This article is written by Saurab Verma student of 2nd year persuing B.A.LL.B. from Dr. Ram Manohar Lohiya National Law University, Lucknow.
Sexual offences as we all know are basically the offences related to physically harm the private or the sexual parts of a woman. These offences include offences like rape, child abuse, gang rape, sexual harassment etc. This article will wholly cover the ambit of the provisions related to sexual offences under the Indian Penal Code, 1860. In this article, the main focus will be on the provisions related and the way these provisions have been interpreted by the courts along with the need to reform some provisions given under IPC. This article is gender-neutral and not biased only towards women because the law is equal for both men and women.
Rape in India is now a common crime than murder. If we see in terms of crime rate, India stands at 2.2 in terms of murder while stands at 5.2 in terms of rape according to the National Crime Record Bureau(NCIB) till 2017 even if we exclude the other sexual offences like acid attacks, sexual harassment, voyeurism(practice of spying of people involved in intimate behaviours), disrobe a woman etc. Also, these crime rates are made according to the cases filed in the court but what about those incidents which are never reported in the police station due to illiteracy, lack of awareness, fear of respect, fear from society, just think of that. Also, we cannot blame the laws related to sexual offences because now the courts after the outrage of the severe cases, especially after the Nirbhaya case have made very important amendments like they have widened the definition and scope of rape because earlier the definition was just restricted to the ‘Sexual Intercourse’ which was interpreted as “Mere slightest or partial penetration of the male organ with the labia majora or the vulva or pudenda is sufficient to commit a rape” but after The Criminal Law Amendment Bill, 2013 they have explained the whole definition and made it very clear. Now, the definition of the term “Rape” under Section 375 of IPC is defined as “ A man is said to commit a rape if he penetrates his anus into any extent into the vagina, mouth, urethra or anus of a woman or inserts any object, to any extent, or any part of a body other than the anus into the vagina, urethra and anus of a woman or applies his mouth into the vagina, urethra or anus of a woman or makes her to do so with him or any other person”. Also, this definition is further subjected to the several circumstances like if the act is done against her will or without her consent or if the consent is taken by coercion or if the consent is obtained by fraud or if the consent is obtained when the girl was in intoxication or was unsound at that time or obtaining the consent of a girl which is not able to communicate and the most important when the act is done with or without the consent of a girl below 18 years of age. After, the Nirbhaya case, the age of consent was extended from 16 years to 18 years because the court believed that even at the age of 16, the girl is capable of giving the consent and the accused is also capable of the act which he is doing and therefore he should not be prosecuted under the Juvenile Justice Act.
As stated above, there are basically seven essential ingredients to constitute a rape-
- Against her will;
- Without her consent;
- With consent obtained by putting her or any other person in whom she is interested under fear of death or of hurt;
- With consent given under a misconception of fact that the man was her husband.
- Consent is given by the reason of unsoundness of mind, or under the intoxication of any stupefying or unwholesome substance;
- Women under the age of eighteen with or without consent;
- When a woman is unable to communicate consent.
‘Against her will’
The term “will” basically implies the desire of whether to do any act or not. However, both these expressions ‘Against the will’ and ‘Without the consent’ sounds similar but there is a difference between them because an act is done’ Against the will’ is obviously ‘without consent’ but its converse is not true. The concept of ‘Against her will’ was first explained by the court in the case of Chotelal vs State of Uttar Pradesh, where it was held that ‘Against her will’ means that the sexual intercourse has been done despite the woman has resisted and has opposed to the intercourse.
‘Without Her Consent’
The term ‘Consent’ basically means the voluntary agreement by the words, gestures, direct or indirect form, a verbal or non-verbal form of communication to engage herself in sexual intercourse. It is the most essential element to constitute rape because consensual intercourse does not amount to rape, and obviously, if the intercourse has been done by the consent, then, it defeats all the provisions related to sexual offences under IPC. Also, there is no obligation on the man to prove that whether the consent was there or not at the time of the intercourse the burden of proof is on the woman to proof for the consent. However, it has been interpreted by the courts that have incorporated in several sections of the IPC that consent obtained by misrepresentation or fraud is not consent. The focus related to this ingredient should be on the cases where prostitutions are involved because it involved consent in return of the monetary consideration by the man, therefore, if we see technically and according to the legal provisions, this is valid but actually, prostitution is illegal, therefore, the legislation should be made on the prostitution under IPC that whether consent obtained in return of money is a consent or not.
‘Consent Obtained under Fear of Death or of Hurt’
Section 375(c) of the IPC asserts that consent of the woman in order to exonerate the accused of the charge of rape must be given freely and voluntarily without any fear of death or injury. In such a case the consent obtained will not be valid consent. The scope of the clause has been widened by the Criminal Law (Amendment) Act 1983 by the insertion of the words “or any person in whom she is interested” after the words “putting her” in fear of death or hurt in the clause. In the case of Prakash vs State of Maharashtra, where there was sexual intercourse with the wife by the businessman and policeman where they obtained the consent because they started beating her husband. The court held them liable and said that the actual force is not necessary but a threat to use force is sufficient to obtain the consent for intercourse.
‘Consent Obtained by Fraud’
As incorporated in Section 375(4) of the IPC that consent given by a woman to a person for intercourse believing the person to be her husband whereas, in fact, he is not her husband, is no consent in law. In such a situation the person knows the fact of deception and pretends to be the husband of the woman. These cases are basically related to the bigamy which means that at the time of the marriage, the accused has another spouse living and the consent is obtained by making believe to his wife that he is unmarried to obtain the consent for sexual intercourse with the victim. Its applicability is interpreted by the court in the case of Bhupinder Singh v. Union Territory of Chandigarh, where the complainant Manjit Kaur married the accused Bhupinder Singh, who she had met through work, in 1990 and they engaged in the intimate relations. Later, she became pregnant but accused made her abortion in 1991. When she was pregnant again in 1994, she met her husband’s two friends who told her that he was already married and had children from his first wife. On being confronted her husband left her on the pretence of work and did not turn up even after she gave birth to a daughter. She made a complaint and he was held guilty of rape because prosecutrix married accused without knowledge of his first marriage. The consent for cohabitation was given under the belief that the accused was her husband. It was also held that delay in lodging complaint by prosecutrix couldn’t, in any event, wash away the offence because there was no consent. Therefore, the Supreme Court refused to interfere with the order of conviction passed by the High Court.”
Is Promise to Marry the Victim a Misconception of Fact Viciating her Consent?
There is a difference between a ‘breach of a promise’ and ‘a false promise’. Breach of promise is done in a bonafide form, where the consent to engage in sexual intercourse is made by making promise to marry but later the situations and circumstances are such that later he refuses to marry, that does not amount to rape because the intention was good at the time of the intercourse and he genuinely wanted to marry her later whereas ‘false promise’ includes the consent obtained only for having sexual intercourse with a woman and is having mala fide intention at the time of obtaining the consent, and where promise to marry was used as a tool to obtain the consent, therefore, this amounts to rape. Therefore, it totally depends upon the intention of the man or a woman, however, the burden of proof is on the woman to proof the mala fide intention of the man to prevent the man from being accused against the malicious and false proceedings against them.
Consent of an Insane or Intoxicated Woman
Section 375(5) of the IPC states that if the consent has been taken of the woman who at the time of giving the consent was intoxicated or not of sound mind or if the consent is taken by administration by him personally by any stupefying substance to which the woman is unaware about the consequences of that to which she gives consent. This clause was incorporated by the Criminal Law Amendment, 1983 to prevent the girl from being raped in a condition where she is not aware of the consequences of her actions and the man knowing about this condition can not take advantage of that woman by obtaining the consent in that situation. This was also been interpreted by the court in the case of Tulsidas Kanolkar vs State of Goa where the accused had sexual intercourse with the girl when she was intoxicated and the girl later became pregnant. The Apex court held him liable and was given the rigorous imprisonment of ten years with the fine of Rs.10000.
Consent of a Woman under Eighteen Years of Age
As incorporated in Section 375(6) of the IPC, a man is said to commit a rape, if the consent has been taken of a girl who is below the age of eighteen. Earlier, the age for giving the consent was sixteen but after the Criminal Law Amendment Act, 2013, it was extend to eighteen years after the Nirbhaya Case to prevent the sexual offences and abuse to the teenagers, because the courts have interpreted that girls of the age group from 13 to 18 years are not that mature to understand the consequences of the acts related to intimated relations, therefore, the courts have immuned them. Also, the fact that every person gets its every right when he/she becomes an adult and the age is considered as eighteen years, therefore, the age for giving the consent is to be made as eighteen years.
Marital Rape—An Exception to ‘Rape’
Marital Rape is the sexual intercourse between the husband and the wife without the consent of the wife. It is recognized as an exception in the definition of rape as incorporated under Section 375 of IPC stating that “Sexual intercourse or sexual activities with a man with his own wife, the wife not being under fifteen years of age, is not rape”.This topic has two sides, from the view of a man and the other from the woman. If we see from the woman side, sexual intercourse with a wife without her consent amounts to physical and sexual violence as held in the case of State of Karnataka vs Krishnarappa, also, in the case of Suchita Srivastava vs Chandigarh Administration, Right to make choices were given related to sexual activities, with right to liberty, privacy, dignity and bodily integrity under Article 21 of the constitution. The constitutionality of this exception has also been challenged in several petitions as violative of Article 14 and 21 of the Indian Constitution. As Article 14 states about the equality before the law and equal protection of laws, the woman is discriminated against the criminal law who are the victims who have been raped by the husbands. This section also discriminates against the married woman by denying them equal protection from rape and sexual harassment. One more concern if we see especially from the side of a married woman, this exception has created the classification between the married and unmarried woman, because unlike married woman, unmarried woman is protected under IPC but if a married woman is being raped by her husband, then, she cannot claim justice under IPC due to lack of legislative provisions regarding marital rape under IPC, they can just move to the court with the offence of domestic violence, whose punishments are different and are less strict as compared to the provisions under IPC.
If we see it under the ambit of Article 21 of the constitution, this violates their right to life with dignity, because it is totally the choice of a woman to engage herself in sexual intercourse or not and you cannot force her. Thus, it had been recognized in the case of Justice K S Puttaswamy(Retd.) vs Union of India, where the court held that the right to privacy as a fundamental right and held that right to privacy also includes ‘Decisional Privacy’, especially an ability to make intimate decisions primarily consisting of a sexual or procreative nature and also which is in respect of the intimate relations. If we look from the man’s side, if this exception is criminalized under IPC, then, it will lead to increase in a number of false complaints just for the sake of personal revenge and ego and it will overburden the judiciary. Another big concern is intercourse with the husband denies the concept of ‘Against her will’ because as we know from the earlier times, India has been known to as a patriarchal society end at the time when IPC was made, the woman was considered not as a separate entity but as a chattel of her husband but Indian law has recognized woman as separate entity and laws are made accordingly. Also, this fact should be considered that if the woman is married, then she becomes the wife of her husband and not the slave of her husband and thus she has the right to whether to engage herself in the intimate relations or not and therefore legal provisions should be made on Marital Rape.
Punishment for Rape
The provision for punishment for rape is stated under Section 376 of the IPC where the rigorous imprisonment for not less than 10 years is given which can be extended up to imprisonment for life. Also, some entities are specified separately, namely, public servant, police officers, members of armed forces, management of staff or jail or if the rape is committed repeatedly on the same woman, are also subjected to liable for the rigorous imprisonment for not less than 10 years and can be extended up to imprisonment for life and will also be liable for fine for the same. Also, if the rape is committed to a woman who is under the age of twelve, he will be liable for the imprisonment which shall not be less than 20 years and can extend to imprisonment for life as incorporated under Section 376AB of the IPC. The legislation have made further and separate provision for the sexual intercourse by a person in authority which basically means if there is a fiduciary relationship between a man and a woman meaning thereby, where one person is in a position to dominate the other like the relationship between a doctor and a patient, or by the manager of a jail of a custody, where a man who has committed the offence is liable to the rigorous imprisonment for not less than 5 years which can extend up to 10 years and is incorporated under Section 376B of the IPC. This provision was made to restrict the sexual abuse to a woman by the doctor because “ doctor ” is a position which can easily influence the patient and the patient believes in them easily, thus, no questions can be raised against their acts to the patients, therefore, this provision limits the sexual abuse especially by the doctors. Also, after the Nirbhaya Case, 2012, some provisions were modified and some new provisions were added like earlier the punishment for rape was earlier 7 years of imprisonment but changed to 10 years, stalking was also made as an offence and imprisonment up to 3 years was made for the same under Section 354D of the IPC, the imprisonment for the offence of Gang rape was increased from not less than 10 years to not less than 20 years under Section 376D of the IPC. Also, earlier there were no provisions made for the unwelcome physical contact, words or gestures, demand or request for several favours, showing pornography against the will of a woman or making sexual remarks but now all these activities are recognized as an offence and laws are made under IPC.
Section 376D of the IPC defines gang rape as the rape committed by one person or more than one constituting a group or acting in furtherance with the common intention and each of those persons shall be liable for the imprisonment for not less than twenty years which can be extended to imprisonment for life and they would also be liable for fine and the fine will be reasonable to the medical expenses of the victim and the rehabilitation of the victim. As stated above, earlier the punishment was for imprisonment for not less than ten years was there but was later changed after The Criminal Law Amendment, 2013 to imprisonment not less than twenty years.
If we critically analyse this provision, we can see that no exception is given to a person who is below the age of eighteen years and would be prosecuted as an adult because earlier there was a loophole that if a man who is not the age of eighteen and involved in the rape were treated under the Juvenile Justice Act, 2000 and so was able to escape from the rigorous punishment but the court has realized later especially after the Nirbhaya Case where one man who was not of the age of eighteen was also involved, that, a man who is of the age of sixteen is still able to know the consequences of his actions and cannot the take the defence of a minor and thus will be treated as an adult. Further, some provisions were also made taking into consideration the age of the victim. As Section 376DA of the IPC states about the life imprisonment for the gang-rape committed to a woman who is below the age of sixteen years and would also be liable for the fine and Section 376DB of the IPC which stated for the imprisonment for life if the rape is committed to a woman under the age of twelve years of age, by both these sections, the age group of a woman from thirteen years to 16 years are prevented under IPC.
Rape Causing Death or Resulting in Persistent Vegetative
The court has defined ‘Persistent Vegetative State’ as ‘a person who is alive but does not show any evidence of being aware of his environment is known to be in a position of ‘Persistent Vegetative State. This definition and the term was not under the IPC before 2013, but its need occurred after the Nirbhaya Case because in that case the victim after being raped was left in such a position that she was not in an aware state and was later died, thus, after several discussions, this provision was incorporated under Section 376A of the IPC under the Criminal Law Amendment, 2013 which states that when the offence is committed under Section 375 of the IPC and in the course of commission inflicts an injury which causes the death of a woman or causes the woman to be in a persistent vegetative state will be liable for the rigorous imprisonment of not less than twenty years which can be extended to imprisonment for life.
As incorporated in Section 376E of the IPC, whoever has been previously convicted of an offence punishable under Section 376 or Section 376A or 376AB, 376D, 376DA or 376DB shall be liable for imprisonment for life. But I think that the accused who has the courage to repeat the same offence means he has no fear of the law and he is ready even for imprisonment for life and therefore there should be the punishment of death penalty for the accused who has previously been convicted under these sections because by doing these crimes and even actually two times, he has destroyed the life of two girls and therefore he is not entitled to the second chance and again the imprisonment should not be given whether it is for even life.
Consensual Sexual Intercourse not amounting to Rape
As the term ‘Consensual Intercourse’ suggests, it means the sexual intercourse between a man and a woman with the consent of the woman. However, this statement seems to be simple that obviously sexual intercourse with the consent of a woman is not rape but the problem occurs in those cases where a man obtains the consent of a woman by making a promise that he will marry her but later refuse to do so. These cases are witnessed mostly in live-in relationship cases. Also, the Supreme Court have differentiated between the rape and consensual intercourse emphasising on the distinction between “breach of promise” and “false promise” as breach of promise means that at the time of the intercourse, the consent was obtained with the bonafide intention but later the circumstances were such that the man has later refused to marriage and therefore it does not amount to rape because that refusal could be due to the family pressure or other domestic problem and therefore that intercourse does not amount to rape whereas, for a false promise, the requirement is that there had to be the mala fide intention of a man and he had made the promise to marry for just obtaining the consent of a woman and therefore he will be liable for rape under Section 375 of the IPC. The court also said that it is not every time the man wants to engage in the intimate relations but there may be the cases where the woman agrees to engage herself in the intimate relations on the account of “her love and passion for the accused” and not based on the “misconception made by the accused”.One big concern regarding this situation is that the court says that if there has been consensual sexual intercourse has been done between a man and a woman by obtaining the consent of a woman to marry her and later refuses, then, he will be liable only if it is been proven that his intention was mala fide at that time, so, the burden of proof is on the woman to prove the bad intention of a man and it is very difficult to prove but on the other side, it is mandatory also otherwise, it will lead to the malicious proceedings by the woman. So, I think this law is gender-neutral and its application will depend on the facts and circumstances of each case.
Evidence of Prosecutrix
As written in the definition of rape, the word ‘penetration’ is mentioned which is itself sufficient to constitute rape and it does not exclude ‘partial penetration’. It has been strictly interpreted by the court in Nirbhaya Case, that even slight penetration will amount to rape. Other evidence can be the biological evidence which is obtained by the crime laboratories like semen, blood, vaginal secretions, vaginal cells, these can be identified. Also, tools like rape kits are very useful in determining the extent of penetration. DNA profiling method is also used to identify the accused. Motile sperm are also collected by the crime laboratories which is produced during the recent coitus to identify the accused and in these cases, the statement of the victim is considered as strong evidence and mainly the primarily evidence.
Disclosure of Identity of Rape Victims
Section 228-A of the IPC which was inserted after the Criminal Law Amendment Act, 1983 states about the disclosure of the identities of certain offences, in which it has been specifically written that whoever prints or publishes about the identity of the victims related to the offence mentioned in Section 376, 376A, 376B, 376C, 376D, 376DA, 376DB, 376E will be liable for imprisonment for either description of the term which may be extended up to two years and shall also be liable for the fine. It has also been mentioned in Section 23 of the POCSO (Prohibition of Children from Sexual Offences) Act, 2012 to imprisonment for two years if any person has revealed about the name, address, photograph, family details, schools, neighbourhood and similarly the restrictions are also made in Section 21 of the Juvenile Justice Act, 2000. The proposed idea behind this was to save the victim from the post offence atrocities of society which came in the form of ridicule and deterioration of marriage prospects. Rape and sexual assault victims were commonly targeted as one who was abetting the crime. Surrendering to the social stigma of victimization after the crime, the legislature came up with Section 228A prohibiting anyone from making the identity of a victim of such offence known. While it cannot be denied that the media houses and news reporting agencies are cautious about such law, still there have been instances where there have been willful or negligent breaches. But the irony and apathy about these provisions are there have been many instances where the judiciary whether the Supreme Court, the High Court or the Trial Court have rashly disclose the identity of the victims in several cases and these judgements were widely circulated by the websites, social media. However, the courts have conveniently ruled that provisions given under Section 228-A are not applicable to the judicial servant acting in a bonafide manner.
The Hon’ble Supreme Court in the case of State of Karnataka vs Puttaraja has stated that in the cases related to sexual offences, the name of the victim will not be revealed by the courts but instead of name, they will be called as ‘victim’ in the case for the social object to prevent the social victimization of the sexual offence for which the Section 228-A was enacted. Also if we emphasis this section, it has been made as a non- compoundable offence to prevent the powerful media houses from purchasing the victim’s approval from money for selling the news. As these days, care should be taken on social media rather than to media houses because now the news spread very fast through Whatsapp, Facebook etc. and people share it in the bonafide intention and not to harm the reputation of the other but they are unaware about the consequences of their act, therefore, certain restrictions should be made by the Ministry of Information and Technology to prevent the sharing of the identities of the victim because reasonable restrictions can be imposed by the state to right to freedom of expression guaranteed under our Constitution.
Provision related to unnatural offences is incorporated under Section 377 of the IPC mentioning about imprisonment for life or of ten years against the one who is voluntarily doing carnal intercourse against nature with any man, woman or animal and shall also be liable for fine. This section came into existence in 1861 during the British rule where the term “against nature” included homosexual activities. Unnatural offences also include sterilization, sodomy, bestiality etc. This section has not made any classification between the married or unmarried woman because in marriage under Hindu Law(Hindu Marriage Act, 1954) also sodomy, bestiality or sterilization are the grounds for the annulment of the Hindu marriage. Also, the concept of bestiality revolves around the consent as how can you obtain the consent of an animal when they are not able to communicate, similarly ‘anal’ or ‘oral’ sex is equally unnaturally because both these two are out of the scope of the normal sexual intercourse and are physically harmful to both men and woman and are not the essential ingredients for a sexual intercourse.
Constitutional Validity of section 377
Section 377 was first challenged by an NGO, Naz Foundation and AIDS Bhedbhav Virodh Andolan in the Delhi High Court in 2001 as violative of the Article 14, Article 15 and Article 21 of the Indian Constitution on behalf of the Lesbians, Gay, Bisexual, Transgenders because no educational, constitutional rights were there for them, they were not treated like the ordinary man or woman and thus their conditions were worst. Then, by taking into consideration the conditions of the transgenders, in 2014, the Court has made the transgender quota and has categorized them into the Other Backward Castes(OBC). Later Supreme Court in the Right to Privacy judgement also called for equality and condemned discrimination, stating that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine. In January 2018, a three-member bench of the SC heard the petition by filed by five people to review the judgement given in Naz Foundation Case and the SC have finally decriminalized homosexuality by declaring Section 377 of the Indian Penal Code as unconstitutional. The Apex Court unanimously ruled that individual autonomy, intimacy and identity are protected fundamental rights and scrapped the controversial Section 377 of IPC- a 158-year-old colonial law on consensual gay sex. The Supreme Court reversed its own decision and scrapped section 377 of IPC that criminalized homosexuality and opined that the application of Section 377 to consensual homosexual sex between adults was unconstitutional, irrational, indefensible and manifestly arbitrary. But Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality.
Proposals for Reform
The punishment given under the provision related to rape under IPC is for imprisonment for not less than ten years which can extend up to imprisonment for life. These are the following proposals which should be made regarding these offences-
- There should be the provision of the death penalty for the accused where the rape is of such extent that it has amounted to the death of the victim. Also, the accused which we witness in these cases, they are not different species but they exist between us only, therefore, changes are required in the minds of society rather than the law, like, there should be a strict ban on porn websites, adult entertainment because nowadays in the time of technology, these are accessible to everyone in the society and can be accessed by even the child who is not even a teenager, therefore, the Ministry of Information and Technology should take strict action about this problem.
- There should be some awareness programs in urban as well as rural areas where the children, especially girls should be made aware about the good touch and the bad touch, this will help to prevent the cases of child abuse.
- There should be legal awareness programs primarily in the rural areas, about not to fear from filing a case, if the offence is related to rape, it has to make them understood, that now the crime has committed and the police, the judiciary will be able to help them if they wanted them to.
- Another big concern is the speedy trial, it is to suggest that in the cases where there is constructive evidence like CCTV recording etc. where it is clearly seen the identity of the accused, then, those proceedings should be done quickly.
- There should be the programs regarding the sex education to be organized in schools, so as to aware the students about these things because it is important to aware about the reproduction process, especially make them aware about the sodomy, bestiality or sterilization, about the contraceptives which make them aware about these private things.
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