When a woman is ravished, what is inflicted is not merely physical injury, but the deepest sense of some deathless shame. Rape is one of the most grievous and one of the worst crimes in today's world. This is not new as the cases of rape has been done from ancient times. This is the most heinous crimes not in one country but all over the world. In simple terms rape involve two elements i.e. consent and sexual penetration.

There are certain laws made by the different countries but in this article, we will be reading about the laws of India only, we will also read about the rape cases that had happened in India. At the end of this article, you will get to know about the rape in detail starting from the definitions to the story of the rape survivor.

What Constitutes Rape Under Indian Law?

Rape can be defined as a penile penetration into the vagina without the consent of the girl making it a gender specific crime, where only men can be the accused whereas girl can only be the victim.[1] The definition of rape has been same since it was enacted in 1860 even after the amendment made post-independence in India. Rape has been defined in section 375 of Indian Penal Code (IPC) which stated that, a man is said to commit a rape if he has done sexual intercourse with a girl under the following circumstances:

• Against her will
• Without her consent
• 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. (Coercion)
• With her consent, when the man knows that he is not her husband.
• With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication she is unable to understand the nature and consequences of that to which she gives consent.
• With or without her consent, when she is under sixteen years of age.^[2]

This is what rape has been defined as per the Indian context.

Different Forms of Rape: Understanding the Scope

There are many types of rapes in general but as per the context of this article we will talk about 5 important types which are popular, some of those types are:

• Acquaintance rape: This is a type of rape in which there is a connection between assaulter and the victim.
• Stranger Rape: This is a type of rape in which the victim is unfamiliar with the assaulter. In simple terms, you can understand that the victim is unknown to the assaulter.
• Gang Rape: As the name suggests, it includes a group of assaulters.
• Statutory Rape: It is a type of rape in which the girl is a minor, basically below 16 years of age.
• Spousal Rape: It is a type of rape in which the victim is a married woman.

Rape in India: A Crisis Demanding Attention

Rape is the fourth most heinous crimes in India. According to the latest report of 2021 National Crime Records Bureau (NCRB), on an average 86 cases per day has been registered all over across the country.[3] It means that the rape case has been increased since the previous year. The number of reported rapes a day has increased nearly by 700% since 1971. In a cultural country like India women's have a high status in the society, as per many authors and thinkers the "status of women" in India cannot be measured.

There are certain fundamental rights of constitution which are available to the women in India such as Right to equality (Article 14) equal accessibility to public spaces (Article 15), equal opportunity in matters of public employment (Article 16) and equal pay for equal work (Article 39). In spite of these rights the rape is being committed in India.

In a developing country like India, there is lack of sex education among the people living in the outskirts areas which became the reason for rape in many parts. This article is all about rape from the authors perspective which will include not only the overview but also the suggestion, laws, cases in deeper context.

The Dark History of Rape Laws in India

As you all know from ancient times rape in India is not a small problem but a very big problem in a country like India where the status of women is high. Rape tells us how people think about the women in the society and how the government and the Indian Judicial system has taken remedies to provide justice to the victims.

During Ancient History, In Vedic Period the status of women was very high in the society as women were allowed to practice anything in the society and were the active part of the discussions. Also, they are allowed to pursue education and they are allowed to marry according to their choice. But later on, in the later Vedic period the patriarchal norms started to dominate in the society restricting the role of women in the society. As per the Manusmriti, an ancient legal text book tells us how to live in society and highlighted the status of women i.e. lower to men. It tells us that women's are only allow to obey the decisions of husband, fathers and sons which can be understand that the women's were not equal to men.

The Manusmriti also tells us about the punishments related to sexual offence in Ancient India.[4] It tells us about the fines, penalties and punishments according the sexual offence that has been committed. As per the text the punishment can vary according to the caste of both the victims and the assaulter highlighting the rigidness of the Ancient India. The Punishment for higher caste is more severe as compared to lower caste as in lower caste the punishment is lenient basically a fine.

During Medieval History, we saw a further decline in the status of women as the society started the purdah system (veiling) and started practicing Sati. Child Marriage was also becoming popular in this era and the role of women was limited to the home only. During the Mughal expansion in India, the invaders used to kill men's, destroy villages and take the few lakh young girls with him as a sex slave.[5] During the Akbar's rule the punishments were severe as Akbar started public execution for rapist. However, it was less beneficial for the lower-class women's as they were less likely to see their attackers face punishment.

During the Colonial Rule, the British activist along with the Indian social activist like Raja Ram Mohan Roy worked together to abolish the practice of sati and started promoting right to education for women. The British legal system often failed to provide a better status to women in the society leaving the status unchanged. This was the first time in 1860 when the Indian Penal Code (IPC) was introduced and the rape was defined in section 375 which include punishment of life imprisonment or death penalty according to the nature of the crime.

After the independence of India, basically in post-independence, the Indian constitution which came into effect in 1950 guaranteed equal rights to the women including right to education, employment and equality but due to the societal social norms the status of women remained unequal because of the economic dependence on men. India retained the colonial era framework for rape cases and made significant changes in the meantime. According to IPC section 375 tells us about the rape i.e. What is rape? And section 376 of IPC tells us about the punishment for rape i.e.

• Minimum of 10 years imprisonment (can extend to life imprisonment) for general cases of rape.
• Death penalty for rape that leads to the victim's death or leaves the victim in a vegetative state, or for repeated offenses.

This was all about the history of rape cases in India. Further in this article you will get to know more about the rape.

Biggest mistake by the Supreme Court in the Landmark Judgement

Case: Mathura Rape Case (Tukaram and Another vs State of Maharashtra)
Mathura a tribal girl of Maharashtra was an orphan who lived with her brother Gama. She used to work in Nushi's house where she had a sexual relation with Ashok, Nushi's Sister's son. As per the custom of their culture they started living together and at that time the age of the girl was between 14-16 years. To be clearer about their custom Dr. Vibhuti Patel, women's study scholar said, "Among several tribes in the Western India- Rajasthan, Gujarat and Maharashtra, the live-in relationships between couples is a customary practice. Their culture of cohabitation is based on couple's right to choose and right to reject.

Bhils in Gujarat, Garasia, Gamar Community in Rajasthan who are subsisting on farming and manual labour have been extremely poor and deprived for centuries. They have traditionally been cohabiting under live-in arrangements, have children also and when they accumulate adequate marriage expenses, they get married. At times the head of the household organises group-marriages of 2 generations of live-in couples to economise the cost." [6]

On March 26, 1972, Gama reported that Mathura had been abducted, leading to all concerned individuals, including Ashok and Nushi, being brought to the police station. After taking statements of all the concerned persons and asking everyone to leave, two police constables Tukaram and Ganpat asked Mathura to stay there. Ganpat took her to the washroom, switched off the lights and raped her despite her protests. Later, another accused Tukaram also attempted to rape her, but he was too drunk to do so. Mathura later recounted the incident to her family and friends.

By this time Mathura's family, who was waiting outside the police station, became suspicious as the lights of the police station were off and the gate was locked from inside. They called out to Mathura but got no response and a crowd gathered near the station on hearing the noise. After some time, Mathura came out from the station and informed the crowd that she had been forced by constable Ganpat to undress herself and he had then proceeded to rape her. On hearing this the agitated crowd threatened to burn down the police station, and the head constable was forced to take down Mathura's statement.

This was the facts of the case and the case was taken to session court, and the session court said that it was not a rape and the defendants were not guilty.[7] On appeal, the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused to one and five-year imprisonment respectively.

The High Court judgement held that "Mere passive or helpless surrender of the body and its resignation to the other's lust induced by threats or fear cannot be equated with the desire or will, nor can furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition."[8] Despite the valid judgement by the High Court, which took a more holistic approach to consent, justice for Mathura was elusive. In September 1979, the Supreme Court overturned this judgement and pronounced the defendants not guilty.

The verdict if the supreme court was based on 3 verdicts:
Mathura had not vocally expressed her consent, means she should have expressed her non consent.

• There was lack of bruising in the body
• She was habituated to sexual intercourse based on the "two-finger-test"

After the verdict of the case, it was analysed by the four law professors, Upendra Baxi, Raghunath Kelkar, Lotika Sarkar and Vasudha Dhagamwar who wrote an open letter to the The Supreme Court in its judgment opposed the concept of consent. Despite the massive protests against the verdict in the Mathura case and demands to reopen it, the Court still held that there was no legal basis in the case to rule in Mathura's favour. This eventually led the Indian government to amend the rape laws in our country. In 1983, a new category was added to the criminal laws dealing with rape.

• The law mandated that the court presume that if a woman says she did not consent to intercourse, she is telling the truth.
• The Mathura case led to in-camera rape trials and a ban on identifying victims by their real names.
• Apart from defining custodial rape, the amendment shifted the burden of proof from the accuser to the accused.
• It also demanded that before sunrise and after sunset, women cannot be called to the police station.

Now as you have read the case summary you might have understood why this case was in the list of the historical rape cases of India and also about the mistake of Supreme Court.

How Rape Laws in India Have Evolved: From Past to Present?
As you must have understood the basic concept about the evolution of rape laws or punishment of rape has been evolved from the ancient history to the post-independence. Let's talk more about the evolution of rape laws in brief.

As you all know that rape is something which is not against the victim but against the property, which is either of her husband, father or son. The definition of rape has already been told to you and after the insertion of definition of rape in 1860 in IPC, it remains unchanged for next 100 years.

Mathura rape case was one of the important and the first case of rape as you already have understood from this article new amendments were made after this case and this was the first time in the history. Custodial rape was added to the definition of rape after the amendment where it means that a police officer having a girl in its custody commits a rape then it is a rape.

Then from the year 2001-2011 child rape was at its peak and sexual offenses against minors was the statutory rape clause which criminalized sexual intercourse with a minor below 16 years of age regardless of consent.[9] In child abuse the assaulter or you can say the perpetrator use to be close to the child or known to the child. From then onwards POCSO (Prevention of children from sexual offence) 2012 has been made to protect the children from sexual assault. The police were responsible for looking after the child victim during the trial. Child pornography, abetment to child abuse, sexual harassment of children was all covered in this Act.

Then after the POCSO act on December 16, 2012, a physiotherapy intern was gang raped in a moving bus and was thrown from the bus. This was the Nirbhaya gang rape case it shook the entire country and faced a lot of media coverage because of the heinous nature of the crime. The government wanted to make changes in the rape laws as they don't want that such types of case may happen again in future. So, this led to the formation of 2013 criminal amendment act and the Juvenile Justice Act. [10]

This not only widened the definition of rape but also increase the punishments of rapes from 10 years and life to 20 years and life. New crimes like the offenses of stalking, voyeurism, and acid attacks were added and 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 judgement of Aruna Shanbaug case.

After the changes made in rape laws of Nirbhaya Gang Rape, a very dangerous rape incident had been occurred on January 2018, in Kathua district of Jammu and Kashmir where an 8-year-old minor girl "Asifa Bano" was raped by the priest at the temple. This shocking case led to protests across the country and demands for stricter laws. In the backdrop of Jammu and Kashmir, where political changes were taking place, the case was heavily politicised 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. [11] Another section was inserted in the IPC which dealt with the offense of rape against a minor under 16 years where the punishment was 20 years and made to life imprisonment.

So, this was the evolution of rape laws in India. However, there was a recent incident occurred in Kolkata where an intern has been raped by the officials of RG Kaur Medical college. Since, now the judgement has not been given yet but I think this time the new amendment will be made.

Essential Rights available for Rape Survivors in India

• Right of Zero FIR: This is the right available to the rape victim where she can file a FIR in any police station irrespective of the place of incident. Once the FIR is registered then later it is transferred to the original jurisdiction where the incident had taken place to carry on the investigation. For example, if an incident took place in Mumbai and she did not want to tell anyone about the incident, later the victim reached Delhi and decided to send the rapist behind the bars, she can easily do this by filing in any police station of Delhi, and that FIR will be transferred to the respective police station where the incident took place i.e., Mumbai. Therefore, it is known as zero FIR.
   
• Free Treatment for Victims: It has been mentioned in section 357(C) of CPC (Criminal Procedure Code) that no matter whether it is a private or public hospital, if a rape victim has reached any hospital, then they are instructed to provide free medical treatment to the victim. If any of the hospitals failed to do so, then they are liable under section 166B of IPC for an imprisonment of 1 year or fine or both.
   
• No Two Finger Test During the Medical Examination: This right restricts the doctor from performing the two-finger test during the medical examination. According to section 164A of CPC, it states how the report will be made and what are the things to be included in the report.

There is a case of the Supreme Court i.e. Lillu Alias Rajesh and Another vs State of Haryana stated that the Two Finger test is also the interpretation which also violates the right of rape victims and even their privacy, dignity and their mental integrity and which is completely illegal. The doctor's work is to only check whether there is any injury in the private parts or not? And to just see that rape has been committed with the victim or not and to also check that there is any recent sexual activity that has been happened or not?

Thus, no doctor has the right to check about any of the past activity of the victims.
The ministry of Health has issued a Guidelines under that a medico-kit is to be provided in every hospital to collect the DNA sample for the forensic testing and that report should always contain:

• Name and address
• Age of the victim
• Description of the material taken for the DNA testing
• Marks of the injury if there are any
• General mental conditions and other reasonable material if any

Right to compensation:
The victims shall always be granted an interim relief which amounts to 25% of the compensation amount, irrespective of the whether she was successful in her claim or not. There is a National Legal Services Authority which has also issued the rules of compensation in the Compensation Scheme for Women Victims or Survivors of Sexual Assault and Other Crimes as of the year 2018. There are several factors involved while claiming for compensation such as mental damage/physical damage, loss of educational opportunity, loss of employment, if the victim gets infected with any disease, the financial status of the victim or in case of disability or death of the victim.

Conclusion
As we all came to the end of this article and as you all know that rape is one of the heinous crimes all over the world the conclusion of the article emphasizes the following points:

• Rape is a heinous crime, and while there have been significant legal reforms to address it in India, there is still much to be done.
• Justice for victims remains a critical issue, and laws have evolved over time, especially after landmark cases such as the Mathura and Nirbhaya cases, which led to legal amendments that strengthened victim's rights and protections.
• The article highlights the rights of rape victims, such as the right to file a zero FIR, a ban on the two-finger test, free medical treatment, and compensation for victims.
• Ultimately, the article calls for continued legal and social changes to ensure justice and respect to rape victims, emphasizing reforms that not only address the crime but also work towards preventing it.

End Notes:

1. Rape - Definition, Examples, Cases, Processes (legaldictionary.net)
2. Section 375 Of IPC: An Overview (legalserviceindia.com)
3. NCRB data: India witnessed 86 rapes every day, 46 offences against women every hour in 2021 - India News | The Financial Express
4. Manu-smriti | Dharma, Vedic Texts & Ancient India | Britannica
5. Atrocities on Hindu Women during Islamic Invasion and Rule in India (myindiamyglory.com)
6. The Mathura Rape Case Of 1972: A Watershed Moment In India's Rape Laws (feminisminindia.com)
7. The Landmark Case of Tukaram and Others v/s State of Maharashtra, 1979: A Pivotal Turning Point in Legal History (legalserviceindia.com)
8. Mathura Rape Case [Tukaram and Another vs State of Maharashtra] (lawbhoomi.com)
9. A critique of rape laws in India - iPleaders
10. A critique of rape laws in India - iPleaders
11. A critique of rape laws in India - iPleaders