Rape Laws in India

Rape, very loosely, means an act of forcible sexual intercourse with a female by a man without her consent. Section 375 of the Indian Penal Code 1860 defines rape. The present definition of rape is the resultant of public outcry after the infamous Mathura Rape Case. The section presently reads as under :

¹[375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—

First.— Against her will.

Secondly.—Without her consent.

Thirdly.— 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.

Fourthly.—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.

Fifthly.— 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.

Sixthly.— 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.]

TUKA RAM & ANOTHER VS STATE OF MAHRASHTRA (15 September 1978) famously called as the Mathura Rape case, this judgment delivered by the three judge bench in 1978 caused huge uproar and forced the legislature to enact an amendment in the Criminal Procedure Code. Before proceeding further, it is necessary to look at the factual matrix of the case, which sends a chill down my spine, every time I read it.

Mathura, a Tribal Girl, lived with her brother Gama, since her parents dies young. Both of them worked as labourers to earn living, and used to go to Nunshi’s house for work. During her visit to Nunshi’s house, she met one Ashok, who was related to Nunshi. After some time Ashok and Mathura decided to marry. In March, 1972, Gama lodged a report at the police station stating that his sister was kidnapped by Nunshi, her husband- Laxman and Ashok. After the complaint, at about 9 PM, the Head Constable Baburao, called Mathura as well as Ashok and Laxman to the police station. After recording the statements of Ashok and Laxman, the Head Constable directed Gama to bring a copy of proof of Mathura’s birth. The persons accused- (there were two of them- Tukaram and Ganpat ) at about 10.30PM told Mathura to stay back in the police station and directed the others to move out and stand. Immediately, Ganpat took Mathura to the backside of the building, despite her protests and stiff resistance. After satisfying his thirst he moved out and Tukaram came near her and fondled with her private parts. He wanted to rape her but since he was in a highly intoxicated state, he was unable to do so.

Seeing no sign of Mathura anywhere, the three waiting outside grew suspicious. On prodding further they found the lights of the police station being turned off and its entrance door being closed from within. They went to the backside of the police station started shouting but there was no response. The noise attracted a crowd and some time later Tukaram came out and stated that the girl had already left. He left thereafter. Shortly afterwards Mathura emerged from the police station and informed everyone that Ganpat had compelled her to undress herself and had raped her.

Nunshi took Mathura to a doctor and told him that the girl was subjected to rape by a police constable and a Head Constable in police station. The doctor asked them to lodge a report.

In the meantime, a few persons brought the Head Constable from his house. The crowd had started to gather and was threatening to burn down the police station. To control the situation the Head Constable took Mathura’s statement and an First Information Report was lodged. During the course of the proceedings a doctor examined Mathura and he stated that there was no injury on her. Her hymen revealed old ruptures and the vagina admitted two fingers easily, her age was found to be not more than 14-16 yrs. No traces of semen and vaginal smear sliders were found. (All this will be used later on to acquit both the accused).

COURTS OBSERVATION

The Sessions Court gave very disparaging remarks against the girl, in the judgment and acquitted both the accused. He called Mathura a “shocking liar” and stated that her statements “is riddled with falsehood and improbabilities”. The District Judge even went on to say that the even though she had sexual intercourse, she was not subjected to rape. The Judge even went on to say she would have voluntarily surrendered her body the constable.

The case went in appeal to the High Court, and the High Court, reversed the order of acquittal. The High Court in a very reasoned judgment held that the sexual intercourse was indeed rape and was forcible. This conclusion was derived at by the fact that there was traces of semen found on the clothes of the girl as well as Ganpat. The Court also opined that the fact that the fact that semen was not found on the pubic hair nor on the vaginal-smears since she was examined about 20 hours after the event. The High Court also opined that it was improbable that Mathura would readily agree for sexual intercourse considering that both the accused were strangers. The High Court was also of the view that mere passive submission or resignation of girl’s body does not mean that the girl has willingly consented to it.

In appeal before the Supreme Court, the Court reversed the findings of the High Court and acquitted the accused. The Court observed that she was subjected to no fear of death or hurt, which may have led her to submit to the act and that there was no marks of injury on her person. They were of the view that these circumstances show that the whole affair was peaceful and that the story of stiff resistance having been put up by the girl was totally false.

Brushing aside the finding of the High Court on passive submission, the Supreme Court stated that the girl willingly followed the accused persons, whereas she could have chosen not to do so, since she was also accompanied by the two other persons.

The Court also disagreed with the observations of the High Court regarding the conduct of Tukaram and opined that the circumstance as relied by the HC was ‘capable of more explanations than one’ . In this way, the conviction recorded against as well as, the sentences imposed upon the appellants by the High Court were set aside.

The judgment created a huge uproar by women organisations, jurists etc.

The main point of uproar has been the fact that this was custodial rape. The court conveniently ignored the fact that a woman may be subjected to custodial rape due to the fear of being beaten up or for the fear of the safety of her family members. Another point of uproar has been the fact as per the medical evidence, there was no penetration, and thus the court concluded that she was not raped. The SC in Mathura’s case did not convict the accused persons because there was no actual penetration and no visible injury on the body of the girl.

However, with time Supreme Court has now consistently held that in absence of any definitive medical proof that an actual sexual intercourse has actually taken place, the conviction can be based on other facts and circumstances along with the version of the victim (called as procecutrix in legal term).

The Criminal Law (Amendment) Act 1983

Acting on huge public criticism of the judiciary in the inadequacy of the law of rape patent in a number of judgments of the Apex Court and its failure to safeguard the rights of the innocent victims against this crime, the Parliament, in 1983 and 2003, extensively amended the law of rape, to make it more realistic.

Some of the important changes brought about by the Criminal Law (Amendment) Act 43 of 1983 are: ²

• A new clause fifthly has been inserted in place of the then existing clause fifthly, which has been renumbered as clause sixthly to Section 375 IPC. This clause negatives the consent of the women for the purpose of the offence of rape if the woman is of unsound mind, or is under the influence of intoxication at the relevant time. Such consent will not be considered as valid defense and the accused will be held liable for the offence.
• A new category of offence i.e. Custodial Rape was introduced by inserting Section 376B to 376 D IPC.
• Section 376A IPC makes sexual intercourse with one’s own wife without her consent under a decree of separation punishable.
• The punishment for rape provided in Section 376 IPC is minimum seven years imprisonment under clause 1 and ten years under clause 2.
• Section 228A IPC prohibits the disclosure of the identity of victims in rape cases under sections 376, 376A to 376D, IPC.
• The Evidence Act, 1872 was amended by inserting Sec.114A drawing a conclusive presumption as to the absence of consent of the woman in case of prosecution of rape under Sec 376 (2) clauses (a) to (g), IPC shifting the burden of proof of innocence on the accused.
• Section 327 CrPC which confers the right of an open court trial has been amended making the provisions for trial of rape cases or an offence under Section 376A to 376D, IPC in camera and prohibition of publication of trial proceedings in such cases without the prior approval of the court.

The changes in rape laws in 1983 improved the situation to a great extent. Among other things, the punishment for rape was made more severe. Before, the punishment prescribed under Section 376 of the IPC provided for a maximum sentence of life imprisonment but there was no minimum limit. Thus, in theory a rapist could get away with a sentence of say, just one month.

An important provision – Section 376(2) – was added to the IPC. This section introduced the concept of some special kinds of rape and prescribed a minimum of ten years for these cases.

In an unrelated case Justice Markendey Katju, had famously stated in a case “We are after all humans”. We must not be so critical of the judiciary. There have been plethora of cases where we have seen a lot of positive changes.

The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar (1991) 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.”

“While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female” Justice Arijit Pasayat of the Supreme Court made this very apt observation in the case of Tulshidas Kanolkar Vs The State of Goa in 2008. Here was a case, where the victim, a mentally challenged girl was raped by the accused. Such were the mental faculties of the girl that she was not even aware of the consequences. It was only when her parents observed her swollen stomach, was the girl examined and it was found out that she was pregnant. She was however able to identify the perpetrator of the heinous crime. Money was offered by the accused to the girl’s family to get the pregnancy terminated. The amount offered was not sufficient for her family to get the pregnancy terminated and subsequently she gave birth to a still-born child. It was then that a complaint was filed by the parents of the girl. In appeal before the Supreme Court of India, the accused prayed for acquittal on various grounds which were all dismissed by the Hon’ble Judges, and ultimately the appeal was dismissed, and the accused was sent back to the jail. The important point raised by the Judges is as follows –

“a few words are necessary to be said about prescription of sentence in a case where a mentally challenged or deficient woman is the victim. In sub-section (2) of Section 376, clause (f) relates to physical age of a woman under 12 years of age. In such a case sentence higher than that prescribed for one under sub-section (1) is provided for. But what happens in a case when the mental age of victim is not even 12 years of age? Such a woman is definitely at more vulnerable situation. A rapist in such a case in addition to physical ravishment exploits her mental non-development and helplessness. The legislature would do well in prescribing higher minimum sentence in a case of this nature. The gravity of offence in such case is more serious than the enumerated categories indicated in sub-section (2) of Section 376”.

Barriers to Justice:

The problem with the present rape laws is manifold. These issues have to be addressed as soon as possible, considering the fact that such offences are on a rise. It does not address forced penetration of objects and parts of the body into the vagina and anus; and forced oral or anal intercourse.

Firstly the rape laws do not recognize marital rape etc. This causes grave injustice to many victims. In many cases of child rape, the child has been penetrated through fingers or by objects or been force to perform oral or anal sex; yet the Courts do not consider this rape. In R Vs. R, the House of Lords in England in the year 1991, widened the scope of criminal liability by declaring that the husband could be charged as a principal offender in the rape of his wife. However, the above decision of the House of Lords has not been followed in India- where marital exemption to the husband still exists.

One of the major obstacles in delivering justice in rape cases or for that matter almost all criminal cases is the poor quality of investigations. The victims are not taken for prompt medical examination.

The long time that is taken to complete a rape trial is another impediment.

As observed by Krishna Iyer, J. in Rafique’s case ³

“When a woman is ravished, what is inflicted is not mere physical injury but the deep sense of some deathless shame… judicial response to Human Rights cannot be blunted by legal bigotry.”

The Supreme Court has laid down the following guidelines for the trial of rape cases ⁴

1.The complaints of sexual assault cases should be provided with legal representation. Such a person should be well acquainted. The Advocates role should not merely be of explaining to the victim the nature of the proceedings, to prepare for the case and assist her, but to provide her with guidance as to how she might obtain help of a different nature from other agencies- for e.g. psychiatric consultation or medical assistance.

2. Legal assistance should be provided at the police Station, since the victim may be in a distressed state. Guidance and support of a lawyer at this stage would be of great help.

3. The police should be under a duty to inform the  victim of her right to a counsel before being interrogated.

4. A list of lawyers willing to act in these cases should be kept at the police station.

5. Advocates shall be appointed by the Court on an  application by the police at the earliest, but in order that the victim is not questioned without one, the Advocate shall be authorized to act at the Police Station before leave of the Court is sought or obtained.

6. In all rape trials, anonymity of the victim must be maintained

7. It is necessary to setup Criminal Injuries Compensation Board with regard to the Directive Principles contained under Article. 38(1) of the Constitution of India. As some victims also incur Substantial losses.

8. Compensation for the victims shall be awarded by the Court on the conviction of the offender and by the Criminal Injuries Compensation Board- whether or not a conviction has taken place. The Board will take into account pain, suffering, shock as well as loss of earnings due to pregnancy and child birth if this accrued as a result of rape.

The National Commission for Women be asked to frame schemes for compensation and rehabilitation to ensure justice to the victims of such crimes.

As observed by Justice Saghir Ahmad,  “Unfortunately a woman in our country belongs to a class or group of society who are in an 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.”