section 354B,
- Section 370,
- Section 370A,
- Section 376,
- Section 376A,
- Section 376 AB,
- Section 376B,
- Section 376C,
- Section 376D,
- Section 376 DA,
- Section 376 DB, and
- Section 376E.
For not following the provisions, the minimum punishment is 6 months, that may be extended to 2 years, and shall also be liable for a fine.
No prior permission needed from the government
Before an amendment was carried out in 2013, wherein, Section 197 of the CrPC was modified. It had a provision that mandated the prior approval of the government before prompting any proceedings or inquiry against a public servant for an act committed in the discharge of their official duties. If it is stated that the aforementioned requirement is no longer a necessity, actions can be taken against a public servant if they are alleged to have committed a wrong under Section 375 of the IPC.
Oftentimes, the punishment sentenced for the crime is directly proportional to the gravity of the crime committed and is generally an indicator of the seriousness with which the crime is treated by the law. With the 1983 Amendment, the punishment for custodial rape was increased in comparison to rape committed by an ordinary person. A minimum of 10 years of rigorous imprisonment, which could be extended to life imprisonment, along with a fine, was prescribed under the law.
Amends and reports on custodial rape
The 172nd Report by the Law Commission of India
The 172nd Report by the Law Commission of India was a result of a petition made in the case of Sakshi v. Union of India (2004) to draw the attention of the Apex Court to the fact that the laws on rape are not adequate so as to cover various sexual atrocities against women and children.
A draft amendment to modify the provisions of the IPC was proposed by Sakshi, a voluntary organisation that works for the welfare of women and children. The Law Commission thus prepared the draft keeping in mind the suggestions of the organisation.
In this Report, recommendations were made to amend Section 375 of the IPC and make it gender neutral, along with modifications in sections 376, 376A, 376B, 376C, and 376D. The Commission also advised that a new Section 376E must be incorporated that deals with illegitimate sexual contact, the omission of Section 377 of the IPC, and the intensification of punishment under Section 509 of the IPC.
The Report focuses on the need to review the rape laws in light of increased incidents of custodial rape and crimes of sexual abuse against youngsters. The crime of sexual assault on a child causes lasting psychic damage to the child, and as such, it is essential to prevent sexual abuse of children through stringent provisions. The United Nations Conventions and various constitutional provisions also underline the need for protecting the child from all forms of sexual exploitation and abuse.
The 1983 Amendment
The Criminal Law Amendment Act,1983, made modifications to the Indian Penal Code and incorporated provisions for custodial rape.
The 2013 Amendment
Certain changes were brought in by the Criminal Law Amendment Act of 2013. This Amendment Act modified sections 376B, 376C, and 376D with regards to custodial rape. The provisions of sections 376B and 376D were included in Section 376C. Further, the penalty was increased from five years of imprisonment along with a fine to ten years of imprisonment along with a fine.
Preventive measures to annihilate the issue of custodial rape
The nature of custodial rape is extremely autocratic, and it is quite difficult to punish the wrongdoers who commit such offences. We need stricter legislation that can make sure the position or authority of a person does not matter when it comes to sexual violence and crimes.
Even with the recent amendment in the Criminal Procedure Code, quick trials of cases on matters relating to sexual offences are still a dream, the reason being that there are several cases long standing in the courts. The following steps can be taken to curb the issue of custodial rape:
The Union Minister had offered a suggestion that cases of rape, sexual harassment, and sexual assault can be resolved at a quicker pace, provided there are specific courts to serve the purpose. It is high time measures are taken to establish such courts.
Implementation of human rights courts
It is not a fact unknown that courts in India are burdened with several cases, and the conviction rate, too, is not quick paced. So, to help the judiciary in cases of sexual violence and custodial rapes, human rights courts could be incorporated in every district and every case falling under the aforementioned category could be discussed and settled at a quicker pace.
Appointment of female constables across every police station
Female constables must be appointed in all police stations so as to make the environment for female victims to be safe and secure.
While states have been instructed to compulsorily reserve 10% to 33% for women in police, no state has succeeded in achieving that goal. Further, only 12% of women were in Indian police services in 2020.
Set up an internal complaint committee
In every police station, an internal complaint committee for all the females working there must be set up. Additionally, a rapid response desk must be incorporated so as to include complaints of custodial rape.
Usage of technology
The Supreme Court in a recent case, Paramvir Singh Saini v. Baljit Singh (2020), had ordered that CCTV cameras be installed in all the police stations in India. Further, it also stated that such cameras must also be installed in interrogation rooms.
Installing CCTV cameras in police stations and prisons across the country, establishing human rights commissions, and making surprise visits to jails and lock-upd by non-official people will help limit the cases of custodial rape and torture.
Further, you must be aware that there were cameras in prisons earlier as well, however, they were installed in areas like a mess, exterior walls, towers, etc., they were installed to be careful that no prisoner escapes the prison, and in case they succeed in escaping, the same can be captured in the CCTV footage. Also, it must be noted that installing a CCTV camera will not automatically help reduce or prevent custodial rape and torture, but will only make conviction easier as the activity will be captured in the camera, thus being a credible source of evidence.
Installing cameras in police stations
Installing cameras in police stations is far more effective than that in prisons, as police stations and lock-ups are the major sources where such issues have been witnessed to occur. This is not to say that cameras should not be installed in prisons at all. They can be added in common areas like corridors but not in barracks and cells so as to protect the right to life and personal liberty of the prisoners. Other options could be to install cameras in cells and barracks while maintaining a balance between the safety and privacy of the prisoners. You might wonder how that could be. Let’s see.
If CCTV cameras are installed in barracks and cells, they shall not be activated until there is a need to do so. The same can be done through alarm buttons that could either be pressed by one of the prisoners or someone from the prison authority. So suppose, if any activity is detected or there is an activity that should be recorded, the prisoner or the authority can quickly press the alarm button, record the act, and then put it off, hence being used only when they are an absolute necessity.
It is important that any individual who fraudulently accuses a public servant on the charges of custodial rape, be penalised with a hefty fine and imprisonment so as to create a deterrent effect. Accusing someone of false rape charges must be termed a serious offence, and the wrongdoer must be penalised strictly, as such accusations have the ability to ruin the lives of public servants.
Even though rape is a serious offence taking place all across the world, there are individuals who accuse someone of rape to seek attention, and later, upon interogation and inquiry, such claims are found to be untrue. False rape accusations are significantly less common in comparison to actual rape cases, but they can have far more devastating effects on the public at large. The most common reason for false accusations of rape is to seek revenge against the individual, for they are under the notion that they have been betrayed.
The role of society in helping curb the issue of custodial rapes
Society plays a major role in shaping any aspect of the community. Tomorrow is too late, and we, as individuals belonging to the same society, must stand up and raise our voices against atrocities against the females of our nation.
With evolution, society too has evolved and is witnessed to take measures against issues like custodial rape, inter alia. We have several NGOs that work hard for the victims of such happenings. Further, several political parties and women have joined hands with such NGOs to combat the issue. Moreover, the government is seen to be gearing up in such cases. Additionally, females in the 21st century are no longer afraid to raise their voices in case such a mishap happens, and they are also supported by their family members and friends to fight against such atrocities; take, for example, the Nirbhaya rape case, where the whole country, including her parents, raised their voice against such a mishap.
Also, police officials and public servants are understanding the gravity of such crimes, as many activists are spreading awareness about such delicate issues. Women are getting the liberty to raise their voices, and it can safely be said that India is growing into a better, safe, secure, and more effective nation.
Custidal rape is the worst mark a woman could possibly have, it is even worse than murder, especially in a developing nation like ours. However, when it is executed by someone we trust and rely upon to safeguard us and our rights, it becomes even worse. Custodial violence in India has been a major human rights issue for decades on a stretch now. It is also one of the most significant causes of hindrance to democracy and the development of human beings.
Even though an amendment has been brought in by Parliament on rape laws in the country, there are several judgements like that of the Mathura rape case that are still not successful in serving justice to the victims of such remorseless activity.
India still needs several modifications in the case of legislation on custodial rape to provide justice and eliminate the issue of custodial rape. We need stringent laws along with an emendation in the existing laws, thus making it easier and hassle free for women or the aggrieved party to lodge a complaint. Further, even when the punishment for custodial rape under Section 376 of the IPC states 10 years, most of the rapists get through with a punishment of three to four years.
Moreover, the victims are scared to report incidents of custodial rape as they fear the rapists are in authority and that their lives could be in danger if they raise their voice against a public servant. Additionally, even if they register a complaint, the evidence stays with the public servants, and they can easily destroy, edit, or modify it. Moreover, the number of cases of custodial rape is lower because of governmental pressure to show fewer crime rate statistics.
In order to curb the issue of custodial rape, it is crucial that preventive measures be taken and stringent action be brought against the rapists, irrespective of their position, power, or authority, only then will the cases actually reduce in India.
Frequently Asked Questions (FAQs)
What is the punishment for custodial rape in India?
In India, custodial rape is one of the most barbaric crimes that came to light between the 1970s and 1980s. The punishment for the same is imprisonment for at least ten years, that is extendable to life imprisonment, and a heavy fine.
Is there a severe punishment for repeat offenders of rape?
Under Section 376E of the IPC, an individual who has been formerly convicted of an offence punishable under Section 376 or Section 376A or Section 376D (i.e., committing rape, causing death or vegetative state in the course of committing rape, or committing gang-rape) and is again convicted for an offence under the aforementioned sections, the person can either be given a death sentence or a sentence of life imprisonment will be ordered against him. However, a point must be made that a previous conviction must be present, followed by the next conviction, to sentence the offender, as mentioned above.
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