S.S.

JAIN SUBODH LAW COLLEGE

OFFENCE OF RAPE AND INDIAN PENAL CODE

SUBMITTED TO SUBMITTED BY
MR. ZEESHAN HASHMI AMLENDU SHARMA

ASSISTANT PROFESSOR OF LAW 7TH SEMESTER (SEC – A)

 DECLARATION

I, Amlendu Sharma, do hereby declare that, this research project titled ‘Offence of Rape and Indian Penal
Code’ is an outcome of the research conducted by me under the guidance of Mr. Zeeshan Hashmi
(Assistant Professor of Law) at S.S. Jain Subodh Law College in fulfilment for the award of the degree of
B.A.LL.B. at the University of Rajasthan.

I also declare that, this work has taken assistance from other sources and necessary acknowledgements for
the same have been made at appropriate places.

I further declare that, this work has not been submitted either in whole or in part, for any degree or
equivalent in any other institution.

01-04-21

Amlendu Sharma

S.S. Jain Subodh Law College

 CERTIFICATE

This is to certify that the research project titled ‘Offence of Rape and Indian Penal Code’ submitted by
Amlendu Sharma in fulfilment for the award of the degree of B.A.LL.B from Rajasthan University at
S.S. Jain Subodh Law College is the product of research carried out under my guidance and supervision.

Mr. Zeeshan Hashmi

Assistant Professor of Law

S.S. Jain Subodh Law College

 ACKNOWLEDGEMENT

I acknowledge with profundity, my obligation to Almighty God and my parents for giving me the grace to
accomplish my work, without which this project would not have been possible.

I express my heartfelt gratitude to my respected faculty Mr. Zeeshan Hashmi (Assistant Professor of Law)
for providing me with valuable suggestions to complete this research project.

I am especially grateful to all my faculty members at S.S. Jain Subodh Law College who have helped me
imbibe the basic research and writing skills.

Lastly, I take upon myself, the drawbacks and limitations of this study, if any.

01-04-2021

Amlendu Sharma

S.S. Jain Subodh Law College

 Table of Contents

INTRODUCTION.................................................................................................................................3

An Overview.................................................................................................................................3

General Meaning and Kinds of Rape..........................................................................................5

Offence of Rape and Indian Penal Code.....................................................................................5

SEXUAL OFFENCES LAW IN INDIA: REVIEWING A COLONIAL INHERITANCE....................................7

THE INDIAN PENAL CODE: 1860....................................................................................................11

1983: THE CRIMINAL LAW SECOND AMENDMENT........................................................................13

Barriers to justice......................................................................................................................15

2013: CRIMINAL LAW AMENDMENT ACT......................................................................................16

Analysis of laws before the criminal law amendment, 2013.....................................................16

Explanation of the term ‘Sexual Intercourse’ and ‘Penetration’..............................................18

Rape Laws after the Amendment of 2013..................................................................................19

Critical Comparison of two legislation.....................................................................................20

CRIMINAL LAW AMENDMENT ACT 2018.......................................................................................22

Amendments to IPC: Issues & concerns....................................................................................22

Enhanced punishment & blurring classification of rape...........................................................22

CHALLENGES OF RATIFYING NATIONAL LAWS WITH THE GLOBAL VAW AGENDA.......................24

CONCLUSION..................................................................................................................................26
 Introduction

An Overview

Rape is the most heinous offence against women. It is an insult to the civility. It is symptomatic
of sexually starved society that has injuriously threatened and still threatening the women’s very
right to liberty and personality. Women are being rapped at work, on the streets, in the field, in
the scheduled places, in their homes by men. They are raped by people who are their relatives or
neighbors or even by strangers. From lower level to the upper strata women are being raped by
men even in this 21st century. Doctors rape their patients and nurses. The employers molest
domestic maidservants; factory workers are forced to have sexual relations with their in-
charge/Head. Castes Hindus rape Harijans and Adivasi girls.

Gang rapes by dacoits, rape during communal riots is quite common. Another horrifying
incidence of rape, which the present day Indian society is witnessing, is the rape of minor girls.
Again the rape by custodian of law, namely the police are very common. Hardly a day passes a
day without report in the newspaper or a magazine of a rape, assault or molestation having taken
place both in the rural and urban areas. Every 29 minutes a rape occurs somewhere in India. The
present chapter therefore thoroughly focuses on the offence of rape, its kinds, and an attempt to
commit the offence and tries to critically study the law relating to rape, its kinds, and the nature
of the assault.

It is more saddening that the incidences of rape and its related offences have been found to be
increasing at higher rate than any other types of crimes. An attempt therefore has been made in
the present study to find out the law, lacunae and loop holes therein. Rape cases have reported
mixed trends over last 5 years with a decrease of 2.5 per cent in 2001 over 2000, an increase of
1.8 per cent in 2002 over 2001, a decrease of 3.2 per cent in the year 2003 over 2002 and
substantial increase of 15.0 per cent in the year 2004.

During the year 2004 a total of 18233 rape cases have been reported. 5 However, these figures
are only indicative of the tip of the iceberg as a majority of cases remain unreported for a host of
reasons like lack of trust between the law enforcement agencies and the public and attitude
towards rapists and the victim. This becomes evident from the data collected by the Ministry of
Home affairs which shows that only 10% cases are reported to the police stations and only 1%
ends in conviction. The project therefore focuses on the entire area of investigation, trial and
victim's evidence.

Source- National Crime Bureau

The attitude of the people towards the victim is really frustrating as it results in high social costs
for the victim. The attitude of the society is more frustrating as because there are only few people
who will oppose in public and take pain to remove this evil and accept the victim into their
private as well as family life. The project would therefore focus on the present laws and flaws in
our rape law as well as social immaturity, judicial antipathy at the lower level, and the
legislative lag, with which women are confronted and subjected to· in our society. Even the
Penal Code views rape as an offence which only affects human body ignoring the fact that rape
is also a .psychological assault. The present chapter makes an effort to find out the nature of
assault, and consequent violation of the rights of the victim of rape; the rights to which they are
and should be entitled. It is universally accepted that an unmerited acquittal not only erodes the
faith of the victim but also destroys the confidence of the society. People lose faith in the
criminal justice system. A · unique feature of the present domain of study is the sentencing in
cases of rape at three levels. of the judiciary which reflects that the verdict -moves like a
pendulum.

General Meaning and Kinds of Rape

The word 'rape' is derived_ from the Latin term 'rapio' which means 'forcible seizure. 'Sexual
intercourse with a woman by a man without her consent and chiefly by force or deception is
generally known as rape. It may also be described as forcible carnal knowledge of a woman
without her consent. Rape is many things. It is an instrument of torture. Rape is the means of
proving masculinity. To some feminist rape is a mental perversion, a psychological assault, a
symbol of masculine power or dominance, the ultimate violation of women's self. It is also
considered as the invasion upon a woman's physical or bodily privacy and outrageous to the
dignity of a woman. Some contemporary feminist critiques of law perceive rape as an extension
of the patriarchal control over female. Generally rape may be classified in to the following;

a. Statutory Rape or, child Rape: Sexual intercourse with a female who is below the statutory age
of consent. This is also known as child rape.

b. Stranger Rape: Where the assailant was unknown to the victim.

c. Acquaintance Rape: The victim knows her attacker, although he is not a close friend or family
member. In other words it is a rape where the victim and the assailant knew each other casually.

d. Intimate Rape: Where the persons concerned were in a relationship or even rnarried.

e. Date Rape: The victim is dating the person who rapes her.

f. Multiple Rape or Gang rape: The victim is raped by more than one man.

g. Marital Rape: The victim J raped by her husband.

h. Custodial Rape: Where a person commits sexual intercourse with a woman who is under his
custody.

i. Incest Rape: When a person commits sexual intercourse with a woman falling within the
prohibited degrees of consanguinity or afftnity.

Offence of Rape and Indian Penal Code

The offence what is known as 'rape' finds a place in Chapter XVI of the Indian Penal Code, 1860
which deals with 'offences affecting the human body.' The researcher has a strong objection with
this kind of placement of the offence of rape under the said category for many reasons. One of
the reasons is that rape is not an offence which only affects human body as perceived by
Macaulay but really affects the mind of the victim to such an extent that it can be said that rape is
a psychological assault. Rape signifies the 'ravishment of a woman without her consent, by force,
fear or fraud' or 'the knowledge of a woman by force against her will.'2 G-rhe Indian Penal Code,
1860 in section 375 defines the offence and in ·Sections 376 and 376A to 376D provides
punishment for rape. The Code defines rape in the following words;

"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.

"Thus the section requires two things;

a) Sexual intercourse by a man with a woman.

b) The sexual intercourse must be under the circumstances falling under any of the six clauses.

Sexual intercourse is heterosexual intercourse involving penetration of the vagina by the penis. If
the hymen is ruptured by inserting a finger, it would not amount to rape. The meaning of sexual
intercourse is confined in narrow terms to include penile/vaginal penetration only and cannot be
enlarged to include penile/anal, penile/oral, finger/ vaginal, finger/anal or object/vaginal
penetration. Penetration is sufficient to constitute the sexual intercourse necessary to the offence
of rape.

To constitute the offence of rape it is not necessary that there, should be complete penetration of
penis with emission of semen and rupture of hymen. Partial penetration of the penis within the
labia majora or the vulva or pudenda with or without emission of semen or an attempt at
penetration is quite sufficient for the purpose of law. In other words to constitute the offence of
rape, penetration, however slight, is sufficient. Again Sexual intercourse by a man with his wife,
the wife not being under fifteen years of age, is not rape. Intercourse by a man with his wife who
is living separately from him under a decree of separation or under any custom or usage without
her consent would be an offence of rape.

Sexual offences law in India: Reviewing a colonial inheritance

It is believed that till the early nineteenth century the British knew little about India. Yet it was
the British who controlled her destiny. Studies reveal that as the British knew little about India,
they tended to make laws for the country based on their experiences and the ideas that prevailed
in England at that time.

Hence, the British legislated for Indians, the majority of whom were not middle class, on the
basis of an experience as removed from them by distance as by class. In the majority of cases-
where laws were made to deal with such crimes as robbery, murder and treason- the gap between
the ethos in which the Indians lived and that which the British brought with them would not
matter. But offences against the person, particularly where they involved concepts of family
honour, were defined by reference to social attitudes which varied widely.

The problem which law-makers faced in the case of India was that they were in a dilemma to
acknowledge the separate, often conflicting mores of distinct societies, communities and to
reconcile them in order to provide ·one, just, equitable law for all. Inevitably it had to be
assumed that certain attitudes, ideas, morals are held in common by the diverse people under
them, and then undertake to legislate for them, as one people, in those spheres.

Also, they have to bow to the cultural differences amongst them and leave certain areas to their
personal- customary and religious- laws. This means that criminal offences and offences against
the state or government are regarded as the proper sphere of state interference; family matters-
marriage, inheritance, adoption- are governed by law of domestic relations. In the former areas,
where attitudes towards murder, house-breaking and treason are shared by different groups in

Source: National Women Survey

society, it is not difficult to enact laws and enforce them. The Charter of 1833 empowered the
government to make laws for British India, created the Law Commission for that purpose, with
due respect to native customs and usages. The main problem was that legal categories tend to
overlap, and in some matters both the government and the society claim the right to control
conduct.It is claimed that where the government decides to legislate upon matters which are
regarded by its subjects as being governed by religious and social sanctions, it is important for
the law makers to be acquainted with social practices and attitudes.
Without such acquaintance the law-makers will not be able to frame laws which will effectively
impress the will of the State upon the people (Dhagamwar: 1992). It is highlighted that in
offences against the human body the Code steps into a 'twilight area', where the dividing line
between the subject matter of family and general laws become blurred. Here, claims Dhagamwar
(1992), the ignorance of Indian society has led to framing of provisions which are extremely
faulty and iniquitous.

While inheriting the English legal system might have been good in some respects, one legacy has
been very damaging: the way that 19th-century British law thought about the crime of rape.
As persuasively argued by Elizabeth Kolsky history professor at Villanova University in the
U.S., the continuing difficulty with securing convictions in rape cases in India is a direct product
of this colonial history.

In 2011, only 26% of rape trials ended in conviction. In Delhi for instance, where this crime took
place, there's only been one conviction out of 635 cases of rape reported in 2011. If the
conviction rate is low now, the situation wasn't any better in the colonial period. We can't make a
direct comparison with pre-independence times because we don't have detailed records of what
happened at the level of trial courts then. But we can draw inferences from what happened in the
High Courts, which were -- and remain -- courts of appeal for lower-court decisions. According
to data analyzed by Ms. Kolsky, between 1904 and 1947, there were 75 rape convictions sent up
to the High Court for review. The High Courts confirmed only 37% of convictions from the
lower courts. In the remaining cases, they either acquitted or reduced the sentences of the
defendants.

The reasons for the difficulty in securing and upholding rape convictions in India at that time, as
now, can be traced to the colonial legal system, as Ms. Kolsky argues. Principally, it is the
extremely strict evidentiary requirements under the law that are needed to establish that a rape
occurred, much higher than in other crimes of violence. To put it bluntly, the victim is as much
on trial as her alleged attacker.

Without going into the technical legal details, the Indian law on rape and the legal precedents
that developed around it tended to presume that the victim had engaged in consensual sex unless
there was enough evidence to corroborate her claim that the sexual intercourse was non-
consensual and she had been raped.
This presumption of consent was embodied in Section 155 (4) of the Indian Evidence Act, which
allowed defendants to offer evidence about a victim's character and sexual history. That gives
defense lawyers an avenue to discredit them by suggesting that either they were maliciously and
falsely making an accusation of rape or that the sex had been consensual. Incredibly, this section
of Indian law remained on the statute books until 2002. Even though it has been altered, practices
and attitudes haven't changed that much. The continuing use of the notorious “two finger test” to
determine if the victim has had a history of sexual intercourse is sufficient testament to this fact.

Before now, independent India's most significant rape trial was the so-called "Mathura" case. On
March 26, 1972, Mathura, a 16-year-old tribal girl, was allegedly gang-raped by a police
constable and his deputy while she was in their custody in a police station in the state of
Maharashtra. When the case came to trial two years later, the judge described the victim as a
"loose woman" who obviously had consented to sexual intercourse and subsequently lied about
it, and used that extraordinary reasoning as the basis for acquitting the defendants. The Supreme
Court of India upheld the acquittal, arguing that the victim's failure to raise the alarm during the
alleged rape, plus the fact that her body didn't show signs of injury, amounted to evidence of
consent.

The uproar resulting from this judgment prompted activists to petition the government to change
the law. A minor change in the law did take place in 1983, but that focused on what is called
"custodial rape" (rape when one is in the custody of the authorities) in where it would no longer
be necessary to prove lack of consent. Overall, however, India's law on rape and how cases of
rape are handled by the police and the judicial system still reflect the colonial mentality that
prevailed when Lord Macaulay first set up the IPC.

As recently as last year, an alleged rapist was acquitted because the judge inferred from the fact
that the victim apparently didn't resist her attacker with sufficient vigor showed that the sex was
consensual. By the standards of the mid-19th century, the IPC may have been progressive even if
the British legal tradition it was based on was grounded in a medieval, patriarchal understanding
of the place of women in society.

It's a cruel irony that while Britain, along with most western countries, have modernized their
antiquated laws on rape, Indians are still shackled by it well into the 21st century. It's incredible,
for instance, that Indian law still excuses "marital rape," which presupposes that a woman can
never legitimately deny sex to her husband. Unfortunately, in my reading of it, the much
vaunted Verma Commission that's been constituted to reform India's rape laws and the
functioning of the criminal justice system appears to be focused on the speed of trials, quicker
justice and more severe punishment.

But instituting fast-track courts, as many people have called for, will by itself do nothing to
reform a law that's still heavily biased against the victims of rape. Nor will fast-track courts
change the mindsets of judges hearing cases.

According to a survey by Sakshi, an NGO active in gender issues, 74% of judges surveyed a
decade ago believed that "preservation of the family" should be a principal concern for women
even in the event of violence in the home. And 51% believed that women who stay with abusive
husbands are "partly to blame" for their plight. Some 68% felt that "provocative attire was an
invitation to rape" and 55% felt that the "moral character of the victim" was relevant.

While Indians introspect on the many things that need to change to prevent tragedies like the one
that happened in New Delhi on Dec. 16, we should not forget the complex interaction between a

culture with a misogynistic strand and an archaic misogynistic legal system that is deadly for
India's women.

The Indian Penal Code: 1860

T.he Penal Code was drafted by the Indian Law Commission with Macaulay at its helm and it
emerged in 1860. In the final version of the Penal Code sections 359 to 377 dealt with
kidnapping, rape, unnatural lust, as well as the additional offences of abduction and sale.
Macaulay devoted clauses 359 and 360 to the offence of rape. The first of these defined the
offences and the second specified the punishment for it. Clause 359 reads: A man is said to
commit rape who, except in the cases hereinafter excepted, has sexual intercourse with a woman
under circumstances falling under any of the five following descriptions:

First Against her will.

Secondly: Without her consent while she is insensible.

Thirdly: With her consent when her consent has been obtained by putting her in fear of death or
of hurt.

Fourthly: With her consent, when the man knows her consent is given because she believes that
he is a different man to whom she is, or believes herself to be married.

Fifthly: With or without her consent when she is under nine years of age.

Exception: Sexual intercourse by a man with his wife is in no case rape. 1bree provisions of this
clause are emphasised (Dhagamwar: 1992)

The age of consent in the fifth sub-clause was very low. - Only a married woman could claim her
consent had been given under a false impression. -In no circumstances could a husband be said
to have raped his wife. This was at a time when child marriage was the norm in India, and the
children very often were infants.

From the reading of Clause 359, particularly sub-clause five and the exception, wo points are
highlighted: preference of the rights of husband over his wife 1gainst the wife's right to herself
(and that is why the wife was not entitled to 1ccuse her husband of rape, whatever the

Source- NCRB India

circumstances). Also, a married woman could claim she gave her consent because she was
mistaken about the man's identity. However, if she was not married, she had no right to give her
consent to any person whatsoever; the fact that she gave it was sufficient to acquit the man.

When dealing with cases of rape the courts are likely to take into consideration facts about the
victim- such as her character, age, and experience while determining the severity of punishment,
and rightly so. No one would wish to maintain that an ignorant sheltered virgin of sixteen does
not suffer more than a hardened prostitute of thirty-five; or even more than a chaste married
woman. But there is surely a danger in making an assumption to this effect when drafting the
law, particularly on the grounds of caste and class. A distinction made on these grounds implies
that women of the privileged classes and castes are automatically more sensitive and, therefore,
more offended than their underprivileged sisters.

The fact is that women of low caste in India, whose economic status was as low as their social
status, did not find it easy to evade assaults on them by men of the more powerful social groups.
Consequently, the lower classes learned to live with the fact that women from their ranks were
not safe. If from this it was concluded that women from their ranks had a reduced sense of
honour, it would be a disgrace. It is a cruel mockery of justice to argue that a poor woman is less
sensitive because she is less able to protest. Assumptions such as these confirm the most
undesirable status quo and produce a non-egalitarian system of justice.

Section 375 of the final version differed a little from Clause 359. The only important amendment
was of the exception which read: 'Sexual intercourse by a man with his own wife, the wife not
being under ten years of age, is not rape. The Committee did not give their reasons for the
change. On the question of rape, very strong moral judgement were brought to bear upon the
victim and her character before she could obtain justice. She was also considered capable of
giving her consent at a very young age.

1983: The Criminal Law Second Amendment

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.

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.

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 v.. 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 v. 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 v.
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 

 “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.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.

 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. The police should be
under a duty to inform the victim of her right to a counsel before being interrogated. A list of
lawyers willing to act in these cases should be kept at the police station. 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.

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

2013: Criminal Law Amendment Act

Analysis of laws before the criminal law amendment, 2013

Rape laws have seen numerous transitions before reaching the present form through the criminal
law amendment of 2013, which was brought through as an ordinance as the parliament was not
in session. This amendment was brought after a nationwide outrage against the brutal rape of a
physiotherapist student in Delhi     .

Section 375 of the Indian Penal Code defines Rape. In common parlance rape is described as
sexual intercourse with a woman without her consent by force, fear or fraud. Section 275 has
seen an amendment in the year 1983, which overhauled the definition of rape and also made
changes to the punishments that were stipulated under the section 376. This was made through
the Criminal Law (Amendment) Act of 1983. Interestingly this amendment was also brought
about due to the widespread criticism of a judgment in the case of Tukaram v State of
Maharashtra, In this case the trial court had pronounced the accused as not guilty which was
based on the concept that the victim had given tacit consent to the act. It was also observed that
the girl was of promiscuous character which was used as reasoning for the tacit consent.

This was overturned by the Bombay High Court which rightly pointed out that there was a huge
difference between consent and passive submission. It was very correct in its observation that
mere surrender to another person’s lust should not be taken as consent. This was upturned by the
Supreme Court who acquitted all the accused. This judgment was criticised widely by the civil
society. The ramifications of the case were seen in the amendments that were brought about in
the IPC and the Indian Evidence Act. Section 376 A to D were added to the IPC and section
114A was introduced in the Indian Evidence Act.

To analyse the laws before the criminal law amendment act 2013 it is important to know how the
sections have defined rape and the punishments associated with it. The crux of the definition of
rape in section 375 IPC before the amendment of 2013 is that rape involves coercive
nonconsensual sexual intercourse between a man and a woman. There are six circumstances that
can be said to be the constituents of rape. The primary condition necessary for rape to be
committed is that there must be the commission of sexual intercourse between the man and the
woman. It is widely believed that rape can only be committed if the sexual intercourse has been
done without the consent of the victim, but this is not always the case, rape can be committed
even after consent has been obtained if the age of the woman is below the age of sixteen years. 

On a closer look at the circumstances required for the commission of rape it can be broadly
divided into three parts. The first two clauses reveal that they deal with sexual intercourse with a
woman ‘against her will’ and ‘without her consent’. This means that the woman is consciously
capable of giving or not giving consent to the act. The next two clauses deal with the woman
giving her consent due to coercion that is by putting her or any of her family member to threat of
hurt or grievous harm and it also deals when the consent is obtained through misconception. The
last two clauses deals with the situation when the consensual sex with underage female person
takes place.

Explanation of the term ‘Sexual Intercourse’ and ‘Penetration’

These are the terms that have undergone the most comprehensive change in the recent
amendment of 2013. Before the amendment of 2013, sexual intercourse was taken to mean the
penetration of the male genital organ into the female genital organ only. The courts interpreted
the term 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’. 

The courts have stressed on the fact that the depth of the penetration is immaterial. It is also laid
down that there is no requirement for injuries to be present on the private part of the woman to
constitute rape. The hymen need not be ruptured. Thus the essential condition of rape is
penetration and not ejaculation. Ejaculation without penetration will constitute as an attempt to
rape and not rape actuall.. These conditions were expressly mentioned by the Supreme Court in
the case of State of Uttar Pradesh v Babulnat.

  The court in this case while delving into the essential ingredients of rape made the observation
that “To constitute the offence of rape it is not at all necessary that there should be complete
penetration of the male organ with the emission of semen and rupture of hymen. Even Partial or
slightest penetration of the male organ within the labia majora or the vulva or pudenda with or
without any emission of semen or even an attempt at penetration into the private part of the
victim would be quite enough for the purposes of section 375 and 376 of the Indian Penal Code.
That being so it is quite possible to commit legally the offence of rape even without causing any
injury to the genitals or leaving any seminal stain”.

An important issue of widening the ambit of section 375 to include the any bodily penetration as
rape was raised in the case of Smt Sudesh Jhaku v KCJ & Ors. The petitioners wanted to
increase the ambit of the definition to include penetration of any male body part into any orifice
in the woman’s body. This however was rejected by the court which was not in favour of
tinkering with the existing definition of the term. The court said that it was necessary to prevent
chaos and confusion in the society with regard to the changed definition of rape and hence
Section 375 should not be altered.

It is also important to note that there is also an exception to section 375.  The exception is known
as Marital Rape. Marital Rape is defined as nonconsensual sex with wife who is over the age of
15 years.  The crux of the argument is that any coercive or nonconsensual sex with a wife over
the age the age of 15 years will not be considered as rape within the purview of section 375. The
immunity of the husband from getting convicted for marital rape arises from the assumption that
after marriage husband gets a lifelong consent for sexual intercourse with his wife. This is a very
problematic situation according to me because this is in contravention to the statute that states
that the minimum age for marriage of a woman should be 18 years. So if that is the case a man
cannot marry a wife who is of 15 years of age. I also don’t agree with the fact that Marital Rape
is not considered to be rape because I don’t agree with the concept of lifelong consent to sexual
intercourse just because a couple is married.

Rape Laws after the Amendment of 2013

The Criminal Law Amendment Act of 2013 was brought into effect after the horrific Delhi Gang
Rape case which shocked the whole nation with the brutality of the act committed. Widespread
protests and agitations forced the legislature to contemplate the changing of the prevalent rape
laws.  The basic idea was to make them more stringent and introduce harsher punishments
besides broadening the ambit and definition of the term rape.

Late Justice J.S.Verma, Gopal Subramaniam and Ex-Justice Leila Seth comprised the rather
famous ‘Justice Verma Committee’ which was made to collect suggestions and make
recommendations for the legislature to make a law to combat rape and other crimes against
women.The technical committee was so proactive with its working that during its short duration
it received as many as 80,000 suggestions over which deliberations were done. These
suggestions were sent by various activists, lawyers, NGOs and other persons representing
the ‘civil society’. Since the legislature was adjourned and there was no session, the committee’s
recommendations were introduced via an ordinance.

The offence rape was now amended or given a broader meaning which was comprehensive
enough to include any kind of penetration and also in any body part of the woman or girl. This
was the most important change because earlier section 375 of the IPC only stipulated the Penile
Vaginal penetration as rape. The fact that the new recommendations added that any penetration
would be considered as rape was the most efficient tool in widening the ambit of the term rape
which was being demanded earlier on the basis of the recommendations of the fifth law
commission report. There was also the inclusion of registering complaints and medical
examination. The report categorically mentioned, “Any officer, who fails to register a case of
rape reported to him, or attempts to abort its investigation, commits an offence which shall be
punishable as prescribed.”

The committee gave extensive recommendations regarding avoiding marital rape as well as rapes
committed via commission of void marriages. This was very important as I feel that Marital
Rape is a loophole that is very explicit and on the face in nature. It is a topic that is not very
hidden that legislations are not being made on the issue.

This is why it is such an important thing since everyone knows about it and yet the effort to
include it under the definition of rape has only begun recently. To include this fact and
observation the committee mentioned compulsory registration of marriages so as to provide legal
sanctity solemnization of marriage. The Code of Criminal Procedure  also underwent a similar
overhauling attributed to the new law and had previously gone through the same process after the
judgment in the Supreme Court decision in the “Gurmit Singh Case”.

Critical Comparison of two legislation

It goes without saying that the laws have now changed drastically from what it existed
previously. Societal views changes from time to time with the advent of new values and
technologies. It is only fair that similarly laws which matter so much in regulating the law and
order prevailing in the society also changes from time to time. This is important to counter and
combat new types of crimes that have emerged of late such as cybercrimes which include data
theft, harassing, breach of privacy and so and so forth.   The major rape and sexual assault cases
such as the ‘Shopian Rape Case, the Aruna Shanbaug Case, Nirbhaya Rape Case, Priya Patel,
the Mathura Rape Case, etc. all have had an effect on the functioning of rape laws and their
interpretations as well as reformations. Rape was included in the Indian Penal Code, 1860 in its
original form since 1924.

The Criminal Law (Amendment) Act, 2013 was a replacement of the Criminal Law
(Amendment) Ordinance, 2013. The Act was mandated to make change in the Indian IPC &
CrPC as well as the Indian Evidence Act. There was a rise in threats towards individual privacy
in the country and it was high time to include certain new crimes under the Indian Penal Code in
consonance with the passing of time. A new crime that was introduced and was not provided for
in the country’s earlier legislations was ‘voyeurism’ which means the recording or viewing
images, movies or any such media material without the permission of the person portrayed or
screened in them would result in penal punishment. A ‘voyeur’ is defined as “a person who
derives sexual gratification from the covert observation of others as they undress or engage in
sexual activities.” Voyeurism is a criminal act which creates apprehension for society and is
infringement of expectations of privacy that all citizens have about their body which they do not
wish to expose it to other.

The inclusion of voyeurism as a crime under the Indian Penal Code has made sale of
pornography, invasion of privacy and all forms of sale of defamatory pictures as prohibited and
this has resulted in apprehension in minds of criminals.
Another very important change from previous legislations is the much required change in the
procedure of providing evidence in the court of law. After the Mathura rape case the outcry did
result in amendment of Section 114A of the Indian Evidence Act. This was done to maintain that
despite there being the lack of consent given by the women, there was often a character
assassination of the women at the court trials which was very unfortunate.

Thus there was a transition from earlier legislations and Section 53A of the Indian Evidence Act
was introduced making it explicit that in a trial where there was sexual assault or rape then the
evidence supplied relating to the victim’s previous sexual experience or even for a matter of fact
her ‘character’ could not be admissible in the court of law. Still is unfortunate that the character
assassination of the victim continues in the society which increases the hurt suffered by the
victim.

On instances of rape or sexual assault cases the evidence concerning consent is often derived on
the basis of the past conduct of the woman which seems rather frivolous as at the instance of the
abuse she might not have consented thus constituting the criminal act. In earlier cases prostitutes
could be raped and their right would not be protected as the victim’s previous sexual experience
and “promiscuous character” would always malign the proceedings and create a bias in the
judiciary’s mind.

The sole reason for this inclusion of this amendment was to prevent the breach of privacy of the
victim’s sexual history by preventing it to be included as a piece of evidence in court. Thus
unwarranted intrusion in the privacy of the victim’s life should not be supported by members of
the civil society. The new law protected defamation of the woman and rights of the woman to
live with dignity.

Lastly and very importantly, there was also an introduction of sexual harassment at workplace
(under section 354 of the IPC in addition to the Sexual Harassment at Workplace Act, 2013) and
an enhanced definition of rape provided for in the amended law. The earlier legislation had
focused on coercion and the fear of death or hurt of someone close to her as an example of force
exerted or lack of consent when there was commission of rape. Another example of deceit which
culminated into the act of committing rape was commission of false marriages.
 Criminal Law Amendment Act 2018

Amendments to IPC: Issues & concerns

The IPC is one of the most important piece of criminal legislations in India. It consists of an
elaborate code of Offences with their definition and punishments. Prior to the CLAA, IPC was
last amended by the Criminal Law (Amendment) Act, 2013 which introduced several reforms in
the realm of sexual offences. The CLAA has amended the IPC in two ways – Firstly, by
amending the existing sections of IPC; secondly, by inserting new sections which have created
new offences in IPC. The recent amendments aim at deterring the increasing trend of sexual
violence against minors. However, the ‘deterrence’ which the law seeks to bring has been
brought about at the cost of proportionality and reasonableness of criminal laws. On a bare
perusal of the provisions one can make out the manifold increase in the sentences which the State
believes would act as a deterrent to such acts of sexual violence. However, the law fails to
reconcile itself with the ground realities of gender related sexual violence in India, and the
established principles of criminal law.

Enhanced punishment & blurring classification of rape

On a careful perusal of section 375 and 376 one can identify a classification of rape – rape
simpliciter punishable under section 376 (1), IPC and aggravated forms of rape punishable under
section 376 (2), IPC. The former class of rape lays down the general offence of rape and invites a
lesser punishment. Whereas, the latter class of rape provided under section 376 (2) lays down 14
circumstances where the nature of rape is considered more serious due to the presence of an
aggravating factor 12 and therefore, has higher punishment. Any man who commits an
aggravated form of rape is liable for prosecution u/s 376 (2) which has a minimum punishment
of 10 years which may extend to life imprisonment. Whereas any man who commits an act, on a
woman, which falls within the definition provided under section 375, IPC is liable for
prosecution u/s 376 (1), provided it doesn’t fall in any of the clauses of section 376 (2). Prior to
the CLAA, minimum punishment for rape simpliciter was 7 years, whereas maximum
punishment was life imprisonment. However, the CLAA has increased the minimum sentence
from 7 years to 10 years. 13 On the face of it the amendment appears to be a strong provision
against rape. However, on a careful look, one can appreciate its real implications. The worrisome
aspect of the new law is the fact that it obliterates the distinction between rape simpliciter and
aggravated form of rape. Now logically speaking the presence of any aggravating factor, as
enumerated in 376 (2) from clause (a) to (n), should have warranted a greater punishment.

But, post-CLAA, both classes of rape will invite same punishment. There appears to be no
rational basis as to why rape simpliciter should have the same punishment as awarded in
aggravated forms of rape. Moreover, when the scheme of IPC itself recognises classification
based on aggravated nature of offence, then punishment should also be in proportion to such
classification. Whether this oversight is intentional or result of a ham-fisted drafting is difficult
to say but has wide and serious ramifications.

With regard to rape of a woman under 16 years of age, section 376 (2) clause (i) has been
deleted; and sub-section (3)15 has been inserted which provides a minimum punishment of 20
years which may extend to life imprisonment (which means the remainder of that person’s
natural life). However, the constitutional validity of the minimum imprisonment of 20 years
provided under section 376 (3) is questionable when judged on the ground of proportionality. At
a time when sexual experimentation among adolescents is not an uncommon phenomenon, the
severity of the minimum 20 years’ imprisonment, transcends the limits reasonableness and
fairness. Let’s assume a girl who is under 16 years of age enters into a consensual physical
relationship with a man (18 years’ age).

This being a case of statutory rape, once the fact that the prosecutrix is below the age of consent
(18 years in India), is proved, the question of consent becomes irrelevant and sexual intercourse
with her amounts to rape irrespective of her consent. But a sentence of ‘20 years’ imprisonment
to the boy, in the absence of judicial discretion (which existed prior to 201317) appears to be
unreasonable and too harsh. The judge will be mandatorily required to sentence the man 20
years’ imprisonment, who will eventually get released at the age of 38 years or may never get
released in the event of life imprisonment. The law will also create counterproductive results
when the offender is a minor. For instance let’s assume that the offender is 17 years of age, after
the enactment of the Juvenile Justice Act (Care and Protection of Children), 2015 18 (hereinafter
JJA) a juvenile may be tried as an adult19 and may be awarded imprisonment under the
provision of IPC (except death and life imprisonment)20 .
In view of the lacunas in the practical implementation of the JJA and shoddy compliance by law
enforcement agencies is always a cause of concern. Various experts have red flagged ambiguities
in the JJA which is resulting in abrogation of justice in cases pertaining to juveniles in conflict
with law. In such cases, a juvenile in conflict with law may be awarded a sentence of 20 years.
This sentence, which is not a short period of time, may cause injustice to a juvenile and frustrate
the object of reformation.

While the amendment of 2013 also introduced a mandatory minimum sentence of 10 years, from
there to mandatory sentence of 20 years as introduced by the CLAA, without any credible
research or justification is a substantial increase. Senior Advocate Indira Jai Singh argues that
“the mandatory nature of the offence takes away the discretion of the judge. Every sentence must
fit the crime”. 22 Absence of judicial discretion would make sentencing process more rigid and
static. A straight jacket sentencing policy without any scope for judicial discretion in awarding
sentences would hamper individualisation of sentencing.
 Challenges of ratifying national laws with the global VAW agenda

Kapur and Cossman (1996) highlight divisions within the Indian women’s movement around
utilizing strategies to address violence against women that relied extensively on the state, and
especially on criminal law. While some activists continued to lobby for criminal legislation to
protect women against violence, others were concerned with the willingness to extend the
criminal powers of the state through enacting such legislation (Kannabiran 2010; Kapur and
Cossman 1996). A key concern was the appropriation of feminist language by the state, without
embracing feminist politics (Ganguly 2007).

Kapur and Cossman’s (1996) analysis of how law is implicated in the oppression of women
reveals in particular the ways in which familial ideology constituted legal regulation of women
as economically dependent wives and mothers, with emphasis on women’s natural roles and
responsibility within the family. This legal discourse was then used by the state to advance
political agendas of reactionary social movements such as the Hindu Right. By the 1990s,
Butalia (2002) was arguing that Indian feminists could no longer maintain a discourse that
primarily situated women as victims, as stark examples of violence against women by other
females became evident through communal riots in 1992.

For instance, during the destruction of Babri Masjid, female Hindu fundamentalists were known
to provoke assault by Hindu men on Muslim women: ‘If a girl who has been raped commits
suicide, will her brother not take revenge? Hindus must make sure they are feared by others … If
they rape 10‐15 of our women, we must also rape a few to show we are no less [emphasis in
original] ’ (Butalia 2002: 228). Thus Indian feminists could no longer afford to think in
simplified dichotomy, casting men as pure aggressors and women as pure victims. Subsequently,
the Indian women’s movement necessarily examined how women were also invested in politics
of community identity.

This forced the movement to examine implicit assumptions about whether gender identity was
enough to build a movement cutting across caste, class and race (Butalia 2002). Thus, in the
1990s, the Indian women’s movement was forced to confront the messy realities and challenges
of navigating through a national rhetoric of pluralism and nation states exercising their right to
difference while upholding the discourse of a global feminist agenda that pushed for the
universality of women’s rights as human rights, rooted in western ideology.

The fundamental right to self‐determination was juxtaposed against the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW) articles that ‘obliged the
state to correct any inconsistency between international human rights law and the religious and
customary laws operating within its territory’ (Coomaraswamy 1997: 1259).

Amirthalingam (2005) summarized the situation with his observation that ‘cultural practices and
traditions need to be preserved, while certain universal values must be equally protected’
(Amirthalingam 2005: 707). When signing CEDAW, India continued to allow separate personal
laws for religious minority communities such as upholding the Sharia Law among Muslim
minorities, even if they violated the basic tenets of the convention. Shah Bano, a Muslim woman,
sued for maintenance under the criminal procedure law even though the Muslim personal law
allows Muslim men to not pay maintenance. The Supreme Court of India decided to draw from
the criminal law provision and ruled in favour of the woman, leading to rioting and uproar in
major cities. Anger among the minorities was expressed in the discourse of rights to self‐
determination, pluralism and diversity. This led the then Prime Minister Rajiv Gandhi to amend
the criminal law so as to appease the angry Muslim minority, despite the clear violation of
women’s rights as presented in this case (Coomaraswamy 1997). Attempts to over‐rule the
clause of personal law met with violent protests from minority groups, as highlighted in the case
of Shah Bano. Conversely, we saw the Hindu Right fundamentalists make a strong demand for a
uniform code, determined by Hindu law.

With a focus on the inadequacies of Muslim law and despite clear gender biases in Hindu law, a
myth was created that ‘“enlightened” Hindus are governed by an ideal gender‐just law and this
law now needs to be extended to Muslims in order to liberate Muslim women’ (Agnes 1998:
107). Agnes argued that, although legal reforms were necessary, it was important to be cautious
of ‘modern secular laws’ pushed by CEDAW which could be appropriated by fundamentalist
elements to further their own anti‐minority propaganda. Such instances of misappropriation
further polarized the western conventions of women’s rights as articulated through CEDAW and
criminal laws on VAW because they were incompatible with the rhetoric on patriarchal
traditional and personal laws.
 Conclusion

To conclude with the comparison between the legislations it can be said that the two major
substantive changes were introduction of sixteen forms of rape (Penetration made by object and
all parts of body included) and also the increase in age of consent. Both were introduced to
combat rise of rapes committed on minors specifically. Though there was another
recommendation by the J.S.Verma Committee which wanted to introduce marital rape under
section 375 but this was not allowed as it would have been a social controversy.

One must also note that the sexual harassment at workplace which was for the first time
highlighted in the case of Sakshi v. Union of India which was a public interest litigation 
seeking punishments for sexual harassment committed against women at workplaces. It also
wanted to widen the interpretation of rape to include all forms of penetration to be covered, the
court had then given the decision in favour of the NGO but the parliament was did not recognise
it. The 2013 Amendment and Act made this a reality as it gave sanction to the judgment. So I
believe laws can be made much more stringent than they already are.
 ENDNOTES

[1] Times of India Kolkata 2013 May 19; 1 ( Col. 3)

[2] Bhupinder Sharma v State of Himachal Pradesh AIR 2003 SC 4684

[3] AIR 1979 SC 185

[4] Madan Gopal Kakkad vs Naval Dubey (1992) 3 SCC 204;

[5] Wahid Khan v State of Madhya Pradesh (2010) 2 SCC 9;

[6] Fateh Chand vs State of Haryana, (2009)15 SCC 543

[7] Guddu vs State of Mp,(2007)14 SCC 454, 2006.

[8] Ramkripal Shyamlal Charmakar vs State of Madhya Pradesh(2007) 11 SCC 265;

[9] (1994) 6 SCC 29

[10] Ibid.

[11] (1998) Cr LJ 2428

[12] http://en.wikipedia.org/wiki/J._S._Verma

Oxford English Dictionary, available at  http://bit.ly/YN2ZvI accessed on 2 August 2014

[22] Lance Rothenberg, Rethinking Privacy: Peeping Toms, Video Voyeurs, and the failure of
criminal law to recognize a reasonable expectation of privacy in the public space, American
University Law Review, 49, 1127,

(1999).

[23] http://cis-india.org/internet-governance/blog/the-criminal-law-amendment-bill-2013 accesse
d on 2 August 2014

[24] State of Maharashtra v. Prakash, AIR 1992 SC 1275: 1993 Supp (1) SCC 653

[25] State of Himachal Pradesh v. Mango Ram,  (2000) 7 SCC 224

[26] Jayanti Rani Panda v. State of West Bengal, 1984 Cr LJ 1535

[27] AIR 2004 SC 3566