You are on page 1of 25

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 2 of our !onstitution. "o truly understand and analyse the laws relating to rape and other se#ual 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. $omen, regardless of their age and social status form an integral part of society and protecting them from se#ual humiliation and degradation is the responsibility of society and the legal system within which it operates. "he Indian %enal !ode &'( of )*+, was enacted in the year )*+ but the provision relating to Rape embodied in -ection ./( and ./* has remained substantially similar since the enactment. Landmar0 cases such as the 1athura Rape !ase and the resulting %ublic campaign against the -upreme court judgment in the case have led to a vibrant $omen2s movement thereby mounting pressure on the 3nion 4overnment to ta0e stoc0 of the e#isting provisions of the !ode pertaining to Rape and ma0e necessary amendments. Recommendations contained in voluminous Law commission Reports and 5ills tabled in the %arliament have reviewed the position of law on the subject and suggested necessary changes for the law to 0eep pace with the demands of contemporary society.

6owever, on a closer e#amination, 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. "his 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. "he 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 bul0 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. $hile preserving the basic human rights of women is of paramount importance, the law should also ma0e provisions for cases of 7frame8 ups9 and wrongful implication of innocent men. %ure gender neutrality is neither feasible nor desirable in the Indian setting. "he paper shall also evaluate the pros and cons of a gender8neutral rape law and suggest the most viable solution in the author2s opinion.

I. History Of Rape Law In India

"he history of Rape law in India begins with the enactment of the Indian %enal !ode in )*+. "he history, changes and current position may be e#amined under the following headings: A, Law commission Reports 5, Landmar0 judgments of the ape# !ourt which provided an impetus to the $omen2s movement for reform !, %roposed changes in the form of 5ills tabled before the %arliament ;, -ubse<uent Amendments to the substantive and procedural laws concerning Rape

A)

The

Law

Commission

Reports

Harbingers

of

change?

"here are ' major Law commission reports which address the law on Rape8 while two Reports were recommendations on the I%! in general within which the provision of rape was discussed, two e#clusively dealt with reforms related to rape. :

i, ii, iii, iv,

'2nd )'th (*th /2nd

Law Law Law Law

commission commission commission commission

report, report, report, report,

=/ =)+ ==/ 2+++

>n perusal of the aforementioned Reports, it is found that the same thread of issues and arguments runs through all the Reports. "he statutory definition of the term 7Rape9 under the I%!, defining

7consent9, the weight attached to the testimony of the %rosecutri# and the necessity of corroboration, deliberating on whether to ma0e the offence gender neutral and amending procedural laws to ma0e the "rial procedure more sensitive and less traumatic for the victim are among the issues ta0en up for consideration in the various reports of the Law commission on Rape. ?ach 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 5ills presented to %arliament. As a result, the law in this regard still remains ineffective and in need of reform to a great e#tent. 6owever, the !riminal law &Amendment, 5ill, 2+ + which is discussed in the latter half of the paper is a welcome step in rethin0ing the law on se#ual violence. The 4 nd Report of the Law Commission in !"#! was the first step towards e$a%&ation and reform of the Rape %aws which had remained &nto&ched since the year !'()* The Report made a $a%&ab%e contrib&tion by recommending the insertion of new pro$isions to tac+%e cases of ,C&stodia% Rape- in which women are compe%%ed to s&bmit to se.&a% interco&rse by the man in whose c&stody they may be* -uch submission does not amount to consent and the !ommission recommended a penal provision to punish such 7reprehensible conduct9 of public servants by the addition of -ection ./*! to the !ode. The Commission was against crimina%i/ation of 0arita% Rape b&t recommended pena%i/ation of se.&a% interco&rse with a chi%d1wife a%beit with her consent* @or the purpose of punishment, the !ommission provided for two age brac0ets i.e between 28 ( and under 2 with stricter sentences where the victim

belonged to the second category. ' years Rigorous imprisonment was suggested to ma0e

punishments harsher and more deterrent. "he Report discussed the applicability of -ection =+ to 7consent9 of a woman under -ection ./( and called for widening the consent clause under this section. A) The 0ath&ra Rape Case : 2id it mar+ the watershed in the %aw on Rape? "he year =/= mar0ed the beginning of the $omen2s 1ovement for reform which was centered around the Anti8Rape !ampaign. "he decision of the Ape# !ourt in the landmar0 1athura Rape case was vehemently criticised and galvanised the public campaign for reform of the obsolete law of rape in the I%!. Against this bac0drop of mounting public pressure, the Law !ommission came out with its '4th Report which dealt e#clusively with Rape and sought to address the issues raised particularly after the 1athura case and in a way correct the injustice which was done by the !ourt in this case.

"he 1athura rape case played an important role in the realisation of the need to sensitiAe the law as well as the attitude of the Budiciary towards such cases to avoid the victim of the crime from being victimised again by the !ourt and the loopholes in the law. In this case, 1athura a tribal girl aged '8 * was raped by two policemen within the police station. "he -essions judge ac<uitted the accused and held there was no 7satisfactory9 evidence, medical or otherwise to ma0e out the offence of rape. 1athura was termed a 7shoc0ing liar9 who was 7habituated to se#ual intercourse9 and there was a world of difference between rape and se#ual intercourse which in the present case was with the %rosecutri#2s consent. >n appeal, the 6igh !ourt reversed the order of ac<uittal and convicted the accused on the grounds that 7consent9 and 7passive submission9 do not amount to the same thing.

6owever, the decision of the 6igh !ourt was reversed by the Ape# !ourt which a<uitted the accused ta0ing into consideration the fact that 1athura had not 7raised any alarm for help9 and the 7absence of any injuries or signs of struggle9 on her body. "he !ourt ruled that the alleged intercourse was a peaceful affair and with her consent and the onus was always on the %rosecution to prove ingredients of the offence beyond reasonable doubt which was not so in the 1athura case. "he judgment was received with shoc0 and outrage at. An 7>pen Letter9 was subse<uently addressed to the !hief Bustice of India by four eminent law teachers, urging for a rethin0 on the decision and the prevalent law and highlighting the injustice done by the judgment. "he authors of the letter viewed the decision as a sacrifice of basic 6uman rights and a blatant violation of the Right to Life under Article 2 of the !onstitution of India with complete disregard for the socio8economic and legal awareness of the victims of such a crime. "he 1athura decision outcry coupled with the intensification of pressure by the legal fraternity, social organiAations and the general public led to the )'th Report and eventually the !riminal Law &Amendment, Act, =)..

"he )'th Report on Rape and Allied offences focussed on the controversial 7consent9 issue while emphasiAing that consent was an antithesis of rape and consent must be real and not vitiated by any duress. -ubmission to intercourse or a mere act of helpless resignation in the face of inevitable compulsion could not be deemed to be consent. "he Report recommended changes in procedural laws as well especially in the area of medical e#aminations 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 Ana%ysis of %andmar+ decisions 3ost10ath&ra It is interesting to note that the consent vs submission debate which was the main ground for ac<uittal of the accused in the 1athura case had already been discussed and the issue clarified in a decision of the %unjab 6aryana 6igh !ourt It was laid down in Rao 6arnarain -ingh -heoji -ingh vs "he -tate , 7A mere act of helpless resignation in the face of inevitable compulsion, <uiescence, non8resistance, 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.9 !onsent as a defence to a charge of rape re<uires voluntary participation after the e#ercise of intelligence based on 0nowledge of the moral <uality of the act and the free e#ercise of choice between resistance and assent. "here is a difference between consent and submission. ?very consent involves submission but not vice8versa. !onsent 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 one2s will. !onsent therefore implies the 7e#ercise 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.9 A reading of this decision naturally leads to <uestioning the correctness of the 1athura case judgment. If case law had addressed the 7consent9 issue ade<uately had the !ourt should not the !ourt not erred in ac<uitting the accused notwithstanding that the decision

referred to in this case was not pronounced by the Ape# !ourt itself but a !ourt subordinate to itC

4) 5.amining the Amendments in the %aw post 0ath&ra : Ha$e they ser$ed the desired p&rpose? "he !riminal Law &Amendment, Act, =). brought about major changes in the laws on Rape. 6itherto, rape of a woman was treated as an 7ultimate violation of the self9. -uch a narrow and conservative approach ignored the 6uman rights violation aspect and e<uated Rape with loss of chastity and diminishing prospects of the victim2s marriage and future and the accompanying social stigma or ostracism in some cases. "he Act of =).

attempted to loo0 upon Rape as a heinous crime which is traumatic for a woman and results in violation of her rights along with humiliation and degradation. -ome of the important changes brought about by the Act to strengthen both substantive and procedural law provisions can be summed up as below :

&i, 5urden of proof of innocence on the accused: "he ?vidence Act was amended by adding ' A for drawing a presumption as to want of consent of the woman in case of

a prosecution for Rape under -ection ./* &2, &a,, &b,, &c,, &d,, &e, and &g,.

&ii, "rial in camera : - .2/ of the !riminal %rocedure !ode was amended by insertion of -ubsection 2 providing for in camera trials and prohibition of publication of trial proceeding without the consent of !ourt in rape cases.

&iii, %rohibition of disclosure of identity of the victim : under - 22) A of the I%!.

&iv, !ustodial Rape : A new category of offences under -./*58; has been created to penaliAe persons ta0ing undue advantage of their authority and obtaining consent of a woman to se#ual intercourse under compulsion

&v, !haracter assassination of %rosecutri# is prohibited: by insertion of a %roviso clause to - '* of the ?vidence Act vide the ?vidence &Amendment, Act, 2++2 which prohibits putting forth of <uestions about the %rosecutri#2s character in cross e#amination.

&vi, 1inimum punishments for rape have been enhanced to / years and + years under -./* & , and &2, respectively. "he Act was a welcome change in some respects but it failed to address formidable issues which still came up before the !ourt in rape cases. "he definition and scope of the term 7penetration9, corroboration, consent and marital rape largely remained grey areas. "here is abundant case law on the points mentioned above, however, a statutory provision or an amendment is re<uired to clarify and crystalliAe the law on these points.

In Rafi< v -tate of 3%, the <uestion before the !ourt was whether absence of injuries on the %rosecutri# is fatal to the %rosecution and whether corroboration of her testimony is re<uired in such a case. "he -upreme !ourt laid down that corroboration as a condition for judicial reliance on the testimony of a prosecutri# is not a matter of law, but a guidance of prudence under given circumstances.

In 5harwada 5hoginbhai 6irjibhai vs -tate >f 4ujarat, the -upreme !ourt held that 7!orrboration is not a sine8<ua8non for conviction in a rape case. In the India setting, refusal to act on the testimony of a victim of se#ual assault in the absence of corroboration, is adding insult to injury. @urther, viewing the evidence of the victim of rape with the aid of doubt8tinged glasses is to justify the charge of male chauvinism in a male dominated society. "hus there is great weight attached to the evidence of a victim of a se#ual offence since a woman, especially in our tradition bound society will rarely ma0e a false allegation for fear of being stigmatiAed or losing her reputation and ruining her prospects of marriage and being considered promiscuous. "he corroboration rule was followed by the !ourts in a slew of cases but is yet to find its place in the statute boo0 s."

"he judgments passed post the 1athura campaign and the =). Amendment are a mi# of positive and negative ones. $hile the Budiciary displayed sensitivity in a number of rape cases brought before it, there are a substantial number of cases where the attitude of the !ourt and the leniency in punishing the offenders is disheartening and outrageous. "he !ourts were warming up to the fact that in a rape trial, the %rosecutri# was a 7victim9 of the crime and she was not to be treated on par with an accomplice. "he period ==+82+++ witnessed several cases where the -upreme !ourt stepped in and reversed the unjust ac<uittals by the lower !ourts. "he Ape# !ourt criticised the insensitive attitude of the "rial !ourts which failed to consider human psychology and behavioural probabilities in evaluating evidence resulting in miscarriage of justice. "he corroboration rule was reiterated and emphasis was laid on the fact that minor discrepancies in the statement of the %rosecutri# should throw out an otherwise reliable

prosecution case. !orroborative evidence is not an imperative component of judicial credence in every case of rape unless there were compelling reasons which necessitated loo0ing for corroboration. "he !ourts could not cling to a fossil formula and insist upon corroboration. "he 6&rmit 7ingh case was undoubtedly a victory for the $omen2s 1ovement but a close study of several decisions of the !ourts reveals a disturbing trend8 in a majority of the cases,the "rial courts impose a severe penalty on the accused and on appeal to the concerned 6igh !ourt, the sentence of punishment is almost always mitigated.

, In one case the 6igh !ourt reduced the sentence of + years RI imposed by the "rial !ourt on the accused for an offence under - ./* I%! to ' years RI without stating any 7special9 and 7ade<uate9 reasons as re<uired under - ./* &2,. "he -upreme !ourt restored the sentence of the "rial court ta0ing into account the heinous nature of the crime committed on a girl of / and the cogent medical evidence in the case. "he insensitivity of the 6igh !ourt came under fire. "he !ourt made it clear that the magnitude of punishment should be in proportion to the gravity of the offence. "he !ourt2s sentence must answer the public cries for justice and reflect the public abhorrence of the crime committed. "he 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. "he 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. -imilar views were e#pressed by the Ape# !ourt in 7tate Of 0adhya 3radesh $s

4a%& where the !ourt criticiAed the ridiculously low sentence imposed by the 6igh
!ourt and disagreed with its 7misplaced sympathy9. !ase law might indicate the increasing sensitivity of the Ape# court to such cases but it is disturbing to see the lac0 of uniformity or consistency in the approach and decisions of the !ourts. "hough principles on contentious issues were laid down in many cases, Rape still remained in the realm of conservative notions of a male8dominated patriarchal society. 3nderlying attitudes and the balance of power between the genders called for an evaluation. "he period =).82+ has seen little reform in the area of Rape law. "he !riminal Law

&Amendment, Act, 2++( and the ?vidence &Amendment, Act, 2++2 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, -e#ual intercourse by a man with a woman against her will

b, 6er lac0 of consent %enetration is sufficient to constitute se#ual intercourse necessary to the offence of rape, as per the ?#planation to - ./(. 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. "he narrow interpretation given by the !ourts to the term penetration was the subject of consideration of the (*th and the /2nd Law !ommission Reports and was widely debated by the $omen2s organiAations, lawyers and social activists. "hey pressed for moving beyond the restrictive interpretation and widening the scope of the section to include all forms of penetration within its ambit. "he e#pansion of the definition of Rape was argued at length in -mt. -udesh Bha0u vs D.!.B. And >thers.

"he main <uestions which came up for consideration before the !ourt were whether 7Rape9 as defined in -./( of the I%! is confined to only penile penetration of the vagina or it also includes penetration of a bodily orifice &vaginaEanusEmouth, by a penis, part of the body or an objectC It was contended that since the words 7se#ual intercourse9 and 7penetration9 were not defined anywhere in the !ode, it would be unjust for the !ourt to adopt an arbitrary interpretation of the terms. "he ;elhi 6igh !ourt, however refused to accept an 7artificial e#tension9 of the statutory definition of Rape and held that it was based on the widely accepted defintion of 7se#ual intercourse2 under !ommon Law, which was confined only to penile8vaginal penetration. "he !ourt erred in its decision in the case, in my opinion. It failed to ta0e note of the alarming increase in the number and the variety of se#ual abuse in the country with the changing times. "he !ourt overloo0ed the larger issues of degradation, humiliation, trauma and violence a woman was e<ually subjected to in case of penetration by other parts of the body or foreign objects. "he accused would be liable for 7outraging of modesty9 under - .(' or for 7unnatural offences under - .// for such se#ual offences. %erpetrators thus escaped with lighter sentences for offences under these -ections. C) The Crimina% Law 8Amendment) 4i%%9 )!) : 5$a%&ating the $ario&s pro$isions "he penetration debate has occupied centre8stage in the Rape campaign and continues to do so. It has been discussed in the /2nd Report of the Law !ommission, which was prepared on the directions of the -upreme !ourt as a result of a writ petition filed by one -a0shi &a women2s organiAation, before the -upreme !ourt for directions concerning the

definition of 7se#ual intercourse9 in -ection ./( of the I%!. "he organiAation formulated 7precise issues9 in its petition which were then considered by the Law !ommission in the form of recommendations in its report. -ome of the recommendations were incorporated in the !riminal Law &Amendment, 5ill, 2+ +. "he Report recommended substitution of the term 7 -e#ual assault9 for 7Rape9 and including all 0inds of penetration in the vagina, anus or urethra of another whether by a part of the human body or an object. "he Report recommended insertion of a new -ection ./* ? to be named 7unlawful se#ual contact9. It was against a gender neutral law but highlighted the need to amend the law to punish child se#ual abuse. !riminaliAation of 1arital Rape would amount to 7e#cessive interference in the marital relationship9 as stated in the Report. "he 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. & @emale police officers should record the @IRs of the victims of rape under *+ of the !riminal %rocedure !ode, the medical

e#amination of the victim shall be conducted by a female registered medical practitioner under - *'A without delay and a detailed medical report was thereafter to be submitted to the 1agistrate. "he Report recommended deletion of - (( &', of the Indian evidence act regarding impeaching the credit of a witness and corresponding changes in - '* of the Act. , Post the 172nd Report of the Law Commission, there were important amendments made in the procedural laws : &i, (( &', of the Indian ?vidence Act was omitted vide the Indian ?vidence

&Amendment, Act, 2++2. %rior to its omission the subclause permitted the man

prosecuted for rape to show that the %rosecutri# was of generally immoral character so as to impeach her credit as a witness. "he -upreme !ourt in 4urmit -ingh2s case e#pressed strong disapproval of this tendency of the !ourts in casting a stigma on the character of the %rosecutri# which often discouraged victims from reporting cases of rape. "he !ourts were e#pected to e#ercise self8restraint while recording findings which had repurcussions on the future of the victim and society as a whole. "he !ourt ruled that even though the victim as 7habituated to se#ual intercourse9, it could not be inferred that she was of a 7loose moral character9. -he had a right to privacy and to refuse to submit herself to se#ual intercourse with anyone despite her promiscuity in se#ual behaviour in the past. -he was not to be treated as a 7vulnerable object9 or a 7prey9 for se#ual assault or as an accomplice to the crime. "he deletion of this clause removed the hardship hitherto faced by the %rosecutri# as a result of doubts cast on her character during the trial.

&ii, A corresponding proviso was also added to - '* of the ?vidence Act which made it clear that in a prosecution for rape, it shall not be permissible to put <uestions in the cross e#amination of the %rosecutri# as to her general immoral character. "hese changes were introduced to ma0e the trial more humane and less humiliating for the victims.

&iii, "he !riminal %rocedure !ode was amended vide the !riminal Law &Amendment, Act, 2++( to provide for a medical e#amination of the accused and the %rosecutri# without delay, under - (.A and - *'A respectively. "he e#amination 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 e#amination, containing particulars such as the

victim2s age, mar0s of injury on her person, her mental condition etc and forwarded to the 1agistrate.

"he various Reports, debates, campaigns and case law eventually culminated in the drafting of the !riminal Law &Amendment, 5ill, 2+ +. "he main features of the 5ill are discussed and reviewed hereafter.

&i, -ubstitution of 7se#ual assault9 for rape : "he 5ill see0s 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 ) : "his would be a positive step and curb the increasing se#ual e#ploitation of children.

&ii, 1arital Rape ?#ception : "he 5ill fails to cater to the long standing demand of criminaliAing marital rape. "he -e#ual >ffences Act of ?ngland has done away with this e#ception after the decision in R v R. A husband and wife are now treated as e<ual partners in marriage and it is unacceptable that by marriage the wife submits herself irrevocably to se#ual intercourse in all circumstances. "his e#ception is an anachronism in today2s setup. 1arital Rape is e<ually traumatic for the victim and not criminaliAing it amounts to violation of the Right to life enshrined in Article 2 of the !onstitution since Rape is a crime against basic 6uman Rights and the Right to Life. "he 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.

1arriage cannot and should not provide husbands with a 7licence to rape9 their wives. "he 5ill proposes to enhance the punishment provided under - ./*A of the I%! for se#ual intercourse with a judicially separated wife, from 2 years to a minimum of . years.

&iii, "he 5ill see0s to add several new clauses to - ./* &2, of the I%!. It penalises commission of se#ual assault on a woman suffering from mental and physical disability, commission of persistent se#ual assault and commission of se#ual assault by a man being in a position of economic,social or political dominance on a woman under such dominance. "hese are welcome proposals but terms li0e 7persistent se#ual assault9 and 7economic, political, social dominance9 need to be defined and clarified.

&iv, 4ender Feutrality : "he 5ill does not support a gender neutral rape law. $hile a gender8specific law leaves out a category of vulnerable persons li0e transgender and 1-1s 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 ma0ing 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 se#ual offences.

&v, "he term 7consent9 needs to be defined in the Act as the very definition of the word has been debated in many cases before the !ourts. An e#planation should be added to the

definition to differentiate between consent and mere passive submission. "he definition laid down in the Rao Harnarain 7ingh 7heo:i 7ingh $s The 7tate by the %unjab 6aryana 6igh !ourt has been followed by the -upreme !ourt in many subse<uent cases and would be the most appropriate and comprehensive definition to incorporate in this -ection.

&vi, Relation between - ./* and - .(' : -ection .(' penaliAes 7outraging the modesty of a woman9. "he 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 0nowledge that her modesty was li0ely to be outraged. $hat constitutes 7modesty9 of a woman came up for consideration in a number of cases. In 7tate of 3&n:ab $ 0a:or

7ingh, the <uestion that arose before the !ourt was whether a seven and a half month
old baby girl possessed 7modesty9 which was liable to be outraged as defined in this section. "he !ourt held that the essence of a woman2s modesty is her se#, whatever here age may be and therefore even a seven and a half month old girl would possess modesty capable of being outraged. "he punishment accorded under this section is severe and the ma#imum term which can be imposed is 2 years. It covers cases of non8penile penetration and a range of se#ual behaviours and assaults such as with foreign objects or other parts of the body. "he failure to include these penetrative acts within the definition of Rape has resulted in the sweeping away of many heinous se#ual assaults under the nomenclature of 7outraging modesty9 and resultantly milder punishments. "he current scheme of the !ode contains provisions relating to se#ual offences and assaults scattered over -ections .(', ./(8.//

and (+=. "he provisions call for streamlining this haphaAard distribution and bringing all forms of se#ual 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 !ode. "he stringency of punishments should be proportionate to the intensity and severity of the offence. Accordingly, a scheme may be proposed as under:

4rade I G Herbal se#ual assault, ?ve teasing, 1olestation

4rade II G3nlawful se#ual contact which includes touch based offences and -e#ual harassment at the wor0place

4rade III8 All forms of penetrative acts li0e Rape and -e#ual abuse of 1inors

4rade IH8 Aggravated se#ual assaults ;o&%d the s&bstit&tion of ,Rape- with ,7e.&a% assa&%t- di%&te the serio&sness of the crime? "his <uestion has been raised with reference to the recommendations in the /2nd Law commission report and the 5ill of 2+ +. @rom the time of the enactment in )*+, the term Rape has been synonymous with a crime wrea0ing devastation and degradation on the victim2s honour and resulting in traumatic effects with the conse<uent loss of he chastity and jeopardiAing the prospects of her marriage. >nly in the last few decades, have we witnessed a gradual shift from viewing Rape as an 7the ultimate violation of self9 to 7violation of human rights of a woman9.

"he substitution is re<uired because the traditional definition of rape which is based on the common law one &and restricted to penile8vaginal 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. "he safest solution, in my opinion would be to increase public awareness of the law relating to rape and other se#ual offences and the punishments prescribed under the various offences before gradual shift in terminology. "he se#ual offences could all be clubbed into a separate chapter and then the gradation system could be applied as enumerated above. &vii, >n the procedural side, the 5ill ma0es useful recommendations concerning recording of statements of the victims, @irst Information Reports and medical e#amination. It is important to note that ;elay in filing a @irst Information Report &@IR, in rape cases is not material and fatal to the %rosecution case if properly e#plained. "he !ourt 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. Recommendations "he crucial <uestion is what measures can the law ta0e to ensure that justice is done in cases of se#ual assault. Is the law as it stands in the statute boo0 today ade<uate to deal with the heinous crime of rape and give the offenders the punishment they deserveC Among the myriad recommendations of the Law !ommission in its comprehensive reports why have only a handful ta0en the shape of amendmentsC

"hus the underlying <uestion is why the laws have remained largely ineffective in

tac0ling rape and allied offences. A loo0 at the !rime -tatistics of the Fational !rime Records 5ureau, 2++= reveal the dismal conviction rate of rape cases and the increasing rate of the crime. Trends Obser$ed In Rape In India 8!"<=1 ))") 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. >n the basis of data collected from =/ to the latest figures generated in 2++= on various parameters of the crime of Rape, the following conclusions can be drawn : i, "he rate of rape in the country is on the rise. @igures indicate a /*+.'I change in the percentage of cases in 2++= over =(.. ii, As per 2++= statistics, crimes against women contribute appro#imately =.*I to I%! crimes, with Rape contributing to over I. "he number of reported cases has increased to from ),.(= in 2++( to 2 ,.=/ in 2++=. "he conviction rate is pegged at a dismal 2/.)I of the =2I of cases charge sheeted. iii, -tatistics show that in India a rape is committed every 2= minutes. iv, 1adhya %radesh continues to be the -tate with the highest number of cases of rape, closely followed by 3ttar %radesh, $est 5engal and ;elhi. v, 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 brea0ing from the shac0les of public humiliation, family pressures and the stigma traditionally associated with the offence of rape. 6owever, 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 se#ual assault. In 2e%hi 2omestic ;or+ing ;omen>s ?or&m $s @OI9 the -upreme !ourt laid down broad guidelines to deal with rape cases. "he guidelines suggested constitution of a !riminal Injuries !ompensation 5oard 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. "he <uestion of awarding compensation to rape victims arose before the Ape# !ourt in the Chandrima 2as case wherein the !ourt recognised the right of a foreign national to live with dignity under Article 2 of the !onstitution which applies to non8citiAens as well. "he -tate 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. "he !ourt upheld the decision of the Dol0ata 6igh !ourt awarding the victim compensation of a sum of ten la0hs and held the 3nion 4overnment vicariously to pay damages for the heinous act by the Railway employees. "he -upreme !ourt displayed the sensitivity re<uired in this case and the punishment and award of compensation was a step forward in the movement for reform of Rape Law. 6owever, unless punishments are rigorously enforced and the tendency of the !ourts to show leniency towards Buvenile se#ual offenders is not done away with, the dastardly act of rape cannot be dealt with effectively. "he need of the hour is a more robust investigative machinery to handle such cases. "he forensic evidence needs to be

protected considering the weight attached to medical evidence in a case of rape. "here is an urgent re<uirement 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 e#amination of the victim. 1edia should be specially sensitive while reporting such cases. "hey are duty8bound to protect the victim2s identity and prevent her social stigmatiAation.

COACL@7IOA
"he above analysis of cases and laws shows that the present state of law relating to se#ual offences in India is haphaAard and in need of serious reform. %unishments should be enhanced, both in terms of the length and nature of imprisonment and the monetary aspect. "he law be amended to ma0e the offender compensate the victim out of his poc0et J this might help in creating a deterrent effect for future crimes. It is only when the %olice, the Budiciary, the 1edia and the general public come together, wor0 in conjunction with each other other and discharge their respective roles that the perpetrators of se#ual offences can be brought to justice, deterred in the future and the victims can attain closure.

KKKKKKKKKKKKKKKKKKKKKK -ee Lo0ita sar0ar, 7>ccasional %aper on $omen2s 1ovement and the Legal %rocess9, available at : http:EEwww.cwds.org L @lavia Agnes,7Law, Ideology and @emale -e#uality84ender Feutrality in Rape Law9, ?conomic and %olitical $ee0ly )'', 2++2

L -upra note . L )'th report on Rape and Allied >ffences: -ome <uestions of -ubstantive Law, %rocedure and ?vidence L AIR =() %6 (. L' G %resumption as to absence of consent in certain prosecutions for rape8 7In a

prosecution for rape under clause &a, or &b, or &c, or &d, or &e, or &g, of subsection &2, of -ection ./* of the Indian %enal !ode, where se#ual intercourse by the accused is proved and the <uestion is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the !ourt that she did not consent, the !ourt shall presume that she did not consent.9 L - .2/&2, states that 7. . .the in<uiry into and trial of rape or an offence under - ./*, ./*A8; of the I%! shall be conducted in camera.9 L %roviso to - '* states that 7 in a prosecution for rape or attempt to commit rape,it shall not be permissible to put <uestions in the cross8e#amination of the prosecutri# as to her general immoral character.9 L =) AIR ((= L =). AIR /(. L Rameshwar v. "he -tate of Rajasthan, M =(2N -.!.R. .// L -tate of 1aharashtra Hs. !handrapra0ash Dewalchand Bain ==+ & , -!! ((+ L -tate of %unjab v 4urmit singh and >thers ==* AIR .=. L -tate of Darnata0a v Drishnappa 2+++ !riLB /=. L -tate of A.%. v. 5odem -undara Rao ==* AIR (.+ L AIR 2++( -! 222

L supra note ' L ==) !riLB 2'2) ;el 6! L -a0shi v 3nion >f India AIR 2++' -! .(** L Ibid / L ;etailed proposal L R v r M ==2N A.!. (==

L 5odhisattwa 4autam v -ubhra !ha0raborty ==* AIR =22 L supra note = L =*/ AIR *. L AIR ==* -! .=. L !ite F!R5 L -ee !rime in India, 2++= -napshots, 7"rends of 1ajor crime heads & =(.82++=, L -ee !rime in India, 2++=, 7Incidence and Rate of Hiolent crimes during 2++=9 L -ee !rime in India, 2++', 7!rime !loc09, at p..( L -upra note * L ==( -!! & , ' L "he !hairman Railway 5oard and >thers v 1rs !handrima ;as and >thers AIR 2+++ -! =))

You might also like