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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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Speedy Trial In Rape Cases: Its Importance and Prevalent Loopholes

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The present article has been written by Prateek Chandgothia, pursuing BA. LL.B. (1st year) from the Rajiv Gandhi National University of Law, Punjab.

India witnessed one of the gravest rape cases in December 2012 which shook the national capital and subsequently the whole of India. Wide-spread protests broke out through the country demanding the justice of the rape victim, who was designated with the title of Nirbhaya for the level of mental toughness and endurance portrayed by her. Various legislations were passed in the aftermath of the incident as the four accused were awarded the death penalty and were hanged to death on 20th March 2020. The 8-year long wait for justice paints a disturbing picture of the Indian criminal justice system and indicates the necessity of speedy trials in rape cases.

Legislative Analysis of Rape Laws

The Indian Penal Code criminalizes rape as a sexual offense under Section 375-377. Rape is defined under Section 375 of the IPC as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age.” The Criminal Law (Second Amendment) Act was enacted in 1983 which marked a paradigm shift like the rape laws in India by strengthening the position of women in such cases. Section 114A was introduced in the Indian Evidence Act of 1872 which stated that it must be presumed that there is the absence of consent in certain prosecutions of rape if the victim says so. Furthermore, Section 228A was introduced in the IPC which makes it punishable to disclose the identity of the victim of certain offenses including rape. 

In the aftermath of the Nirbhaya Rape Case, The Criminal Law (Amendment) Act 2013 was enacted. It expanded the scope of rape by including offenses like the use of criminal force on a woman with intent to disrobe, voyeurism, stalking, use of unwelcome physical contact, words or gestures, demands, or requests for sexual favors, showing pornography against the will of a woman, or making sexual remarks. Along with the extension of the scope of rape, the punishments were also increased significantly through this amendment. The act increased jail terms in most sexual assault cases and also provided for the death penalty in rape cases that cause the death of the victim or leaves her in a vegetative state. The punishment of gang rape was increased to 20 years to life imprisonment from 10 years to life imprisonment. The punishment of stalking was set at imprisonment for 3 years and punishment for the acid attack was set at 10 years of imprisonment. The amendments were not confined to the Indian Penal Code as the 172nd Law Commission report led to amendments in the Indian Evidence (Amendment) Act of 2002 which further strengthened the position of women in rape cases. The new provision barred putting questions in the cross-examination of the victim as to her general ‘immoral character’ in rape or attempt to rape cases. However, the effect of these legislations has been negligible in terms of statistics as according to the National Crime Record Bureau, a woman is raped every 16 minutes and 88 rape cases are recorded daily. In 2019 alone, 32,033 rape cases were recorded. Therefore, these legislations have not deterred the occurrence of rape cases in India.

Fast Track Courts: A Reality Check

Fast Courts have been a part of the Indian legal system since 2000 which gained significance after the Nirbhaya Rape Case in 2012. The main objective of these courts was to deal with the crime against women, child trafficking under POCSO Act, crime against senior citizens, crime against the disabled, and other heinous crimes. As quoted by the 11th Finance Commission of 2000, the fast-track courts are recommended: “to substantially bring down, if not eliminate, pendency in the district and subordinate courts over the next five years”.

However, various statistics indicate an entirely contrasting situation. According to the NCRB data, trials in fast-track courts take longer than trials in regular courts. It is reported that out of more than 28,000 trials completed in India’s fast-track courts in 2018, only 22% took less than a year to complete. This is the lowest percentage among all kinds of courts including SC/ ST courts, Additional Session Judge Courts, District/ Session Judge Courts, POCSO Court, Sub-Judge Courts, Special Courts, and Special Judicial Magistrates. Furthermore, around 42% of the total trials took more than 3 years to complete, while 17% took more than five years to complete. These statistics indicate that the fast-track courts have failed in achieving the very objective for which they were established.

It is essential to note that the mere establishment of fast-track courts is not sufficient in countering the inadvertent delays in the trial of the rape cases. Various inefficiencies have infested the working and establishment of the fast-track courts. Fast-track courts have been established under the centrally sponsored scheme of allocation of funds which is overseen by the Department of Justice. The scheme was established in 1993 stating that 60% of the funds must come from the center and 40% of the funds must come from the states. In 2020-21, Rs. 767 crores were approved for the construction of 1,023 fast-track courts under The POCSO act, 2012 based on the centrally sponsored scheme. The particular scheme leads to disparity in fund distribution among states which was evident when the Maharashtra Government sanctioned the construction of 138 courts with the expected cost of Rs. 100 crores. This extracts Rs. 60 crores as the share from the center leaving only on an average, a sum of Rs. 26 crores for the other states. 

Various veterans in the field of criminal law have pointed out various flaws in the mechanism of fast-track courts indicating that they are similar to the regular courts, if not worse. It is stated that the nomenclature of ‘fast-track’ courts exists just in the name and not in the functioning of the courts as the judges and the procedure are identical in nature. Various procedural inefficiencies have been pointed out like the witnesses not coming on time, lawyers not turning up and while the judges don’t have the power to discipline them, the bar councils don’t take any action against them. Recording of evidence is a major stage in a trial that concerns grave violations and plays a significant role in the delay in the delivery of judgment. The longer duration of trials in special fast-tracked courts has been justified by the serious and complicated nature of the cases they deal with as they require recording of more evidence than regular cases.

Effective legal assistance is an important factor missing from the remedies provided to sexual assault victims. The Ministry of Health and Family Welfare issued guidelines for medico-legal care for survivors of sexual violence intending to standardize healthcare professionals’ examination and treatment of sexual assault survivors. The guidelines provide scientific medical information and processes that aid in correcting pervasive myths. However, under the federal structure of India, health is a state subject and therefore, the states are not bound to follow the said guidelines. The Hon’ble Supreme Court in a 1994 case ruled that police should provide sexual assault victims legal assistance and keep a list of legal aid options which do often not conform to. 

Moreover, victimization of the aggrieved is still prevalent at great lengths in the Indian Legal system and the social fabric of the country. The delay in judgment delivery often leads to the promotion of speculations which encourage issues like victim-blaming, dilution of passion towards a goal, increased mental agony for the victim and their family. Therefore, it is the need of the hour to recognize these flaws and implement corrective measures to ensure speedy trials in rape cases.

Conclusion 

Despite the progressive development in legislations and specialized fast-track courts, the main objective, which is a speedy trial, remains unachieved to this day. Various state and center initiatives have fallen through mainly because of the lack of monitoring mechanisms and frameworks. In view of this article, in order to ensure the implementation of speedy trials in rape cases can be a reality only if an efficient mechanism that involves suitable procedural laws and specialized judges, is implemented.  

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