There is little doubt that we are in the midst of a major shift in women’s history. The evidence is all around us; women’s voices are increasingly being heard in Parliament, the courts, and on the streets.
While women in the West have had to fight for nearly a century to obtain basic rights such as the right to vote, India’s Constitution grants women equal rights to males from the start. That does not mean that some of the laws were male centric and still influenced by the colonial rule.
The Supreme Court of India in various judgments have held many practices, that were against the interests of women, as invalid and violative of human rights of women subjected to them. One of the biggest examples of this can be decriminalizing of Adultery in the case of Joseph Shine Vs Union of India.
This also means that women have started to report more cases of sexual harassment against them, they have started speaking up. When earlier the stigma of society prevented them for speaking up for themselves, now it is the low conviction rate that stops them.
They know that even if they report it, the case will be tied up in a long and hard litigation process and the result will always be inconclusive, could also result in no conviction of the accused as well.
According to the National Crime Records Bureau (NCRB) figures for 2019, 88 rapes occur on average every day in India. The conviction rate, on the other hand, is as low as 27.8%. This indicates that just 28 people out of 100 are found guilty. According to the NCRB, the rate of crimes against women grew from 58.8 percent in 2018 to 62.4 percent in 2019.
There were 32,033 rape cases reported in 2019, with Rajasthan having the highest rape crime rate with 5,997 rapes reported. Uttar Pradesh had the most instances with 3,065 reported, followed by Madhya Pradesh with 2,485, Maharashtra with 2,299, and Kerala with 2,023. In 2019, there were 1,253 rape cases registered in Delhi.
What could be the reason for such a low conviction rate for crimes that hinder the self esteem of a woman? Poor police investigation is one of the most common reasons why criminals go unpunished. Witnesses and complainants’ hatred, as well as familial pressure on the victim, all play a part.
The NCRB results are significant because they reveal that many victims of rape or sexual assault do not approach the police to report the crime. Even the Supreme Court has expressed worry about the low conviction rate, noting that 90 percent of rape trials result in acquittal.
Thus, this article gives an overview on the existing Rape Laws in India.
What is Rape or Sexual Harassment?
The word rape comes from the Latin word rapio, which literally means “to seize.” As a result, rape literally means “forced seizure.” It is defined as “the ravishment of a woman without her consent, by force, terror, or trickery” or “the carnal knowledge of a woman by force against her will” in common terminology. In other terms, rape is a violent invasion of a woman’s private person.
In the case of Rafiq Vs State of Uttar Pradesh, Justice Krishna Iyer said, “A murderer destroys the body, but a rapist kills the spirit.”
Rape and sexual harassment are two sides of the same coin. Both highlight how a man’s power may overpower a woman. Women are the victims in both cases. Both are savage in nature, but because the victims are not physically hurt, many people compare sexual harassment to rape.
Rape, on the other hand, involves the victim being ravished like an animal for the satisfaction of another man’s need and want. Both have the same goal in mind: to compromise the victim’s physical and mental well-being.
Sexual harassment is nothing more than a display of male power. If given the chance, such men (those who engage in sexual harassment) would try to fulfil their desires. It’s also not true that all incidents of sexual harassment involve the accused conceiving the aim of engaging in sexual activity.
However, it is dependent on the facts and circumstances of each instance, as it is possible that the woman is also to blame.
The argument is not whether or if women have the right to bodily integrity; this right is already enshrined in Article 21 of the Indian Constitution, which guarantees the right to life and liberty to both men and women – but is it truly necessary to take strong action to eradicate this evil and make todays and tomorrow’s society a safe sanctuary for women?
Essentials of Section 375 of the Indian Penal Code
Sexual intercourse by a male with a woman against her will and without her agreement in any of the seven circumstances listed below constitutes rape under Section 375 of the Indian Penal Code:
- Against her will.
- Without her consent.
- With consent obtained by putting her or any other person in whom she is interested in fear of death or of hurt,
- With consent but given under the misconception of fact that the man was her husband,
- Consent given by reason of unsoundness of mind, or under influence of intoxication or any stupefying or unwholesome substance,
- Women under 18 with or without consent.
To prove that a man has been charged with rape, it must be proven that the alleged “sexual intercourse” occurred either against her will or without her consent.
When consent is acquired in the circumstances outlined in clauses one through seven, it is also considered rape.
The Supreme Court stated in Deelip Singh Vs State of Bihar that:
“Though will and consent often interlace, an act done against the will of the person can be said to be an act done without consent, the Indian Penal Code categorizes these two expressions under separate heads in order to as comprehensive as possible.”
- Against her will
The term “will” refer to the mental faculty of reasoning that determines whether or not to perform an action. There is a delicate line between acting “against one’s will” and doing “without consent.” Every action taken “against the will” is clearly “without consent.”
However, every act done “without consent” is not “against the will.” When a woman is in possession of her senses and thus capable of consenting, clause (1) of this Section applies.
- State of Uttar Pradesh Vs Chottey Lal
Meaning of the phrase “against her will”
The Supreme Court explained in this case that the phrase “against her will” meant that the intercourse was done by a man with a woman despite her resistance and opposition.
- State of Punjab Vs Gurmit Singh
Guidelines established for trial of cases where the prosecutrix never cooperated with the rape
In this case a young girl under the age of 16 was taken from her school by three accused in a car, and she was threatened with death if she raised an alarm. Despite her protests, she was forced to consume alcohol.
Then she was raped by each of them in turn, and she was threatened with death if she continued to raise an alert. She remained silent as a result of the threat. They left her the next morning near the location where she had been taken after repeatedly sexually assaulting her.
Surprisingly, the additional court in Ludhiana acquitted all of the defendants on both charges of abduction and rape, notwithstanding the prosecutor’s narrative of the rape and the delay in filing the FIR.
The Apex Court granted the State’s appeal and ruled the accused persons guilty for rape because the prosecutrix never willingly cooperated with the conduct. The sexual intercourse occurred against her will, and the accused are liable for rape under Section 376 of the IPC.
Furthermore, the Supreme Court established the following guidelines for trial in such cases:
- “Delay in lodging FIR is not material when properly explained.
- Testimony of victim in cases of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty in convicting the accused on prosecutrix’s testimony alone.
- Trial of sexual offences should be in camera and invariably by a lady judge whenever available.
- Court must restrain making observations that probably the prosecutrix is a girl of loose moral character.
- Court is under an obligation to see that prosecutrix is not unnecessarily harassed and humiliated in cross-examination in case of rape trial.”
- Without her consent
The absence of consent is the core of rape. The term “consent” refers to a woman’s “will” be being expressed intelligently and positively. The idea underpinning the immunity from accountability in cases of consent is that a man is the best judge of his or her own interests, and that if a male (including a woman) chooses to endure injury freely, he or she cannot complain when it occurs.
Explanation 2 defines consent as an unequivocal voluntary agreement when a person signals a willingness to participate in a certain sexual act through words, gestures, or any other kind of nonverbal communication.
To exonerate a person of criminal liability, consent must be freely provided and not obtained by deception, mistake, or a misunderstanding of facts.
This provision applies when a woman is unresponsive, whether due to intoxication, drugs, or any other reason, or when she is so mentally ill that she is incapable of giving logical consent. Prior to the act, the woman’s consent must be gained.
The prosecution bears the burden of proof in cases of rape, proving that the sexual intercourse occurred without the woman’s consent or against her will. The defence would not need to show that the sexual intercourse took place with the woman’s consent.
- Queen Vs Flattery
Consent gained through misrepresentation, fraud, or mistake is invalid.
The accused in this case was charged with rape against a 19-year-old girl. The girl, who suffered from health problems and had fits, went to the accused’s clinic with her mother to seek treatment guidance. After assessing the girl, the accused advised her to have a surgical procedure, which she agreed to, and had sexual intercourse with her while doing it.
The Court decided that the girl’s permission would not absolve the accused of guilt because it was given under duress. There was a misunderstanding about the nature of the deed, and the girl’s agreement was given for surgical purposes only, not for sexual intercourse.
As a result, it was decided in Motiram Krishnarao and Ors. Vs State of Madhya Pradesh and R. Vs Linekar that if a woman agreed to have sexual intercourse for monetary consideration, the fact that the consideration was proven to be false would not invalidate her consent.
The accused parties are not accountable for rape because the prosecutrix gave her agreement to the sexual connection. It would only be considered a breach of contract.
- Deelip Singh Vs State of Bihar
Consent to intercourse based on a false promise to marry.
The appellant was charged with and convicted of rape of a juvenile girl under Section 376 of the Indian Penal Code. The victim said that the accused assaulted her and then comforted her by telling her that he would marry her. As a result of his commitment to marry her, she accepted to have sexual contact with him.
She informed her parents about her pregnancy after she became pregnant, but the father’s attempts to create marital ties were unsuccessful. She was forced to file the complaint after that.
The accused was convicted by the trial court and the High Court, but the Supreme Court overturned it. It read:
“Consent given by a woman believing the man’s promise to marry her would fall within the expression ‘without her consent’ vide clause (ii) to Section 375 IPC, only if it is established that from the very inception the man never really intended to marry her and the promise was a mere hoax. When prosecutrix had taken a conscious decision to participate in the sexual act only on being impressed by the accused’s promise to marry her and the accused’s promise was not false from its inception with the intention to seduce her to sexual act, clause (ii) to Section 375, IPC is not attracted and established.”
In Uday Vs State of Karnataka, the accused declared affection for the prosecutrix and vowed to marry her at a later date. Prosecutrix was well aware that they belonged to different castes and that their family members would oppose their marriage proposal.
Nonetheless, the prosecutrix knowingly began cohabiting with the accused and became pregnant. On the charge of rape, the Court found that the prosecutrix’s permission to cohabitation could not be claimed to have been provided under the influence of deception.
She had freely, deliberately, and intentionally agreed to have sexual relations with the appellant, not only because of the promise of marriage, but also because of their strong love for one another.
As a result, the appellant was not found guilty of rape under Section 376 of the Indian Penal Code.
These were, however, previous positions. In recent years, the Supreme Court has taken a variety of positions on similar issues.
In Pradeep Kumar Verma Vs State of Bihar, it was found that if the accused made a false representation with the goal of obtaining the victim’s permission without intending to marry her, the victim’s consent would be void.
- With consent obtained by putting her or any other person in whom she is interested in fear of death or of hurt
The woman’s consent to exonerate the accused of rape must be freely and voluntarily granted without threat of death or injury, according to Clause (3) of Section 375 IPC. In this instance, the permission provided will not be considered legitimate.
The Criminal Law (Amendment) Act 1983 broadened the reach of the Section by including the phrases “or any person in whom she is interested” after the words “putting her” in dread of death or harm.
Her fear of death or harm could now extend to her children, husband, or parents.
- State of Maharashtra Vs Prakash
Threatening of family members
The Supreme Court concluded in this case that when a police constable and businessman had sexual intercourse with a rural lady by beating her husband and threatening to place him in police remand, the act fell under Section 375 IPC clause (3).
For the crime of rape, the idea that the victim deliberately agreed to intercourse is ruled out. It is not essential for actual force to be used; merely threatening to use force is sufficient.
- Tukaram Vs State of Maharashtra
Often known as the Mathura rape case, was a widely criticised Supreme Court decision in this regard.
On March 26, 1972, Mathura, an 18-year-old Harijan orphan girl, was summoned to the police station after her brother filed an abduction allegation at the police station in Desaui Ganj, Maharashtra.
When they were going to leave the police station, one of the constables on duty, Ganpat, detained Mathura at the station until the wee hours of the morning.
She was dragged to the bathroom and raped. Following him, another constable, Tukaram, attempted to rape her but failed due to his inebriation. For the following grounds, neither of the two defendants was found guilty:
- There were no signs of harm on her body, indicating that the whole thing was peaceful and that the girl’s account of hard resistance was completely false.
- There was no fear in the girl’s life, thus she had no choice but to participate in the deed.
- When Ganpat ordered the girl to stay, she was not alone, and she could have objected and appealed to her brother. Her meekly following Ganpat and allowing him to have his way with her to the point of fully fulfilling his passion gave them the impression that the consent in question was not one that could be dismissed as passive surrender.
The Supreme Court’s ruling was widely panned both inside and outside Parliament as an exceptional decision that sacrificed human rights and was a shame to women in the eyes of the law and the Constitution.
The Supreme Court’s subsequent judgements attempted to make amends for its decision in the Mathura case.
- Balwant Singh Vs State of Punjab
Absence of injuries of prosecutrix does not mean consent was given
The victim, aged 19/20 years, was forcibly carried in a car by the five accused persons and raped by each in a grove on the canal bank in this case. Her father discovered her unconscious behind a banana tree near the canal bridge. She was medically evaluated, and the result stated that she had been raped by several people.
The absence of injuries on the prosecutrix’s back did not make the prosecution case improbable, according to the court. The accused numbered five, and the prosecutrix was a 19/20-year-old girl. She was not anticipated to put up such a fight that would endanger her.
- With consent but given under the misconception of fact that the man was her husband
Consent provided by a woman to a person for intercourse in the mistaken belief that the person is her husband when he is not is not legal consent. In this instance, the person is aware of the lie and claims to be the woman’s spouse.
- Bhupinder Singh Vs Union Territory of Chandigarh
When the husband is already married and keeps this information from his wife, this is considered as rape
In this case, the complainant Manjit Kaur married the accused Bhupinder Singh, whom she met at work, in 1990 and began cohabiting with him in Chandigarh. She became pregnant, but the foetus was aborted in 1991 by the accused.
When she became pregnant for the second time in 1994, she met two of her husband’s friends, who informed her that he was already married and had children from his first marriage.
Her husband left her under the guise of work when she was confronted and did not return, even after she gave birth to a daughter.
He was found guilty of rape after she filed a complaint, and prosecutrix married the accused without knowing about his previous marriage. Cohabitation permission was given under the impression that the accused was her husband.
It was also decided that the prosecutrix’s delay in filing a complaint could not, in any case, wash away the offence because there was no consent. As a result, the Supreme Court declined to overturn the High Court’s judgement of conviction.
- Consent given by reason of unsoundness of mind, or under influence of intoxication or any stupefying or unwholesome substance
The Criminal Law (Amendment) Act of 1983 inserted clause (5) to Section 375 IPC. The purpose of the new clause was to protect and safeguard the interests of a woman who consents to sexual intercourse without knowing the nature or consequences of the act because she is mentally ill or under the influence of a stupefying or unwholesome substance, or because she is having sexual intercourse with a defective.
In such circumstances, it is assumed that the woman’s consent is not free and voluntary, therefore exonerating the accused of rape.
- Tulshidas Kanolkar Vs State of Goa
A woman who is unable to understand what is happening her does not mean she consents to the act
The accused in this case had sexual intercourse with a woman who was unable to comprehend the vicissitudes of the act on multiple occasions. As a result, the young lady became pregnant. The additional session judge sentenced the accused to ten years in prison and a fine of Rs. 10,000 for rape under Section 376 of the Indian Penal Code.
The term was lowered to seven years by the High Court on appeal, and the appellant appealed his conviction.
The Supreme Court dismissed the appeal, holding that consent requires the use of intelligence based on understanding of the act’s significance and moral effect, and criticising the High Court for reducing the sentence to seven years when it shouldn’t have.
- Women under 18 with or without consent
When a woman is under the age of 18, sexual intercourse with her, with or without her agreement, is considered rape. A woman under the age of 18 is considered incapable of consenting to sexual activity.
The Criminal Law (Amendment) Act of 2013 increased the age of consent from 16 to 18.
- Harpal Singh and Anr. Vs State of Himachal Pradesh
If the woman is not of legal age, the act will be considered as assault even if she gave her consent.
The Supreme Court concluded in this case that the accused would be liable for rape under this Section even if the 14-year-old girl was a willing party and invited the accused to have sexual intercourse with her.
- Mana Ramchandra Jadhav Vs State of Maharashtra
If a girl has ran away from her parents’ house to get married, and she gets sexually assaulted by the man she ran away with, it will be considered rape.
The prosecutrix in this case left her mother’s house and joined the accused because her mother had rejected down the accused’s marriage proposal because she was too young. He had sexual contact with her against her consent while she was with the accused. This Section will apply to acts of intercourse with the prosecutrix.
Marital Rape – An Exception?
Because child marriage in India is neither void nor voidable, such a check was required to prevent men from abusing their marital privileges early. Because she has given her marriage permission, no man may be charged with rape against his own wife if she is over 15 years old.
The accused was found guilty of rape under Section 376 in Bishnudayal Vs State of Bihar, where the prosecutrix, a girl of 13 or 14, who was sent by her father to accompany the relatives of his elder daughter’s husband to look after her elder sister for a period of time, was forcibly “married” to the appellant and had sexual intercourse with her.
It is easy to think that marital rape is not criminalised since the laws decriminalising it was enacted years ago, when India’s society was very different, and the law’s framers used their best judgement in drafting it to meet the demands of the society at the time.
Even then, and indeed now, the law was and is brutal; yet some distinguished jurists argue that the provision should be preserved.
In a news conference, Mr Deepak Mishra, the former Chief Justice of India, remarked, “There is no need to criminalise marital rape since such laws may produce extreme anarchy and will undermine our Indian family values.”
This argument may appear harsh and cruel at first, but upon closer examination, we can see that western society is very different from ours, with different customary laws and even religions; all of these factors, combined with a high rate of illiteracy, create an environment in which people are not ready for marital rape to be criminalised.
The preceding argument is based on a conservative viewpoint that ignores modernization and women’s empowerment. Women’s empowerment is not only ignored, but their right to equality is also taken away.
In the case of Independent Thought Vs Union of India, the Supreme Court took the pragmatic view that marriage is no longer a societal contract but a personal bond, and that not even criminalising marriage will be enough to destroy the institution.
If laws like divorce and judicial separation haven’t been able to ruin marriages, criminalising marital rape is unlikely to do so. Even if marital rape is still not illegal, we can hope that laws will change soon.
What is the punishment for Rape?
- Under Section 376 – Rape
Section 376 indicates that if the rape is performed by one of the people mentioned below, they will be sentenced to a minimum of 10 years in jail, but that this can be increased to life imprisonment, which means they would be imprisoned for the rest of their natural lives, as well as a fine.
- Within the confines of the police station, there is a police officer.
- Any station house has a police officer on the grounds.
- A police officer on a woman who is being held by the officer.
- On a woman in his custody, a public servant.
- Armed forces personnel.
- Any person in charge of a jail, remand home, or other institution that houses inmates.
- A woman at a hospital was subjected to the facility’s staff and management.
- On a woman by a person who holds a position of trust, power, control, or domination over her.
- When communal or sectarian violence is present.
- On a woman who is pregnant
- On a woman under the age of sixteen
- On a woman who is unable to consent
- On a lady who is psychologically or physically challenged
- Whoever commits serious bodily injury to a lady or puts her life in jeopardy.
- Who rapes the same woman multiple times.
If any other person rapes a woman, he shall be punished by harsh imprisonment of either sort for a duration of not less than seven years, but which may extend to life imprisonment, as well as a monetary fine.
- Under Section 376A – Punishment for causing death or leaving a person in a vegetative condition for an extended period of time
It states that anyone who commits an offence punishable under section 376 that results in the death of a woman or puts her in a persistent vegetative condition shall be punished with harsh imprisonment for a term of not less than 20 years, but which may extend to life imprisonment or death.
- Under Section 376B – During separation, a husband engages in sexual activity with his wife.
Whoever has sexual intercourse with his own wife when they are living separately, whether under a decree of separation or not, without her agreement, will be punished by imprisonment of either kind for a time of not less than two years but not more than seven years, as well as a fine.
In this section, “sexual intercourse” refers to any of the activities listed in Section 375 clauses (a) to (d).
- Under Section 376C – A person in a position of authority engaging in sexual activity.
Whoever abuses a position or fiduciary relationship while:
- in a position of authority or in a fiduciary relationship; or
- a public servant; or
- superintendent or manager of a jail, remand home, or other places of custody established by or under any law currently in force, or a women’s or children’s institution; or
- on the management of a hospital or being on the staff of a hospital
Abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse that does not constitute rape shall be punished by rigorous imprisonment of either sort for a duration of not less than five years, but not more than 10 years, as well as a fine.
- Under Section 376D – Gang Rape
It specifies the punishment for gang rape, stating that if a woman is raped by a group of people, they will be sentenced to a minimum of 20 years in jail, with the possibility of life imprisonment, as well as a fine.
The fine must be just and reasonable in order to cover the victim’s medical bills and rehabilitation. In addition, any fine levied under this clause must be given to the victim.
- Under Section 376E – Punishment for repeat offenders
Whoever has been previously convicted of a crime punishable under Section 376, Section 376A, or Section 376D and is later convicted of an offence punishable under any of the said sections will be punished with life imprisonment or death.
In India, the rules on rape merely cover the top of the iceberg, failing to recognise or acknowledge the presence of the rest. Rape against men or rape against homosexuals is not even considered rape.
Because the consequences are insufficient for such a horrible crime, it has failed to deter the crime. Rape incidents are increasing every day in India, with the bulk of them going undetected.
It is critical to educate our society on their legal rights and responsibilities, as well as to raise awareness.
- Joseph Shine Vs Union of India 2018 SCC OnLine SC 1676 ↑
- Under 30% conviction rate in rape cases in India, says NCRB data available at:newindianexpress.com (Last visited on 20th July 2021) ↑
- Rafiq Vs State of Uttar Pradesh 1981 AIR 559 ↑
- Deelip Singh Vs State of Bihar (2005) 1 SCC 88 para 14 ↑
- State of Uttar Pradesh Vs Chottey Lal (2011) 2 SCC 550 ↑
- State of Punjab Vs Gurmit Singh AIR 1996 SC 1393 ↑
- Queen Vs Flattery 1877 QBD 410 ↑
- Motiram Krishnarao and Ors. Vs State of Madhya Pradesh AIR 1954 Nag. 922 ↑
- R. Vs Linekar (1995) 3 All ER 69 ↑
- Supra to note 4 ↑
- Uday Vs State of Karnataka 2003 CriLJ 1539 SC ↑
- Pradeep Kumar Verma Vs State of Bihar 2007 IV Cri Lj 4333 SC ↑
- State of Maharashtra Vs Prakash AIR 1992 SC 1275 ↑
- Tukaram Vs State of Maharashtra AIR 1979 SC 185 ↑
- Balwant Singh Vs State of Punjab 1987 Cri Lj 971 SC ↑
- Bhupinder Singh Vs Union Territory of Chandigarh (2008) 3 Cri Lj 3456 SC ↑
- Tulshidas Kanolkar Vs State of Goa (2003) 8 SCC 590 ↑
- Harpal Singh and Anr. Vs State of Himachal Pradesh AIR 1981 SC 361 ↑
- Mana Ramchandra Jadhav Vs State of Maharashtra 1984 CriLJ 852 (Bom) ↑
- Bishnudayal Vs State of Bihar AIR 1981 SC 361 ↑
- Independent Thought Vs Union of India W.P. (Civil) No. 382 of 2013, decided on October 11, 2017 ↑