This article has been written by Sushant Biswakarma, from Symbiosis Law School, Noida. This article critically analyses of existing rape laws in India, their scope and limitations.
Table of Contents
Introduction
Rape is one of the most heinous crimes a person can commit. It is not just a heinous crime but a huge disgrace to mankind as a species. It is a sexual assault that usually involves sexual intercourse with a person without their consent. In this article, we shall learn what rape is as per Indian statutes, the importance of express consent, and against whom rape can be committed.
Along with these, the article will talk about punishments for rape, and discuss various case laws regarding the same.
Laws regarding rape in India
The National Crime Records Bureau (NCRB) releases an annual report every year that shows the data regarding the crimes against women committed in India. It is saddening to see in the report that rape is one of the most common crimes committed against women in India.
Rape has been defined under Section 375 of the IPC (Indian Penal Code, 1860), which states that rape is said to have been committed when a man has sexual intercourse with a woman:
- Against her will;
- Without her express consent;
- By obtaining her consent by force, or threatening to kill or hurt her or someone she cares about;
- By making her believe that the man has been lawfully married to her;
- By obtaining her consent during unsoundness of her mind, when she was intoxicated, or by providing any other substances that might affect her decision-making ability;
- With or without her consent if she is under 16 years old, and 14 years old in case of Manipur.
This clause also states that mere penetration is sufficient to constitute sexual intercourse, which can be treated as rape.
What is rape
Now that we have read the statute that describes rape, we need to understand what acts actually constitute rape. Is penetration even necessary for rape? What if consent was not expressly given but the intercourse was not expressly denied?
To understand all these and other questions that might arise in our minds, we need to look at the various judgements of the Supreme Court and High Courts and extract our answers from them.
In the case of Sakshi v. UOI, the Supreme Court shed light on the definition of rape and held that ‘only heterosexual intercourse, i.e, penial and vaginal penetration will be considered as rape within the purview of Section 375 of the IPC’.
The reasoning of the court behind this verdict was that there can be many forms of sexual abuse and all of them are horrific, however, not every sexual offence can be considered as rape. Therefore, penetration is necessary in order to constitute the offence of rape.
Also, in the case of Smt. Sudesh Jhaku v. K.C.J. & Ors, the Supreme Court held that insertion of foreign objects such as a bottle into a female’s vagina may cause trauma and long-term psychological damage to the victim, however, such act would not fall under the definition of rape under Section 375.
It was the view of the court that, insertion of foreign objects will be punishable under Section 354 of the IPC, which states that an assault or use of criminal force on a woman in order to outrage her modesty will be punished with imprisonment for up to 2 years.
But, the Court has limited the definition of rape to penial-vaginal penetration without consent. While passing the judgement, the court failed to take homosexual rape, and anal or any other forms of penetration into consideration.
Is express consent required
The definition of rape under Section 375 of the IPC is unambiguous and clearly states that rape is said to have occurred in the absence of consent. But, it would not always be practical to give express consent orally or in writing. Therefore, the principle of “no means no” is followed, which simply means that express consent is not required, but, express denial means the absence of consent.
Now the question arises as to how one can prove the presence or absence of consent before the court of law. To answer that, we need to look at Section 114A of the Indian Evidence Act, which states that: ‘If the victim states in her evidence that the consent was not given, the court shall presume the absence of consent’, hence, the act will be construed as rape.
The Supreme Court in the case of Miss XYZ v. The State of Gujarat overturned the decision of the High Court of Gujarat which held that ‘the word of the victim can not be enough for punishing someone, the victim could be putting false allegations for money’, as in this case, the victim was ready to withdraw the case for a monetary settlement. However, the Supreme Court came to the conclusion that the High Court had made a massive blunder in failing to see that the settlement was being made under threat and coercion. After considering all material evidence present, if the victim says that the consent was not given, the court presumes her words to be true.
Also, in the same case, the victim was raped repeatedly by the accused, the former was not in a position to deny by expressly saying no as it would have been a threat to her life. Therefore, it is to be deemed as consent acquired by coercion or threat, rendering it to be invalid.
The Supreme Court has left no room for ambiguity on defining consent, consent need not be express, but forced consent or express denial will construe rape.
But this is not to be confused with consent acquired by a promise of marriage. In the case of State v. Sandeep, the High Court of Delhi held that we must move beyond “no means no” and also understand that “yes means yes”.
In the instant case, the accused had acquired the victim’s consent for sex by promising to marry her, and when the promise was not met, he was slammed with the allegation of rape. The court observed that the consent was neither acquired by force nor by coercion, it is also true that consent was given (though under false hopes), hence, this cannot be considered as rape.
If such cases are considered as rape, everyone can approach the court after breaking up a relationship. The woman can file a case for cheating or outrage of modesty, but not for rape, as she had given her consent.
It is not practical to expressly provide consent for sex every time, therefore, consent is deemed to be implied sometimes. Like, in cases of marriage, live-in-relationship, or any other kind of non-platonic relationship, the consent to have sex is deemed implied.
Marital rape
Marital rape refers to sexual intercourse with one’s spouse without their consent. However, it is an exception in Section 375, IPC. The provision clearly states that “sexual intercourse by a man on his own wife even without her consent will not amount to rape”.
Marital rape is a big problem in India, and most people believe such a thing doesn’t even exist. Wives are deemed to have given consent to sex every time her husband wants, which is not only degrading to women but a sinister law.
A survey conducted by an NGO – RTI Foundation, showed that every 1 in 3 married women in India is subjected to marital, which brings the number to about 83%. The statistics are very high, and the crime is heinous, however, the law still remains the same.
The aforementioned NGO had filed a petition in the High Court of Delhi, seeking amendment of the same. In the matter of RTI Foundation v. Union of India (pending), the court vide it’s previous order observed that acquiring a woman’s consent via force, or by any other means could amount to cruelty if not rape. Any other means could include cutting financial ties with her, not providing expenses for kids, etc.
The petition is still pending before the High Court and a pragmatic approach is expected from the court. Many developed countries such as the U.K and the USA have already criminalised marital rape. It is expected of our Courts to safeguard the equality of women by taking appropriate steps.
Why is marital rape not a crime
It is simple to assume that marital rape has not been criminalised because the statute decriminalising it was framed years ago when the society in India was completely different and the framers of the law used the best of their judgement while drafting it as per the current needs of the society.
The law was inhumane even then and it still is, however, there are some eminent jurists who are in favour of leaving the provision un-touched.
The former Chief Justice of India, Mr Deepak Mishra in a press conference said that ‘there is no need to criminalise marital rape as such laws might create absolute anarchy and will ruin our Indian family values.’
This argument might seem harsh and cruel at first, but on further analysing it, we can understand that the society in the west is very different from ours, customary laws are different and even our religions are different, all these factors combined with a high rate of illiteracy make such an environment where people are not ready for marital rape to be criminalised.
The aforementioned argument is made from a very conservative approach, neglecting modernisation and women empowerment. It not only neglects women empowerment but even takes away their right to equality.
In the case of Independent Thought v. Union of India, the Supreme Court took a very pragmatic approach that marriage is no longer a social contract but a personal relationship, and not even criminalising marriage itself can destroy the institution of marriage. If laws like divorce and judicial separation could not destroy marriage, it is very unlikely that criminalising marital rape will. Even though marital rape is still not a crime, we can hope for the laws to change in the near future.
Can men be raped by women
The definition of rape in IPC is very narrow and has made it absolutely clear that only forceful vaginal penetration by a man will amount to rape. So, as per our laws, men can never get raped and women can never be guilty of rape.
The only provision that can protect men from sexual offences is Section 377 of the IPC, wherein the offender either a man or a woman can be held guilty of forced carnal intercourse. However, forced intercourse with a man can not amount to rape.
The unequal treatment by our statutes based on gender is mainly due to our society, where men facing sexual abuses are subject to ridicule. With numerous myths flowing around such as: ‘men are not vulnerable’, ‘men always want sex’.etc, it is unlikely that our laws will see a change to support in the near future.
Gender doesn’t matter in case of a child, whether male or female – all children are protected from sexual offences under the POCSO Act.
Homosexual rape
Section 377 of the IPC used to criminalise even consensual sex among people belonging to the same gender as being ‘unnatural’. A ray of sunshine was brought upon by the Supreme Court in the case of Navtej Singh Johar v. Union of India, wherein consensual gay sex was decriminalised.
This is just a baby step towards achieving equality amongst our society. However, non-consensual homosexual intercourse will not amount to rape, as there are no laws regarding it. Any forceful carnal intercourse will merely be conceived as sexual offence and not rape.
Punishment for rape
Prior to the Nirbhaya Case, Indian statutes considered only penile-vaginal intercourse under the definition of rape, and forcible penetration of any foreign object to vagina, mouth, or anus did not fall under this ambit. Due to the silence of law, many accused persons walked free even after having committed such heinous crimes.
The definition was expanded after this case to include forceful insertion of foreign objects within the definition of rape.
The punishment for rape has been provided under Section 376 of the IPC. According to this section, the punishment for rape will be imprisonment for a term of not less than 7 years, which may extend up to life imprisonment – depending on the facts and circumstances of the case.
In more severe situations, the punishment will be rigorous imprisonment for at least 10 years, which may extend to life imprisonment. The convict may also be liable to pay fine, along with imprisonment.
In situations like Nirbhaya Rape Case, wherein murder is committed after a rape, and the instance is so cruel in nature that it qualifies as ‘rarest of rare’, a death sentence is given.
Conclusion
The laws regarding rape in India only cover the tip of the iceberg and fails to recognise as well as acknowledge the existence of the rest. Rape of men or homosexual rape is not even considered rape.
The punishments are too less for such a heinous offence, hence, it has failed to deter the crime. The cases of rape in India are rising every day, the majority of which goes unreported. It is really important to educate our society regarding their legal rights as well as duties and spread more awareness.
There are massive changes and additions required in the current rape laws of our country. The law needs to change and adapt to society.
References
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