Laws against rape in India
The history of Rape laws in India begins with the enactment of the Indian Penal Code (IPC) in 1860 (45 of 1860) covered under Sections 375 and 376. According to the original provision as in Section 375, a man is said to have committed rape who except in the case hereinafter excepted, has sexual intercourse with a woman circumstances falling under any of the six following descriptions:
- Against her will
- Without her consent
- With her consent, when her consent has been obtained by putting her or any person whom she is interested in under fear of death or of hurt
- With her consent when the man knows that he is not her husband, and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married
- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance., she is unable to understand the nature and consequences of that to which she gives consent
- With or without her consent when she is under 16 years of age.
For this purpose, penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.
The legacy of IPC 1860 is the shameful history of identifying rape that discounts the majority of survivors. The problem is not sex, it is sexual assault into which penis turns into a weapon.
The following assaults were not counted in the IPC 1860.
The definition of rape with penile penetration of a vagina discounted the female survivors that had been victimized. Some perpetrators use objects such as rods, baseball bats, or other objects that may not be sex, but hate. Someone may use one’s own finger to penetrate
Indian Penal Code exempted rape in marriage from prosecution
The extent of the prevalence of sexual assaults committed on children was underestimated and most perpetrators were not pursued
Males the only possible perpetrators and only females could legally be victims
The definition of rape with penile penetration of a vagina discounted all male victims of incest or other sexual assault.
The rape law under IPC has gone through several amendments. In 1983, the Section 376 (2), that is, Custodial Rape, Section 376 (A), that is, Marital Rape, and Section 376 (B to D), that is, Sexual Intercourse not amounting to rape were added. As per the Criminal Law Amendment Act (1983), revealing the identity of a rape-victim is an offence. Though this act maintains more or less the same definition of rape, it introduces many new categories of offence of sexual intercourse by persons in custodial situation-such as superintendents of hospitals, remand homes, prisons, and police officials-with women in their custody. In cases of custodial rape, burden of proof lies with men and if a woman victim makes a statement that she did not consent, the court would believe that she did not consent.
Punishment in the cases of “custodial rape” or gang rape amounts to the minimum sentence of 10 years, and the offence is cognizable and nonbailable. Sexual intercourse by a man with his wife, who is living separately from him under a decree of separation or under any custom or usage without her consent, is punishable with imprisonment, which may extend to 2 years. This offence is cognizable and bailable.
According to the Supreme Court verdict of 2012 the rape trials must end within 2 months as stipulated under law. The Supreme Court also directed trial courts to “strictly adhere” to existing norms while asking them to rule out the possibility of “maneuvering” through undue long adjournments. Section 309 of the Criminal Procedure Code (CrPC) provides that in every inquiry or trial the proceedings should be held as expeditiously as possible and once the examination of witnesses begins, the same shall be continued on a day-to-day basis till all the witnesses are examined. In cases that come under Section 376 (rape) and related offences under Sections 376 A to D of the IPC, the CrPC stipulates that “the inquiry or trial shall, as far as possible, be completed within a period of 2 months from the date of commencement of the examination of witnesses.” The victim of rape suffers mental and psychological trauma, which must be addressed to provide a helping hand to enable her to cope with the trauma suffered and to tide over her immediate and long-term needs so that she is able to lead a dignified and meaningful life.
Sir Mathew Hale, England’s chief justice during the 1600s stated, “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”
The provision of rape law in the IPC (Section 375 and 376), echoes very archaic sentiments of Sir Mathew Hale, when it mentions as its exception clause – “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.” Law bestows an absolute immunity on the husband in respect of his wife, solely on the basis of the marital relation. It is a nonconsensual act of violent perversion by a husband against the wife where she is physically and sexually abused. Marital rape is far too common in Indian society. The UN population fund states that more than two-third of married women in India, aged 15-49 have been beaten, raped, or forced to provide sex. Article 2 of the declaration of the elimination of violence against women includes marital rape explicitly in the definition of violence against women.
The revolution against marital rape began with women activists in America raising their voices in the 1970s for elimination of marital rape exemption clause and extension of guarantee of equal protection to women. The importance of consent for every individual decision cannot be overemphasized. A woman can protect her right to life and liberty, as well as her body even within the wedlock. As a result, most of the Western countries have declared marital rape unlawful.
The Section 376 in dealing with sexual assault, in a very narrow purview lays down that an offence of rape within marital bonds stands only if the wife be <12 years of age, if she be between 12 and 15 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses the permissible limit there is no legal protection accorded to the wife, in direct contravention of human rights regulations.
The definition of rape (Section 375 IPC) has been criticized for other reasons as well by the Indian and international women’s and children organizations, who insist that including oral sex, sodomy, and penetration by foreign objects within the meaning of rape would not have been inconsistent with nay constitutional provisions, natural justice, or equity. Even international law now says that rape may be accepted as the “sexual penetration, not just penile penetration, but also threatening, forceful, coercive use of force against the victim, or the penetration by any object, however, slight.” Emphasis on these provisions is not meant to tantalize, but to give the victim and not the criminal, the benefit of doubt.
This is an act further to amend the IPC, 1860, the CPC, 1973, the IEA, 1872, and the Protection of Children from Sexual Offences Act, 2012. The definition was expanded to include same-sex crimes and raised the age of consent to age 18.
Amendments to Indian Penal Code
In S.100, 7 th clause is added:
“Throwing/administering or attempting to throw/administer acid which may reasonably cause the apprehension that grievously hurt will otherwise be the consequence of such act”.
After S.166, S.166A has been added which pertains to disobedience and failure to record any information by a public servant
In S.228A, in sub-section (1), for the words figures and letters, “offence” shall be substituted in S.376 (A-E)
After S.326 following sections shall be inserted.
S.326A: Voluntarily causing grievous hurt by use of acid
Whoever causes permanent or partial damage or deformity to any part/s of the body of a person or causes grievous hurt by throwing/administering acid to that person or using any other means.
Imprisonment of either description for a term not <10 years but which may extend to imprisonment for life and with fine:
Such fine shall be to meet the medical expenses of treatment of the victim
Any fine imposed under this section shall be paid to the victim.
In S.354, the punishment of imprisonment up to 2 years is replaced by, not <1-year which may extend up to 5 years. It is outraging the modesty of a woman which has been amended to enhance the punishment. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty. Before: “Punished with imprisonment of either description for a term which may extend to 2 years or with fine or with both.” Offence: Cognizable and bailable. Now: Shall not be <1-year but may extend to 5 years, and shall also be liable to fine” cognizable and nonbailable.
S.354: After S.354, the following sections shall be inserted:
S.354A: Sexual harassment
A man doing any of the following acts:
Unwelcome physical contact and advance involving explicit sexual approaches
A demand/request for sexual favors
Showing pornography against the will of a woman
Making sexually colored remarks, shall be guilty of the offence of sexual harassment.
Offences in clause (1), (2) or (3) shall be punished with R. I. for a term which may extend to 3 years, or with fine, or with both; offence in clause (4) punished with imprisonment of either description for a term which may extend to 1-year, or with fine, or both cognizable and bailable.
S.354B: Assault or use of criminal force to woman with intent to disrobe:
Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked Punishment: Imprisonment of either description for a term which shall not be <3 years but which may extend to seven 7 years, and fine. Offence: Cognizable and nonbailable.
Any man who watches, or captures image of a woman engaging in a private act in circumstances where she would usually have expectation of not being observed either by perpetrator or by any other person at behest of perpetrator or disseminates such image.
On first conviction: Imprisonment for a term which shall not be <1-year, but may extend to 3 years, and shall also be liable to fine, and on second/subsequent conviction: Imprisonment for a term which shall not be <3 years, but may extend to 7 years, and shall also be liable to fine. First offence cognizable but bailable, second/subsequent offence cognizable and nonbailable.
Any man who follows a woman and contacts, or attempts to contact to foster personal interaction repeatedly despite a clear indication of disinterest by such woman
Monitors use by a woman of Internet, E-mail or any other form of electronic communication, commits the offence of stalking.
On first conviction: Imprisonment for a term which may extend to 3 years, and fine on a second or a subsequent conviction: Imprisonment which may extend to 5 years, and fine. First offence cognizable but bailable, second/subsequent cognizable but nonbailable.