The laws on rape and sexual crimes
How have they changed over the years? When was the death penalty clause included?
Recent Story So far: After the rape and murder of a veterinarian in Hyderabad on November 28 and the burning of a rape survivor in Unnao, Uttar Pradesh, on December 5, there has been an outcry for justice for the victims. Within and outside Parliament there has been a clamor to make the criminal justice system tougher on an offender committing sexual crimes against women and children.
Is the system in place?
‘Rape’ as a clearly defined offence was first introduced in the Indian Penal Code in 1860. Prior to this, there were often diverse and conflicting laws prevailing across India. The codification of Indian laws began with the enactment of the Charter Act, 1833 by the British Parliament which led to the establishment of the first Law Commission under the chairmanship of Lord Macaulay.
The Law Commissioners decided to put the criminal law of the land in two separate codes. The first to be placed on the statute book was the Indian Penal Code formulating the substantive law of crimes. This was enacted in October 1860 but brought into force 15 months later on January 1, 1862.
The first Code of Criminal Procedure was enacted in 1861, which consolidated the law relating to the set-up of criminal courts and the procedure to be followed in the investigation and trial of the offence.
IPC Talks About
Section 375 of the IPC made punishable the act of sex by a man with a woman if it was done against her will or without her consent. The definition of rape also included sex when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Also, sex with or without her consent, when she is under 18 years is considered rape. However, under the exception, sexual intercourse or sexual acts by a man with his wife, the wife not being under 15 years of age, is not rape.
Section 376 provided for seven years of jail term to life imprisonment to whoever commits the offence of rape.
What happened in 1972?
For over a century after 1860, the criminal law relating to rape and sexual assault cases remained unchanged until the watershed incident of the Mathura custodial rape case. On March 26, 1972 a young Adivasi girl named Mathura was allegedly raped by policemen in the Desai Gunj Police Station in Maharashtra. In the trial that ensued, the session’s court came to the conclusion that she had sexual intercourse while at the police station but rape had not been proved and that she was habituated to intercourse.
While the session’s court acquitted both the policemen, the High Court reversed the order of acquittal. When the case reached the Supreme Court, it overturned the High Court verdict saying that “the intercourse in question is not proved to amount rape”.
The top court, in its September 15, 1978 verdict, said no marks of injury were found on the girl after the incident and “their absence goes a long way to indicate that the alleged intercourse was a peaceful affair”.
Reason behind the Criminal Law Act amendement
The controversial verdict sparked wide scale protests across the country seeking a change in existing rape laws. This culminated into the Criminal Law (Second Amendment) Act of 1983. A new Section 114A in the Indian Evidence Act of 1872 was inserted which presumed that there is absence of consent in certain prosecutions of rape if the victim says so. This applied to custodial rape cases.
In the IPC, Section 228A was added which makes it punishable to disclose the identity of the victim of certain offences including rape.
Are the laws genders neutral?
Following the direction of the Supreme Court in a public interest litigation (PIL) initiated by a non-governmental organisation to widen the definition of sexual intercourse in Section 375 of the IPC, the Law Commission in its 172th report recommended widening the scope of rape law to make it gender neutral.
While the rape law in India even today remains gender specific, as the perpetrator of the offence can only be a ‘man’, the 172nd report led to the amendments in the Indian Evidence Act in 2002.
A new provision was inserted which barred putting questions in the cross-examination of the victim as to her general ‘immoral character’ in rape or attempt to rape cases.
Rape laws stricter now!
The nationwide public outcry, in 2012, following the December 16 gang rape and murder in Delhi, led to the passing of the Criminal Law (Amendment) Act in 2013 which widened the definition of rape and made punishment more stringent.
Parliament made the amendments on the recommendation of the Justice J.S. Verma Committee, which was constituted to re-look the criminal laws in the country and recommend changes.
The 2013 Act, which came into effect on April 2, 2013, increased jail terms in most sexual assault cases and also provided for the death penalty in rape cases that cause death of the victim or leaves her in a vegetative state.
It also created new offences, such as use of criminal force on a woman with intent to disrobe, voyeurism and stalking.
The punishment for gang rape was increased to 20 years to life imprisonment from the earlier 10 years to life imprisonment.
Earlier, there was no specific provision in law for offences such as use of unwelcome physical contact, words or gestures, demand or request for sexual favours, showing pornography against the will of a woman or making sexual remarks. But, the 2013 Act clearly defined these offences and allocated punishment. Similarly, stalking was made punishable with up to three years in jail. The offence of acid attack was increased to 10 years of imprisonment.
Offences against minors
In January 2018, an eight-year-old girl in Rasana village near Kathua in Jammu and Kashmir was abducted, raped and murdered by a group of men. The news of the shocking act led to nationwide protests and calls for harsher punishment.
This led to the passing of the Criminal Law (Amendment) Act, 2018 which for the first time put death penalty as a possible punishment for rape of a girl under 12 years; the minimum punishment is 20 years in jail.
Another new section was also inserted in the IPC to specifically deal with rape on a girl below 16 years. The provision made the offence punishable with minimum imprisonment of 20 years which may extend to imprisonment for life.
The minimum jail term for rape, which has remained unchanged since the introduction of the IPC in 1860, was increased from seven to 10 years.
