(Author: Stephy Thomas, pursuing BBA LLB (5th Semester) from Cooperative school of law ( MG University, Kottayam, Kerala).)
The law promoted as the weapon that will prevent potential rapist and which proposes death for the more barbaric of them was passed by the lok sabha on March 19&by the Rajya sabha on March 21
It amended various sections of the Indian Penal Code,the code of criminal procedure,the Indian evidence Act & the protection of children from sexual offences Act. This amendment was brought after a nationwide outrage against the brutual rape of a physiotherapist student in Delhi
Section 375 of the Indian Penal Code defines Rape. In common parlance rape is described as sexual intercourse with a woman without her consent by force, fear or fraud. Section 375has seen an amendment in the year 1983, which overhauled the definition of rape and also made changes to the punishments that were stipulated under the section 376. This was made through the Criminal Law (Amendment) Act of 1983. Interestingly this amendment was also brought about due to the widespread criticism of a judgment in the case of “Tukaram v. State of Maharashtra”, In this case the trial court had pronounced the accused as not guilty which was based on the concept that the victim had given tacit consent to the act. It was also observed that the girl was of promiscuous character which was used as reasoning for the tacit consent. This was overturned by the Bombay High Court which rightly pointed out that there was a huge difference between consent and passive submission. It was very correct in its observation that mere surrender to another person’s lust should not be taken as consent. This was upturned by the Supreme Court who acquitted all the accused. This judgment was criticized widely by the civil society. The ramifications of the case were seen in the amendments that were brought about in the IPC and the Indian Evidence Act. Section 376 A to D were added to the IPC and section 114A was introduced in the Indian Evidence Act.
To analyse the laws before the criminal law amendment act 2013 it is important to know how the sections have defined rape and the punishments associated with it. The crux of the definition of rape in section 375 IPC before the amendment of 2013 is that rape involves coercive non consensual sexual intercourse between a man and a woman. There are six circumstances that can be said to be the constituents of rape. The primary condition necessary for rape to be committed is that there must be the commission of sexual intercourse between the man and the woman. It is widely believed that rape can only be committed if the sexual intercourse has been done without the consent of the victim, but this is not always the case, rape can be committed even after consent has been obtained if the age of the woman is below the age of sixteen years. On a closer look at the circumstances required for the commission of rape it can be broadly divided into three parts. The first two clauses reveal that they deal with sexual intercourse with a woman ‘against her will’ and ‘without her consent’. This means that the woman is consciously capable of giving or not giving consent to the act. The next two clauses deal with the woman giving her consent due to coercion that is by putting her or any of her family member to threat of hurt or grievous harm and it also deals when the consent is obtained through misconception. The last two clauses deals with the situation when the consensual sex with underage female person takes place.
Punishments
Section 376 of the IPC stipulates the punishments that are awarded if a person is convicted of rape. There is a minimum punishment of seven years and it can also be given with a fine and extend to life imprisonment. However Section 376(2) provides the situations where the quantum of punishment will be very high and it will include rigorous imprisonment which will not be less than a term of 10 years.
The punishment for gang rape is provided under sub section 2 of section 376 IPC which postulates that when a woman is raped by more than one person then each of the person will be convicted of the crime of gang rape and the punishment would not be less than ten years of rigorous imprisonment in such cases.
Rape Laws after the Amendment of 2013.
The Criminal Law Amendment Act of 2013 was brought into effect after the horrific Delhi Gang Rape case which shocked the whole nation with the brutality of the act committed. Widespread protests and agitations forced the legislature to contemplate the changing of the prevalent rape laws. The basic idea was to make them more stringent and introduce harsher punishments besides broadening the ambit and definition of the term rape.
Late Justice J.S.Verma, Gopal Subramaniam and Ex-Justice Leila Seth comprised the rather famous ‘Justice Verma Committee’ which was made to collect suggestions and make recommendations for the legislature to make a law to combat rape and other crimes against women. The technical committee was so proactive with its working that during its short duration it received as many as 80,000 suggestions over which deliberations were done. These suggestions were sent by various activists, lawyers, NGOs and other persons representing the ‘civil society’. Since the legislature was adjourned and there was no session, the committee’s recommendations were introduced via an ordinance.
The offence rape was now amended or given a broader meaning which was comprehensive enough to include any kind of penetration and also in any body part of the woman or girl. This was the most important change because earlier section 375 of the IPC only stipulated the Penile Vaginal penetration as rape. The fact that the new recommendations added that any penetration would be considered as rape was the most efficient tool in widening the ambit of the term rape which was being demanded earlier on the basis of the recommendations of the fifth law commission report. There was also the inclusion of registering complaints and medical examination. The report categorically mentioned, “Any officer, who fails to register a case of rape reported to him, or attempts to abort its investigation, commits an offence which shall be punishable as prescribed”
The committee gave extensive recommendations regarding avoiding marital rape as well as rapes committed via commission of void marriages. This was very important as I feel that Marital Rape is a loophole that is very explicit and on the face in nature. It is a topic that is not very hidden that legislations are not being made on the issue. This is why it is such an important thing since everyone knows about it and yet the effort to include it under the definition of rape has only begun recently. To include this fact and observation the committee mentioned compulsory registration of marriages so as to provide legal sanctity solemnization of marriage. The Code of Criminal Procedure also underwent a similar overhauling attributed to the new law and had previously gone through the same process after the judgment in the Supreme Court decision in the “Gurmit Singh Case”.
Critical Comparison of the two legislations
It goes without saying that the laws have now changed drastically from what it existed previously. Societal views changes from time to time with the advent of new values and technologies. It is only fair that similarly laws which matter so much in regulating the law and order prevailing in the society also changes from time to time. This is important to counter and combat new types of crimes that have emerged of late such as cyber crimes which include data theft, harassing, breach of privacy and so forth. The major rape and sexual assault cases such as the ‘Shopian Rape Case, the Aruna Shanbaug Case, Nirbhaya Rape Case, Priya Patel, the Mathura Rape Case, etc. all have had an effect on the functioning of rape laws and their interpretations as well as reformations .Rape was included in the Indian Penal Code, 1860 in its original form since 1924.
The Criminal Law (Amendment) Act, 2013 was a replacement of the Criminal Law (Amendment) Ordinance, 2013. The Act was mandated to make change in the Indian IPC & CrPC as well as the Indian Evidence Act. There was a rise in threats towards individual privacy in the country and it was high time to include certain new crimes under the Indian Penal Code in consonance with the passing of time. A new crime that was introduced and was not provided for in the country’s earlier legislations was ‘voyeurism’ which means the recording or viewing images, movies or any such media material without the permission of the person portrayed or screened in them would result in penal punishment. A ‘voyeur’ is defined as “a person who derives sexual gratification from the covert observation of others as they undress or engage in sexual activities.” Voyeurism is a criminal act which creates apprehension for society and is infringement of expectations of privacy that all citizens have about their body which they do not wish to expose it to others.
The inclusion of voyeurism as a crime under the Indian Penal Code has made sale of pornography, invasion of privacy and all forms of sale of defamatory pictures as prohibited and this has resulted in apprehension in minds of criminals.
Another very important change from previous legislations is the much required change in the procedure of providing evidence in the court of law. After the Mathura rape case the outcry did result in amendment of Section 114A of the Indian Evidence Act. This was done to maintain that despite there being the lack of consent given by the women, there was often a character assassination of the women at the court trials which was very unfortunate. Thus there was a transition from earlier legislations and Section 53A of the Indian Evidence Act was introduced making it explicit that in a trial where there was sexual assault or rape then the evidence supplied relating to the victim’s previous sexual experience or even for a matter of fact her ‘character’ could not be admissible in the court of law. Still is unfortunate that the character assassination of the victim continues in the society which increases the hurt suffered by the victim.
On instances of rape or sexual assault cases the evidence concerning consent is often derived on the basis of the past conduct of the woman which seems rather frivolous as at the instance of the abuse she might not have consented thus constituting the criminal act. In earlier cases prostitutes could be raped and their right would not be protected as the victim’s previous sexual experience and “promiscuous character” would always malign the proceedings and create a bias in the judiciary’s mind. The sole reason for this inclusion of this amendment was to prevent the breach of privacy of the victim’s sexual history by preventing it to be included as a piece of evidence in court. Thus unwarranted intrusion in the privacy of the victim’s life should not be supported by members of the civil society. The new law protected defamation of the woman and rights of the woman to live with dignity.
Lastly and very importantly, there was also an introduction of sexual harassment at workplace (under section 354 of the IPC in addition to the Sexual Harassment at Workplace Act, 2013) and an enhanced definition of rape provided for in the amended law. The earlier legislation had focused on coercion and the fear of death or hurt of someone close to her as an example of force exerted or lack of consent when there was commission of rape. Another example of deceit which culminated into the act of committing rape was commission of false marriages
CONCLUSION
To conclude with the comparison between the legislations it can be said that the two major substantive changes were introduction of sixteen forms of rape (Penetration made by object and all parts of body included) and also the increase in age of consent. Both were introduced to combat rise of rapes committed on minors specifically. Though there was another recommendation by the J.S.Verma Committee which wanted to introduce marital rape under section 375 but this was not allowed as it would have been a social controversy. One must also note that the sexual harassment at workplace which was for the first time highlighted in the case of Sakshi v. Union of India which was a public interest litigation seeking punishments for sexual harassment committed against women at workplaces. It also wanted to widen the interpretation of rape to include all forms of penetration to be covered, the court had then given the decision in favour of the NGO but the parliament did not recognise it. The 2013 Amendment and Act made this a reality as it gave sanction to the judgment. So we believe laws can be made much more stringent than they already are.
