“I just want to sleep. A coma would be nice or amnesia. Anything, just to get rid of this, these thoughts, whispers in my mind. Did he rape my head, too?”
-Laurie Halse Anderson, Speak
What amounts to rape under Indian law?
Section 375 of IPC: This section of the Indian Penal Code delineates the criminal offense of rape and provides that a man is said to commit rape on a woman when he has sexual intercourse with her under any ofthe following circumstances:
a. Against her will.
b. Without her consent.
c. With her consent but such consent being procured by putting her or any person close to her in fear of causing hurt or death.
d. With her consent but such consent being given by her on a belief that he is the man with whom she has been lawfully married but that man being apprised of not being her husband.
e. With her consent but at the time of giving such consent, the woman was impuissant to apprehend the nature and consequences of her consent.
f. With or without her consent, when the woman is below the age of 16 years.
Under this particular section of the IPC, a penetration would suffice to constitute the sexual intercourse necessary for the commission of the offense of rape.
Additionally, for the purpose of this section, a woman’s consent to sexual intercourse involves her unequivocal and voluntary agreement or willingness to engage in the specific sexual act. Such consent may be evinced through words, gestures or any form of verbal or non-verbal communication. However, if a woman does not try to physically intercept the act of penetration, the same cannot be regarded as consenting to the sexual activity.
Exceptions under Section 375:
It has been provided under this section that the act of sexual intercourse will not be considered rape in the following cases:
a. When it is done by a man with his own wife; the wife not being under fifteen years of age.
b. A medical procedure or intervention shall also not constitute rape.
Is India effectively protecting its daughter against Rape?
In order to persuasively answer the aforementioned question, it would be sagacious to look at the data released by the National Crime Records Bureau (NCRB) on 9th January 2020. The department functions under the Union Ministry of Home Affairs and is responsible for collecting and analyzing crime data as defined by the Indian Penal Code and special and local laws of the country. The significant findings from the data produced by NCRB pertaining to the offense of rape are as follows:
- A rape was reported every 15 minutes on an average in India in 2018.
- The total incidents of rape that were reported during the year 2018 are 33,356, involving 33,977 victims, making an average of 89 rapes daily.
- Out of these reported cases, just over 85 per cent led to charges and merely 27 per cent of them led to convictions.
- Every fourth victim of rape across the country was a minor, while more than 50 per cent of them belonged to the age category of 18 to 30 years.
- Furthermore, in almost 94 per cent of the cases, the perpetrators were known to the victims. According to the findings of the data, such an offender could be a family member, friend, live-in partner, employer, etc., In 15,972 of the total 33,356 reported cases, the offender was a family friend, neighbour, employer or some other known person, while in 12,568 cases, the offenders were friends, online friends, live-in partners or separated husbands.
- Among states, Madhya Pradesh reported the highest (5,433) number of rape cases in the year 2018, followed by Rajasthan (4,335), Uttar Pradesh (3,946), Maharashtra (2,142), Chhattisgarh (2,091), Kerala (1,945), Assam (1,648), Delhi (1,215), Haryana (1,296),Jharkhand (1,090) and West Bengal (1,069).
Therefore, the data palpably divulges that regardless of all the legislations and penal provisions, India has seriously failed to protect its daughters from being subjected to the most gruesome and loathsome offenses against humanity.
Significant Judicial Pronouncements:
Mukesh & Anr vs State For Nct Of Delhi & Ors, 2017
This is the popular Nirbhaya Gang-rape case of a 23-year-old girl committed on the doomed night of 16th December 2012 which shook the conscious of not only the entire nation but the whole world. The bestial proclivity, loathsome brutality and immense trauma to which the young lady was subjected, led to thousands of protestors marching across the streets with candles and placards in their hands, demanding justice for Nirbhaya.
When the matter reached the Hon’ble Supreme Court, it opined that the instant case of the gang-rape, unnatural sex and insertion of iron rod in the private parts of the victim falls within the category of ‘rarest of rare case’ where the question of any other punishment is ‘unquestionably foreclosed’.
Furthermore, it was asserted that “When the crime is brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of the public in the administration of criminal justice system. Whether there is no alternative punishment suitable except for the death sentence. Where a crime is committed with extreme brutality and the collective conscience of the society is shocked, courts must award the death penalty, irrespective of their personal opinion as regards desirability of the death penalty. By not imposing a death sentence in such cases, the courts may do injustice to the society at large.”
Independent Thought v. Union of India (2017)
In this case, Hon’ble Supreme stipulated that sexual intercourse with a girl below 18 years of age is deemed to be rape regardless of the fact that she is married or not and that the exception carved out in the IPC fosters a superfluous, capricious and synthetic distinction between a married girl child and an unmarried girl child and is therefore liable to be thrown down the gauntlet.
Vishaka v. State of Rajasthan and Ors. (1997)
This was a landmark case pronounced by the Hon’ble Supreme Court regarding the protection of women against sexual harassment at the workplace. In this case, it had been asseverated that the sexual harassment of a woman at her workplace is a transgression of the fundamental rights of gender equality and right to life and liberty enshrined under Articles 14, 15, 19 and 21 of the Indian Constitution. The court further concluded that such an act is also a violation of women’s human rights.
Manoharan v. State by Inspector of Police (2019)
In this case, the Apex Court observed that the instantaneous case consists of a petrifying criminal act wherein a young 10-year-old girl has first been horribly gang-raped and after that, she and her brother aged 7 years were thrown away into a canal which caused their death by drowning.
Since the case involved a child below the age of 12 years, the same fell under Section 5(m) of the POCSO Act. Consequently, the Apex Court reaffirmed the decision of Madras High Court in awarding a death sentence to the accused and the appeal was outright dismissed.
State Of Karnataka vs Krishnappa (2000)
In this case, the Hon’ble Supreme Court avowed that sexual violence in addition to being a dehumanizing perversion is also a villainous encroachment upon the right to privacy and sanctity of a female. Such a degrading and humiliating act is a serious blow to the supreme honour, self-esteem, and dignity of the victim.
Recommendations of Justice Verma Committee:
The Committee was constituted under the chairmanship of Justice J.S. Verma; the former Chief Justice of India in the year 2012 after the incident of the Delhi gang-rape had taken place. The reason behind the institution of the committee was to look into the possible amendments that could be to the Criminal Law, in order to provide for a quicker trial and enhanced punishment against the criminals inflicting sexual assault of an extremely brutal nature upon the women. The “Report of the Committee on amendments to Criminal Law” suggested certain progressive altercations to be made to the Criminal Law and the same have been enlisted as below:
- Marriage should not be considered as a license to perform sexual offenses.
- The scope of rape must be widened and it should not be limited only to the penetration of the vagina, mouth or anus. Any other non-consensual penetration whose nature is sexual should also be included within the definition of rape.
- Non-penetrative forms of sexual contact should be regarded as a sexual assault which would also include all forms of non-consensual or non-penetrative touching of a sexual nature. Additionally, the use of words or any act or any form of gesture that fosters a threat of sexual nature should also be termed as sexual assault and be punishable for the same.
- The flawed practice of the two-finger test must be scrapped as the offense of rape can be committed against a woman even if she is accustomed to sex.
- Sex education must be imparted to children at schools so that they get to know if anything wrong happens to them.
- Filing of charge sheet and cognizance by the Court must be sufficient for the disqualification of a candidate under The Representation of the People Act, 1951. A candidate must be disqualified if he has committed any sexual offense.
- A Rape Crisis Cell should be set up for providing immediate notification of the case when an FIR in relation to sexual offenses is made. Such a cell shall also provide legal assistance to the victims.
“Rape is horrible. But it is not horrible for all the reasons that have been drilled into the heads of Indian women. It is horrible because you are violated, you are scared, someone else takes control of your body and hurts you in the most intimate way. It is not horrible because you lose your “virtue.” It is not horrible because your father and your brother are dishonored. I reject the notion that my virtue is located in my vagina, just as I reject the notion that men’s brains are in their genitals.”
-SohailaAbdulali, a rape victim
“The views of the authors are personal“