Updated: Feb 20, 2022
Written by: Gayathri Menon
The word rape is not new to the world. It has been very much prevalent since ancient times. Rape can be defined as the most barbaric and gruesome act which violates the bodily integrity and honour of a woman. It is considered not just as an act against the woman but also the humanity as a whole. It has been seen in so many cultures such as Roman, Greek and even Indian cultures. Even though most of the cultures had recognised rape as a crime, it was a pervasive theme in the myths and legends. The idea of punishing the offender of rape had also come into the picture during this time. The medieval era has also witnessed the concept of rape and its punishments. The modern era has adopted penal norms to punish the offenders. In India, rape is considered the most widespread crime and its increasing day by day. In India, the British East India Company first set up penal norms and the Indian Penal Code was enacted in the year 1860. Over the years, many amendments have been made to the IPC especially regarding the rape laws. This article discusses the various changes that have been made in rape laws since 1860.
The Indian Penal Code, 1860
The history of rape laws in India begins with the enactment of the Indian Penal Code, 1860[i]. Section 375 to Section 376E of the IPC refers to sexual offences. Rape in the IPC is defined as sex without consent, with consent but under the fear of death or with consent but under pretences. It also defined statutory rape as the rape of women who are below the age of sixteen. Sex without consent between married couples (marital rape) was not recognised in the IPC and continues to remain unrecognised by the court. The punishments for rape were made as lenient as two years. Gang rapes and repeat offenders were also given harder punishments.
Criminal Law Amendment, 1983
Dramatic changes happened in the Indian Penal Code happened with the Mathura rape case (Tuka Ram and Antr v State of Maharashtra)[ii]. In the year 1972, a sixteen-year Adivasi girl named Mathura was allegedly raped by three drunk police officers while in custody. Upon encouragement from her family, she filed a case against the police officers. The lower court acquitted the police officers and it was held that the girl is of ‘loose morals’. On appeal, the Bombay Court reversed the findings of the lower court. On further appeal, the Supreme Court overturned the judgement by the Bombay High Court and held that Mathura did not raise an alarm nor did she have any visible injury on her body thereby indicating that she did not resist the advances. The court also held that because she was used to sex, she might have incited the cops to have intercourse with her. This led to a wide uproar in the country. Lawyers believed that the court instead of relying on hard evidence, let the cultural taboo of premarital sex influence its decision. The ‘submission’ during rape was misunderstood as ‘consent’ because of this taboo. Women groups from all over the country held protests demanding a change in the law. In the year 1983, a change was made to Section 114(A) of the Indian Evidence Act[iii]. A new category of rape called ‘custodial rape’ was introduced to include rape of women while in the custody of public servants. This amendment made consent an integral part of rape and that the court should presume that the woman is saying the truth when she says that there was no consent. This amendment also banned publishing the identity of the victim and prohibited the ‘character assassination’ of the victim in court.
Amendment to Indian Evidence Act, 2002
A PIL filed by an NGO named Sakshi pointed out that, cross-examination of the victim was still being done and the victims were not comfortable reporting the rape. This was because the main intention of the defence is to question and degrade the sexual integrity and personal space of the victim instead of treating them with empathy. It was in this light that the Supreme Court asked the Law Commission to review the rape laws. They concluded that Section 155(4) of the Indian Evidence Act was the clause that prevented rape victims from reporting a rape. They believed that the defence lawyer could still discredit the testimony of a rape victim and claim that she is of immoral character. This clause was amended in 2002 after which the cross-examination of the victims was banned.
Protection of Children from Sexual Offences (POSCO) Act, 2012
Over the years there had been an increase in child rape cases and there was a dire need to bring in a new legal procedure to deal with child rape cases. Till then child rape cases fell under the statutory rape which criminalised sexual intercourse with a girl below the age of sixteen with or without consent. The POSCO Act[iv] took note of the special conditions under which a child could be tried such as making the police responsible for protecting the child during the trial and providing emergency medical treatment. The Act also mandated that the case must be fast-tracked within a year. The Act is gender-neutral and it also made child pornography, abetment of child sexual abuse, non-penetrative assault and sexual harassment an offence.
Criminal Law Amendment Act, 2013
On December 16th 2012, a twenty-three year old physiotherapy intern was brutally gang-raped in a moving bus in Delhi. She succumbed to her injuries on 28th December 2012 at a hospital in Singapore. The brutality and violence of this led to widespread protests all across the country. People all across the country were demanding a change in the law. This was a turning point for all the rape laws in India. It was not just an issue about violent crimes but it was also a women’s rights issue. In this light, the court decided to extensively review the criminal laws prevailing in this country. They realized that crimes such as voyeurism, stalking, acid attacks etc are missing from the legal framework. In order to ensure that a case like Nirbhaya[v] doesn’t happen again, the Government of India appointed the Justice Verma committee in order to recommend various amends that are needed in criminal law. The committee was also asked to provide a process for quicker trials in rape cases and other cases related to crimes against women and provide harder punishments.
The Committee made the following recommendations. Rape should be treated as a separate offence and should not be limited to the penetration of the mouth, vagina or anus. Any non-consensual penetration of sexual nature should be considered as a rape. Non-penetrative form of sexual conduct would be treated as a sexual assault which would be punishable with five years of imprisonment, or with a fine or both. The rarest cases of rape would invite the death penalty. The age of consent should be increased from sixteen to eighteen. The recommendations of the Committee were accepted by the legislative body and thus Criminal Law Amendment Act 2013 was enacted. Through this Act, even a threat to rape is considered a crime. Section 354A, 354B, 354C, 354D has been added to the IPC which describes sexual harassment and punishment. New offences such as stalking, voyeurism and acid attacks were added. The amendment also mentions that the character of the victim is irrelevant and the past sexual history of the woman cannot be used as evidence. The minimum sentence for rape was changed from 7 years to 10 years. In cases where the victim dies, the offender will be punished with life imprisonment or a death sentence. One of the accused was a minor, so the age of being tried as an adult for crimes such as rape and murder was changed from eighteen to sixteen in accordance with the Juvenile Justice Act.
Criminal Law (Amendment) Ordinance, 2018
In 2018, an eight-year old girl was raped and killed in the Kathua district of Jammu and Kashmir. The main accused was the priest of a temple. This led to a wide outrage in the country. Three months later an Ordinance was passed by the government to legally address the crime. Changes were mainly made to the POCSO Act since it was against a child. Rape of anyone below sixteen years of age was punishable by a minimum of 20 years whereas the rape of anyone below the age of twelve invited death penalty. It also altered the fast track clause from one year to 6 months.
The legal system should be the link between the state and the citizens. Therefore the government needs to take the necessary steps and protect the citizens. In terms of the protection of women in this country against various offences, India has come a long way. But it still has a long way to go. It is important to keep the laws under check to make sure that it doesn’t violate the rights of any individual.
[i] Indian Penal Code, 1860 (Act 45 of 1860) [ii] 1979 SCR (1) 810. [iii] Indian Evidence Act ,1872 (Act 1 of 1872) [iv] Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012) [v] Mukesh & Anr vs State For Nct Of Delhi & Ors (2017) 6 SCC 1.