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Rape and Indian laws
Rape and Indian laws
As per the report of national crime records bureau every 60 minutes two women are raped in this country. As on the year 2016, 64,138 cases were reported for sexual offences out of which 1/10th went for trial in which conviction rate was 28.2 percent.
Rape is a stigma which exist in society from a long time. The dictionary meaning of rape is ‘unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat or injury against person will or with a person who is beneath certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness or deception.’
In India it is believed that due to biological reasons a woman cannot commit rape for which the Indian laws on rape are gender specific. The Indian Penal Code, 1860 in section 375 defines what constitute rape and prescribes the punishment thereof. It covers the offence of rape under sexual offences and define rape as sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud, or at the time when she has been intoxicated or duped or is of unsound metal health and in any case under the age of 18.
To understand the laws relating to rape in India it is important to know about its very existence and history.
The word rape was used for the first time in the Indian penal code whereby not mentioning any offence against male but describing gay sex as an offence under section 377. Initially the punishment provided for such offence was not rigorous and use to amount up to imprisonment of 2 years. but after many heinous cases relating to sexual offences the scope of the definition of rape has been increased and punishment has been made more rigorous. Further in this article we will discuss offence committed against minor status of martial rape and various reforms under the code for the offence or rape.
What is rape?
Section 375 of the penal code defines rape as follows:
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.[1]
Indian laws covers slight penetration of penis into the vagina, urethra, anus, or mouth or any object or any part of the body to any extent as an offence.
The exception to above provision speaks about marital rape. Which is not characterised as a criminal offence.
‘Rape is a crime worse than murder because a murder destroys the physical body of his victims but a rapist torments the soul of the victim.’ this was the observation made by the honourable court in state of Punjab v. Gurmit Singh. Indian laws focus on rape as it lowers a women dignity and harm her reputation rather than seeing it as a crime that violates a woman’s selfhood, Individuality, or autonomy.
Consent
Indian laws give due importance to consent and take due account of consent in conviction of the offender. Section 90 of the Indian penal code gives a negative account of the word consent whereas section 375 gives a positive account of the word consent for the particular offence.
Consent in general sense means the voluntary agreement by the women either by words or gesture or by any expressed or implied form shows her willingness to engage herself in any kind of sexual activity. If a woman does not resist physically that only doesn’t constitutes to be consent.
In India the consent is consider to be revocable and the women can withdraw her consent anytime. The consent is meant for each activity of sexual nature. The status of consent matters when actual penetration is made with the body of the women. The laws are silent about the subsequent withdrawal of consent during the course of sexual intercourse.
The Mathura rape case where a orphan minor harijan girl was raped by two policemen the supreme court observed that the sexual activity does not amount rape as no resistance towards such sexual activity can be found from the victim. Here the court ignored the authorities positions of the policemen and the threat of loss they may cause to the victim by abuse of power. This 1973 case bought lot of changes in the laws relating to sexual offence in India. After this section 228A was added to IPC whereby disclosing the identity of victims of certain offences is made punishable which includes rape
Changes in the laws regarding rape in India.
The Delhi rape case is a major milestone which bought in many changes in the rape laws in India. The December 16 rape case bought in the criminal amendment act 2013 which increased the the punishment of the offence from 10 years to 20 years and increased the scope of the definition whereby including ‘any object’ in the definition. Prior to the case there was no provisions regarding unwelcome physical contact, word or gesture, or request of sexual favours but the criminal amendment act took into account all these acts and prescribed punishment for the same.
Status of minor
The concern about the sexual offences against minor became a major issue after the publicity of the kathua rape case where by a minor was abducted and raped by four men. After this case the criminal act 2018 was passed whereby prescribing death penalty and a minimum of 20 years of imprisonment in case of rape of a girl under 12 years of age. Provisions regarding rape of a girl below 16 years was introduced prescribing imprisonment of 20 years which may extend to life imprisonment.
Marital rape status in India.
Except during the time of judicial separation rape committed by a husband upon her wife who is not billow the age of 15 years is not considered as criminal offence in India . the political view regarding martial rape is that the agreement to marriage means agreement to consensual sex it for which criminalising marital rape would degrade family values. Under Hindu law marital rape can be considered under cruelty and can lead to dissolution to marriage. Under the domestic violence act it is considered as sexual abuse and civil remedies can be sought under the act.
Are laws regarding rape gender neutral?
The Indian laws are gender specific when it comes to the offence of rape. The law assumes that a man can not be raped by woman priorly under section 377 gay sex was considered to be an offence.
But the recent judgement of the honourable court consensual intercourse between any person is not an offence. The rape laws not being gender neutral many a times leads to the man falling prey to the social evils of the society which cannot be ignored.
Conclusion
After the happening of many horrendous sexual offences the laws regarding the sexual offences in India has been rendered strict. But it still suffers from many loopholes ad biasedness which cannot be ignored. A great need of gender sensitivity is required in the society along with some gender-neutral law. The compact definition of the laws and biasedness towards male gender makes it very east to fie false complaint for such sensitive offences. A more systematic approach of sex education can be felt at this time in the society.
[1] Indian penal code 1860, section 375
