Rape is a stigma which exists in the
society from a long time. The dictionary meaning of word rape is “the ravishing
or violation of a woman.” The rape victim i.e. a woman as woman cannot commit
rape due to biological reasons. She is traumatized after the event; it is very
difficult for a woman to come out of this trauma. Rape in India
U/s 228A of
Indian Penal Code, No person can disclose the name of the rape victim and if
anybody discloses the name, he shall be punished with either description for a
term which may extend to two years and shall also be liable for fine.
U/s 114-A
of Indian Evidence Act, presumption can be made as to the absence of consent in
certain prosecutions for rape.
U/s 53(1)
of Code of Criminal Procedure, When a person is arrested on a charge of
committing an offence of such a nature and alleged to have been committed under
such circumstances that there are reasonable grounds for believing that an
examination of his person will afford evidence as to the commission of an
offence, it shall be lawful for a registered medical practitioner, acting at
the request of a police officer not below the rank of sub-inspector, and for
any person acting in good faith in his aid and under his direction, to make
such an examination of the person arrested as is reasonably necessary in order
to ascertain the facts which may afford such evidence, and to use such force as
is reasonably necessary for that purpose.
U/s 164A of
Code of Criminal Procedure, provisions for medical examination of rape victim
are given.
U/s 327(2)
of Code of Criminal Procedure, there should be in camera trial for all rape
victims.
The
Judiciary in India
As every
coin has two sides, in this case also there are two sides. Many a times girls
also make fake complaints just to ruin the life of a boy, sometimes the parents
of girl compels her to file a complaint against the boy she loves, as the law
shows a lot of sympathy towards the girl. The accused is left with nothing,
when the complaint is made his life is ruined irrespective of the fact that he
was proved guilty or not. So, in my views there must come an amendment which
equalizes the burden of proof on both the sides and the law works smoothly. It
should be such that is contradicts the statement i.e. “Law is there for
vigilant.”
Introduction:
Rape is a
crime, which has a devastating effect on the 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 .
Incidence and prevalence:
Police
statistics show more than 50000 rapes are reported every year . In 1987 and
1991 number of cases reported were7767 and 9793 respectively. About 26% (11112)
increase in number in the year 1992 – (NCRB). There is one rape in every 54
minutes .
As observed
by Justice Arjit Pasayat:
” While a
murderer destroys the physical frame of the victim, a rapist degrades and
defiles the soul of a helpless female.”
Justice
Krishna Iyer has observed in a very famous case of Rafiq v. State :
“A murderer
kills the body but a rapist kills the soul.”
What is Rape?
Rape under
English law is defined more particularly where the law cover all the aspect of
rape. Under the Sexual Offences Act 2003, which came into force in April 2004,
rape in England and Wales
Sexual
offence act, 2003 states as follows:-
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
.
With
compare to this law, law of India under penal code not cover the penetration of
mouth and if such happened then that not amount to rape under our present law
above all in India it is observe by our Hon’ble courts that in case of rape if
any woman help to commit such rape she will be not charge for the offence of
rape as she help to commit the rape but in England it happens and their
punishment are also more than us so any one before committing this must think
and in the mind of people there is some fear about law and it’s punishment.
Like every
other country, laws relating to rape do exist in India
Rape means
an unlawful intercourse done by a man with a woman without her valid consent.
(Section 375 of the Indian Penal Code, 1860 )
A man is
said to commit “rape” if he has sexual intercourse with a woman under
circumstances falling under any of the six following 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 sixteen years of age.
Explanation:
Penetration is sufficient to constitute the sexual intercourse necessary to the
offence of rape.
Exception:
Sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.
AMENDMENTS TO RAPE LAWS IN 1983 were
made to address mainly 3 issues :
A. Minimum
Punishment in rape cases (IPC Section 376 sub section 1)
B. Special
cases of rape (IPC Section 376 subsection 2 a-g )& A)
C. Marital
Rape (IPC Section 376 A)
D. Abuse of
official power (IPC Section 376,B,C,D)
A. MINIUM
PUNISHMENT (Section 376 subsection 1 of Indian Penal Code)
1. Whoever,
except in the cases provided for by sub-section (2), commits rape shall be
punished with imprisonment of either description for a term which shall not be
less than seven years but which may be for life or for a term which may extend
to ten years and shall also be liable to fine unless the woman raped is his own
wife and is not under twelve years of age, in which case, he shall be punished
with imprisonment of either description for a term which may extend to two
years or with fine or with both : Provided that the court may, for adequate and
special reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than seven years.
Issues
Prior to
this amendment, minimum punishment wasn’t specified, hence this is commendable,
but if the judge decides that there is an adequate reason the punishment can be
reduced.
B. SPECIAL
CASES OF RAPE like rape of a girl who is below twelve years of age, rape
knowing the woman to be pregnant , gang rape, and custodial rape definitions,
Specific (and sometimes increased) Punishment in some of these cases Shift of
burden of proof to defendant from the victim in some of these cases. (Section
376 subsection 2 (a-g) of Indian Penal Code)
1. Rape of
a woman who is under twelve years of age [Sec.376 (2) (f)]
Punishment
Rigorous
imprisonment for a term which shall not be less than ten years but which may be
for life and shall also be liable to fine: Provided that the court may, for
adequate and special reasons to be mentioned in the judgment, impose a sentence
of imprisonment of either description for a term of less than ten years.
Issues
Unfortunately
other than the increased minimum punishment from 7 years to 10 years, no other
special concession is given to Child Rape given the increased trauma for the
girl. Since even the minimum punishment can be reduced by the judges, much
needs to be done in this area.
2. Rape of
a woman, knowing her to be pregnant (Sec.376 Subsection 2- e)
Punishment
Rigorous
imprisonment for a term which shall not be less than ten years but which may be
for life and shall also be liable to fine: Provided that the court may, for
adequate and special reasons to be mentioned in the judgment, impose a sentence
of imprisonment of either description for a term of less than ten years.
Exemption
from burden of proof if the victim states in court that she did not consent,
then the court shall presume that she did not consent and the burden of proving
consent shall shift to the accused
3. Gang
Rape ( Sec.376 Subsection 2- g)
“Where a
woman is raped by one or more in a group of persons acting in furtherance of
their common intention, each of the persons shall be deemed to have committed
gang rape within the meaning of this sub-section. ”
Thus even
if five men force a women into having sexual intercourse with only one of them,
the remaining four will also be considered to have committed rape under this
law. Punishment
Rigorous
imprisonment for a term which shall not be less than ten years but which may be
for life and shall also be liable to fine: Provided that the court may, for
adequate and special reasons to be mentioned in the judgment, impose a sentence
of imprisonment of either description for a term of less than ten years.
Exemption
from burden of proof :
If the
victim states in court that she did not consent, then the court shall presume
that she did not consent and the burden of proving consent shall shift to the
accused.
4.
Custodial Rape: (Sec.376 Subsection 2 a, b, c , d):
Rape
committed on a woman in their or their subordinate’s custody by
a) police
officer
(i) within
the limits of the police station to which he is appointed; or
(ii) in the
premises of any station house whether or not situated in the police station to,
which he is appointed; or
(iii) on a
woman in his custody or in the custody of a police officer subordinate to him;
b) public
servant
c)
management or the staff of a jail, remand home or other place of custody or a
women’s or children’s institution
d)
management or on the staff of a hospital
Punishment
Rigorous
imprisonment for a term which shall not be less than ten years but which may be
for life and shall also be liable to fine rovided
that the court.
To understand
the impact of sexual harassment on women one must listen to the account of its
victims as no one conveys the meaning and truth of sexual harassment better
than the women who have endured it. In response to the question “What kind of
emotional response do eve-teasing /sexual harassment evoke in you”, not a
single woman ticked the category of “indifferent”. The survey of the Gender
Study Group shows that most women felt disgusted, insulted and scared by any
sort of harassment.
Women often
internalise male perceptions of sexual harassment and blame themselves for
having brought on the harassment. They not only doubt the validity of their own
experiences but begin to believe that they themselves must be ‘abnormal’,
‘cheap’, ‘indecent’ or deserving the violence that comes their way.
Sexual
harassment is nothing less than the showcasing of male dominance. Given an
opportunity, such men (those committing sexual harassment) would try fulfilling
their desire. However, it also not true that all cases of sexual harassment are
such- where the accused is guilty of conceiving the intention of a sexual
intercourse. But it also depends on each individual case and circumstances,
because it may well be the case that the woman may also be at fault.
Every 60
minutes, two women are raped in this country. What is more horrendous is that
133 elderly women were sexually assaulted last year, according to the latest
report prepared by the National Crime Records Bureau (NCRB). A total of 20,737
cases of rape were reported last year registering a 7.2 per cent increase over
the previous year, with Madhya Pradesh becoming the “rape capital” of the
country by topping the list of such incidents.
Going by
the NCRB statistics, two women are raped in the country every hour. Madhya
Pradesh accounted for 14.5 per cent of the total cases (3,010), with West Bengal following with 2,106 such incidents. Records
of high incidence in other states include Uttar Pradesh (1,648), Bihar (1,555) and Rajasthan (1,238). The national capital
had 598 cases in which 602 women were sexually assaulted.
In its
report Crime in India
According
to the official statistics of 1991, one woman is molested every 26 minutes.
These statistics refer to the reported cases. Whereas, if the unreported cases
were to be included, it would be a matter of seconds- rather than minutes.
investigation of Most cases are not reported by victims because of various
reasons such as family pressures, the manner of the police, the unreasonably
long and unjust process and application of law; and the resulting consequences
thereof.
In
instances where women have reported such illegal and unwelcome behavior, there
have been significant victories in the past decade or so. Also considering the
fact the sometimes these victories are achieved after a wait of a decade or so.
As Kiran
Bedi., Retd. Joint Commissioner, Special Branch has observed:
“The law of
rape is not just a few sentences. It is a whole book, which has clearly
demarcated chapters and cannot be read selectively. We cannot read the preamble
and suddenly reach the last chapter and claim to have understood and applied
it.”
In the Mathura rape case , wherein Mathura-
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 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
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
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 Vs State , 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 a indication of 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.
In State of
Punjab
The Supreme
Court has in the case of State of Maharashtra
Vs. Madhukar N. Mardikar
In Delhi
Domestic Working Women v. Union of India , the Apex Court
• 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.
• 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 B.
Gautam v. Shubra Chakraborthy , it was held that Rs. 1000 per month should be
given to rape victim as an interim compensation.
In
Chairman, Railway Board vs. Chandrima Das , 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
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.
Causes of Increased Rape Cases in India
Rape,
molestation and abductions, the crimes are numerous but low conviction rates
for the same is one of the major reasons for the growing number of offences
against women, point out experts.
“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).
While there
were 37,000 cases of molestation and eve-teasing in 2006-07, the conviction
rate for such crimes, is below 30 per cent. For rape it is just a dismal 27 per
cent.
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
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.
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
There is a
need for review in certain provisions under various laws related to rape so
that victims get justice.
The National Commission for Women has
identified nine areas for review . These are:
1. Review
of the definition of rape
2.
Reduction of procedural delays
3.Uniformity
in age of consent under sections 375 and 376 of Indian Penal Code, 1860, to
bring it in conformity with the Child Marriage Restraint Act, 1869
4. Whether
exception to section 375 should be deleted
5. Whether
section 155 clause 4 of the Indian Evidence Act 1872 needs to be amended or
deleted.
6. Whether
statutory provisions are needed for compensation to the rape victim
7. Whether
provisions for counseling legal aid should be made mandatory under laws.
8. Death
penalty to persons convicted for rape
9.
Recommendation for enhancement of punishment in cases where the accused, with
the knowledge of suffering from HIV infection/AIDS, infects the victim as a
result of rape.
Conclusion:
The courts and
the legislature have to make many changes if the laws of rape are to be any
deterrence. The sentence of punishment, which normally ranges from one to ten
years, where on an average most convicts get away with three to four years of
rigorous imprisonment with a very small fine; and in some cases, where the
accused is resourceful or influential- may even expiate by paying huge amounts
of money and get exculpated. The courts have to comprehend the fact that these
conscienceless criminals- who sometimes even beat and torture their victims-
who even include small children, are not going to be deterred or ennobled by
such a small time of imprisonment. Therefore, in the best interest of justice
and the society, these criminals should be sentenced to life imprisonment.
Law remains
but the number of victims (including minor) continues to increase destroying
the very soul of the helpless women. The concept of marital rape does not exist
in India
The
Amendment 1983 has brought about some important changes in the existing laws of
rape as a response to the growing public opinion demanding more stringent anti
rape laws. It amends Section 376 IPC and enhances the punishment of rape it
also provides enhanced punishment of minimum of 10 years of imprisonment for
police officers or staff of jail, the remand homes or other places of custody
established by law. The Act further inserts a new Section 114-A IEA, by raising
a presumption as to absence of consent in cases of custodial rape, rape on
pregnant women and gang rape at least partially, removed the infirmity from the
evidence of a victim of rape that was hitherto unjustly attached to her
testimony without taking note of the fact that in India, unlike the occident a
disclosure of the girls identity, rehabilitation in society for all times to
come and unless her story was painfully true she would not have taken such a
grave risk merely to malign the accused.
Severe and
certain punishment in a time bound manner, of the rapists has some deterrent
value. Arrest alone may not constitute a strong societal response. Lengthy
prison sentences have some behavior-altering deterrent values. Many well-known
jurists and public men have advocated capital punishment for the criminals who
commit rape as it is an offence worse than murder so far as its impact is
concerned. Still there is need for amending the anomaly related to the age of
consent, and of wife in accordance with the Marriage Act in India
