After the 2012 Nirbhaya rape case, where the victim was brutally gang-raped and
subsequently died in the hospital, the women of the country got some relief when
there came some significant changes in the rape laws of the country in the year
2013. These changes gave an assurance to the people for a stricter and tougher
legislation for an offence like rape in India.
Yet, here we are after 8 years with another heart-breaking case in Uttar
Pradesh's Hathras of a young girl(19 years old) who was gang-raped in the most
inhumane manner which led to her demise. The extend of cruelty and brutality in
this case showcases that even after making stricter regulations, the system
remains the same.
In a country where goddesses are worshipped for wealth, education and power, why
are women being treated as commodities? Why don't they feel safe in their own
country? Why do people question their character based on what they are wearing?
And last but not the least why are only the women being questioned and blamed
for in such situations of sexual harassment?
These questions are the reasons behind the result of a survey by the Thomson
Reuters Foundation conducted in 2018 according to which, India ranked 1st for
being "World's most dangerous country for women". This is very shameful for the
world's biggest democracy as it surpasses war-zone countries like Afghanistan
and Saudi Arabia.
- To analyse the changes brought in the criminal laws of the country in respect
of the offence of rape.
- To understand the impact of rape emergency in the country as a whole.
- To understand the effects of rape in the Indian society for women and
- Whether the situation of rape victims have improved since Nirbhaya rape case
- Whether rape victim gets true justice in the court of law? � The
victims include all the castes in the country.
For the purpose of this research, I have taken the help of secondary data like
books, journals, case laws, google search, news articles etc.
Limitations Of Study
- As the country suffers from the Corona Virus and there is
lockdown everywhere, there is no scope of conducting the research
through survey-analysis. So, there is no primary data used in the
- For the purpose of this research, I have not included the rape
cases of minors.
- In the current times, social media promotes rape culture. So,
this paper doesn't put light on this subject.
Rape Laws In India
IPC in 1860s, for the first time, defined Rape. It was defined as the act of sex
against a woman's will or her consent and, it also included consent obtained by
putting the victim or anyone she cares about in fear of death or hurt. The
definition of rape remained unchanged for the next 100 years or so.
Then after Mathura custodial rape case where the perpetrators were given a clean
chit by the supreme court, the rape laws went through some major changes.
Custodial rape was added to the definition of rape this was regarding rapes
committed by a police officer. It led to the insertion of 114 A in the Indian
evidence act of 1872. This new section presumed a lack of consent in specific
situations if the victim said so and applied to custodial rapes.
was also added to the IPC this made it punishable to disclose the identity of
victims of certain crimes and rape was one of them, it also prohibited character
assassination of victims. Character assassination even though prohibited did not
include cross-examination. This meant that when a victim took the stand lawyers
made it a point to humiliate her by asking about her sexual history and
discredit her evidence by showing the judges that the victim was 'immoral'.
This violated the sexual integrity of the victim and traumatized her even
further. The Supreme court taking note of this after a PIL asked the law
commission to recommend changes to our rape laws. This led to an amendment of
section 155(4) of the Indian Evidence Act. After the amendment cross-examination
of victims was prohibited.
On December 16, 2012, a physiotherapy intern was brutally gang-raped in a moving
bus, later she was thrown from the bus and eventually after a few days succumbed
to her injuries. This was the Nirbhaya gang rape case it shook the entire
country and faced a lot of media coverage because of the barbaric nature of the
crime. There was a lot of public outrage now the government wanted to change the
laws to prevent a crime of this degree from ever happening again.
This led to the 2013 criminal amendment act and the Juvenile Justice Act. The
2013 criminal amendment widened the definition of rape and increased the
punishment of gang rape to 20 years to life from the earlier punishment of 10
years to life. New crimes like the offenses of stalking, voyeurism, and acid
attacks were added the minimum punishment for rape which had remained unchanged
from 1860 was increased from 7 to 10 years. It also provided for the death
penalty in cases where the victim was killed or left in a vegetative state.
Vegetative state was included for the first time in the definition after the
landmark Aruna Shanbaug case.
In January 2018 in the Kathua district of Jammu and Kashmir, an 8-year-old girl
named Asifa Bano was raped and killed by a group of men. The main accused was a
priest at a temple where the rape had taken place. This shocking case led to
national protests and a demand for stricter laws. In the backdrop of Jammu and
Kashmir where political changes were taking place, this case was heavily
politicized on communal lines.
This led to the 2018 criminal amendment act, this
act mainly changed POCSO as the rape was against a child. The act made the death
penalty possible for the offense of the rape of a minor under 12 years old the
minimum punishment is a 20 years jail term. Another section was inserted in the
IPC which dealt with the offense of rape against a minor under 16 years the
punishment was 20 years to life imprisonment.
So finally, according to Sec-375, a man is said to commit "rape" if he inserts
his penis, uses his mouth, any body part or any other object in a woman's
vagina, mouth, anus or urethra or makes her do any of the above to him or
anybody else under the following conditions: against her will; against her
consent; when a woman, or her loved one, is threatened with hurt or death; when
consent is taken by a man pretending to be her husband; if the woman is of
unsound mind, or if she has been drugged; if she is under 16 years of age (under
14 years in Manipur); if a wife is under 15 years of age (under 13 years in
Manipur). According to IPC consent means a woman's unequivocal voluntary
agreement by words, gestures or any form of verbal or non-verbal communication,
communicating a willingness to participate in sexual acts.
Penalty for committing rape falls in two categories according to Section 376 of
the IPC. Whoever, except for those mentioned in the second category, commits
rape will be awarded a jail term of not less than not be less than ten years,
but which may extend to imprisonment for life, and shall also be liable to fine.
Those covered under this second category shall be penalized with a minimum
10-year jail term which may extend to life imprisonment (for the remainder of
the person's natural life) and shall also be liable to fine.
- A police officer who commits rape within the limits of the police station where he is appointed; in the premises of any police station; or if a woman is in police custody
- A public servant
- A member of the armed force deployed by the Centre/State government
- Management/staff of a jail, remand home or other places of custody where women or children are lodged
- Hospital staff who rape patients
- A relative, guardian or teacher, or a person in a position of trust or authority who rapes their ward
- Those who commit rape during communal or sectarian violence
- Rape of a pregnant woman
- Repeatedly rapes the same woman
- Rape of a woman who incapable of giving consent
- Is in a position of control or dominance
- Rape of a woman suffering from mental or physical disability
- Causes grievous bodily harm/maims/disfigures or endangers the life of a woman during rape.
Social Media Promoting Rape Culture In India
Rape culture is deeply entrenched in our Indian society!
It is present in the way we think, speak, and act. The way this patriarchal
society normalises rape and sexual violence's is threatening the lives of many
girls and women. This culture extends to rape jokes, casual sexism, acceptance
of toxic masculinity, victim blaming, slut-shaming and other violent acts
The society doesn't realise that rape and other crimes against women happens not
because of what they wear but because of the dirty mind of men. If short skirts
are the cause of rape, then why are the women who wear a saree or salwar or even
a burqa getting raped?
India is considered to be a great democracy with many rights given to its people
but can we really consider India as a great country when the betis of this
country aren't safe here? .
While Social Media should be on the forefront of bringing awareness on this
issue but what is happening today is completely opposite!
People on Social Media are very casually talking about rape and sexual
harassment as a gossip and entertainment piece! Example is what happened in the
"Bois Locker Room" case! Recent example of wide circulation of rape threats to
MS Dhoni's daughter Ziva because her father couldn't perform well in IPL match!
Young generation, who are very fond of very casually posting pictures on
Facebook, Instagram, etc are getting shock out of their life seeing their
nude/morphed pictures widely getting circulated on social media and hence
becoming easy targets for slut � shaming and possible rapes!
And we can see this with the recent cases of Sulli Deals and Bulli Bai App case
where photos of Muslim women were uploaded on the app without their permission
and then, they were virtually auction. This shows the toxicity in the minds of
the masterminds of these sites and the need to have stronger and stricter laws
in the cyberspace as well.
Basically, rape culture in our society is being fuelled by the media in terms of
misogynist songs, objectification in popular culture, problematic lyrics,
glamorisation of assault, slut shaming etc.
General language surrounding rape or violence, in terms of how these terms are
used and described are also problematic. The premise of rape jokes lies in
correlation of rape to defeat or even inconvenience. Not only does the use of
rape for comic relief trivialise the trauma of victims but also normalises the
idea of rape.
Even the manner in which gender based violence is reported or narratives around
it is debated, with the undertones of ideas of placing honour in a woman's
vagina and victim blaming, fuels rape culture. The toxic notions around
masculinity and entitlement add to the situation in hand.
So, it would be very useful to spread awareness in the society through our
legal community on;
- What are the dos and don'ts of using social media
- how we can curb promotion of rape culture through cautious use of social
- and eventually make the digital world a better place for both boys and
Covid-19 Pandemic And Rape Crisis
While lockdowns and quarantines are essential to suppressing the global spread
of COVID-19, they are trapping vulnerable women with abusive partners.
Staying at home is currently advocated as a primary source of personal and
community safety. Yet for many women and young girls compelled to remain within
the confines of their households, the threat of sexual violence clashes with
these safety discourses against spreading contagion.
An RTI query revealed that crimes like Rape, Human Trafficking and Sexual
Assault against women and minors witnessed a jump in the last 2 years of the
pandemic in comparison to 2019.
Problems Still Faced By Women In Courts In India
Even after the long painful struggle of women's movement which have led to
making of progressive laws, there have been numerous instances where the
judgments show the prevailing patriarchal and misogynistic mindsets followed in
the court rooms.
The Delhi High Court in the case of Mahmood Farooqui v. State (Govt of NCT of
acquitted the accused by overturning the trial court's conviction.
The court gave a controversial judgment which examined the concept of consent in
a deeply flawed manner stating that a feeble "no" may mean a "yes". "If the
parties are in some kind of prohibited relationship, then also it would be
difficult to lay down a general principle that an emphatic "no" would only
communicate the intention of the other party.
If one of the parties to the act is a conservative person and is not exposed to
the various ways and systems of the world, mere reluctance would also amount to
negation of any consent. But same would not be the situation when parties are
known to each other, are persons of letters and are intellectually/academically
proficient, and if, in the past, there have been physical contacts. In such
cases, it would be really difficult to decipher whether little or no resistance
and a feeble "no", was actually a denial of consent."
This shows the flaws in the "no means no" approach taken by courts whereby the
sexual intercourse may stop after detecting a "no" from the other party. The
issues come when the courts fail to appreciate the communication of "no" or
establish that a feeble "no" may mean a yes. Thus, there's a need to shift the
approach of courts and adopt a new concept of "yes means yes" while determining
the consent in rape cases.
In California, Gov. Jerry Brown signed a bill into law and became the first U.S.
state to define "yes means yes" law in sexual assault cases on college campuses.
This law redefines the concept of consent and requires it to be "an affirmative,
conscious and voluntary agreement to engage in sexual activity."
It shifts from the traditional view of "no means no" to a progressive view of
"yes means yes" where the participant can move forward with sexual intercourse
only after receiving a "yes" from the other party.
There have been cases where the rape survivors have been advised and compelled
by police, courts and family members. The Madhya Pradesh high court ordered
granting bail to the person who was accused of molesting a woman on the
condition that he would get a 'rakhi' tied by her on the day of Raksha Bandhan.
Thus, with the increasing number of brutal cases, the patriarchal mindset of
courts which leads to making of such insensitive statements, also adds up to the
victim's trauma. It shows us the unfortunate reality of our society where the
victims are the ones who are questioned about their morality and have to go
through the blame and character assassination for being raped. Our society still
tries to educate women about how to dress up in an "appropriate way" in order to
stay safe and to defend themselves instead of teaching men about the gravity and
consequences of rape.
Swati Maliwal, Chairperson of Delhi Commission for Women, said that, "Fear of
rape is the permanent state of mind of women in this country. It's conditioned
into us from the moment we are born and it's impossible to escape".
Even with Beti Bachao, Beti Padhao, the patriarchal mindset isn't going away
till this date. It's the 21st Century, but still there is imbalance between the
power of men in the society and the inferior and powerless women. That's why it
can be sensed that the behaviour of rapists and abusers is often sanctioned in
the mindset of this male-dominated society.
This is the reason it has been reported that only 14% of the women who suffer
from sexual harassment or violence raise their voices to put a stop on them. But
the no. of cases which are reported are so less due to the lack of awareness of
rights as well as the fear of being judged by the society and the most important
and prominent one is issue power of the accused.
It has been seen in every part of the country that if the accused has power �
upper caste or the ones who are rich or as many connections � they use that
power to take control of the case, hence the conviction rate is so low.
This difference in the power of men and women has been seen in every reported
and unreported rape cases in India.
As the rape cases increase in the country, there can be seen a decrease in the
proportion of women workforce. The fear of rape or sexual harassment can be one
of the most prominent reasons for the same.
This is not only tragic for women in India, but is shameful for India as a
whole. A report by IMF finds that if the no. of women and men in the workforce
is equal, the economy of the country would see 27% more growth or even higher,
making the dream of a $5 Trillion economy a reality.
Basically, the situation of rape emergency is not only a human rights or a
criminal issue, but it also affects the economy of the country. So, let's hope
that the Government soon realises the same and can finally bring real change for
the women and the country.
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