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Custodial Rape: A Human Rights Concern

For decades now, custodial violence has been a significant hindrance to democracy and the development of human well-being. It is also a huge human rights issue in India. Rape could be categorized as one of the most horrific crimes perpetrated by humankind against itself. Generally, someone who has another person in custody, is in a very powerful position, and sexually exploiting them, amounts to custodial rape. This article seeks to look into the history of custodial rape, significant cases and the present scenario.

Introduction
The patriarchal nature of the society, violence against women, and stereotyped behaviour are age old concepts that have troubled the society since time immemorial. It is a barbaric act that has persisted in our society since time immemorial, shaking the very conscience of the people. The term 'rape' has been derived from the Latin word 'rapio', meaning 'to seize'. The offence of rape was therefore considered to be ravishment of the women, and forcible seizure of her person. It is a crime that violates the victim's basic fundamental right, namely Right to Life under Article 21 of the Indian Constitution. Section 375 of the Indian Penal Code defines 'Rape' and Section 376 deals with its punishment.

Custodial Rape

Section 376 of the Indian Penal Code covers "Sexual intercourse by a person in authority." Custodial rape is a type of rape that occurs when the victim is "in custody" and unable to leave, and the rapist or rapists are agents of the power keeping the victim in custody. The Supreme Court in of Omkar Prasad Verma v. State of Madhya Pradesh defined "custody" as guardianship. When someone is in custody, that person is subject to rigorous control and supervision of another person or institution, who is known as the custodian. Control involves movement, liberty, freedom, food, water, and the individual's outer relationships with the world.

Commission of rape under such situations is considered a serious crime and a breach of duty to safeguard the bodily integrity of the violated individual. The punishment for custodial rape is at least ten years in jail, with the possibility of life imprisonment and a fine. The concept of custodial rape applies to the superintendent of a jail, a remand facility, or any other places of custody established by law. This is, however, also aimed towards the management or employees of a hospital (both public and private), mental health care institutes or rehabilitation centers, juvenile homes, and shelter houses.

Tracing The History Of Custodial Rape

In the late 1970s and early 1980s, there were reports of police torture in the form of custodial rapes of women. These demonstrated not only men's control over women, but also the power that uniformed officials exercising State power and authority have over regular citizens, particularly women. During the 1975-77 national emergency, the state assumed arbitrary and unrestricted powers and avoided public responsibility for its acts while also severely restricting the citizens' civil liberties.

The dangers of state power and how it might be used to violate and destroy personal freedoms were brought to the attention of the judiciary and civil society as a result of this experience. Three cases of custodial rape happened in rapid succession in this setting: Mathura, Maharashtra (1974), Rameeza Bee, Andhra Pradesh (1978), and Maya Tyagi, Uttar Pradesh(1980).

These three incidents were targeted forms of violence against women, which also involved an abuse of power by public servants who are tasked with protecting the people of India. However, in all three occasions, the cops exercised extreme brutality and showed little regard for the law. These incidents became symbols of brazen impunity, institutional bias, and police apathy.

Tuka Ram And Anr v. State of Maharashtra:
Mathura, a 16-year-old girl, was assisting Nunshi with household work. During her work, she met Nunshi's brother, with whom she eloped. Her brother filed a case against Nunshi and her brother and they were arrested. They were all taken to the police station to be questioned. After a while, all of them except Mathura were instructed to leave the police station. The head constable, Tukaram, asked Mathura to stay, where she was raped. The session court ruled that there was insufficient evidence against the officers. However, in the High Court judgement, it was determined that the police officers were guilty. However, the Supreme Court overturned the High Court's decision, acquitting both defendants. This sparked widespread protests across the country.

Smt. Rameeza Bee v. D Armugam:
Rameeza Bee and her husband, on their way back from a late-night visit to the movies, were arrested for loitering by police. They were taken to the police station, where they were fined. When the spouse returned home to get the money, Rameeza Bee was raped by three policemen. When the husband got back and expressed his displeasure, he was beaten to death. There were large-scale protests in the city, which ultimately led to the creation of the Muktadhar Commission to investigate the incident. The accused cops were found to be guilty of rape, murder, and assault by the commission.

Sheo Kumar v. State of U.P. And Ors:
Maya Tyagi, her husband Ishwar Tyagi, and two friends were on their way to a wedding when their car broke down. Ishwar Tyagi and his two friends went to a nearby town to get the tyre fixed. Once they left, a police officer who was dressed in civil attire entered and molested Maya Tyagi. On seeing this, her husband slapped the cop. The police officer then returned with other officers who then shot Ishwar Tyagi and his two buddies. Maya Tyagi, who was six months pregnant at the time, was pulled out of the car, assaulted, and stripped naked. The policemen abused her mercilessly when she didn't move despite the brutal assaults. She was paraded naked to the police station and raped. Women's organizations and lawmakers from throughout the country have all spoken out against this case. The six police officers were sentenced to death, while four others were sentenced to life in prison.

Present Scenario
Since 1983, the law has given custodial rape a broader definition. Prior to 1983, it was rape in police stations by police officers. It has now come to include:
  • Rape by police officers in the police station and the victim in his custody;
  • Rape by a public servant on a woman in the public servant's custody;
  • Rape by an Army man in an area where the forces are deployed;
  • Rape by management/staff in a jail, remand home, women's home and other places where women are in custody.
  • Rape by hospital staff where a woman is in custody.

The 1983 amendment to the law also raised penalty. When compared to rape by an ordinary person, the mandatory sentence for custodial rape was increased to a minimum of 10 years of hard imprisonment, which could be extended to life, and a fine.

Usually in criminal law, the burden of proof is on the prosecution to prove that the accused committed the offence. Until proven guilty, the accused is presumed innocent. However, in situations of custodial rape, this created a bigger issue owing to factors such as evidence tampering and destruction. As a result, an exemption to the rule of presumption was included in the Evidence Act.

The Criminal Law (Amendment) Act of 1983 amended the Evidence Act of 1872 to add Section 114A, if sexual intercourse is confirmed and the victim states that it occurred without her consent, the Court would conclude that there was no consent. It is then upon the perpetrator to establish that there was consent and that the sexual intercourse occurred with the permission of the woman.

Following the amendment in 2013, if there is failure to register a report of rape by a government official, he is considered to have supported the offender, which is a punishable offence. If the police officer fails to register an FIR, a case may be filed against him, and he could be penalized with life imprisonment and a fine.

The Supreme Court of India in Paramvir Singh Saini vs Baljit Singh, ordered CCTV cameras to be put in all police stations across the nation, including interrogation rooms. The installation of CCTV cameras at police stations and jails, formation of human rights commissions, and surprise visits to jails and lock-ups by non-officials will significantly reduce cases of custodial rapes and torture.

Conclusion
Rape is a horrific crime that requires reform so that offenders are fully aware of the power of the law and do not violate its boundaries. While prosecuting and punishing a rape accused is challenging, it is considerably more difficult when it comes to custodial rape because in cases of custodial rape, the connection between the offender and victim is one in which the perpetrator already has undue control over the victim. As a result, rape under such situations constitutes a higher threat to the victim and causes her significant anguish because the police officer violates not only her bodily integrity but also his responsibility to protect and care for her.

There is also a chance of many cases of custodial rapes going unreported because the offenders are in authority. Various changes have occurred over the last three decades, bringing about significant transformation as well as some hope for justice. Despite the fact that failure to perform the task has been made a penal offence, no social audit has been conducted to determine how many police officers have been charged, if any.

End-Notes:
  1. Sahar Bhog, What Is Custodial Rape And Why We Need To Be Discussing It Feminism In India (2022), https://feminisminindia.com/2019/04/16/custodial-rape-india/ (last visited May 8, 2022).
  2. Lawcolumn.in (2022), https://www.lawcolumn.in/custodial-rape/ (last visited May 8, 2022).
  3. Custodial Rape in India - Legal Articles - Free Law, Freelaw.in (2022), https://www.freelaw.in/legalarticles/Custodial-Rape-in-India (last visited May 8, 2022).
  4. Custodial Rape: An Overview | Lexpeeps, Lexpeeps (2022), https://lexpeeps.in/custodial rape-an-overview/ (last visited May 8, 2022).
  5. Lawcian (2022), https://www.lawcian.com/post/custodial-rape-in-india (last visited May 8, 2022).

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