DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

______________________________________________________________________________

JOURNEY OF MORALITY THROUGH RAPE LAWS

AND ANTI-DOWRY LAW

______________________________________________________________________________

Name: Ketan Suri

Roll No.: 66
Semester: Xth
Class: B.A., LL.B. (Hons.)
Subject: Law and Morality
Submitted to: Ms. Mrinalini Singh

1
 TABLE OF CONTENTS

1. Introduction- A Generic View of Morality

2. Morality Understood with Rape Laws
3. Conclusion and Suggestions

2
 1. INTRODUCTION- A GENERIC VIEW ON MORALITY

Morality claims our lives. It makes claims upon each of us that are stronger than the claims of
law and takes priority over self interest. As human beings living in the world, we have basic
duties and obligations. There are certain things that we must do and certain things that we must
not do. In other words, there is an ethical dimension of human existence. As human beings, we
experience life in a world of good and evil and understand certain kind of actions in terms of
right and wrong. The very structure of human existence dictates that we must make choices.
Ethics help us use our freedom responsibly and understand who we are. And, ethics gives
direction in our struggle to answer the fundamental questions that ask how we should lead our
lives and how we can make right choices.

One can definitely argue on the basis of enlightened self-interest that it is, at the very least,
generally better to be good rather than bad and to create a world and society that is good rather
than one that is bad. As a matter of fact, self interest is the sole basis of one ethical theory.
However, it is not suggested that one must pursue one’s own self interest. Rather, an argument is
being presented that is everyone tried to do and be good and tried to avoid bad, it would be in
everyone’s self interest. For example, within a group of people, no one killed, stole, lied or
cheated, then each member of the group would benefit.

This premise on morality can be applied to gender sensitive trends in the society and help us
understand the evolution of gender specific laws vis-à-vis morality. The scope of gender
sensitive crimes and the laws to deal with them is immense. They range from rape to dowry
death to molestation to trafficking to domestic violence and so on, the discussion on all of which
would fall beyond the scope of this project. Hence, for the sake of fruitful discussion, the issues
of rape and dowry vis-à-vis morality have been undertaken.

Rape is a stigma which exists in the society from a long time. The dictionary meaning of word
rape is “the act of carrying away a woman by force.”1 Rape in India is a cognizable offence. The
word rape is legally defined under section 375 of Indian Penal Code, 1860. It defines rape and

1
Oxford Shorter English Dictionary (Oxford University Press 2002)

3
also prescribes its punishment. Whenever a man penetrates or does sexual intercourse with a
woman without her consent or will it amounts to rape. Penetration here means that only a
slightest of the touch of penis or any part of the man’s body part or any thing to vagina amounts
to rape, unruptured hymen of woman does not prove that rape was not committed. There are
exceptions to it also i.e. when a man does sexual intercourse with his wife who is above 15 years
of age. The rape law under Indian Penal Code had gone through a lot of amendments. In 1983,
amendment was made and S. 376(2) i.e. Custodial rape, S. 376(A) i.e. marital rape & S. 376(B to
D) i.e. Sexual Intercourse not amounting to rape were added. Then a major amendment came in
2013 amendment adding 375(a),(b),(c)(,d) and also changing the age of consent from 16 years to
18 years.

Rape is a crime, which has a devastating effect on the life of survivors; it has been described as a
“beginning of a nightmare”. The aftershocks include depression, fear, guilt-complex, suicidal-
action, diminished sexual interest. etc., “one becomes afraid of’……..writes a victim, “half the
human race”. Referring to the pitiable condition of women in society Mr. Justice S. Ahmad
observed that “unfortunately, a woman in our country, belongs to a class or group of society who
are in a disadvantaged position on account of several social barriers and impediments and have
therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the
Constitution “enjoy, equal status”. “Women also have the right to life and liberty; they also have
the right to be respected and treated as equal citizens. Their honour and dignity cannot be
touched or violated. They also have the right to lead an honorable and peaceful life”. Rape is a
crime against basic human rights and is also violative of the victim’s most cherished of the
fundamental rights, normally, the right to life contained in Article 21 .

As observed by a bench of justices B S Chauhan and Dipak Misra:

"Rape is the most morally and physically reprehensible crime in a society, as it is an assault on
the body, mind and privacy of the victim. While a murderer destroys the physical frame of the
victim, a rapist degrades and defiles the soul of a helpless female”.2
Justice Krishna Iyer has observed in a very famous case of Rafiq v. State3 :

2
<http://articles.economictimes.indiatimes.com/2013-05-20/news/39392725_1_helpless-female-physical-frame-
reprehensible-crime> last assessed on 2nd October 2015

4
“A murderer kills the body but a rapist kills the soul.”

Rape under English law is defined more particularly where the law covers all the aspects of rape.
Under the Sexual Offences Act 2003,4 rape in England and Wales was redefined from non-
consensual vaginal or anal intercourse, and is now defined as non-consensual penile penetration
of the vagina, anus or mouth of another person. The changes also made rape punishable with a
maximum sentence of life imprisonment. Although a woman who forces a man to have sex
cannot be prosecuted for rape under English law, if she helps a man commit a rape she can be
prosecuted for the crime. A woman can also be prosecuted for causing a man to engage in sexual
activity without his consent, a crime which also carries a maximum life sentence if it involves
penetration of the mouth, anus or vagina. The statute also includes a new sexual crime, called
“assault by penetration”,5 which also has the same punishment as rape, and is committed when
someone sexually penetrates the anus or vagina with a part of his or her body, or with an object,
without that person’s consent.

As compared to this, the law of India under the Indian Penal Code does not cover the penetration
of mouth and if such happened, then that does not amount to rape under our present law.

3
1981 AIR 559
4
Section 1 of the Sexual Offences Act, 2003 reads as:
“1. Rape
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A
has taken to ascertain whether B consents.”
5
Section 2 of the Sexual Offences Act, 2003 reads as:
“2. Assault by penetration
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,
(b) the penetration is sexual,
(c) B does not consent to the penetration, and
(d) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A
has taken to ascertain whether B consents.”

5
Like every other country, laws relating to rape do exist in India. However, justice is rarely
achieved. In most cases, rape victims themselves hesitate to make a complaint due to the stigma
attached to it in society. Sometimes, even if a complaint is made, the offender gets away due to
wide spread ignorance of the laws relating to the offence.

Under the Indian Penal Code A man is said to commit “rape” if he—

1. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person; or
2. inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him or any other
person; or
3. manipulates any part of the body of a woman so as to cause penetration into the vagina,
urethra, anus or any part of body of such woman or makes her to do so with him or any
other person; or
4. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him
or any other person, under the circumstances falling under any of the following seven
descriptions:

1. Against her will.

2. Without her consent.
3. With her consent, when her consent has been obtained by putting her or any person in
whom she is interested, in fear of death or of hurt.
4. With her consent, when the man knows that he is not her husband and that her consent is
given because she believes that he is another man to whom she is or believes herself to be
lawfully married.
5. 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.
6. With or without her consent, when she is under eighteen years of age.

6
 7. When she is unable to communicate consent.
Explanations
1. For the purposes of this section, “vagina” shall also include labia majora.
2. Consent means an unequivocal voluntary agreement when the woman by words, gestures
or any form of verbal or non-verbal communication, communicates willingness to
participate in the specific sexual act;
Provided that a woman who does not physically resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting to the sexual activity.
Exceptions
1. A medical procedure or intervention shall not constitute rape.
2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under
fifteen years of age, is not rape.

The change in judicial trends was seen in the 1980s when the need to make watertight laws was
felt. Certain amendments were made through the Criminal Law (Second Amendment) Act, 1983
which addressed mainly 3 issues:
1) Minimum Punishment in rape cases (IPC Section 376 sub section 1)
2) Special cases of rape (IPC Section 376 subsection 2 a-g )& A)
3) Marital Rape (IPC Section 376 A)
Another major amendment to the rape laws was done through the Criminal Law (Amendment)
Act, 2013. Major amendments made through this act were:
1) Introduction of certain new offences like, voyeurism, stalking, acid attack etc.
2) Increased the ambit of rape and made it gender specific(375(a-d))
3) Consent age increased from 16 to 18 years(375 sixthly)

In the classic Mathura rape case,6 wherein Mathura- a sixteen year old tribal girl was raped by
two policemen in the compound of Desai Ganj Police station in Chandrapur district of
Maharashtra. Her relatives, who had come to register a complaint, were patiently waiting outside
even as the heinous act was being committed in the police station. When her relatives and the

6
Tuka Ram v State of Maharashtra 1979 AIR 185

7
assembled crowd threatened to burn down the police chowky, the two guilty policemen, Ganpat
and Tukaram, reluctantly agreed to file a panchnama.

The case came for hearing on 1st June, 1974 in the session’s court. The judgment however
turned out to be in favour of the accused. Mathura was accused of being a liar. It was stated that
since she was ‘habituated to sexual intercourse’ her consent was voluntary; under the
circumstances only sexual intercourse could be proved and not rape.

On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions
Court, and sentenced the accused namely Tukaram and Ganpat to one and five years of rigorous
imprisonment respectively. The Court held that passive submission due to fear induced by
serious threats could not be construed as consent or willing sexual intercourse.

When the appeal was made to the Supreme Court, the Senior Counsel “Ram Jethmalani” while
defending the accused Policemen divided the concept of consent into two i.e. Express and
Implied consent. He said that there was not express consent but it was implied because Mathura
raised no alarm, there was no tearing of clothes, no semen on clothes, no cry for help etc, he
again said if there had not been any consent, there would have been at least a cry for help. These
circumstances are enough to show that there was implied consent. The Supreme Court acquitted
both the accused and held that Mathura had raised no alarm; and also that there were no visible
marks of injury on her person thereby negating the struggle by her.

The Court in this case failed to comprehend that a helpless resignation in the face of inevitable
compulsion or the passive giving in is no consent. However, the Criminal Law Amendment Act,
1983 has made a statutory provision in the face of Section.114 (A) of the Evidence Act , which
states that if the victim girl says that she did no consent to the sexual intercourse, the Court shall
presume that she did not consent.

In Mohd.Habib v State,7 the Delhi High Court allowed a rapist to go scot-free merely because
there were no marks of injury on his penis- which the High Court presumed was an indication of

7
1989 CriLJ 137

8
no resistance. The most important facts such as the age of the victim (being seven years) and that
she had suffered a ruptured hymen and the bite marks on her body were not considered by the
High Court. Even the eye witnesses who witnessed this ghastly act, could not sway the High
Court’s judgment.

A change in the Supreme Court’s stand was seen in State of Punjab v Gurmit Singh,8 the
Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be
habituated to sex, the Court should not describe her to be of loose character.

The Supreme Court has in the case of State of Maharashtra v Madhukar N. Mardikar,9 held that
“the unchastity of a woman does not make her open to any and every person to violate her person
as and when he wishes. She is entitled to protect her person if there is an attempt to violate her
person against her wish. She is equally entitled to the protection of law. Therefore merely
because she is of easy virtue, her evidence cannot be thrown overboard.”

In Delhi Domestic Working Women v Union of India,10 the Apex Court laid down the following
broad guidelines:
 The complainants of sexual assault cases should be provided with legal representation i.e.
they should be provided an advocate who could help her properly.
 Legal assistance will have to be provided at the police station since victim of sexual
assault might very well be in a distressed state upon arrival at the police station and
guidance of a lawyer at that stage is very necessary.
 The police should be under duty to inform the victim of her right to representation before
any questions were asked of her and that the police report should state that the victim was
so informed.
 A list of advocates who deal in these cases should be kept at the police station for victims
who did not have a particular lawyer in mind or whose own lawyer was unavailable.
 In all rape trials anonymity of victim must be maintained, as far as necessary.
 A “Criminal Injuries Compensation Board” should be established.
8
1996 AIR 1393
9
AIR 1991 SC 207
10
1995 SCC (1) 14

9
  Interim compensation should be given to rape victim even if the case is still going on in
the court.
 Medical help should be provided and woman should be allowed to abort the child if she
becomes pregnant due to the incidence.
 Compensation should be provided to rape victim to rehabilitate herself.

In Chairman, Railway Board v Chandrima Das,11 a practicing Advocate of the Calcutta High
Court filed a petition under Article.226 of the Constitution of India against the various railway
authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon) –
a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The
High Court awarded Rs.10 lakhs as compensation. An appeal was preferred and it was contended
by the state that:
a) The railway was not liable to pay the compensation to the victim for she was a foreigner.
b) That the remedy for compensation lies in the domain of private law and not public law. i.e.
that the victim should have approached the Civil Court for seeking damages; and should have not
come to the High Court under Article.226.

Considering the above said contentions, the Supreme Court observed:

“Where public functionaries are involved and the matter relates to the violation of fundamental
rights or the enforcement of public duties, the remedy would be avoidable under public law. It
was more so, when it was not a mere violation of any ordinary right, but the violation of
fundamental rights was involved- as the petitioner was a victim of rape, which a violation of
fundamental right of every person guaranteed under Article.21 of the Constitution.”

The Supreme Court also held that the relief can be granted to the victim for two reasons- firstly,
on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly,
on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human
Rights, 1948 which has international recognition as the ‘Moral Code of Conduct’- adopted by the
General Assembly of the United Nation.

11
<http://indiankanoon.org/doc/113663/> last assessed on 2nd October 2015

10
Also, rape is one of the numerous crimes with very low conviction rates and the same is one of
the major reasons for the growing number of offences against women.
“Apart from other factors, the low conviction rate in the cases of rape is the biggest worry we
have today. There is hardly any deterrence. Law should provide fast track courts to deal with
such cases,” says Girija Vyas, Chairperson, National Commission for Women (NCW).12

Brinda Karat, All India Democratic Women’s Association (AIDWA), member says, “I have
raised the issue in the Parliament several times that there is a need to step up conviction rate in
rape cases drastically. Poor legal system, wrong understanding of policemen in these cases and
lengthy procedures especially in child rape where after horrifying rounds of investigation the
victim starts feeling that she is an accused and should not have registered the case, are few
reasons for low conviction rate.”

“In every 10 hours, a girl of the age of 1-10 is being raped in India. We are raising this issue and
have demanded enforcement of stringent laws by government,” she adds.

Reacting to a recent incident in which a minor was raped by a constable and his accomplice in a
moving car in the national capital, Vyas says, “This is a special case and it should be dealt with a
fast track court. On many occasions, complains do not get registered on time and then it is very
difficult to prove that rape actually happened. It should be registered within 24 hours of the
incident.”

The accused believe they can get away with it. Officials are corrupt and easily bribed (some are
even committing rapes themselves). Women are shamed and humiliated when they come
forward because of the backward notion that it’s the woman’s fault (even when the ‘women’ are
young children). If they make a case, it becomes public knowledge and their families and society
shun them in many cases as they are then seen as ‘damaged goods’. If unmarried they will have
great difficulty getting married. Courts don’t always do justice for the victim and find rapists not
guilty for ridiculous reasons.

12
< http://www.indianexpress.com/news/rape-low-convictions-a-major-worry/302257/> last assessed on 2nd October
2015.

11
Predators know this and take advantage of it. Even if they get caught, if they have enough money
or influence, nothing will happen to them. A woman would have to turn the case into a media
circus to have a chance at justice and 90% of rape victims in India would not do so out of fear
and shame .

2. MORALITY UNDERSTOOD WITH RAPE LAWS

The issue of violence against women, in its various forms has occupied much of the energy of
women’s movement in the last three decades. The movement has addressed a whole array of
forms of violence from custodial, rape, gang rape, rape of lower caste women by upper caste
men, child rape, incest, dowry related violence, domestic violence, “honour” killings, communal
sexual violence, violence against women in situations of armed conflict, violence of population
policies, pre-birth elimination of female fetuses, sexual violence by state agencies and so on. The
issues that dominated the initial campaigns were rape, more especially custodial rape and dowry
related violence. The campaigns unfolded large scale social phenomenon of violence against
women both inside and outside the family. Women activists were also appalled by the
extraordinary lack of sensitivity of the law enforcement agencies on the cases of violence against
women. While a range of strategies were adopted by women groups that emerged at that point of
time, to bring public attention to these issues, an important part of their campaigns was to
develop legal principles so that the legal and judicial system gets equipped to look at the issues
that were being raised by women’s groups from women’s perspective..

The 1980s witnessed a spate of legislations concerning women, aimed at protecting them from
various forms of violence. The amendments in the rape law were the first to come in this process.
The Supreme Court judgment13, in 1979, in the case of custodial rape of Mathura, a 16 year old
tribal girl, acquitted two policemen of the charges of raping Mathura in the police compound, on
the grounds that Mathura did not put up sufficient resistance and thus consented in the sexual act
and, therefore, her charge of rape was false. The judgment that brought shock and disbelief was
responded by a strongly worded protest letter by four eminent lawyers raising questions on such

13
Ibid

12
a judgment.14 The letter sparked off protests and agitations against the judgment all over the
country. While these protests were on and demands for reexamination of rape laws were being
made, another case of the custodial rape of Rameeza Bee15 (while her husband was killed in
police custody) threw open the questions of rape trial, the most important being the issue of
‘consent’ in a rape case. The trials revealed that in order to prove that woman consented in the
sexual act and therefore was not raped; the arguments of immoral and low character of woman
were freely used. This was done in both ways, i.e., chastity and character of a woman were made
reason and basis for believing or disbelieving her allegations. And conversely in order to
disprove her allegations she could be easily branded as a woman of loose character.

Thus, two major demands of women’s groups were that character and past sexual history of
woman should not determine the outcome of rape trials and the onus of proving consent should
shift from the prosecution to the accused since a rape trial hinges on whether consent or non-
consent can be established. The amendments and addition of several new sections to the Indian
Penal Code, the Code of Criminal Justice and The Indian Evidence Act have since then made
significant advances regarding rape in these laws. In cases of custodial violence the onus of proof
has been shifted to the accused and a minimum term of imprisonment of seven years in case of
rape and of ten years in cases of custodial rape, gang rape, rape of pregnant women and of girls
below 12 years of age was stipulated. Courts were directed not to admit evidence regarding
women’s past sexual history or character unless compelled by the norms of a fair trial. Despite
these major gains, the incidence of rape does not seem to have declined and the implementation
of law remains very poor. The reasons for this range from sexist biases and suspicion that
pervade the whole legal and judicial process to the prevalent unequal power relation complicated
by institutions of class, caste, religion, ethnicity and even that of state power.

Another leaf from the same book would belong to the case of Aruna Shanbaug. The Supreme
Court’s decision in Aruna Shanbaug v. Union of India raises important questions about the
meaning of life, death and their relationship to law and to state power. Unfortunately the
judgment in the case not only fails to grapple adequately with these issues, but also betrays faulty

14
See Fields of Protest: Women’s Movements in India by Raka Ray, pg no. 118
15
See < http://www.popline.org/node/306553> last assessed on 3rd October 2015 .

13
legal reasoning and an utter disregard for the law and the legal process. The case revolves around
Aruna Shanbaug, a 60 years old woman who was violently raped in 1973. She sustained severe
injuries resulting in brain damage, because of which she has been in a permanent vegetative state
for the past 37 years. Ms. Shanbaug’s next friend. She sought a direction to the KEM Hospital to
stop feeding Ms. Shanbaug and to let her die peacefully instead of prolonging her life. The writ
was rejected however, passive euthanasia was allowed based on the following (il)logical
sequence:

1. If passive euthanasia is not expressly prohibited by law, it is permitted.

2. Passive euthanasia is an omission.
3. Omissions are not criminalized.
4. Therefore passive euthanasia is not criminalized.
5. Therefore passive euthanasia is permitted.
Aruna’s rape and assault had sparked Independent India’s first nurse strike — demanding justice
and treatment for her and better protection and working conditions for the nurses. It led to the
offender, Sohan Lal Valmiki’s arrest and conviction but unfortunately, he was never tried for
rape. He was convicted of attempted murder but not rape and sexual assault as a hospital official
had deleted parts of her medical report that proved Aruna had been sodomised.16

Another landmark case is the Priyadarshini Mattoo rape and murder case of 1996.17 She was a 25
year old law student who was raped and murdered by Santosh Kumar Singh at her house in New
Delhi. The trial court had acquitted Santosh Singh but due to media pressure the Delhi High
Court made a landmark judgment and sentenced him to death. This was the first time media
pressure had helped to accelerate a trial and give justice to the victim. The acquittal of Santosh
Singh in 1999 had led to a massive public outcry and the investigating agency CBI, under
considerable pressure, challenged the judgment in the Delhi high court on February 29, 2000.
Justices RS Sodhi and PK Bhasin of Delhi High Court shifted from a traditional lax pace, with
hearings every few months, to a day-to-day trial and judgment was reached in 42 days. The
original acquittal was overturned and Santosh Singh was found guilty of murder and rape.

16
http://www.telegraphindia.com/1110308/jsp/nation/story_13683133.jsp
17
Santosh Kumar Singh v State, available on http://www.indiankanoon.org/doc/760449/

14
The case is one of several in India that highlights the ineffectiveness of traditional criminal law
system, especially when it comes to high profile perpetrators. Delivering the ironical and widely
criticized judgment in the trial court proceedings in 1999, the Additional Sessions Judge.
commented that though he knew that "he is the man who committed the crime," he was forced to
acquit him, giving him the benefit of doubt. The "state had failed to bring home the charge of
rape against the accused", and while indicting Santosh as "the man who committed the crime",
the judge was constrained to acquit him, because of "the benefit of doubt". Following a public
outcry, the CBI then appealed the district court's verdict in Delhi High Court on February 29,
2000. As recommended by the Central Bureau of Investigation the death penalty was awarded to
Santosh Singh on October 30, 2006.18 Pronouncing its verdict, the court said the mitigating
circumstances under which leniency was begged for Santosh was not enough and the brutal rape
and murder does fall in the bracket of "rarest of rare" cases. In an appeal against this decision to
the Supreme Court, the apex court upheld the conviction but converted the death sentence to life
imprisonment.

Another horrifying incident of rape and murder is the celebrated case of Hetal Parekh. On March
15, 1990, Hetal's parents had gone out and left the keys with Dhananjoy, telling him to hand
them over to Hetal when she returned from school. When she did, Dhananjoy followed her
inside. The girl choked to death while she was being raped. The Alipore sessions court sentenced
Dhananjoy to death in 1991. Over the next four years, Dhananjoy appealed successively in the
Calcutta High Court and the Supreme Court, and filed mercy petitions with the governor and the
President. All were rejected though. On March 16, 1994, his lawyers moved the high court for a
review. The court stayed the execution. The case went out of the government's focus until
November 2003, when the law and justice department chanced upon the case while going
through some files and wrote to the high court chief justice asking why the stay hadn't been
vacated so long. The high court lifted the stay but Dhananjoy then filed another series of
petitions. These too were rejected, paving the way for the execution. The death warrant was
signed in January 2004. The next few months saw much debate and activism. Then chief
minister of West Bengal Buddhadeb Bhattacharjee pleaded the death penalty be executed. On the

18
Jain, Sandhya (12 November 2006). Mattoo "Mattoo case: Justice delayed, denied and awarded". Organiser.
Retrieved 20 May 2011.

15
other side were intellectuals such as Mrinal Sen, Aparna Sen and Mahasweta Devi, who appealed
to then President APJ Abdul Kalam for commuting the sentence to life. But the final blow came
after the Union Ministry of Home Affairs recommended his execution to the President. He was
hanged on August 14, 2004.

The most celebrated rape and murder case is the recent Nirbhaya case of New Delhi. On the
night of December 16, 2012, five persons including a juvenile had gang-raped a paramedics
student in a bus after luring her and her 28-year-old male friend, who was also assaulted, on
board the vehicle, which was later found to be plying illegally on the roads of Delhi.
After a nine-month-long trial, fast track court on September 13, 2013 handed down death
penalty to all the four convicts in the gang rape and murder case. The court while pronouncing
the judgment said that "it cannot turn a blind eye on the rising cases of sexual assualt against
women" and that the incident shook the "collective conscience of the society". The court said the
case falls under rarest of rare category. "In these times when crimes against women are on rise,
we cannot turn a blind eye towards such gruesome crime, we need to send a message that it will
not be tolerated," the judge said.19 The shocking rape-murder case had triggered nationwide
protests and debate over women safety in the country and eventually saw the Parliament passing
a stringent change in rape laws. The Indian Penal Code (IPC) was amended to provide death
penalty in rape cases that cause death of the victim or leave her in a vegetative state.20 The Act
also introduced several other new offences such as causing grievous injury through acid

19
http://in.reuters.com/article/2013/09/12/india-delhi-gang-rape-verdict-death-idINDEE98B03720130912
20
In place of the existing section, Section 376 shall be amended and Section 376(3) shall be inserted in the Indian
Penal Code, 1860 on the recommendations of the Justice J.S. Verma Committee Report which shall respectively
read as-
“376. (1) Punishment for Rape: Whoever, except in the cases provided for by sub-section (2), commits the offence
of rape shall be punished with rigorous imprisonment for a term which shall not be less than seven years but which
may extend to imprisonment for life, and shall also be liable to pay compensation to the victim, which shall be
adequate to meet at least the medical expenses incurred by the victim.”
“Section 376(3): Punishment for causing death or a persistent vegetative state in the course of committing rape
Whoever, commits an offence punishable under Section 376(1) or Section 376(2) and in the course of such
commission inflicts an injury which causes the death of the person or causes the person to be in a persistent
vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years,
but may be for life, which shall mean the rest of that person’s natural life.”

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attacks,21 sexual harassment, use of criminal force on a woman with intent to disrobe, voyeurism
and stalking.22

3. CONCLUSION AND SUGGESTIONS

In the context of women after independence, it was important as a first step to use law as an
instrument to fight legally imposed impediments on the basic rights of women (e.g. equal
property rights, custody and guardianship rights etc.). The political importance of these rights lay
in their appeal for equality and justness of relations. The objectives were to attain legal
protection and recognition to basic human rights of women. Rights in this sense amounted to
legal and political resources to challenge patriarchal order of family and society.

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Section 326A and 326B have been inserted in the Indian Penal Code, 1860 on the recommendations of the Justice
J.S. Verma Committee Report which shall respectively read as-
“ 326A. Voluntarily causing grievous hurt through use of acid etc: Whoever causes permanent or partial damage or
deformity to, or burns or maims or disfigures or disables any part, or parts of the body of a person, or causes
grievous hurt, by throwing acid on, or administering acid to that person, or by using any other means to achieve a
similar purpose and effect, with the intention of causing, or with the knowledge that he is likely to cause such injury,
or hurt, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which
may extend to life, and shall also be liable to pay compensation to the victim, adequate to meet at least
the medical expenses incurred by the victim.”;
“326B. Voluntarily throwing or attempting to throw acid etc. Whoever throws, or attempts to throw acid on any
person, or attempts to administer acid to any person, or attempts to use any other means to achieve the purpose of
causing permanent or partial damage to any part or parts of the body of a person, shall be punished with rigorous
imprisonment for a term which shall not be less than five years but which may extend to seven years, and shall also
be liable to pay compensation to the victim adequate to meet at least the medical expenses incurred by the victim.”

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Section 326A and 326B shall be inserted in the Indian Penal Code, 1860 on the recommendations of the Justice
J.S. Verma Committee Report which shall respectively read as-
“354A. Assault or use of criminal force to woman with intent to disrobe her – Whoever assaults or uses criminal
force to any woman or abets such act with the intention of disrobing or compelling her to be naked in any public
place, shall be punished with imprisonment of either description for a term which shall not be less than
three years but which may extend to seven years and shall also be liable to fine.”
“354B. Voyeurism – Whoever watches a woman engaging in a private act in circumstances where she would usually
have the expectation of not being observed either by the perpetrator, or by any other person at the behest of the
perpetrator shall, be punished on first conviction with imprisonment of either description for a term which shall not
be less than one year, but may extend to three years, and with fine, and be punished on a second or subsequent
conviction, with imprisonment of either description for a term which shall not be less than three years, but may
extend to seven years, and also with fine.”
“354C (1) – Stalking: Whoever follows a person and contacts, or attempts to contact such person to foster personal
interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a
person of the internet, email or any other form of electronic communication, or watches or spies on a person in a
manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the
mental peace of such person, commits the offence of stalking.”

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Thus, the purpose of law was not only to emphasise the formal legal equality but also to re-order
and re-define social relations, by creating more rights and by creating more rights and
challenging the oppressive and discriminatory order. The logic is that when an unequal law is
retained the issue is not only that it discriminates but also as to what societal values and norms it
legitimizes and whose interests it serves.

The reforms in law have not been taken up from the point of view of granting complete equality
to women. Despite official/formal commitment to gender equality, the Constitution and laws of
the country have continued to be a source of perpetuating inequalities between women and men
especially with regard to their rights in family and marriage.

Also, laws have contributed towards reinforcing the image of women as wives and mothers and
dependent on the male members of the family, through male lineage, through unequal property
rights and no share in matrimonial property.

Furthermore, laws have also been the source of promoting sexual stereotypes, i.e. creating
women’s identity as chaste, loyal and ideal wives, self-sacrificing mothers and dutiful daughters,
thereby creating two types of moral standards for women and men. Also, laws also become the
basis of extending or withdrawing protection to women, i.e. only good women need to be
protected. Laws on rape and dowry specifically promote this.

Legal reforms, thus, instead of reconstituting identities of women which are liberating and based
on equality have served to deny women many rights within family and marriage and reinscribe
the assumptions of women’s dependency in family, women as primarily mothers and wives
adhering to the norms and standards set by family and society and in sustaining public/private
distinction. Such a view not only assumes the homogeneity of women’s experiences but also
assumes the sexual division of labour as natural and universal. Both the assumptions of law fail
to acknowledge diversity of women’s experiences beyond their wifely and motherly roles and
are faulty because women’s lives are not based neatly on sexual division of labour and also
because law fails to address the issue of domestic labour of women within the family.

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The increasing communalization of politics and state’s treatment of purely women’s rights issue
in religious terms have resulted in increasing the powers of religious leaders of both the majority
and minority communities. The state’s treatment of issues of women’s rights in family as
religious issues has had the impact of limiting or taking away rights of women in order to
guarantee freedom of religion. Since the issue of religious identity is so closely tied with
regulation of relations between men and women in family and society, the state can only be seen
as an ally in perpetuating a patriarchal system.

Another very important aspect of this study is the linkage of law with religion. The conduct of
the state in this regard has been determined by considerations other than their commitment to
gender-equality. However, what is required is to remove religion as a relevant political factor
while deciding the issue of equal democratic rights for men and women in the family. While it is
possible to achieve this goal by reforming personal laws, the enactment of a common just code
for all will help to severe the connection between religion and civil rights. This does not in any
way mean that legal equality will make women truly equal. There will definitely remain strong
social and ideological obstacles. The relationship between women’s movement and law has been
very complicated and raises a number of questions as to how whether or not to address the
question of women’s rights through law. The fact that the law has continued to project women in
their stereotyped roles and images as dependents and subordinates and has played an important
role in maintaining unequal power relations between men and women has led to debates as to
what role can law play in challenging the existing social relations and particularly in improving
the conditions of women as a discriminated and disadvantaged group? It is being argued that if
law has continued to sustain the subordination of women, how it can be used to challenge that
subordination.

The doubts over the effectivity of law as an instrument of change have also risen because of the
wide gap between law and its implementation and biased attitudes of police, courts and judges. It
has also been argued that there are a very small percentage of women who can actually use the
law because of variety of reasons. Most rural and many poor urban women have very real
constraints in using law, because of inadequate information about law, legal process being
lengthy, complicated and expensive and because family, religious and cultural norms deter them

19
to step out and use courts or legal system. Their class and caste position in addition to their
gender position add to their difficulties in their access to legal and judicial process. Thus,
engagement with law and legal process has challenged the belief that arena of law is neutral and
objective. In fact, law has to engage with institutions of society- marriage, family, religion,
community etc.

The feminist engagement with law is a journey of negotiating with the dilemmas that this
engagement entails. On the one hand, as has been argued above, laws reinforce gendered
assumptions and role to the detriment of women, at the same time law is also a site where these
gendered roles and identities have been challenged. Women’s movement has and needs to use
law by capturing both the possibilities and limitations of law.

The journey of morality has seen many courses throughout the modern history, especially in the
last three decades. However, it still needs to cross a long way in order to reach the sublime point
where human rights are given priority over the stringent framework of the gender sensitive laws.

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REFERENCES

1. Misuse of anti dowry law increasing in India

http://creative.sulekha.com/misuse-of-anti-dowry-law-increasing-in-india_318901_blog

2. Anti Dowry Laws being abused in India: Supreme Court

http://legalperspectives.blogspot.in/2010/10/anti-dowry-laws-being-abused-in-india.html

3. Are India’s Anti Dowry Laws a Trap for Urban Males

http://blogs.reuters.com/india/2008/09/05/are-indias-anti-dowry-laws-a-trap-for-urban-
males/

4. Destined to Fail
http://www.indiatogether.org/manushi/issue148/dowry.htm

5. Panel proposes an explanation paragraph to anti-dowry law

http://indiatoday.intoday.in/story/women-and-child-development-ministry-anti-dowry-
law-changes/1/214095.html

6. Explaining India’s New Anti Rape Laws

http://www.bbc.co.uk/news/world-asia-india-21950197

7. Rape Laws of India

http://mynation.net/rapelaw.htm

8. Indian Rape Law: Parliament Passes Strict Sexual Violence Legislation

http://www.huffingtonpost.com/2013/03/21/india-rape-law-passes-
parliament_n_2924462.html

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