By K. Manoggnya Reddy
Published On: September 21, 2021 at 19:41 IST
Introduction
Section 375 of the Indian Penal Code talks about rape and what actions a man can be held liable for if he performs a rape. Previously, it was considered rape if the penis was inserted into the vagina or anus or mouth of a woman. But now, even if the object is inserted into the vagina or other parts of the body, it is still considered rape.
The objective of Section 375 of the Indian Penal Code as said by Justice Krishna Iyer in the case of Rafiq Vs State of U.P. is that a murderer kills the body whereas a rapist kills the soul. So, rape is considered a more serious crime than murder. This Section of the law aims to punish those who would deliberately and maliciously rob women of their souls.
Under Section 375 of the Indian Penal Code, a man is considered to have committed rape if:
- There is penetration by a person of the penis to any part of the vagina, mouth, or anus of women.
- There is an insertion by a person of any object or part of the body that is not being used by the penis or the vagina.
- There is manipulation done by a person or a group of people into a woman’s body so that they can sexually penetrate her vagina or any other part of her body.
- There is an application by a man or any other person his mouth to the vagina, anus, or urethra of women.
Circumstances under which a person shall be held liable for Rape
- First, the act is done against her will. This means that it was done under the reasoning power of her mind or not.
- Second, it was done without the woman’s consent. This means that she was not able to express her opinion with either communication in the form of words or gestures.
- Third, consent obtained by putting someone in whom she has an interest, in fear of death or hurt.
- Fourth, when a woman gives consent thinking that her husband is her husband, the man is aware that the woman gave consent anyway.
- Fifth, when a woman consents to an act that is not in her control, she may be unable to understand its true nature and its consequences such as when intoxicated or due to unsoundness of mind or by administering an unwholesome substance.
- Sixth, with or without consent of a woman who is under the age of 18. Seventh, when the woman is unable to communicate her consent.
It was also stated that, if a woman is not resisting sexual activity, then it does not mean that she is giving consent.
There are certain exceptions to this Section such as: i) When it includes some kind of medical treatment it shall not be constituted to rape. ii) When it involves sexual activity between a husband and his wife who is no less than 15 years of age.
376 of the Indian Penal Code states that if a person commits rape, then he or she should be punished with imprisonment for a term which may not be less than seven years or which may be for life and shall be liable for fine.
Landmark Judgements:
- Mathura Case
Tuka Ram And Anr Vs State of Maharashtra[i]
Facts
In 1972 on March 26th, a minor girl was allegedly raped by two police officials while she was in police custody. This incident took place in Desai Gunj Police Station in Maharashtra. This case highlighted various issues in the context of Indian Rape laws, especially the issue of consent and the burden of proof.
Judgement
The Sessions court held that the defendants were not guilty due to the voluntary consent of the victim. It was held that Mathura willingly gave her consent to the sexual intercourse as she was habituated to it. The Sessions judge has ruled that rape and sexual intercourse are different terms and cannot be used in the same case.
The case was then appealed in the Bombay High Court, which took note of all the findings in the trial conducted in the sessions court. The High Court has appreciated the observation made by a Sessions Judge that there’s a difference between rape and sexual intercourse. However, they forgot to point out that there’s a difference between passive submission and consent. The court then noted that the consent given to the accused was not voluntary and was made due to the threat of arrest by the police.
Later, the case was referred to the Supreme Court, where the accused were acquitted. The Court noted that the girl did not show signs of any resistance or injury, and that her consent was voluntary. Also, the girl might have incited the police as she was habituated to sex. The Supreme Court of India has ruled that the sexual intercourse that was in question was not rape.
Changes brought upon the laws after this case
Due to the controversial nature of the verdict, which led to widespread protests and public outcry, India’s rape law was amended in 1986. During the time of the Mathura rape case, the rape laws in India were heavily biased towards rapists.
The main issue which was raised was about the concept of consent. Earlier it was very difficult for women to prove that they did not consent to sexual intercourse. After the judgement of this case, in 1983, the Criminal Law (Amendment) Act was passed, which brought various changes in the Indian rape law.
In 1983 Criminal Law Act, a new Section 114(A) of the Indian Evidence Act was inserted to enable courts to presume that the victim did not consent to the sexual intercourse if she was assaulted if she had said that she did not consent for the intercourse.
Subsections a, b, c and d of Section 376 of the Indian Penal Code underwent various amendments made by the Criminal Law Amendment Act, 2013. This Act also adds the word “custodial rape” to the Indian Penal Code 1860 for offenses that are carried out when a victim is in custody.
Liable persons under Section 376 (2) shall be punished with a rigorous imprisonment for a term not less than ten years or for life with a fine. The Act amended the principle of the burden of proof always lying on the Victim. In cases where sexual intercourse has already occurred, the burden of proof will now lie on the accused. Section 228A of the Indian Penal Code prohibits the publication of the identity of rape victims. Following the amendments made in 2013, by Criminal Law Amendments Act.
The Mathura rape case, which sparked massive protests and public outcry, had a significant social and legal impact in India. It led to the establishment of various laws related to sexual harassment.
- Nirbhaya case
Mukesh & Anr. Vs State for NCT of Delhi & Ors. [ii]
On December 16, 2012, a young female physiotherapist was brutally raped by five individuals and a minor on a moving bus in Delhi. The attackers pulled out the victim’s intestines using an iron rod. Despite all efforts to save her, she died in a hospital.
One of the accused reportedly committed suicide in the jail. The court also sentenced four adults to death and one juvenile to three years in a juvenile facility. In a case where a juvenile was involved in a sexual assault, the victim was punished with three years in a rehabilitation center. This incident deeply affected the conscience of the public and sparked debate on how to respond to such inhumane crimes. Various legislative reforms were then made to address this issue.
Aftermath and Amendments made:
After this incident, JS Verma, the former Chief Justice of India, headed a panel that was formed to study the criminal laws in the country and suggest possible amendments to enhance the punishment for sexual assault and Indian Rape Laws.
As recommended by the committee, The Criminal Law Amendment Act, 2013, was enacted to provide for the amendments in various laws related to sexual offences. Some of these included the Indian Penal Code, 1973, the Indian Evidence Act, 1872, and the Protection of Children from Sexual Exploitation Act, 2012.
The Criminal Law Amendment Act, 2013, was enacted to provide for the amendments in several laws related to sexual offences. Among the changes made was the provision for capital punishment for rape cases where the victim dies or is left in a permanent vegetative state.
- Marital Rape
Independent Thought Vs Union of India and Anr. [iii]
Facts:
The case was made by Independent Thought, a human rights organization founded in 2009. The organization’s petition was made against the Exception 2 to Section 375 of the Indian Penal Code, which provides for discrimination against a girl child. The Criminal Law Amendment Act, 2013, raised the age of consent for sex from 16 to 18. However, Exception 2 states that sex between a husband and his wife can be performed even if the marriage is not consensual and for that the woman has to be above 15 years of age.
The POSCO Act 2012 defines age for consensual sex as 18 years old. However, the above Exception 2 is contradictory to the Section 3 of the Act which criminalizes the possession of obscene materials.
Judgement and Changes:
The Division Bench discussed the various issues related to the case and gave a verdict which stated:
The Exception 2 discriminates against married and unmarried girls without a reasonable nexus. It is against the dignity and reproductive choice of a girl child. The Parliament has raised the age for consent from 15 to 18 years.
So Exception 2 was deemed to be against the rights of the girl child and unjust.
Proponents of the exception 2 then were changed to – that sexual intercourse or sex by a man with his spouse is not rape if the woman is older than 18 years old.
- Sexual Assualt and Rape at Workplace
Vishaka Vs State of Rajasthan and Ors. [iv] (Bhanwari Devi Case)
This case dealt with the protection of women from sexual harassment at work. In 1992, a social worker was allegedly gang-raped when she tried to stop a child marriage taking place and her complaint was not pursued properly despite lodging an complaint in the police station. She took her case to get justice through the trial court, which ruled that the accused were not guilty due to the lack of evidence.
This led to many women groups and organizations going against the verdict. Which resulted in the issue of sexual harassment in the workplace being pursed and brought to the Supreme Court of India by a public interest lawsuit. This case has been regarded as one of the most significant cases in the country’s history. The court noted that sexual harassment of a woman at work was considered a violation of her rights under Articles 14, 15, 19 and 21 of the Indian Constitution.
Legal Changes brought after the case:
In response to the sexual harassment at work issue, a comprehensive legislation was proposed, which laid down various guidelines and requirements that employers and other responsible parties should meet in order to implement the provisions of the case. It is the duty of employers to prevent sexual harassment in the workplace. They should also consult with their staff members about effective ways to resolve the issue.
A complaint committee should be established at all workplaces to handle complaints. It should be headed by a woman employee and should have a third party or NGO participation along with that half of the members should be of women only. All complaints about sexual harassment of women employees would be handled by this committee only, and the employers would be required to take appropriate action. The committee would then advise and recommend the victim for the next course of action.
These guidelines were created to give women the protection they deserve from harassment in both the public and private sectors. The Indian Government enacted the Prevention of Sexual Misconduct at Work Act, 2013, following the Supreme Court’s judgment. This Act came into force on December 9, 2013.
Conclusion
According to the National Crime Records Bureau of India, there are around 88 rape cases reported in the country every day. This alarming figure is a cause for concern as it shows that the number of sexual crimes in the country has increased significantly.
Section 375 of the Indian Penal Code defines rape as an offence that occurs when a man has intercourse with a woman without her consent or if she is a minor. And under this section mere penetration is enough for that act to be considered as the offence of Rape.
There are a lot of cases of rape that are not reported to the police. As a result, the number of cases has increased. Due to the lack of awareness of women’s rights, many victims do not come forward and report sexual assault. It is very important that the society understands that the victims are not at fault and that they deserve to be supported instead of ostracized. When the public views the rape incidents in a different manner, then the laws related to it will be properly implemented.
References
- Section 375 IPC Archives | SCC Blog
- Rape by a False Promise to Marry: A case-law non-offence
- 10 Landmark Judgments by the Supreme Court of India
[i] Tuka Ram And Anr Vs State of Maharashtra, AIR 1979 SC 185
[ii] Mukesh & Anr Vs State For Nct Of Delhi & Ors, CRIMINAL APPEAL NOS. 607-608 OF 2017
[iii] Independent Thought Vs Union of India and Anr., WRIT PETITION (CIVIL) NO. 382 OF 2013
[iv] Vishaka Vs State of Rajasthan and Ors., JT 1997 (7) SC 384