Rapes in India: the legal position after 2013
This is a collection of newspaper articles selected for the excellence of their content. |
Sexual offences in the Indian Penal Code
From the government site CHD District Courts, downloaded in Dec 2016
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.
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.]
The law and punishment, 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.
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.
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.
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
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.
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”
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 Crimes against women: India Juveniles, benefits and privileges of Juvenile delinquency in India Especially the section 'Rape by juveniles' Premarital sex
Other articles about rapes in India
Rapes in India<> 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
