Rape Laws: A heinous crime decoded

This blog contains the origin of Rape laws in India, punishment of this heinous crime and the development of rape laws in India after Independent. So without wasting time lets start our topic.

Author : Mohd Muzammil Khan

Rape Laws: A heinous crime decoded

Today the number of rape cases in our society is growing day by day. The government make laws to enforce it strictly but in reality it was not. Many cases in rural areas were not registered due to fear and the society pressure. All we have to do is spread awareness and education, these two weapons can change the society drastically. Due to lack of awareness of laws of vtimes against rape people think that judiciary is too weak and it will not affect there status in the society after raping a girl. And the second one is education someone rightly says that "education is the key to success" but due to lack to education specially in rural areas people don't encounter themselves with new knowledge as a result they stuck in bad habits and as s result they didn't respect there parents, society and women's.

Lets have a look at the changes in our laws that helps a rape victim to ensure justice.

Tuka Ram And Anr vs State of Maharashtra, AIR 1979 SC 185 (Mathura Case).

Facts of the case:

In Mathura rape case, a young tribal girl was allegedly raped by two policemen while she was in custody. It was the incident of custodial rape, took place on March 26th, 1972, where the girl was raped in Desai Gunj Police Station in Maharashtra.

Issues raised:

This case raised so many issues in the context of Indian rape laws that were earlier existed in prevalent Criminal law like the issue of consent, the question of burden of proof, the reference to two-finger test and the reference to the girl’s sexual history.

What was held?

Sessions Court passed the judgment in favor of defendants and held them not guilty. It was held that Mathura gave her consent voluntary as she was habituated to sexual intercourse. Learned Sessions Judge found that there was a major difference between “sexual intercourse” and “rape” so, it was a case of sexual intercourse in which she had consented voluntary and not rape. Thus, Case was further appealed in the Bombay High Court which took note of all the findings arrived during the trial in Sessions Court. High Court appreciated the observation given by the learned Sessions Judge that there is a major difference between sexual intercourse and rape but they forgot to observe that there is a world of difference between “consent” and “passive submission”. On the ground of such observations, the court held that the defendants were guilty of rape and the consent given was not voluntary and it was due to serious threats by policemen. It was held that:

“Mere passive or helpless surrender of the body and its resignatess to the other’s lust induced by threats or fear cannot be equated with the desire or will, nor can furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition.”

Later, the case went to the Supreme Court, where court acquitted the accused and set aside the judgment passed by the Bombay High Court. The Court stated that no marks of injury were found on the person of the girl, there were no signs of any struggle, any resistance, also from the shreds of evidence it can be shown that the girl had not been put in fear of death or hurt so the consent would be considered as free or voluntary. Also, the girl was habituated to sex so, it may be possible that she might have incited the cops. So, it was concluded and held by the Supreme Court of India that the sexual intercourse which was in question in the given case is not proved to amount to rape.

Legal Changes brought in the Indian rape law:

Due to such rationale behind the judgment, so many protests and huge public outcry took place which ultimately led to the amendment in Indian rape law. At the time when Mathura rape case did take place, the rape laws in our country were heavily biased towards rapists. The main question which was raised after this judgment was regarding the concept of consent because earlier it was so difficult for women to prove that she had not consented to any sexual intercourse. So, after the judgment of this landmark case, the Criminal Law (Second Amendment) Act, 1983 came which brought so many changes in the Indian rape law like:

Criminal Law (Second Amendment) Act, 1983 inserted section 114(A) in the Indian Evidence Act, 1872 which states that in a prosecution for rape where it has been already proved that the sexual intercourse by accused did take place, if the victim says that she had not consented to the sexual intercourse then Court shall presume that she did not consent as a rebuttable presumption of law.

Section 376 of Indian Penal Code, 1860 underwent a change in which sections 376(A), 376(B), 376(C) and 376(D) were added which were further amended by Criminal Law Amendment Act, 2013.

Substitution of new section for section 376:-

Clause(1): Rigorous imprisonment of min. 7 years and max. Of imprisonment for life and fine.

Clause (2): Rigorous imprisonment for min. ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person\’s natural life, and shall also be liable to fine.

Substitution of new section for section 376A:- 

“Punishment for causing death or resulting in a persistent vegetative state of the victim.”: rigorous imprisonment of min of twenty years and max of imprisonment for life, which shall mean imprisonment for the remainder of that person\’s natural life, or with death.

Substitution of new section for section 376B:-

“Sexual intercourse by the husband upon his wife during separation without her consent.”

Punishment: imprisonment min of two years and max of seven years and fine.

Substitution of new section for section 376C:-

“Sexual intercourse by a person in authority.”

Punishment: rigorous imprisonment of min of five years and max of ten years, and fine.

Substitution of new section for section 376D:-

“Gang rape”

Punishment: rigorous imprisonment of min 20 years and max for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.

Insertion of new section 376E:-

“Punishment for repeat offenders.”

Punishment: Imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.

"Custodial Rape"

Act added the provision for “custodial rape” under section 376(2) of Indian Penal Code, 1860 for the offenses which take place when a victim is in the custody of the state.

The Person liable under section 376(2) shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.

Act amended the idea of burden of proof which always lies on the prosecution. After the amendment, in cases of rape where sexual intercourse was already established, the burden of proof will lie on the accused.

Introduction oc section 228A in the IPC:-

The Act introduced section 228A in the Indian Penal Code, 1860 which prohibits any publication regarding the identity of rape victims and any matter through which victim’s identity could be known, subsequently amended by Criminal Law Amendment Act, 2013.

So, Mathura rape case was monumental in context of both social and legal perspective which sparked huge protests and public outcry for the very first time in India for the cases of rape at a very large level and which further led to so many reforms in the Indian rape law via the Criminal Law (Second Amendment) Act, 1983.

Source:- https://www.google.com/amp/s/blog.ipleaders.in/landmark-judgments-on-sexual-harassment/amp/

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