This article is written by Vedant Saxena from Rajiv Gandhi National University of Law, Punjab. It analyzes the Law commission’s attempts, over the years, to have the prevailing laws on rape and sexual violence amended as per the status quo.
Table of Contents
Introduction
Under the Indian Penal Code, rape has been defined under Section 375. Prior to 1860, there were a number of laws in different areas, which were in constant conflict with each other. However, with the passing of the Charter Act of 1833, the codification of Indian laws first began to take place. The first law commission was set up under the chairmanship of Lord McCaulay, and was given the task of codifying the laws of the state. In October 1860, the Indian Penal Code was set up. It was enacted on January 1, 1862.
The laws pertaining to rape and sexual assault
Rape was incorporated under section 375 of the IPC. It defined rape as an act when a man has sex with a woman, without obtaining her consent. If the man has obtained the consent of the woman by putting in fear of hers or somebody else’s life, reputation or property, it would still be rape. The consent of a minor, i.e., a person who is below the age of 18 years, is irrelevant here. Thus, an act of sex, with or without the minor’s consent, would constitute rape.
There was a sea change in the laws pertaining to rape and sexual offences after the infamous Mathura custodial rape case. Mathura, a young tribal girl, was allegedly raped by a couple of police officers of the Desaiganj police station of Maharashtra, on March 26, 1972. The High Court reversed the order of the sessions court by deciding in favor of the victim. However, the apex court reversed the decision of the High Court, by stating that there were no marks on the victim’s body to prove it an act of forced intercourse.
This incident was followed by a whirlwind of protests and agitations, demanding the amendment of the existing rape laws. The Criminal law (Second Amendment) Act of 1983 was a direct consequence of this. The Act added Section 114A to the Indian Evidence Act. The section recognized the fact that in certain offences, consent is absent and need not be questioned. The question is decided solely on the basis of the victim’s statement. With regards to the IPC, Section 228A was added, which made any act to publish the identity of victims of certain offences such as rape, punishable.
Role of the Law Commission of India against sexual violence and rape
Guided by the Supreme court in a PIL by a non-governmental organisation, the Law Commission of India passed its 172nd report in March 2000, which was related to the amendment of the then rape laws. Through the report, the law commission-
- Sought for widening the ambit of offences under section 375.
- Sought to add more gender neutrality to the laws of rape and sexual assault, which were heavily inclined towards women then.
- Aimed at prohibiting sexual exploitation and abuse of children. A sexual offence could bring about a traumatic and long-drawn effect on a child’s psyche.
Following the horrendous Nirbhaya gang rape case in 2012, the Law Comission of India yet again sought to have the existing laws on rape and sexual violence amended. A committee was established, headed by Justice J.S. Verma, to delve into the current legislation and suggest reforms. Based on the committee’s report, the Criminal law (Amendment) Act of 2013 was passed, that made the laws on rape and sexual violence more stringent.
Highlights of the Justice Verma Committee Report
The highlights of the law commission’s report are stated as follows-
On rape
- The committee suggested that the IPC must continue to follow its system of determining the liability of rape based on its intensity, i.e., the gradation of sexual offences.
- The committee suggested that since the offence of rape is more than just a mere fulfillment of desire, it must not be restricted to the penetration of the anus, vagina or mouth. Any form of non-consensual penetration must amount to rape.
- The IPC, under section 375, considers rape to be an un-consensual expression of power. However, this section does not cover instances of marital rape. When the victim is married to the accused, consent is automatically considered to be prevalent. The committee recommended the criminalization of marital rape, since the state of being married does not generate automatic consent to sexual acts.
On sexual assault
- In the event of penetration not having been proved, Section 354 of the IPC was used to punish the offender. According to this section, a person who employs force or criminal violence against a woman, intending to outrage her modesty, is to either be imprisoned for a period not extending 2 years, or be charged a fine, or both. The committee suggested all forms of sexual contact be regarded as sexual assault.
- The committee also sought for an increase in the punishment in cases of sexual assault, i.e., 5 years of imprisonment, or fine, or both. In cases when a man uses violence in order to disrobe a woman, he must be sentenced for a period of 3 to 7 years.
On verbal sexual assault
- Section 509 of the IPC criminalizes the use of words and gestures, and the committing of acts that are intended to outrage the modesty of a woman, or which invade upon a woman’s privacy. The committee suggested that uttering words, making gestures or committing acts that establish threats of sexual assault must be considered under the ambit of sexual assault. Thus, the committee sought for the repealment of this section.
Offences against women in conflict areas
- In cases when the accused, at the time of committing the sexual offence was working under The Armed Forces (Special Powers) Act (AFSPA), a sanction first needs to be passed by the central government in order to initiate a case against him. The committee sought for the removal of the requirement of a sanction.
Punishment for crimes against women
- The committee sought for the elimination of recommending chemical castration, as it failed to curtail the very roots of sexual violence.
- It also suggested the elimination of death penalty for the offence of rape, for death penalty has not been proven to barricade the offence effectively over time. Instead, the committee recommended life imprisonment for offenders.
Medical examination of the rape victim
- The committee suggested the 2-finger medical examination of a rape victim be banned, for it has been proven to be scientifically illogical. The test is employed for assessing the laxity of the vaginal muscles, in order to determine whether the female is a virgin or not. It has been proven that there could be a number of reasons for the laxity of the vaginal muscles. Additionally, the results of this test are often misused by judging the woman’s morals on the basis of previous sexual activity.
Reforms in management of cases related to crime against women
The committee suggested a number of reforms for aiding the effective regulation of cases of crime against women-
- It recommended the establishment of a rape crisis cell, which would provide legal assistance to the victims of rape and sexual assault. Upon the lodging of an F.I.R, the cell is to be notified automatically.
- It suggested CCTVs be set up at all police stations, at the entrance and the questioning room.
- It sought for the system of victims being able to file complaints online.
- Irrespective of the place of crime, police officers are under an obligation to provide assistance to victims of rape and sexual assault.
- In order to have police officers tackle sexual crimes effectively, they must be given proper training.
- The number of police officers must be increased in all areas.
- The people among the general public, who provide assistance to the rape victims must not be considered offenders.
Educational Reforms
The committee laid stress on the indispensability of sexuality education. Students of all ages must be made aware of sexual anatomy, sexual reproduction, reproductive rights, age of consent et cetera, in order to make them feel more comfortable with each other, in all environments.
Electoral Reforms
- The committee also sought for reforms in the electoral system. The Representation of People Act, 1951 debars offenders of crimes such as sati, fairness of elections, secularism, terrorism, dowry. The committee suggested that conviction of the person should not be a prerequisite. A simple filing of charge sheet and cognizance by the court is enough to debar the person from acting in the capacity of an elected candidate.
- If the candidate is guilty of committing a sexual offence, he must straight away be debarred or disqualified.
Need for change in the Juvenile Justice (Care And Protection Of Children) Act, 2000
The Justice J.S. Verma committee stood opposed to the suggestion of decreasing the age of juvenility in the light of some recent heinous offences being committed by people under the age of 18. According to the committee, the Juvenile Justice Act had failed to achieve its primary objective of helping abandoned children fulfill their physical, mental, emotional and nutritional requirements. The committee said that a child under no circumstances could be held responsible for a crime, if he has not been provided with the basic amenities suited to his condition in life. The report suggested the formation of a separate constitutional authority for education, with similar standards to the Office of Comptroller and Auditor General.
In a press conference, Gopal Subramanium, one of the members of the committee, expressed his discontentment against the Juvenile Justice Act, and said that the juvenile justice homes had failed to make children aware of their basic constitutional rights. Along with not having their basic amenities fulfilled, they constantly had to put up with unhealthy circumstances. The younger juveniles, with tender and innocent minds were not effectively segregated from the older ones,and thus could be easy targets for sexual abuse and expolitation. The places where they resided in lacked basic facilities and infrastructure. In such conditions, children could turn easy instruments for sexual crimes.
Conclusion
Inspite of the law commission’s full fledged attempt to have India’s existing rape laws amended, it seems that the central govenment has not kept pace with the current scenario. In its 172nd report, dated March 25, 2000, the law commission had sought to widen the definition of rape under section 375 of the IPC. Owing to a substantial increase in the sexual abuse of boys, the commission attempted to alleviate the gender biasness in the rape laws. However, the amending of the existing legislation as per these recommendations is still awaited. 20 years down the line, and the gender biasness still exists in the laws, which has for a fact even risen in the recent past. Supreme court lawyer Karnika Seth spoke about the rising number of cases involving men as victims of cyberstalking. She said that until a few years back, 75% of the cases she investigated involved women as victims. However, now, the ratio is 50 to 50.
The High Court of Delhi has also spoken up with regards to the ill-equipment of the laws. It stated that the loopholes, as pointed out by the law commission have proven to be fairly evident in the laws. The definition of rape needs to be amended so as to include instances of sexual assault which do not satisfy the conventional penile-vaginal penetration. In an attempt to amend the definition, the Ministry of Home Affairs passed the 2010 draft Criminal Laws Amendment Bill, which substituted rape with sexual assault.
The non-criminalization of marital rape is another evident loophole in the rape laws. The Justice Verma committee of 2012 attempted to eliminate this exception. The National Commission of Women also recommended that if a woman is over 16 years of age, her consent to an act of sex must not be considered automatic. However, these loopholes are still plaguing the IPC. The existing legislation on rape and sexual assault is is dire need of being amended as per the status quo.
References
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
