Updated: Aug 16, 2021
Written by -Shivani Sharma
Our Indian Legal system has provided a wide range of substantive and procedural laws where every crimes or acts have been elaborated with the proper remedy. It is well known fact that law cannot work in static environment and this is the reason why the lawmakers have provided a wide scope for amendments as well. But sometimes the law is considered so bad in itself that it leads to a major change in the bare text which requires lot of debates .This process is so lengthy that it will lead to a bad experiences which disturbs the social as well as political norms of the country. This is the reason why many amendments have been done in Indian Penal Code 1860.
More specifically Criminal Law Amendment Act 2013 and 2018 have showed a major impact on sexual offense described in IPC. These amendments help the woman in order to seek justice. Many scholars have said that when all the property offense mentioned in IPC are committed upon human body (woman) then it is considered to be as rape which is more heinous in nature. This articles helps us to know about the position of rape laws prior to these amendments and how these changes helps the lawyer and the judges to decide these cases and come out from any kind of prejudice.
POSITION OF RAPE LAWS IN INDIA PRIOR TO 2013 AMENDMENTS
Many renowned authors like Andrew Athwart and Rosales in their book says that when the rape is committed upon woman it affects the autonomy and dignity of the woman. So, this is the reason they have put these offenses in the category of Malum in se which is agonist the morality. They have also considered the rape as second most heinous offenses after murder.
It is hard to say that previous provisions of rape were not so supportive or in favour of woman in questions. The situation was so bad that there are cases where defence and even the judges were considered the woman’s pervious sexual behaviour in order to decide the rape cases. Earlier the term like “attempt to rape” was not recognised by the courts and this is the reason the court sometimes acquit and punish the accused under Section 511 read with section 375 of IPC .It gave enough scope to the defence to reverses his conviction and accused got free from any kind of liability. Due to this position of law many cases had been decided by the courts which set out bad precedent.
Earlier the position was that for committing the e offense of rape accused had to indulge in the sexual penetration with the woman. In this case court said that accused took off the clothes of the girl and set aside. The accused said that he did not do anything on her despite this .The court held that for the rape sexual penetration is more important and in this case it did not happen .So, the court convict the accused Section 354 of IPC not for the rape. There are many instances which showed that the court was not able to differentiate between the rape and attempt to rape. Subsequently the procedural part had also been affected which was turned out to be more suspected towards the character of the woman.
Initially the trend was that defence lawyer always had to question the character, dressing at the tie rape and previous sexual behaviour of the woman. So, that the defence can take some sort of relief from the honourable judge and sometimes the judges were bound to give the desired relief. The situation became worsen where the court agree to accept the fact that act has been done with the will and consent of the woman on the basis of pervious sexual behaviour.
As far as procedural law is concerned Indian Evidence Act provide a test called “Two Finger Test .This test was considered to a part of the medical examination in order to know the elasticity of Virginia of the woman in question. The results of this test showed that if the elasticity of Virginia is more than the woman is frequently indulged in sexual intercourse and vice versa. Defence lawyer forced the victim to conduct this test mandatorily in order to get some sort of relief. The said act also provides the scope to the defence of questioning those question which has the capacity to portray the immoral image of the woman.
In this case which is popularly known as Mathura rape case. A sixteen years old tribal girl was missing from her home .So, her brother filed a complaint about the same and the police was able to find her in a decent place at midnight. But one of the constable rapped her in the police station and another constable was stopping everyone to go inside. In this case two finger test was also conducted by the court where the results showed more elasticity of Virginia. The results of this test was accepted by the trial court and Supreme Court as well due to this constable got acquitted and thereby he was not charged with the rape. The example of this brutality was where a seven year old child under the custody of neighbour was rapped and after sometime when the mother came to know about this. The court did not grant a relief to the child and relied on unsatisfactory medical examinations. This shows that even the medical examination had become the way to defame the woman and an obstacle in order to seek justice.
CONSENT/WILL OF THE WOMAN
In general terms rape is defined as a forceful sexual intercourse with a woman without her consent and will. This means in order to proof rape, prosecution has to prove that the act has been done without the woman’s consent but sometimes it is difficult to proof the same. The main reason behind this is that the court always look into the physical state of the accused that means if there are no marks, screaming on the body of the accused also if there are no explicit reaction of fear and if she does not try to resist herself by means of force then it will construes as her consent to the sexual act. As mentioned above that sometimes because of medical examination and pervious sexual behaviour the court also agreed to accept the consent of the woman. In the landmark judgment of Supreme Court also denied the relief to the girl because she was not able to resist herself physically and there was no explicit reaction of fear on her face. The court held that consent should be communicated to the accused, feeble no doe’s amount to valid consent as it is not duly communicated.
Before the amendment of 2013 section 90 of Indian penal code was taken into consideration for the purposes of consent. This section talks about what are all things which are not amount to consent which includes when any person for the offenses mentioned in IPC gives consent under any fear of injury or in misconception of fact then that consent will not be considered as valid. Also, it includes the knowledge of the accused about the fear and misconception of fact then that consent will not considered to be valid in the eyes of law. Despite all of this the weapon of safeguarding the woman go against the woman itself. As far as will is concerned the court had no hesitation to accept that if the consent is there then it obvious that the will has already been showed to the accused at the first instance. Although both are two different concepts .Will depicts the desire to do an act and when the act has been done against the will that means the sexual intercourse has been done without the desire or she has no intention to indulge in this kind of act.
The above mentioned judgment led to the countrywide criticism by all sections of society including ruling government, NGOs and other renowned lawyers. The amendment of Indian Penal Code in 1983 is the result of this bad precedent through which Section 376A and 376D were introduced in IPC whereas Section 114A was introduced in the Indian Evidence Act.
DEFINITION CLAUSE OF SECTION 375
Before the amendment for committing the offense of rape sexual penetration has to done necessarily among man and woman. The rape has to be committed in six circumstances mentioned below:
A) When the act has been done without the will
B) When the act has been done without the consent
C) When the consent has been obtained by putting the woman or to whom the woman is interested in fear of death or hurt.
D) When the woman is so vulnerable that she believes herself to be a wife of accused and gives consent in this misrepresentation of fact.
E) When the woman is unsound or in state of intoxication whether voluntary and involuntary and thereby she has been the consent.
F) This clause talks about statutory rape where the act has been done with or without the consent of the 16 years old girl.
This section also provides one exception which states as the sexual intercooled is done between husband and wife is not amount to rape when the wife is not under the age of fifteen years.
POSITION OF RAPE LAWS AFTER 2013 AMENDMENT
It would be fair to say that we learn from our mistakes but sometimes these mistakes leads to the bad experience. Exactly an incident was happened on the night of December, 16, 2012 at New Delhi where one 23 years old girl was brutally gang rapped called Nirbhaya. This incident led to countrywide protests and demanded for an immediate amendments in the rape laws. For the same, committee was constituted in order to recommend the necessary amendments in the rape laws and other offenses against woman and thereby Criminal law Amendment Act 2013 was introduced.
These are the major changes which have been through this amendments are as follows:
In the Indian Penal Code Section 375 four sub clauses have been added which states that in which situation sexual penetration is done. Clause C also talked about the stage of attempt to commit rape also through these clause it is clear that it is not necessary that sexual penetration has to be done for making the person libel under this section oral penetration is also sufficient. Furthermore one more description has also been introduced where the person is also libel for the offense of rape when the woman is not able to communicate her consent because of multiple reason like lot of noise etc.
As I mentioned above accused get the benefit of the concept of consent of woman .Thereby explanation 2 has been added under section 375 which defines the consent as unequivocal voluntary agreement that means an agreement which cannot be revoked later with one proviso which states that if the woman is not able to physically resist then this will not amount to consent of the woman and the accused is still be liable under this section. After this amendment the court is able to understand that when the consent is given that means will s already part of it but when the consent is involuntary then the consent is there but without will. Also they are able to understand the difference between the submission and consent where the court stated that consent can include submission but submission can’t include consent. After that exception 1 has also been introduced which states that medical practitioner will not liable under this section if he does not misuse his position. This amendment also led to the change in the Indian Evidence Act where Section 53A, 114A  228a , Section 164 A and 327(2) of CRPC were amended. There were many other amendments also been done relating to increase in the quantum of punishments depends upon who is victim?
CONCLUSION AND SUGGESTIONS
Rape is very sensitive topic of discussion where everyone need to aware about these laws .It is not only important for the lawyers but also to the general public .The reason behind this that there are so many asses which are not reported and accused get motivated to do the act repeatedly. As we know that Criminal Law (Amendment) Bill 2019 is pending before the legislature to make this law gender neural. I hope that this bill will pass as soon as possible as there are no provisions for the male as rape victim. I also suggest that there should be no ambiguity in the law itself as it in my opinion prevails in Section 376C which states that sexual intercourse by the person who is in authority as the word sexual intercourse is used when the consent is there but this section punish the accused in that case as well. So, it is difficult to understand that what is the intention of the lawmakers in order to insert this section and how it is different from Secton376 (2) of IPC.
NUNA V/S EMPEROR(1891) ILR 18 Cal 49an TUKA RAM AND ANR V/S STATE OF MAHARASTRA 7 AIR 1979 SC 185 [LNIND 1978 SC 254].  MOHD HABIB V/S STATE 1988DLT 170  Dr. M. Ismail Faruqui Etc, Mohd. vs Union of India And Others 1994s  The criminal Law (Amendment) Act 1983  TUKA RAM AND ANR V/S STATE OF MAHARASTRA 7 AIR 1979 SC 185 [LNIND 1978 SC 254].  The Indian Penal Code 1860 Editorial,,”What is Nirbhaya Case “The Times Of India, Dec, 18, 2019.(available at What is Nirbhaya case? | What is Nirbhaya case full story? | India News - Times of India (indiatimes.com)(Visited at july,8,2020 at 5:30pm)  Rao Her Narayan v/s State1958  The criminal Law (Amendment) Act 2013  As per this section pervious sexual behaviour shall not take into consideration.  As per this section if woman says rape has been committed upon her then these statements considered as the primary evidence, but this section is only applicable in the case section378(2)  As per this section identity of the rape victim cannot be disclosed.  As per this section medical examination must be done within 24 hours by the medical practitioner with the consent of the woman.  This section talks about in camera proceedings.