THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCES

KOLKATA, INDIA.

LAW AND SOCIAL TRANSFORMATION PROJECT

TOPIC:
CRITICAL ANALYSIS OF DEVELOPMENT OF RAPE LAWS
IN INDIA: FROM THE SOCIAL TRANSFORMATION
PERSPECTIVE

Name: ANNAPURNA CHAKRABORTY

I. D. No. : PG21226

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 TABLE OF CONTENTS

1) INTRODUCTION........................................................................................................ 3

2) RAPE: THE HEINOUS CRIME: AN ANALYSIS:...........................3

3) RAPE LAWS IN INDIA: AN ANALYTICAL STUDY.............................................8

4) DEVELOPMENT OF RAPE LAWS IN INDIA AND SOCIAL

TRANSFORMATION: AN ANALYSIS......................................10.

5) THE CRIMINAL LAW (AMENDMENT) ACT, 2013: AN ANLYTICAL

STUDY..........................................................................................................12

6) CONCLUSION ..........................................................................................................12

7) BIBLIOGRAPHY...................................................................................................... 13

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 CRITICAL ANALYSIS OF DEVELOPEMENT OF RAPE LAWS IN INDIA: FROM
THE SOCIAL TRANSFORMATION PERSPECTIVE

ANNAPURNA CHAKRABORRTY (PG 21226)

CHAPTER 1

INTRODUCTION

Rape, the most heinous crime is still occurring in our society. Even after the Delhi gang Rape
case so many protests took place; a new law has been passed but still the situation has not
changed a bit. Recently a Mumbai based photo journalist was raped. When some journalists
from a well-known paper house went to take interview in her locality; they got to know that
nobody from the survivor apartment aware that the girl is from their locality. So the question
arises why still now the survivor of the rape feels ashamed and prefers to be silent. This is
one of the main reasons that most of the rape victim does not file an FIR. They think if
society got to know about this her reputation will be ruined and rest of her life will be hell.
That is the reasons why the crime like rape is still happening in our so-called modern society.
In this project I will try to analysis on the social transformation perspective.

For this purpose I have divided this paper in six chapters. Chapter 1 consisted of introduction,
statement of problems and research questions and literature review. Chapter 2 deals with the
definition and the types of rape. In chapter 3 I made an analytical study on rape law in India.
In chapter 4 I made an analysis on development of rape laws in India and social
transformation. I have analysed the criminal law (amendment) act, 2013 in chapter 5. I made
conclusion in the last chapter.

STATEMENT OF PROBLEMS

After the latest Delhi gang rape case a new strong anti rape law has been enacted, four
accused are sentenced “to be death “. But still the scenario is not changed. In every day we
wake up with horrible news of rape. According to the statistic National crime records bureau
“in Delhi 1,121 rape cases got registered in the first eight months of this year (i.e.: January to
July). This is the highest in last 13 years. It means according to NCRB data “in every 29
second five people was raped”. But these are the registered case but there are many
unregistered cases which are remaining unnoticed. As this project is for the subject of law
and social transformation so in this project I will try to find out the link between the law and

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the society and also try to find out whether it is able to make any social transformation. From
this point of view I have adopted my first research question; i.e.:

 Has the strong anti rape law totally failed to deter rapist?

Recently the defense lawyer A.P Singh (of Delhi gang rape case) said that “if his daughter
went out with her boyfriend at midnight then he will burn her alive” 1. This statement made by
defence lawyer of Delhi gang rape case make us think that whether this amendment of rape
laws can able to make any social transformation or all effort will be wasted. According to
Rosco Pound “lawyers are the social engineers”. They are supposed to be a social reformer if
they can make such types of offensive statement in front of media then it is not very difficult
to imagine what would be the common people take on this type sensitive issue. From this
social perspective I have adopted my second research question i.e.:

 Will the anti rape law can ever change our mindset?

RESEARCH QUESTION

 Whether the amendments of rape laws able to make any social transformation?

LITERATURE REVIEW

In this paper I have read “Rethinking Rape law- International and comparative perspectives”
edited by Clare Mc Glynn and Vanessa E. Munro where the writers made an international and
comparative study on rape law and also discussed the rethinking of rape laws. They have also
discussed about the reforms of laws in various states and also made an analysis on the
relationship between feminist activism and legal reforms. I have also read the “law relating to
dowry, dowry deaths, bride burning, rape and related offenses” written by PARAN DIWAN,
where the writer discussed “sexual intercourse amounting to rape” in a detailed manner. Then
the writer has made a detailed analysis on the following topics relating to rape; these are
following below:

 Sexual offense – rape

 Raping a prostitute

 Consent of rape victim

 Custodial rape and concept

1THE DELHI BAR COUNCIL MUST ACT, available at http://shreevenkatram.blogspot.in/ (Last visited on
14.11.2013)

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  Gang rape

 Sexual intercourse not amounting to rape

 Consensual sexual intercourse by a man with a woman when she is in his custody or
under his influence

 Rape: cognizable and non-bailable

 Trial should be in camera

 Punishment

 Rape as a matrimonial offence.

Apart from that for this paper I have gone through the National crime records bureau website;
from where I have collected various rapes related statistics or data. I have also visited the
website of the national commission for women from where I have collected NCW reports
relating to rape. I have read various articles.

CHAPTER 2

RAPE: THE HEINOUS CRIME: AN ANALYSIS:

In this chapter I will analyze the definition and meaning of rape and also will try to make an
analysis of different types of rape.

In very general sense rape means anything which is done by using force and without the
consent. According to Oxford Dictionary rape means “to force sb to have sex with you when
they do not want to by threatening them or using violence” 2. Section 375 of Indian Penal
Code defines the term rape. According to section 375 of Indian Penal Code, it can be said that
a man has committed rape under certain circumstances. These are following below:

1. Without the will of the concern woman ( in the time of intercourse)

2. Without the consent of the concern women.

3. If consent is there but it has been taken by threaten and fearing her.

4. If the girl gives consent because she thinks that this man is her legal husband though
the man is very much aware of the fact that she is not his wife.

2 OXFORD DICTIONARY, available at http://www.oxforddictionaries.com/ (Last visited on 14.11.2013)

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 5. When the girl gives her consent but in that time her mental condition is not sound or
at the time of intoxication.

6. When the age of the girl is 16 years of age then with or without consent of the girl if
any intercourse has been there then it is considered as rape.3

According to the book “Men Who Raped: The Psychology of the Offender” by A. Nicholas
Groth; there are three types of Rape on the perspective of the criminal psychology. These are
following bellow:

1. Anger rapist

2. Power rapist

3. Sadist rapist4

In generally rape can be categorized into seven categories. Those are following below:

1. Date rape

2. Gang rape

3. Spousal rape

4. Rape of children

5. Statutory rape

6. Prison rape

7. War rape

8. Rape by deception

9. Corrective rape5

3 See The Indian Penal Code § 375

4 CENTER FOR SEX OFFENDER MANAGEMENT , available at http://www.csom.org/train/ (Last visited on

14.11.2013)

5 id

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 CHAPTER 3

RAPE LAWS IN INDIA: AN ANALYTICAL STUDY

In this chapter I will make a detail study on rape law in India. The anti-rape law has been
encoded in the Indian penal code. Section 375 of Indian Penal Code defines what constitute
to rape6. Section 376 of the Indian Penal Code on the other hand enumerates the punishment
of rape.7 The explanation given in section 375 of the Indian Penal Code; it is stated that
“penetration” is enough to commit the “sexual intercourse” which is essential for the crime of
rape. Full penetration is not required in case of rape; “if any part of the organ of male goes
within the labium of the pudendum of the woman, no matter how little it amounts to rape” 8.
“The one and only essential ingredients is to consider whether it is rape or not is whether the
male organ entered into the person of the woman”. 9 According to the existing law it is not
important that “hymen” should be “ruptured”. In the famous case R. Vs. Furroll 10 a six year
old child was raped but she was not injured or hurt also her private part was not injured. But
after that incident she was suffering from “gonorrhoea” which the accused also suffered. In
this case it was held that the accused is the guilty of committing rape.

So to prove that a particular intercourse is raped or not absent of consent is essential. If there
is consent then it is not a rape. But it is essential that consent must be free consent. Here the
meaning of the term free consent is different from the Indian contract act, 1872. 11 According
to the criminal law in case of rape misrepresentation is not an essential ingredient.

6 See the Indian Penal Code § 375

7 See the Indian Penal Code § 376

8 PAREAS DIWAN, LAW RELATING TO DOWRY,DOWRY DEATHS,BRIDE BURNING,RAPE AND RELATED OFFENCES
(2010)

9 id

10 (1923) GLJ 1185.

11 Supra note 8

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Hypothetical example

If a man has sex with a woman with her free consent, even though the girl gives her consent
for this intercourse because of the fact that the man said to her that if she make an intercourse
with him then he will marry her. But if later the refuse to marry her still it is not considered as
a rape as she is giving her free consent. So in the case of rape misrepresentation is not
essential.

But if the man said that he is her husband who has been lost long back, has returned back
and believing the fact if the women make a sexual intercourse with him then it is amounting
to rape according to Indian Penal code.12

This can be explained in the light of the decision of the Supreme Court in the famous case
Raju v. State of Karnataka.

In this case what happened was that a woman called Celina who was working as a nurse was
going to attend her brother's marriage at Sakaleshpur. For this purpose at 5 am she reached
Bangalore and took a bus for Hasan. On the bus she meets two young boys who were trying
to friendly with her and even after getting down at Hassan the two young men are trying to
help her to reach her destination i.e. Sakaleshpur in time. Then they took her for lunch at the
house of one Marigudi but as the food is finished there then they went to B.G.K Lodge. As
only one room is vacant there they took it for the accommodation purpose and they decided
that in the room Celina would sleep on the cot and the other boys would sleep on the floor.
After that one of the young men named Krishna went to sleep on the cot with Celina making
excuse that there were too many mosquitoes in the rooms. After that he started making
advances with her when the girl objected and screamed then another young guy called Raju
got up and “gagged her with the handkerchief” and threatened her not to scream. He then
forces her to sex with him. Then Krishna also forcefully sex with her. After that Celina was
able to take out the gag from her mouth and started shouting. On hearing her screams the
room boy and others open the door.

In this case the ravishment of Celina was established. “Considering the fact that both the
accused person had betrayed the trust reposed in them by Celina and considering the fact that
both the said accused persons in a designed manner ravished the prosecutrix, the High Court
sentenced both of them for seven years’ rigorous imprisonment”.13

According to IPC if a man makes a sexual-inter course with his wife (who is completed 15
years age) then it is not rape. 14

12 id

13 PAREAS DIWAN, LAW RELATING TO DOWRY,DOWRY DEATHS,BRIDE BURNING,RAPE AND RELATED OFFENCES
(2010)

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Then the most important and controversy question comes i.e. if a man rape a prostitute then
whether he can immune from getting punishment because of the fact that the woman is a
prostitute? Or whether the term of his punishment being reduced because the girl is a
prostitute? In this regard The Supreme Court gave a judgement in the case of Premchand v.
State of Haryana15, which was heavily criticised among the public. In this case the Supreme
Court reduced the minimum punishment of 100 years for rape to 5 years considering the
conduct of the raped girl. The judgement result to various criticism and movement by various
women organisation. After that a review petition was filed. But it is failed still the Supreme
Court tried to justify their action by saying that “ we have neither characterised the victim,
Suman Rani, as a woman of questionable character and easy virtue nor made any reference
to her character or reputation in any part of our judgement but used the expression
“conduct” in the lexicographical meaning for the limited purpose of showing as to how
Suman Rani had behaved or conducted herself in not telling anyone for 5 days about the
sexual assault perpetrated on her.” In the end the Supreme Court observed-

“...we would like to express that this court is second to none in upholding the decency and
dignity of womanhood and we have not expressed any view in our judgement that character,
reputation or status of raped victim is a relevant factor for consideration by the court while
awarding the sentence to the rapist.”

But this situation has been changed in another case i.e. the State of Maharashtra vs.
Madhuker16 in this case what appended was one Madhuker who was a police inspector, had
knocked at the hut of one Banubi at night and want to forcefully sex with her. But she is
started shouting on hearing that her neighbour and husband came in. On the basis of her
complain the inspector got dismissed. But after the primary inquiry had been done it was
found that Banubi was a “woman of easy virtue”. On the appeal of the police inspector the
High Court taking into account the fact that Banubi was a woman of easy virtue and passed
an order in favour of the inspector. This case further went to Supreme Court. According to
Supreme Court-

“Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as
and when he likes. So also it is not 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 it
against her wish. She is equally entitled to protection of law. Therefore merely because she is
woman of easy virtue her evidence cannot be thrown overboard”

Finally in this case the judgement of High Court was reversed.

14 id

15 AIR 1989 SC 937

16 JT (1990) 4 SC 169

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 CHAPTER 4

DEVELOPMENT OF RAPE LAWS IN INDIA AND SOCIAL TRANSFORMATION:

AN ANALYSIS

In this chapter I will discuss the development of rape law in India and the social
transformation. I would like to start this chapter with the famous case, i.e. Tukaram vs. State
of Maharastra17 it is commonly known as The MATHURA RAPE CASE. This a worthy case
to discuss in the social transformation perspective because this is the very first case which led
to public outrage and as a result of the protest the reforms have been made in the existing
law. In this case what happened was 16 years old girl who is belongs to tribal community
named Mathura was raped in a Police station. After that the family members of Mathura,
made a criminal complaint against those two police officers. But the Supreme Court of India
reject this case and also said that why they reject the case. It said that the case got rejected
because “Mathura’s body bore no outwards sign of rape”. This judgement leads to a huge
movement by many women groups all over the nation. After this huge protest four eminent
law professors wrote an open complaint letter to the Chief Justice of India opposing this
judgement. After this entire incident an amendment has been made in criminal law in 1983.

So after the Mathura Rape Case, the Criminal Law Amendment, 1983 has been made. The
main features of the criminal law amendment, 1983 are:

1. For the first time custodial rape has been recognised.

2. Closed proceeding for the rape trials.

3. It is also banned the publication of victims identifications.

Another famous case Sakshi vs. Union of India18 is significant in this regards. A NGO called
Sakshi filed a Public Interest Litigation for redefine the term rape. In this case the law
commission of India was directed by the Supreme Court of India to respond to the specific
issue raised in the petition.

After the several meetings and consultation with Sakshi; law commission of India in 2000
published its 172 reports on the review of rape law.

17 AIR 1979 SC 185

18 AIR 2004 SC 3566

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The highlights of the 172 law commission report are following below:

 Rape should be replaced by the term sexual assault.

 All form of penetration should come under the purview of Sexual intercourse as
contained in 375 of Indian penal code.

In the year of 2002 an amendment of section 146 of the Indian Evidence Act has been
made19. It is also significant in this regards. According to this amendment, it does not allowed
any types of cross examination of rape victims that directly or indirectly raised questions
about the moral character of the rape victim also any types of question which is about the
previous sexual experience of the victims.20

After the Delhi gang rape case in December 2012 India has experienced the power of the
general mass. All over the India people are start protesting against this incident. They are
fight for justice, fight for a new law and most importantly all they want is to a safe and rape
free society. Though changing the law is another thing and social transformation is totally
different story. Literally the term transformation means inspiration, innovation and proper
execution. Now here I will discuss why it is needed to amend the rape law. For this purpose it
is important to know in 1990 the National Commission for Women Act has been passed by
the parliament. After two years in 1992 the commission was established. From that point of
time national commission for women are trying to suggest and recommend many essential
things to make the rape law more effective and efficient. But Parliament never concentrates
on this issue seriously.21 If we see the statistics we can see in last 10 years so many
amendments has been done in the field of finance law. But the parliament always neglected
the women related issue. Because there are hardly 10 amendments are took place in women
related issue from last 150years.22 This statistic proved that Parliament is not serious and
sensitive enough towards the women related issue. The reason behind it that probably our age
old mentalities which force us to think that rape is women related issue. But rape never be a
woman issue. It is the black spot in our society; it’s a national shame.

In parliament there are certain number of reservation for women but still the number of
amendment regarding women related law are very few. So in Parliament in spite of reserving

19 See the Indian Evidence Act § 146

20 id

21 NATIONAL COMMISSION FOR WOMEN, available at http://ncw.nic.in/ (Last visited on 14.11.2013)

22 id

11

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certain percentage of seat for women, they should allot specific time for discussion and
debate over women related issue, including the improvement of rape laws. Then only it
would be help full for our society.

CHAPTER 5

THE CRIMINAL LAW (AMENDMENT) ACT, 2013: AN ANLYTICAL STUDY

After the Delhi Gang Rape case people start protesting; several protect by public took place.
It becomes the burning topic of the nation. People from all over the India join this protest
either by physically or by virtually. Many people raise their voice against this incident on
various social networking sites. All they want is to safer and better country for women. These
protests not only limit in our country but also it spread beyond the nation. It was becomes the
breaking news all over the world. After that the United Nations entity for gender equality and
empowerment of women did several meeting with the government of India and the
Government of Delhi to do all the required things for the safety of the women.

Then the government form a committee to recommend legal reforms and also suggest the
other ways to eliminate sexual violation. This committee is headed by Justice Verma. The
justice Verma’s committee receive more than 80,000 recommendations from all over the
world. The main aim of the committee is to create a tough anti rape law and to make a safer
country for women23. After 29 days the report was submitted by the justice Verma’s
committee. Apart from the recommendation for a better and strong anti rape law this
committee try to find out that in spite of having a rape law why it is happing; the committee
find out that the main reason behind it is to the failure on the part of the government and the
police of our country.

The Justice Verma committees report not only recommended for strong law for crimes
against women but also recommend many essential thing which can take a important role to
gender equality and social transformation. It includes many things; these are following
below:

 Police reforms

 Educational reforms

 Special training for boys

 Special training for the officers who are in criminal justice system

 Establishment of rape crisis centres. 24

23REPORT TO THE COMMITTEE ON AMENDMENTS TO CRIMINAL LAWS, available at

http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf (Last visited on
14.11.2013)

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Finally on 19th march 2013 the bill was passed by the Lok Sabha and on 21 st March 2013 it
was passed by the Rajya Sabha. On 2 nd April 2013 the bill received the assent of the
president. Under this new act “the term “sexual assault” has been replaced back to rape.” The
offence rape is not a gender neutral offence. According to the new act only man can commit
rape. The clause which is dealing with the “touching of private part” has been removed from
the new act.25

According to the criminal (amendment) act, 2013; marital rape does not consider as rape.
This is criticised by several jurist, women organisation and NGOS.

CHAPTER 6

CONCLUSION

So from above study it can be said that without proper implication law is nothing. This is the
reason police reforms is most needed to stop the violence against women. Not only that
police reforms is necessary because in most of the cases when a rape victims goes to police
station to file a FIR, they are often face many offensive questions by the police. So their
mentality should be changed and proper training should be given to them on how to handle
such types of sensitive situation. Also boys’ education should be needed from school level.
They should be given the education to respect women. Elimination of gender biasness is most
required things to remove rape from our society in future. Still then we should raise our voice
whenever we will find any wrong happened against women; because social transformation
start with us, we are the society, we are the power and as we see in the past our voice can
make a difference.

24 Id

25THE CRIMINAL LAW (AMENDMENT) ACTS,2013, available at http://indiacode.nic.in/acts-in-

pdf/132013.pdf (Last visited on 14.11.2013)

13

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BIBLIOGRAPHY

BOOKS

 PAREAS DIWAN, LAW RELATING TO DOWRY,DOWRY DEATHS,BRIDE

BURNING,RAPE AND RELATED OFFENCES (2010)
 CLARE McGLYNN AND VANESSA E. MUNRO, RETHINKING RAPE LAWS
(2011)

 DIPA DUBE, RAPE LAWS IN INDIA (2008)

ARTICLES

 THE DELHI BAR COUNCIL MUST ACT, available at

http://shreevenkatram.blogspot.in/ (Last visited on 14.11.2013)
 CENTER FOR SEX OFFENDER MANAGEMENT , available at
http://www.csom.org/train/ (Last visited on 14.11.2013)
 REPORT TO THE COMMITTEE ON AMENDMENTS TO CRIMINAL LAWS,
available at
http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438
a.pdf (Last visited on 14.11.2013)

Electronic copy available at: https://ssrn.com/abstract=2402073

  THE CRIMINAL LAW (AMENDMENT) ACTS,2013, available at
http://indiacode.nic.in/acts-in-pdf/132013.pdf (Last visited on 14.11.2013)
 Mehta, Siddharth, Rape Law in India: Problems in Prosecution Due to Loopholes in
the Law (April 13, 2013). Available at SSRN: http://ssrn.com/abstract=2250448 or
http://dx.doi.org/10.2139/ssrn.2250448 (Last visited on 14.11.2013)

WEBSITES
 http://ncrb.nic.in/
 http://ncw.nic.in/

15

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