This article is written by Gitika Jain pursuing BBA.LLB(Hons) from Amity University, Kolkata. This is an exhaustive article which deals with rape laws in India.

Introduction

Rape, generally known as balatkar is a terrifying word in itself. In India, it is one of the most common criminal activities. So petrifying, humiliating, traumatic and terrifying the word rape is that it destroys the entire psychology and effects the deepest emotions of the person being raped. The word rape has been derived from the Latin word ‘rapio’ which means to take away. Therefore the literal meaning of rape could be forcibly snatching something from someone which is clearly an offence. To force means to indulge in an activity without the consent of another. India used to believe in the concept of Maatri Devo Bhava which means to worship women or mother. But keeping in view the number of rape cases which arise every day in India the concept of Maatri Devo Bhava seems to disappear nowadays. Rape is a crime not only against the victim as an individual but against society as a whole. So utterly shameful is the offence that it even is a crime against the basic human rights. No single definition can define the word rape because of its exhaustive nature. Only the person who suffers it, knows it. Therefore rape can be termed as a sex crime. 

To make clear the concept of rape it is important to introduce another concept which is sexual harassment. In the judgement of a landmark case Vishakha and others V State of Rajasthan Supreme court laid down certain points that would constitute sexual harassment:

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  • Physical contact and advances
  • Any demand for sexual favours
  • Any remarks on the body which is sexually coloured
  • Showing off pornography
  • Any other forcible physical, verbal or nonverbal conduct of sexual nature.

Supreme court of India in this case, therefore, held that sexual harassment is the violation of fundamental rights. Article 14,15,19(1)g,21 are being violated by sexual assault.

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Provisions regarding rape laws in India

Rape is a cognizable offence in India. There are so many provisions in different Acts for rape.

Section 375,376A,376B,376C and 376D of Indian Penal Code 1860.Section 53(1)[4], 164A[5], 327(2)6 of Code of Criminal Procedure.Section 114-A[3] of Indian Evidence Act.

The term rape has been legally defined under Section 375 of Indian Penal Code 1860 as a man is said to commit a rape when there has been sexual intercourse with a woman in any of the following circumstances:

  1. Against her will
  2. Without obtaining her consent
  3. When the consent is obtained, that consent must not be by putting the person in fear of death.
  4. When the consent has been obtained fraudulently by promising her to be husband in future.
  5. When the consent is given by a person who is of unsound mind or intoxicated or unable to understand the nature of giving the consent.
  6. When a girl is under 16 years of age, with or without her consent.

If any of the above conditions are met, rape is said to have been committed.

  • Section 376 of IPC 1860 specifies the punishment for rape which is imprisonment of not less than seven years or which may extend to imprisonment for life and also fine.
  • Section 376A mentions punishment in case of death for the persistent vegetative state of victims. The punishment for such circumstances is 20 years imprisonment which may extend to imprisonment for life.
  • Section 376B mentions sexual intercourse by husband on wife during separation. The punishment for the same shall not be less than two years of imprisonment which may extend to seven years and fine.
  • Section 376C mentions the punishment for sexual intercourse by persons in authority which is imprisonment for not less than 6 years which may extend to 10 years and fine. 
  • 376D states when there has been any gang rape, punishment for the same shall be not less than or 20 years of imprisonment which may extend to life imprisonment and fine.
  • 376E IPC mentions punishment for the repeat offenders which is imprisonment for life or death.
  • Section 228A[2] of Indian Penal Code states that the name of the rape victim cannot be disclosed and if anyone does that he shall be punished for a term which may extend to two years or fine or both.

Other related provisions of the Code of Criminal Procedure states the provisions for medical examination of the rape victim and mandatory camera trial for all the rape victims, etc.

Do women really feel safe in India

With the rising number of rape cases being registered in India on a daily basis, the question as to the safety of women in India is not relevant at all. In India, not a single day passes without hearing a case at all about the rape of a woman. India is a country of billions out of which 48% are women but it is still unsafe for the women. According to the National Crime Records Bureau (NCRB) 2018 a total of 33,356 rape cases were reported in India out of which 93.9% of the cases were held to be appropriate. With this number of cases of utmost brutality, the question again boils down to a fact that whether India is safe for women.

Reasons why India has an increase in sexual violence cases

  1. Less number of female police can be one of the reasons for sexual violence problem in India. Whenever a woman is being raped she is more likely to report her case to a female police officer. Historically speaking of which New Delhi has just 7% of female police officers. Statistically speaking 161 district police stations in Delhi have only one female station house officer.
  2. Blaming of indecent clothing- The Indian society somehow assumes that the victim’s sense of clothing has brought them in that state. This has been proved in the survey of judges in India where 68% of the respondents agreed to the same point. Harsh but true.
  3. Accepting domestic violence – Indian society sees domestic violence to be something deserving. UNICEF, in one of its reports, found that 57% of Indian boys and 53% of girls think that the beating of a wife is justified. 
  4. No public safety- Women who drink, smoke or go late-night clubbing are seen as immoral in most of the Indian society and are the reason for being raped. If the public themselves think and are okay with this kind of reasoning behind rape then women in India are definitely not safe in public places.
  5. Discouragement of rape victims to compromise- None of the families in Indian society are ready to accept the fact that someone in their family has been raped and they often advise the victims to stay away from the haphazard caused after rape in the police station. This is the sole reason why most of the rapes are not even registered in India.

Though there are laws being framed to protect the victims of rape and to give them their legal rights, still there is a problem in the implementation of laws that are being framed.

Preventive measures against rape

There is no age factor, race or social status which causes rape. Individuals from their end can do things to adopt some preventive measures against rape. 

  1. Conducting a session of safety tips for everyone.
  2. To provide all the information to the police if required.
  3. To create awareness about what constitutes rape, good touch and bad touch for kids, etc.

Suggestions keep a check on rape cases  in India

Raising the boys right since birth is the most important factor that will lead to a decrease in a huge number of rape cases. The problem with Indian society is that whenever any rape happens only the victim is questioned and not the rapist. The victim has to go through innumerable questions from the society and sometimes even blamed for the rape herself. But when any robbery takes place no one questions the robbed person and tell him that it was his fault, similarly no one questions the family members of the murdered person. Likewise, all the individuals in Indian society are busy educating the victim how to prevent or protect themselves from rape but do not educate the other side of the party regarding the dos and don’ts. Many of us don’t even know that the boys in India are being raped as much as girls but they don’t talk about it because there are no help centres for them. The laws are even gender biased with respect to rapes. So everyone must adopt the practice of educating and creating awareness about the right and the wrong amongst the society because they are the ones who are going to make a difference in future.

                  

Landmark judgements that changed the rape laws in India 

  1. Vishaka vs the State of Rajasthan- Bhanwari Devi was gang-raped by five men as she was preventing child marriage. She went to the trial court but the trial court acquitted all five accused. Later Vishakha a group for women education and research undertook the case of Bavaria Devi and filed a petition before Supreme court for sexual harassment at the workplace. The Supreme Court held that the safety of women at workplace is a must and convicted the five accused and gave a new definition of sexual harassment.
  2. Nirbhaya case- It is the landmark case of 2013. The judgement of the Supreme court widened the definition of rape laws in this case. The Supreme court reviewing all the facts of the case gave a death sentence to four adults and sent the minor to reform for 3 years. Changed the definition will constitute rape when there is penetration in any women’s body part. The punishment of rape included a minimum of 20 years of imprisonment and death in extreme circumstances.
  3. Tukaram and another V. State of Maharashtra (Mathura Case) – The rape of a young tribal girl in 1978 by two policeman in a police station in Chandrapur district was noticed by Supreme court much later. Later on, this case leads to amendments in Indian rape law by the Criminal law 1983.
  4.  R v. Furoll – A 6-year-old child was raped but not hurt. However, after that incident, she suffered from gonorrhoea. In this case, it was held that the accused is guilty of committing rape.
  5. Premchand v State of Haryana- The judgement of the Supreme court, in this case, was heavily criticized by the public because the Supreme court, in this case, reduced the punishment of a hundred years for rape to 5 years. The review petition was also filed after that but it failed as the Supreme Court rightly justified their action by issuing an important statement.
  6. State of Maharashtra v. Madhukar – In this case, Madhukar was a police inspector who wanted to be physical with one girl and went to her hut. After the complaint was filed against that inspector he got this dismissed. The high court took into account the fact that the woman was of easy virtue and passed judgement in favour of the inspector. The Supreme Court overruled this and said that any woman of easy virtue is entitled to her fundamental rights therefore the judgement was reversed.
  7. Sakshi v. Union of India- In this case, Sakshi and NGO filed a petition to redefine the meaning of rape. The law commission of India in 2000 changed part of the definition of rape. The term rape should be replaced by sexual assault and any form of penetration should be under the term sexual intercourse according to Section 375 of Indian Penal Code.
  8. In State v. Deepak, session court judges decided that being a sex worker does not mean accepting consent for sexual intercourse. The sex worker still possesses the right to be sought permission for such acts.
  9. In State of Punjab v. Gurmit Singh, Supreme court held that even if the victim enjoys sexual intercourse the court should not decide the case and not describe the victim to be of loose character.

Conclusion

Judiciary plays a vital role in finding a proper solution to rape cases. They are responsible to not rely on law rigidly but to allow some sense of flexibility while deciding such intense matters. Everyone are trying nowadays to bring into light the saddening part of Indian society and their approach towards rape. Film industries like Bollywood are also trying to create awareness by making movies on sensitive topics like Section 375, Pink, etc. While there have been no strict rules framed for the protection of rape victims which shows the positive side of the picture, statistics show the actual side which is that there has actually been no such change in spite of the strict laws. If the laws are really to adhere, the court and the legislation need to make some changes. The reason being the laws remain the same and the number of victims keeps on increasing every year. There needs to be some political sensitivity, judicial sensitivity, special courts and training programmes to be able to control the worsening situation.

References

 

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