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Amendments in Laws relating to ‘Rape’ in India

This article is written by Shaily Garg, a Fourth year B.Com. LLB (Hons.) Student of University Institute of Legal Studies, Panjab University, Chandigarh.

Rape Laws
Rape Laws Amendment

Introduction: Rape Laws

The word ‘rape’ was originally derived from the Latin expression rapio, which means ‘to seize’ which in its true sense means a forcible seizure. ‘Rape’ or raptus, in its simplest and structured form, signifies ‘the ravishment or molestation of a woman against her will or without her consent or with her consent obtained by force, fear or fraud’ or the fornication of a woman by force against her will. Section 375 of the Indian Penal Code, 1860 defines rape.

It is unlawful sexual intercourse between a man and a woman without the woman’s consent or against her will under any of the seven circumstances enumerated in Section 375 of the IPC. However, the original Section 375 and the provisions providing punishment, therefore, have witnessed major amendments due to inadequacies in old law which did not define and reflect the various kinds of sexual assaults that women are subjected to in our country.

Cases dealing with Amendments in Section 375 and 376

Tukaram and Another vState of Maharashtra[1] 

This case (also known as Mathura Bai rape case) were triggered by a particular instance of custodial rape. In this, a tribal woman was in police custody and allegedly raped by two policemen but ‘no wounds or marks’ were found on her body, which implied by the Apex Court that there is ‘no resistance’ on her part, hence no rape has been committed.

However, the High Court had observed there was a difference between ‘consent’ and ‘passive submission’ and held that mere passive or helpless surrender of the body and its resignation to other’s lust, induced by threats or fear, cannot be equated with the ‘desire or will’, nor can furnish a solution by the mere incontrovertible fact that the sexual act was not in opposition to such desire or volition.

The judgment delivered by the Supreme Court faced mass criticism and to nullify the effect of the judgment in the Mathura case and other cases of that period, extensive amendments were introduced to the IPC and to the Indian Evidence Act, 1872 known as Criminal Law (Amendment) Act, 1983, which are the following:

  • The burden of proof of proving that consent was present lies on the accused.
  • Custodial rape was bought in the purview of rape under Section 376(2),
  • Section 376A to 376 D were added in IPC.
  • Disclosing the identity of the victim was punishable (added under Section 228A in IPC).
  • Section 114A was inserted in the Evidence Act, 1872.

Sakshi v. Union of India[2]

A petition was filed by an NGO named “Sakshi” to the Supreme Court to include all kinds of forcible penetration and not just penile/vaginal penetration under the definition of the offense of rape (Section 375). Hence, parliament had revised Section 375 and extended the definition to:

  1. penile-urethra, penile-oral, or penile-anal penetration;
  2. object-vaginal, object-urethra, or object-anal insertion;
  3. insertion of a part of the body, other than the penis, in the vagina, the urethra, or anus of a woman;
  4. Manipulation of any part of the body of a woman for causing vaginal, urethra, or anal penetration, and
  5. Application by a man of his mouth to the vagina, urethra, or anus of a woman or making her do so with him or any other person.

Mukesh & Another v. State for NCT of Delhi [3] 

Also known as Nirbhaya case/ 2012 Delhi Gang rape case, in this case, the Government of India, after giving an anxious consideration to the need to review the existing rape laws and enhance punishment for brutal sexual assaults, appointed a Committee, headed by late Justice JS Verma. The Committee looked into the possible amendments to criminal law and hence resulted in the Criminal Law (Amendment) Act, 2013, which is also known as Nirbhaya Act or Anti-Rape Act. The recommendations of the committee were as follows:

  • Increased punishment is harsher (not the death penalty though) to persons accused of committing sexual assault of extreme nature on women.
  • Other sexual offenses like Voyeurism, Acid attack, etc. should be given harsher punishments.
  • Stricter punishment provisions for not registering complaints of rape.
  • Bill of rights for women which gives dignity and respect to the woman over their choices of sexual relationship and for their sexual autonomy.

Mohd. Akhtar v. State of Jammu and Kashmir [4]

Also known as Kathua rape and murder case. This case gave legislative effect through the Criminal Law (Amendment) Act, 2018. In this case, a minor girl was raped, and hence, the main objective of the amendment was to give harsher punishment to the perpetrator of rape, especially for the rape of minor girls below 16 years and 12 years. The following amendments are:

  • The Minimum punishment of rape increased from 7 years to 10 years.
  • The punishment for Gang rape of a girl below 16 years is imprisonment for the rest of the life
  • The minimum punishment for the rape of a girl below 12 years of age is 20years of imprisonment up to the death penalty.
  • Provisions for speedy investigations, trial, and appeal are made i.e. investigation to be done within two months, Trial in two months, and disposal of the appeal in six months.
  • No provision for anticipatory bail for a person accused of rape or Gang rape of a girl below sixteen years of age.
  • If different punishments are there in IPC and POSCO Act, 2012 for the same offense, then the higher punishment will be given.

POSCO Act, 2012

The Protection of Children from Sexual Offences (POSCO) Act came into force on November 14, 2012, and was explicitly formulated to deal with heinous offenses including child sexual exploitation and child pornography. The act also provides for the establishment of Special Courts for the trial of such offenses and related matters or occurrences.

According to this act, the term ‘child’ is characterized as any individual below 18 years of age and regards the best interests and prosperity of the child as being of paramount importance at every phase to ensure the healthy physical, emotional, intellectual, and social development of a child. This Act was amended in 2019, due to the outrage of the Unnao rape case and the Kathua rape case among the nation, hence, making provisions for the intensification of punishments for various offenses to dissuade the perpetrators and ensure safety, security, and dignified childhood for a child.

Conclusion

After all these amendments in rape laws and tyrannical punishments in India, Rape has been considered the fourth most common crime against women in India. An average of 87 rape cases daily gets recorded in India according to data released by National Crime Records Bureau (NCRB) in 2019. Some experts say deep-seated patriarchy has created a second-class status for women in India. This rape culture can be ceased only when we stop blaming victims, have zero-tolerance towards sexual harassment, broaden our understanding related to the root cause of rape culture, and educate our future generation.

Amendments in Laws relating to ‘Rape’ in India

[1] Tukaram and Another v. State of Maharashtra, AIR 1979 SC 185. 

[2] Sakshi v. Union of India, AIR 2004 SC 3566, 2004 (2) ALD Cri 504.

[3] Mukesh & Another v. State for NCT of Delhi, AIR 2017 SC 719.

[4] Mohd. Akhtar v. State of Jammu and Kashmir, 2018 SCC Online SC 494.

Amendments in Laws relating to ‘Rape’ in India

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This article is written by Shaily Garg, a Fourth year B.Com. LLB (Hons.) Student of University Institute of Legal Studies, Panjab University, Chandigarh.