Rape
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This article is written by Shreya Malhotra, from Symbiosis Law School, Hyderabad. This is an exhaustive article which deals with whether imposing harsher punishment for rape a right thing to do.

Introduction

The vicious gang-rape and murder of Nirbhaya on December 16, 2012, gave India a huge shock. The occurrence of this incident caused a vast outburst of sorrow and rage, and people from all over took to the streets in the asking for justice. Many people demanded justice in the form of the death penalty as this case has probably been the case after any leading incident of viciousness against women and children. The 2013 and 2018 Criminal Law Amendment Acts reiterated this idea, presenting capital punishment for the rape of women and children along with several other new laws.

Pertaining speed with time, the policy response to speedy trial authorised shorter investigative and trial periods under the Criminal Law Amendment Act, 2018. Nonetheless, harsher punishments as an intermediary for fairness and shorter timeframes for entangled processes in the appearance of speedy trial assume a world totally different from the real world. We don’t have far-reaching, long haul studies that measure the impact of harsher punishments on the pace of sexual savagery – yet proof from India and different nations show that capital punishment does not impede violent crime. There’s likewise a worry that if sentences are thought of as excessively harsh by the appointed judicial officers, the already high acquittal rate in instances of sexual viciousness will rise further. This article will mainly deal with the question of the requirement of harsher punishment for the offence of rape in India. 

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Legal history of rape

‘Rape’ was first introduced in the Indian Penal Code as a specifically defined offence in 1860. Preceding this, there were frequently assorted and clashing laws winning across India. The codification of Indian laws started with the British Parliament’s enactment of the Charter Act, 1833 which led to the creation of the first Law Commission under Lord Macaulay’s chairmanship. The Law Commissioners also agreed to the criminal law of the land into two different codes. The first to be set on the statute book was the Indian Penal Code defines the substantive criminal law. This was authorized in October 1860 however brought into force on January 1, 1862.

The principal Code of Criminal Procedure was enacted in 1861, consolidating the law relating to the establishment of criminal courts and the system to be followed in the examination and trial of the offence.

Indian Penal Code defines Rape under Section 375 that made a man with a woman punishable for sex if it was done without her assent. The definition of rape additionally involved sex when her assent has been acquired by placing her or any individual in whom she is intrigued, in danger of death or harm and provides punishment under Section 376 with rigorous imprisonment for a period of ten years up to imprisonment for life including fine. 

Harsher punishment a means to secure high conviction rate for rape

Death for the crime of raping a child was the loudest demand in the outrage that followed the rape of two children, in Kathua and Unnao. An ordinance was also issued raising the maximum punishment for raping a child under 12 yrs. of age to a death sentence. Still, it’s an open question whether or not it can deter future offenders.

Economists believe that if the severity of the punishment is high and in the eyes of the offender the probability of being convicted is reasonable, he will be dissuaded from crime.

Some people do believe that by punishing the offender, the victim has been retaliated. Some also accept that it will act as a hindrance and stop rapes by providing harsher punishments. There have been several occasions since 2012 that the State has reacted to the demand of the people and law has been amended twice to give capital punishment in instances of brutal rapes, recurrent guilty parties and rape or gang rape of underage girls below 12 years. However, a provision for capital punishment in the law doesn’t guarantee that capital punishment will be conceded.

Awarding of the capital punishment is subject to the doctrine of the ‘rarest of rare cases’ as per which a death sentence is to be articulated only in those situations where the wrongdoing has been committed in a very cruel, boorish or grisly way to be shrouded in the rarest of rare cases category.

In cases where capital punishment is in all actuality or issued, it takes years to execute. The same is visible in Nirbhaya’s case where the rapists were condemned to the death penalty by a Fast Track Court in 2013. Furthermore, the execution was carried out after over 7 years.

Some people do believe that imposing harsher punishments on criminals will deter the crime rates against women because most people do not fear and harsher punishment will create a huge fear among the people before they could commit any crime. On the other hand, some of them say that harsher punishment is not a complete solution for deterrence of crime rates against women because there is no material evidence to show that it deters crime and usually the accused convicted for a harsher punishment is likely to get out of the jail on bail etc., and the criminal might then create more problems for the victim and it might also increase the murders of rape victims by rapists. However, harsher punishments will lead to deterrence in crime is still an open question because there is no such evidence or proof to suggest that harsher punishments lead to deterrence in crime. 

There are some other solutions which could help more in the deterrence of crime of rape as compared to harsher punishment alone. A few of them are:

  • Police to ensure law and order:

The complicity of the nearby cops in the Unnao case delivered the terrible truth of the nexus between the powerful and the police. The average resident depends on the police to forestall wrongdoing, so the most significant response is police reform. The principal challenge is that of the police’s ability to ensure law and order and examine cases. India has approximately 135 police officers for 1,00,000 individuals, probably the lowest figure in the world. Hence, it becomes very important to have a strong police force. 

  • Quick & Fair Justice System:

The courts’ high pendency rate has been a legend and after the Delhi rape case, the judiciary’s go-to solution has been setting up of fast-track courts to rush a verdict in a sexual assault case. The first idea was to employ additional judicial officers and build up a new infrastructure for the establishment of these courts. But these courts don’t vary from the typical courts in any considerable manner. In addition, the strain to dispose of cases quicker has decreased the immunity of their decisions from the challenge in higher courts, where decisions bog down further and are regularly toppled, sometimes for not having pursued due process.

A quick and fair system of delivery of justice is essential for the deterrence of wrongdoing, and a wide scope of changes such as expanding the number of judges, enforcing case-management frameworks, strict rules for adjournment grants, etc. have been suggested by the Law Commission. As familiar a phrase, as it may seem, enforcing these changes, is urgent to accomplishing an efficient justice system in the nation.

  • Change in mindset:

A fresh and progressive mindset about rape is an important shift. Although now women have become much more confident while reporting rape cases but it’s still quite obvious for women to abstain from disclosing sexual harassment because of the fear the stigma it will carry. This moulding makes it possible for criminals to go without any penalty and rebuffs the person in question. An expansion in the mindset or broaden viewpoint is also a necessity to bring a change in society. 

Harsher punishment for rape around the world

Let us look at some countries who provide harsher punishment for the offence of rape:

India 

After passing of the Criminal Law Amendment Act, 2018 the guilty are to be punished with rigorous imprisonment for a period of 10 years, which may stretch out to imprisonment for life including fine and even include the capital punishment in the rarest of rare cases. 

Malaysia

According to the Malaysian Penal Code, whoever commits the offence of rape shall be punished with imprisonment for a term up to a period of twenty years, and will likewise be liable to whipping.

Saudi Arabia

Saudi Arabia has severe standards against rape. Criminals are first sedated and afterwards killed out in the open. Being an Islamic nation, Saudi Arabia acts in a manner to the Islamic Sharia laws. The guilty is decapitated out in the open, and the body and the head are then sewed together. Guilty can likewise be condemned to death by stones which implies that the stones shall be showered upon him until the spirit does not exit his corpse.

Iran

The criminal is slaughtered out in the open, either he is hanged or shot. Criminals can sometimes get away from capital punishment if the victim permits it. Nonetheless, even if the victim permits it, the offender is still liable for 100 lashes and some time of imprisonment in certain cases.

Afghanistan

In this country, the rapist is shot in the head within 4 days of the commission of the offence or hanged to death depending on the judgement delivered by the court.

Landmark cases related to rape

These are some other famous cases of rape in the course of the most recent couple of years that have caused far-reaching concern:

Vibgyor child rape 

This case in July 2014, created an immense shock in the population of Bengaluru when news of the rape of a six-year-old girl child in the affluent Vibgyor school in Varthur, was reported. The occurrence drew all-round judgment and a bandh was sorted out by Kannada associations to feature ladies’ wellbeing issues in the city. Two gymnastics coaches, Lal Giri and Wasim Pasha were arrested in the case. The last charge sheet implicated the chairman of the school, Rustom Kerawala, notwithstanding the two denounced. They are being prosecuted under the POCSO Act. The case is significant on the ground that it saw changes being made to the State Goondas Act that empowered bringing sex guilty parties under its ambit.

Shakti Mills gangrape case

In the case, the State of Maharashtra v. Vijay Mohan Jadhav and Ors. commonly known as the Shakti Mills Gangrape case in August 2013, a 22 years old photojournalist was interning under a magazine in Mumbai. One day when she with her male colleague went to the deserted Shakti Mills compound for an assignment purpose in South Mumbai, she was then gang-raped by 5 men, including 2 minors. The victim was threatened that her photographs would be leaked on the web if she whined. This caused dissents all through the nation. The Sessions Court saw the denounced as blameworthy and awarded with the death penalty to the three of them who repeated offenders in the Shakti Mills gangrape case, making them the first in the country to get capital punishment specified under the recently enacted section 376E of IPC. Two other charged were minors who were attempted and condemned to three years in juvenile custody by the Juvenile Justice Court in Mumbai.

Kathua rape case

Vishal Jangotra @Shamma And Anr. v. Union Of India, also named as The Kathua rape case alludes to the abduction, rape, and homicide of a small 8-year-old girl child, Asifa Bano in January 2018 in a village called Rasana near Kathua in J&K. A charge sheet was filed against the 8 accused and when arrested the trial began in Kathua in April 2018. Asifa belonged to the Bakarwal people group. She disappeared for seven straight days and her body was then found by the locals approximately one kilometre away from her village.

This act made worldwide news when the charges were recorded against the accused in April 2018. Finally, on 10 June 2019, six of them were convicted and one was acquitted. The court condemned the mastermind of the whole plan Sanji Ram, who is a retired government official and priest of the temple where the wrongdoing occurred, special cop Deepak Khajuria and Parvesh Kumar the nephew of Ram, to lifetime confinement.

Surender Verma, a Special Police Officer, Tilak Raj a head constable, and Anand Dutta the sub-auditor were granted five years in jail for wrecking proof. The court released the seventh denounced, Vishal Jangotra, child of Sanji Ram, providing him with the “advantage of doubt”. In October 2019, court-ordered a First Information Report (FIR) against 6 individuals from the Special Investigation Team (SIT), which tested the case, for supposedly tormenting and constraining witnesses to give bogus explanations.

Priyanka Reddy rape case

In G.S. Mani v. Union of India case, Dr Priyanka Reddy, a veterinary doctor from Shamshabad in Hyderabad was found dead with her body partially burnt under the Chatanpally bridge in Shadnagar, Hyderabad. On 27 November 2019, when she was returning home from her job around 9 pm, she was raped, smothered, and then burnt by four men. While she was returning home she found that her scooty’s tire had been punctured, then suddenly 4 men came and asked her if she needed any help, when she refused, one of them took her scooter and went in search of some garage, while she was waiting there she called her sister and said that she is not feeling safe, her sister asked her to keep talking but she said that she will call in some time. When the sister tried contacting her again her phone was switched off. When her family could not contact her, they went to the police station for filing an FIR but the police delayed in registering the FIR and when they started searching for the victim her body was found half burnt under a bridge about 25km away. The police after investigating arrested 4 people and they accepted their crime. Later on, all the convicts died in an encounter by Hyderabad Police.

Conclusion

The Criminal Law (Amendment) Act, 2013, and 2018 have been a solid step taken by the Indian government to curb viciousness against women. There are as of now sufficient laws endorsing deterrent punishment for offences against women. What is required is a solid enactment. A more stringent law serves no purpose unless there is a structure in place to ensure that it is implemented on time. Rather than concentrating on the powerful execution of the convictions, there has been a disproportionate spotlight on the improvement of punishments. There is a need for increasing conviction rates along with harsher punishment. It must be noted that it is not the severity of the punishment alone that will deter crime rather, the assurance of it that will help.

References

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