The dual mindset of Indians toward women is the most hypocritical thing ever. On
the one hand, we have given women, the status of devi, the symbol of power and
courage. And, on the other we blame a woman for instigating men if they rape
her. A gruesome and horrific term like "rape" is so common in India, that their
incidences no longer surprise us.
According to NCRB India data, in 2021, India has witnessed, on average, 86 rape
cases every day, and 46 offences against women every hour[1]. And these are the
incidents that got registered, one could only imagine the plethora of incidents
that could not even make their way on record, due to either the so-called pride
of the family or maybe the influence of the perpetrator.
Our law categorizes rape into different types. Although each incident in itself
is a shame against humanity, one of the most heinous is custodial rape. It's
unimaginable that when the protectors of society who are supposed to be
approached for justice, turn into the culprits, whom are we expected to seek
help from?
A person is said to be in custody when he/she is under the strict supervision
and control of another person or an institution who is said to be the
custodian[2]. Custody is often defined as guardianship[3]. When the custodian
intends to take benefit of this control, and commits the offense of rape on the
woman under custody, it is called custodial rape.
So, one can envision why our law has created this differentiation between the
ordinary rape and custodial rape. Rape under custody along with harming the
bodily integrity of the victim also breaches the duty to protect and take care
of the person under custody, which has been provided by the law.
History Of Origin
To explore more on the legal developments we must delve into its history,
whether it was there since the inception of India's criminal law, or was it a
need of the time which led to its addition afterward. The history behind the
development of laws on custodial rape dates back to the emergency era. During
the period between 1975-77, when the then Prime Minister of India, Indira Gandhi
declared a state of emergency across the nation.
This period of 21 months is
often cited as the darkest period in modern India. In this state of emergency,
the state officials were equipped with remarkably higher and unchallenged
powers. Misuse of this power led to many catastrophes. Three cases during this
period have played a major role in the codification of custodial rapes and
various related amendments in the criminal law. These were cases of
three females being the trap of the police's lust. The cases are of Mathura[4]
(1974), Rameeza Bee[5] (1978), and Maya Tyagi[6](1980).
In all three cases, the common thing was a barbarous sexual assault by the
police officers and huge public agitation and protests for justice. They became
the foundation of current legislation on custodial rapes.
Now that we have some idea about the origin of the Custodial rapes, we must see
what changes these scenarios brought into the criminal justice system.
Legal Provisions
The major provision which categorizes custodial rape as a distinct form is
section 376C[7] of IPC. It was introduced via the Criminal Amendment Act of
2013[8], and it defines custodial rape as "sexual intercourse by a person under
authority". The provision subsequently identifies the categories of individuals
encompassed by this classification: law enforcement officers, government
officials, military personnel, individuals in administrative or custodial roles
within correctional facilities, juvenile detention centers, women's or
children's shelters, or hospitals. Consequently, it encompasses instances of
rape perpetrated by individuals in positions of trust or authority over the
victim.
The law prescribes an enhanced punishment for custodial rape as compared to rape
by an ordinary person. For custodial rape, the minimum punishment prescribed is
of 10 years which is extendable up to life imprisonment.
Along with this, another remarkable change brought in the criminal justice
system is the shift of the onus of proof. So, the general rule of criminal law
is that the burden of proof of a crime lies with the prosecution. However, the
Criminal Amendment Act of 2013 has reversed this by the addition of section
114E[9] in the Indian Evidence Act, of 1872. This has created an exception to
the general rule. By virtue of this section, if the prosecution manages to
establish the offense of sexual activity, and the victim woman states that there
was no consent, the law will presume the absence of consent. And the onus shifts
to the respondent to prove the existence of consent. This necessary change must
have been brought considering the superior position of the offender. Being on
the authoritative side, it is easier in these cases to tamper with the evidence
than in ordinary cases.
Through the same amendment act of 2013, one more provision was brought to help
in those cases where the police itself denies to take FIR or any action for
whatsoever reasons by the virtue of section 166A[10] of IPC, 1860. This section
makes it a punishable offence if a police officer fails to register an FIR in
the cases pertaining to rapes. The provision is there to ensure that officials
must not try to manipulate and hide the denying the registration of FIR on the
very first place.
An amendment was also carried out under section 197 of CrPC, which modified the
stance of taking prior sanction of the government before initiating any
proceeding against a public servant in the discharge of official duties. An
exception has been made, and now no such permission or sanction is required in
cases where the official is charged with the offense of section 375[11] of IPC.
Many more preventive measures have been adopted by the government to avoid such
cases, such as mandating the installation of CCTV in all police stations and
appointment of female constables across the police stations.
Challenges
Although a remarkable change has been brought in the criminal justice system in
cases of custodial rape. One of the biggest challenges still sustains, which is
the fear of such officials. The victims are most of the time scared of the
consequences of going against the system. And, even if they did somehow collect
that courage to fight against those public authorities, the chances of getting
justice remain low, as the control and access to evidence lies with that of the
offenders. These laws are there in implementation, but most of the civilians are
not aware of the same.
Although precise data on custodial rape cases is lacking, according to
statistics from the National Crime Records Bureau (NCRB), only 26 individuals
were convicted of custodial violence between 2001 and 2018[12]. These statistics
around, very well show the situation of going unreported.
Thus, to fight against such a heinous crime, somewhere it is evident that the
current legislations are not doing enough. We need more stringent provisions to
deal with the issue. And along with than that we need public awareness. All the
provisions of the law will go in vain if are known to the concerned people.
End Notes:
- Financial Express, "NCRB Data: India witnessed 86 rapes every day, 46 offences against women every hour in 2021," (last updated May 1, 2022), available at: https://www.financialexpress.com/india-news/ncrb-data-india-witnessed-86-rapes-every-day-46-offences-against-women-every-hour-in-2021/2650292/
- Lawcian, "Custodial Rape in India" (accessed May 7, 2024), available at: https://www.lawcian.com/post/custodial-rape-in-india
- Omkar Prasad Verma v. State of Madhya Pradesh 2007 (4) SCC 323
- Tuka Ram And Anr vs State Of Maharashtra 1979 SCR (1) 810
- India Today, "Legal battle awaits to prove charges against Rameeza Bee" (last updated March 20, 2014), available at: https://www.indiatoday.in/magazine/indiascope/story/19780831-legal-battle-awaits-to-prove-charges-against-rameeza-bee-822980-2014-03-20
- Indian Express, "Baghpat judicial inquiry" (last updated December 31, 2020), available at: https://indianexpress.com/article/opinion/editorials/baghpat-judicial-inquiry-maya-tyagi-cid-probe-forty-years-ago-7134244/
- Indian Penal Code 1860, s 376C
- Criminal Law (Amendment) Act, 2013, Act No. 13 of 2013 (India)
- Indian Evidence Act 1872, s 114E
- Indian Penal Code 1860, s 166A
- Indian Penal Code 1860, s 375
- iPleaders, "Custodial Rape" (accessed on May 7, 2024), available at: https://blog.ipleaders.in/custodial-rape/
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