RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,

PUNJAB

IPC Project

Name – Nikhil Maru

Roll Number – 16094

Group Number – 13

Submitted to – Dr. Sharanjit Submitted by – Nikhil Maru

 Table of Contents

INTRODUCTION ................................................................................................................................ 3

An Overview ................................................................................................................................ 3

General Meaning and Kinds of Rape .......................................................................................... 5

Offence of Rape and Indian Penal Code ..................................................................................... 5

SEXUAL OFFENCES LAW IN INDIA: REVIEWING A COLONIAL INHERITANCE ...................................... 7

THE INDIAN PENAL CODE: 1860 .................................................................................................... 11

1983: THE CRIMINAL LAW SECOND AMENDMENT......................................................................... 13

Barriers to justice ...................................................................................................................... 15

2013: CRIMINAL LAW AMENDMENT ACT ...................................................................................... 16

Analysis of laws before the criminal law amendment, 2013 ..................................................... 16

Explanation of the term ‘Sexual Intercourse’ and ‘Penetration’ .............................................. 18

Rape Laws after the Amendment of 2013 .................................................................................. 19

Critical Comparison of two legislation ..................................................................................... 20

CRIMINAL LAW AMENDMENT ACT 2018 ....................................................................................... 22

Amendments to IPC: Issues & concerns ................................................................................... 22

Enhanced punishment & blurring classification of rape .......................................................... 22

CHALLENGES OF RATIFYING NATIONAL LAWS WITH THE GLOBAL VAW AGENDA ......................... 24

CONCLUSION.................................................................................................................................. 26
 Introduction

An Overview

Rape is the most heinous offence against women. It is an insult to the civility. It is symptomatic of
sexually starved society that has injuriously threatened and still threatening the women’s very right
to liberty and personality. Women are being rapped at work, on the streets, in the field, in the
scheduled places, in their homes by men. They are raped by people who are their relatives or
neighbors or even by strangers. From lower level to the upper strata women are being raped by
men even in this 21st century. Doctors rape their patients and nurses. The employers molest
domestic maidservants; factory workers are forced to have sexual relations with their in-
charge/Head. Castes Hindus rape Harijans and Adivasi girls.

Gang rapes by dacoits, rape during communal riots is quite common. Another horrifying incidence
of rape, which the present day Indian society is witnessing, is the rape of minor girls. Again the
rape by custodian of law, namely the police are very common. Hardly a day passes a day without
report in the newspaper or a magazine of a rape, assault or molestation having taken place both in
the rural and urban areas. Every 29 minutes a rape occurs somewhere in India. The present chapter
therefore thoroughly focuses on the offence of rape, its kinds, and an attempt to commit the offence
and tries to critically study the law relating to rape, its kinds, and the nature of the assault.

It is more saddening that the incidences of rape and its related offences have been found to be
increasing at higher rate than any other types of crimes. An attempt therefore has been made in the
present study to find out the law, lacunae and loop holes therein. Rape cases have reported mixed
trends over last 5 years with a decrease of 2.5 per cent in 2001 over 2000, an increase of 1.8 per
cent in 2002 over 2001, a decrease of 3.2 per cent in the year 2003 over 2002 and substantial
increase of 15.0 per cent in the year 2004.

During the year 2004 a total of 18233 rape cases have been reported. 5 However, these figures are
only indicative of the tip of the iceberg as a majority of cases remain unreported for a host of
reasons like lack of trust between the law enforcement agencies and the public and attitude towards
rapists and the victim. This becomes evident from the data collected by the Ministry of Home
affairs which shows that only 10% cases are reported to the police stations and only 1% ends in
conviction. The project therefore focuses on the entire area of investigation, trial and victim's
evidence.

Source- National Crime Bureau

The attitude of the people towards the victim is really frustrating as it results in high social costs
for the victim. The attitude of the society is more frustrating as because there are only few people
who will oppose in public and take pain to remove this evil and accept the victim into their private
as well as family life. The project would therefore focus on the present laws and flaws in our rape
law as well as social immaturity, judicial antipathy at the lower level, and the legislative lag, with
which women are confronted and subjected to· in our society. Even the Penal Code views rape as
an offence which only affects human body ignoring the fact that rape is also a .psychological
assault. The present chapter makes an effort to find out the nature of assault, and consequent
violation of the rights of the victim of rape; the rights to which they are and should be entitled. It
is universally accepted that an unmerited acquittal not only erodes the faith of the victim but also
destroys the confidence of the society. People lose faith in the criminal justice system. A · unique
feature of the present domain of study is the sentencing in cases of rape at three levels. of the
judiciary which reflects that the verdict -moves like a pendulum.
General Meaning and Kinds of Rape

The word 'rape' is derived_ from the Latin term 'rapio' which means 'forcible seizure. 'Sexual
intercourse with a woman by a man without her consent and chiefly by force or deception is
generally known as rape. It may also be described as forcible carnal knowledge of a woman
without her consent. Rape is many things. It is an instrument of torture. Rape is the means of
proving masculinity. To some feminist rape is a mental perversion, a psychological assault, a
symbol of masculine power or dominance, the ultimate violation of women's self. It is also
considered as the invasion upon a woman's physical or bodily privacy and outrageous to the dignity
of a woman. Some contemporary feminist critiques of law perceive rape as an extension of the
patriarchal control over female. Generally rape may be classified in to the following;

a. Statutory Rape or, child Rape: Sexual intercourse with a female who is below the statutory age
of consent. This is also known as child rape.

b. Stranger Rape: Where the assailant was unknown to the victim.

c. Acquaintance Rape: The victim knows her attacker, although he is not a close friend or family
member. In other words it is a rape where the victim and the assailant knew each other casually.

d. Intimate Rape: Where the persons concerned were in a relationship or even rnarried.

e. Date Rape: The victim is dating the person who rapes her.

f. Multiple Rape or Gang rape: The victim is raped by more than one man.

g. Marital Rape: The victim J raped by her husband.

h. Custodial Rape: Where a person commits sexual intercourse with a woman who is under his
custody.

i. Incest Rape: When a person commits sexual intercourse with a woman falling within the
prohibited degrees of consanguinity or afftnity.

Offence of Rape and Indian Penal Code

The offence what is known as 'rape' finds a place in Chapter XVI of the Indian Penal Code, 1860
which deals with 'offences affecting the human body.' The researcher has a strong objection with
this kind of placement of the offence of rape under the said category for many reasons. One of the
reasons is that rape is not an offence which only affects human body as perceived by Macaulay
but really affects the mind of the victim to such an extent that it can be said that rape is a
psychological assault. Rape signifies the 'ravishment of a woman without her consent, by force,
fear or fraud' or 'the knowledge of a woman by force against her will.'2 G-rhe Indian Penal Code,
1860 in section 375 defines the offence and in ·Sections 376 and 376A to 376D provides
punishment for rape. The Code defines rape in the following words;

"Rape: - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the six following descriptions:

First: - Against her will.

Secondly: -Without her consent.

Thirdly: - 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.

Fourthly: -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.

Fifthly:.- 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.

Sixthly:- With or without her consent, when she is under sixteen years of age.

"Thus the section requires two things;

a) Sexual intercourse by a man with a woman.

b) The sexual intercourse must be under the circumstances falling under any of the six clauses.

Sexual intercourse is heterosexual intercourse involving penetration of the vagina by the penis. If
the hymen is ruptured by inserting a finger, it would not amount to rape. The meaning of sexual
intercourse is confined in narrow terms to include penile/vaginal penetration only and cannot be
enlarged to include penile/anal, penile/oral, finger/ vaginal, finger/anal or object/vaginal
penetration. Penetration is sufficient to constitute the sexual intercourse necessary to the offence
of rape.

To constitute the offence of rape it is not necessary that there, should be complete penetration of
penis with emission of semen and rupture of hymen. Partial penetration of the penis within the
labia majora or the vulva or pudenda with or without emission of semen or an attempt at
penetration is quite sufficient for the purpose of law. In other words to constitute the offence of
rape, penetration, however slight, is sufficient. Again Sexual intercourse by a man with his wife,
the wife not being under fifteen years of age, is not rape. 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 would be an offence of rape.

Sexual offences law in India: Reviewing a colonial inheritance

It is believed that till the early nineteenth century the British knew little about India. Yet it was the
British who controlled her destiny. Studies reveal that as the British knew little about India, they
tended to make laws for the country based on their experiences and the ideas that prevailed in
England at that time.

Hence, the British legislated for Indians, the majority of whom were not middle class, on the basis
of an experience as removed from them by distance as by class. In the majority of cases- where
laws were made to deal with such crimes as robbery, murder and treason- the gap between the
ethos in which the Indians lived and that which the British brought with them would not matter.
But offences against the person, particularly where they involved concepts of family honour, were
defined by reference to social attitudes which varied widely.

The problem which law-makers faced in the case of India was that they were in a dilemma to
acknowledge the separate, often conflicting mores of distinct societies, communities and to
reconcile them in order to provide ·one, just, equitable law for all. Inevitably it had to be assumed
that certain attitudes, ideas, morals are held in common by the diverse people under them, and then
undertake to legislate for them, as one people, in those spheres.

Also, they have to bow to the cultural differences amongst them and leave certain areas to their
personal- customary and religious- laws. This means that criminal offences and offences against
the state or government are regarded as the proper sphere of state interference; family matters-
marriage, inheritance, adoption- are governed by law of domestic relations. In the former areas,
where attitudes towards murder, house-breaking and treason are shared by different groups in

Source: National Women Survey

society, it is not difficult to enact laws and enforce them. The Charter of 1833 empowered the
government to make laws for British India, created the Law Commission for that purpose, with
due respect to native customs and usages. The main problem was that legal categories tend to
overlap, and in some matters both the government and the society claim the right to control
conduct.It is claimed that where the government decides to legislate upon matters which are
regarded by its subjects as being governed by religious and social sanctions, it is important for the
law makers to be acquainted with social practices and attitudes.

Without such acquaintance the law-makers will not be able to frame laws which will effectively
impress the will of the State upon the people (Dhagamwar: 1992). It is highlighted that in offences
against the human body the Code steps into a 'twilight area', where the dividing line between the
subject matter of family and general laws become blurred. Here, claims Dhagamwar (1992), the
ignorance of Indian society has led to framing of provisions which are extremely faulty and
iniquitous.

While inheriting the English legal system might have been good in some respects, one legacy has
been very damaging: the way that 19th-century British law thought about the crime of rape.
As persuasively argued by Elizabeth Kolsky history professor at Villanova University in the U.S.,
the continuing difficulty with securing convictions in rape cases in India is a direct product of this
colonial history.
In 2011, only 26% of rape trials ended in conviction. In Delhi for instance, where this crime took
place, there's only been one conviction out of 635 cases of rape reported in 2011. If the conviction
rate is low now, the situation wasn't any better in the colonial period. We can't make a direct
comparison with pre-independence times because we don't have detailed records of what happened
at the level of trial courts then. But we can draw inferences from what happened in the High Courts,
which were -- and remain -- courts of appeal for lower-court decisions. According to data analyzed
by Ms. Kolsky, between 1904 and 1947, there were 75 rape convictions sent up to the High Court
for review. The High Courts confirmed only 37% of convictions from the lower courts. In the
remaining cases, they either acquitted or reduced the sentences of the defendants.

The reasons for the difficulty in securing and upholding rape convictions in India at that time, as
now, can be traced to the colonial legal system, as Ms. Kolsky argues. Principally, it is the
extremely strict evidentiary requirements under the law that are needed to establish that a rape
occurred, much higher than in other crimes of violence. To put it bluntly, the victim is as much on
trial as her alleged attacker.

Without going into the technical legal details, the Indian law on rape and the legal precedents that
developed around it tended to presume that the victim had engaged in consensual sex unless there
was enough evidence to corroborate her claim that the sexual intercourse was non-consensual and
she had been raped.

This presumption of consent was embodied in Section 155 (4) of the Indian Evidence Act, which
allowed defendants to offer evidence about a victim's character and sexual history. That gives
defense lawyers an avenue to discredit them by suggesting that either they were maliciously and
falsely making an accusation of rape or that the sex had been consensual. Incredibly, this section
of Indian law remained on the statute books until 2002. Even though it has been altered, practices
and attitudes haven't changed that much. The continuing use of the notorious “two finger test” to
determine if the victim has had a history of sexual intercourse is sufficient testament to this fact.

Before now, independent India's most significant rape trial was the so-called "Mathura" case. On
March 26, 1972, Mathura, a 16-year-old tribal girl, was allegedly gang-raped by a police constable
and his deputy while she was in their custody in a police station in the state of Maharashtra. When
the case came to trial two years later, the judge described the victim as a "loose woman" who
obviously had consented to sexual intercourse and subsequently lied about it, and used that
extraordinary reasoning as the basis for acquitting the defendants. The Supreme Court of India
upheld the acquittal, arguing that the victim's failure to raise the alarm during the alleged rape, plus
the fact that her body didn't show signs of injury, amounted to evidence of consent.

The uproar resulting from this judgment prompted activists to petition the government to change
the law. A minor change in the law did take place in 1983, but that focused on what is called
"custodial rape" (rape when one is in the custody of the authorities) in where it would no longer
be necessary to prove lack of consent. Overall, however, India's law on rape and how cases of rape
are handled by the police and the judicial system still reflect the colonial mentality that prevailed
when Lord Macaulay first set up the IPC.

As recently as last year, an alleged rapist was acquitted because the judge inferred from the fact
that the victim apparently didn't resist her attacker with sufficient vigor showed that the sex was
consensual. By the standards of the mid-19th century, the IPC may have been progressive even if
the British legal tradition it was based on was grounded in a medieval, patriarchal understanding
of the place of women in society.

It's a cruel irony that while Britain, along with most western countries, have modernized their
antiquated laws on rape, Indians are still shackled by it well into the 21st century. It's incredible,
for instance, that Indian law still excuses "marital rape," which presupposes that a woman can
never legitimately deny sex to her husband. Unfortunately, in my reading of it, the much
vaunted Verma Commission that's been constituted to reform India's rape laws and the functioning
of the criminal justice system appears to be focused on the speed of trials, quicker justice and more
severe punishment.

But instituting fast-track courts, as many people have called for, will by itself do nothing to reform
a law that's still heavily biased against the victims of rape. Nor will fast-track courts change the
mindsets of judges hearing cases.

According to a survey by Sakshi, an NGO active in gender issues, 74% of judges surveyed a
decade ago believed that "preservation of the family" should be a principal concern for women
even in the event of violence in the home. And 51% believed that women who stay with abusive
husbands are "partly to blame" for their plight. Some 68% felt that "provocative attire was an
invitation to rape" and 55% felt that the "moral character of the victim" was relevant.
While Indians introspect on the many things that need to change to prevent tragedies like the one
that happened in New Delhi on Dec. 16, we should not forget the complex interaction between a

culture with a misogynistic strand and an archaic misogynistic legal system that is deadly for
India's women.

The Indian Penal Code: 1860

T.he Penal Code was drafted by the Indian Law Commission with Macaulay at its helm and it
emerged in 1860. In the final version of the Penal Code sections 359 to 377 dealt with kidnapping,
rape, unnatural lust, as well as the additional offences of abduction and sale. Macaulay devoted
clauses 359 and 360 to the offence of rape. The first of these defined the offences and the second
specified the punishment for it. Clause 359 reads: A man is said to commit rape who, except in the
cases hereinafter excepted, has sexual intercourse with a woman under circumstances falling under
any of the five following descriptions:

First Against her will.

Secondly: Without her consent while she is insensible.

Thirdly: With her consent when her consent has been obtained by putting her in fear of death or
of hurt.

Fourthly: With her consent, when the man knows her consent is given because she believes that
he is a different man to whom she is, or believes herself to be married.

Fifthly: With or without her consent when she is under nine years of age.

Exception: Sexual intercourse by a man with his wife is in no case rape. 1bree provisions of this
clause are emphasised (Dhagamwar: 1992)

The age of consent in the fifth sub-clause was very low. - Only a married woman could claim her
consent had been given under a false impression. -In no circumstances could a husband be said to
have raped his wife. This was at a time when child marriage was the norm in India, and the children
very often were infants.
From the reading of Clause 359, particularly sub-clause five and the exception, wo points are
highlighted: preference of the rights of husband over his wife 1gainst the wife's right to herself
(and that is why the wife was not entitled to 1ccuse her husband of rape, whatever the

Source- NCRB India

circumstances). Also, a married woman could claim she gave her consent because she was
mistaken about the man's identity. However, if she was not married, she had no right to give her
consent to any person whatsoever; the fact that she gave it was sufficient to acquit the man.

When dealing with cases of rape the courts are likely to take into consideration facts about the
victim- such as her character, age, and experience while determining the severity of punishment,
and rightly so. No one would wish to maintain that an ignorant sheltered virgin of sixteen does not
suffer more than a hardened prostitute of thirty-five; or even more than a chaste married woman.
But there is surely a danger in making an assumption to this effect when drafting the law,
particularly on the grounds of caste and class. A distinction made on these grounds implies that
women of the privileged classes and castes are automatically more sensitive and, therefore, more
offended than their underprivileged sisters.

The fact is that women of low caste in India, whose economic status was as low as their social
status, did not find it easy to evade assaults on them by men of the more powerful social groups.
Consequently, the lower classes learned to live with the fact that women from their ranks were not
safe. If from this it was concluded that women from their ranks had a reduced sense of honour, it
would be a disgrace. It is a cruel mockery of justice to argue that a poor woman is less sensitive
because she is less able to protest. Assumptions such as these confirm the most undesirable status
quo and produce a non-egalitarian system of justice.

Section 375 of the final version differed a little from Clause 359. The only important amendment
was of the exception which read: 'Sexual intercourse by a man with his own wife, the wife not
being under ten years of age, is not rape. The Committee did not give their reasons for the change.
On the question of rape, very strong moral judgement were brought to bear upon the victim and
her character before she could obtain justice. She was also considered capable of giving her consent
at a very young age.

1983: The Criminal Law Second Amendment

Acting on huge public criticism of the judiciary in the inadequacy of the law of rape patent in a
number of judgments of the Apex Court and its failure to safeguard the rights of the innocent
victims against this crime, the Parliament, in 1983 and 2003, extensively amended the law of rape,
to make it more realistic.

A new clause fifthly has been inserted in place of the then existing clause fifthly, which has been
renumbered as clause sixthly to Section 375 IPC. This clause negatives the consent of the women
for the purpose of the offence of rape if the woman is of unsound mind, or is under the influence
of intoxication at the relevant time. Such consent will not be considered as valid defense and the
accused will be held liable for the offence.

New category of offence i.e. Custodial Rape was introduced by inserting Section 376B to 376 D
IPC. Section 376A IPC makes sexual intercourse with one’s own wife without her consent under
a decree of separation punishable. The punishment for rape provided in Section 376 IPC is
minimum seven years imprisonment under clause 1 and ten years under clause 2. Section 228A
IPC prohibits the disclosure of the identity of victims in rape cases under
sections 376, 376A to 376D, IPC.
The Evidence Act, 1872 was amended by inserting Sec.114A drawing a conclusive presumption
as to the absence of consent of the woman in case of prosecution of rape under Sec 376 (2) clauses
(a) to (g), IPC shifting the burden of proof of innocence on the accused.

Section 327 CrPC which confers the right of an open court trial has been amended making the
provisions for trial of rape cases or an offence under Section 376A to 376D, IPC in camera and
prohibition of publication of trial proceedings in such cases without the prior approval of the court.

The changes in rape laws in 1983 improved the situation to a great extent. Among other things,
the punishment for rape was made more severe. Before, the punishment prescribed under Section
376 of the IPC provided for a maximum sentence of life imprisonment but there was no minimum
limit. Thus, in theory a rapist could get away with a sentence of say, just one month. An important
provision – Section 376(2) – was added to the IPC. This section introduced the concept of
some special kinds of rape and prescribed a minimum of ten years for these cases. In an unrelated
case Justice Markendey Katju, had famously stated in a case “We are after all humans”. We must
not be so critical of the judiciary. There have been plethora of cases where we have seen a lot of
positive changes.

The Supreme Court has in the case of State of Maharashtra v.. Madhukar N. Mardikar
(1991) 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.” “While a
murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a
helpless female” Justice Arijit Pasayat of the Supreme Court made this very apt observation in the
case of Tulshidas Kanolkar v. The State of Goa in 2008. Here was a case, where the victim, a
mentally challenged girl was raped by the accused. Such were the mental faculties of the girl that
she was not even aware of the consequences. It was only when her parents observed her swollen
stomach, was the girl examined and it was found out that she was pregnant. She was however able
to identify the perpetrator of the heinous crime. Money was offered by the accused to the girl’s
family to get the pregnancy terminated.

The amount offered was not sufficient for her family to get the pregnancy terminated and
subsequently she gave birth to a still-born child. It was then that a complaint was filed by the
parents of the girl. In appeal before the Supreme Court of India, the accused prayed for acquittal
on various grounds which were all dismissed by the Hon’ble Judges, and ultimately the appeal was
dismissed, and the accused was sent back to the jail. The important point raised by the Judges is
as follows – “a few words are necessary to be said about prescription of sentence in a case where
a mentally challenged or deficient woman is the victim. In sub-section (2) of Section 376, clause
(f) relates to physical age of a woman under 12 years of age. In such a case sentence higher than
that prescribed for one under sub-section (1) is provided for. But what happens in a case when the
mental age of victim is not even 12 years of age? Such a woman is definitely at more vulnerable
situation. A rapist in such a case in addition to physical ravishment exploits her mental non-
development and helplessness. The legislature would do well in prescribing higher minimum
sentence in a case of this nature. The gravity of offence in such case is more serious than the
enumerated categories indicated in sub-section (2) of Section 376”

Barriers to justice

The problem with the present rape laws is manifold. These issues have to be addressed as soon as
possible, considering the fact that such offences are on a rise. It does not address forced penetration
of objects and parts of the body into the vagina and anus; and forced oral or anal intercourse. Firstly
the rape laws do not recognize marital rape etc. This causes grave injustice to many victims. In
many cases of child rape, the child has been penetrated through fingers or by objects or been force
to perform oral or anal sex; yet the Courts do not consider this rape. In R v. R, the House of Lords
in England in the year 1991, widened the scope of criminal liability by declaring that the husband
could be charged as a principal offender in the rape of his wife.

However, the above decision of the House of Lords has not been followed in India- where marital
exemption to the husband still exists. One of the major obstacles in delivering justice in rape cases
or for that matter almost all criminal cases is the poor quality of investigations. The victims are
not taken for prompt medical examination. The long time that is taken to complete a rape trial is
another impediment. As observed by Krishna Iyer, J. in Rafique’s case

“When a woman is ravished, what is inflicted is not mere physical injury but the deep sense of
some deathless shame… judicial response to Human Rights cannot be blunted by legal bigotry.”
The Supreme Court has laid down the following guidelines for the trial of rape cases.The
complaints of sexual assault cases should be provided with legal representation. Such a person
should be well acquainted. The Advocates role should not merely be of explaining to the victim
the nature of the proceedings, to prepare for the case and assist her, but to provide her with
guidance as to how she might obtain help of a different nature from other agencies- for e.g.
psychiatric consultation or medical assistance.

Legal assistance should be provided at the police Station, since the victim may be in a distressed
state. Guidance and support of a lawyer at this stage would be of great help. The police should be
under a duty to inform the victim of her right to a counsel before being interrogated. A list of
lawyers willing to act in these cases should be kept at the police station. Advocates shall be
appointed by the Court on an application by the police at the earliest, but in order that the victim
is not questioned without one, the Advocate shall be authorized to act at the Police Station before
leave of the Court is sought or obtained.

In all rape trials, anonymity of the victim must be maintained. It is necessary to setup Criminal
Injuries Compensation Board with regard to the Directive Principles contained under Article.
38(1) of the Constitution of India. As some victims also incur Substantial losses. Compensation
for the victims shall be awarded by the Court on the conviction of the offender and by the Criminal
Injuries Compensation Board- whether or not a conviction has taken place. The Board will take
into account pain, suffering, shock as well as loss of earnings due to pregnancy and child birth if
this accrued as a result of rape. The National Commission for Women be asked to frame schemes
for compensation and rehabilitation to ensure justice to the victims of such crimes. As observed
by Justice Saghir Ahmad, “Unfortunately a woman in our country belongs to a class or group of
society who are in an 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.

2013: Criminal Law Amendment Act

Analysis of laws before the criminal law amendment, 2013

Rape laws have seen numerous transitions before reaching the present form through the criminal
law amendment of 2013, which was brought through as an ordinance as the parliament was not in
session. This amendment was brought after a nationwide outrage against the brutal rape of a
physiotherapist student in Delhi .

Section 375 of the Indian Penal Code defines Rape. In common parlance rape is described as sexual
intercourse with a woman without her consent by force, fear or fraud. Section 275 has seen an
amendment in the year 1983, which overhauled the definition of rape and also made changes to
the punishments that were stipulated under the section 376. This was made through the Criminal
Law (Amendment) Act of 1983. Interestingly this amendment was also brought about due to the
widespread criticism of a judgment in the case of Tukaram v State of Maharashtra, In this case
the trial court had pronounced the accused as not guilty which was based on the concept that the
victim had given tacit consent to the act. It was also observed that the girl was of promiscuous
character which was used as reasoning for the tacit consent.

This was overturned by the Bombay High Court which rightly pointed out that there was a huge
difference between consent and passive submission. It was very correct in its observation that mere
surrender to another person’s lust should not be taken as consent. This was upturned by the
Supreme Court who acquitted all the accused. This judgment was criticised widely by the civil
society. The ramifications of the case were seen in the amendments that were brought about in the
IPC and the Indian Evidence Act. Section 376 A to D were added to the IPC and section 114A was
introduced in the Indian Evidence Act.

To analyse the laws before the criminal law amendment act 2013 it is important to know how the
sections have defined rape and the punishments associated with it. The crux of the definition of
rape in section 375 IPC before the amendment of 2013 is that rape involves coercive
nonconsensual sexual intercourse between a man and a woman. There are six circumstances that
can be said to be the constituents of rape. The primary condition necessary for rape to be committed
is that there must be the commission of sexual intercourse between the man and the woman. It is
widely believed that rape can only be committed if the sexual intercourse has been done without
the consent of the victim, but this is not always the case, rape can be committed even after consent
has been obtained if the age of the woman is below the age of sixteen years.

On a closer look at the circumstances required for the commission of rape it can be broadly divided
into three parts. The first two clauses reveal that they deal with sexual intercourse with a woman
‘against her will’ and ‘without her consent’. This means that the woman is consciously capable of
giving or not giving consent to the act. The next two clauses deal with the woman giving her
consent due to coercion that is by putting her or any of her family member to threat of hurt or
grievous harm and it also deals when the consent is obtained through misconception. The last two
clauses deals with the situation when the consensual sex with underage female person takes place.

Explanation of the term ‘Sexual Intercourse’ and ‘Penetration’

These are the terms that have undergone the most comprehensive change in the recent amendment
of 2013. Before the amendment of 2013, sexual intercourse was taken to mean the penetration of
the male genital organ into the female genital organ only. The courts interpreted the term sexual
intercourse as “mere slightest or partial penetration of the male organ within the labia majora or
the vulva or pudenda is sufficient to constitute ‘sexual intercourse’.

The courts have stressed on the fact that the depth of the penetration is immaterial. It is also laid
down that there is no requirement for injuries to be present on the private part of the woman to
constitute rape. The hymen need not be ruptured. Thus the essential condition of rape is penetration
and not ejaculation. Ejaculation without penetration will constitute as an attempt to rape and not
rape actuall.. These conditions were expressly mentioned by the Supreme Court in the case of
State of Uttar Pradesh v Babulnat.

The court in this case while delving into the essential ingredients of rape made the observation
that “To constitute the offence of rape it is not at all necessary that there should be complete
penetration of the male organ with the emission of semen and rupture of hymen. Even Partial or
slightest penetration of the male organ within the labia majora or the vulva or pudenda with or
without any emission of semen or even an attempt at penetration into the private part of the victim
would be quite enough for the purposes of section 375 and 376 of the Indian Penal Code. That
being so it is quite possible to commit legally the offence of rape even without causing any injury
to the genitals or leaving any seminal stain”.

An important issue of widening the ambit of section 375 to include the any bodily penetration as
rape was raised in the case of Smt Sudesh Jhaku v KCJ & Ors. The petitioners wanted to increase
the ambit of the definition to include penetration of any male body part into any orifice in the
woman’s body. This however was rejected by the court which was not in favour of tinkering with
the existing definition of the term. The court said that it was necessary to prevent chaos and
confusion in the society with regard to the changed definition of rape and hence Section 375 should
not be altered.

It is also important to note that there is also an exception to section 375. The exception is known
as Marital Rape. Marital Rape is defined as nonconsensual sex with wife who is over the age of
15 years. The crux of the argument is that any coercive or nonconsensual sex with a wife over the
age the age of 15 years will not be considered as rape within the purview of section 375. The
immunity of the husband from getting convicted for marital rape arises from the assumption that
after marriage husband gets a lifelong consent for sexual intercourse with his wife. This is a very
problematic situation according to me because this is in contravention to the statute that states that
the minimum age for marriage of a woman should be 18 years. So if that is the case a man cannot
marry a wife who is of 15 years of age. I also don’t agree with the fact that Marital Rape is not
considered to be rape because I don’t agree with the concept of lifelong consent to sexual
intercourse just because a couple is married.

Rape Laws after the Amendment of 2013

The Criminal Law Amendment Act of 2013 was brought into effect after the horrific Delhi Gang
Rape case which shocked the whole nation with the brutality of the act committed. Widespread
protests and agitations forced the legislature to contemplate the changing of the prevalent rape
laws. The basic idea was to make them more stringent and introduce harsher punishments besides
broadening the ambit and definition of the term rape.

Late Justice J.S.Verma, Gopal Subramaniam and Ex-Justice Leila Seth comprised the rather
famous ‘Justice Verma Committee’ which was made to collect suggestions and make
recommendations for the legislature to make a law to combat rape and other crimes against
women.The technical committee was so proactive with its working that during its short duration it
received as many as 80,000 suggestions over which deliberations were done. These suggestions
were sent by various activists, lawyers, NGOs and other persons representing the ‘civil society’.
Since the legislature was adjourned and there was no session, the committee’s recommendations
were introduced via an ordinance.

The offence rape was now amended or given a broader meaning which was comprehensive enough
to include any kind of penetration and also in any body part of the woman or girl. This was the
most important change because earlier section 375 of the IPC only stipulated the Penile Vaginal
penetration as rape. The fact that the new recommendations added that any penetration would be
considered as rape was the most efficient tool in widening the ambit of the term rape which was
being demanded earlier on the basis of the recommendations of the fifth law commission report.
There was also the inclusion of registering complaints and medical examination. The report
categorically mentioned, “Any officer, who fails to register a case of rape reported to him, or
attempts to abort its investigation, commits an offence which shall be punishable as prescribed.”

The committee gave extensive recommendations regarding avoiding marital rape as well as rapes
committed via commission of void marriages. This was very important as I feel that Marital Rape
is a loophole that is very explicit and on the face in nature. It is a topic that is not very hidden that
legislations are not being made on the issue.

This is why it is such an important thing since everyone knows about it and yet the effort to include
it under the definition of rape has only begun recently. To include this fact and observation the
committee mentioned compulsory registration of marriages so as to provide legal sanctity
solemnization of marriage. The Code of Criminal Procedure also underwent a similar overhauling
attributed to the new law and had previously gone through the same process after the judgment in
the Supreme Court decision in the “Gurmit Singh Case”.

Critical Comparison of two legislation

It goes without saying that the laws have now changed drastically from what it existed previously.
Societal views changes from time to time with the advent of new values and technologies. It is
only fair that similarly laws which matter so much in regulating the law and order prevailing in
the society also changes from time to time. This is important to counter and combat new types of
crimes that have emerged of late such as cybercrimes which include data theft, harassing, breach
of privacy and so and so forth. The major rape and sexual assault cases such as the ‘Shopian Rape
Case, the Aruna Shanbaug Case, Nirbhaya Rape Case, Priya Patel, the Mathura Rape Case, etc.
all have had an effect on the functioning of rape laws and their interpretations as well as
reformations. Rape was included in the Indian Penal Code, 1860 in its original form since 1924.

The Criminal Law (Amendment) Act, 2013 was a replacement of the Criminal Law (Amendment)
Ordinance, 2013. The Act was mandated to make change in the Indian IPC & CrPC as well as the
Indian Evidence Act. There was a rise in threats towards individual privacy in the country and it
was high time to include certain new crimes under the Indian Penal Code in consonance with the
passing of time. A new crime that was introduced and was not provided for in the country’s earlier
legislations was ‘voyeurism’ which means the recording or viewing images, movies or any such
media material without the permission of the person portrayed or screened in them would result in
penal punishment. A ‘voyeur’ is defined as “a person who derives sexual gratification from the
covert observation of others as they undress or engage in sexual activities.” Voyeurism is a
criminal act which creates apprehension for society and is infringement of expectations of privacy
that all citizens have about their body which they do not wish to expose it to other.

The inclusion of voyeurism as a crime under the Indian Penal Code has made sale of pornography,
invasion of privacy and all forms of sale of defamatory pictures as prohibited and this has resulted
in apprehension in minds of criminals.

Another very important change from previous legislations is the much required change in the
procedure of providing evidence in the court of law. After the Mathura rape case the outcry did
result in amendment of Section 114A of the Indian Evidence Act. This was done to maintain that
despite there being the lack of consent given by the women, there was often a character
assassination of the women at the court trials which was very unfortunate.

Thus there was a transition from earlier legislations and Section 53A of the Indian Evidence Act
was introduced making it explicit that in a trial where there was sexual assault or rape then the
evidence supplied relating to the victim’s previous sexual experience or even for a matter of fact
her ‘character’ could not be admissible in the court of law. Still is unfortunate that the character
assassination of the victim continues in the society which increases the hurt suffered by the victim.

On instances of rape or sexual assault cases the evidence concerning consent is often derived on
the basis of the past conduct of the woman which seems rather frivolous as at the instance of the
abuse she might not have consented thus constituting the criminal act. In earlier cases prostitutes
could be raped and their right would not be protected as the victim’s previous sexual experience
and “promiscuous character” would always malign the proceedings and create a bias in the
judiciary’s mind.
The sole reason for this inclusion of this amendment was to prevent the breach of privacy of the
victim’s sexual history by preventing it to be included as a piece of evidence in court. Thus
unwarranted intrusion in the privacy of the victim’s life should not be supported by members of
the civil society. The new law protected defamation of the woman and rights of the woman to live
with dignity.

Lastly and very importantly, there was also an introduction of sexual harassment at workplace
(under section 354 of the IPC in addition to the Sexual Harassment at Workplace Act, 2013) and
an enhanced definition of rape provided for in the amended law. The earlier legislation had focused
on coercion and the fear of death or hurt of someone close to her as an example of force exerted
or lack of consent when there was commission of rape. Another example of deceit which
culminated into the act of committing rape was commission of false marriages.

Criminal Law Amendment Act 2018

Amendments to IPC: Issues & concerns

The IPC is one of the most important piece of criminal legislations in India. It consists of an
elaborate code of Offences with their definition and punishments. Prior to the CLAA, IPC was last
amended by the Criminal Law (Amendment) Act, 2013 which introduced several reforms in the
realm of sexual offences. The CLAA has amended the IPC in two ways – Firstly, by amending the
existing sections of IPC; secondly, by inserting new sections which have created new offences in
IPC. The recent amendments aim at deterring the increasing trend of sexual violence against
minors. However, the ‘deterrence’ which the law seeks to bring has been brought about at the cost
of proportionality and reasonableness of criminal laws. On a bare perusal of the provisions one
can make out the manifold increase in the sentences which the State believes would act as a
deterrent to such acts of sexual violence. However, the law fails to reconcile itself with the ground
realities of gender related sexual violence in India, and the established principles of criminal law.

Enhanced punishment & blurring classification of rape

On a careful perusal of section 375 and 376 one can identify a classification of rape – rape
simpliciter punishable under section 376 (1), IPC and aggravated forms of rape punishable under
section 376 (2), IPC. The former class of rape lays down the general offence of rape and invites a
lesser punishment. Whereas, the latter class of rape provided under section 376 (2) lays down 14
circumstances where the nature of rape is considered more serious due to the presence of an
aggravating factor 12 and therefore, has higher punishment. Any man who commits an aggravated
form of rape is liable for prosecution u/s 376 (2) which has a minimum punishment of 10 years
which may extend to life imprisonment. Whereas any man who commits an act, on a woman,
which falls within the definition provided under section 375, IPC is liable for prosecution u/s 376
(1), provided it doesn’t fall in any of the clauses of section 376 (2). Prior to the CLAA, minimum
punishment for rape simpliciter was 7 years, whereas maximum punishment was life
imprisonment. However, the CLAA has increased the minimum sentence from 7 years to 10 years.
13 On the face of it the amendment appears to be a strong provision against rape. However, on a
careful look, one can appreciate its real implications. The worrisome aspect of the new law is the
fact that it obliterates the distinction between rape simpliciter and aggravated form of rape. Now
logically speaking the presence of any aggravating factor, as enumerated in 376 (2) from clause
(a) to (n), should have warranted a greater punishment.

But, post-CLAA, both classes of rape will invite same punishment. There appears to be no rational
basis as to why rape simpliciter should have the same punishment as awarded in aggravated forms
of rape. Moreover, when the scheme of IPC itself recognises classification based on aggravated
nature of offence, then punishment should also be in proportion to such classification. Whether
this oversight is intentional or result of a ham-fisted drafting is difficult to say but has wide and
serious ramifications.

With regard to rape of a woman under 16 years of age, section 376 (2) clause (i) has been deleted;
and sub-section (3)15 has been inserted which provides a minimum punishment of 20 years which
may extend to life imprisonment (which means the remainder of that person’s natural life).
However, the constitutional validity of the minimum imprisonment of 20 years provided under
section 376 (3) is questionable when judged on the ground of proportionality. At a time when
sexual experimentation among adolescents is not an uncommon phenomenon, the severity of the
minimum 20 years’ imprisonment, transcends the limits reasonableness and fairness. Let’s assume
a girl who is under 16 years of age enters into a consensual physical relationship with a man (18
years’ age).
This being a case of statutory rape, once the fact that the prosecutrix is below the age of consent
(18 years in India), is proved, the question of consent becomes irrelevant and sexual intercourse
with her amounts to rape irrespective of her consent. But a sentence of ‘20 years’ imprisonment to
the boy, in the absence of judicial discretion (which existed prior to 201317) appears to be
unreasonable and too harsh. The judge will be mandatorily required to sentence the man 20 years’
imprisonment, who will eventually get released at the age of 38 years or may never get released in
the event of life imprisonment. The law will also create counterproductive results when the
offender is a minor. For instance let’s assume that the offender is 17 years of age, after the
enactment of the Juvenile Justice Act (Care and Protection of Children), 2015 18 (hereinafter JJA)
a juvenile may be tried as an adult19 and may be awarded imprisonment under the provision of
IPC (except death and life imprisonment)20 .

In view of the lacunas in the practical implementation of the JJA and shoddy compliance by law
enforcement agencies is always a cause of concern. Various experts have red flagged ambiguities
in the JJA which is resulting in abrogation of justice in cases pertaining to juveniles in conflict
with law. In such cases, a juvenile in conflict with law may be awarded a sentence of 20 years.
This sentence, which is not a short period of time, may cause injustice to a juvenile and frustrate
the object of reformation.

While the amendment of 2013 also introduced a mandatory minimum sentence of 10 years, from
there to mandatory sentence of 20 years as introduced by the CLAA, without any credible research
or justification is a substantial increase. Senior Advocate Indira Jai Singh argues that “the
mandatory nature of the offence takes away the discretion of the judge. Every sentence must fit
the crime”. 22 Absence of judicial discretion would make sentencing process more rigid and static.
A straight jacket sentencing policy without any scope for judicial discretion in awarding sentences
would hamper individualisation of sentencing.

Challenges of ratifying national laws with the global VAW agenda

Kapur and Cossman (1996) highlight divisions within the Indian women’s movement around
utilizing strategies to address violence against women that relied extensively on the state, and
especially on criminal law. While some activists continued to lobby for criminal legislation to
protect women against violence, others were concerned with the willingness to extend the criminal
powers of the state through enacting such legislation (Kannabiran 2010; Kapur and Cossman
1996). A key concern was the appropriation of feminist language by the state, without embracing
feminist politics (Ganguly 2007).

Kapur and Cossman’s (1996) analysis of how law is implicated in the oppression of women reveals
in particular the ways in which familial ideology constituted legal regulation of women as
economically dependent wives and mothers, with emphasis on women’s natural roles and
responsibility within the family. This legal discourse was then used by the state to advance political
agendas of reactionary social movements such as the Hindu Right. By the 1990s, Butalia (2002)
was arguing that Indian feminists could no longer maintain a discourse that primarily situated
women as victims, as stark examples of violence against women by other females became evident
through communal riots in 1992.

For instance, during the destruction of Babri Masjid, female Hindu fundamentalists were known
to provoke assault by Hindu men on Muslim women: ‘If a girl who has been raped commits
suicide, will her brother not take revenge? Hindus must make sure they are feared by others … If
they rape 10‐15 of our women, we must also rape a few to show we are no less [emphasis in
original] ’ (Butalia 2002: 228). Thus Indian feminists could no longer afford to think in simplified
dichotomy, casting men as pure aggressors and women as pure victims. Subsequently, the Indian
women’s movement necessarily examined how women were also invested in politics of
community identity.

This forced the movement to examine implicit assumptions about whether gender identity was
enough to build a movement cutting across caste, class and race (Butalia 2002). Thus, in the 1990s,
the Indian women’s movement was forced to confront the messy realities and challenges of
navigating through a national rhetoric of pluralism and nation states exercising their right to
difference while upholding the discourse of a global feminist agenda that pushed for the
universality of women’s rights as human rights, rooted in western ideology.

The fundamental right to self‐determination was juxtaposed against the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW) articles that ‘obliged the
state to correct any inconsistency between international human rights law and the religious and
customary laws operating within its territory’ (Coomaraswamy 1997: 1259).
Amirthalingam (2005) summarized the situation with his observation that ‘cultural practices and
traditions need to be preserved, while certain universal values must be equally protected’
(Amirthalingam 2005: 707). When signing CEDAW, India continued to allow separate personal
laws for religious minority communities such as upholding the Sharia Law among Muslim
minorities, even if they violated the basic tenets of the convention. Shah Bano, a Muslim woman,
sued for maintenance under the criminal procedure law even though the Muslim personal law
allows Muslim men to not pay maintenance. The Supreme Court of India decided to draw from
the criminal law provision and ruled in favour of the woman, leading to rioting and uproar in major
cities. Anger among the minorities was expressed in the discourse of rights to self‐determination,
pluralism and diversity. This led the then Prime Minister Rajiv Gandhi to amend the criminal law
so as to appease the angry Muslim minority, despite the clear violation of women’s rights as
presented in this case (Coomaraswamy 1997). Attempts to over‐rule the clause of personal law
met with violent protests from minority groups, as highlighted in the case of Shah Bano.
Conversely, we saw the Hindu Right fundamentalists make a strong demand for a uniform code,
determined by Hindu law.

With a focus on the inadequacies of Muslim law and despite clear gender biases in Hindu law, a
myth was created that ‘“enlightened” Hindus are governed by an ideal gender‐just law and this
law now needs to be extended to Muslims in order to liberate Muslim women’ (Agnes 1998: 107).
Agnes argued that, although legal reforms were necessary, it was important to be cautious of
‘modern secular laws’ pushed by CEDAW which could be appropriated by fundamentalist
elements to further their own anti‐minority propaganda. Such instances of misappropriation further
polarized the western conventions of women’s rights as articulated through CEDAW and criminal
laws on VAW because they were incompatible with the rhetoric on patriarchal traditional and
personal laws.

Conclusion

To conclude with the comparison between the legislations it can be said that the two major
substantive changes were introduction of sixteen forms of rape (Penetration made by object and
all parts of body included) and also the increase in age of consent. Both were introduced to combat
rise of rapes committed on minors specifically. Though there was another recommendation by the
J.S.Verma Committee which wanted to introduce marital rape under section 375 but this was not
allowed as it would have been a social controversy.

One must also note that the sexual harassment at workplace which was for the first time
highlighted in the case of Sakshi v. Union of India which was a public interest litigation seeking
punishments for sexual harassment committed against women at workplaces. It also wanted to
widen the interpretation of rape to include all forms of penetration to be covered, the court had
then given the decision in favour of the NGO but the parliament was did not recognise it. The 2013
Amendment and Act made this a reality as it gave sanction to the judgment. So I believe laws can
be made much more stringent than they already are.

BIBLOGRAPHY

[1] Times of India Kolkata 2013 May 19; 1 ( Col. 3)

[2] Bhupinder Sharma v State of Himachal Pradesh AIR 2003 SC 4684

[3] AIR 1979 SC 185

[4] Madan Gopal Kakkad vs Naval Dubey (1992) 3 SCC 204;

[5] Wahid Khan v State of Madhya Pradesh (2010) 2 SCC 9;

[6] Fateh Chand vs State of Haryana, (2009)15 SCC 543

[7] Guddu vs State of Mp,(2007)14 SCC 454, 2006.

[8] Ramkripal Shyamlal Charmakar vs State of Madhya Pradesh(2007) 11 SCC 265;

[9] (1994) 6 SCC 29

[10] Ibid.

[11] (1998) Cr LJ 2428

[12] http://en.wikipedia.org/wiki/J._S._Verma

Oxford English Dictionary, available at http://bit.ly/YN2ZvI accessed on 2 August 2014

[22] Lance Rothenberg, Rethinking Privacy: Peeping Toms, Video Voyeurs, and the failure of
criminal law to recognize a reasonable expectation of privacy in the public space, American
University Law Review, 49, 1127,

(1999).

[23] http://cis-india.org/internet-governance/blog/the-criminal-law-amendment-bill-
2013 accessed on 2 August 2014

[24] State of Maharashtra v. Prakash, AIR 1992 SC 1275: 1993 Supp (1) SCC 653

[25] State of Himachal Pradesh v. Mango Ram, (2000) 7 SCC 224

[26] Jayanti Rani Panda v. State of West Bengal, 1984 Cr LJ 1535

[27] AIR 2004 SC 3566