1) Introduction
The Supreme Court of India in the case ofThe State Of Punjab v. Gurmit Singh Ors stated, "Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female."[1] RAPE is not just a heinous crime with a female but its atrocities affect the whole society. With all these technological developments where we have AI and robots, we as humans are still quite underdeveloped if crime like rape still exists and prevails in our society. Katharine K. Baker in her article, What rape is and what it is ought to be states The law is normative. It is allowed, indeed compelled, to decide what is right and wrong. Rape is wrong. The physical control and sexual use of another's body without that person's consent is wrong. [2] The law though defines it to be unconstitutional and puts it in the category of a heinous crime but do we as citizens and individuals believe in it is the ultimate question?
2) How does the Indian Constitution define Rape
Article 375 of the Indian Constitution defines rape as
A man is said to commit "rape" if he
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following seven descriptions:
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.
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.
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.
With or without her consent, when she is under eighteen years of age.
When she is unable to communicate consent. [3]
3) Judgements that shaped rape laws in India
Nirbhaya rape case, one of the most gruesome cases, where a 23-year-old medical student was brutally gang-raped on a moving bus in India's capital New Delhi by six men. After the horrific assault, she was thrown out of the bus at an isolated place and later she succumbed to her injuries shocking the entire nation; exposed the scope of sexual violence against women in India, promoting lawmakers to stiffen penalties in rape cases. [4] All the six accused were charged with sexual assault and murder but one of them was a juvenile who was sentenced to three years of punishment in the reform home by the juvenile justice court. During the court proceedings, Ram Singh one out of the five adults committed suicide, and the rest were given the death penalty by the Supreme Court dismissing their review petition.
Section 375 of the Indian Penal Court was amended broadening the definition of rape and including other means of penetration such as orally or by hand or any other object other than penile penetration. Consent was defined as "an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act and the age of consent was also set to 18 years. Section 376 was also amended, increasing the punishment for rape by a minimum of seven years of imprisonment (further amended to ten) and rape causing death or vegetative state by a minimum of twenty years.
This case brought in the AntiRape Criminal Law Amendment Act, 2013 to punish sex crimes, redefine rape laws, and made punishment more stringent, including death for rape offenders.[5] The Nirbhaya fund was set up by the government to be used in different states and cities to ensure womens safety in public places. A women's helpline number was set up for emergency dial.
Justice Verma Committee emphasized that the nature of the relationship between the complainant and the accused should not be taken into consideration when determining whether or not consent was granted for sexual activity. This position attempted to emphasize the significance of consent in and of itself, regardless of any previous relationship between the parties.[6]
In Nipun Saxena v. Union Of India, the supreme court acknowledged the seriousness of these sexual offenses including rape which are extremely brutal towards women who suffer extreme mental and physical trauma, held that the death penalty for rape under Section 376 (2)(f) of the IPC was constitutionally valid. [7]
4) Biasness of the Courts
In Tuka Ram Anr V. State of Maharashtra [8]a minor girl was raped by two police officers raised several issues regarding Indian rape laws, mainly the burden of proof and the consent question. The sessions court ruled that it was not rape because the victim voluntarily consented to it differentiating rape and sexual intercourse. Later the high court ruled that event there was a difference between rape and sexual intercourse but the sessions court forgot to differentiate between passive submission and consent. The court said that the victim agreed due to the threat of arrest by the police. But ultimately the supreme court said that because there was no restraint from the victim and no injury was caused, proves her consent hence there was no question of rape. This judgment is one of the most unacceptable judgments and shows the biases and patriarchal mindset of the then jury.
The Delhi High Court in the case ofMahmood Farooqui v. State (Govt of NCT of Delhi) [9] ruled that a weak "no" could imply a "yes" and examined the idea of consent in a seriously flawed way. However, this would not be the case if the parties were well-known to one another, were proficient in letters and intellectual pursuits, and had previously had face-to-face interactions. It would be extremely challenging to determine in such circumstances whether minimal resistance and a weak "no" constituted a denial of consent.
The Karnataka High Court while granting bail in the case ofRakesh B v. State of Karnataka [10]stated,"After the perpetration of the act she was tired and fell asleep, which is unbecoming of an Indian woman; that is not the way our women react when they are ravished." Judging the character of the woman and granting bail to the accused based on that shows the backwardness prevailing in the minds of the justice deliverers but now with changing times, this patriarchal and backward mindset is taking a backseat, and legal rights and complete justice are taking the lead.
5) Conclusion
But with all these problems and biases the courts with time, have amended the laws and have always prioritized justice over anything else. These biases have been overruled in many cases and now with the advancement of women in multiple fields of occupation, their involvement in society is acknowledged and respected. India as a country has seen great downfalls where justice towards women was denied and even ignored but now with time, gradually the legal system is working towards strengthening the laws against crime. We have to amend these unjustifiable, biased laws and work towards creating justifiable laws for the females of our nation by consulting them as to what makes them feel safe and welcomed than just assuming what they need.
6) Citations
1) The State of Punjab v. Gurmit Singh Ors. 1996, AIR 1393 SCC (2) 384.
2) Katharine K. Baker, What Rape Is and What It Ought Not to Be, 39Jurimetrics J. 233-242 (1999)
3) The Indian Penal Code, s.375
7) Nipun Saxena vs Union of India, AIR 2018.
8) Tuka Ram Anr V. State of Maharashtra, AIR 1979 SCR (1) 810.
9) Mahmood Farooqui v. State (Govt of NCT of Delhi), AIR 2016.
10) Rakesh B v. State of Karnataka, AIR 2020.
