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ILS Law College
Rape Law In India
“A rapist not only causes physical injuries but indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, chastity, honour and reputation."
Rape is one of the most heinous of all crimes against women. It destroys the entire psychology of a woman and pushes her into a deep emotional crisis. It is a crime against basic human rights one is entitled to and a clear violation of the Right to Life enshrined in Article 21 of our Constitution. To truly understand and analyse the laws relating to rape and other sexual offences, identify the glaring loopholes if any and deliberate on desired changes in the law, we need to treat Rape as a crime against the entire society and not solely against the women victims.
Women, regardless of their age and social status form an integral part of society and protecting them from sexual humiliation and degradation is the responsibility of society and the legal system within which it operates.
The Indian Penal Code (45 of 1860) was enacted in the year 1860 but the provision relating to Rape embodied in Section 375 and 376 has remained substantially similar since the enactment. Landmark cases such as the Mathura Rape Case and the resulting Public campaign against the Supreme court judgment in the case have led to a vibrant Women’s movement thereby mounting pressure on the Union Government to take stock of the existing provisions of the Code pertaining to Rape and make necessary amendments. Recommendations contained in voluminous Law commission Reports and Bills tabled in the Parliament have reviewed the position of law on the subject and suggested necessary changes for the law to keep pace with the demands of contemporary society.
However, on a closer examination, it is rather dismal to note that most of the Recommendations and enactments remained mere paper tigers and ornamental pieces of legislation. As a result the law dealing with Rape has remained largely untouched since the original enactment.
This paper shall aim at providing a broad overview of the laws relation to Rape in the country, the enacted and proposed amendments, the crucial issues which need to be addressed and the defects which need to be rectified. The legal history of the offence in India shall be traced with the help of a timeline, plotted with the recommendations envisaged in various Law commission reports, Amendments and the bulk of case law which has played an important role in settling some of the crucial issues that crop up in a majority of rape cases.
It is the firm opinion of the author that the law on Rape needs to be overhauled to ensure there is no miscarriage of justice and the reputation and dignity of women is protected from the clutches of barbaric rapists. While preserving the basic human rights of women is of paramount importance, the law should also make provisions for cases of “frame-ups” and wrongful implication of innocent men. Pure gender neutrality is neither feasible nor desirable in the Indian setting. The paper shall also evaluate the pros and cons of a gender-neutral rape law and suggest the most viable solution in the author’s opinion.
I. History Of Rape Law In India
The history of Rape law in India begins with the enactment of the Indian Penal Code in 1860. The history, changes and current position may be examined under the following headings:
A) Law commission Reports
B) Landmark judgments of the apex Court which provided an impetus to the Women’s movement for reform
C) Proposed changes in the form of Bills tabled before the Parliament
D) Subsequent Amendments to the substantive and procedural laws concerning Rape
A) The Law Commission Reports : Harbingers of change?
There are 4 major Law commission reports which address the law on Rape- while two Reports were recommendations on the IPC in general within which the provision of rape was discussed, two exclusively dealt with reforms related to rape. :
i) 42nd Law commission report, 1971
ii) 84th Law commission report, 1980
iii) 156th Law commission report, 1997
iv) 172nd Law commission report, 2000
On perusal of the aforementioned Reports, it is found that the same thread of issues and arguments runs through all the Reports. The statutory definition of the term “Rape” under the IPC, defining
“consent”, the weight attached to the testimony of the Prosecutrix and the necessity of corroboration, deliberating on whether to make the offence gender neutral and amending procedural laws to make the Trial procedure more sensitive and less traumatic for the victim are among the issues taken up for consideration in the various reports of the Law commission on Rape.
Each successive Report is an improvement over the prior one addressing the issue, however it is disheartening to note that many useful recommendations mentioned therein have not found their way into the Bills presented to Parliament. As a result, the law in this regard still remains ineffective and in need of reform to a great extent. However, the Criminal law (Amendment) Bill, 2010 which is discussed in the latter half of the paper is a welcome step in rethinking the law on sexual violence.
The 42nd Report of the Law Commission in 1971 was the first step towards evaluation and reform of the Rape laws which had remained untouched since the year 1860. The Report made a valuable contribution by recommending the insertion of new provisions to tackle cases of “Custodial Rape” in which women are compelled to submit to sexual intercourse by the man in whose custody they may be. Such submission does not amount to consent and the Commission recommended a penal provision to punish such “reprehensible conduct” of public servants by the addition of Section 376C to the Code. The Commission was against criminalization of Marital Rape but recommended penalization of sexual intercourse with a child-wife albeit with her consent. For the purpose of punishment, the Commission provided for two age brackets i.e between 12-15 and under 12 with
stricter sentences where the victim belonged to the second category. 14 years Rigorous imprisonment was suggested to make punishments harsher and more deterrent. The Report discussed the applicability of Section 90 to “consent” of a woman under Section 375 and called for widening the consent clause under this section.
A) The Mathura Rape Case : Did it mark the watershed in the law on Rape?
The year 1979 marked the beginning of the Women’s Movement for reform which was centered around the Anti-Rape Campaign. The decision of the Apex Court in the landmark Mathura Rape case was vehemently criticised and galvanised the public campaign for reform of the obsolete law of rape in the IPC. Against this backdrop of mounting public pressure, the Law Commission came out with its 84th Report which dealt exclusively with Rape and sought to address the issues raised particularly after the Mathura case and in a way correct the injustice which was done by the Court in this case.
The Mathura rape case played an important role in the realisation of the need to sensitize the law as well as the attitude of the Judiciary towards such cases to avoid the victim of the crime from being victimised again by the Court and the loopholes in the law. In this case, Mathura a tribal girl aged 14-16 was raped by two policemen within the police station. The Sessions judge acquitted the accused and held there was no “satisfactory” evidence, medical or otherwise to make out the offence of rape. Mathura was termed a “shocking liar” who was “habituated to sexual intercourse” and there was a world of difference between rape and sexual intercourse which in the present case was with the Prosecutrix’s consent. On appeal, the High Court reversed the order of acquittal and convicted the accused on the grounds that “consent” and “passive submission” do not amount to the same thing.
However, the decision of the High Court was reversed by the Apex Court which aquitted the accused taking into consideration the fact that Mathura had not “raised any alarm for help” and the “absence of any injuries or signs of struggle” on her body. The Court ruled that the alleged intercourse was a peaceful affair and with her consent and the onus was always on the Prosecution to prove ingredients of the offence beyond reasonable doubt which was not so in the Mathura case.
The judgment was received with shock and outrage at. An “Open Letter” was subsequently addressed to the Chief Justice of India by four eminent law teachers, urging for a rethink on the decision and the prevalent law and highlighting the injustice done by the judgment. The authors of the letter viewed the decision as a sacrifice of basic Human rights and a blatant violation of the Right to Life under Article 21 of the Constitution of India with complete disregard for the socio-economic and legal awareness of the victims of such a crime. The Mathura decision outcry coupled with the intensification of pressure by the legal fraternity, social organizations and the general public led to the 84th Report and eventually the Criminal Law (Amendment) Act, 1983.
The 84th Report on Rape and Allied offences focussed on the controversial “consent” issue while emphasizing that consent was an antithesis of rape and consent must be real and not vitiated by any duress. Submission to intercourse or a mere act of helpless resignation in the face of inevitable compulsion could not be deemed to be consent. The Report recommended changes in procedural
laws as well especially in the area of medical examinations of victim and accused, recording of statements of victims and favoured an investigation into such cases by women police officers to give the victim a sense of security during the investigation.
An Analysis of landmark decisions Post-Mathura
It is interesting to note that the consent vs submission debate which was the main ground for acquittal of the accused in the Mathura case had already been discussed and the issue clarified in a decision of the Punjab Haryana High Court It was laid down in Rao Harnarain Singh Sheoji Singh vs The State , “A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent" as understood in law.” Consent as a defence to a charge of rape requires voluntary participation after the exercise of intelligence based on knowledge of the moral quality of the act and the free exercise of choice between resistance and assent. There is a difference between consent and submission. Every consent involves submission but not vice-versa. Consent in order to be a valid defence to rape, must be an act of reason accompanied with deliberation after the mind has weighed the good and evil and with the capacity to withdraw assent as per one’s will. Consent therefore implies the “exercise of a free and untrammelled right to forbid or withhold what is being consented to, it is always voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.”
A reading of this decision naturally leads to questioning the correctness of the Mathura case judgment. If case law had addressed the “consent” issue adequately had the Court should not the Court not erred in acquitting the accused notwithstanding that the decision referred to in this case was not pronounced by the Apex Court itself but a Court subordinate to it?
B) Examining the Amendments in the law post Mathura : Have they served the desired purpose?
The Criminal Law (Amendment) Act, 1983 brought about major changes in the laws on Rape. Hitherto, rape of a woman was treated as an “ultimate violation of the self”. Such a narrow and conservative approach ignored the Human rights violation aspect and equated Rape with loss of chastity and diminishing prospects of the victim’s marriage and future and the accompanying social stigma or ostracism in some cases. The Act of 1983 attempted to look upon Rape as a heinous crime which is traumatic for a woman and results in violation of her rights along with humiliation and degradation. Some of the important changes brought about by the Act to strengthen both substantive and procedural law provisions can be summed up as below :
(i) Burden of proof of innocence on the accused: The Evidence Act was amended by adding S114 A for drawing a presumption as to want of consent of the woman in case of a prosecution for Rape under Section 376 (2) (a), (b), (c), (d), (e) and (g).
(ii) Trial in camera : S 327 of the Criminal Procedure Code was amended by insertion of Subsection 2 providing for in camera trials and prohibition of publication of trial proceeding without the consent of Court in rape cases.
(iii) Prohibition of disclosure of identity of the victim : under S 228 A of the IPC.
(iv) Custodial Rape : A new category of offences under S376B-D has been created to penalize persons taking undue advantage of their authority and obtaining consent of a woman to sexual intercourse under compulsion
(v) Character assassination of Prosecutrix is prohibited: by insertion of a Proviso clause to S 146 of the Evidence Act vide the Evidence (Amendment) Act, 2002 which prohibits putting forth of questions about the Prosecutrix’s character in cross examination.
(vi) Minimum punishments for rape have been enhanced to 7 years and 10 years under S376 (1) and (2) respectively.
The Act was a welcome change in some respects but it failed to address formidable issues which still came up before the Court in rape cases. The definition and scope of the term “penetration”, corroboration, consent and marital rape largely remained grey areas. There is abundant case law on the points mentioned above, however, a statutory provision or an amendment is required to clarify and crystallize the law on these points.
In Rafiq v State of UP, the question before the Court was whether absence of injuries on the Prosecutrix is fatal to the Prosecution and whether corroboration of her testimony is required in such a case. The Supreme Court laid down that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances.
In Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat, the Supreme Court held that “Corrboration is not a sine-qua-non for conviction in a rape case. In the India setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration, is adding insult to injury. Further, viewing the evidence of the victim of rape with the aid of doubt-tinged glasses is to justify the charge of male chauvinism in a male dominated society. Thus there is great weight attached to the evidence of a victim of a sexual offence since a woman, especially in our tradition bound society will rarely make a false allegation for fear of being stigmatized or losing her reputation and ruining her prospects of marriage and being considered promiscuous. The corroboration rule was followed by the Courts in a slew of cases but is yet to find its place in the statute books."
The judgments passed post the Mathura campaign and the 1983 Amendment are a mix of positive and negative ones. While the Judiciary displayed sensitivity in a number of rape cases brought before it, there are a substantial number of cases where the attitude of the Court and the leniency in punishing the offenders is disheartening and outrageous. The Courts were warming up to the fact
that in a rape trial, the Prosecutrix was a “victim” of the crime and she was not to be treated on par with an accomplice.
The period 1990-2000 witnessed several cases where the Supreme Court stepped in and reversed the unjust acquittals by the lower Courts. The Apex Court criticised the insensitive attitude of the Trial Courts which failed to consider human psychology and behavioural probabilities in evaluating evidence resulting in miscarriage of justice. The corroboration rule was reiterated and emphasis was laid on the fact that minor discrepancies in the statement of the Prosecutrix should throw out an otherwise reliable prosecution case. Corroborative evidence is not an imperative component of judicial credence in every case of rape unless there were compelling reasons which necessitated looking for corroboration. The Courts could not cling to a fossil formula and insist upon corroboration.
The Gurmit Singh case was undoubtedly a victory for the Women’s Movement but a close study of several decisions of the Courts reveals a disturbing trend- in a majority of the cases,the Trial courts impose a severe penalty on the accused and on appeal to the concerned High Court, the sentence of punishment is almost always mitigated.
1) In one case the High Court reduced the sentence of 10 years RI imposed by the Trial Court on the accused for an offence under S 376 IPC to 4 years RI without stating any “special” and “adequate” reasons as required under S 376 (2). The Supreme Court restored the sentence of the Trial court taking into account the heinous nature of the crime committed on a girl of 7 and the cogent medical evidence in the case. The insensitivity of the High Court came under fire. The Court made it clear that the magnitude of punishment should be in proportion to the gravity of the
offence. The Court’s sentence must answer the public cries for justice and reflect the public abhorrence of the crime committed. The measure of punishment must not be based on the social status of the accused or the victim but the conduct of the accused and seriousness of the crime.
The judicial system should not encourage and embolden criminals but deter them from committing such crimes and provide courage to the victims to report such incidents. Similar views were expressed by the Apex Court in State Of Madhya Pradesh vs Balu where the Court criticized the ridiculously low sentence imposed by the High Court and disagreed with its “misplaced sympathy”.
Case law might indicate the increasing sensitivity of the Apex court to such cases but it is disturbing to see the lack of uniformity or consistency in the approach and decisions of the Courts. Though principles on contentious issues were laid down in many cases, Rape still remained in the realm of conservative notions of a male-dominated patriarchal society. Underlying attitudes and the balance of power between the genders called for an evaluation.
The period 1983-2011 has seen little reform in the area of Rape law. The Criminal Law (Amendment) Act, 2005 and the Evidence (Amendment) Act, 2002 brought about certain changes but critical defects in the law remain uncorrected.
The “Penetration” debate : The most vital ingredients to prove the offence of rape are
a) Sexual intercourse by a man with a woman against her will
b) Her lack of consent
Penetration is sufficient to constitute sexual intercourse necessary to the offence of rape, as per the Explanation to S 375. It is important to note that the depth of the penetration is immaterial and even a case of partial penetration would amount to Rape on satisfaction of the other ingredients. The narrow interpretation given by the Courts to the term penetration was the subject of consideration of the 156th and the 172nd Law Commission Reports and was widely debated by the Women’s organizations, lawyers and social activists. They pressed for moving beyond the restrictive interpretation and widening the scope of the section to include all forms of penetration within its ambit. The expansion of the definition of Rape was argued at length in Smt. Sudesh Jhaku vs K.C.J. And Others. The main questions which came up for consideration before the Court were whether “Rape” as defined in S375 of the IPC is confined to only penile penetration of the vagina or it also includes penetration of a bodily orifice (vagina/anus/mouth) by a penis, part of the body or an object?
It was contended that since the words “sexual intercourse” and “penetration” were not defined anywhere in the Code, it would be unjust for the Court to adopt an arbitrary interpretation of the terms. The Delhi High Court, however refused to accept an “artificial extension” of the statutory definition of Rape and held that it was based on the widely accepted defintion of “sexual intercourse’ under Common Law, which was confined only to penile-vaginal penetration.
The Court erred in its decision in the case, in my opinion. It failed to take note of the alarming increase in the number and the variety of sexual abuse in the country with the changing times. The
Court overlooked the larger issues of degradation, humiliation, trauma and violence a woman was equally subjected to in case of penetration by other parts of the body or foreign objects. The accused would be liable for “outraging of modesty” under S 354 or for “unnatural offences under S 377 for such sexual offences. Perpetrators thus escaped with lighter sentences for offences under these Sections.
C) The Criminal Law (Amendment) Bill, 2010 : Evaluating the various provisions
The penetration debate has occupied centre-stage in the Rape campaign and continues to do so. It has been discussed in the 172nd Report of the Law Commission, which was prepared on the directions of the Supreme Court as a result of a writ petition filed by one Sakshi (a women’s organization) before the Supreme Court for directions concerning the definition of “sexual intercourse” in Section 375 of the IPC. The organization formulated “precise issues” in its petition which were then considered by the Law Commission in the form of recommendations in its report. Some of the recommendations were incorporated in the Criminal Law (Amendment) Bill, 2010.
The Report recommended substitution of the term “ Sexual assault” for “Rape” and including all kinds of penetration in the vagina, anus or urethra of another whether by a part of the human body
or an object. The Report recommended insertion of a new Section 376 E to be named “unlawful sexual contact”. It was against a gender neutral law but highlighted the need to amend the law to punish child sexual abuse. Criminalization of Marital Rape would amount to “excessive interference in the marital relationship” as stated in the Report. The Report contained some useful recommendations concerning the procedural laws. It made suggestions to strengthen the female element in investigation and interrogation involved in rape trials. ( Female police officers should record the FIRs of the victims of rape under S 160 of the Criminal Procedure Code, the medical examination of the victim shall be conducted by a female registered medical practitioner under S 164A without delay and a detailed medical report was thereafter to be submitted to the Magistrate. The Report recommended deletion of S 155 (4) of the Indian evidence act regarding impeaching the credit of a witness and corresponding changes in S 146 of the Act. )
Post the 172nd Report of the Law Commission, there were important amendments made in the procedural laws :
(i) S 155 (4) of the Indian Evidence Act was omitted vide the Indian Evidence (Amendment) Act, 2002. Prior to its omission the subclause permitted the man prosecuted for rape to show that the Prosecutrix was of generally immoral character so as to impeach her credit as a witness. The Supreme Court in Gurmit Singh’s case expressed strong disapproval of this tendency of the Courts in casting a stigma on the character of the Prosecutrix which often discouraged victims from reporting cases of rape. The Courts were expected to exercise self-restraint while recording findings which had repurcussions on the future of the victim and society as a whole. The Court ruled that even though the victim as “habituated to sexual intercourse”, it could not be inferred that she was of a “loose moral character”. She had a right to privacy and to refuse to submit herself to sexual intercourse with anyone despite her promiscuity in sexual behaviour in the past. She was not to be treated as a “vulnerable object” or a “prey” for sexual assault or as an accomplice to the crime. The deletion of this clause removed the hardship hitherto faced by the Prosecutrix as a result of doubts cast on her character during the trial.
(ii) A corresponding proviso was also added to S 146 of the Evidence Act which made it clear that in a prosecution for rape, it shall not be permissible to put questions in the cross examination of the Prosecutrix as to her general immoral character. These changes were introduced to make the trial more humane and less humiliating for the victims.
(iii) The Criminal Procedure Code was amended vide the Criminal Law (Amendment) Act, 2005 to provide for a medical examination of the accused and the Prosecutrix without delay, under S 53A and S 164A respectively. The examination of the victim was to be conducted by a registered medical practitioner, with the consent of the woman and a detailed report was to be prepared of the examination, containing particulars such as the victim’s age, marks of injury on her person, her mental condition etc and forwarded to the Magistrate.
The various Reports, debates, campaigns and case law eventually culminated in the drafting of the Criminal Law (Amendment) Bill, 2010. The main features of the Bill are discussed and reviewed hereafter.
(i) Substitution of “sexual assault” for rape : The Bill seeks to widen the scope of the statutory definition of rape and include within its purview all forms of penetration.
(ii) Raising of the age of consent to 18 : This would be a positive step and curb the increasing sexual exploitation of children.
(ii) Marital Rape Exception : The Bill fails to cater to the long standing demand of criminalizing marital rape. The Sexual Offences Act of England has done away with this exception after the decision in R v R. A husband and wife are now treated as equal partners in marriage and it is unacceptable that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances. This exception is an anachronism in today’s setup. Marital Rape is equally traumatic for the victim and not criminalizing it amounts to violation of the Right to life enshrined in Article 21 of the Constitution since Rape is a crime against basic Human Rights and the Right to Life. The notion of the wife impliedly consenting to intercourse with the husband by mutual matrimonial consent is now outdated and has been rejected by the legal system of countries around the world. Marriage cannot and should not provide husbands with a “licence to rape” their wives. The Bill proposes to enhance the punishment provided under S 376A of the IPC for sexual intercourse with a judicially separated wife, from 2 years to a minimum of 3 years.
(iii) The Bill seeks to add several new clauses to S 376 (2) of the IPC. It penalises commission of sexual assault on a woman suffering from mental and physical disability, commission of persistent sexual assault and commission of sexual assault by a man being in a position of economic,social or political dominance on a woman under such dominance. These are welcome proposals but terms like “persistent sexual assault” and “economic, political, social dominance” need to be defined and clarified.
(iv) Gender Neutrality : The Bill does not support a gender neutral rape law. While a gender-specific law leaves out a category of vulnerable persons like transgender and MSMs out of the protective sphere of law, a gender neutral law may be misused as a tool to harass women. A purely gender neutral Rape law is not viable but an alternative solution could be sought by making the law gender neutral where children below a certain age are victims. In my opinion, the Indian mind is not
sensitive or prepared enough to accept a gender neutral law. As long as the patriarchal notions of a male dominated society persist, a gender neutral law would not assist in achieving the desired objectives by curbing sexual offences.
(v) The term “consent” needs to be defined in the Act as the very definition of the word has been debated in many cases before the Courts. An explanation should be added to the definition to differentiate between consent and mere passive submission. The definition laid down in the Rao Harnarain Singh Sheoji Singh vs The State by the Punjab Haryana High Court has been followed by the Supreme Court in many subsequent cases and would be the most appropriate and comprehensive definition to incorporate in this Section.
(vi) Relation between S 376 and S 354 : Section 354 penalizes “outraging the modesty of a woman”. The essential ingredients of this section are the use or criminal force against a woman or assault of a woman and the intention of the accused to outrage her modesty or knowledge that her modesty was likely to be outraged. What constitutes “modesty” of a woman came up for consideration in a number of cases. In State of Punjab v Major Singh, the question that arose before the Court was whether a seven and a half month old baby girl possessed “modesty” which
was liable to be outraged as defined in this section. The Court held that the essence of a woman’s modesty is her sex, whatever here age may be and therefore even a seven and a half month old girl would possess modesty capable of being outraged.
The punishment accorded under this section is severe and the maximum term which can be imposed is 2 years. It covers cases of non-penile pentration and a range of sexual behaviours and assaults such as with foreign objects or other parts of the body. The failure to include these penetrative acts within the definition of Rape has resulted in the sweeping away of many heinous sexual assaults under the nomenclature of “outraging modesty” and resultantly milder punishments. The current scheme of the Code contains provisions relating to sexual offences and assaults scattered over Sections 354, 375-377 and 509. The provisions call for streamlining this haphazard distribution and bringing all forms of sexual offences under a common umbrella. A scheme of gradation of the offences based on the type nature and severity of the offence involved may be inserted into the Code. The stringency of punishments should be proportionate to the intensity and severity of the offence. Accordingly, a scheme may be proposed as under:
Grade I – Verbal sexual assault, Eve teasing, Molestation
Grade II –Unlawful sexual contact which includes touch based offences and Sexual harassment at the workplace
Grade III- All forms of penetrative acts like Rape and Sexual abuse of Minors
Grade IV- Aggravated sexual assaults
Would the substitution of “Rape” with “Sexual assault” dilute the seriousness of the crime?
This question has been raised with reference to the recommendations in the 172nd Law commission report and the Bill of 2010. From the time of the enactment in 1860, the term Rape has been synonymous with a crime wreaking devastation and degradation on the victim’s honour and resulting in traumatic effects with the consequent loss of he chastity and jeopardizing the prospects of her marriage. Only in the last few decades, have we witnessed a gradual shift from viewing Rape as an “the ultimate violation of self” to “violation of human rights of a woman”. The substitution is
required because the traditional definition of rape which is based on the common law one (and restricted to penile-vaginal penetration), is the statutorily accepted one in India. If the scope of penetration under this section is to be widened, a change in terminology is necessary. The safest solution, in my opinion would be to increase public awareness of the law relating to rape and other sexual offences and the punishments prescribed under the various offences before gradual shift in terminology. The sexual offences could all be clubbed into a separate chapter and then the gradation system could be applied as enumerated above.
(vii) On the procedural side, the Bill makes useful recommendations concerning recording of statements of the victims, First Information Reports and medical examination. It is important to note that Delay in filing a First Information Report (FIR) in rape cases is not material and fatal to the Prosecution case if properly explained. The Court should be sensitive to the fact that in such cases the delay may be due to the stigma often associated with the crime and the hesitation in the mind of the victim to report the case for fear of her and her family name being tarnished as a result.
The crucial question is what measures can the law take to ensure that justice is done in cases of sexual assault. Is the law as it stands in the statute book today adequate to deal with the heinous crime of rape and give the offenders the punishment they deserve? Among the myriad recommendations of the Law Commission in its comprehensive reports why have only a handful taken the shape of amendments?
Thus the underlying question is why the laws have remained largely ineffective in tackling rape and allied offences. A look at the Crime Statistics of the National Crime Records Bureau, 2009 reveal the dismal conviction rate of rape cases and the increasing rate of the crime.
Trends Observed In Rape In India (1953-2009)
It is imperative to understand the trends, incidence and rate of Rape incidents in India over the years for a proper analysis of the law in this regard.
On the basis of data collected from 1971 to the latest figures generated in 2009 on various parameters of the crime of Rape, the following conclusions can be drawn :
i) The rate of rape in the country is on the rise. Figures indicate a 760.4% change in the percentage of cases in 2009 over 1953.
ii) As per 2009 statistics, crimes against women contribute approximately 9.6% to IPC crimes, with Rape contributing to over 1%. The number of reported cases has increased to from 18,359 in 2005 to 21,397 in 2009. The conviction rate is pegged at a dismal 27.8% of the 92% of cases charge sheeted.
iii) Statistics show that in India a rape is committed every 29 minutes.
iv) Madhya Pradesh continues to be the State with the highest number of cases of rape, closely followed by Uttar Pradesh, West Bengal and Delhi.
iv) A positive trend we observe is increase in the number of rape cases which are reported by the victims which might indicate the victims gradual breaking from the shackles of public humiliation, family pressures and the stigma traditionally associated with the offence of rape. However, much still remains to be done in this sphere to push up the number of reported cases and rightful convictions.
A multiple approach by involving various sections of society through campaign and awareness programmes, providing legal aid to the victims and encouraging them to report such cases might help towards curbing or effective handling of cases of sexual assault.
In Delhi Domestic Working Women’s Forum vs UOI, the Supreme Court laid down broad guidelines to deal with rape cases. The guidelines suggested constitution of a Criminal Injuries Compensation Board for awarding compensation to the victim for financial loss, loss of employment, suffering as a result of rape inter alia providing them with legal assistance at the police station, informing victims of their right to representation and maintaining anonymity of the rape victim.
The question of awarding compensation to rape victims arose before the Apex Court in the Chandrima Das case wherein the Court recognised the right of a foreign national to live with dignity under Article 21 of the Constitution which applies to non-citizens as well. The State was under obligation to protect the life of every person in the country under this Article. Rape was a gross violation of the Right enshrined in this Article. The Court upheld the decision of the Kolkata High Court awarding the victim compensation of a sum of ten lakhs and held the Union Government vicariously to pay damages for the heinous act by the Railway employees. The Supreme Court displayed the sensitivity required in this case and the punishment and award of compensation was a step forward in the movement for reform of Rape Law.
However, unless punishments are rigorously enforced and the tendency of the Courts to show leniency towards Juvenile sexual offenders is not done away with, the dastardly act of rape cannot be dealt with effectively. The need of the hour is a more robust investigative machinery to handle such cases. The forensic evidence needs to be protected considering the weight attached to medical evidence in a case of rape. There is an urgent requirement of recruitment and training of a greater number of women police officers to assist in investigation, interviews, recording of statements and women medical practitioners to conduct the medical examination of the victim. Media should be specially sensitive while reporting such cases. They are duty-bound to protect the victim’s identity and prevent her social stigmatization.
The above analysis of cases and laws shows that the present state of law relating to sexual offences in India is haphazard and in need of serious reform. Punishments should be enhanced, both in terms of the length and nature of imprisonment and the monetary aspect. The law be amended to make the offender compensate the victim out of his pocket ; this might help in creating a deterrent effect for future crimes. It is only when the Police, the Judiciary, the Media and the general public come together, work in conjunction with each other other and discharge their respective roles that the perpetrators of sexual offences can be brought to justice, deterred in the future and the victims can attain closure.
Some Important Articles on Rape laws in India
# Sexual Harassment and Rape Laws in India
# Redefining the Rape Laws in India
# Rape Laws In India-Appropriate or not?
# A Woman Can't Rape Woman
# Rape law in India and World
# Capital Punishment for Rape. What justice are we taking about?
# Change in definition of Rape in India
# Marital Rape versus Conjugal Right
# "Rape”-Texual or Psychological: The need to change Section 375 of the IPC, 1860
# Dying Declaration by Rape Victims
# Need on capital punishment in the context of rape
# Women and Violence
# Women and Violence part-11
# Human Rights Violations-'An Anathema To Society'
# Subjugation of women rights lead to violation of human rights
# Crime Against Women & its Impact on Them
# Accomplice Evidence In Sexual Offences
# Eve teasing In India And Tortious Liabilities
See Lokita sarkar, “Occasional Paper on Women’s Movement and the Legal Process”, available at : http://www.cwds.org
# Flavia Agnes,“Law, Ideology and Female Sexuality-Gender Neutrality in Rape Law”, Economic and Political Weekly 844, 2002
# Supra note 3
# 84th report on Rape and Allied Offences: Some questions of Substantive Law, Procedure and Evidence
# AIR 1958 PH 153
# S 114 – Presumption as to absence of consent in certain prosecutions for rape- “In a prosecution for rape under clause (a) or (b) or (c) or (d) or (e) or (g) of subsection (2) of Section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.”
# S 327(2) states that “. . .the inquiry into and trial of rape or an offence under S 376, 376A-D of the IPC shall be conducted in camera.”
# Proviso to S 146 states that “ in a prosecution for rape or attempt to commit rape,it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character.”
# 1981 AIR 559
# 1983 AIR 753
# Rameshwar v. The State of Rajasthan,  S.C.R. 377
# State of Maharashtra Vs. Chandraprakash Kewalchand Jain 1990 (1) SCC 550
# State of Punjab v Gurmit singh and Others 1996 AIR 1393
# State of Karnataka v Krishnappa 2000 CriLJ 1793
# State of A.P. v. Bodem Sundara Rao 1996 AIR 530
# AIR 2005 SC 222
# supra note 4
# 1998 CriLJ 2428 Del HC
# Sakshi v Union Of India AIR 2004 SC 3566
# Ibid 17
# Detailed proposal
# R v r  1 A.C. 599
# Bodhisattwa Gautam v Subhra Chakraborty 1996 AIR 922
# supra note 9
# 1967 AIR 63
# AIR 1996 SC 1393
# Cite NCRB
# See Crime in India, 2009 Snapshots, “Trends of Major crime heads (1953-2009)
# See Crime in India, 2009, “Incidence and Rate of Violent crimes during 2009”
# See Crime in India, 2004, “Crime Clock”, at p.35
# Supra note 6
# 1995 SCC (1) 14
# The Chairman Railway Board and Others v Mrs Chandrima Das and Others AIR 2000 SC 988