Comparison and critical analysis of the rape laws before and after the Criminal Law Amendment (2013)

Satwik Singh

WB NUJS

Editor’s Note: The paper is a comparison and a critical analysis of the rape laws in India before and after the Criminal Law Amendment Act of 2013 which not only introduced many new sexual offences but also made punishments and penalties more stringent in an effort to curb the increasing instances of sexual offences against women in the cities of India.”

INTRODUCTION

This project will critically analyse the Anti Rape Laws prevalent in India both before and after the Criminal Amendment Act of 2013 which brought about some very necessary changes in the Rape Laws of India. However on a personal note, I feel that some provisions are not very conducive in providing the fullest extent of justice that should be dispensed to the victims of this heinous crime. India is passing through a very turbulent phase with regard to women security and cases of rapes, sexual assaults, acid attacks are on the rise on a daily basis. One of the major reasons that have been attributed to the rise of these crimes has been the increased number of unemployed youths who take to crime. The rise in the number of sexual crimes is supported by empirical data. The National Crime Records Bureau in its data has shown that the crimes have seen a gradual increase. It has seen a massive jump from 2,487 in 1997 to 24,206 in 2011 which is an increase of 873%[1]. This increase can be explained by two factors in my opinion. One, there is an increased awareness about the crimes and hence the feeling that these crimes should not go unreported has percolated in the society. This is a very important point because in India Sexual Crimes always had this character of social stigma attached to it. This meant that the victims would not take the matter to the relevant authorities and thus these crimes would go unreported. The long tedious process of seeking justice also played an important role in this behaviour of the victim in not reporting the crimes.  The second reason which explains the increased percentage is that the crimes have actually increased in number. This can also blamed on not having effective deterrence due to a lax implementation of the prevalent laws which can be argued to be comprehensive. Sociological conditions such as illiteracy, unemployment and gender insensitivity among the youth can be attributed to the increased crimes against women. The alarming situation is that despite the nationwide outrage, the crimes against women have only been increasing which suggests that there is something seriously wrong with our legal system when it comes to the prosecution and punishment of the perpetrators of these crimes. Also the society should sensitise itself to the plight of the victims. In our country it is commonly seen that rape victims are not treated well by the society and some people go to the extent of blaming the rape on the victim. So not only the legal mechanism but also the society needs to change its view towards the victims of rape and other sexual crimes.

Analysis of laws before the criminal law amendment, 2013

Rape laws have seen numerous transitions before reaching the present form through the criminal law amendment of 2013, which was brought through as an ordinance as the parliament was not in session. This amendment was brought after a nationwide outrage against the brutal rape of a physiotherapist student in Delhi     .

Section 375 of the Indian Penal Code defines Rape. In common parlance rape is described as sexual intercourse with a woman without her consent by force, fear or fraud[2]. Section 275 has seen an amendment in the year 1983, which overhauled the definition of rape and also made changes to the punishments that were stipulated under the section 376. This was made through the Criminal Law (Amendment) Act of 1983. Interestingly this amendment was also brought about due to the widespread criticism of a judgment in the case of “Tukaram v State of Maharashtra”[3], In this case the trial court had pronounced the accused as not guilty which was based on the concept that the victim had given tacit consent to the act. It was also observed that the girl was of promiscuous character which was used as reasoning for the tacit consent. This was overturned by the Bombay High Court which rightly pointed out that there was a huge difference between consent and passive submission. It was very correct in its observation that mere surrender to another person’s lust should not be taken as consent. This was upturned by the Supreme Court who acquitted all the accused. This judgment was criticised widely by the civil society. The ramifications of the case were seen in the amendments that were brought about in the             IPC and the Indian Evidence Act. Section 376 A to D were added to the IPC and section 114A was introduced in the Indian Evidence Act.

To analyse the laws before the criminal law amendment act 2013 it is important to know how the sections have defined rape and the punishments associated with it. The crux of the definition of rape in section 375 IPC before the amendment of 2013 is that rape involves coercive non consensual sexual intercourse between a man and a woman. There are six circumstances that can be said to be the constituents of rape. The primary condition necessary for rape to be committed is that there must be the commission of sexual intercourse between the man and the woman. It is widely believed that rape can only be committed if the sexual intercourse has been done without the consent of the victim, but this is not always the case, rape can be committed even after consent has been obtained if the age of the woman is below the age of sixteen years.  On a closer look at the circumstances required for the commission of rape it can be broadly divided into three parts. The first two clauses reveal that they deal with sexual intercourse with a woman ‘against her will’ and ‘without her consent’. This means that the woman is consciously capable of giving or not giving consent to the act. The next two clauses deal with the woman giving her consent due to coercion that is by putting her or any of her family member to threat of hurt or grievous harm and it also deals when the consent is obtained through misconception. The last two clauses deals with the situation when the consensual sex with underage female person takes place.

Explanation of the term ‘Sexual Intercourse’ and ‘Penetration’

These are the terms that have undergone the most comprehensive change in the recent amendment of 2013. Before the amendment of 2013, sexual intercourse was taken to mean the penetration of the male genital organ into the female genital organ only. 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’”[4].  The courts have stressed on the fact that the depth of the penetration is immaterial[5]. It is also laid down that there is no requirement for injuries to be present on the private part[6] of the woman to constitute rape. The hymen need not be ruptured[7]. Thus the essential condition of rape is penetration and not ejaculation. Ejaculation without penetration will constitute as an attempt to rape and not rape actually[8]. These conditions were expressly mentioned by the Supreme Court in the case of “State of Uttar Pradesh v Babulnath”[9]. The court in this case while delving into the essential ingredients of rape made the 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 Partial or slightest penetration of the 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”[10]. An important issue of widening the ambit of section 375 to include the any bodily penetration as rape was raised in the case of Smt Sudesh Jhaku v KCJ & Ors.[11]  The petitioners wanted to increase the ambit of the definition to include penetration of any male body part into any orifice in the woman’s body. This however was rejected by the court which was not in favour of tinkering with the existing definition of the term. The court said that 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.

It is also important to note that there is also an exception to section 375.  The exception is known as Marital Rape. Marital Rape is defined as non consensual sex with wife who is over the age of 15 years.  The crux of the argument is that any coercive or non consensual sex with a wife over the age the age of 15 years will not be considered as rape within the purview of section 375. The immunity of the husband from getting convicted for marital rape arises from the assumption that after marriage husband gets a lifelong consent for sexual intercourse with his wife. This is a very problematic situation according to me because this is in contravention to the statute that states that the minimum age for marriage of a woman should be 18 years. So if that is the case a man cannot marry a wife who is of 15 years of age. I also don’t agree with the fact that Marital Rape is not considered to be rape because I don’t agree with the concept of lifelong consent to sexual intercourse just because a couple is married.

Punishments

Section 376 of the IPC stipulates the punishments that are awarded if a person is convicted of rape. There is a minimum punishment of seven years and it can also be given with a fine and extend to life imprisonment. However Section 376(2) provides the situations where the quantum of punishment will be very high and it will include rigorous imprisonment which will not be less than a term of 10 years.

The punishment for gang rape is provided under sub section 2 of section 376 IPC which postulates that when a woman is raped by more than one person then each of the person will be convicted of the crime of gang rape and the punishment would not be less than ten years of rigorous imprisonment in such cases.

Rape Laws after the Amendment of 2013.

The Criminal Law Amendment Act of 2013 was brought into effect after the horrific Delhi Gang Rape case which shocked the whole nation with the brutality of the act committed. Widespread protests and agitations forced the legislature to contemplate the changing of the prevalent rape laws.  The basic idea was to make them more stringent and introduce harsher punishments besides broadening the ambit and definition of the term rape.

Late Justice J.S.Verma, Gopal Subramaniam and Ex-Justice Leila Seth comprised the rather famous ‘Justice Verma Committee’ which was made to collect suggestions and make recommendations for the legislature to make a law to combat rape and other crimes against women[12].The technical committee was so proactive with its working that during its short duration it received as many as 80,000 suggestions over which deliberations were done. These suggestions were sent by various activists, lawyers, NGOs and other persons representing the ‘civil society’. Since the legislature was adjourned and there was no session, the committee’s recommendations were introduced via an ordinance.

The offence rape was now amended or given a broader meaning which was comprehensive enough to include any kind of penetration and also in any body part of the woman or girl. This was the most important change because earlier section 375 of the IPC only stipulated the Penile Vaginal penetration as rape. The fact that the new recommendations added that any penetration would be considered as rape was the most efficient tool in widening the ambit of the term rape which was being demanded earlier on the basis of the recommendations of the fifth law commission report. There was also the inclusion of registering complaints and medical examination. The report categorically mentioned, “Any officer, who fails to register a case of rape reported to him, or attempts to abort its investigation, commits an offence which shall be punishable as prescribed[13]

The committee gave extensive recommendations regarding avoiding marital rape as well as rapes committed via commission of void marriages. This was very important as I feel that Marital Rape is a loophole that is very explicit and on the face in nature. It is a topic that is not very hidden that legislations are not being made on the issue. This is why it is such an important thing since everyone knows about it and yet the effort to include it under the definition of rape has only begun recently. To include this fact and observation the committee mentioned compulsory registration of marriages so as to provide legal sanctity solemnization of marriage. The Code of Criminal Procedure  also underwent a similar overhauling attributed to the new law and had previously gone through the same process after the judgment in the Supreme Court decision in the “Gurmit Singh Case[14].

 Critical Comparison of the two legislations

It goes without saying that the laws have now changed drastically from what it existed previously. Societal views changes from time to time with the advent of new values and technologies. It is only fair that similarly laws which matter so much in regulating the law and order prevailing in the society also changes from time to time. This is important to counter and combat new types of crimes that have emerged of late such as cyber crimes which include data theft, harassing, breach of privacy and so and so forth.   The major rape and sexual assault cases such as the ‘Shopian Rape Case, the Aruna Shanbaug Case, Nirbhaya Rape Case, Priya Patel[15], the Mathura Rape Case[16], etc. all have had an effect on the functioning of rape laws and their interpretations as well as reformations[17] .Rape was included in the Indian Penal Code, 1860 in its original form since 1924[18].

The Criminal Law (Amendment) Act, 2013 was a replacement of the Criminal Law (Amendment) Ordinance, 2013[19]. The Act was mandated to make change in the Indian IPC & CrPC as well as the Indian Evidence Act. There was a rise in threats towards individual privacy in the country[20] and it was high time to include certain new crimes under the Indian Penal Code in consonance with the passing of time. A new crime that was introduced and was not provided for in the country’s earlier legislations was ‘voyeurism’ which means the recording or viewing images, movies or any such media material without the permission of the person portrayed or screened in them would result in penal punishment. A ‘voyeur’ is defined as “a person who derives sexual gratification from the covert observation of others as they undress or engage in sexual activities.[21]” Voyeurism is a criminal act which creates apprehension for society and is infringement of expectations of privacy that all citizens have about their body which they do not wish to expose it to others[22].

The inclusion of voyeurism as a crime under the Indian Penal Code has made sale of pornography, invasion of privacy and all forms of sale of defamatory pictures as prohibited and this has resulted in apprehension in minds of criminals.

Another very important change from previous legislations is the much required change in the procedure of providing evidence in the court of law. After the Mathura rape case the outcry did result in amendment of Section 114A of the Indian Evidence Act. This was done to maintain that despite there being the lack of consent given by the women, there was often a character assassination of the women at the court trials which was very unfortunate. Thus there was a transition from earlier legislations and Section 53A of the Indian Evidence Act was introduced making it explicit that in a trial where there was sexual assault or rape then the evidence supplied relating to the victim’s previous sexual experience or even for a matter of fact her ‘character’ could not be admissible in the court of law. Still is unfortunate that the character assassination of the victim continues in the society which increases the hurt suffered by the victim.

On instances of rape or sexual assault cases the evidence concerning consent is often derived on the basis of the past conduct of the woman which seems rather frivolous as at the instance of the abuse she might not have consented thus constituting the criminal act. In earlier cases prostitutes could be raped and their right would not be protected as the victim’s previous sexual experience and “promiscuous character” would always malign the proceedings and create a bias in the judiciary’s mind. The sole reason for this inclusion of this amendment was to prevent the breach of privacy of the victim’s sexual history by preventing it to be included as a piece of evidence in court. Thus unwarranted intrusion in the privacy of the victim’s life should not be supported by members of the civil society. The new law protected defamation of the woman and rights of the woman to live with dignity[23].

Lastly and very importantly, there was also an introduction of sexual harassment at workplace (under section 354 of the IPC in addition to the Sexual Harassment at Workplace Act, 2013) and an enhanced definition of rape provided for in the amended law. The earlier legislation had focused on coercion[24] and the fear of death or hurt of someone close to her[25] as an example of force exerted or lack of consent when there was commission of rape. Another example of deceit which culminated into the act of committing rape was commission of false marriages[26]

CONCLUSION

To conclude with the comparison between the legislations it can be said that the two major substantive changes were introduction of sixteen forms of rape (Penetration made by object and all parts of body included) and also the increase in age of consent. Both were introduced to combat rise of rapes committed on minors specifically. Though there was another recommendation by the J.S.Verma Committee which wanted to introduce marital rape under section 375 but this was not allowed as it would have been a social controversy. One must also note that the sexual harassment at workplace which was for the first time highlighted in the case of Sakshi v. Union of India[27] which was a public interest litigation  seeking punishments for sexual harassment committed against women at workplaces. It also wanted to widen the interpretation of rape to include all forms of penetration to be covered, the court had then given the decision in favour of the NGO but the parliament was did not recognise it. The 2013 Amendment and Act made this a reality as it gave sanction to the judgment. So I believe laws can be made much more stringent than they already are.

Edited by Amoolya Khurana

[1] Times of India Kolkata 2013 May 19; 1 ( Col. 3)

[2] Bhupinder Sharma v State of Himachal Pradesh AIR 2003 SC 4684

[3] AIR 1979 SC 185

[4] Madan Gopal Kakkad vs Naval Dubey (1992) 3 SCC 204;

[5] Wahid Khan v State of Madhya Pradesh (2010) 2 SCC 9;

[6] Fateh Chand vs State of Haryana, (2009)15 SCC 543

[7] Guddu vs State of Mp,(2007)14 SCC 454, 2006.

[8] Ramkripal Shyamlal Charmakar vs State of Madhya Pradesh(2007) 11 SCC 265;

[9] (1994) 6 SCC 29

[10] Ibid.

[11] (1998) Cr LJ 2428

[12] http://en.wikipedia.org/wiki/J._S._Verma

[13] Report of the Committee on Amendments to Criminal Law Pg 416  http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf. last accessed 3 August 2014.

[14] State of Punjab v. Gurmit Singh, AIR 1996 SC 1393

[15] Priya Patel v. State of Madhya Pradesh, AIR 2006 SC 2639

[16] 1979 AIR 185

[17] http://www.bbc.co.uk/news/world-asia-india- accessed on 3 August 2014

[18] http://indiankanoon.org/doc/1279834/ (Accessed on 1.07.2014)

[19]Criminal Law(Amendment) Ordinance, 2013, available at  http://mha.nic.in/pdfs/criminalLawAmndmt 040213.pdf (Accessed on 11.07.2014)

[20]  http://bit.ly/10nMSTT  (Accessed on 11.07.2014)

[21] Oxford English Dictionary, available at  http://bit.ly/YN2ZvI accessed on 2 August 2014

[22] Lance Rothenberg, Rethinking Privacy: Peeping Toms, Video Voyeurs, and the failure of criminal law to recognize a reasonable expectation of privacy in the public space, American University Law Review, 49, 1127,

(1999).

[23] http://cis-india.org/internet-governance/blog/the-criminal-law-amendment-bill-2013 accessed on 2 August 2014

[24] State of Maharashtra v. Prakash, AIR 1992 SC 1275: 1993 Supp (1) SCC 653

[25] State of Himachal Pradesh v. Mango Ram,  (2000) 7 SCC 224

[26] Jayanti Rani Panda v. State of West Bengal, 1984 Cr LJ 1535

[27] AIR 2004 SC 3566

One Reply to “Comparison and critical analysis of the rape laws before and after the Criminal Law Amendment (2013)”

  1. you talked about merital rape…. What matters when sec 375 expressly provide circumstance that if the sexual intercourse is taken place against her will it will be a rape. sec 375 is talking about women which include any female in which wife also come…

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