“Ends of justice are higher than ends of mere law, although justice is to be administered through the law.”
~ Hon’ble Justice Krishna Iyer (Retd)
Rights and resentments must be self-proven and constitutionally assured; nonetheless, they aren’t enforced automatically. Over the years the upper courts of the country have returned to the mass call for enhanced security of women. Civic retribution of rape and sexual assault are long lived concepts in India. Stereotypical believes that a woman subsists as an affix to a man in her life; recurring claims of men over the bodies of women are well established notions of Indian society.
Varied crimes against women have reached epic proportions lately. The International Men and Gender Equality Survey, 20111 featuring gender attitude results depicted 68 per cent of the surveyed Indian men (n=810) admitted that women must tolerate violence for the sake of their families, while 65 per cent reckoned a woman deserves to be beaten at times; 37 per cent of surveyed men (n=929) had physically abused their intimate partner at least once; 24 per cent had committed an act of sexual violence against someone in society and 20 per cent had committed sexual violence against their partners. The most intriguing revelation from the TrustLaw research2 was that 92 per cent of those studied already had knowledge of the laws relating to crime against women. What does one conclude about the scenario of women in India?
The Criminal Law (Amendment) Act, 2013 became a landmark by expanding the definition of rape to include voyeurism, stalking, acid attacks in addition to vaginal penetration as punishable crimes. All dissenting penetrative sexual acts with person below 18 years of age will now constitute statutory rape. The character of the victim is rendered irrelevant to establishing her consent from the commencement of the 2013 amendment. However, marital rape is still kept from the purview of the Act. Further, rape and sexual assault were not removed from the bounds of the Armed Forces (Special Powers) Act (AFSPA). Also, Police will be penalised if they are failing to file the FIR.
Sexual assault cases in India
Every woman is entitled to bodily integrity. Sexual assault constitutes act of showcasing any kind of gesture, making intention or touching her against her will. Rape, one of the gloomiest offences against women
had widely increased and hiked in the yesteryears. Prior the 2013 criminal
amendments, according to the National Crime Records Bureau report of 20113, 24,206 rape cases were
reported in India, with significant increase in the molestation and rape of
underage girls. As per statistics, out of 1,704 rape cases registered in the
state in 2012, in 924 cases the victims were underage girls. According to 2012
statistics, New Delhi has the highest number of rape-reports among Indian
Whenever they stepped out of their homes, boarded public transport, or walked on the streets, or they risked, and in fact continue to risk, being groped, harassed and subjected to de trop sexual advances. Nevertheless, rather than their harassers being earmarked, their right to dress as they please, their freedom of movement, and their right very to associate with persons of their choice is questioned, curtailed and debated. While raising the slogan of justice for victims of gang rape/other rape and sexual assault with severe punishment of the perpetrators in India, the protesters brought out the dismal state of law enforcement in our nation. The exigency for accountability of the cops underscored the fact that they had not put into effect the law and were guilty of dereliction of duty in matters of sexual assault and rape, while the state had taken very scanty steps towards the security and safety of women in their homeland. The protesters had raised the issue of delay of justice on part of the judiciary, by demanding speedy trial and fast-track courts. Voices were raised for more stringent and explicit Indian laws contra rape and sexual assault. Initially started by the collision of women’s organizations and groups, particularly of the Left, these protests and demonstrations were widely held to have been led forward with populous support by the youth of the nation.
The verdict of Delhi High court in the Farooqui rape case4 has brought back locus onto the amendments made to Indian rape laws in 2013. Points about the necessity of the law for inclusion of sexual acts other than penile-vaginal penetration within the definition of rape, the meaning of free consent and the sentencing regime had been raised.
Before the amendments of 2013, the Indian Penal Code (IPC) described rape as sexual intercourse by a man with a woman without her consent. In five other circumstances, sexual intercourse amounted to rape, including that when consent was obtained through threat or deception. Maximum matters fell within the first part of the section i.e. sexual intercourse without consent. IPC had no definition for “Sexual intercourse”, while it only stated that penetration was enough to constitute “sexual intercourse”.
Nirbahaya Case / Delhi Gang Rape Case, 2012
Only after the death of 23-year-old physiotherapy student, who was barbarically attacked and raped by a gang of six men in Delhi that nationwide protests fuelled with demand of strict punishment for the culprits.
Protests were followed by national debate about women’s rights and safety in the country and persuaded the Government to enact stricter anti-rape legislation, inspiring a massive outrage across the nation. In April 2013 the Indian Parliament brought various amendments to the Indian Penal Code making some changes in rape laws in India.
Crimes of the nature of rape are usually associated with a lot of social stigma. Section 228A of the Indian Penal Code prohibits any person (especially the media) to “print or publish” the real name or identity of the victim in rape cases. The accused may be imprisoned for two years, along with being liable for a fine. The section aims at preventing the social victimization of the victim which is also part of the 2013 amendment.
Criminal Law (Amendment) Act, 2013
The Criminal Law (Amendment) Act, 2013 that came into force on the 3rd of April, 2013 amended and included new sections in the IPC relating to various sexual offences. The new Act has expressly identified certain acts like stalking, acid attack, physical harassment and voyeurism as offences which were dealt under related laws.
· As stated under Section 166A, anyone being a public servant and knowingly disregards any direction of the law or disobeys any other direction to run proceedings shall be penalised with imprisonment for a term which shall not be less than six months and can extend to two years, and shall also be liable to fine
· Section 326A deals with the deliberately causing grievous hurt by the use of any acid, will be punishable with imprisonment of either for a term which shall not be less than ten years and can extend to imprisonment for life, and with fine.
· Sexual Harassment as under Section 354A is bullying or coercion of a sexual nature, or the unwelcome of inappropriate promise of rewards in return for sexual favors. The crucial factor is the unwelcome of the behavior, thereby making the impact of such actions on the recipient more relevant than the intent of the wrongdoer.
The essentials of the offence of sexual harassment as defined in the case of Vishaka v. State of Rajasthan5 are –
1. physical contact and advances involving unwelcome and explicit sexual overtures; or
demand for sexual favours; or
sexually coloured remarks; or
showing pornography; or
other unwanted physical, verbal or non-verbal sexual act.
Sexual harassment violates not only the article 14 of the Indian constitution which entitles right to equality but also the article 21 that grants everyone, whether man or women to live with dignity.
Prevailing Provisions and its amendment thereof
Before enforcement of this Act, the provisions in the IPC that dealt with sexual harassment existed but there was no clarity regarding punishment for the offence of sexual harassment.
· Section 354B – Assault or Use of Criminal Force to woman with intent to disrobe
There was no specific provision regarding this offence. The act was dealt under Section 354. Outraging a woman’s modesty was punishable with imprisonment for maximum 2 years and fine under IPC.
Provisions after Amendment
Section 354B grants the punishment from three to
seven year for the act done by man in using criminal force against any women
with the intention to disrobe her or make her naked in public. This section deals with a specific offence and adds to the provision dealing with the offence of outraging the modesty of a woman.
This is a welcome provision in view of the fact that in backwards areas many cases have been reported in the news of women being stripped in public as an instrument of punishment.
· Section 354C- Voyeurism is the act of watching a person engaged in personal conduct. If a man watches a woman engaged any such private acts, when the woman does not expect anyone to be watching, he has committed the offence of voyeurism.
There is no such provision under the Indian Penal Code but under Information Technology Act 2000, both male and female are protected. The punishment for this act was fine upto 2 lakh or punishment up to 3 years.
Provisions after Amendment
Any man who watches, or clicks picture of a woman involved in a private act in such circumstances where she would usually have the expectation of not being observed either by the accused or by other person who accompany the accused or disseminates such image shall be punished. Under Section 354C, such a person is liable.
In case of first conviction, imprisonment is not to be less than one year, but may extend to three years, and shall also be liable for the fine and for the second conviction the punishment is of three years and can be extend for seven years or fine may also be imposed.
· Section 354D- Stalking means following a person and making or attempting to make contact for personal interaction, despite a clear disinterest being displayed by the other person. Stalking may be committed both physically and through electronic media.
No specific offence under IPC.
Provisions after Amendment
Stalking has been made a specific offence under section
Section 354D. If a man stalks a woman, he may be punished with imprisonment of
up to three years for the first time, and five years for the subsequent
convictions. However, the offence is subject to certain exceptions like where a
person can show that the acts done were in pursuance of some law, amounted to
reasonable conduct or in order to prevention of some crime. Under the Act, the offence is limited to the physical act of following or contacting a person, provided that there has been a clear sign of disinterest, or to monitoring a woman by use of the internet, email or any other forms of electronic communication.
Before the amendment the section 354D was gender neutral which punishes both male or female for the act of stalking but after the Amendment Act of 2013 changed ‘Whosoever’ to ‘Any Man’ making the offence of Stalking a gender-specific offence. Section 354D of the Ordinance of 2013, was highly inspired from the definition of ‘Stalking’ in Section 2A of the Protection from Harassment Act, 1997 passed by British Parliament on 25th November 2012.6
· Section 375 and 376- RAPE
“A murderer kills the body, but a rapist kills the soul”, Justice Krishna Iyer in the case of Rafiq v. State of U.P.7 made this remark. The legislature
by means of law has extended the purview of the rape by including some of the
non-penile -vaginal penetration acts.
Rape under the IPC had been interpreted to mean
only penile-vaginal intercourse. Sections 375, 376 and 376 A-D of the IPC cover rape. However, medical examination was not an exception under the old provision.
Provisions after Amendment
Section 375 – Under the new section, a man is said to commit rape if there is:
penetration or, the penetration with penis to urethra, mouth or anus of any
person, or making any other person to do so with him or any other person;
of any object(s) or finger(s) to vagina, urethra, mouth or anus of any person.
of any body part so as to cause penetration of vagina, urethra, mouth or anus
or any body part of such person or makes the person to do so with him or any
of mouth to the penis, vagina, anus, urethra of another person or makes such
person to do so with him or any other person;
touching the vagina, penis or breast of any other person or making other person
touch these body parts.
The 2013 Act expands the purview of rape as not only the penile-vaginal penetration but the insertion of the object(s) or finger(s) or any other body part into the vagina or anus or urethra or mouth.
The punishment for rape is seven years at the
least, and may extend up to life imprisonment. Any man who is a medical
officer, police officer, army personnel, public officer or public servant, jail
officer commits rape may be imprisoned for at least ten years. A punishment of
life imprisonment, extending to death has been prescribed for situations where
the rape concludes with the death of the victim, or the victim entering into a
vegetative state. Under the new amended act the gang rape is prescribed the
punishment of 20 years.
The amended act defines ‘consent’, as an unequivocal
agreement to engage in a sexual act; clarifying further, that the absence of
resistance will not imply consent. Non-consent is a key ingredient for
commission of the offence of rape. The definition of consent therefore is key
to the outcome of a rape trial, and has been interpreted systemically to
degrade and discredit victims of rape.
The amendment brings changes to the other laws as
Criminal Procedure Code, 1973; The Indian Evidence Act; Protection of Children
from Sexual Offences Act, 2012. The age for consent is India is 18 years.
Redefining ‘Sexual Intercourse’ and ‘Penetration’
intercourse only meant to be penile-vaginal penetration. The courts interpreted
the term sexual intercourse as “mere
slightest or partial penetration of the male organ within the labia majora or
the vulva or pudenda is sufficient to constitute ‘sexual intercourse'”8. The courts have laid emphasis on the fact that the depth of the penetration is immaterial.9 The hymen need not be ruptured10. The essential condition of rape is penetration and not ejaculation. It is also laid down that there is no requirement for injuries to be present on the private part11 of the woman to constitute rape. Thus ejaculation without penetration will constitute as an attempt to rape and not rape actually12.
The Supreme court in case of “State of Uttar Pradesh v Babulnath”13 while delivering into the essential ingredients of rape made express observation that “To constitute
the offence of rape it is not at all necessary that there should be complete
penetration of the male organ with the emission of semen and rupture of hymen.
Even slightest piercing by male organ within the labia majora or
the vulva or pudenda with or without any emission of semen or even an attempt
at penetration into the private part of the victim would be quite enough for
the purposes of section 375 and 376 of the Indian Penal Code. That being so it
is quite possible to commit legally the offence of rape even without causing
any injury to the genitals or leaving any seminal stain”.
A vital issue of broadening the scope of section 375 to include any bodily penetration as rape was raised in the case of Smt Sudesh Jhaku v KCJ & Ors.14 This was however resented by court as it was necessary to prevent chaos and confusion in the society with regard to the changed definition of rape and hence Section 375 should not be altered.
Speedy trial for rape cases in country
India has 13 special courts to hear the cases of
violence against women. For next five years government has planned to start 100
fast track courts in the state. The government is on the way to make 25 courts
out of these 100 courts exclusively for the cases of crimes against women.
These are progressive steps taken by the legislature for the protection of
women and in regard to compensating them against the heinous crimes and
providing them an environment of safety and security. The amendments are of
such nature that they empower women themselves and provide them the strength to
fight for themselves.
Question of marital rape
Following the logic of the Supreme Court verdict making marital rape of a child is considered sound, adult marital rape should no longer have legal sanction. The court said it cannot make a distinction between a married and an unmarried child in the context of rape as it would create two classes of people, leading to discrimination and a violation of Article 14 of the Constitution, which guarantees equality before law. This reasoning too would be applicable to adult women.
Besides, if the Apex Court believes marriage is personal and not institutional, the same standard should apply in the context of adult women as well. If tradition cannot be used as an excuse to exempt sex with a minor wife above 15 years of age, can that same tradition be used to justify non-consensual sex between two adults?
Attempts were made in order to criminalize marital rape in India but on the different ground declined the plea. After the Delhi gang rape case, the Verma committee suggest to penalise marital rape but government pleaded that penalising marital rape will destroy the institution of marriage.
5 Vishaka v. State of Rajasthan and Ors. AIR 1997 SC 3011
6 “The Criminal Law (Amendment) Bill, 2013 – A Critical Analysis” available at http://rostrumlegal.in/the-criminal-law-amendment-bill-2013-a-critical-analysis; accessed on 15.02.2014
7 Rafiq v. State Of U.P. 1981 SCR (1) 402
8 Madan Gopal Kakkad vs Naval Dubey (1992) 3 SCC 204
9 Wahid Khan v State of Madhya Pradesh (2010) 2 SCC 9
10 Guddu vs State of Mp,(2007)14 SCC 454, 2006
11 Fateh Chand vs State of Haryana, (2009)15 SCC 543
12 Ramkripal Shyamlal Charmakar vs State of Madhya Pradesh(2007) 11 SCC 265
13 (1994) 6 SCC 29
14 (1998) Cr LJ 2428