Tag: #sexualviolence

Loopholes in Rape Law in India

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The present article is written by Aayukta Sharma student of BBA LLB from NIMS University Rajasthan, Jaipur.

Introduction

Lord Macauley drafted Indian Penal Code which came into operation in 1862. It is almost a century-old codified law. Timely amendments were also made during the functioning. No commendable amendment has been made to date. There are many loopholes in the existing law that need amendments for the smooth functioning and delivery of justice on time. One such law which is in need of amendment is for “Rape” which terribly lacks provide justice and has massive loopholes. A loophole is an omission or ambiguity in a legal document that allows the intent of the document to be evaded. Loopholes can exist during the outset of the law or due to the changes in society and its trends. The existence of loopholes in generality is due to unforeseeable circumstances or changes in course of conduct. 

Rape as a social issue and crime

Rape is the most heinous crime and barbaric in nature. It has been compared with murder by Justice Arjit Pasayat. He says –

“While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.” 

It clearly defines rape as worse than murder. After the murder, a person dies and the soul is released but after rape, if the rape victim survives, it becomes very difficult to erase that black spot of harassment and sexual assault from her soul.

The unlawful sexual intercourse with the woman forcefully or under threat of injury to her or any other person. In any of the circumstances where sexual intercourse happens where the consent is not free consent can be termed as rape. Consent is the core concept of it. 

Sexual intercourse at the time of sleep, unconsciousness, or intoxication is also rape irrelevant of the fact the intoxication is voluntary or involuntary. Which states that in those conditions where the person is not in the state to communicate the consent is deemed as no consent. 

There are many terms that have undergone change after the amendment of 2013. Before 2013, “sexual intercourse” meant “penetration of male sexual organ into female genitals only”. Later courts interpreted sexual intercourse as “mere slightest or partial penetration of the male organ within the labia majora or the vulva or pudenda is sufficient to constitute sexual intercourse”. 

It is laid down that there is no requirements of injuries on the private parts of the women to constitute a rape

Rape laws are not gender-neutral

Rape defined in the Indian Penal Code,1860 under section 375 says- “A man is said to commit rape”, “……with a woman” is said to commit rape. The definition and description under the law frame men as the criminal and woman as the victim always. It is true in the male dominating society that the men are the sexual offender, they showcase their power they dominate the woman. Women are one of the oppressed groups. It is a general perception that rape is done for the sexual satisfaction of the person.

“Rape” is something that is always projected on the female population. The word “victim” under the rape law has always been associated with women. There is a need for a gender-neutral law in India. The issue of gender neutrality in rape laws was first raised by Delhi HC. However, the court went beyond its mandate to opine on the issue of gender neutrality as well. It observed that the men who have been sexually assaulted or harassed must have the same protection as female victims. 

JS Verma committee who was behind the Criminal Amendment Act,2013 also suggested that the rape law should be gender-neutral but the suggestions were not entertained at all.

The custodial rape case of Mathura

After the Mathura rape case, there was a drastic change in the way people looked at rape, a turn in the perspective of rape’s definition and consent of sexual intercourse when an Adivasi girl from Mathura was brutally raped in Desai Ganj Police Station of Maharashtra by a policeman.

The Session court reached the conclusion, back in 1972 that the girl was habitual of sexual intercourse hence, rape could not be proved. In 1978, the Hon’ble Supreme Court said, there were no marks of injury found on the girl’s body, the absence of them makes it consensual. 

The courts stressed the fact that the depth of the penetration of male organs is immortal. The essential conditions of rape are penetration and not ejaculation. Ejaculation without penetration will constitute an attempt to rape and not rape.

Marital rape

Tracing down the origin of the word “rape”, it is derived from a Latin word “rapio” which means “to seize”. Looking closely, it means forcible seizure of someone irrespective of the relations with that person. The exception of the statute has become a misery for wives. The exception states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. The statute has been contrary to itself, one side it covers all the aspects and ingredients of the brutality of rape. On the other side, it gives the man advantage of becoming the husband who can rape his wife above the age of fifteen anytime. Here, inserting the exception, the law fails to acknowledge the facts that she is a woman before she became a wife. It violates Article 21 of The Indian Constitution, “Right to life”, which contains the “right to live with personal dignity”. Her dignity as a woman is snatched away with the exception of marital rape in the statue.

One of the reasons for marital rape is the traditional role assigned to the married women in our society, she is tagged as “Pati-vrata stri” which means faithful, pure, and obliged women. Thus, she is obliged to follow her husband’s direction fully and fulfill his every wish without questioning and denying it. 

Statute of Paedos

It is also an unjust law on the age factors, as it states the consent of the girl under the age of sixteen is not eligible for the consent of sexual intercourse which was extended to eighteen years after the amendment. This means even if the girl aged eighteen gives consent to sexual intercourse, it will still be considered rape. The law states, “her consent is no consent” and gives a reason that she is incapable of understanding the consequences of the act. 

Conclusion

The law needs to get updated with the changes in society. IPC does not recognize Marital rape as a crime, even in the latest Criminal Amendment Act of 2013 it did not make any provision related to it. Law pre-assumes that in marriage, the wife has consented to all kinds of matrimonial obligations to her husband including sexual intercourse. So, without any specific legal provision in the statute, it is almost impossible to stop this perversion of marital rape. Its high time to make the rape law gender-neutral, which is the need of the society and demand of article 14.

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Caste Based Violence Against Women

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This article is written by Mudit Jain, a law student at Indore Institute of Law. This article gives an overview of the caste-based violence against women and how they are suffering from it and how our prestigious Courts are recognizing them.

Introduction

The tragedy of a 19-year-old Dalit lady being gang-raped in Hathras in 2020 is still vivid in our thoughts. Following the Hathras incident, the Supreme Court issued a fresh decision in Patan Jamal Vali v. State of Andhra Pradesh addressing the intersectionality of caste, gender, and handicap. Activists, academics, and attorneys contended that the sexual violence was committed because of the woman’s gender and caste and that the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PoA Act) should be invoked.

Examples of Courts Setting Aside the PoA Act

Courts have virtually always overturned convictions under the PoA Act in situations of sexual abuse against Dalit and Adivasi women.

  • In Khuman Singh v. State of Madhya Pradesh (2019), a murder case, the court concluded that while the deceased’s membership in the SC group was not challenged, there was no evidence to indicate that the offence was committed solely on that basis; conviction under the PoA Act was overturned.
  • In Asharfi v. State of Uttar Pradesh (2017), the court determined that the facts and documents on record did not establish that the appellant committed rape because the victim was a member of the SC community.
  • In Ramdas and Others v. State of Maharashtra (2006), a case where a Dalit child girl was raped, the Supreme Court overturned the conviction under the PoA Act, holding that the fact that the victim was a lady from an SC group did not entitle her to the PoA Act.
  • In Dinesh Alias Buddha v. State of Rajasthan (2006), the Supreme Court stated, “It is not the prosecution’s argument that the rape was performed on the victim because she was a member of the Scheduled Caste.”

Several precedents that insist on an unreasonable burden of proof. This matter should be sent to a broader bench for a different viewpoint.

SC and ST (Prevention of Atrocities) Act, 1989

The PoA Act was intended to combat atrocities committed against members of the SC and ST groups, and it was updated in 2015 to particularly recognize new crimes committed against Dalit and Adivasi women, such as sexual assault, sexual harassment, and Devadasi devotion.

Section 3(2)(v) states that if any person not being an SC/ST member commits an offence under the IPC punishable with imprisonment of 10 years or more shall be punished with life imprisonment and a fine if he commits an offence against a person because he is a member of the SC/ST community.

In 2015, the term “on the ground that such person is a member of SC/ST” was changed to “knowing that such person is a member of SC/ST.”

The Intersectional Approach Will Address the Discrimination

In a first, the Supreme Court expanded on the necessity for an intersectional approach to account for the victim’s many marginalization. The intersectional discrimination requires an understanding of how several forces of oppression worked together to generate a distinct experience of subordination for the blind Dalit lady. The court also issued directives to teach judges, police officers, and prosecutors to be more sensitive in such instances, emphasizing the need of making the criminal justice system more receptive to women with disabilities who have been sexually assaulted.

Burden of Proof a Reason to Expose Vulnerable Women to Sexual Violence

In all of the above-mentioned decisions, the court determined that there was insufficient evidence to prove that the accused committed sexual assault because the victim was a member of the SC/ST group. The only proof that may be shown is that the victim belonged to an SC/ST group and that the accused was aware of this. When a woman is handicapped and from a marginalized caste, she experiences prejudice because of her gender, caste/tribe, and handicap, all of which makes her vulnerable to sexual abuse.

Recognition to Intersectional Discrimination by the Court

The victim of sexual assault in Patan Jamal Vali v. State of Andhra Pradesh was a blind 22-year-old Dalit woman. The accused was convicted of rape under Section 376 of the Indian Penal Code (IPC) and Section 3(2)(v) of the PoA Act by the trial court and the High Court, and sentenced to life imprisonment.

In this decision, the Supreme Court upheld the conviction and penalty for rape under the IPC but overturned the conviction under the PoA Act.

On the one hand, this decision is a tremendous step forward since the court took advantage of the chance to recognize intersectional discrimination against women based on their gender, caste, and handicap.

However, by overturning the conviction under the PoA Act, it follows in the footsteps of many other earlier Supreme Court decisions.

Suggestions to Reduce the Issue

  • Enhanced police accountability and efficient victim and witness protection.
  • Addressing impunity for sexual assault perpetrators, particularly those from powerful castes.
  • Taking attempts to minimize community engagement in situations of sexual abuse, such as prohibiting the use of khap panchayats.
  • Combating intersectional types of prejudice experienced by Dalit women and girls while interacting with law enforcement agencies
  • Improved funding and usage of current money for initiatives preventing and responding to sexual assault.

Conclusion

According to the latest Parliamentary Standing Committee Report on Atrocities and Crimes Against Women and Children, a “high acquittal rate stimulates and enhances the confidence of dominant and strong societies in continuing perpetration.” This decision was a wasted chance for the court to utilize intersectionality to sustain the conviction under the PoA Act or, if necessary, refer the case to a bigger bench.

We must stop hiding behind smokescreens of evidence’s hyper-technicality and recognize caste-based violence against women when it is there in front of us. Otherwise, our anti-caste legislation would be made ineffective. If intersectionality theory had been relevant in this case, it should have inspired an interpretation of the PoA Act that reflects the lived realities of women who have experienced sexual abuse.

The government should focus on strategy implementation. A comprehensive investigation and a time trial are essential for victims from the SC/ST category. This will help to increase confidence among the society’s less fortunate members.

REFERENCES:

  • https://www.thehindu.com/opinion/op-ed/recognising-caste-based-violence-against-women/article34692073.ece
  • https://www.theweek.in/leisure/society/2020/10/09/why-there-is-rampant-caste-based-violence-against-women-in-up.html
  • https://www.insightsonindia.com/2021/06/02/insights-into-editorial-recognising-caste-based-violence-against-women/
  • http://www.dalits.nl/pdf/HRC-11_briefing_note_-_Violence_against_Dalit_Women.pdf
  • https://www.bbc.com/news/world-asia-india-54418513

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