Things You Should Know About Rape Laws in India

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1. INTRODUCTION

In the case of State of Punjab vs. Gurmit Singh & Ors, the Supreme Court made the following observation: “Rape is not only a physical attack; it frequently destroys the victim’s entire psyche. While a rapist defiles a defenseless female victim’s very soul, a killer destroys the victim’s physical body.

After the Indian Penal Code, of 1860, which included Sections 375 and 376, was passed, the history of rape legislation in India began. Proper identification of rape is lacking in the original IPC 1860, and most survivors were not counted. Numerous revisions have been made to the IPC’s rape laws. The final change was made in response to the Unnao-Kathua Rape Case, and this trip began with the Mathura Case. To make a difference and combat sexual offenses against women, our legislators introduced progressive measures. That a woman died to bring about each amendment, however, is disheartening. Comparing the rape laws before and following the Criminal Law is the main goal of this study.

2. CRIMINAL LAW AMENDMENT BEFORE 2013

2.1. CRIMINAL AMENDMENT ACT,1983

A change to the country’s penal code was brought about by the well-known “Tukaram and Others vs. State of Maharashtra” case, sometimes referred to as the Mathura Rape Case, which sparked a nationwide outcry and eventually brought together several feminist organizations. On March 26, 1972, two cops sexually assaulted sixteen-year-old Mathura, a Dalit girl. Eventually, after a great deal of struggle, the police were accused of something. The session court found no fault with the cops. In 1979, the Supreme Court overturned the High Court’s ruling and cleared the police officers after they had been found guilty by the Nagpur Bench of the Bombay High Court on appeal. It was said that Mathura engaged in “habituated sexual relations.” Since the girl did not sustain any injuries and the occurrence was deemed to be a “Peaceful Affair,” the nation’s highest court did not find her credible. The victim’s “passive submission” was interpreted by the court as “consent,” which drew harsh criticism. Therefore, major modifications were introduced by the Criminal Law (Amendment) Act, of 1983.

The following headings will help us comprehend this amendment:

2.2. DEFINITION OF RAPE

The legislation defined rape and acknowledged the coercive power that comes with being in a position of authority. A male must have sexual relations with a woman for it to be considered a rape offense under Section 375 of the Indian Penal Code, 1860. Six situations qualify as rape.

These are:

To begin with, she didn’t want to do the deed;
Secondly, against her will;
Thirdly, after gaining permission by making the lady fearful of harm or death;
Fourth, with her permission granted while falsely representing that the man is her spouse;
Fifth, permission is granted when mentally ill, involuntarily intoxicated, or under the influence of any depressing, unhealthy drug.
Sixthly, when she is less than sixteen years old, with or without her agreement.

There were two cases that weren’t typical:

The first is that penetration is sufficient to count as the sexual contact necessary for the commission of the rape charge.
Two: When a man has sexual relations with his spouse and the woman is not younger than fifteen, it is not considered rape.

Let us examine each of these components in more detail.

2.3. CONSENT OF THE VICTIM

Between “Against her will” and “Without her consent,” there are variances in connotation.” Against her will” refers to having sexual relations with someone against her will and suggests coercion or force. It should be emphasized that an action taken against a person’s will does not always imply that the individual did not provide their consent. The phrase “against her will” has a far greater meaning than the phrase “without her consent.” A deed done against one’s will is always done so without that person’s agreement; however, the opposite is not true. For example, a woman who consents to sexual activity while under the influence of drugs or alcohol is considered to have given her consent, but this does not imply that she was willing.
Regardless of whether consent was given or not, the sixth circumstance—that a male engaged in sexual activity—must be automatically interpreted as rape.

The last scenario pertains to a circumstance in which a woman is unable to provide permission; the other four scenarios deal with situations in which a woman is able to provide consent but it was either not gained or, if it was, it was obtained by deception or force.

2.4. MARITAL RAPE

The amending legislation was heavily impacted by “ancient Indian tradition” when it came to the topic of “marital rape.” It said that if a wife is over fifteen and her husband engages in sexual activity with her, the woman’s permission becomes irrelevant. The ironic aspect is that, in most circumstances, it is almost impossible for a girl under the age of fifteen to give her valued agreement to such an act, despite the expectations of our politicians. The addition of Section 376A, which said that a man might face up to two years in prison if he had sex with his wife during their legal separation, was another change. I felt that the act was less reasonable in its treatment of women in society and was skewed towards one gender over the other. The right to equality is guaranteed under Article 14 of our Indian Constitution, which was disregarded. The idea that marital rape is not as terrible as other types of sexual assault is untrue. Marital rape can have a variety of negative emotional and physical effects.

Physical side effects include lacerations, stiffness, bruises, torn muscles, exhaustion, vomiting, and damage to the anal and vaginal regions.
Broken bones, black eyes, bloody noses, and knife cuts are common injuries sustained by women who are raped and abused.
Vaginal stretching, pelvic inflammation, unintended pregnancies, miscarriages, stillbirths, bladder infections, HIV, STDs, and infertility are among the impacts of gynecology.
PTSD, anxiety, shock, severe terror, sadness, and suicidal thoughts are some of the short-term psychological impacts.
Intimacy issues, depression, disordered eating, sleep disorders, poor self-images, and sexual dysfunction are among the long-term psychological impacts.

2.5. CUSTODIAL RAPE

Section 376(2) was inserted by the Act to impose punishment for rape committed by someone in a position of power. The Act specified “police officer, public servant, person on the management or staff of the jail, or person on the management or staff of the hospital” as the person in power. It carries a ten-year severe prison sentence as the least and a life sentence as the maximum punishment. There were four additional parts added: 376A, 376B, 376C, and 376D. These sections allowed for sexual activity by an authority figure without being considered rape. The following employees are also covered by the idea of custodial rape:

For example, a jail superintendent
On remand, the home’s superintendent
Management or personnel of any government or private hospital;
Management or personnel of any mental health care facilities;
Management or personnel of any rehabilitation facility; officers;
Management or personnel of any juvenile or shelter home; and any other place of confinement designated by law.

2.6. PRESUMPTION OF GUILT

The most contentious provision of the amendment was this one, which placed the burden of evidence on the accused to demonstrate that the sexual activity was carried out with the woman’s agreement. When a victim of rape states that she did not agree to the sexual encounter, the courts assume that she is telling the truth. With the introduction of Section 114-A in the Evidence Act of 1872, the victim’s non-consent was presumed. Generally speaking, though, independent evidence must support the prosecution’s version of events in criminal trials. However, due to the very nature of rape trials, judges are frequently forced to rely on circumstantial evidence because independent witnesses are rarely accessible. In the Bharwada Bhoginbhai Hirjibhai v. State of Gujarat case, the Supreme Court made the observation that “in the Indian setting, refusal to act on the victim of sexual assault’s testimony in the absence of corroboration, is adding insult to injury.”

2.7. IDENTITY OF THE VICTIM

There are many sexists in our culture, and when there is a rape, the victim is sometimes regarded as worse than the offender. Therefore, it was deemed vital to keep the victim’s name a secret to protect both the victim’s present and future. Any person who prints or publishes the name or other information of a victim is punishable under Section 228-A IPC of the Act, unless the victim consents to the disclosure, the victim is a minor or unsound mind, the victim’s next of kin approves, or the court orders it. In rare cases, in-camera sessions are mandated under Section 327(2). It is clear from the foregoing that these were quite drastic modifications made to the nation’s current rape laws. Additionally, it is clear from the above that these were filed especially to close the gap that the Mathura case revealed.

3. AMENDMENTS TO THE INDIAN EVIDENCE ACT: 2002

The Supreme Court received a PIL in 1997 from the NGO Sakshi, situated in Delhi. The Criminal Amendment Act of 1983 has several flaws that the NGO exposed through the PIL. Although character assassination of the victim is forbidden, it is not defined to encompass the victim’s cross-examination, it was argued. Because the victim was afraid of being questioned by the defense attorney, she chose not to report the incident. A man may be tried for rape or attempt to ravish, and in such case, “it may be shown that the prosecutrix was generally immoral,” according to Section 155(4) of the Indian Evidence Act of 1872, which was abolished by the Amendment Act of 2002.

By demonstrating the victim’s “immoral character,” the defense attorneys attempted to undermine the victim’s evidence. Following this Amendment, the victim could not be cross-examined.

4. WHY WAS THE POSCO ACT,2012 INTRODUCED?

The petition also called for a broader definition of “penetration,” encompassing all forms of penetration, such as vaginal, oral, finger-vaginal, and so on. It was brought to light that sexual abuse of children, especially young girls, frequently occurs by methods other than penile or vaginal penetration. These methods include penile/oral, penile/anal, finger/vaginal, and object/vaginal penetration. However, the Apex Court rejected to change the definition of penetration because it believed that doing so would cause uncertainty and anarchy in the legal system. Instead, the court concluded that the parliament, not the court, should take into consideration changes to the current rape statute that would better serve society. This led to the passage of the Protection of Children from Sexual Offenses Act in 2012.

To safeguard children from sexual abuse, the parliament for the first time passed distinct, stricter laws that deal only with the legislative elements that directly address child sexual exploitation and abuse. These laws are less vague and more stringent than previous versions. November 14, 2012, was the day the Act went into effect. Its 46 clauses address how to shield kids from pornography, sexual harassment, and violence. It further stipulates that special courts will be established to handle offenses related to this Act. The IPC previously included a single “Statutory Rape” section that addressed rape of a girl child under the age of sixteen; however, this Act is gender-neutral. It acknowledged sexual offenses against both boy and female children, which had never been done before.

5. CRIMINAL AMENDMENT ACT, 2013

A 23-year-old student studying medicine named Nirbhaya was viciously gang-raped, assaulted, and tortured on a moving bus on the evening of December 16, 2012. She lost her battle for survival on December 28, 2012, and died from her wounds. Protests occurred around the nation in response to this heinous act. The country’s rape laws needed to be changed in addition to the accused being hanged, as demanded by the population. The Late Justice J.S. Verma, the former Chief Justice of the Supreme Court of India, led a three-person committee that was established in the wake of the Nirbhaya event on December 23, 2012. The committee also included Justice Leila Seth, a former High Court judge, and Gopal Subramanium, the former Solicitor General of India. The committee’s recommendations were to make changes to the Criminal Law so that the Legislature could strengthen the laws against rape and other crimes against women. Consequently, the 2013 Criminal Law Amendment was created.

Once more, let’s examine the modification under the following distinct heading:

5.1. DEFINITION

Today’s legislation defines “sexual acts” as any of the following four categories, which are listed in Section 375 of the Indian Penal Code:

(Anus, mouth, urethra, or vagina; penetration of the penis into these areas.)
“Pushing any object or body part (such as a finger) into the urethra, anus, or vagina.”
“Manipulation of any part of a woman’s body to cause such woman to penetrate the vagina, urethra, anus, or any other part of such woman’s body,” according to point c.
The practice of a male placing his mouth near a female’s urethra, anus, or vagina.

With this change, the meaning of the term “Penetration,” which was previously pushed by the NGO Sakshi, situated in Delhi, in its PIL, finally made its way into the actual law. “Penetration,” regardless of the depth or method of penetration, is required to qualify as a rape crime. Section 375’s explanation clarifies that “sexual intercourse” is defined as any penetration of the female by a male organ, regardless of the level of penetration [Tarkeshwar Sahu v. State Of Bihar (Jharkhand)], and that penetration is sufficient in and of itself [Nathu Ram v. State of Haryana]. The requirement that must be met for the offense is “Penetration,” not “Ejaculation.”

According to Section 375, the offender would still be held accountable even if he forced the victim to perform the aforementioned activities with the help of a third party. A threat to commit rape is now illegal as well.

The phrase “When she is unable to communicate her consent” was inserted as the seventh scenario. It addresses all types of consent communication breakdowns, regardless of the underlying cause. A woman who does not physically reject a man’s act of penetrating her penis into her vagina cannot be deemed to have consented to the sexual activity based only on that fact, according to the proviso of Section 375. It is necessary for the consent to be active.

5.2. CONSENT OF THE VICTIM

The sole provision addressing the conditions under which consent would be considered null and void was found in Section 90 of the Indian Penal Code, 1860, prior to the 2013 amendment. Additional circumstances in which permission acquired is not valid include the perpetrator’s fear or misrepresentation of the facts, the consenting party’s insanity, and the consent of a minor. A positive definition was made available by the 2013 amendment. One of the main things this definition emphasizes is the “communication of consent” to a “specific sexual act”. Any verbal or nonverbal communication method can be used to convey a woman’s agreement to do a sexual act, including words and gestures. Even so, a voluntary agreement is essential. The 2013 Amendment changed the concept of consent to explicitly declare that lack of resistance does not equate to consent. Courts used to ask the prosecution for additional proof of non-consent, including physical damage marks, to bolster their cases before the 2013 Amendment.

5.3. OTHER FORMS OF OFFENCES

Following this change, several new offenses will be added. These offenses were not specifically addressed by any law prior to this change. The Criminal Amendment Act contains certain provisions with more severe penalties. These violations are as follows:

According to Section 354 of the Indian Penal Code, 1860, assault or criminal force on a woman with the intent to outrage her modesty is defined.

The Supreme Court decided in the case of Tarkeshwar Sahu v. State of Bihar (Jharkhand) that a woman’s sexual orientation is a factor in her virtue of “modesty”. But there can be no outcry of modesty if a woman is a consenting partner. [State v. Sadanand].

Sexual harassment is covered by Section 354A of the Indian Penal Code, 1860, along with the related punishments.

Several PIL cases brought sexual harassment of a woman to the notice of the Apex Court, especially when it occurred at her place of employment. Ultimately, the Supreme Court addressed this part of the legislative gap by issuing a historic decision in the case of Vishaka v. State of Rajasthan.

Assault or the use of unlawful force against a woman is what Section 354B of the Indian Penal Code, 1860 defines as intentional disrobing of her.

A woman may occasionally be made to strip undressed against her will, which leaves her in a very awkward position. The victim in Damodar Bahera v. State of Orissa had her “saree” taken off by the offender. It is found that they were guilty under sections 354 and 34 of the IPC.

Section 354C of the Indian Penal Code of 1860 pertains to voyeurism.

The goal of this part is to safeguard a woman’s privacy. According to this clause, it is illegal for a man to witness or record a woman doing a private act. Additionally, it stipulates penalties for disclosure to a third party.

Section 354D of the Indian Penal Code of 1860 pertains to stalking.

This section covers two types of stalking: online, through email, or through other electronic media stalking. The first type of stalker is physical. The first instance of cyberstalking was reported by Ritu Kohli in 2001 when she accused Manish Kathuria of following her online. At that time, the IT Act was not yet operative. Section 509 of the IPC was used to justify his detention. Because of this, the IT Act of 2008’s section 66A was altered.

Section 376A of the Indian Penal Code, 1860, outlines the penalties for rape that result in death or a chronic vegetative condition.

In the horrific rape case of Aruna Ramchandra Shanbaug v. Union of India, Aruna Shanboug was permitted to pass away via passive euthanasia after being in a vegetative condition for many years.

Any statement, gesture, or action intended to disparage a woman’s modesty is forbidden by Section 509 of the Indian Penal Code, 1860.

It was declared in the Rupan Deol Bajaj v. K.P.S. Gill case that: “It is an act of insult to the modesty of the woman if the word spoken or the gesture made could be interpreted as one that could shock the sense of decency of a woman.”

Acid Attack, Indian Penal Code, 1860, Section 326A

According to IPC 326A, acid assault is a crime for which there is no bail and no recognition of guilt. In the case of Laxmi v. Union of India, the Indian Supreme Court declared that it is completely forbidden to sell acid over-the-counter.

5.4. DUTY OF PUBLIC SERVANT AND RESPONSIBILITY OF HOSPITALS

A lot of people had harsh criticisms of the police’s performance on December 22, 2012. A public official faces harsh imprisonment for a period of six months to two years along with a fine if he neglects to record information in cases of sexual offenses or deliberately violates the law during the inquiry, according to this amendment. A hospital will be guilty of a serious offense with a one-year sentence and a fine if it neglects to treat the patient medically. Whether they are public or private, hospitals must give free medical care to victims of rape or acid assaults and notify the authorities right once. Under this heading, the following sections are pertinent:

Public servants who disregard legal directives are subject to Section 166A of the Indian Penal Code, 1860.
Section 166B of the Indian Penal Code, 1860 outlines the penalty for failing to provide treatment to a victim.
Code of Criminal Procedure, 1973, Sec. 357C: Victim Treatment [All hospitals are required by law to provide free first-aid or medical treatment to victims of any offense covered by sections 326, 376, 376A, 376B, 376D, and 376E of the Indian Penal Code, 1860; it is not in the survivor’s best interest to report the crime to the police at this time.]

5.5. CHARACTER OF THE VICTIM

It was necessary to introduce strict provisions in this area even if character assassination was forbidden under the prior statute. The use of a victim’s prior sexual history to evaluate whether or not she gave her permission was prohibited by this amendment. In the context of rape, the Indian Evidence Act of 1872 included no explicit clause prohibiting the use of prior sexual history. The Evidence Act of 1872 was amended to include Section 53A, which states that in cases involving sexual offenses and consent disputes, the victim’s past sexual encounters with other individuals or their character are not relevant factors to consider when determining whether or not consent was given.

6. AMENDMENT MADE TO PROSECUTE JUVENILE OFFENDERS

A person who has not reached adulthood is referred to as “juvenile,” meaning that he is not developed enough to comprehend the nature and consequences of his actions. In the Nirbhaya case, of the six accused, one was a juvenile offender, meaning that he was younger than eighteen. Civil society and the media thought that he was the most savage face of the horrific crime. Why not “treat as an adult for an adult crime” was the point of contention. The Juvenile Justice (Care and Protection of Children) Act, of 2015 Act was created as a result of the Juvenile Justice Act being modified. This act divided offenses into three different categories: minor offenses, major offenses, and heinous offenses. When a kid, between the ages of sixteen and eighteen, commits a serious offense that puts them in violation of the law, juvenile justice laws treat them as adults. The Juvenile Justice Board will review the case to determine if the offense was committed by a “child” or an “adult.”

In the Kathua district of Jammu & Kashmir, a girl, eight years old, suffered sexual abuse. She was allegedly repeatedly raped while being held captive at a shrine for several days before being killed. As a result, the Criminal Amendment Act, 2018 was passed, raising the minimum term for the crime of rape against girls in all three age groups. The minimum term for a criminal under the new law is 20 years, instead of the previous 10 years, if the victim is under the age of 12. Execution is the harshest sentence available. In situations when a kid under the age of 12 is the victim of gang rape, the highest punishment is the death penalty and the least is a life sentence (before 20 years).

7. COMPARISON BETWEEN THE AMENDMENTS MADE BEFORE AND AFTER 2013

Based on the aforementioned investigation, it can be concluded that each amendment resulted from a flaw that needed to be addressed. There have indeed been significant and lasting changes to the legislation. While the Amendment of 1983 only made a few minor adjustments to the law as it stood, the Amendment of 2013 pointed out other places where the law on rape needed to be changed. It is extremely evident from the table below:

OFFENCE /ISSUE	LAW BEFORE THE 2013 AMENDMENT	CRIMINAL LAW (AMENDMENT) ACT, 2013
A state official breaking the law	No particular clause, IPC, 1860.	punishable by a harsh fine and a lengthy prison sentence of up to two years.
Rape that puts a victim in a vegetative condition or dies	Murder and rape are seen as distinct crimes. IPC, 1860 states that murder is punishable by life in jail or by death, and rape by seven years to life in prison.	particular offense. Penalties 20 years to life in a harsh jail or to be killed.
Repercussions for gang rape	IPC, 1860 allows for ten years to life in jail as well as a fine.	A victim may be fined up to twenty years to life (a severe form of imprisonment) and get a fair amount of money to cover their medical costs.
Rape by Armed Individuals	No particular clause. Armed individuals are employed by the government. The penalty under IPC, 1860 is a fine and ten years to life in jail.	particular offense. must serve a least of seven years and a maximum of life in hard prison of either sort as punishment.
Hospital’s accountability	No particular clause in the CrPC, 1973, or the IPC, 1860.	subject to a fine of up to one year. All hospitals, public and private, are obligated to give the victim free medical attention in situations of acid attacks or rape and to notify the authorities right away.
Attacks with the help of Acid	No particular clause. Included in severe injuries. The maximum penalty allowed by the IPC, 1860 is seven years in prison.	Particular offense. punishable by up to 10 years in jail or life in prison as well as a suitable payment to cover medical costs.
Punishment for Repeated Offenders	IPC, 1860, makes no mention of this.	particular offense. Either execution or life in jail (hard labor).
Age of Consent	Particular clause, as of the 1983 revisions to the IPC, 1860’s rape legislation.	18 Years
Touching	surpassing the modesty of a lady. Penalties: IPC, 1860, fine and maximum 2 years in jail.	Invading a woman’s privacy: fine and/or a term of one to five years in jail. Up to three years in jail and/or a fine may result from physical contact with unwanted and explicit sexual advances.
Stalking	Not a Particular Clause	specific transgression. A first offense is punishable by a term of one to three years in prison, with bail accepted. The maximum punishment for a second crime is five years in jail (without the possibility of release).
Voyeurism	The Information Technology Act of 2000 does not have any particular provisions that safeguard men and women. Penalties: two years in prison and/or a fine of up to two lakh rupees.	particular offense. solely keeps women safe. For the first infraction, there is a fine and a sentence of one to three years in prison. A jail term of three to seven years is imposed for a second violation.
Other Forms of Rape	If there is no penile-vaginal penetration offense, outraging a woman’s modesty is a crime under IPC, 1860, which carries a maximum 2-year prison sentence and a fine.	Particular offense. punishable by harsh imprisonment for seven years to life.
Protection against the disclosure of the identity of the victim	Given in cases of rape, rape while in custody, rape of a wife who has been granted a court separation, and misuse of authority to secure consent. Penalties consist of a maximum of two years in prison (CrPC, 1973).	Protection also extended to those who were harmed by repeat criminals.
The Requirement to fast track	As per the CrPC, 1973, there is no mandate to expedite instances of sexual offenses.	The trial will take place every day. Within two months of the charge sheet being filed, the trial in rape cases must be finished.
Compensation	A compensation plan for the victims’ rehabilitation must be prepared by the State government. According to the CrPC, 1973, compensation awards must be made by the state or district legal services body.	In addition to what the accused is required to pay, the State may also grant compensation.
History of Previous Sexual Activity or Action	According to the IEA, 1872, there is no explicit clause prohibiting the inclusion of prior sexual history in rape proceedings.	prohibits evaluating the victim’s consent based on their prior sexual experience. refuses to provide information or answer queries about the victim’s prior sexual history or overall immorality during the victim’s cross-examination.
Presumption of Consent	required the rape victim to provide evidence that she did not provide her permission (IEA, 1872).	gives the accused more of a burden of proof to prove that permission was given.
Punishment for Rape	seven years to life in jail and with a fine.	Ten to life in jail and a fine.

8. CONCLUSION

Based on the aforementioned information, we may conclude that the Criminal Amendment Act of 1983 was the first to close the loopholes in the original statute and that future Amendment Acts filled in the gaps revealed by the Amendment Act of 1983. In comparison to its predecessor, the Criminal Amendment Act of 2013 was far more expansive. In addition to broadening the definition of rape and changing its definition, it also brought about several new offenses against women, including rapes that involve means of penetration and other female body parts, harsher penalties for offenders, and new procedural laws about violent crimes. Stated differently, it made an effort to address every relevant issue.

Following the Nirbhaya case, the Indian government announced in the Union Budget for 2013–2014 the establishment of the Rs. 10 billion Nirbhaya Fund, which aims to improve the protection and security of women in public areas. The Act of 2013, on the other hand, was gender prejudiced and disregarded the possibility that a male may potentially fall victim to one of these crimes. The laws concerning incept rape were blatantly disregarded by the legislators. Women now hold a great deal of influence because of this Act. The Delhi High Court’s Justice Kailash Gambhir said that women frequently abuse the criminal laws for rape as a “weapon for vengeance and vendetta” to blackmail and torment their male friends by fabricating cases to extract money or force them into marriage. To address and pursue justice against such horrible offenses, the Act alone is insufficient. Massive expenditures in the construction of the infrastructure required to combat crime must be made by the Indian government, in addition to significant judicial and police system modernization efforts throughout the nation.

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