This article is written by Anjaly Ann Joseph.
Table of Contents
Introduction
With another dehumanizing rape incident, trumpets have sounded for the crack of doom. When Hathras rape surfaces on media, we are again reminded of Unnao rape occurred last year. Similar incidents of past continue to haunt our collective memory. Time to time a lot of changes was made to curtail rape. But as we pass on to another decade let’s reflect, have all the efforts and reforms changed any circumstances on ground?
Legislative history of rape laws
Section 375 of Indian Penal Code, 1860 defines rape as sexual intercourse with a woman:
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]
Discussion regarding interpretation of consent roused after Tukaram and Anr v. State of Maharashtra, 1978, known as the Mathura rape case, where a girl was raped inside police station. In this case, the court equated lack of resistance to consent. Court looked into the sexual history of accused to order Acquittal of the accused.
Public outcry against the Mathura Verdict led to the Criminal law Amendment in 1983.Onus of proving consent was shifted to accused in Custodial rape (IPC- S.376). This act amended Section 114(A) of the Indian Evidence Act, which stated that if the victim does not consent to sexual intercourse then the Court would presume that she did not consent.
2012 witnessed a shocking gang rape in National capital with literally shook india.23 year old girl was mercilessly gang raped in a moving bus. This sparked wide scale protests across the nation. Before the public fury died down Justice Verma Committee was assigned to review laws relating to sexual crimes. These developments culminated in the Criminal law (Amendment) Act of 2013. As per this amendment new offences like stalking, voyeurism, acid attack, sexual harassment was incorporated into Indian Penal Code. Gang rape was included as an offence under S.376D.
An expanded definition of rape was added. In amendment ‘consent’ was progressively interpreted to mean an unequivocal agreement to engage in a particular sexual act; clarifying further, that the absence of resistance will not imply consent. Non-consent is a key ingredient for commission of the offence of rape. Under the criminal law amendments of 2013, if an officer fails to register a case of rape upon receiving a complaint, he/she commits an offence and may be punished with rigorous imprisonment for a period of six months to two years and will also be liable to pay a fine. Much called for escalation of punishment for sexual offences brought through.
Fastrack courts were set up exclusively for rape cases. In Delhi rape case, the trial was held in a swift manner and Seven years later, the convicts were hanged to death. This also brought in positive changes like setting up Nirbhaya fund for providing compensation for victims of sexual offences.
Judicial reforms
In Delhi Domestic Workers Union v. Union of India, 1994, the Supreme Court recognized the trauma inflicted on rape victims by the legal system, pointing defects in the system ranging from humiliation, rough handling of complaint and evidence, psychological stress and financial trauma. It acknowledged the need to provide a more sensitized system for rape victims and issued broad parameters in assisting the victims of rape including the following:
- Victims of sexual assault cases should be provided with continuous legal representation and also be guided on other support services, legal assistance should be provided starting from the police station, and the police should the inform the victim of right to the same. The advocate has to be appointed by the court on application by the Court. However, they could act at the police station (during questioning etc.) before being so appointed.
- In all rape trials anonymity of the victim must be maintained, as far as necessary.
- Criminal Injuries Compensation Board should be set up to compensate the financial loss suffered by the victims even though the offender might not have been convicted. It also directed the National Commission for Women to evolve a support scheme keeping in mind the above provisions for rape victims within six months of the judgment to be examined and implemented by the Union of India.
In State of Punjab v. Gurmit Singh & Ors, 1996 ,Court held that Proceeding should be in camera as provided in 327 Criminal Procedure Code, 1973. Anonimity of the victim must be maintained throughout the trial proceedings. “The expression that the inquiry into and trial of rape “shall be conducted in camera” as occurring in sub- section (2) of Section 327 CrPC is not only significant but very important. It casts a duty on the Court to conduct the trial of rape cases etc. invariably “in camera”. Accordingly, the Supreme Court directed as follows:
- Trial courts must follow the mandate of S.327, CrPC, and conduct rape trials in camera as a rule, and a public trial only as an exception.
- Presiding Officers must be more actively engaged in taking the evidence of the prosecutrix, and not give Defence Counsel unrestrained liberty to intimidate and humiliate her, while ensuring that the fair trial rights of the accused are also protected.
- As far as possible, ensure that rape trials are presided over by women judges.
In a similar decision by Court in Sakshi vs Union Of India, 2004, the court held that, “The provisions of sub-section (2) of Section 327 CrPC shall in addition to the offences mentioned in the sub-section would also apply in inquiry or trial offences under sections 354 and 377 of Indian Penal Code and in holding trial of child sex abuse or rape:
- A screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused.
- The questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident, should be given in writing to the President Officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing.
- The victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.
Suo moto v. State of Rajasthan, 2005 is popularly known as German Lady rape case. The court opined: “In order to combat the increasing crime against women and to ensure protection and preservation of their human rights – the criminal justice system needs to be addressed from the point of view of systemic victim support service. There is need to promote proactive role of police as well as trial courts”
In Delhi Commission for Women v. Lalit Pandey, 2008, the court took a proactive role and Delhi High Court issued guidelines to tackle sexual offences. They spread over different authorities of police, hospitals and Courts. Instruction to police ranges from receiving a compliant and ensuring safety of victim to proper investigation. Doctors notice hospitals on recording of case, usage of Sexual Assault Forensic Evidence (SAFE) kits. To Courts, on providing victim a counsel, ensuring safety and anonymity and recording statements of witness.
In Lillu v. State of Haryana, 2013 , the Supreme Court of India held the practice of conducting the 2-finger test during the medical examination of a rape victim as unconstitutional and violative of her privacy and dignity.
As per the decision of the Apex Court in Nipun Saxena and Anr. v. Union of India, 2018 documents revealing identity of victims are to be produced in sealed covers to the court. In this decision Court also accepted the National Legal Services Authority (NALSA) Scheme called Victim Compensation for Survivors of Sexual Assault and Acid Attack. The Gang Rape victims will be compensated from Rs.5 Lacs – Rs.10 Lacs, the rape victim’s forRs.4 Lacs – Rs.7 Lacs, unnatural sex assault victims from Rs.4 Lacs – Rs.7 Lacs. He victims who have loss of their foetus will be compensated from Rs.2 Lacs- Rs.3 Lacs. Victims who got their face disfigures from acid attack will be compensated from Rs.7 Lacs- Rs.8 Lacs, depending up case.
In 2019 Supreme Court made an assessment of the criminal Justice system in response to sexual offences. In that order Supreme Court analyzed that amendments in criminal law brought after the Nirbhaya incident failed to produce the desired result. The main agenda of this assessment was to call for a status report on the implementation of various laws and guidelines on rape laws and for finding methods to make it more effective. Court appointed Senior Counsel Siddarth Luthra as amicus curie in this matter.
Besides the legal and judicial reforms, efforts were made by executive. Punishment for raping a child below 12 years was elevated to death penalty on 2018. Ministry of Health issued a guideline on the similar lines , made by court to medical examination of victims of sexual offences.
Rape cases over the decade
The graph above shows the statistics of rape cases registered in our country over a decade. From 2013 the number have remained above 30000. Apparently, amendments and reforms have failed to bring down rapes. Clearly, there was greater awareness in public about the rape cases and along with that demand for instant justice and capital punishment. Obviously we saw a rape rising from a women issue to a political, religious, cultural and moreover country’s issue.
Hence opinions and efforts was made from every fronts possible to combat this crisis. Aforementioned are some attempts by legislative, judiciary and executive.
But even after all these reforms, rape cases goes on scaling peaks. Maybe upscale of cases points to the active registration mechanism, which was not the story before. But the sad story is, few of these cases ultimately end in conviction. Many fall off during the trial stage, due to the absence of adequate evidence. Moreover there are plenty of cases that goes unregistered.
After this long list of genuine efforts by legislature, judiciary and executive, the plight of women in this country doesn’t seem to change. Huge burden is placed upon her to protect herself from falling prey to the lust of a man. Clearly every authority responsible for protecting women have fallen numb. More than punishing the offenders, priority should be placed on preventing rapes. Women should feel safe in the society they belong. That is the whole essence of social contract, right?
Focus of the reforms so far has been rape as an offence. The root that has to be dried out is the rape culture in India. It is like many illegal stuff thriving in this country. We making laws back to back to prevent it, but it doesn’t even dare to touch the illegal trades here.
India is a low rule of law country. This is a harsh reality we must all confront, when we try to tackle these issues. Major example of this is environment legislations. We have a bag of world class legislations like Environmental Protection Act 1986, but on reality do people take these into account when they built houses, apartments, business centers and like? However there have been exemplary decisions by court in this regard. There is no point in making laws to be used only in courtrooms. If it to have any effect it should be enforced on ground.
We make good but dead rape laws, because the machinery that should be enforcing it is comfortably numb. Moreover take the way rape cases are handled recently by authorities, negligence to collect timely evidence will ultimately affect the strength of prosecution in the test of trial.
The commission, headed by former Chief Justice of India, Justice JS Verma, has identified “failure of governance” as the root cause for sexual crime in India.
All these short term but genuine efforts by will help in some way, but “rule of law” is the only actual solution. Reaching this destination maybe too big a dream, even if get halfway through, our country will be saved from pinning profane evils.
References
Explotion of rape cases in India:A study of one last decade
Legal changes towards justice for sexual assault victims
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