lawyers in India

Rape -Texual or Psychological: The need to change Section 375 of the IPC, 1860

Written by: Mishita Jethi
Banking laws in India
Legal Service
  • Is 'Rape' merely a word described in section 375 of the Indian Penal Code, 1860, to be interpreted stricto senso? Or is it a psychological phenomenon to be understood and dealt with, with more empathy and less legality? What is the scope of this word and its narrow definition according to law and what is the impact of this definition on the judgments meted out to the hapless victims of this excruciating mental agony? This project aims to study the lacunas in the present definition and scope of the phenomenon called Rape. The word 'Rape' is derived from the Latin term 'Rapio', which means 'to seize'. Thus, rape literally means a forcible seizure and that is the essential characteristic feature of the offence. In common parlance, it means intercourse without her consent by force, fear or fraud. In other words, rape is violation with violence of the private person of a woman.

    Sexual harassment and rape are two sides of the same coin. Both showcase the power of man to dominate that of women. Both have one victim- 'women'. Both are barbaric in nature; but many people do not take sexual harassment to be rape, just because the victims are not physically harmed, whereas in rape, the victim is ravished like an animal for the fulfillment of desire and lust of another man. Yet, both have the same object- to undermine the integrity of the victim, physically as well as mentally.

    Though the law is said to grant justice to the innocent, the same is sadly not true in case of rape victims. Justice prides herself on being blind to everything but the truth - yet as far as rape is concerned, the facts paint a different picture. Rape laws in India are extremely antiquated. Although the laws outline the crime in clear terms, the courts are filled with people who favor the accused and challenge the veracity of the victim's allegation.

    The Supreme Court has opined in Maharashtra v Madhukar Narayan Mardikar, that even a woman with easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also, it is not open to any and every person to violate her person as and when he wishes. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.

    Rape is a weapon that distorts a woman's sexuality, restricts her freedom of movement and violates her human rights. It leaves a woman feeling exposed, humiliated and traumatised. A rapist not only violates the victim's privacy and personal integrity, but also causes serious physical and psychological damage. The law must take a fresh look at itself and take positive steps to make it more difficult for an accused to get judicial reprieve.

    As observed by Justice Arjit Pasayat:
    "While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female."

    Sexual harassment is nothing less than the showcasing of male dominance. Given an opportunity, such men (those committing sexual harassement) would try fulfilling their desire.

    The question is not whether women have the right to bodily integrity, as this right is already adumbrated under Article.21 of the Constitution of India. Article.21, which guarantees the right to life and liberty to men and women both alike, but whether it is really imperative to take a decisive step towards extirpating this evil and make the contemporary and future society a safe haven for women. According to the official statistics of 1991, one woman is molested every 26 minutes. These statistics refer to the reported cases. Whereas, if the unreported cases were to be included, it would be a matter of seconds- rather than minute's investigation of Most cases are not reported by victims because of various reasons such as family pressures, the manner of the police, the unreasonably long and unjust process and application of law; and the resulting consequences thereof.

    Rape laws in India:

    According to the Indian Penal Code, 1860, a man is said to have committed `rape' when he has had sexual intercourse with a woman under these conditions :
    a. Against her will
    b. With her consent when her consent has been obtained by putting her or any person in whom she is interested in, in fear of death or hurt.
    c. 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.
    d. With her consent, when at the time of giving such a consent, by reason of unsoundness of mind or intoxication on the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature of the consequences of that of which she gives consent.
    e. With or without her consent, when she is under 16 years of age.

    Where rape is proved, the minimum punishment is ten years for custodial rape, gang rape, rape of pregnant women and minor girls under the age of 12 and seven years in other cases.

    "The law of rape is not just a few sentences. It is a whole book, which has clearly demarcated chapters and cannot be read selectively. We cannot read the preamble and suddenly reach the last chapter and claim to have understood and applied it." - Kiran Bedi., Joint Commissioner, Special Branch.
     In the Mathura rape case , wherein Mathura- a sixteen-year-old tribal girl was raped by two policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra.

    Her relatives, who had come to register a complaint, were patiently waiting outside even as the heinous act was being committed in the police station. When her relatives and the assembled crowd threatened to burn down the police chowky, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama.

     The case came for hearing on 1st June, 1974 in the sessions court. The judgment however turned out to be in favour of the accused. Mathura was accused of being a liar. It was stated that since she was 'habituated to sexual intercourse' her consent was voluntary; under the circumstances only sexual intercourse could be proved and not rape.

     On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused namely Tukaram and Ganpat to one and five years of rigorous imprisonment respectively. The Court held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse.

     However, the Supreme Court again acquitted the accused policemen. The Supreme Court held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her.

     The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent. However, the Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A) of the Evidence Act, which states that if the victim girl says that she did no consent to the sexual intercourse, the Court shall presume that she did not consent.

     In Mohd.Habib v. State , the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis, which the High Court presumed was a indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses, who witnessed this ghastly act, could not sway the High Court's judgment.

     Another classic example of the judicial pronouncements in rape cases is the case of Bhanwari Devi, wherein a judge remarked that the victim could not have been raped since she was a dalit while the accused hailed from an upper caste- who would not stoop to sexual relations with a dalit.

     In another instance of conscience stirring cases, Sakina- a poor sixteen year old girl from Kerala, who was lured to Ernakulam with the promise of finding her a good job, where she was sold and forced into prostitution. There for eighteen long months she was held captive and raped by clients. Finally she was rescued by the police- acting on a complaint filed by her neighbour. With the help of her parents and an Advocate, Sakina filed a suit in the High Court- giving the names of the upper echelons of the bureaucracy and society of Kerala.

    The suit was squashed by the High Court, while observing that 'it is improbable to believe that a man who desired sex on payment would go to a reluctant woman; and that the version of the victim was not so sacrosanct as to be taken for granted.'

     Whereas, in State of Punjab v. Gurmit Singh, the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.

    The Supreme Court has in the case of State of Maharashtra v. Madhukar N. Mardikar, held that
    "the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard."

    Also the Bandit Queen case, which depicts the tragic story of a village girl. Phoolan Devi, who was exposed from an early age to the lust and brutality of some men. She was married to a man old enough to be her father. She was beaten and raped by him. She was later thrown out of the village- accused of luring boys of the upper caste. She was arrested by the police and subjected to indignation and humiliation. Was also kidnapped and raped by the leader of dacoits and later by the leader of a gang of Thakurs, who striped her naked and paraded her in front of the entire village. This is truly one story that shows the apathy of the existing society.

    In Chairman, Railway Board v. Chandrima Das , a practicing Advocate of the Calcutta High Court filed a petition under Article.226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon)- a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation.

    An appeal was preferred and it was contended by the state that:
    a) The railway was not liable to pay the compensation to the victim for she was a foreigner.

     b) That the remedy for compensation lies in the domain of private law and not public law. i.e. that the victim should have approached the Civil Court for seeking damages; and should have not come to the High Court under Article.226.

    Considering the above said contentions, the Supreme Court observed:
    "Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would be avoidable under public law. It was more so, when it was not a mere violation of any ordinary right, but the violation of fundamental rights was involved- as the petitioner was a victim of rape, which a violation of fundamental right of every person guaranteed under Article.21 of the Constitution."

    The Supreme Court also held that the relief can be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the 'Moral Code of Conduct' adopted by the General Assembly of the United Nation.

    Impediments to Justice:
    Rape is defined in India as intentional, unlawful sexual intercourse with a woman without her consent. The essential elements of this definition under Section 375 of the Indian Penal Code are 'sexual intercourse with a woman' and the absence of consent. This definition therefore does not include acts of forced oral sex, or sodomy, or penetration by foreign objects; instead those actions are criminalized under Section 354 of the IPC, which deals with 'criminal assault on a woman with intent to outrage her modesty' and Section 377 IPC, covering 'carnal intercourse against the order of nature'.

    The narrow definition of rape has been criticized by Indian and international women's and children's organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with any constitutional provisions, natural justice or equity. Their reasons have been succinctly encapsulated in a recent Public Interest Litigation before the Supreme Court. In the present circumstances when offences against women are on the rise, when young girls are raped by their doctors, by presidential guards in broad daylight, the definition of rape to be of any deterrence, falls extremely inadequate. It does not address forced penetration of objects and parts of the body into the vagina and anus; and forced oral or anal intercourse.
     It also does not recognize other forms of sexual assaults, like protracted sexual assault by relatives, marital rape etc. as aggravated forms of rape. This causes grave injustice to many victims. In many cases of child rape, the child has been penetrated through fingers or by objects or been force to perform oral or anal sex; yet this is not considered rape by the Courts.

     Adding to this is Section. 155(4) of the Evidence Act, which allows the victim to be questioned of her past sexual history which the defense uses to humiliate the victim in the Courtroom.

     One of the major obstacles in delivering justice in rape cases is the poor quality of investigations. The reason behind this ranges from gender bias and corruption to the general inefficiency of the police. In many cases the police have even refused to lodge the FIR or have lodged incomplete FIR.

    The victims are not taken for prompt medical examination, because in cases of rape, or attempt to rape- medical examination of the victim and of the accused soon after the incident often yields a wealth of corroborative evidence. Therefore, such an opportunity should not be lost by the police.

     The manner in which some courts have interpreted the law or assessed the evidence has often proved to be an obstacle also. In spite of Supreme Court judgments to the contrary, lower court judges often insist on evidence of physical resistance or marks of injuries to hold that a woman has not consented. A woman's evidence without corroboration is not considered sufficient.

    The long time that is taken to complete a rape trial often by allowing senseless adjournments; and the giving of evidence by the victim in the presence of the accused and the harsh cross examination in the Court are some other major obstacles.

     As observed by Krishna Iyer, J. in Rafique's case:
     "When a woman is ravished, what is inflicted is not mere physical injury but the deep sense of some deathless shame… judicial response to Human Rights cannot be blunted by legal bigotry."

     Therefore rape laws in order to be of great deterrence must have a cooperative victim, professional investigation, diligent prosecution; and an expeditious trial. For otherwise it shall not be the law, that fails, but the applicants, the process and application.
    Failure of law reflects the failure of the society to protect and serve humanity.

    In view of the above, the Supreme Court has laid down the following guidelines for the trial of rape cases:
    1.The complaints of sexual assault cases should be provided with legal representation. Such a person should be well acquainted. The Advocates role should not merely be of explaining to the victim the nature of the proceedings, to prepare for the case and assist her, but to provide her with guidance as to how she might obtain help of a different nature from other agencies- for e.g. psychiatric consultation or medical assistance.
    2. Legal assistance should be provided at the police Station, since the victim may be in a distressed state. Guidance and support of a lawyer at this stage would be of great help.
    3. The police should be under a duty to inform the victim of her right to a counsel before being interrogated.
    4. A list of lawyers willing to act in these cases should be kept at the police station.
    5. Advocates shall be appointed by the Court on an application by the police at the earliest, but in order that the victim is not questioned without one, the Advocate shall be authorized to act at the police Station before leave of the Court is sought or obtained.
    6. In all rape trials, anonymity of the victim must be maintained.
    7. It is necessary to setup Criminal Injuries Compensation Board with regard to the Directive Principles contained under Article 38(1) of the Constitution of India. As some victims also incur Substantial losses.
    8. Compensation for the victims shall be awarded by the Court on the conviction of the offender and by the Criminal Injuries Compensation Board- whether or not a conviction has taken place. The Board will take into account pain, suffering, shock as well as loss of earnings due to pregnancy and childbirth if this accrued as a result of rape.

    The National Commission for Women be asked to frame schemes for compensation and rehabilitation to ensure justice to the victims of such crimes.
     As observed by Justice Saghir Ahmad,
    "Unfortunately a woman in our country belongs to a class or group of society who are in an disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution enjoy equal status."

    The Legacy of SAKSHI:
    In Sakshi v. Union of India , the Supreme Court made the following observations:
    . the interpretation [by which such other forms of abuse as offences fall under Section 354 IPC or Section 377 IPC] is . contrary to the contemporary understanding of sexual abuse and violence all over the world. There has been for some time a growing body of feminist legal theory and jurisprudence which has clearly established rape as an experience of humiliation, degradation and violation rather than an outdated notion of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and thereby condone such behaviour.

    But in Sakshi, the Supreme Court did not interpret the provisions of Section 375 IPC to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina penetration, finger/anal penetration, and object/vaginal penetration within its ambit. Instead, the judges sought refuge behind the strict interpretation of penal statutes and the doctrine of state decisis - a view that any alteration [in this case, of the definition of rape] would result in chaos and confusion. In the past, however, judges have actively sought the spirit of the law, and not just its literal wording. This activism has greatly benefited powerless minorities, such as bonded labourers, prison inmates, sex workers and others crusading for protection of their human rights. Those hoping for such activism from the judges this time were disappointed. One reason for the judges' reluctance to make a liberal interpretation could be that for some time now, there has been a significant debate ongoing that activist judges have overstepped the boundaries of the judiciary and impinged on legislative matters.

    Concern over such criticism is understandable. But at the same time, the courts should recognize that the legal system is an effective delivery system of the benefits the law guarantees, especially when the beneficiaries are the weaker sections of society. There is precedent for such an expanded view. For example, while dealing with a case of rape of an eight year old girl in Madan Gopal Kakkad v. Naval Dubey , the Supreme Court acknowledged the severity of the crime of child rape and saw fit to use the "sword of justice" to punish the criminal under Article 376 IPC in a case where there was only partial penetration of the victim.

    The Court opined:
    Though all sexual assaults on female children are not reported and do not come to light there is an alarming increase of sexual offences on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore such offenders who are a menace to civilized society should be mercilessly punished in the severest terms.

    The constitution endows the Supreme Court with a residuary power under Article 142 power to pass such decrees or make such orders as are necessary for doing complete justice in matters before it. The role that the Apex Court plays under Article 142 is plainly that of a 'problem solver' in nebulous areas of the law. This provision permits the Supreme Court to do more than what the letter of the law requires; activism, therefore, can be undertaken with sure legal footing.
    Judges are expected to be circumspect and self-disciplined in the discharge of their judicial functions. But the fact is, judicial activism in India is partly the consequence of a legislative vacuum, especially in the field of human rights. Where lawmakers are inattentive to the rights of citizens, the Constitution empowers the Apex Court to be, at times, plainly legislative in nature. The rule of strict construction is not a rule to be applied universally and, in any event, should not "leave loopholes for the offender to sneak out of the meshes of the law and criminal jurisprudence must depart from old canons defeating criminal statutes and calculated to protect the public health."

    Rape laws Internationally:

    The rule of strict interpretation does not also prevent the court from interpreting a statute according to its current meaning and applying the language to consider the recent scientific developments and the knowledge it provides us with. Thus, in R v. Ireland (House of Lords, 1997), psychiatric injury caused by silent telephone calls was held to amount to 'assault' and 'bodily harm' under Section 20 and 47 of the Offence Against the Persons Act, even though at the time of the enactment of the Act - in 1861 - the field of psychiatry didn't include this understanding.

    Even international law now says that rape may be accepted as "the sexual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or of the mouth of the victim by the penis of the perpetrator; by coercion or force or threat of use of force against the victim or a third person." Similarly, Article 2 of the Declaration on the Elimination of Violence Against Women reads as follows:
    Violence against women shall be understood to encompass but not limited to . Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation.

    Fellow commonwealth nation Singapore's Penal Code contains a provision identical to that of Section 377 of the Indian Penal Code. In a judgment rendered by the Court of Appeal in Singapore it was held that forced anal intercourse represented the gravest form of sexual abuse and by its very act contained an element of violence. Australian law defines rape as sexual intercourse without consent in the Criminal Law Consolidation Act in Section 48. Sexual intercourse includes anal and oral intercourse in Section 5 under the same Act. Judgments by the Australian courts reveal that insertion of objects into the victim's vagina and anus amount to rape. The definition of rape states that sexual penetration of the body is necessary but the slightest penetration of the body of the female by the male organ is sufficient.

    Emphasis on the word "slightest" reveals the intent behind the definition is to give the victim and not the criminal the benefit of the doubt. In light of the multitude of case law and well evolved jurisprudence on the subject, not altering the definition of rape merely because "the entire legal fraternity of India, lawyers or judges, have the definition of India, lawyers or judges, have the definition contained in Section 375 IPC engrained in their minds ." is ludicrous. The Indian Penal Code was drafted at a time when Indians were not allowed the freedom to think for themselves by the English. It came into force in 1860 and in the past 140 years has gone through few changes. An independent democracy should not confine itself to laws made with a bias towards the now outdated principles of colonial criminal law. The judiciary and the legislature have a duty to promote the principles enshrined in the Constitution and a responsibility, however lofty it may seem, to ensure that the perpetrators of these violent crimes are punished.

    Changing social values - and globalization - certainly alters the general comprehension of a word. In a country rife with misconceptions about rape and rape victims, corrupt and sloppy police work, widespread reports of police mistreatment of victims including custodial rape, and deeply ingrained cultural and religious stereotypes, more alertness by the courts is needed so that justice is seen to be done, and not thwarted by the letter of the law. Sakshi fails that test. Inevitably, then, the Apex Court's ruling this time will not be an end to this issue.

    The courts and the legislature have to make many changes if the laws of rape are to be any deterrence. The sentence of punishment, which normally ranges from one to ten years, where on an average most convicts get away with three to four years of rigorous imprisonment with a very small fine; and in some cases, where the accused is resourceful or influential- may even expiate by paying huge amounts of money and get exculpated. The courts have to comprehend the fact that these conscienceless criminals- who sometimes even beat and torture their victims- who even include small children, are not going to be deterred or ennobled by such a small time of imprisonment. Therefore, in the best interest of justice and the society, these criminals should be sentenced to life imprisonment.

    The Supreme Court in Sakshi v. Union of India had recognized the inadequacies in the law relating to rape and had suggested that the legislature should bring about the required changes. The law commission had examined the entire law relating to rape and sexual assault in IPC and suggested a complete overhauling of the law.

    The Bill, drafted by Ms Kirti Singh advocate and legal convener of AIDWA, is based on 172nd report of the Law Commission to amend the laws relating to sexual assault in Section 375, 376, 354 and 509 IPC and the relevant sections of the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872. The recommendations are based on the national consultation on the issue organized by the national commission for women.

    The major changes sought to be brought about through this amendment are substitution of existing section 375 of the IPC with the following:
    375. Sexual Assault: Sexual assault means -
    (a) The introduction (to any extent) by a man of his penis, into the vagina (which term shall include the labia majora), the anus or urethra or mouth of any woman or child

    (b) the introduction to any extent by a man of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a woman

    (c) the introduction to any extent by a person of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a child.

    (d) manipulating any part of the body of a child so as to cause penetration of the vagina (which term shall include labia majora) anus or the urethra of the offender by any part of the child's body;

    However, if they truly have realized their mistake and wish to return to society, the Court and jail authorities may leave such men on parole; but only after they have served a minimum of half the sentence imposed on them. It is outright clear that sexual offences are to be excoriated, but if death sentence is given to such convicts- so as to deter the rest, then no doubt that the graph of rape cases will come down considerably- but it may also happen that those who commit such offences- simply to leave no witnesses or evidence, may even kill their victims and dispose off their bodies (whereas it is observed that in most cases- it is the victim who is the only source of evidence in most cases), thereby frustrating the main object of the Indian Penal Code and the legislature. Studying the laws, the process, the application of those laws, one thing is certain- the entire structure of justice needs an over haul, otherwise the victim shall no longer the woman, but humanity.

    The author can be reached at: [email protected] / Print This Article

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    Sexual harassment and rape are two sides of the same coin. Both showcase the power of man to dominate that of women. Both have one victim- 'women'.

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