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An Analysis Of Rape Laws In India And The Recent Amendments

Everyone remembers the night of 16 December 2012 when gang rape on a 23-year-old girl shocked the whole world. The Incident chilled the spine of every Indian as security of women appeared absent in India. The government appeared unaware and uninterested in the safety of women. The judicial system appeared helpless for providing justice to women who suffered.

The world was even more shocked when the guilty men were shamelessly using the loopholes of the judicial mechanism and the judiciary could not do anything. That night various loopholes uncovered themselves. Everyone was shocked and it looked that changes would be made to improve women security and ensuring a better judicial mechanism. Changes were made in the law; strict provisions were introduced but has the situation changed. It has been over 8 years since the tragic incident took place but has there been any change?

Even today incidents of brutal sexual offences against women take place and the system still appears helpless[1]. In India, every 15 minutes a woman is raped[2]. In 2019, as per National Crime Records Bureau[3], 32,033 cases of rape were reported. Years have gone by since that awakening but the situation does not seem to change, every time, the government appears unaware and the judiciary helpless in coping with the situation of women in India[4]. Here's a look at the laws dealing with the offence of rape and the recent major amendments.

Section 375 of the Indian Penal Code defines Rape. According to it, rape is said to be committed by a man on a woman when penetration, as defined in the provision, takes place under any of the following circumstances:
  1. Against her will,[5]
  2. Without her consent,[6]
  3. 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,[7]
  4. 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,[8]
  5. 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,[9]
  6. With or without her consent, when she is under eighteen years of age,[10]
  7. When she is unable to communicate consent,[11]

Under IPC, following should be the nature of penetration along with the above-mentioned circumstance for an act to be considered as rape:
  1. Penile penetration in the vagina, mouth, urethra or anus of the woman,[12] or
  2. Penetration of any body part (other than penis) or any object in the vagina, mouth, urethra or anus of the woman,[13] or
  3. Manipulation to cause penetration of woman's body part in the vagina, mouth, urethra or anus of the woman,[14] or
  4. Application of his mouth to the vagina, anus or urethra of the woman[15].

The provision was not like this before 2013. The earlier provision was given a major amendment in 2013 by the Criminal Law (Amendment) Act. The amendment broadened the scope of the provision. The act defined penetration. The act also added other circumstance which would constitute as rape.

Earlier, non-consensual sexual intercourse was defined as rape and penetration was considered as sexual intercourse. But what constituted as penetration was not defined. The amendment also added the seventh circumstance[16] in the provision which provides for inability to communicate consent as the absence of it. Thus, the amendment gave a very comprehensive definition of rape by defining the term penetration and broadening the circumstances under which rape is committed from the woman's perspective.

Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB and 376E of the IPC prescribes punishment for the offence of rape. Out of the mentioned provisions, Section 376 was amended by Criminal Law (Amendment) Act, 2013; Sections 376A, 376B, 376C, 376D and 376E were introduced by the act and Section 376AB, 376DA and 376DB were introduced by Criminal Law (Amendment) Act, 2018.

Before the introduction of additional provisions in 2013 and 2018, section 376 of the IPC was the only provision punishing for the offence of rape.

As it stood then, punishment of either description which shall be not less than 7 years and extend to imprisonment for life and fine was provided for the offence of rape. It provided lesser punishment of either description which may extend to two years of imprisonment for rape committed by the husband on his wife, provided the wife was not under 12 years of age.

The provision also dealt with certain specific situations wherein relatively stricter punishment was provided. Punishment of rigorous imprisonment for a term not less than 10 years which may extend to imprisonment for life and fine was prescribed for such specific situations:
  1. A police officer or a public servant committing rape by taking advantage of his position,
  2. A staff of jail, remand home, place of custody or hospital committing rape by taking advantage of his official position,
  3. Committing rape on a pregnant woman knowing she is pregnant,
  4. Committing rape on woman under 12 years of age,
  5. Committing gang rape.
By the amendments of 2013 and 2018, changes to the amount of punishment and the specific circumstances attracting stricter punishment were made. The amended provision[17] provides for rigorous imprisonment specifically which shall not be less than 10 years but extend to imprisonment for life and fine with stricter punishments being provided for certain specific situations.

For specific situations attracting stricter punishments, the amended provision provides for rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for the convict's remainder natural life and fine. The amendment also widened the scope of the provision by making changes to situations that attract stricter punishment.

Following situations were added by the amendments:
  1. Rape committed by a member of armed forces[18
  2. Rape committed by a person of trust[19],
  3. Rape committed during communal violence[20],
  4. Rape committed on a woman not capable of giving consent[21],
  5. Rape committed while being in a position of control over a woman[22],
  6. Rape committed on a mentally or physically suffering woman[23
  7. Causing grievous hurt on a woman while committing rape on her[24],
  8. Committing rape on a woman, repeatedly[25]

Following situations were removed from the provision:
  1. Committing rape on a woman under 12 years of age,
  2. Committing gang rape.
After the amendments, the above situations are dealt with specifically under sections 376AB and 376D, 376DA and 376DB of the IPC, respectively.

Section 376A was introduced in 2013 which provided for punishment of rigorous imprisonment of not less than 20 years but extend to imprisonment for convict's remainder natural life or death if while the commission of rape the convict causes such injury which leads to death of the woman or causes her to be in a persistent vegetative state.

Section 376B introduced in 2013 provides for punishment for when a husband has sexual intercourse with his wife living separately. It provides for imprisonment of not less than 2 years which may extend to 7 years and a fine.

Section 376C provides for rigorous imprisonment of five to ten years when a person in authority uses such authority to induce or seduce such woman to have sexual intercourse with him.

The introduction of Section 376D created a separate provision for the offence of gang rape. The provision addressed the gravity of the offence and provided for stricter punishment. It provides for punishment of rigorous imprisonment of not less than twenty years but may extend to the convict's remainder life and fine.

Section 376E provides for punishment to repeated offenders. It punishes persons, previously convicted under any of Sections 376, 376A, 376AB, 376D, 376DA or 376DB. If such person is subsequently convicted under any of the said sections shall be punished with imprisonment for life which means imprisonment for the rest of the person's life or death.

Criminal Law (Amendment) Act, 2013 made some very positive changes to the offence of rape in India, like the gravity of various situations under which rape is committed was addressed, nature of the punishment was made stricter. But there were few aspects of the offence which were left unaddressed by the amendment and were addressed by an amendment in 2018.

Criminal Law (Amendment) Act, 2018 also made some important changes to the offence of rape in India on the lines of the age group of the victims.

Section 376AB deals with the cases when rape is committed on a woman of less than 12 years of age. It provides for rigorous imprisonment which shall not be less than 20 years but which may extend to imprisonment for life which shall mean imprisonment for the person's remaining natural life or death and fine.

The amendment made more important changes to the offence of gang rape. With the introduction of Section 376DA and 376DB offence of gang rape on a woman of under 16 years of age and on a woman of under 12 years of age, respectively, was introduced. The amendment addressed the various dimensions of the offence of gang rape. The former provides for punishment for imprisonment for life and fine while the latter provides for imprisonment for life or death and fine. In both the cases, imprisonment for life means imprisonment for the person's remaining natural life.

It can very well be said that our laws have come a long way and are placed in a much better position than they were a few years back to tackle the offence of rape. It can very well be said that recent incidents of rape have shell shocked society creating awareness in society regarding the offence of rape. But despite all the awareness and actions, still, there are various shortfalls in the society, law and judicial mechanism which need to be changed to make society secure for women.

There are various aspects of rape that are still not addressed by the laws such as marital rape. However far we may have come towards making society secure for women but still the social stigma attached to the survivor of rape is present as they are seen as the wrong doer and the rapists are given some sort of sympathy. Such social stigma should be completely removed and the survivor of the offence should be encouraged to come out, express themselves and lead a normal life. Any sort of sympathy given to the perpetuator or victimisation of the survivor is keeping us away from a women secure society.

  5. Section 375(First), IPC
  6. Section 375(Secondly), IPC
  7. Section 375(Thirdly), IPC
  8. Section 375(Fourthly), IPC
  9. Section 375(Fifthly), IPC
  10. Section 375(Sixthly), IPC
  11. Section 376(seventhly), IPC
  12. Section 375(a), IPC
  13. Section 375(b), IPC
  14. Section 375(c), IPC
  15. Section 375(d), IPC
  16. Supra 9
  17. Section 376, IPC
  18. Section 376(c), IPC
  19. Section 376(f), IPC
  20. Section 376(g), IPC
  21. Section 376(j), IPC
  22. Section 376(k), IPC
  23. Section 376(l), IPC
  24. Section 376(m), IPC
  25. Section 376(n), IPC
Written By: Raghav Agarwal, Student, USLLS, GGSIPU

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