Rape Laws In India-Appropriate Or Not?

Rape Laws in India-Appropriate or not?

Rape is a stigma which exists in the society from a long time. The dictionary meaning of word rape is “the ravishing or violation of a woman.” The rape victim i.e. a woman as woman cannot commit rape due to biological reasons. She is traumatized after the event; it is very difficult for a woman to come out of this trauma. Rape in India is a cognizable offence. There are many provisions in various Acts. The word rape is legally defined u/s 375[1] of Indian Penal Code, 1860. It defines the rape and also prescribes its punishment. Whenever a man penetrates or does sexual intercourse with a woman without her consent or will it amounts to rape. Penetration here means that only a slightest of the touch of penis to vagina amounts to rape, unruptured hymen of woman does not prove that rape was not committed. There are exceptions to it also i.e. when a man does sexual intercourse with his wife who is above 15 years of age. The rape law under Indian Penal Code had gone through a lot of amendments. In 1983, amendment was made and S. 376(2) i.e. Custodial rape, S. 376(A) i.e. marital rape & S. 376(B to D) i.e. Sexual Intercourse not amounting to rape were added.

U/s 228A[2] of Indian Penal Code, No person can disclose the name of the rape victim and if anybody discloses the name, he shall be punished with either description for a term which may extend to two years and shall also be liable for fine.

U/s 114-A[3] of Indian Evidence Act, presumption can be made as to the absence of consent in certain prosecutions for rape.

U/s 53(1)[4] of Code of Criminal Procedure, When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

U/s 164A[5] of Code of Criminal Procedure, provisions for medical examination of rape victim are given.

U/s 327(2)[6] of Code of Criminal Procedure, there should be in camera trial for all rape victims.

The Judiciary in India is burdened with a lot of work and therefore judgment of the rape cases comes very late. Sometimes it comes so late that either of the parties had died. So, there should be speedy trials in rape cases so that the victim gets justice as it is rightly stated that “Justice delayed is justice denied.”

As every coin has two sides, in this case also there are two sides. Many a times girls also make fake complaints just to ruin the life of a boy, sometimes the parents of girl compels her to file a complaint against the boy she loves, as the law shows a lot of sympathy towards the girl. The accused is left with nothing, when the complaint is made his life is ruined irrespective of the fact that he was proved guilty or not. So, in my views there must come an amendment which equalizes the burden of proof on both the sides and the law works smoothly. It should be such that is contradicts the statement i.e. “Law is there for vigilant.”

Introduction:

                Rape is a crime, which has a devastating effect on the survivors; it has been described as a “beginning of a nightmare”. The aftershocks include depression, fear, guilt-complex, suicidal-action, diminished sexual interest. etc., “one becomes afraid of'……..writes a victim, “half the human race”. Referring to the pitiable condition of women in society Mr. Justice S. Ahmad observed that “unfortunately, a woman in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution “enjoy, equal status”. “Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honorable and peaceful life”.[7]

Rape is a crime against basic human rights and is also violative of the victim's most cherished of the fundamental rights, normally, the right to life contained in Article 21[8].

Incidence and prevalence:

South Africa has the highest per capita rate of reported rapes in the world: 119 per 100000 people, according to the UN. That compares with 30 per 100000 in the US. Analysts and women’s advocacy groups argue South Africa’s total, including unreported rapes could be five to nine times higher[9].

Police statistics show more than 50000 rapes are reported every year[10]. In 1987 and 1991 number of cases reported were7767 and 9793 respectively. About 26% (11112) increase in number in the year 1992 - (NCRB). There is one rape in every 54 minutes[11].

As observed by Justice Arjit Pasayat:
" While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female."

Justice Krishna Iyer has observed in a very famous case of Rafiq v. State[12]:

“A murderer kills the body but a rapist kills the soul.”

What is Rape?

Rape under English law is defined more particularly where the law cover all the aspect of rape. Under the Sexual Offences Act 2003, which came into force in April 2004, rape in England and Wales was redefined from non-consensual vaginal or anal intercourse, and is now defined as non-consensual penile penetration of the vagina, anus or mouth of another person. The changes also made rape punishable with a maximum sentence of life imprisonment. Although a woman who forces a man to have sex cannot be prosecuted for rape under English law, if she helps a man commit a rape she can be prosecuted for the crime (see, for example, the conviction of Claire Marsh in 2001). A woman can also be prosecuted for causing a man to engage in sexual activity without his consent, a crime which also carries a maximum life sentence if it involves penetration of the mouth, anus or vagina. The statute also includes a new sexual crime, called "assault by penetration", which also has the same punishment as rape, and is committed when someone sexually penetrates the anus or vagina with a part of his or her body, or with an object, without that person's consent.

Sexual offence act, 2003 states as follows:-
Rape
(1) A person (A) commits an offence if-
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents[13].

With compare to this law, law of India under penal code not cover the penetration of mouth and if such happened then that not amount to rape under our present law above all in India it is observe by our Hon'ble courts that in case of rape if any woman help to commit such rape she will be not charge for the offence of rape as she help to commit the rape but in England it happens and their punishment are also more than us so any one before committing this must think and in the mind of people there is some fear about law and it's punishment.

Like every other country, laws relating to rape do exist in India. However, justice is rarely achieved. In most cases, rape victims themselves hesitate to make a complaint due to the stigma attached to it in society. Sometimes, even if a complaint is made, the offender gets away due to wide spread ignorance of the laws relating to the offense.

Rape means an unlawful intercourse done by a man with a woman without her valid consent. (Section 375 of the Indian Penal Code, 1860[14])

A man is said to commit "rape" if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-

1.      Against her will.

2.      Without her consent.

3.      With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

4.      With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

5.      With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

6.      With or without her consent, when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

AMENDMENTS TO RAPE LAWS IN 1983[15] were made to address mainly 3 issues :
A.        Minimum Punishment in rape cases (IPC Section 376 sub section 1)
B.        Special cases of rape (IPC Section 376 subsection 2 a-g )& A)
C.        Marital Rape (IPC Section 376 A)
D.        Abuse of official power (IPC Section 376,B,C,D)

A.        MINIUM PUNISHMENT (Section 376 subsection 1 of Indian Penal Code)

1.         Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both : Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

Issues
Prior to this amendment, minimum punishment wasn't specified, hence this is commendable, but if the judge decides that there is an adequate reason the punishment can be reduced.

B.        SPECIAL CASES OF RAPE like rape of a girl who is below twelve years of age, rape knowing the woman to be pregnant , gang rape, and custodial rape definitions, Specific (and sometimes increased) Punishment in some of these cases Shift of burden of proof to defendant from the victim in some of these cases. (Section 376 subsection 2 (a-g) of Indian Penal Code)

1.         Rape of a woman who is under twelve years of age [Sec.376 (2) (f)]
Punishment
Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Issues
Unfortunately other than the increased minimum punishment from 7 years to 10 years, no other special concession is given to Child Rape given the increased trauma for the girl. Since even the minimum punishment can be reduced by the judges, much needs to be done in this area.

2.         Rape of a woman, knowing her to be pregnant (Sec.376 Subsection 2- e)
Punishment
Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Exemption from burden of proof if the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused

3.         Gang Rape ( Sec.376 Subsection 2- g)
"Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. "

Thus even if five men force a women into having sexual intercourse with only one of them, the remaining four will also be considered to have committed rape under this law. Punishment
Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Exemption from burden of proof :
If the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused.

4.         Custodial Rape: (Sec.376 Subsection 2 a, b, c , d):
Rape committed on a woman in their or their subordinate's custody by

a) police officer
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to, which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him;
b) public servant
c) management or the staff of a jail, remand home or other place of custody or a women's or children's institution
d) management or on the staff of a hospital
Punishment
Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine :Provided that the court.

To understand the impact of sexual harassment on women one must listen to the account of its victims as no one conveys the meaning and truth of sexual harassment better than the women who have endured it. In response to the question "What kind of emotional response do eve-teasing /sexual harassment evoke in you", not a single woman ticked the category of "indifferent". The survey of the Gender Study Group shows that most women felt disgusted, insulted and scared by any sort of harassment.

Women often internalise male perceptions of sexual harassment and blame themselves for having brought on the harassment. They not only doubt the validity of their own experiences but begin to believe that they themselves must be 'abnormal', ‘cheap’, 'indecent' or deserving the violence that comes their way.

Sexual harassment is nothing less than the showcasing of male dominance. Given an opportunity, such men (those committing sexual harassment) would try fulfilling their desire. However, it also not true that all cases of sexual harassment are such- where the accused is guilty of conceiving the intention of a sexual intercourse. But it also depends on each individual case and circumstances, because it may well be the case that the woman may also be at fault. 

Every 60 minutes, two women are raped in this country. What is more horrendous is that 133 elderly women were sexually assaulted last year, according to the latest report prepared by the National Crime Records Bureau (NCRB).  A total of 20,737 cases of rape were reported last year registering a 7.2 per cent increase over the previous year, with Madhya Pradesh becoming the “rape capital” of the country by topping the list of such incidents.

Going by the NCRB statistics, two women are raped in the country every hour.  Madhya Pradesh accounted for 14.5 per cent of the total cases (3,010), with West Bengal following with 2,106 such incidents. Records of high incidence in other states include Uttar Pradesh (1,648), Bihar (1,555) and Rajasthan (1,238). The national capital had 598 cases in which 602 women were sexually assaulted.

In its report Crime in India — 2007, the NCRB noted that offenders were known to the victims in as many as 19,188 cases (92.5 per cent). That included 6,902 incidents in which neighbours were involved.  Parents or close family members were involved in 405 cases while in 1,448 cases relatives were involved.  “Everywhere in this country, over 90 per cent of the victims are raped by person known to them,” a senior police official said.[16]

According to the official statistics of 1991, one woman is molested every 26 minutes. These statistics refer to the reported cases. Whereas, if the unreported cases were to be included, it would be a matter of seconds- rather than minutes. investigation of Most cases are not reported by victims because of various reasons such as family pressures, the manner of the police, the unreasonably long and unjust process and application of law; and the resulting consequences thereof. 

In instances where women have reported such illegal and unwelcome behavior, there have been significant victories in the past decade or so. Also considering the fact the sometimes these victories are achieved after a wait of a decade or so.

As Kiran Bedi., Retd. Joint Commissioner, Special Branch has observed:
"The law of rape is not just a few sentences. It is a whole book, which has clearly demarcated chapters and cannot be read selectively. We cannot read the preamble and suddenly reach the last chapter and claim to have understood and applied it."

 In the Mathura rape case[17], wherein Mathura- a sixteen year old tribal girl was raped by two policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra.

Her relatives, who had come to register a complaint, were patiently waiting outside even as the heinous act was being committed in the police station. When her relatives and the assembled crowd threatened to burn down the police chowky, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama.

 The case came for hearing on 1^st June, 1974 in the session’s court. The judgment however turned out to be in favour of the accused. Mathura was accused of being a liar. It was stated that since she was ‘habituated to sexual intercourse’ her consent was voluntary; under the circumstances only sexual intercourse could be proved and not rape.

 On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused namely Tukaram and Ganpat to one and five years of rigorous imprisonment respectively. The Court held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse.

When the appeal was made to the Supreme Court, the Senior Counsel “Ram Jethmalani” while defending the accused Policemen divided the concept of consent into two i.e. Express and Implied consent. He said that there was not express consent but it was implied because Mathura raised no alarm, there was no tearing of clothes, no semen on clothes, no cry for help etc, he again said if there had not been any consent, there would have been at least a cry for help. These circumstances are enough to show that there was implied consent. The Supreme Court acquitted both the accused and held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her.

 The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent. However, the Criminal Law Amendment Act, 1983[18] has made a statutory provision in the face of Section.114 (A) of the Evidence Act[19], which states that if the victim girl says that she did no consent to the sexual intercourse, the Court shall presume that she did not consent.

In Mohd.Habib Vs State[20], the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.

In State of Punjab vs. Gurmit Singh[21], the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.

The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar[22], held that "the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard."

In Delhi Domestic Working Women v. Union of India[23], the Apex Court laid down the following broad guidelines:

·         The complainants of sexual assault cases should be provided with legal representation i.e. they should be provided an advocate who could help her properly.

·         Legal assistance will have to be provided at the police station since victim of sexual assault might very well be in a distressed state upon arrival at the police station and guidance of a lawyer at that stage is very necessary.

·         The police should be under duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

·         A list of advocates who deal in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

·         In all rape trials anonymity of victim must be maintained, as far as necessary.

·         A “Criminal Injuries Compensation Board” should be established.

·         Interim compensation should be given to rape victim even if the case is still going on in the court.

·         Medical help should be provided and woman should be allowed to abort the child if she becomes pregnant due to the incidence.

·         Compensation should be provided to rape victim to rehabilitate herself.

In B. Gautam v. Shubra Chakraborthy[24], it was held that Rs. 1000 per month should be given to rape victim as an interim compensation.

In Chairman, Railway Board vs. Chandrima Das[25], a practicing Advocate of the Calcutta High Court filed a petition under Article.226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon) - a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation.

An appeal was preferred and it was contended by the state that:

a)      The railway was not liable to pay the compensation to the victim for she was a foreigner.

 b)     That the remedy for compensation lies in the domain of private law and not public law. i.e. that the victim should     have approached the Civil Court for seeking damages; and should have not come to the High Court under Article.226. 

Considering the above said contentions, the Supreme Court observed:
"Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would be avoidable under public law. It was more so, when it was not a mere violation of any ordinary right, but the violation of fundamental rights was involved- as the petitioner was a victim of rape, which a violation of fundamental right of every person guaranteed under Article.21 of the Constitution."

The Supreme Court also held that the relief can be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the ‘Moral Code of Conduct’- adopted by the General Assembly of the United Nation.

Causes of Increased Rape Cases in India:

Rape, molestation and abductions, the crimes are numerous but low conviction rates for the same is one of the major reasons for the growing number of offences against women, point out experts.

"Apart from other factors, the low conviction rate in the cases of rape is the biggest worry we have today. There is hardly any deterrence. Law should provide fast track courts to deal with such cases," says Girija Vyas, Chairperson, National Commission for Women (NCW).

While there were 37,000 cases of molestation and eve-teasing in 2006-07, the conviction rate for such crimes, is below 30 per cent. For rape it is just a dismal 27 per cent.

Brinda Karat, All India Democratic Women's Association (AIDWA), member says, "I have raised the issue in the Parliament several times that there is a need to step up conviction rate in rape cases drastically. Poor legal system, wrong understanding of policemen in these cases and lengthy procedures especially in child rape where after horrifying rounds of investigation the victim starts feeling that she is an accused and should not have registered the case, are few reasons for low conviction rate."

"In every 10 hours, a girl of the age of 1-10 is being raped in India. We are raising this issue and have demanded enforcement of stringent laws by government," she adds.

Reacting to a recent incident in which a minor was raped by a constable and his accomplice in a moving car in the national capital, Vyas says, "This is a special case and it should be dealt with a fast track court. On many occasions, complains do not get registered on time and then it is very difficult to prove that rape actually happened. It should be registered within 24 hours of the incident."[26]

The accused believe they can get away with it. Officials are corrupt and easily bribed (some are even committing rapes themselves). Women are shamed and humiliated when they come forward because of the backward notion that it's the woman's fault (even when the 'women' are young children). If they make a case, it becomes public knowledge and their families and society shun them in many cases as they are then seen as 'damaged goods'. If unmarried they will have great difficulty getting married. Courts don't always do justice for the victim and find rapists not guilty for ridiculous reasons.
Predators know this and take advantage of it. Even if they get caught, if they have enough money or influence, nothing will happen to them. A woman would have to turn the case into a media circus to have a chance at justice and 90% of rape victims in India would not do so out of fear and shame[27].

There is a need for review in certain provisions under various laws related to rape so that victims get justice.

The National Commission for Women has identified nine areas for review[28]. These are:

1. Review of the definition of rape
2. Reduction of procedural delays
3.Uniformity in age of consent under sections 375 and 376 of Indian Penal Code, 1860, to bring it in conformity with the Child Marriage Restraint Act, 1869
4. Whether exception to section 375 should be deleted
5. Whether section 155 clause 4 of the Indian Evidence Act 1872 needs to be amended or deleted.
6. Whether statutory provisions are needed for compensation to the rape victim
7. Whether provisions for counseling legal aid should be made mandatory under laws.
8. Death penalty to persons convicted for rape
9. Recommendation for enhancement of punishment in cases where the accused, with the knowledge of suffering from HIV infection/AIDS, infects the victim as a result of rape.

Conclusion:

          The courts and the legislature have to make many changes if the laws of rape are to be any deterrence. The sentence of punishment, which normally ranges from one to ten years, where on an average most convicts get away with three to four years of rigorous imprisonment with a very small fine; and in some cases, where the accused is resourceful or influential- may even expiate by paying huge amounts of money and get exculpated. The courts have to comprehend the fact that these conscienceless criminals- who sometimes even beat and torture their victims- who even include small children, are not going to be deterred or ennobled by such a small time of imprisonment. Therefore, in the best interest of justice and the society, these criminals should be sentenced to life imprisonment.

Law remains but the number of victims (including minor) continues to increase destroying the very soul of the helpless women. The concept of marital rape does not exist in India. Contrary to the popular belief rape is almost never perpetrated for sexual gratification. It is an ‘acts of violence that happens to be expressed through sexual means’.

The Amendment 1983 has brought about some important changes in the existing laws of rape as a response to the growing public opinion demanding more stringent anti rape laws. It amends Section 376 IPC and enhances the punishment of rape it also provides enhanced punishment of minimum of 10 years of imprisonment for police officers or staff of jail, the remand homes or other places of custody established by law. The Act further inserts a new Section 114-A IEA, by raising a presumption as to absence of consent in cases of custodial rape, rape on pregnant women and gang rape at least partially, removed the infirmity from the evidence of a victim of rape that was hitherto unjustly attached to her testimony without taking note of the fact that in India, unlike the occident a disclosure of the girls identity, rehabilitation in society for all times to come and unless her story was painfully true she would not have taken such a grave risk merely to malign the accused.

Severe and certain punishment in a time bound manner, of the rapists has some deterrent value. Arrest alone may not constitute a strong societal response. Lengthy prison sentences have some behavior-altering deterrent values. Many well-known jurists and public men have advocated capital punishment for the criminals who commit rape as it is an offence worse than murder so far as its impact is concerned. Still there is need for amending the anomaly related to the age of consent, and of wife in accordance with the Marriage Act in India.