Rape cases in India &women struggle for justice

 Abstract 

This study provides a theoretical analysis of the development of anti-rape laws and how the crime has shifted from one against property to one against a woman's person. Beginning with the Mathura rape case and ending with the recent Kathua rape case, the study examines the key cases that led to the progressive revisions in anti- rape laws under the Indian Penal Code. The changes made by the Criminal Law Amendment Acts of 1983, 2013, and 2018 are discussed in depth. It investigates the Justice Verma Committee's contentious proposals on topics including gender neutrality and capital punishment. The article examines a number of rulings that show how courts' patriarchal attitudes still provide a barrier for women seeking justice, notwithstanding recent revisions. At the end, it proposes a shift not just in legislation but also in underlying social and cultural norms. This paper is written by Ojas Bangia BBALLB studentfrom The Northcap University

 

 

 

 

 

introduction 

It took a long time for rape to be recognised as a violation of women's right to physical and sexual autonomy, despite the fact that it is one of the most terrible and barbaric crimes ever committed. For the vast majority of human history, women had no legal protections and were considered as nothing more than property, so rape was only seen as a crime when it involved the theft of another man's possessions.

 

 

Some particularly terrible cases over the years led to significant changes in anti-rape legislation. The Women's Movement raised public consciousness and shifted public opinion, accelerating the urgency of the need to reform the law. In this paper, we look at several rape cases—the Mathura case, the Delhi case, the Unnao case, and the Kathua case—that prompted changes to India's penal code in 1983, 2013 and 2018. The report also examines the recommendations of the Justice Verma Committee, which was formed following the Delhi rape case to propose revisions in the country's anti-rape laws. It takes a detailed look at the ways in which definitions and penalties for rape have evolved over time. More particularly, it examines how these revisions to the Indian Penal Code's rape provisions affect criminal procedure.

 

 

 

 

 

 

 

 

 

 

As crime rates have risen throughout the years, anti-rape legislation has been updated multiple times to keep up. After widespread outrage over the Mathura case, Congress passed the Criminal Law Amendment Act of 1983.

 

Mathura rape case to Delhi rape cases

In the case of Tukaram And Ors v. State Of Maharashtra5 in 1972, a young Adivasi girl named Mathura was reported to be raped by two policemen while she was in their custody. At the sessions court level, the judge ruled in favour of the officers, saying the prosecution had failed to prove its case. Although the court found that she engaged in sexual activity at the police station, they ruled that this did not rise to the level of rape because there is a "world of difference between sexual activity and rape." It further said she was "habituated of sexual intercourse," making her agree entirely voluntarily. The High Court agreed with the appeal and upheld the conviction and sentence, calling the case a passive submission. That "the girl felt helpless in the presence of individuals in authority" and "inferred that her acquiescence was a result of fear and consequently no consent in the eyes of the law" were key points. 6 The ultimate judgement from the Supreme Court, however, overturned the lower court's decision and acquitted the police officers because "there were no marks of injury on the girl" and the "girl had raised no alarm," both of which suggested that the alleged intercourse was a "peaceful affair."

 

 

 

 

 

 

The four professors Upendra Baxi, Raghunath Kelkar, LotikaSarkar, and Vasudha Dhagamwar questioned the concept of "consent" in the case and sent an open letter to the Chief justice of India in response to the widespread outrage this verdict sparked.

 

 

 

 

 

 

 

 

 

 

 

 

 

They differentiated between submit and consent in a letter, which read, "Submitting oneself is a necessary condition for consent, although this is not always the case. Lack of resistance is not always an indication of agreement.

 

 

 

 

Nirbhaya rape case

 

The violent gang rape of a young woman in Delhi in 2012, who the media dubbed Nirbhaya because she refused to give her identity in violation of Section 228A (2) of the Indian Penal Code, sent shockwaves throughout the whole country. Six guys savagely raped her on a bus in Delhi, ripping out her organs and mutilating her privates in a way that was beyond the pale of human decency; the resulting injuries proved fatal. 17 She was subjected to the perverse desires of the six men in charge and treated like a piece of equipment. 18 As the author puts it, "the attitude, perception, the bestial proclivity, inconceivable self-obsession, and individual centralism of the six caused the young lady to suffer immense trauma, and in the end, despite availing herself of all the possible treatment that the medical world could provide, the life-spark that moves the bodily frame got extinguished." 19 After battling her injuries for some time, she passed away at a hospital in Singapore on December 29th, 2012.

 

 

 

 

 

 

In September 2013, the defendants were found guilty of rape, kidnapping, murder, and destruction of evidence; their death sentences were affirmed by the Supreme Court in 2017 on the grounds that their case plainly qualified as a "rarest of rare case."

 

 

 

 

 

 

 

 

 

 

 

 

 

The alleged offender, a juvenile, was sentenced to three years in a reform home under the Juvenile Justice Act, while one of the accused, Ram Singh, committed suicide in Tihar Jail.

 

The Verma  committee

The Justice J.S. Verma committee was established to propose revisions to criminal legislation in response to the nationwide demonstration and widespread public anger following the Nirbhaya case. A variety of sexual offences were addressed in the committee's recommendations.

 

 

According to the Committee's report, "the relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant agreed to the sexual activity," suggesting that the exception for marital rape be eliminated.

 

 

 

 

 

It suggested amendments to the Sexual Harassment of Women in the Workplace (Prevention, Prohibition, and Redressal) Bill, 2012, condemned the current Internal Complaints Committees method as counterproductive, and advocated for the establishment of an employment tribunal.

 

 

 

 

 

 

Voyeurism, stalking, and intentional touching were all proposed as new crimes by the Committee for inclusion in the Penal Code. Further, it analysed the "two-finger test" used in victim examinations and argued that it should be abandoned "A test to determine the laxity of the vaginal muscles, commonly referred to as the two-finger test, should not be performed because the size of the vaginal introitus has no relevance to a case of sexual assault. It is illegal to draw any inferences, including that someone is "habituated to sexual intercourse," based on the results of this test.

 

 

 

 

 

Criminal law amendment 2013

The Criminal Law Amendment Act of 2013 went into effect on February 3, 2013, instituting sweeping modifications to the Indian Penal Code (1860), the Code of Criminal Procedure (1973), and the Indian Evidence Act (1872) in accordance with the report made by the Justice Verma Committee.

 

 

The act's primary effect was to update the legal definition of rape. Previously, only penile-vaginal intercourse was considered illegal, but the new amendment replaced section 375 of the Indian Penal Code and expanded the definition of rape to include any kind of physical penetration.

 

 

According to the new language of Section 375 of the Indian Penal Code, a male offender is guilty of the crime of rape if

 

 

"when he inserts his penis, even partially, into a woman's vagina, mouth, urethra, or anus, or compels her to do so, or inserts any object or part of his body, other than his penis, into a woman's vagina, the urethra, or anus, or compels her to do so, or manipulates any part of a woman's body to cause such penetration.

 

 

 

 

 

 

The rape of a civilian by a member of the armed forces assigned to the region by the Central or a State Government is now covered by section 376(2). If the victim dies or is left in a permanent vegetative condition as a result of the rape, the perpetrator is subject to the maximum penalty allowed under Section 376A, which is life in prison without the possibility of parole for the rest of his or her natural life, or death. When section 376 B was added, it made it so that a husband who had sexual relations with his wife while they are separated would face a minimum sentence of 2 years in prison, up to a maximum of 7, and a fine. If a public worker, fiduciary, or hospital administrator engages in sexual activity with a patient, they face a minimum of 10 years in prison and a maximum of life behind bars as well as a fine. The crime of gang rape was given its own section (376 D) and rendered punishable by a fine and a minimum sentence of 20 years in prison, which can be increased to life, depending on the circumstances. Section 376 E established the mandatory minimum sentence of life in prison or the death penalty for repeat offenders.

 

 

The amendment was a groundbreaking measure taken by the government to protect women from assault. The Justice Verma Committee had proposed including measures in the act to make rape and sexual assault laws gender neutral, to prevent politicians facing sexual offence charges from running for office, and to make rape within a marriage a crime. These essential changes were ignored by the government as it passed the statute.

 

 

 

 

Criminal law amendment 2018

 

At the same time that the historic Kathua rape case made headlines in 2018, another rape occurred in Unnao. An 8-year-old girl in Kathua, J&K, was raped by six men for a week after which she was slain. 33 Because the victim was a Muslim girl and the suspects were Hindus, the case quickly escalated into a matter of sectarian politics, with the accused receiving support on the basis of their faith. 34 Because of concerns about a fair trial, the Supreme Court moved the case from J&K to Punjab. Six of the seven defendants were ultimately found guilty.

 

 

These cases prompted significant demonstrations, which in turn prompted the government to pass more stringent legislation criminalising similar atrocities. Therefore, the Government enacted the Criminal Amendment Act of 2018.

 

 

 

 

Criminal amendment act 2018

 

The Indian Penal Code, the Indian Evidence Act of 1872, the Code of Criminal Procedure of 1973, and the Protection of Children from Sexual Offenses Act of 2012 were all amended by the Criminal Amendment Act of 2018.

 

 

IPC sections 166A, 228A, and 376 were revised, and additional sections 376AB, 376DA, and 376DB were added. Subsection 1 of Section 376 has been revised to increase the minimum sentence for rape from ten to twenty years in prison, with the possibility of life in prison, and a fine.

 

 

To add to this, subsection 3 was added, detailing the penalties for raping a woman under the age of 16, including a mandatory minimum sentence of twenty years in prison and a maximum sentence of life in prison, in addition to any other penalties that may be applicable.

 

 

An additional clause, 376AB, has been added following 376A, which mandates a mandatory minimum sentence of twenty years in prison, with the possibility of a life sentence, along with a fine or the death penalty, in cases where the victim of the rape is a girl younger than twelve.

 

 

An additional subsection, Section 376DA, has been added after Section 376D, which addresses the punishment for gang rape, and states that if a woman under the age of sixteen is raped by one or more persons constituting a group or have acted in furtherance of a common intention, each of those persons shall be punished by imprisonment for life, and with fine.

 

 

Each of the perpetrators of a gang rape against a woman under the age of twelve shall be punished by life in prison, a fine, or death, as specified in Section 376 DB.

 

Struggle in women’s life

In spite of the advances made in law as a result of the women's movement, there are still many examples of patriarchal and misogynistic thinking being upheld in courtrooms.

 

 

In Mahmood Farooqui v. State (Govt of Nct of Delhi)35, the Delhi High Court reversed the trial court's verdict and found the defendant not guilty. A weak "no" could be interpreted as a "yes," according to the court's contentious ruling, which explored the idea of consent in a severely flawed manner. " It's not easy to generalise that an unequivocal "no" will always convey the other party's purpose, especially if the two people involved are in a legally forbidden relationship. Mere reluctance would also amount to negation of any permission if one of the parties to the act is a traditionalist who has not been exposed to the diverse ways and systems of the world. However, this would not hold true if the parties were already acquainted with one another, were both highly educated and intellectually capable, and had previously engaged in physical contact. It would be extremely challenging to determine whether or not the lack of opposition and the weak response were related "The answer "no" was a refusal to give permission.

 

 

There have been instances where police, judges, and family members have counselled and pressured rape survivors to report the crime. The alleged molester was granted bail by the Madhya Pradesh high court on the condition that he get a "rakhi" tied by the victim on the Hindu holiday of Raksha Bandhan. 

 

 

In the case of Vikas Garg & Others v. State of Haryana39 (commonly known as the Jindal University rape case), the Punjab and Haryana High Court granted bail to the defendants and took an extremely patriarchal approach while making statements on the character of the victim, calling her behaviouras "promiscuous." The judge remarked, "In reality, the entire crude sequence is illustrative of a decaying youth mentality that fosters demeaning relationships while engulfed in drugs, drink, casual sexual exploits, and a promiscuous and voyeuristic society.

 

Conclusion 

Over the years, rape has been an issue with which the government deals only in response to public anger following fresh and more barbaric cases. This means that the victims are still not provided with a secure setting by our system. Although there have been positive changes to the legislation, the Justice Verma Committee suggested that numerous contentious topics, including marital rape and gender neutrality in rape laws, should be considered immediately.

 

 

In several recent cases, the courts' vague and inconsistent rulings have been highlighted. Years of reform work are undone by decisions like the Farooqui case, which sends us back 38 years to the Mathura case. This exemplifies the pervasive patriarchal bias in contemporary society. The colonial mentality continues to influence modern day opinions, and women still do not have equal social standing.

 

Refrences

An Extensive study of Rape Laws in India (manupatra.com)

Nirbhaya Gang Rape:A Case Study (ipleaders.in)

Justice Verma Committee Archives - iPleaders

Criminal Law Amendment Act, 2018 : Overview and Analysis (ipleaders.in)

 

 

Link

Rape cases in India &women struggle for justice (beyidea.blogspot.com)