The Shortcoming of Rape Laws in India and a Need For Change

The Present article has been written by Gracy Singh, pursuing BA. LL.B.(Hons.)(2nd year) from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

INTRODUCTION

India used to believe in the concepts like “Matri Devo Bhava” (the woman is revered to God), and “Yatra naryastu pujyante ramante tatra, Devata, yatraitaastu na pujyante sarvaastatrafalaah kriyaah” (Divinity blossom where women are honored, where women have dishonored all actions remain unfruitful). This concept seems to disappear in the present time as the number of sexual offenses against women keeps increasing. One such sexual offense which has become the most common crime in India is Rape. It is the most heinous crime as well as a huge disgrace to humankind. Rape means having sexual intercourse without the consent of another person.

According to National Crime Records Bureau’s (NCRB), 88 rape cases per day, and 32,033 in the year were reported in India in the year 2019. The list is topped by Rajasthan (6,000 rape cases), and Uttar Pradesh (3,065 rape cases). These are reported cases there are the majority of crimes against women committed by know people such as family members, friends, and neighbors; whereas in some cases victims are coerced by their families to keep silent. Who should be blamed for this?

LAWS REGARDING RAPE IN INDIA

India Penal Code, 1860 –

In the Indian Penal Code, Section 375 states that rape is said to have been committed when a man has sexual intercourse with a woman without her consent or against the free will or obtains consent by force, fear of death, or by making her believe that the person is married to her, during the unsoundness of her mind, or intoxication.

The Criminal Law (Second Amendment), 1983

In the case, Tukaram v. the State of Maharashtra commonly known as Mathura Rape Case, a girl Mathura aged between 14-16 years, was raped by two police constables. Her family filed a case against two constables. The court said that Mathura did not call out for help and there were no visible marks on her body, so the act was consensual. The court further added that she was habitual to sexual intercourse.

This case triggered endless violence across the nation; it was observed that the verdict given by the court was not sensible, legitimate, and linguistic. Women started protests demanding modification in the law.

In 1983, The Criminal Law (Second Amendment) was brought that amended the Indian Evidence Act, Section 114 (A) was added stating that if the victim says that there was no consent, the court shall presume that there was no consent given. Custodial Rape was made punishable, and the character assassination was prohibited of the rape victim in court by this amendment.

Amendment to Indian Evidence Act, 2002

In 1983, character assassination was prohibited but cross-examination of the rape victim was not defined. An NGO, Sakshi filed a PIL pointing out the humiliation, dishonor of the sexual integrity, and personal space faced by the victims during trials in the court.

Later, the Supreme Court ordered the Law Commission to review rape laws and to recommend the changes. As per Section 155(4) of the Indian Evidence Act, 2002, a defense lawyer could dishonor the testimony by proving the immoral character of the victim. Therefore, this clause was amended in 2002, and the cross-examination of the victim was prohibited.

Protection of Children from Sexual Offence Act (POCSO), 2012

As per the statistical data, Indian reported a 336% increase in child rape cases from 2001 to 2011. NCRB statistics showed that 48,338 child cases were reported during this period. This led to an urgent need for a law for child victims of sexual offenses. It is gender-neutral and includes the abetment of child sexual abuses, sexual harassment, child pornography, and non-penetrative assault. Hence, POCSO (Protection of Children from Sexual Offenses Act) was passed in 2012. This Act made the police in charge to ensure the protection of the child during the investigating process, and provide medical treatment in emergencies. Also, the courts were allowed the conduct the in-camera trial without revealing the true identity of the child. The Act also made it mandatory to report child sexual offense cases.

Criminal Law (Amendment) Act, 2013

In 2012, Mukesh and Anrs. v. NCT Delhi and Ors. a 23-year-old girl was brutally gang-raped in a moving bus, which led to her death. This led to protest in the country, demanding not only amendment in the laws but also the perspective towards rape. It became a women’s rights issue in India. This case also led to reconsider the laws as well as realizing that still there are many crimes against women that are not mentioned in our legal framework such as stalking, voyeurism, acid attacks.

This led to the Criminal Law (Amendment) Act, 2013, that added stalking, voyeurism, and acid attacks into the definition of rape, a threat to rape is also considered as a crime. The punishment for rape was changed from seven years to ten years, in case of vegetative state or death of the victim, the punishment was increased to 20 years. The age was changed from 18 to 16 to the Juvenile Justice Act for being tried for crimes like murder, and murder since one of the accused in this case was minor.

Criminal Law (Amendment) Ordinance

In 2018, an 8 years old girl was gang-raped and murdered by two men and a juvenile in Kathua, a district in Jammu and Kashmir. This case led to outrage among the masses in the nation. An amendment was brought in POCSO, and made rape punishable of a child below 16 years, as well as the minimum punishment, was made 20 years of imprisonment and death penalty in case of death of a child below the age of 12. The fast-track clause was amended from a year to six months.

PROBLEMS IN THE RAPE LAWS

Justice delayed, justice denied

In the case of the Delhi Medical student rape case, the fast-track court was set up, and it wrapped up the proceedings of the case within eight months. The convicts were given the death penalty but it took more than seven years to hang them. In 2019, more than 1.66 lakh cases are pending in Fast Track Courts; there will be no final closure even though all the legal formalities are completed and judgment is passed by FTCs. Fast-track justice could instill fear among the people.

Gender Biased

It is time for society to understand and accept that men can also be the victim of trape. The most affected groups by the gender-biased laws are transgender and non-binary persons who more often face abuse and sexual assault. Lawmaker needs to understand that any person can be a victim and a perpetrator. Law should not be amended to claim that both men and women are affected by rape in the same manner rather an amendment should change the way society sees gendered stereotypes of sexuality.

Botched investigations, few convictions

The police are considered shoddy as they do not know how to collect evidence like samples, photographs, fingerprints, and the crime scene is rarely protected. This results in poor prosecutions, few convictions, and amiable jail terms for offenders who are convicted.

Stricter Laws

In India, rape is a common crime, the majority of cases go unreported. The accused in most of the cases are known or trusted people. As the laws are made stricter and also have the death penalty in some rape cases, victims are murdered so that they cannot tell or lodge a complaint against the perpetrators.

The Legality of Child Marriage

The Supreme Court read exception 2 of section 375 and held that an act of sexual intercourse of a man with his minor wife will amount to rape. A marriage between a minor girl with an adult is voidable at the girl’s choice but it not completely void. Child marriage is granted legitimacy. Therefore, an adult can have sexual intercourse with his minor wife, but unless it is not reported this will not be a crime. In India, the probability is that number of such cases will remain unreported. But declaring child marriage void could stop this crime against minors.

Statutory Rape

It is defined under Section 375 of the Indian Penal Code states that if any man has intercourse with any girl below 18 years, with or without her consent will constitute statutory rape.

There is no difference left between sex between an adult and a minor, or two consenting minors because minors are considered to not have enough knowledge to give consent for sex. In such cases, sometimes the boys involved are unjustly convicted under the statutory rape clause. In a case, the Madras High Court said as obiter dicta that sexual activities between minors above the age of 16 should not be criminalized.

Marital Rape

India is one of 36 countries where marital rape is legalized. However, the UN Committee on Elimination of Discrimination Against Women (CEDAW), as well as the Justice Verma Committee, recommended criminalizing marital rape. Still, there is no law to protect women from marital rape. It violates the right to live with dignity (Article 21), and the right to privacy, only women below or 18 years of age are protected from marital rape but what about the women above 18 years?

Case Study –

Kajal (not her real name), Madhya Pradesh

Kajal, a rape victim who was 23, said that after she filed a complaint of gang rape in the Neemuch district of Madhya Pradesh, she, and her father was detained, threatened, and beaten up by the police. She was slapped, beaten up with a stick, and compelled to sign on several blank papers, and forced to give a false statement in court or her father will be arrested on false charges. Police filed a closure report stating that Kajal and her father had filed a false case against the man accused because of the land dispute between them. However, the closure report was rejected, and the investigation officer was summoned by the chief judicial magistrate.

Due to threatening from the accused Kajal’s parents asked her to move away from their home before her in-laws abandoned her when she filed a report of rape. When she was in urgent need of medical and counseling support but she was not provided with any referral for counseling.

CONCLUSION

Many changes have been brought in rape laws since 1860 and tried to bring the change in the existing condition of women but still, there are changes required such as criminalizing marital rape. Some laws end up having some negative effects. Every time a big rape case is noticed, the nation is shaken by the outrage and public demanding modification. However, many unreported cases also do not get similar public attention. In current rape laws changes and additions are required. It is time to bring some changes and fight this evil proactively.

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