Rapes in India: the legal position after 2013

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Contents

Sexual offences in the Indian Penal Code

From the government site CHD District Courts, downloaded in Dec 2016

Section 228 A: revealing survivor’s name

Atul Sethi, Rapists should cover faces, not us: Survivors, April 22, 2018: The Times of India


A girl not more than 18 and dressed in a crisp white sari speaks haltingly, sometimes her voice just a whisper. “Yes, I am aware of the Kathua incident. Most of us are following it closely,” she says, gesturing towards the three girls sitting alongside, who, like her, are rape survivors. At the NGO in the heart of Dehradun, a one-of-itskind shelter that houses 50 women who have suffered rape, there is a raging debate among the girls and women.

Should news reports take the Jammu girl’s name and show her face if her parents agree to it? For that matter, should rape survivors — with the permission of guardians if they are minors — come out in the open with their stories? No names changed, no face blurred?

Almost all of them were unanimous in their opinion. “Why should we be asked to hide our identities when we haven’t committed any crime? Shouldn’t those who are committing rapes be the ones covering their faces?” the girl in the white sari says, her voice steady now, eyes displaying flashes of anger. “By remaining anonymous, we are only letting rapists gain strength.” Other heads nod in assent.

Whether or not to disclose the identity of a rape survivor has for long been a grey area in the judicial system.

Survivors studying law to fight their cases

Section 228 A of the IPC prohibits publicising the name of the survivor and entails in case of a violation imprisonment up to two years which may or may not be accompanied with a fine. However, there are provisions under which the identity can be revealed —

a) if the police official conducting the investigation authorises it in good faith,

b) if the survivor herself allows it in writing, or c) if the victim is dead or minor or of unsound mind, and her next of kin authorises it in writing.

Renu D Singh, a human rights lawyer who runs Samadhan, the NGO, says that the basic aim of Section 228 was to ensure that rape survivors — once they get back to their daily lives — do not have their past catching up with them.

“But it tends to get misused a lot, often against those who are trying to help the survivor,” she says, reeling off details of a string of cases filed against her by people accused of rape. “A man in the city had been raping a girl for several months. Her parents got her married to the rapist as a form of compromise. Eventually, the woman ran away and took shelter at our centre. The man, in order to harass us, filed RTIs and dug up instances where I had participated in panel discussions with rape survivors post the Nirbhaya incident,” she says. “He then filed a petition accusing me of violating Section 228 A by disclosing the identity of rape survivors in public forums.”

Even though the law clearly states provisions under which the identity can be revealed, such petitions get admitted in court. “The irony,” Singh says, “is that they are filed by rapists themselves.”

Family and societal pressure to remain incognito does exist, the women at the centre admit, but add that survivors can get justice faster if they come out and name and shame their perpetrators. One survivor studying to be a lawyer (most of the women at the centre are pursuing law in order to fight their cases themselves or help others like them) says she recalls a case. “The rapist was convicted. He came out on bail and began accosting the girl. Later, she died in a road accident which many believed was done by the man.”

There is another point, adds Singh. “Just because a girl is a rape survivor, her right to expression under Article 19 of the Constitution cannot be snatched. Remember, she is the victim of a crime, not a criminal. When a rapist can shout that he is innocent, why can’t the girl come forth and tell her own story?”

Section375: Rape

375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

First.-Against her will.

Secondly.-Without her consent.

Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.-With or without her consent, when she is under sixteen years of age.

Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Indian Kanoon adds (downloaded in Dec 2016): (Manipur) —(a) in clause sixthly, for the word “sixteen” substitute the word “fourteen”; and

(b) in the Exception, for the word “fifteen” substitute the word “thirteen”. [Vide Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950) (made earlier than Act 43 of 1983)]. COMMENTS Absence of injury on male organ of accused Where a prosecutrix is a minor girl suffering from pain due to ruptured hymen and bleeding vagina depicts same, minor contradictions in her statements they are not of much value, also absence of any injury on male organ of accused is no valid ground for innocence of accused, conviction under section 375 I.P.C. proper.

The Age of consent in India was modified in 2017. To track the changes see Age of consent in India.

Sec. 376: Punishment for rape

376. Punishment for rape.--(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,-

(a) being a police officer commits rape-

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape, 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:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Explanation 1.-Where a women's is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.

Explanation 2.-"women's or children's institution" means an institution, whether called and orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.

Explanation 3.-"hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.

376A: Intercourse by a man with his wife during separation

376A. Intercourse by a man with his wife during separation.-- Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

376B: Intercourse by public servant with woman in his custody

376B. Intercourse by public servant with woman in his custody.--

Whoever, being a public servant, takes advantage of his official position and induces or seduces, any woman, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.

376C: Intercourse by superintendent of jail, remand home, etc.

376C. Intercourse by superintendent of jail, remand home, etc.--

Whoever, being the superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution takes advantage of his official position and induces or seduces any female inmate of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.

Explanation 1.-"Superintendent" in relation to a jail, remand home or other place of custody or a women's or children's institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of which he can exercise any authority or control over its inmates.

Explanation 2.-The expression "women's or children's institution" shall have the same meaning as in Explanation 2 to sub-section (2) of section 376.

376D: Intercourse by any member of the management or staff of a hospital with any woman in that hospital

376D. Intercourse by any member of the management or staff of a hospital with any woman in that hospital.--Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.

Explanation.-The expression "hospital" shall have the same meaning as in Explanation 3 to sub-section (2) of section 376.]

Punishment and the law

As in Dec 2012

The article below was written after the gruesome gang rape, called the Nirbhaya rape, of Dec 2012. It was written before subsequent changes in the law.

Rape and sexual offences: Crime & punishment in India, India Today Online, New Delhi, December 18, 2012

Section 376

Section 376 of the Indian Penal Code 1860 says:

"Whoever commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both."

Section 376 also deals with gang-rape under which the culprit/s 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.

If the victim says he (the accused) didn't rape then Section 354 of Indian Penal Code applies. Section 354 of the IPC considers the assault or criminal force to woman with the intention to outrage her modesty. The punishment is up to two years imprisonment or a fine or both.

Developing countries like India do not have a deterrent punishment for such heinous crimes. Additional sessions judge Kamini Lau had on May 11, 2011 suggested "chemical castration" as an alternative to a jail term for rapists.

Chemical castration is the administration of medication designed to reduce libido and sexual activity, usually in the hope of preventing rapists, child molesters and other sex offenders from repeating their crimes. In the US, UK and Germany, chemical castration is being used as an alternative.

However, the Indian Penal Code provides only a jail term for sexual offenders.

Definition of rape

Under Section 375, a man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the following descriptions: Against her will; without her consent; with her consent but with fraudulent means or by misrepresentation.

1860: Rape laws

The Indian Penal Code (45 of 1860) was enacted in the year 1860 but the provision relating to rape embodied in Section 375 and 376 remains substantially similar.

The bias against victim

The process of law is biased against the victim. If the victim is a minor, the onus is on the accused to prove his innocence. In the case of a major, it is up to the victim to prove the charge.

In rape cases, if the woman is not examined medically within 24 hours, it becomes difficult forensically to prove that rape has occurred.

After 1983: Change in rape laws

It was after 1983 that the punishment for rape was made more severe. Earlier, the punishment prescribed under Section 376 of the IPC provided for a maximum sentence of life imprisonment but there was no minimum limit. A rapist could get away with a sentence of even one month.

In 1983, while the maximum sentence to capital punishment could not become a reality as demanded by various organisations, a minimum sentence of seven years' imprisonment was, however, prescribed.

Under Section 376(2), "rigorous imprisonment" and ten years' imprisonment sentence were introduced - for special kinds of rape. This Section covered rape by a police officer within the premises of a police station; rape by a public servant of his junior while taking advantage of his official position; rape by an official in a jail or remand home of an inmate; rape by someone on the staff of a hospital of a woman in the hospital; rape of a pregnant woman; rape of a girl under 12 years of age and gang-rape.

In gang-rape cases, each of the persons within the group will be deemed to have raped the woman even if each one of them did not actually have sexual intercourse with her.

Absence of consent

As per Section 114A of the Indian Evidence Act (IEA), in cases of custodial rape, gang-rape and rape of a pregnant woman, if the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused.

Protection of accused

The continued existence of Section 155(4) of the IEA gives protection to the accused. Under this Section, if it is shown that the woman in question is of immoral character, her evidence will not be taken into account.

Attempt to Rape

In cases where an indecent assault is made upon the person of a woman, but where rape is not committed, the culprit is charged with Section 354 of IPC.

Sexual harassment and rape

According to official statistics of 1991, one woman is molested every 26 minutes.

In Rupan Deol Bajaj Vs. KPS.Gill, the Supreme Court in January, 1998 fined Gill Rs 2.5 lakh in lieu of three months rigorous imprisonment under Sections 294 and 509 of the Indian Penal Code. Senior IAS officer Bajaj was slapped on the posterior by the then Punjab Police chief Gill at a dinner party in July 1988.

Stringent punishment

The Law Commission of India in its 172nd Report on Review of Rape Laws and the National Commission for Women seek more stringent punishment for rape offences.

In view of increasing number of sexual crimes, the government has included acid attacks as a separate offence with stricter punishment.

The Union cabinet has proposed to replace "rape" with "sexual assault" in the Indian Penal Code and widen the scope of the offence in the Criminal Law (Amendment) Bill, 2012.

It is learnt, the Section 375 of IPC, which defines rape, has also been changed to include provisions like when the woman is lured into having sex with promise of marriage or made to consume an intoxicant or by fraud.

According to the National Crime Records Bureau, incidents of rape rose from over 16,000 in 2001 to over 24,000 in 2011 in the country.

Attempt to murder

Attempt to murder under sec 307 of IPC explains that whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned.

Changes in the law after February 3, 2013

From ‘Allegation raj’ that burns at stake

Principle of law? Ha-ha

R. BALAJI, IMRAN AHMED SIDDIQUI AND CHARU SUDAN KASTURI

Telegraph India

The changing times have fuelled concerns.

The laws that were changed after the December 16, 2012 brutality in Delhi and the backlash that dramatically transformed public discourse may have pushed the country into a tightrope walk between surer justice for the sufferers and a lynchmob presumption that the accused are guilty.

The gist of their views suggests that the cornerstone of law — every suspect is presumed innocent until proven guilty — must be kept in mind always while commenting on such sensitive cases. Besides, police investigation must be allowed to proceed in an environment free of shrill rhetoric on which an “allegation raj” feeds and fattens itself.

Law changes

Tarun Tejpal case

Tarun Tejpal, the Tehelka founder accused of raping a junior during a Goa literary conclave in November 2013, would have been booked for the much weaker charge of sexual harassment under the earlier laws.

Tejpal would have faced the prospect of a maximum of two years in jail and a fine under the earlier laws that described any sexual crime short of rape with the Macaulay-era wording “outraging the modesty of women” and prescribed a uniform punishment.

Under the new law, if convicted, he now faces anything between seven years and life in jail.

Justice Asok Kumar Ganguly case

The new laws will not apply to the charges against Justice Asok Kumar Ganguly because the alleged “unwelcome behaviour of a sexual nature” in December 2012 preceded the legal amendments carried out on February 3, 2013.

Going by the information made public so far, Ganguly, unlike Tejpal, would not have faced the charge of rape even under the new laws. But the punishment for the charges the former judge could face would have been different had the new laws applied, ranging from a year to seven years in prison.

Rape of minor girls

Rajasthan, Madhya Pradesh: rape of minor girls is a capital offence

Raj makes rape of under-12 girls capital offence, March 10, 2018: The Times of India


The Rajasthan assembly passed an amendment bill that makes rape or gang rape of a girl up to 12 years of age an offence punishable with death. The state is now the country’s second, after Madhya Pradesh, where rape or gang rape of minor girls is a capital offence.

Through the Criminal Laws (Rajasthan Amendment) Bill, 2018, the state government has added two sections to the Indian Penal Code, 1860, in an effort to check rising heinous crimes against minor girls by provisioning harsher punishments.

Meanwhile, the assembly also passed the Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) (Amendment) bill, 2018. The bill excludes buffalo and its progenies from the definition of bovines, which would come as a major relief for cattle/meat traders.

Arunachal, too, permits death penalty

Arunachal OKs death penalty for raping under-12 girls, March 17, 2018: The Times of India


The Arunachal Pradesh assembly passed the Criminal Laws (Arunachal Pradesh) Amendment Bill 2018, which empowers the state to award death penalty or rigorous imprisonment of at least 14 years to anyone found guilty of raping a girl below 12 years. The state becomes fourth in the country to approve the provision after Rajasthan, MP and Haryana .


Death sentence to rapists of children

April 21, 2018: The Times of India’'

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Madhya Pradesh was the first state to pass a bill to award death sentence to rapists of children below 12 years but the Centre has been sitting on it for four months now.

Officials at the secretariat refused to come on record on why the bill is hanging fire, apart from a one-liner that it was pending with the President. While the Centre told the Supreme Court on Friday that it intended to amend POCSO to include death penalty in case of rape of a child younger than 12 years, the MP government has sought an amendment in IPC sections 376 (a) (a) and 376 (b)(a).

The first one is for rape of a child, for which the state government seeks 14 years to life imprisonment or death. The second one is for gangrape, for which it wants 20 years to life in jail or capital punishment. For crimes registered under IPC section 493 (a) — rape through lure of marriage — the state recommends three years’ jail.

Chief minister Shivraj Singh Chouhan on Friday welcomed Delhi’s decision to amend POCSO and tweeted: “I believe rapists deserve strictest punishment and have no right to live in a civilized society. MP is the first state to introduce death penalty for rape of minor girls. I welcome the decision of the central government to amend POSCO Act to this effect.”

The MP assembly had unanimously passed ‘Dand Vidhi (Madhya Pradesh Sanshodhan) Vidheyak 2017’ bill in December last year.

The Congress supported the bill though it apprehended misuse of the tough law and shared child activists’ concerns that it might drive rapists to kill children to erase evidence.

2018: rapists of minors to get life imprisonment or death

Mahendra Singh, April 22, 2018: The Times of India

More than 9 of 10 rape survivors attacked by known people- Quantum of punishment under the Criminal Law Amendment Ordinance and age of survivors
From: Mahendra Singh, April 22, 2018: The Times of India

The Union Cabinet cleared a stringent ordinance on Saturday providing for lengthy jail terms and even the death penalty for sex offenders convicted for raping girls below the age of 12 years while the punishment for the gang rape of a victim below 16 will be imprisonment for life.

The ordinance sets out life sentences for the entire natural life of a convict and rules out anticipatory bail for rape or gang rape of a girl less than 16 years while also providing a two-month time frame for investigation and the same for trial. The ordinance also outlines plans for specialised forensic labs and rape investigation kits for police stations to ensure evidence is gathered and analysed speedily.

The Cabinet met within hours of the PM’s return from a tour of Sweden and the UK and after he reviewed the Criminal Law (Amendment) Ordinance, 2018 intended to provide “effective deterrence” against the offence of rape and to instil a feeling of security among women and young girls.


Fast-track courts for rape cases soon

Official sources said the government took serious note of the incidents of rape in various parts of the country and framed a comprehensive response that includes tough sentences and time-bound trials.

The PM returned to Delhi around 8.30am and the Cabinet met at 11.30am to deliberate on the ordinance in the backdrop of nationwide outrage over the Kathua rapemurder of a minor.

The ordinance is the second occasion in recent years when laws on crimes against women have been scrutinised and sentences made tougher after the rape-murder of a young physiotherapy student in Delhi in 2012. The “Nirbhaya case” had led to the inclusion of specific offences and a review of sentencing.

The urgent meeting of the Cabinet seems to have been prompted by criticism that crimes against women are rising and, in the Kathua case, the perception that BJP was slow to dissociate itself from protests in support of the accused and that the case had been given a communal turn. The ordinance follows Modi’s comments in Delhi last week and then in the UK that there should be no politics over rape.

The ordinance states that the minimum punishment for the rape of a girl below 16 years will be increased from 10 years to 20 years, extendable to imprisonment for the entire lifetime of an offender — till the end of a convict’s “natural life”. Punishment for the gang rape of a girl below 16 years will mandatorily be imprisonment for the rest of the life of the convict/s.

The minimum punishment in case of rape of women has been increased from rigorous imprisonment of seven years to 10 years, extendable to life imprisonment. After the Nirbhaya case, the death sentence was included in cases of sexual assault where the victim dies or is reduced to a vegetative state.

The ordinance prescribes a six-month time limit for the disposal of appeals in rape cases and also puts restrictions on bail for the accused.

New fast-track courts will be set up to deal with such cases and special forensic kits for rape cases provided to police stations and hospitals in the long term, according to the ordinance. Apart from the Kathua case, the alleged rape of a teenager in Unnao in UP by a BJP legislator and the assault on her father — leading to his death allegedly by the MLA’s brother had also caused considerable comment and revulsion.

New posts of public prosecutors are to be created and special forensic labs exclusively for rape cases are also planned. “These measures will form part of a new mission mode project to be launched within three months,” an official said.

Speaking at a function last week, the PM Modi had said, “Such incidents shake our sensibilities. I want to assure the nation that no criminal will be spared. Justice will be done. Our daughters will get justice.”

The Indian Penal Code, the Evidence Act, CrPC and the the Protection of Children from Sexual Offences Act will stand amended once the ordinance is promulgated after the approval of President Kovind.

Justice J S Verma Committee had opposed death penalty

Bharti Jain, The father of ‘Nirbhaya law’ opposed death penalty, April 22, 2018: The Times of India


Only five years ago, Justice J S Verma Committee report that led the erstwhile UPA government to enact a tougher anti-rape law in 2013, had strongly opposed death penalty for rapists, noting that it would be a regressive step and may not have a deterrent effect.

Citing international law and law as explained in the American courts, the panel — headed by Verma, a former CJI, with retired HC judge Leila Seth and former solicitor general of India Gopal Subramanium as its other members — said it would be a regressive step to introduce death penalty even when such punishment is restricted to rarest of rare cases.

According to the report, there was considerable evidence that the deterrent effect of death penalty on serious crimes was a myth.

Taking into account views of a majority of scholars and women’s organisations etc, the committee — set up to review anti-rape law in the wake of gangrape and murder of Nirbhaya in December 2012 — said it was not inclined to recommend introduction of death penalty in cases of aggravated forms of sexual assault in the larger interests of society, having regard to the thinking in favour of abolition of death penalty.

2018, national law: death for rape of under-12 girls

House approves death for rape of under-12 girls, August 7, 2018: The Times of India


Parliament on Monday passed a legislation prescribing stringent punishment, including death penalty, to those convicted of raping a girl below 12 years of age. The law replaces the Criminal Law (Amendment) Ordinance that was promulgated on April 21, following an outcry over the rape and murder of a minor girl in Kathua in Jammu and Kashmir and the rape of another woman at Unnao in Uttar Pradesh.

In cases of rape of girls under 12 years, the minimum jail term will be 20 years, which may go up to life in prison or death sentence. Gang rape of a girl under 12 years old will invite imprisonment for rest of the life or death. The minimum punishment in cases of rape has been enhanced from rigorous imprisonment of seven years to 10 years. According to the bill, in case of rape of a girl under 16 years, the minimum punishment will be 10 to 20 years, extendable to imprisonment for rest of life.

The bill, which was passed in Lok Sabha on July 30, was approved by a voice vote in the upper House only after a debate with some members from the opposition demanding that it be sent to a select committee for scrutiny— the main concern being that death penalty may put the survivor of sexual assault at risk of being killed by the accused. Also there was demand for making the law gender-neutral.

The ministry of women and child development is processing a proposal to bring amendments to the Protection of Children Against Sexual Offences Act 2012 to make it gender-neutral.

Replying to a debate, junior home minister Kiren Rijiju said the government brought the bill, as in the last few months, “heart-rending incidents of rape of underaged girls have taken place in the country”.

The deadline for the completion of trial in all rape cases will be two months. A six-month time limit for disposal of appeals in rape cases has also been prescribed. There will also be no provision for anticipatory bail for a person accused of rape or gang rape of a girl under 16 years.

In case of rape of a girl under 12 years, the minimum jail term will be 20 years which may go up to life in prison or death sentence

Sexual Harassment of Women at the Workplace Act

Subjective terms

Added to this mix of criminal laws is the Sexual Harassment of Women at the Workplace Act that makes it mandatory for offices to set up a grievance redress mechanism to internally evaluate allegations of misconduct followed by a criminal complaint if the charges are found to be sound.

The cocktail of laws, however, is silent on the specifics of what can be viewed as humiliation, interference with work, creating an environment of intimidation and implied and explicit threats — the factors that define sexual harassment at the workplace.

It is equally unclear what constitutes “making sexually coloured remarks” or “unwelcome verbal conduct of a sexual nature” that the new criminal amendment law punishes with a year in jail.

But the rape laws describe in detail what constitutes the offence (see chart: ' The 2013 law vs the earlier position'). The definition of rape has been widened to such an extent that finding evidence to prove some charges would be difficult. In effect, although many feel that the law has been tightened, the task of prosecution may become all the more difficult to establish a charge in court in the absence of material evidence.

The law has yet to be tested in court conclusively but if cases under the new definition of rape are not eventually proved, future complainants may turn reluctant in approaching the police.

Witch-hunt frenzy

However, such questions have been blown away by the blizzard of opinions from those with little respect for the nuances of law that usually follow a complaint.

Senior lawyer K.T.S. Tulsi, who appeared on behalf of Tejpal at Delhi High Court, felt that a witch-hunt of those charged with sexual crimes was leading to premature presumption of guilt by society at large.

“The moment an allegation of sexual crime is made, people presume it to be true and start clamouring for the prosecution of the accused,” Tulsi said. “This is nothing but travesty of justice. Such is the frenzy that people believe in prosecution without following the procedure of law.”

Safeguards

The law does carry safeguards against misuse that in the absence of a public witch-hunt can ensure a fair trial, lawyers said.

Even before the new rape and sexual harassment laws came into being, the victim did not need to personally complain for the police to file an FIR — they could do so themselves. But the police need prima facie evidence to arrest the accused and to seek custody.

The new laws continue to allow the accused to challenge the complainant’s account in court, or during the police probe, senior lawyer Kamini Jaiswal said. “He can challenge the version given by the victim with facts,” she said.

The law continues to retain provisions that allow the accused, if acquitted, to seek damages in court from the complainant and the police for the time he spent in jail or the hurt to his reputation, although there is no provision for safeguarding the identity of the accused as in the case of the accuser.

“He can file a case of malicious prosecution against the complainant and the prosecuting agency and claim damages,” Jaiswal said.

But others have pointed out that such cases take time to conclude and reputations once destroyed are difficult to be restored with a stroke of a pen.

Accuser’s proof

Although the law does not bar complaints made even years after the alleged incident, it does put in place mechanisms to guard against false allegations.

The accuser has to provide details of the incident — the date, the time, place where she was harassed and any witnesses who may have come across the victim in a perturbed state soon after the incident — to substantiate her complaint, Jaiswal said.

The accused can challenge her version by producing alibi to suggest he was elsewhere at the time of the alleged crime.

But if both were present at the same place at the time mentioned — as in the cases of Tejpal as well as Ganguly — their personal accounts and that of witnesses will play a crucial role. Besides, the onus of proving the charges still lies on the prosecution.

The complainant’s version against Tejpal has been backed by three colleagues whom the young journalist had met immediately after the alleged assault. The intern had filed affidavits of three witnesses during her deposition against Ganguly.

A five-judge Constitution bench of the Supreme Court earlier in 2013 also held that if the complaint is filed late, the investigating officer should conduct a preliminary enquiry and be satisfied with its outcome before registering an FIR.

The 2013 law vs the earlier position

WHAT HAS CHANGED

Sexual harassment

OLD LAW

Section 354, the Indian Penal Code

Definition

• Reference limited to “assault or criminal force on a woman with the intent to outrage her modesty”

• Stalking, verbal abuse with sexual innuendoes, molestation and penile penetration of a woman’s body other than vagina were covered under this law as equivalent crimes

Punishment

Up to two years in jail or/and fine

New LAW

Amended Section 354

Category I

Seeks to explain what constitutes sexual harassment and defines differential punishment

• Physical contact and advances involving explicit sexual overtures

• Demand or request for sexual favours

• Sexually coloured remarks l Forcibly showing pornography

• Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Punishment

Up to one year in jail and/or fine

Category II

• Act with intent to disrobe a woman

• Watching or capturing a woman in a private act (bathing, naked, semi-naked or in a sexual act); capturing includes recording

Punishment

Between 3 and 7 years in jail and fine

Category III

• Stalking

Punishment

Between 1 and 3 years and/or fine

RAPE

• Section 375, the Indian Penal Code, deals with rape. The old law defined forcible sexual intercourse as rape

• The amended Section 375 defines rape as insertion of any object or body part by a man into any part of the body of a woman. Oral sex also constitutes rape. Forcing a woman to submit herself to the same by another man constitutes rape

• In the amended law, manipulating any body part of a woman that leads to rape as mentioned above will also be treated as rape. This holds gang rape participants accountable if they hold or bind the victim while someone else rapes her

• No change in the definition of forcible. It means against a woman’s will or consent; if the man isn’t her husband but she believes he is; she is intoxicated or drugged and in a state where she is unable to understand the nature and consequences of that to which she gives consent; or she is under 16

Old punishment

7 years to life imprisonment. But state governments frequently freed life convicts after 14 years

New punishment

7 years to life imprisonment. If the victim is reduced to a vegetative state or is seriously disfigured in addition to the rape, the maximum punishment can extend to the “remainder of that person’s natural life”

State laws: additional punishments

Haryana, 2018: Rape accused to lose licences

July 13, 2018: The Times of India


The Haryana government announced that driving and arms licences of those accused in rape and sexual harassment cases would be suspended and they would also be barred from receiving oldage pensions and pensions for the physically disabled.

The only thing they would be entitled to would be rations from a fair price shop, chief minister Manohar Lal Khattar said at a function on women’s empowerment in Panchkula. This decision comes after the government proposed the death penalty for those convicted of rape and murder of a minor girl below the age of 12 years.

Services to be hit till verdict

These services will remain suspended till a court announces its verdict in the case. In case the accused is convicted and sentenced, he would not be eligible for these facilities anymore, Khattar said.

Khattar also announced that a comprehensive scheme for the safety and security of women would be launched either on Independence Day or on Raksha Bandhan on August 26.

He said if a rape survivor wanted to hire a lawyer of her choice, apart from the one provided by the state government, she would be provided financial assistance of Rs 22,000 towards fees.

Provisions would be made in all police stations for the uninterrupted investigation of rape and eve-teasing cases.

India alone names the accused; most countries only those convicted

India stands alone on `name & shame' policy

Atul Thakur, The Times of India Aug 16 2015

Most Nations Only List Those Convicted For Sex Crimes, Not Accused

The government's an nouncement that it would maintain a publicly available database of sex offenders is being portrayed as a significant step in addressing the threat posed by criminals whose crimes largely go unreported and hence encourage them to repeat the offence. It also addresses the general perception that such criminals tend to repeat their act and hence need to be monitored.

A look at laws in other major countries, however, suggests that only the names of convicted offenders are required to be listed. In many cases, the public at large does not even have access to this database though the police do.

A 2014 report of the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registration and Tracking (SMART), the US government agency to monitor such crimes, states that such registers are maintained by at least 19 countries including the US, the first country to pass a national sex offender registration law in 1994. Other major countries that have similar laws include the UK, Canada, France, Germany , South Africa and South Korea. According to the report Austria, Finland, Israel, Malaysia, New Zealand, Switzerland and UAE are among many countries that have considered or were considering such laws.

A study of conditions of registration as sex offender in the US, UK, Canada and Australia shows that it is mandatory for those convicted for certain sexual crimes to register themselves in the sex offender database. Typically, the offenders are classified in various categories depending on the seriousness of the offence and the perceived threat to society.

In the US, there are three levels of registered sex offenders. Following their release after the conviction, sex offenders are required to register with the community's di vision of criminal justice service, which examines their case. Depending on factors like the use of force, victim's age, number of victims, use of weapons, alcohol or drugs to assault the victim, offenders are classified into level 1, 2 or 3. Level 1 offenders are people who are considered the least likely to repeat the crime. Level 3 is the classification given to those judged most likely to commit the crime again.

Offenders are further clas sified as `sexual predator', `sexually violent offender' or `predicate sex offender'. Level 1 offenders, if not classified in the above three categories, are required to register themselves for 20 years. Level 2 and Level 3 offenders along with people classified as predators, violent offenders or predicate offenders have to register themselves for life. Failing to provide information of their whereabouts to the register is an offence punishable with imprisonment for up to ten years.

Other countries too have levels of classification and registration periods for sex offenders. In a majority of the countries that maintain sex offenders' registries, the database is not publically available. For instance, the UK, Germany , France, Canada and Australia don't maintain a publically available database. The monitoring is done by informing the local police and community leaders when a person convicted of a sexual offence starts living in a particular community .

The Times of India’s View

The home ministry's proposal to `name and shame' those chargesheeted for sexual offences by putting their names in the public domain runs completely contrary to the principle that underlines our justice system ­ the accused are presumed to be innocent until proven guilty. Other countries too have a system of making the names of sexual offenders public, but nowhere is this done prior to conviction. The reasons are obvious. A person charged with a sexual crime may ultimately be judged innocent by the courts. How fair would it be in such cases for his reputation to have been badly tarnished in the meantime? The ministry's suggestion that where this happens the name can be taken off the list does nothing to redress the damage done. It also needs no great imagination to see how such a system could be badly abused by people out to settle scores with one another. It's an idea that needs to be amended before it is rolled out.

See also

Age of consent in India Crimes against women: India Juveniles, benefits and privileges of Juvenile delinquency in India Especially the section 'Rape by juveniles' Premarital sex

Sexual harassment: India

Other articles about rapes in India

Rape in India: longer- term statistics, analyses<> Rapes in India: court verdicts<> Rape definitions unique to India<> Rapes in India: the legal position after 2013 <>Rapes in India: Compensation and help for survivors

<>Rapes in India: annual statistics
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