This article is written by Kaustubh Phalke. The article exhaustively covers the punishment for rape. The article attempts to explain the meaning and scope of rape and the types of rape. It also deals with the punishment of rape in other countries.

This article has been published by Shashwat Kaushik.

Introduction

Violence against women or any person in any form is a violation of Article 21 of the Constitution of India which guarantees a person the right to live a dignified life. People, especially women face such violence in different forms, the most recorded and brutal crime being ‘rape’.

A verse from Manusmriti is well-taught and followed in the culture of India is “यत्र नार्यस्तु पूज्यन्ते, रमन्ते तत्र देवता:” which means where women are worshipped and respected, there resides God. Indian culture has been worshipping women in every form for ages. However, it is very distressing to see that according to the NCRB Report 2023, the crime against women showed a troubling increase of 4% in India.

Rape not only breaks the victim physically but emotionally as well. It leaves them with deep trauma till their last breath. Many rape survivors commit suicide because of such post-rape traumas. Rape shatters the victim into pieces and it takes years to rebuild their courage to re-live their life normally and delightfully.

Section 375 IPC : meaning of rape

According to the Black’s Law Dictionary, rape is the “unlawful carnal knowledge of a woman by a man forcibly and against her will”.

Rape in India is defined under Section 375 of the Indian Penal Code, 1860 (hereinafter referred to as IPC). it is a cognisable offence i.e., the police can directly arrest the person who has committed this crime.

Rape in India need not be complete sexual intercourse. Mere penetration is sufficient to constitute the offence of rape. 

The essentials of Section 375 IPC after its amendment in 2013, are as follows:

• As per clause (a) of the provision, the offence of rape is said to be committed when a person penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman.
• As per clause (b) of the provision, the offence of rape is said to be committed when a person penetrates any object or a part of the body that is not a penis, to any extent, into the vagina, mouth, urethra or anus of a woman.
• As per clause(c) of the provision, the offence of rape is said to be committed when a person manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman.
• As per clause (d) of the provision, the offence of rape is said to be committed when a person applies his mouth to the vagina, urethra, and anus.

To constitute the offence of rape, this intercourse should be under any of the following below-mentioned seven circumstances:

• Against her will.
• Without her consent.
• With her consent obtained by putting her under the fear of death or hurt or putting some other person in whom she’s interested, in fear of death or hurt.
• With consent when the man knows that he is not her husband but making her believe to be lawfully married to that person.
• Consent is given by the reason of unsoundness of mind, intoxication or under the influence of any stupefying or unwholesome substance.
• With a woman under 18  years of age, with or without consent.
• When she is unable to communicate her consent.

It is pertinent to note the following points: 

• The vagina includes the labia majora.
• The meaning of consent for the purpose of this provision refers to the unequivocal voluntary agreement when the woman, by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act.
• The consent will not be regarded only on the fact that she has not resisted the act of penetration.

The exceptions of this provision are the following:

• A medical procedure or intervention shall not constitute rape.
• Sexual intercourse by a husband with his wife is not rape. The wife in this condition must be above 15 years of age.

Penetration is said to have taken place once the male organ has penetrated the woman. Rupturing of the hymen and seminal emission is not a requirement and rather irrelevant.

Categories of rape in India

Understanding the categories of rape is important before diving into the punishments given for the abuse against the woman in India. The following are the categories of rape in India:

Statutory rape

The rape of a woman below 18 years of age is known as statutory rape. As per Section 375, the consent of the minor is immaterial to constitute an offence of rape. This was done to protect the children and minors from sexual exploitation. Prior to the Criminal Amendment Act 2013, a person below the age of 16 was considered a minor as opposed to the current threshold of 18 years of age.

A special gender-neutral law Protection of Children from Sexual Offences Act was enacted in the year 2012 to deal with cases of sexual abuse with children irrespective of their gender. The definition of a child according to this Act is any person below 18 years of age.

A disturbing trend was observed before the formulation of POCSO i.e. non-reporting of sexual assault on minors. This problem arose because there was no such law that imposed an obligation to report such incidents to the juvenile justice board or special juvenile police unit (commonly known as S.P.J.U). These two organisations specifically deal with offences against children. Reporting of offences against children has now been made mandatory under the POCSO. This puts an obligation upon the person having knowledge of any offence against a child to report to the concerned authorities; on failure to report the same will result in 6 months of imprisonment and fine to such person.

Incestuous rape

Incestuous refers to forceful sexual intercourse by a close relative. It is a blatant betrayal of trust by the relative. Incestuous rape, like any other form of rape, often leads to deep mental trauma and cases of suicide and honour killing.

There are certain relations that are really very pious and serene such as father-daughter, mother-son etc. Cases of incestuous rape disgrace such relations. These are irreparable in nature and leave a trauma on the victim for the rest of life.

There are many cases wherein relatives, who are in close proximity of the victim, make them their prey, which leaves a long-lasting negative impact and inflicts trauma on them. Such victims rarely are allowed to approach the court of justice because of the stigma attached to it as well as the obvious appalling nature of such a crime. Generally, such victims are minors or teenagers and ultimately fall helpless under such circumstances.

Both females and males undergo such offences which go unrecorded and unobserved. 

The IPC which is a substantive law of India gives no mention of any word or punishment for offences like incestuous rape. This is a notable legal lacuna of the Indian justice system.

In the famous case of Lokesh Mishra Vs. State of NCT of Delhi (2010) the Delhi High Court stated in this case of incestuous rape, that the change would not merely come from increasing policing, giving harsher punishments, etc. The required change lies in upgrading the moral values inside all of us and imbibing an essential value that women are not objects of sexual gratification.

Brutal rapes

Brutal rapes as suggested by the name are those cases in which the body of the victim is grievously harmed or disfigured the body and has endangered the life of the person. Such cases often leave the victim in a vegetative state or lead to death.

Marital rape

This is a kind of rape when a man forcefully seizes a woman who is his wife to have intercourse with him. This is done by threatening to use force or using force under circumstances when the woman is not in a position to have intercourse.

According to exception (2) of Section 375 IPC, sexual intercourse or sexual acts by a husband with his wife is not considered to be rape if the age of the wife is more than 15 years. Marriage is often presumed to be an automatic consent to cohabit and engage in sexual intercourse and hence is not considered rape. No provision in India adequately recognizes a crime such as marital rape. This is a point of major concern.

Section 376B of the IPC grants special legal protection to the wife living separately from her husband. The Protection of Women from Domestic Violence Act, 2005 and Section 498A of the IPC also provide remedies to a certain extent.

Custodial rape

Rape by a person in authority is known as custodial rape. 

Clauses a,b,d,e,f & k of Sections 376(2) of the amended IPC deals with custodial rape.

Sub-section (2) of Section 376 deals with the punishment for the following persons:

(a) A  police officer who commits rape in any of the following instances:

(i) Within the limits of the police station to which such a police officer is appointed.

(ii) In the premises of any station house.

(iii) With a woman who is in the custody of such police officer or his subordinate 

(b) A public servant who commits rape on a woman in his custody or in his subordinate’s custody 

(d) Any personnel who commits rape on any inmate of jail, remand home, place or institution and the person belongs from the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution.

Any person in the management or on the staff of a hospital.

(f) Any person who is related to the victim in the following relations:

•  A relative.
• A guardian. 
• A teacher.
• A person in a position of trust or authority.

(k) If the offender is in a position of control or dominance over a woman, commits rape on such a woman.

The above-mentioned persons shall be punished with rigorous imprisonment for not less than ten years which may extend up to life imprisonment. Life imprisonment shall mean imprisonment for the rest of his natural life and he shall also be liable for fine.

Custodial rape attracts a higher level of punishment as the perpetrator in such cases is the person who misuses his authority to commit rape against the woman.

Gang rape

When a woman is raped by more than one person who shares a common intention and thus constitutes a group, such act is known as gang rape. Each person who is a part of such a group is charged with the offence of rape.

Common intention is mentioned under Section 34 of IPC. It refers to the prior meeting of minds to do some act together. Every person who constitutes the group in the case of gang rape is held guilty of the same offence irrespective of whether he has committed the offence individually or not. Hence, complete proof of rape by each person is not required in the case of gang rape. 

Rights of rape victims

Following are the rights of the rape survivors as per the different laws in India:

Right to zero FIR

Zero FIR is a concept in criminal law according to which the victim can lodge an FIR in any police station irrespective of the fact whether it has the jurisdiction or not. The FIR is then transferred to the police station having jurisdiction for taking cognizance and starting an investigation. The concept of FIR came after the famous Nirbhaya case.

Free medical treatment to the victim

As per Section 357 of CrPC, no government or private hospital can charge fees for the treatment of the victims. They shall immediately provide first aid to the victim for free. A new proviso was added to Section 166B of IPC after the Criminal Amendment Act, 2013 for punishing those in charge of the hospitals for refusing free-of-cost treatment to the victims of rape. The punishment is imprisonment for up to one year or a fine or both.

No two-finger test during medical examination

In the case of Lillu Alias Rajesh and Anr. Vs State of Haryana (2013), the Supreme Court stated that the two-finger test during medical examination violates the right to privacy, integrity and dignity of the victim and thus, the Court condemned the use of such test to identify the cases of rape.

Right of compensation of the victim

As per Section 357A of CrPC, victims of rape are entitled to adequate compensation. The objective behind providing compensation to the victim is to aid them in their recovery and treatment. The amount of compensation depends upon the gravity of the case and factual circumstances. The compensation is paid out of the state victim compensation fund. These compensations are used for the proper rehabilitation of the victim. These compensations are provided to the victim regardless of the fact that the accused has been found guilty of the offence or not.

Free legal aid for victims

The victims of the rape are given free legal aid who are not capable enough to pay their own expenses of private legal defence. The victims who cannot afford a private legal defence are assisted by the National Legal Service Authority commonly known as NALSA. This institution provides assistance for trial, investigation and appeals. Victims can approach also specially trained women officers for their cases.

Section 376 IPC : punishment for rape 

Rape is a life-threatening offence against women and the State as well. It creates a sense of fear amongst all the women to reside with a sense of security in society. Hence, the punishment for the offence like rape or sexual abuse against women should be exemplary.

Punishment for rape committed under Section 375 of the IPC is given under Section 376 of the IPC. The punishment prescribed under sub-section (1) of this provision is rigorous imprisonment which shall not be less than ten years which may extend up to life imprisonment and shall also be liable to fine.

Sub-section (2) of Section 376 deals with the punishment for the following persons:

(a) A  police officer who commits rape.

(i) Within the limits of the police station to which such a police officer is appointed.

(ii) In the premises of any station house.

(iii) With a woman who is in the custody of such police officer or his subordinate 

(b) A public servant who commits rape on a woman in his custody or in his subordinate’s custody 

(c) if the offender is a member of the armed forces deployed in an area by the Central or a State Government committing rape in such area.

(d) Any personnel who commits rape on any inmate of jail, remand home, place or institution  and the person belongs from the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution,

(e) if the offender committing an offence under this provision is from the management or on the staff of a hospital.

(f) any person who is related to the victim in the following relations:

•  A relative.
• A guardian. 
• A teacher.
• A person in a position of trust or authority.

(g) Any person who commits rape during communal or sectarian violence.

(h) Any person who commits rape on a woman knowing her to be pregnant.

(j) Any person who commits rape, on a woman who is incapable of giving consent; or

(k) An offender is in a position of control or dominance over a woman, commits rape on such a woman.

(l) Any person who commits rape on a woman suffering from mental or physical disability.

(m) Any person who causes grievous bodily harm or maims or disfigures or endangers the life of a woman while committing rape.

(n) Any person who repeatedly rapes the same woman.

The above-mentioned persons shall be punished with rigorous imprisonment for not less than ten years which may extend up to life imprisonment. Life imprisonment shall mean imprisonment for the rest of his natural life and he shall also be liable for fine.

As per sub-section (3,), if someone commits rape on a woman of less than sixteen years of age, he shall be punished with rigorous imprisonment of not less than twenty years and which may extend to imprisonment for life. Life imprisonment shall mean imprisonment for the rest of his natural life and he shall also be liable for fine.

The proviso to this subsection states that the fine charged shall be paid to the victim and shall be just and reasonable to meet the medical expenses of the victim and her rehabilitation expenses.

Punishment for different categories of rape

Section 376A IPC defines the punishment for the person who has caused death or resulting persistent vegetative state of the victim. Punishment is rigorous imprisonment for not less than twenty years but which may extend to imprisonment for life and in some extreme cases, he may also be liable for the death penalty. Life imprisonment shall mean imprisonment for the rest of his natural life.

Section 376AB IPC defines the punishment for the person who has committed rape against a woman who is under 12 years of age. Punishment is rigorous imprisonment for not less than twenty years but may extend to imprisonment for life and with a fine and in some extreme cases, he may also be liable for the death penalty. Life imprisonment shall mean imprisonment for the rest of his natural life.

Section 376B IPC describes the punishment for a husband who has had sexual intercourse with his wife during separation. Punishment is imprisonment for not less than two years but which may extend to seven years and shall also be liable to a fine.

Section 376C describes the punishment for the offender who is in some authority over the victim. Punishment is rigorous imprisonment for not less than five years but may extend to imprisonment for ten years and shall also be liable to a fine. This provision deals with punishment in case of sexual offences not amounting to rape.

Section 376D describes what constitutes gang rape when one or more than one person constituting a group act in furtherance of a common intention to rape a woman. Punishment is a rigorous imprisonment for not less than twenty years but which may extend to imprisonment for life. Life imprisonment shall mean imprisonment for the rest of his natural life and with fine.

Section 376DA describes the punishment for the offender who has committed rape against a woman under 16 years of age. Punishment is imprisonment for life. Life imprisonment shall mean imprisonment for the rest of his natural life and with fine.

Section 376DB describes the punishment for the offender who has committed rape with a woman under 12 years of age. Punishment is imprisonment for life and a fine. Life imprisonment shall mean imprisonment for the rest of his natural life. In some extreme cases, he may also be liable for the death penalty.

Section 376E defines the punishment for repeated offenders under Section 376 or Section 376A, Section 376AB, Section 376D, Section 376DA, and Section 376DB. Punishment is imprisonment for life and a fine. Life imprisonment shall mean imprisonment for the rest of his natural life. In some extreme cases, he may also be liable for the death penalty.

Punishment for attempt to rape

The attempt to commit rape is also punishable under the IPC. The attempt to commit offences punishable with life imprisonment or other imprisonment is covered under Section 511 of IPC. If no express provision is made for the punishment of the attempt of the offence then the accused will be punished with imprisonment of half of the maximum term specified or a fine as specified for that offence. It prescribes imprisonment, which could be up to half of the maximum sentence allowed for life imprisonment or up to half of the longest term of imprisonment specified for that particular offence. Additionally, the punishment may include a fine as prescribed for the offence, or it could involve both imprisonment and a fine.

Sometimes the offence falls short of its completion because of some supervening circumstances but the accused shall be punished for attempting the commission of such crime.

In the famous case of Madan Lal v. State of Jammu & Kashmir, (1997) the Apex Court gave clarity on an attempt to rape. The facts of the case were that the appellant Madan Lal who was the headmaster in the present case forced a thirteen-year-old girl to have sex with him. An FIR was lodged against the headmaster under Section 376 and Section 511 of IPC. The Sessions Court acquitted the headmaster on the basis of the statements of the girl that there had been penetration into the vagina in-depth, but no traces of injuries were found on her hymen which made her story unbelievable.

The appeal was made to the High Court by the State against the impugned judgement of the Sessions Court. The High Court reversed the order of the Sessions Court.

The appeal was then made to the Apex Court which while holding the accused guilty of the attempt of rape observed that the major difference between the preparation and the attempt of rape is the higher degree of determination. It shows that the accused has gone beyond the stage of preparation. If the accused has gone beyond the stage of preparation for the offence of rape by undressing the girl and making her lie on the ground undress himself but fails to penetrate penis into her vagina then the case cannot be made out for merely outraging the modesty of a woman but under 376 of IPC read with Section 511 of IPC.

Protection of Children from Sexual Offences Act (POCSO), 2012

Brief of POCSO, 2012 

As mentioned earlier, before 2012, a high rise was seen in the cases of sexual offences against children that were unreported. Hence, the Protection of Children from Sexual Offences Act was enacted in November 2012 by the Ministry of Women and Child Development. This act is popularly known as POCSO. The POCSO has a wide ambit and covers all types of sexual abuse. The Act includes offences against children such as sexual harassment, sexual assault and child pornography.

The Act is gender-neutral in nature and covers offences against both female and male victims of sexual offences.

IPC is not gender-neutral in nature and also does not address offences against children such as sexual harassment, sexual assault and pornography. India is currently a signatory of the United Nations Convention on the Rights of the Child. The POCSO fulfils the requirement of the Convention and Article 15(3) of the Constitution of India by ensuring a child-friendly procedure for child victims right from the stage of filing the report.

Punishment under POCSO, 2012

Section 4 describes the punishment for committing a penetrative sexual assault on a child. Punishment is a minimum of 10 years imprisonment which can extend up to life imprisonment and shall also be liable to a fine. The person committing the same offence with a child below 16 years of age shall be punished with 20 years of imprisonment which can extend up to life imprisonment i.e., his natural life and shall also be liable to a fine.

Section 6 describes the punishment for committing aggravated penetrated sexual assault on a child, which is a minimum of 20 years of rigorous imprisonment which can extend up to life imprisonment as well as payment of a fine or with death penalty, in certain cases. Aggravated penetrated sexual assault refers to the offence committed by a certain specified category of persons such as sexual assault committed by a police officer, a public servant or any staff of a hospital.

Section 8 describes the punishment for sexually assaulting a child as a minimum of 3 years imprisonment which may extend up to 5 years of imprisonment as well as a fine.

Section 10 describes the punishment for committing aggravated sexual assault on a child as a minimum of 5 years imprisonment which can extend up to 7 years as well as payment of a fine. Aggravated sexual assault refers to the offence committed by a certain specified category of persons such as sexual assault committed by a police officer, a public servant or any staff of a hospital.

Criminal Law Amendment of 2013

Nirbhaya gang rape shattered the entire nation in 2012. There were protests and agitations nationwide and the nation was demanding amendments to the existing laws to fight against such monsters and prevent more such horrific incidents against women. Before that, the existing laws were not strict enough to fight such predators and provide protection to victims. Following this, a committee was set up to report the changes to be made in the existing laws to provide better protection to the victims and to prevent more such incidents. Retired Honourable Justice J. S Verma was appointed as the head of this committee. The focus was on gender justice and making the laws compatible with gender justice. The report was submitted on 23rd January 2013 based on which the Criminal Law (Amendment) Act,2013 came into force. Remarkable changes were made to the three criminal laws, namely:- The Indian Penal Code,1860, Code of Criminal Procedure, 1937 and The Indian Evidence Act,1872. Let us sail through the changes made to each act separately-

Changes in the Indian Penal Code,1860

• A new provision was introduced under Section 166A of IPC to punish police officers who do not record FIR in cases of offences against women like rape. The punishment being rigorous imprisonment for not less than six months which may extend up to two years and shall also be liable to fine.
• A new proviso was added to Section 166B of IPC for punishing those in charge of the hospital for refusing free-of-cost treatment to the victims of rape.
• The definition of rape under Section 375 of IPC was broadened and included acts other than forceful sexual intercourse. The definition included forcible penetration by a man of his penis or any part of his body or any object into the vagina, mouth, urethra or anus of the woman or making her do so with some other person. Manipulation of any part of the body of a woman so as to cause penetration into the vagina, urethra or anus of a woman or making her do so with him or any other person and applying his mouth to the vagina, anus or urethra of a woman or making her do so with him or any other person.
• The definition of consent in the explanation under Section 375 of IPC signified agreement by the woman through words, gestures or verbal or non-verbal communication. The definition of consent now clearly states that a woman’s silence or absence of denial could not be understood as consent to the sexual act.
• The age of consent under IPC was raised to 18 from 16.
• The ambit of Section 376(2) was expanded to include personnel of armed forces for committing rape which were deployed by the Central Government or state governments. The rape of women under 16 years of age was considered to be of an aggravated form. It enhanced the punishment to be awarded for it.
• The Amendment Act deleted the provision regarding the judicial discretion used by the courts to impose a reduced sentence than the minimum sentence that could be offered for an offence.
• Three provisions were amended which are as follows:
  • Section 376A – This provision stated the punishment of the death penalty for the person who has raped and caused the death of the victim or has left the victim in a persistent vegetative state.
  • Section 376D – The provision stated that when a woman is raped by more than one person who shares a common intention and thus constitutes a group is known as gang rape. Each person who is a part of such a group is charged with the offence of rape. Section 376D  IPC deals with the punishment of gang rape which is rigorous imprisonment for not less than twenty years which may extend to life imprisonment.
  • Section 376E – This provision talked about repeated offenders. The death sentence was added to the possible punishments along with imprisonment with parole.

• Section 376C describes the punishment for the offender who is in some authority over the victim. This includes a man who seduces a woman to have sexual intercourse with him. This was added to prevent the abuse of the authority.
• After the Amendment Act, the punishment for intercourse by a husband with a wife during separation without her consent was enhanced. The punishment was increased to at least two years of imprisonment which may extend to a maximum of seven years.

Code of Criminal Procedure, 1937

• A special provision was added under Section 154(1) for recording FIR under the following provisions:
  • Sections 354 of IPC, relate to assault or criminal force to a woman with intent to outrage her modesty.
  • Sections 354A of IPC, cover sexual harassment and its punishment.
  • Sections 354B of IPC, which reads as assault or use of criminal force to a woman with intent to disrobe.
  • Sections 354C of IPC, which covers the offence of voyeurism.
  • Sections 354D of IPC, which covers the offence of stalking.
  • Sections 376 of IPC, which covers the offence of rape.
  • Sections 376A of IPC state the punishment for causing death or leaving the victim in a persistent vegetative state.
  • Sections 376B of IPC, covers forceful sexual intercourse by the husband with his wife during separation.
  • Sections 376C of IPC covers sexual intercourse by the person in authority.
  • Sections 376D of IPC, which cover the offence of gang rape and intercourse by the management or staff of the hospital.
  • Sections 376E of IPC, which covers the punishment for the repeated offenders of rape.
  • Section 509 of IPC, covers the act, gesture or word intended to insult the modesty of a woman.

The amendments made were that the information of commission of any such above-mentioned offence must be compulsorily recorded by a woman police officer.

If the victim gets permanently or temporarily mentally or physically disabled, then information regarding the commission of the offence should be recorded at the residence of such victim or at any other convenient place of the victim’s choice. The information shall be recorded in front of the interpreter or special educator as required.

The act of giving information to be videographed and the statements under Section 164 CrPC given in front of the magistrate to be recorded as soon as possible.

• A new sub-section (5A) was inserted into Section 164 which made it necessary to record the statements by the judicial magistrate as soon as it is brought to the notice of the police authorities for the offences covered under Section 354, 354A, 354B, 354C, 354D, 376 sub-section 1 and 2, 376A, 376B, 376C, 376D, 376DA, 376DB, 376E or 509 IPC.
• An explanation was added to Section 197(1), which stated that it would not be necessary to seek prior sanction from the government to prosecute public servants for any offence of sexual abuse. Section 197 was introduced to prevent malicious prosecutions of a public servant for the discharge of their duties but discharging duties gives no excuse of any sexual abuse by the public servant and hence, the amendment was made.
• Section 309 was modified and a proviso was added which stated that inquiry and trial of offences under Section 376, 376A, 376AB, 376B, 376C,376D, 376DA, 376DB of the Indian Penal Code must be completed within two months from the date of filing of chargesheet.
• Section 357C was added to make sure that all kinds of hospitals whether private or public provide free medical aid to the victims of offences covered under Sections 376A to 376E.

The Indian Evidence Act,1872

• Section 53A was added to this act which dealt with “evidence of character or previous sexual experience”. Previous sexual experience and character of victim were made irrelevant i.e., the prosecution cannot use these two factors to answer the question of consent given by the victim.
• Section 114A was substituted which now stated that in a prosecution for rape under clauses (a) to (n) of section 376(2) IPC, the court shall presume that rape has been committed on the woman if the woman merely states that she has not given consent and sexual intercourse by the accused is proved.
• The proviso of Section 146 was substituted. The new one stated that the victim shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character or previous sexual experience of such person with any person for proving such consent or the quality of consent.

Punishment for rape in neighbouring countries

Pakistan

The offence of gang rape, rape and molestation are punishable by death in Pakistan. Assault and intentional display of a woman’s body in public is also punishable by death.

China 

The offence of rape in China is punishable by death or castration. Castration is a process by which the testicles of a man are removed.

Japan 

The punishment for the offence of rape in Japan is 20 years of imprisonment and in case of brutal rape, the offender can be punished with the death penalty.

Saudi Arabia

The punishment in Saudi Arabia for rape is a public beheading after administering the rapist with the sedative.

North Korea

The punishment for rape in North Korea is death by firing squad.

Afghanistan 

The punishment for rape in Afghanistan is hanging to death or a shot in the head.

Egypt 

It uses the traditional mode of punishing by hanging till death.

Iran 

The punishment for the offence of rape is death by hanging.

Important case laws

Tuka Ram and Anr v. State of Maharashtra (1978)

Facts of the case

The facts of the case were, that Mathura was a young orphan girl who lived with her brother Gama. She worked as a house help for Nushi. During that time she developed sexual relations with Ashok, Nushi’s nephew. Both were ready to marry each other. A report was filed by Gama regarding the kidnapping on 26, March 1972 and thereafter, all the concerned parties i.e., Ashok, Nushi and other relatives were called by the police. After recording their statements everyone walked out of the police station and Ganpat, the police head constable asked Mathura to stay back. He took her to the washroom and sexually assaulted her. Ganpat and his colleague took her behind the police station with the intention to rape her. His colleague was unable to commit the crime because of being in a state of intoxication. On coming back from the police station, Mathura narrated the story to her family. As per the medical examination reports, there were no marks of injuries on the body of Mathura and her hymen revealed old ruptures. Dr. Shastrakar who examined the victim advised to file an FIR for the same. The Supreme Court acquitted the accused in 1979.

Issues of the case

The issues of the case were the following:

• Whether Ganpat and Tukaram are liable for the punishment of rape under Section 376 IPC?
• Whether the minor can give consent for such an act?
• Whether the girl consent to such an act or it was passive submission due to fear?

Judgment

Trial Court

The session judge passed an order of acquittal saying that the act does not fall under the category of rape but is consensual sexual intercourse. The unreasonableness of his logic, when he derived that Mathura was habitual to rape, might have invited Ganpat to satisfy her needs and therefore it was a contented intercourse. He justified the semen present on her clothes to be of some other person with whom she had intercourse other than Ganpat. The semen marks on the cloth of Ganpat were considered to be due to nightfall. The court seemed to be biased on the basis of gender.

 High Court

The High Court of Maharashtra held that the accused were strangers for Mathura and her brother had just filed a case in the same station so taking advances on such a stranger was very improbable. The Court said it was passive submission rather than consent. The absence of semen on the vagina and pubic hair was rightly justified by the Court. It stated that the examination was done 20 hours later and she must have taken a shower in the meantime.

The High Court convicted the accused.

Supreme Court

The Apex Court overturned the judgement of the High Court and acquitted the accused. The Supreme Court held that the case was of consensual sexual intercourse. Since the marks of injury were absent on her body which shows she did not resist the act at that time which shows her consent for the act.

All this shows that the court did not decide the case on merit instead, the court attacked the character of the victim. It is believed that Mathura was so habitual that she was unable to stop herself from having intercourse even when her brothers Gama, Ashok and Nushi were waiting for her outside the police station.

Mathura misidentified the exact accused during the test identification parade which went against her. The court on this misidentification deduced that if Mathura could have gone wrong with the identification, she could also have fabricated her testimony.

The Supreme Court acquitted both the accused stating that the intercourse happened with the due consent of Mathura.

The Mathura rape case is a prominent judgment, whose final judgment especially stirred outrage. The Supreme Court even took a sexist approach same as the session court. It kept a tunnel view by equating lack of resistance with consent. This was more of a character assassination of the victim. The judgement was very upsetting and disappointing, this was conveyed to the then chief justice of India through protests and letters by eminent jurists and citizens of India. This case had a long-lasting impact on the judiciary with regard to the language being used in the judgement by the apex Court and lower courts. 

Mukesh & Anr v. State (Nct Of Delhi) & Ors (2017)

Facts of the case

This case is popularly known as the Delhi gang rape case. On 6, December 2012, Nirbhaya, a 23 years old girl went to watch a movie with her friend. They were forced by one of the offenders to board a vacant bus at the Munirka bus stand. As the bus started moving they were attacked by a group of six men, one of them being a 17-year-old minor. The friend of Nirbhaya tried to protect and retaliate to the attack of offenders but was brutally beaten by them. The offenders sexually assaulted the girl and brutally raped her by inserting an iron rod into her body inflicting severe injuries. After such a heinous incident, both were thrown on the roadside in a serious vegetative state to die. The vehicles were passing by them and no one was ready to help them. It took long hours for the police to reach them. Nirbhaya fought for her life and died on December 29. The six men involved in this crime were convicted on the basis of the shreds of evidence available such as DNA, blood traces, etc. The defence contended that the accused were not present at the crime scene. The nation was demanding legal changes relating to sexual offences against women. The Criminal Amendment Act, 2013 was introduced to widen the scope of rape by including various forms of rape through various provisions. It brought attention to strengthening the laws relating to crime against women and enhancing the punishment to curb such heinous crimes and provide justice to the victims.

Issues of the case

The following issues were involved in the case:

• Whether the offenders be punished with life imprisonment or death penalty?
• Whether the minor should be given the same punishment or should be sent to a juvenile home?

Judgment

The Court regarded the case as the rarest of rare cases in which the death penalty should be awarded. The Apex Court stated that the act has shaken the common consciousness of the nation. As per the examination of pieces of evidence by the court, the presence of the accused on the bus was confirmed. The Court stated that the act is unforgivable and no mercy should be given in such cases. The Court punished the offenders with the death penalty by categorising the crime as the rarest of rare. The minor was sent to the juvenile home for three years and was not awarded the death penalty. 

Independent Thought v. Union of India (2017)

Facts of the case

The facts of the case were that Independent Thought is a child rights organisation that filed a writ petition before the Supreme Court for the public interest in 2013. The petition was regarding the constitutionality of exception (2) of Section 375 which is about sexual intercourse by a husband with his wife under 18 years of age. This marital intercourse was decriminalised irrespective of the age of the girl. The petitioners challenged that the rights of the married girl child between the ages of 15 and 18 are getting violated. In all other provisions regarding sexual offences, the age of consent was 18 years. The petition was filed to seek clarification and synchronisation of exception (2) with existing laws on child marriage and children’s rights.

Issues of the case

• Whether the exception 2 of Section 375 maintains harmony with the main provision?
• Whether exception 2 of Section 375 be declared unconstitutional?
• Whether the intercourse by a husband with his wife who is between 15 to 18 years of age be considered as rape?

Judgement of the case

As per the Supreme Court, the child below 18 years of age is also entitled to protection of her human rights, she must be protected from any kind of violence and protect her right to live with dignity. The Supreme Court cited India’s 172nd Law Commission report as well. According to POCSO, 2012 engaging in any penetrative sexual assault by the husband is an offence. The age of consent was raised to 18 years by amending Section 375 through the Criminal Laws Amendment Act, 2013. Therefore exception (2) of Section 375 became violative of the main provision, objectives of POCSO and social welfare aims of Article 15(3). The Exception must be read as only sexual intercourse with a wife above 18 years of age is not rape. The Court held that the woman is entitled to the right to privacy irrespective of her character or sexual history.

Nipun Saxena and ors. v. Union of India (2019)

Facts of the case

The facts of the case are that the accused raped a woman and then killed her. The Bombay High Court then convicted him and granted him a sentence of death penalty. The news was spread in the media persons and they published the ins and outs of the case without hiding the identity of the victim. This became the point of concern and a writ was filed by the Petitioner to request the Court to issue guidelines in this regard.

Issues of the case

Following were the issues discussed in this case:

• What should be the manner of the courts to protect the identity of the victim?
• Under what circumstances the identity of the victim can be revealed?
• Whether such circumstances be made applicable to POCSO as well?
• What measures shall be taken in order to reduce the difficulties faced by the victims during reporting and investigation?

Judgement of the case

The judgment was divided into parts – the first one dealt with the victim of the offence of rape under IPC and the second part dealt with victims under POCSO.

For the first issue, the defence was advised to conduct the cross-examination while maintaining decency and respect for the woman at large. The court issued guidelines which are mentioned below. For the second issue, the Court stated“There may be certain documents in which her name will have to be disclosed; e.g., the power of attorney and affidavit(s) which may have to be filed as per the Rules of the Court”. The same rule of non-disclosure shall be applied with greater force in the case of minor victims.

The court issued certain guidelines regarding the issues mentioned above:

1. The identity of the victim is to be kept confidential and not to be disclosed by any means.
2. If the victim is of unsound mind or is a minor or dead then the identity of the victim is not to be disclosed even after the consent of parents or guardians.
3. FIRs lodged under Sections 376, 376A, 376B, 376C, 376D, 376DA, 376DB or 376E of IPC and FIRs lodged under POCSO are not to be disclosed in any public domain.
4. The identity of the victim is to be kept confidential in appeal under Section 372 of CrPC.
5. The documents of the victim which can reveal the identity of the victim are to be kept under a sealed envelope by the police officials.
6. The authority receives the victim’s name from the investigating agencies to keep it confidential except in a report that is to be sent to the court or investigating agencies through a sealed envelope.
7. The identity under the cases of POCSO can be revealed only when the special court permits it for the benefit of the child.
8. A request to permit the disclosure of the identity of the victim of unsound mind by the parents shall be submitted to the concerned session judge.

Suggestions

As per the author’s view, the punishment of crimes like rape must be effective in deterring such crimes rather than just being harsh. The judiciary has played a great role in finding solutions to provide justice in the cases of rape. Several laws protect the dignity of women but the State still lacks in the implementation of these laws. Though there have been progressive reforms in the laws there are still some lacunas such as consideration of marital rape, gender neutrality, etc which must be taken into account. The ambiguity and inconsistency of the judgements reflect the patriarchy that exists in our society. 

The problem of gender neutrality should be taken into account with immediate effect. This call for gender neutrality has gained considerable traction in recent years. The lack of legal recourse for male and transgender victims exacerbates their trauma and contributes to a culture of silence.

The punishment for rape in other countries like the USA, Pakistan, Saudi Arabia, etc is harsher than in India. This puts people in fear of punishment and hence curbs the offences like rape. Many countries have replaced the term rape with sexual offences, the punishment of which is based on the gravity of the offences. There are still different views regarding capital punishment for rape, some are against it while some favour it.

Conclusion

India is a country where women have been worshipped for ages but the paradigm seems to fade away these days. Rape is one of the most shattering crimes in society which puts a long-lasting negative effect on the entire society. Crimes like rape cut across all the barriers like religion, race, caste, etc. Society is currently failing at keeping itself safe. Education and awareness must start right from the root, the youth, who make up the future of the country.

Frequently Asked Questions (FAQs)

Which court has the power to conduct the trial in case of rape?

The Court of Session has the power to conduct a trial as given under Schedule I of CrPC.

Is the offence of rape a bailable or a non-bailable offence?

The offence of rape committed under Section 375 IPC and punishable under Section 376 IPC is a non-bailable offence. Non-bailable offence refers to a case in which bail cannot be granted as a matter of right. It is upon the court’s discretion whether to grant bail or not.

Which provision deals with the punishment of rape under Bhartiya Nyay Sanhita, 2023?

Section 64 deals with the punishment of rape under Bhartiya Nyay Sanhita, 2023. There are no changes with regard to the punishment in the new law.

References

• http://vidhiparivartan.co.in/wp-content/uploads/2021/06/Paper-4.pdf
• https://articles.manupatra.com/article-details/Analysis-of-the-Criminal-Amendment-Act-2013 
• https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2402073 
• https://www.latestlaws.com/wp-content/uploads/2018/08/Critical-Analysis-of-Rape-Laws-in-India-and-Judicial-Opinion-By-Sakshi-Rewaria.pdf 
• https://privacylibrary.ccgnlud.org/case/independent-thought-vs-union-of-india-and-ors 
• https://ijcrt.org/papers/IJCRT2008366.pdf
• https://www.lkouniv.ac.in/site/writereaddata/siteContent/202005151744272048Chandra%20Sen%20Pratap%20Singh-The%20laws%20on%20rape%20and%20sexual%20crimes.pdf