From Mathura to Nirbhaya: An Analysis of Rape Laws in India
From Mathura to Nirbhaya: An Analysis of Rape Laws in India
- Kavish Arora, Symbiosis Law School, Hyderabad
India, since time immemorial has been a country with a diverse culture and diverse opinions. But, there are occasions where the entire country stood as a united front, such occasions can be observed during the Nirbhaya gang rape case and Mathura rape case. The question that arises here is that whether even after Nirbhaya and the Mathura case are we able to provide deterrent measures to protect our children. According to NCRB, as many as 33,356 rape incidents were reported in India which gives an average of 89 rape incidents in a day. It is quite ironic because India has been a country where the majority of the people worship female goddesses and deities. Rape is a henious crime which not only leads to physical violation of a woman but also to social humiliation. Section 375 of the IPC is the provision talks about rape. In simple terms rape can be defined as “unlawful sexual activity with a woman without her consent, by force, fear or fraud”. Along with a woman, rape also has a tyrannical effect on society.
Developments in Rape Laws from the Mathura case
The Mathura Rape Case (Tukaram vs. State of Maharashtra) is well known for the criticism it received for its legal fallacies, interpretation of law and sexist tones used by the bench during the trial. The Mathura rape case, an episode of custodial rape revolved around a tribal girl who was raped by two police constables in the Desai Ganj police station. The sessions court, in an unnerving judgement held that the police constables are not liable as there was “consensual sexual intercourse” because Mathura was habituated to sexual intercourse. In the appeal, the high court held the police constables liable and penalized the constables for one and five years imprisonment. The Supreme court overturned the decision of the high court, reiterating the argument of the sessions court about the consensual sexual intercourse. Furthermore, “no marks of physical injury” and “no cry for help” by Mathura concreted their assertion.
The Supreme Court could not interpret and visualize the trepidation and trauma of a young girl in custody sexually assaulted by the constables who were in a position of authority. Further, the Apex Court categorized sexual intercourse between the powerless young girl and two well-built constables as a “peaceful affair”. The criticism received by the judgment legally and socially through protests and letters to CJI which led to the reforms in rape laws and the Criminal Amendment Act, 1983.
The aftermath of the Mathura Case highlighted the need for a legislation which is sensitive to the victims. These developments led to the amendments brought under the Indian Penal Code and Indian Evidence Act. Section 376 (a) to (d) were added under the IPC which recognized custodial rape as a punishable offence along with other provisions. Further, a clause to protect women who are of unsound mind and intoxicated was added. Also, the burden of proof was shifted from the victim to the offender. Further, section 114(A) was added in the Indian Evidence Act. Moreover, it led to the abolishment of publication of victims\' identity in rape cases.
Developments in Rape Laws from the Nirbhaya case
The Nirbhaya Rape Case (Mukesh & Anr. v. State and ors.) was one of the darkest hour of the Indian society and Indian judiciary. Further, it is remembered for the anger and exasperation it ignited and how it galvanized the Indian society to protect its daughters. On December 16th, 2012 a twenty-three year old girl, Nirbhaya (pseudonym provided to her to protect her identity - meant “fearless”) was brutally assaulted and raped by six men in a bus. On December 29th, 2012 she was declared dead due to multiple organ failures.
As the news of the rape spread, outrage erupted from men and women from different sections of the society. Further, international resentment was observed and severe penalty to the perpetrators was demanded. Observing the outrage and widespread protests, two committees - the Justice Verma Committee and the Usha Mehra Committee were formed as to propose legal reforms and to suggest ways to tackle sexual violence and to ensure speedier justice.
Following the report submitted by the Justice Verma Committee, the Criminal Amendment Act, 2013 was passed which brought much needed changes in the substantive and procedural laws dealing with rape. Before Nirbhaya, the rape was defined as whenever a man had sexual intercourse with a woman without her consent and a few other circumstances. The aftermath of Nirbhaya gave a much wider definition to rape, which included all types of non-consensual penetration which are in a sexual nature. The new definition does not necessarily include penis but penetration by any object to any extent into the mouth, vagina, urethra or anus of a woman. Thus, the scope which earlier narrowed to only peno-vaginal intercourse has been widened. The application of mouth to any personal part of the woman has also been identified under rape. Therefore, the section 375 of IPC has been widened to all forms of oral, vaginal and anal sex which violates the dignity of woman.
Prominent changes were observed firstly, in the section 376 of IPC - dealing with punishment for rape, with the punishment rape being imprisonment for not less than 10 years and which may increase to imprisonment for life. Punishment of gang rape was included rigorous imprisonment for 20 years, which may extend to a lifetime. Secondly, section 376A enabled rigorous punishment of imprisonment of not less than 20 years, or imprisonment for life, or death, if rape leads death of the women or women being left in a ‘persistent vegetative state’. Thirdly, section 376E allowed punishment to repeated offenders who were subsequently convicted for offences under 376A and 376D, in which the repeated offenders will be either punished with imprisonment for life or even death. Lastly, the Criminal Amendment took a giant leap and deleted section 376(1) and 376(2) of the IPC which allowed the courts to reduce the sentence “for adequate and special reasons to be mentioned in the judgment”.
The judiciary further, understood the importance of punishing the police officials who fail to record any information given to him which is related to rape. Thereby, the newly introduced section 166(A) of the IPC punishes such “public servant” who fails to record such information. Furthermore, the introduction of section 166(B) of the IPC means that no public or private hospital can refuse to treat a rape victim. Also, importance was given to the need of speedy justice to rape victims through section 309 of the Cr.P.C which provides expeditious and day-to-day continuance of proceedings for cases of rape and other analogous offences. Another eminent recommendation of the Verma Committee of not only recording the victim\'s statement before the magistrate but also treating the statement of victim as examination-in-chief, was accepted by the government and was brought up in the section 164 of Cr.P.C.
The Criminal Amendment also gave a legal domain to various new offences of sexual harassment such as voyeurism, disrobing women, stalking and voluntarily throwing acid have all been made punishable under the various sections.
Moving Forward: Conclusion
The development of rape laws in India have come a long way. But there are still a few issues or matters that still needs to be discussed by the intelligentsia such as the gender-specific nature of rape laws in India and the concept of marital rape. The law is said to be dynamic, which changes itself with the needs of the man, but that has not been the case of rape laws in India. The need of changes are only discerned when one of our very own suffers. The victims of rape will keep on increasing, unless we allow the law to work in all its dynamism and make necessary changes accordingly. The judiciary cannot be the only party to be blamed, every rape that happens in the country is a cry for help for an attitudinal change in the Indian society. There is an urgent need to transform the society from its misogynist attitude and paternalistic ethos. However hard we strive towards modernization, India will only be called a modern society when we make radical changes in our laws and attitude to protect our daughters.
References :-
1. Tukaram v. State of Maharastra, AIR 1979 SC 185
2. Mukesh & Anr. v. State and ors., [2017] 2 SCC [Cri] 673
3. Sakshi Rewaria, ‘Critical Analysis of Rape Laws in India and Judicial Opinion’ (Latest Law) <https://www.latestlaws.com/articles/critical-analysis-of-rape-laws-in-india-and-judicial-opinion-by-sakshi-rewaria/#_ftn6> accessed on 13 April 2020
4. Shalu Nigam, ‘From Mathura to Farooqui Rape Case: The Regressive Patriarchy Found its way back’ (Counter Currents, 9 October 2017) <https://countercurrents.org/2017/10/from-mathura-to-farooqui-rape-case-the-regressive-patriarchy-found-its-way-back#_edn1> accessed on 12 April 2020
5. Tina P. Lapsia, ‘Impact of the “Nirbhaya” rape case: Isolated phenemenon or Social Change’ (2015)<https://opencommons.uconn.edu/cgi/viewcontent.cgi?article=1458&context=srhonors_theses> accessed on 12 April 2020
6. Rajesh Talwar, ‘Courting Injustice: The Nirbhaya Case and its Aftermath’ (published in 2013, Hay House Publishers)
