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Changes in Rape Laws in India

The earliest mention of rape was in 1860 when the Indian Penal Code was published. Rape is defined in Section 275 as the situation where "A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions."[1] The six conditions which constitute an act of sexual intercourse as rape are: if the act has been done against a woman's will, there is no acquired consent if the woman has given consent because she was being threatened if the man committing the act knows that he is not her husband but she believes that she is lawfully married to him and hence consent is given, if the consent is acquired when the woman is under the influence of some substance in which she cannot understand the nature and consequences of the act, and with or without consent if she is under sixteen-years-old.[2]

Tuka Ram and Anr v. State of Maharashtra
The first change that can be observed in the Indian rape laws was after the Tuka Ram and Anr v. State of Maharashtra.[3] The Session Court held the defendants not guilty on the basis of the reasoning that the victim had given her voluntary consent as she was "habituated" to it. After the case was referred to the Supreme Court, the accused were acquitted. Since the verdict was deemed controversial, protests and outcry were observed throughout the country. In 1983, the Criminal Law (Amendment) Act was passed. In the Criminal Law Act 1983, a new Section 114(A) of the Indian Evidence Act was enacted which permitted the courts to deduce that the victim did not give consent to the act if she had said that she did not consent to the act of sexual intercourse. The Indian Evidence Act also adjusted the concept of burden of proof and stated that in case sexual intercourse has already happened, the burden of proof will lie on the accused person(s).

Mukesh & Anr. v. State of NCT of Delhi & Ors
The second important change that can be observed came after Mukesh & Anr. v. State for NCT of Delhi & Ors[4] which is also known as the Nirbhaya case. Out of the six accused, one committed suicide in jail, one was a juvenile who was sentenced to three years in a juvenile facility, and the remaining four were sentenced to death. After this case, JS Verma, who was the former Chief Justice of India, led a panel that had the agenda of studying the criminal laws and suggesting the possible changes which could strengthen the punishment for sexual assault in India. The Criminal Law Amendment Act, 2013, was enacted to allow for amendments in laws that are related to sexual offenses. One of the important amendments was the provision for capital punishment for rape cases in which the victim dies or is left in a permanent vegetative state.

Protection of Children from Sexual Offences Act (POSCO) 2012
According to the National Crime Record Bureau, in the period of 2001 to 2011, there were 48,338 cases were recorded. With such disturbing numbers, the need for a legal procedure which was for child victims of sexual offenses grew. The only clause for child victims was in the definition of rape which criminalized sexual intercourse with a girl who was below the age of 16, with or without consent. With POSCO in place, it gave the provision in which the police would have to ensure that the child receives protection and medical care if needed. Another important part of the act was the provision of special courts that would fast track cases of child sexual abuse and make the reporting of such cases compulsory. However, one flaw was that the Act did not mention crimes against male children. This flaw was corrected in 2012 and the new Protection of Children From Sexual Offences Act was gender-neutral and recognized additional forms of penetration. The Act also recognized assaults which not penetrative such as sexual harassment and child pornography.

Amendment to the Indian Evidence Act, 2002
In 2002, a Public Interest Litigation petition was filed by an NGO named Sakshi. They pointed out that despite the 1983 amendment of the Indian Evidence Act forbidding character assassination, it did not cover the cross-examination of a rape victim. The argument given by them was that women did not feel comfortable and "the intention of the defense in rape trials had become to humiliate and degrade the sexual integrity and personal space of the victim" instead of considering them as someone who went through mental and physical trauma.

Kathua Rape Case
In January 2018, an eight-year-old girl named Asifa Bano was raped and then murdered in Kathua which is in Jammu and Kashmir. The charge sheet named seven people in which four were police officers who were charged for tampering and hiding the evidence. Public outcry and protests created immense pressure on the government to address this crime. As a result, a change was observable three months after the incident.

The change was made to the Protection of Children from Sexual Offences Act and rape of a child below 16 years of age was punishable with a minimum of 20 years of imprisonment and provided the death penalty for the rape of any child who was below the age of 12. This change initially was an Ordinance however, it was passed by the Lok Sabha on the 30th of July, 2018, and the Rajya Sabha on 6th of August, 2018. It received the Presidential assent on the 11th of August, 2018, and came into force and is now known as the Criminal Law (Amendment) Act, 2018.

Conclusion
Many amendments are to be made if Indian rape laws are to prevent potential consumers from committing such grave crimes. The punishments are to be severe and according to the crime committed and they should be given within a reasonable amount of time because delay is one of the main reasons why many cases aren't even being reported. Many of the changes have been beneficial however some changes are still being debated such as marital rape which should be criminalized.

However, it is important to note these changes only come after such gruesome cases shock the conscience of the public and after there is public outcry and protests, reforms and amendments are made. There are so many cases that go unnoticed and the victims receive justice after years and years of going to court and trying to prove that they are a victim of such a crime.

End-Notes:
  1. Section 375 in the Indian Penal Code (Section 375 in The Indian Penal Code) accessed February 5, 2022
  2. Section 375 in the Indian Penal Code (Section 375 in The Indian Penal Code) accessed February 5, 2022
  3. 1979 AIR 185
  4. (2017) 6 SCC 1

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