INTRODUCTION
“While a murderer destroys the
physical frame of the victim, a rapist degrades and defiles the soul of a
helpless female."
- Justice Arjit Pasayat
Crime has existed for
centuries in many forms. But the one related to women and children speaks for
greater sensitivity to human suffering which demands greater justice. Over the
years, women have waged a determined struggle against such violence and
succeeded in bringing about the changes in law and its implementation by
sensitizing the judiciary, the police and the society at large.
India boasts of a culture dating
back to thousands of years where women were treated with respect. It is
ironical that men worship goddesses and yet go back home and physically abuse
their wives. Violence against women ranges from severe oppression to abuse,
aggression and exploitation. It is known as female infanticide, neglect and
undernourishment of the girl child, denial of education to girls, rape,
pre-puberty marriage, wife- beating and harassment of a bride leading to her
suicide or murder.
Crime
against Women
Despite existence of a number of special legislations for
providing protection to women, the proportion of crime against women has
deteriorated. Women continue to be victims of various types of crimes. Although
Women may be victims of any of the crimes such as `Murder', Robbery',
`Cheating', etc, only the crimes which are directed specifically against
Women are characterised as `Crime against Women'. These are broadly
classified under two categories.
The Crimes under the Indian Penal Code (IPC)
- Rape (Sec. 376 IPC)
- Kidnapping & Abduction for different purposes (Sec. 363 - 373 IPC)
- Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)
- Torture, both mental and physical (Sec. 498-A IPC)
- Molestation (Sec. 354 IPC)
- Sexual Harassment (Sec. 509 IPC)
- Importation of girls (upto 21 years of age) (Sec. 366-B IPC)
The Crimes under the Special & Local Laws (SLL)
Although all laws are not gender specific, the provisions
of law affecting women significantly have been reviewed periodically and
amendments carried out to keep pace with the emerging requirements. The gender
specific laws for which crime statistics are recorded throughout the country
are
(i)
Immoral Traffic (Prevention) Act, 1956
(ii)
Dowry Prohibition Act, 1961
(iii)
The Child Marriage Restraint (Amendment) Act, 1979
(iv) Indecent Representation of Women
(Prohibition) Act, 198
(iv)
Commission of Sati (Prevention) Act,1987
Reported Incidents of crime
A total of 1, 40,601 incidents of crime against women were
reported in the country during 2003 compared to 1, 43,034 during 2002 recording
1.7% decline during 2003. These crimes had reported continual increase during
the year 1999 to 2001 with values at 1,35,771, 1,41,373 and 143, 795 cases respectively
and declined during 2002 and 2003 with 1,43,034 and 1,40,601 cases
respectively. Andhra Pradesh, accounting for nearly 7.3 per cent of the
country’s population, has accounted for 13.1% towards total incidents of crime
against women in the country by reporting 18,382 cases. Madhya Pradesh, with
nearly 5.9% share of country’s population has accounted for 10.3% of crime
against Women by reporting 14,547 cases during the year.
Crime Rate
The rate of crime has also declined by 2.9 per cent from
13.6 in 2002 to 13.2 during the year 2003. Andhra Pradesh, Madhya Pradesh and Delhi were the top three
States in
the order of crime rate at 23.6, 23.0 and 22.1
respectively.
RAPE
LAWS IN INDIA
"The
law of rape is not just a few sentences. It is a whole book, which has clearly
demarcated chapters and cannot be read selectively. We cannot read the preamble
and suddenly reach the last chapter and claim to have understood and applied it."
-
Kiran Bedi[1].
Though the law is said to
grant justice to the innocent, the same is sadly not true in case of rape
victims. The laws are not very just and to top it they are in urgent need of a
review. Till time it happens rape victims have little solace….
Justice prides herself on
being blind to everything but the truth - yet as far as rape is concerned; the
facts paint a different picture. Rape laws in India are extremely antiquated.
Although the laws outline the crime in clear terms, the courts are filled with
people who favour the accused and challenge the veracity of the victim’s
allegation.
From
Mathura
to Sakshi
The Mathura rape case[2]
galvanized the women's movement into asking for reforms of the criminal law
that dealt with rape. In 1983, the government passed the Criminal Law Amendment
Act, which created a rebuttal presumption in cases related to custodial rape.
The government also made amendments stipulating that the penalty for custodial
rape should not be less than seven years' imprisonment; and it provided for in
camera proceedings and made the disclosure of the victim's identity a
punishable offence.
These amendments were not
enough to stem the rise in the number of cases of sexual violence against
women. One crucial defect in the law was the definition of rape under Section
375[3] of
the Indian Penal Code (IPC), which took into account only penile-vaginal
penetration. Other physical and mental injuries were left to be dealt with
under Sections 354[4] and 509[5] of
the IPC as `outraging the modesty of a woman'[6].
In Writ Petition (Crl.)
No.33 of 1997, the petitioner, “Sakshi[7]”
an organisation interested in the issues concerning women, approached the
Supreme Court of India inter alia for directions concerning the definition of
the expression “sexual intercourse” as contained in section 375 of the Indian
Penal Code.
The Supreme Court by its
order dated 13th January,
1998 directed the Law
Commission to indicate its response with respect to the issues raised in
the above writ petition. The Commission
filed an affidavit dated 28.7.1998 setting
out in extenso the portions of its 156th Report on the Indian Penal Code
dealing with the issues in question. In
the said Report, the then Law Commission (14th Law Commission) did not agree
with the viewpoint of the writ petitioners except in certain minor
respects. The Supreme Court was inclined
to agree with the submissions of the writ petitioners that the contents of the
156th Report did not deal with the precise issues raised in the writ petition.
On the directions of the Hon’ble Court, the
petitioner drew up a note containing the precise issues involved in the
petition. The Commission was asked by
the Hon’ble Court
by its order dated 9th
August, 1999 to examine the said issues afresh. The Court observed that the isses needed a
thorough examination. By the said order
dated 9th August, 1999,
the Hon’ble Court
requested the Law Commission “to examine the issues submitted by the
petitioners and examine the feasibility of making recommendations for amendment
of the Indian Penal Code or deal with the same in any other manner so as to
plug the loopholes”.
Recommendations of 172nd Law Commission Report
- The first significant change recommended by the Law Commission is that the word rape itself has been replaced by sexual assault. This has been made into one category clubbing it with outraging modesty. Previously, the vague definition and interpretation of the term had become an excuse for appealing for lighter punishment. For instance in one case, where one Major Singh had molested a seven-month-old baby girl, each member of the panel of judges had a different understanding. One ‘learned’ judge asked how could an infant girl have any modesty at all that could be outraged? While to another judge, modesty lay in the eyes of the beholder and his intention in outraging it
- Secondly, instead of restricting rape to sexual intercourse, now, other sexual acts, including penetration of objects like sticks etc., (often used in police torture), would be considered as sexual assault. This is also keeping in mind child rape where penis vagina penetration may not have taken place.
- A new section on Unlawful Sexual Contact is recommended for insertion (376E) and section 377 on unnatural offence is recommended to be deleted. Some procedural changes have been recommended such as the FIR should be recorded by a female police officer, government servant or in the presence of a female social worker, changes regarding medical examination of the victim and the manner of recording confessions and statements.
- It is clear that the above changes still leave ample scope for the major loopholes…that a woman has to prove that she did not give consent and give corroborative proof for this. The Law Commission has not accepted that ‘consent’ be replaced with ‘unequivocal voluntary agreement’.
- Marital rape still is not recognized. In addition, a campaign has begun protesting another drawback of the LCI recommendations—that the law is now being made gender neutral. Bearing in mind child sexual abuse, which includes abuse of boys, the law is proposed to be gender neutral. The law proposes to club women, children and homosexuals, each of whom are oppressed in different ways into the same category. In the name of broadening the scope of sexual abuse this recommendation only complicates matters. This opens the scope for men to charge women with sexual assault. Indian society has such a strong patriarchal bias, and the level of politics is so degenerate that it is not a far-fetched thought that such a provision will be misused. More seriously, the point is that each of these categories have their specificities and need special provisions to deal with them. Child sexual abuse is a serious social problem in India, and there is a need for a separate law to deal with it. Homosexual assault and abuse is an issue in which recommendations have been made without consulting those concerned groups or discussing the problems that are being faced. Most important in India, where physical and sexual assault of women is so rampant, and a major part of it socially and politically legitimized, what is the purpose of changing provisions on rape to make them gender neutral? Such an approach is divorced from the Indian social and political reality. Many women’s groups have also opposed this recommendation.
- Regarding punishment for sexual assault, the LCI recommends enhancement of the minimum punishment to seven years. With regard to sexual assault by a police officer, by a public servant, i.e. custodial rape and in the case of sexual assault of a pregnant woman, a minor or a gang sexual assault, the minimum punishment is suggested to be ten years. Section 376A recommends that if a man who is separated from his wife and commits sexual assault on her the minimum punishment will be two years.
- Sections 376B to D pertaining to sexual assault by public servants, superintendents of jails and remand homes, hospital staff or management member with any woman in their custody/institution/hospital recommends the minimum punishment to be not less than five years.
- A new section 376E is suggested to be added about unlawful sexual contact (colloquially called eve-teasing or molestation) and simple imprisonment recommended as punishment.
Supreme Court in Sakshi’s Case
The Hon’ble Supreme Court
in Sakshi
v. Union of India[8]
held that:-
- In respect of the foreign precedents cited by the petitioner in support of its petition, the Supreme Court observed that the value of those precedents is to be construed based on the context in which it was used;
- In the absence of municipal laws, international treaties ratified by India can be taken into account for framing guidelines in respect of enforcement of fundamental rights. When laws already exist, subsequent ratification of International treaties would not render existing laws ultra vires of treaties in case of inconsistency;
- It is equally well settled that a statute enacting an offence or imposing a penalty is to be strictly construed. The fact that the enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in in it a meaning broader than they would ordinarily bear;
- Prosecuting an accused under the enlarged definition of Article 20(1) of the Constitution, which says that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to penalty greater than that which might have been inflicted under the law in force at the time of the offence;
- Giving a wider meaning to section 375 IPC will lead to serious confusion in the minds of prosecuting agencies and courts, which instead of achieving the object of expeditiously bringing a criminal to book may unnecessarily prolong the legal proceedings and would have an adverse impact on society as a whole, and therefore, it would be in the larger interest of the state to alter the definition of the state to alter the definition of the stateto alter the definition of ‘Rape’ by a process of judicial interpretation;
- For the reasons given above, the special leave petition was dismissed.
In Sakshi’s case, the Supreme Court did not interpret the provisions
of Section 375 IPC to include all forms of penetration such as penile/vaginal
penetration, penile/oral penetration, penile/anal penetration, finger/vagina
penetration, finger/anal penetration, and object/vaginal penetration within its
ambit. Instead, the judges sought refuge behind the strict interpretation of
penal statutes and the doctrine of stare
decisis - a view that any alteration [in this case, of the definition of
rape] would result in chaos and confusion.
The rule of strict
interpretation does not also prevent the court from interpreting a statute
according to its current meaning and applying the language to consider the
recent scientific developments.
In the past, however,
judges have actively sought the spirit of the law, and not just its literal
wording. This activism has greatly benefited powerless minorities, such as
bonded labourers, prison inmates, sex workers and others crusading for
protection of their human rights. Those hoping for such activism from the
judges this time were disappointed. One reason for the judges' reluctance to
make a liberal interpretation could be that for some time now, there has been a
significant debate ongoing that activist judges have overstepped the boundaries
of the judiciary and impinged on legislative matters.
Concern over such
criticism is understandable. But at the same time, the courts should recognize
that the legal system is an effective delivery system of the benefits the law
guarantees, especially when the beneficiaries are the weaker sections of
society. There is precedent for such an expanded view. For example, while
dealing with a case of rape of an eight year old girl in Madan Gopal Kakkad v. Naval
Dubey, the Supreme Court acknowledged the severity of the crime of child
rape and saw fit to use the "sword of justice" to punish the criminal
under Article 376 IPC in a case where there was only partial penetration of the
victim. The Court opined:
Though all sexual assaults
on female children are not reported and do not come to light there is an
alarming increase of sexual offences on children. This is due to the reasons
that children are ignorant of the act of rape and are not able to offer
resistance and become easy prey for lusty brutes who display the unscrupulous,
deceitful and insidious art of luring female children and young girls.
Therefore such offenders who are a menace to civilized society should be
mercilessly punished in the severest terms.
The constitution endows
the Supreme Court with a residuary power under Article 142 power to pass such
decrees or make such orders as are necessary for doing complete justice in
matters before it. The role that the Apex
Court plays under Article 142 is plainly that of a
'problem solver' in nebulous areas of the law. This provision permits the
Supreme Court to do more than what the letter of the law requires; activism,
therefore, can be undertaken with sure legal footing.
Judges are expected to be
circumspect and self-disciplined in the discharge of their judicial functions.
But the fact is, judicial activism in India is partly the consequence of
a legislative vacuum, especially in the field of human rights. Where lawmakers
are inattentive to the rights of citizens, the Constitution empowers the Apex Court to be,
at times, plainly legislative in nature. The rule of strict construction is not
a rule to be applied universally and, in any event, should not "leave
loopholes for the offender to sneak out of the meshes of the law and criminal
jurisprudence must depart from old canons defeating criminal statutes and
calculated to protect the public health."
The rule of strict
interpretation does not also prevent the court from interpreting a statute
according to its current meaning and applying the language to consider the
recent scientific developments and the knowledge it provides us with. Thus, in
R v. Ireland
(House of Lords, 1997), psychiatric injury caused by silent telephone calls was
held to amount to 'assault' and 'bodily harm' under Section 20 and 47 of the
Offence Against the Persons Act, even though at the time of the enactment of
the Act - in 1861 - the field of psychiatry didn't include this understanding.
Even international law now
says that rape may be accepted as "the sexual penetration, however slight,
of the vagina or anus of the victim by the penis of the perpetrator or any
other object used by the perpetrator; or of the mouth of the victim by the
penis of the perpetrator; by coercion or force or threat of use of force
against the victim or a third person." Similarly, Article 2 of the
Declaration on the elimination of Violence Against Women reads as follows:
Violence against women shall be understood to encompass but not limited to ...
Physical, sexual and psychological violence occurring in the family, including
battering, sexual abuse of female children in the household, dowry related
violence, marital rape, female genital mutilation and other traditional
practices harmful to women, non-spousal violence and violence related to
exploitation.
Fellow commonwealth nation
Singapore's
Penal Code contains a provision identical to that of Section 377 of the Indian
Penal Code. In a judgment rendered by the Court of Appeal in Singapore it
was held that forced anal intercourse represented the gravest form of sexual
abuse and by its very act contained an element of violence. Australian law
defines rape as sexual intercourse without consent in the Criminal Law
Consolidation Act in Section 48. Sexual intercourse includes anal and oral
intercourse in Section 5 under the same Act. Judgments by the Australian courts
reveal that insertion of objects into the victim's vagina and anus amount to
rape. The definition of rape states that sexual penetration of the body is
necessary but the slightest penetration of the body of the female by the male
organ is sufficient. Emphasis on the word "slightest" reveals the
intent behind the definition is to give the victim and not the criminal the
benefit of the doubt.
Rape as a Psychological Assault
The law relating to
different aspects of trial and punishment of the offence of rape has undergone
a sea change in our country due to the consistent efforts of the courts. The
case-law is replete with decisions in which the traditional approach of
insisting on corroboration of the statement of the victim and of absence of her
consent has been categorically abandoned by the courts. The Supreme Court has
now added a new dimension to the law by implicitly admitting that rape is not
simply a physical assault but a psychological violence.
Courts used to take the
position that if there were no proof of physical assault there would be no
rape. The presumption that if no physical injury is evident on the victim, no
sexual intercourse has taken place or rape has not been committed, ignores the
fact that rape is not only an offence involving physical violence, but also
psychological violence. This too when existing laws recognize mental agony and
psychological violence as offences against the body. The victim of rape besides
being physically ravished is psychologically wounded. It is the feeling of
having been exploited and violated more than anything else which leaves
lifelong scars on the mind of the victim. Perhaps this trauma has been
recognized in a case where it was held that the absence of injuries on private
parts of the prosecutrix would not rule out her being subjected to rape[9]. Krishna Iyer., J, who is famous for his
humanistic approach towards law, observed in Rafiq case[10]:
"When no woman of honour will accuse another of rape since she
sacrifices thereby what is dearest to her, we cannot cling to a fossil formula
and insist on corroborative evidence, even if taken as a whole, the case spoken
by the victim strikes a judicial mind as probable. ... When a woman is ravished
what is inflicted is not merely physical injury, but 'the deep sense of some
deathless shame'. ... Judicial response to human rights cannot be blunted by
legal bigotry."
In a similar spirit the
Supreme Court in Sheikh Zakir case[11]
has held:
"The absence of any injuries on the person of the complainant may not by
itself discredit the statement of the complainant. Merely because the
complainant was a helpless victim, who was by force prevented from offering
serious physical resistance, she cannot be disbelieved."
In the light of the
precedents medical evidence in cases of rape has grown in importance, so much
so that sometimes the accused tries to use it to his advantage. The question
thus arises whether giving disproportionate importance to medical evidence
amounts to bringing back the rule of corroboration. Earlier the victim's
testimony had to be corroborated in material particulars. After the dismantling
of this rule, now corroboration by medical evidence seems to have come to the
fore. In Gopal Kakkad case[12],
where the question as to what constitutes sexual intercourse and rape was
discussed, the Apex Court
has put the matter in perspective[13]:
"Sexual intercourse:
In law, this term is held to mean the slightest degree of penetration of the
vulva by the penis with or without emission of semen. It is therefore, quite
possible to commit legally the offence of rape without producing any injury to
the genitals or leaving any seminal stains."
It was further held in
this case: (SCC p. 222, para 37)
"To constitute the offence of rape it is not necessary that there should
be complete penetration of penis with emission of semen and rupture of hymen.
Partial penetration of the penis within the labia majora or the vulva or
pudenda with or without emission of semen or even an attempt at penetration is
quite sufficient for the purpose of law. ... In such a case the medical officer
should mention the negative facts in his report, but should not give his
opinion that no rape had been committed. Rape is a crime and not a medical
condition. Rape is a legal term and not a diagnosis to be made by the medical
officer treating the victim. The only statement that can be made by the medical
officer is that there is evidence of recent sexual activity. Whether the rape
has occurred or not is a legal conclusion, not a medical one."
Thus what follows from
this judgment is that although medical evidence is relevant to establish the
factum of occurrence of sexual intercourse, it is to remain restricted only to
the factual aspect of the offence. The legal aspect whether rape was committed
has to be established in the light of testimonial evidence, including the
statement of the victim.
Malimath Committee[14]
on Section 375
It is clear from the
wordings of Section 375 that sexual intercourse with a woman under
circumstances falling under any of the six of the descriptions given in the
section constitutes an offence of rape. Normal sexual intercourse with
voluntary consent of the woman above sufficient to constitute the sexual
intercourse. There is no definition of rape or sexual intercourse. The
explanation only indicates the point of time or stage in the sexual act that is
sufficient to make the sexual act an offence of rape.
The committee is also very
much convinced with the contentions of the Sakshi that the definition of rape
under section 375 should be interpreted to include all other forms of forcible
penetration including penile/oral, object or finger/vaginal and object or
finger/anal and such acts constitute serious invasion of the precious rights of
the woman and should be punishable with adequate sentence. The committee
therefore recommends to broaden the definition of rape under section 375 as per
Sakshi’s line of contentions.
Marital Rape[15]
When one mentions the word rape, the tendency is to
think of someone who is a stranger, an evil, malicious person. No one
ever thinks of rape in the context of marriage. Women themselves find it
difficult to believe that a husband can rape his wife. After all, how can a man
be accused of rape if he is only availing of his conjugal rights?
Despite the unwillingness to recognise
marital rape as a crime, the fact remains that marital rape is prevalent
throughout society. Women’s bodies are outraged, regardless of their
educational qualifications, class or status. Women themselves don’t make a noise
about it or talk about their experiences. This is because cultures worldwide
discourage their women from openly discussing sexual matters, let alone within
marriage. Most women don’t even think of rape by their husbands as marital
rape.
Social beliefs are only reinforced by
the lacunae in the law. As of now, Indian law contains no provisions for
helping abused wives and penalising guilty husbands. Women have no legal
recourse. What is worse, women are not even aware that they don’t have to
meekly give in to their husband’s demands.
According to section 375 of the Indian
Penal Code, "sexual intercourse by a man with his own wife, not being
under 15 years of age, is not rape." On the other hand, the Criminal
Procedure Code states that `it is rape if the girl is not the wife of the man
involved and is below 16!’ Which means that if the girl is not the wife of the
man involved and is below 16, it is rape even if she consents? Whereas if she
is a wife and below 15 years of age, it is not rape even if she does not
consent.
A woman who has been raped by her
husband cannot count on the legal system coming to her aid. Not only are there
no laws to protect her interests, the large number of loopholes make it
difficult for her to seek protection under the law. These include:
- Though protection of the dignity of women is a fundamental duty under the Constitution, domestic violence and rape do not come under the definition of dignity.
- A husband cannot be prosecuted for raping his wife because consent to matrimony presupposes consent to sexual intercourse.
- Though women's rights advocates secured a legal clause in 1983 under which it is unlawful for a man to have sexual intercourse with his separated wife, pending divorce, the courts are reluctant to sentence husbands in spite of the law.
Indian rape legislation
(Penal Code 375) specifically exempts marital rape. This allows husbands to
have complete sexual control over their wives, in direct contravention to Human
Rights regulations. Only those married women who are separated from their
husbands are covered by the rape legislation. The law simply echoes what social
mores often take for granted: that women have no right to their own bodies;
their will is subject to that of their husband.
Marital Rape has to be considered as a punishable
offence for the following reasons:
- Since intercourse has got an element of compulsion by the husband, it is an act against the will of the wife, which amounts to rape.
- Since consent of the wife is not obtained as the husband considers it a part of marital life and wife is bound to accept or her consent is not required, amounts to forcibly obtaining consent, which is to be considered as rape.
- Wife is just considered as an instrument to satisfy the infatuated beastly desire of husband, though she is physically and psychologically not willing to have or wish or desire to take part in the act of intercourse.
- When wife has got every reason to say ‘No’, since she strongly suspects that her husband is affected with veneral diseases, AIDS and proved HIV Positive.
- It amounts to be a crime in terms of human rights also when a wife’s personal liberty, freedom and dignity are made to suffer or hamper and she is subjected to meek surrender to quench the thirst of her husband’s sex much against her will and wish.
- Political liberty, economic freedom, societal elevation on account of women’s empowerment which are making women more independent with an air of self-respect, certainly render any act of compulsion and coercion to accept sex with her husband against her being not prepared for that act, she is bound to lead to friction, depression and dejection. This situation may likely to end in seeking divorce and thus eventually shattering the institution of family in the society.
- Women who have been battered and raped by their husbands may suffer physical consequences including broken bones, black eyes, bloody noses, and knife wounds that occur during the sexual violence which have been perpetrated by their partner who should be made strictly and severely liable for the same.
- The psychological effect of being raped by one's partner is another form of mental agony caused to the victim, which needs to be catered to. To put it succinctly the women who are raped and raped by someone whom they once presumably loved and trusted, it is not surprising that survivors of this seem to suffer severe and long-term psychological consequences.
- Marital rape may be even more traumatic than rape by a stranger because a wife lives with her assailant and she may live in constant terror of another assault whether she is awake or asleep.
- Women have the right to bodily integrity, which incorporates the right to refuse their partner to have sex with them against their will as this right is already adumbrated under Article 21 of the Constitution of India.
All over the world, steps
are being taken to ensure that marital rape is regarded as an offence. In India, however,
we haven’t even begun to admit that marital rape is a reality, let alone an
unpleasant one.
Punishment for Rape Vis-à-vis Death Penalty
The normal punishment for
rape is a minimum 7 to 10 years imprisonment and the maximum is life
imprisonment and a fine. The court has the power to impose a sentence for less
than the minimum. To do this, it must explain the special reasons for giving
lighter punishment in its judgment. Needless to say the court jumps at any
opportunity to do so! Either the rapist is condoned for being too old or too
young, fearing that his future life may be spoilt, or because he is the sole
breadwinner and his family has to be considered, and so on. The law provides
for stricter punishment i.e. rigorous imprisonment for 10 years or life plus a
fine, under the various circumstances of custodial rape, charge of rape by a
pregnant woman, girl under 12 and gang rape.
There have been also several
shocking instances that have given rise to the feeling that death penalty
should be prescribed as a punishment for the offence of rape so that it acts as
an effective deterrent. However international opinion is steadily emerging in
favour of abolishing the death penalty. The Supreme Court of India had ruled
that in respect of serious offences of murder imprisonment for life should be
the normal punishment and that it is only in rarest of rare cases that death
penalty should be imposed. Those who are pleading for death penalty for the
offence of rape feel that the punishment that the remedy should not be worse
than the disease. Death penalty is irreversible. Any erroneous decision would
lead to disastrous consequences. Judges are therefore likely to expect a much
higher standard of proof. This may result in further lowering the rate of
conviction. Deputy Prime Minister L.K. Advani has on more than one occasion
publicly declared that rapists should be given the death sentence. There is a
broad consensus among women's groups that such a move would be
counter-productive. According to a report on the study of rape laws released by
the NCW in 2000, the rate of convictions for rape, already as low as 4 per
cent, would decrease further if rape was made an offence punishable by death. Besides
if the rapist knows that rape carries death penalty he may be tempted to kill
the victim so that she will not be available to give evidence against him.
After giving its anxious consideration to all aspects and in particular the
interest of the victim, the committee is not persuaded to recommend death
penalty for the offence of rape. Instead the committee recommends sentence of
imprisonment for life without commutation or remission.
What really acts as
deterrent is certainty of conviction and not the quantum of punishment that can
be imposed. Unfortunately large number of cases relating to offences of rape
end in acquittals. Besides they take a long time for disposal. Therefore what
is necessary is to expedite investigation and trial of cases involving offences
of rape and other sexual offences against women.
Section 377 of the IPC
Decriminalising private,
consensual adult sexual behaviour, the Indian government feels, might open the
floodgates of delinquent behaviour. By refusing to repeal Section 377 of the
Indian Penal Code[16],
the government is reinforcing 150-year-old strictures disapproving sex for
pleasure and not procreation. Shouldn’t the State allow consenting adults to
make their own sexual choices?
On September 9, 2003, the Union
Government filed an affidavit before the Delhi High Court in response to a
petition filed by The Naz Foundation (India) Trust asking the court to
decriminalise private, consensual adult sexual behaviour. Under Section 377 of
the IPC, “whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal” can invite a maximum sentence of life
imprisonment and fine.
“Personal is political”
has long been a rallying point for the women’s movement, and never has it been
as applicable as in the realm of sexuality. From abortion rights to the use of
contraception, women’s groups have campaigned for the right to control
sexuality and bodily integrity. The vesting of the State with the power to police
and criminalise the sexual behaviour of its adult citizens has also not gone
unchallenged. The Aids Bhedbhav Virodhi Andolan (ABVA) in 1994 initiated one of
the earliest attempts to demand a repeal of the archaic Section 377. Both
petitions came up in the context of the spread of HIV/AIDS, and the need to
decriminalise homosexuality in order to promote safer sex. The continued
persecution of homosexuals, namely, the denial of the right to freedom of
association, right to freedom of expression and access to information, and the
right to be treated equally under the law makes this community extremely
vulnerable to HIV and AIDS.
The issue has come up once
again with the Centre’s obdurate position in the Naz petition.
The proposed changes in
law, the Centre said, “can well open the floodgates of delinquent behaviour and
be construed as providing unbridled license for the same”. The government hopes
to “provide a healthy environment in the society by criminalising unnatural
sexual activities”.
Section 377 and the
government’s reluctance to repeal it sums up the historical attitude of the
Anglo-Saxon legal system toward non-procreative eroticism, usually going under
the broad – if inaccurate — term ‘sodomy’. The proscription of sodomy in the
English tradition began in 1533 when King Henry VIII adopted contemporary
church doctrine into a system of laws at the time of the English withdrawal
from the Catholic Church. Sodomy became both a sin and a crime, since
ecclesiastical law recognises no distinction between the concepts of ‘sin’ and
‘crime’. Sodomy included any form of non-procreative acts including
masturbation, oral and anal sex.
Originally, sodomy
referred only to two sexual acts: anal intercourse between two men or a man and
a woman, or sexual intercourse between a human being and an infrahuman animal
of the opposite sex. Due to the profound ignorance of biology of people in
medieval times, it was thought that bestiality could lead to the conception of
half-human, half-beast offspring.
The Indian legal system
has not only taken on this perspective, but has added its own brand of
prudishness. The psychological discomfort of repressed or moralistic
individuals from centuries before has created a jurisprudence that relegates
the enjoyment of non-procreative physical intimacy to the status of
criminality. While Section 377 does not refer specifically to homosexuality,
the outlawed ‘acts’ can be construed as such, and male homosexuals have borne
the brunt of this archaic law, often being subjected to police harassment and
extortion due to their sexual preference.
By equating consensual sex
between adults with ‘delinquent behaviour’, the government reinforces the
biblical strictures disapproving sex for pleasure and not procreation. The IPC,
enacted in 1860, was based on the English law prevalent at that time. While
English law has moved on, enacting, in 1967, the Sexual Offences Act which
decriminalised homosexual acts between consenting adults, Indian law continues
in its outdated form. This position is untenable, since the Indian government
itself no longer supports the assumption of sex-for-procreation, given that it
invests large amounts annually in promoting measures of birth control and
contraception for population control.
Despite the widespread
fear that the repeal of Section 377 will unleash the floodgates of rampant
homosexual activity, out of the 46 cases filed under Section 377 studied by
Alok Gupta and Lawyers Collective, only six prosecute male-male adult anal
intercourse. And only one of them prosecuted consenting adults. This was
decided in 1935, DP Minwalla v Emperor[17].
Moreover, three of these six cases were spread over ten decades and the other
half just in the 1990s. This trend in the last decade indicates the increased
enforcement of the law, indicating clearly that Section 377 is anything but a
dead law. While in the recent past, the law has almost never been used to
prosecute consensual adult homosexual sex, illustrating the redundancy of
criminalising consensual homosexual acts, the law has undoubtedly been used to
harass, intimidate and extort money and sexual favours from vulnerable sexual
minorities like male sex workers, hijras and transgendered people.
Fellatio or male-male sex
came to the attention of the law before cunnilingus or sex between women,
because of differences in sexual behaviour. As a rule, males are more likely to
engage in sexual activity in public or semi-public places than are females.
Moreover, sex between women was viewed as an oxymoron. In a case from Scotland,
dating to 1811, the House of Lords decided, regarding a charge of cunnilingus
between two women, “the crime here alleged has no existence”. While lesbians
and bisexual women in the country are organising and demanding visibility and
recognition, the current marginalisation probably works in their favour, since
female-female sex is not specifically criminalised.
The question of child
abuse, which is often quoted as a justification for retaining Section 377, is a
complex one. Alok Gupta’s research found that Section 377 has largely been used
in prosecuting cases where anal and/or oral intercourse with children was
involved. There are no Indian laws that specifically criminalise child sex
abuse. A total of 30 cases (more than 60%) deal with child sex abuse.
Section 377 has been
somewhat successful in penalising child sexual abuse and complementing the
lacunas of the rape law, which is woefully lacking in both scope of definition
and implementation. But this does not negate the clear threat the law presents
to the sexual minorities of India,
manifesting itself in harassment, extortion and blackmail by the police, with
no legal protection. The reform of Section 377 requires a collective campaign
demanding reform of all the sexual assault laws of the IPC. Child sex abuse should
be included as an independent category of sexual offence. There is a dire need
to evolve more effective legal formulations as well as procedures to ensure
that sexually abused children are offered the protection of the law, and
perpetrators can be brought swiftly to book.
Similarly, women’s groups
have been demanding a broadening of the definition of ‘rape’ beyond penile
penetration of the vagina. Yet, the emphasis is on ‘non consensual’ acts, and
not ‘unnatural’ acts. Concurrently, it is important that sexual activities
between consenting adults be de-criminalised, and protected under the right to
life, privacy and equality guaranteed by the Constitution of India.
Reacting to the
government’s statement in its affidavit that fundamental rights are subject to
‘reasonable restrictions’, groups like PRISM and CREA working on sexual rights,
in an open letter say, “Restricting the access of millions of citizens to
proper health care, failing to address rampant discrimination on the basis of
their sexual preference, failing to protect them from harassment by the police
and criminalising their consensual sexual acts while hiding behind the fig leaf
of protecting Indian culture, are not reasonable restrictions by any standards.
We urge the government to reconsider its position, bringing it in line with the
requirements of the Constitution of India with regard to Fundamental Rights of
every citizen and with the Universal Declaration of Human Rights.”
Government’s stand on Section 377 of IPC
Moreover, the Central Government
has informed the Delhi High Court that homosexuality cannot be legalised in India as the
‘‘Indian society is intolerant to the practice of homosexuality/lesbianism.’’
Quoting the 42nd report of the Law Commission, it claims the society’s disapproval
was ‘‘strong enough to justify it being treated as a criminal offence even
where the adults indulge in it in private.’’
The Centre was replying to a petition challenging the constitutional
validity of Section 377 of the Indian Penal Code. According to this, ‘‘whoever
voluntarily has sex against the order of nature with any man, woman or animal,
shall be punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years.’’
The Government claimed that
Section 377 of IPC has been basically used to punish child sexual abuse and to
complement lacunae in rape laws. It has rarely been used to punish homosexual
behaviour. Deleting this, the Centre said in its affidavit submitted to the
court today, ‘‘can well open the flood gates of delinquent behaviour and be
construed as providing unbridled licence for the same’’. The petition filed by New Delhi-based Naz
Foundation, an NGO working for the welfare of HIV positive and AIDS patients,
challenged the validity of this provision and urged that homosexuality be
legalised. It argued that due to fear of police action, consenting adult males
having sexual relations were not coming out thereby hampering medical
intervention. Replying to the
petitioner’s allegations that Section 377 violated the right to equality
(Article 14), right to freedom (Art 19) and right to personal liberty (Art 21),
the Centre said ‘‘none of these rights were infringed’’ and that each of them
were subject to reasonable restrictions. Ironically, the Centre also claimed
that it was not for Naz to file the PIL. Only those ‘‘whose rights are directly
affected by the law can raise the question of its constutionality,’’ it said.
The division bench of Chief Justice B C Patel and Justice AK Sikri fixed
December 10 for further hearing after Naz asked for time to prepare a rejoinder
to the government affidavit. Citing
examples of UK
and the USA,
where such sexual preferences are respected, the Centre has pointed out however
that ‘‘it is not the universally accepted behaviour.’’ The petition was filed way back in 2001 and
the court had taken a serious view of the Union Government’s inability to spell
out its stand on homosexuality and asked the Attorney General to give his
opinion. The court had observed that the issue could not be just brushed aside
on the grounds of social morality.
Concentrating its energies
in the right direction – like tackling the ever-growing phenomenon of violence
against women and children -- the government might do well to allow consenting
adults to make their own choices about sexual behaviour.
Supreme Court on Child Sexual Abuse in Sakshi’s case
The Supreme Court in the
case admits that the objective of the questions (asked by defence lawyers) is
that "out of a feeling of shame or embarrassment, the victim may not speak
out or give details of certain acts committed by the accused". The SC also
accepted that the mere sight of the perpetrator induces fear in the mind of the
victim, who is then unable to relate the details of the incident.
Further, the SC has now
directed that a screen (or something similar) may be used so that the victim
does not have to undergo the trauma of seeing the perpetrator. And that victims
should be allowed sufficient breaks as and when required while testifying
during the trial.
"Yes, one could say that this is a landmark judgement in terms of it
facilitating victims to give evidence in court and enhancing incentives to
report the incident. They now don't have to fear being humiliated in court,"
says Karuna Nandy, a lawyer who also
worked on the Sakshi case.
However, Naina Kapur,
Director of Sakshi, is very disappointed. "What is the point of (introducing) procedural changes if the abuse
doesn't fall within the definition of rape or outrage of modesty or 'unnatural
acts' as laid down by our law? I think this was a chance to really get justice
for victims of sexual abuse by widening the definition of sexual abuse. But the
judge (G P Mathur) has missed the opportunity and, by letting the law remain as
it is, has rendered the whole exercise purposeless," she says.
She contends that the main
plea of their PIL had been to get a broader definition of sexual intercourse,
to mean all kinds of sexual penetration on any type of orifice of the body and
not the intercourse understood in the traditional sense. So that sexual abuse
other than what is defined as rape could also be included.
"Our PIL was based on the case of an eight-year-old girl who had been
abused by her father. She had been violated mentally and physically. But rape
laws only recognize sexual crimes involving penile penetration. Here the
violation was oral, anal and involved finger penetration. This is why we wanted
a broader definition and not a rigid technical definition. If the judge wanted,
he could have done this. We gave him several cases from South African and
Canadian courts, the International Tribunal where the law has been broadened to
include all kinds of sexual abuse," Kapur says.
By not legislating a
broader definition, the SC has reflected how far removed it is from reality,
contends Raka Sinha, General Secretary of Angaja Foundation, an organization
working with victims of child sexual abuse and rape. "While I am happy
with the procedural changes like the screen, I am deeply disappointed by the
judgement," she says.
Sinha is concerned that their PIL - filed in SC in May 2004 - also
asking for widening of the definition of sexual abuse in addition to certain
procedural changes, may not be taken up at all now. "I don't know whether
our plea for a separate law on child sexual abuse will be considered now. We
will just have to wait until the hearing (slated to come up in July),"
says Sinha.
Ironically, by its own
admission, the court noted that child sexual abuse is on the rise. Yet, it failed
to clearly define sexual abuse and stated: "An exercise to alter the definition of rape...by a process of judicial
interpretation is bound to result in a good deal of chaos and confusion and
will not be in the interest of society at large..."
Child abuse cases are
still dealt with under the laws on rape (Section 375 of the IPC), sexual
molestation (Section 354) and sodomy (Section 377). According to Kapur, the
narrow understanding and application of rape under section 375/376 IPC only to
the cases of penile/vaginal penetration runs contrary to the understanding of
rape as an intent to humiliate, violate and degrade a woman or child sexually.
Kapur says the law has to understand the sense of violation victims of sexual
abuse experience.
As there is no clear
definition of sexual abuse, victims are largely at the mercy of legal
discretion, says Anuja Gupta of RAHI (Recovering and Healing from Incest), a
support centre for women surviving incest. "Sexual abuse is something
which can no longer be denied and this judgement will help victims open up in
court. But I don't know how far it will act as an impediment," says Gupta.
Despite conceding in his
judgement that "an appropriate legislation in this regard is urgently
required", the judge "hopes and trusts that the Parliament will give
it serious attention and make appropriate legislation".
However, by leaving the
responsibility of bringing legislation against child abuse to Parliament, the
court has shied away from its responsibility to ensure the safety of every
child in the country.
Sections 294, 354 and 509 of IPC
It was only in 1997 that,
in the realm of juridical interpretation, the object sexual harassment of
working women was named and defined (See Vishakha and Anrs v. Union Of India
1997).
This does not imply that
there are no related laws in the Indian Penal Code (IPC) that may be evoked
when a woman is sexually harassed. However, these related laws are framed as
offences that either amount to obscenity in public or acts that are seen to
violate the modesty of women under sections 294[18],
354[19]
and 509[20]
of the IPC. While section 294 IPC is a law applicable to both men and women[21],
the latter two are specifically oriented towards women.[22]
For instance in one case,
where one Major Singh had molested a seven-month-old baby girl, each member of
the panel of judges had a different understanding. One ‘learned’ judge asked
how could an infant girl have any modesty at all that could be outraged? While
to another judge, modesty lay in the eyes of the beholder and his intention in
outraging it.
While legal definitions
refer to crimes that outrage the modesty or insult women, in many Indian states
the category of eve teasing of women finds popular usage. Eve teasing (an
English phrase) refers to all forms of harassment women face in public spaces
that are considered trivial, funny and part of everyday life, thus acting as
normal mechanisms legitimizing harassment by positioning the very presence of
women in public spaces as ‘provocative’. Eve teasing as a cognitive category
and culturally sanctioned practice denotes the tensions that inhere in the
manner in which the private and the public as gendered domains are constantly
redefined. It normalizes and escalates violence against women in public spaces
while simultaneously making invisible forms of violence in the domestic arenas
as the distinction between the two domains is increasingly challenged.
Eve teasing, however, is
not a legal category. Yet at the level of implementation, the police’s
translations in interpreting crimes move between legal and cultural categories,
thereby proffering an important resource in the analysis of the contestation
around sexual harassment. To access the registers on which this translation
proceeds, this paper chooses to examine one of the ways in which the IPC
crimes, sections 354 and 509, have been classified and documented as ‘crimes
against women’, in the Crime in India Reports published by the Crimes Records
Bureau. The very classification of crimes act as a source that indicates the semantic
shifts that have occurred in the articulation of sexual harassment, signifying
the influence of the Indian women’s movement and the global discourses on
women’s rights.
The challenge to the
cultural perception of sexual harassment as eve teasing first came from the
women’s movements in India.
Post the 1980s campaigns against rape leading to the challenge and subsequent
amendment of the rape law in 1983, it was recognized that many forms of
violence against women are normalised by both societal discourses and state
laws. The state, i.e., the law came to be constituted as a powerful signifier
of patriarchy in the 1980s.
Several women’s groups
have suggested that sections 354 and 509 of the IPC be repealed, and the
offences incorporated in a comprehensive bill on sexual assault. The
substantive aspects of the two laws were challenged as it was held that terms
like ‘outraging the modesty’ results in moralistic interpretations that
regulate women’s behaviour rather than act to uphold women’s rights. It has also
been suggested that the offence described in section 294 (making obscene
gestures, etc., in public spaces) ought to be repealed and instead covered by a
new provision defining sexual assault (see Kapur and Khanna 1996). While these
sections have attracted the demand for legal reform, there has been a
simultaneous move to critique and mobilize against eve teasing as a cultural
form of sexual harassment of women.
Section 498-A of the IPC
Matrimonial cruelty is
defined under section 498-A of the IPC[23]
and is very clear from the reading of the provision that any act causing mental
pain to a wife and which drives her to commit an act which is dangerous to her
life will attract the provision. Therefore, the conduct of the above husband or
his relatives will be taken into consideration.
There is presumption in
law that the husband has inflicted cruelty but in fact it is not so. It is
clearly explained in section 375 IPC exception that marital rape is not
punishable. Therefore, a person having sexual intercourse with his own wife
under the age of 15 years will amount to an offence which the law presumes the
offender had inflicted cruelty physically or mentally and he charged for rape
and will suffer life imprisonment if it is established. Therefore a woman being
raped by a man comes under section 375 and a woman being raped by her husband
falls under cruelty. Hence, section 498-A should not be so broadly interpreted
to bring marital rape as an offence under the purview of this section but
instead marital rape shall be made a separate offence or should be merged with
section 375 of the IPC. The cases of alcohol and drug consumers and also sadist
husbands are mostly booked under this section. The evidence of intoxication
requires blood test and such evidence is possible only when the offender is
arrested in night or may take some time to report. Even the test of alcoholism
or intoxication through drugs is becomes difficult if delayed.
Conclusion
Hoping for more justice
for women from the present Government is futile. All the ruling class parties
are deeply steeped in patriarchal values and their elitist class/caste basis
ensures that they legitimize rape as part of their overall subjugation of
society. While giving populist, rhetorical speeches, and calls for the death penalty,
etc., the major parties have condoned all, and even well publicized, cases of
molestation and rape in places like Gujarat, Delhi (anti-Sikh pogrom),
Kashmir, North-East etc. Cosmetic changes in
the law are unlikely to help the rape victim. Besides, the patriarchal biases
within the judiciary, police, and other sections of the establishment will
further retard the process of gaining justice.
Rather than merely
depending on the legal process all democrats must mobilize the masses to take
direct action against the rapists and molesters at the local level. They must
be humiliated and publicly condemned and made to compensate and apologise to
the victim. The victim, on the other hand, needs to be socially and sensitively
assisted to get over the trauma, and her self-confidence restored. While
agitating for changes in the rape laws, social actions like ostracizing
rapists, blackening their faces, the beating up of the rapist publicly, etc.,
could be effective, militant actions.
Yet, in the long run there
is need to understand the link between rape as a weapon of subjugation,
patriarchy and class exploitation. The movement must, in the final analysis,
mobilize women to fight for a change in the basic structure of society that
will eradicate patriarchy, and with it, rape, from the roots.
In light of the multitude
of case law and well evolved jurisprudence on the subject, not altering the
definition of rape merely because "the entire legal fraternity of India,
lawyers or judges, have the definition of India, lawyers or judges, have the
definition contained in Section 375 IPC engrained in their minds ..." is
ludicrous. The Indian Penal Code was drafted at a time when Indians were not
allowed the freedom to think for themselves by the English. It came into force
in 1860 and in the past 140 years has gone through few changes. An independent
democracy should not confine itself to laws made with a bias towards the now
outdated principles of colonial criminal law. The judiciary and the legislature
have a duty to promote the principles enshrined in the Constitution and a
responsibility, however lofty it may seem, to ensure that the perpetrators of
these violent crimes are punished.
Many more rules and
legislations may be implemented and executed to lessen the woes and harassment
of women. But the question remains, how long will women suffer? Due to fear of
criticism and family pressures women generally do not come out in the open
lodge complaints with the police. Instead, they prefer to suffer in silence.
Let us not forget that God created man and woman to live in harmony and also to
complement each other. Man alone can help her in lessening her woes. He has to
understand the psyche of the woman. Cooperation and lending a helping hand in
child rearing and household work, joint decision making and taking care of the
elderly and being more responsible towards the family can definitely help in
creating harmonious relationship between the spouses. Boys at a young age
should be told to respect their sisters and the opposite sex and should be
taught not to treat them as an object of ridicule and harassment. The right
kind of attitude will definitely help in the long run in lessening crimes
against women.
Incest, coerced pregnancy,
mass rape, ethnic cleansing, forced prostitution (comfort women of World War
Two), date rape, marital rape, rape in prison, rape as revenge, political rape,
gang rape, rape in conflict situations and rape as a weapon of war - are not
about violent sex (which may imply consensual sex) but power or sexual violence.
That one out of every five women is a survivor of rape (whose attackers are
mostly known) constitutes the prevalence of rape globally, and 40-60 per cent
of known sexual assaults are committed against girls aged 15 years and younger.
The reality and fear of rape affects women and girls throughout their lives:
gender violence - violence perpetrated against women and girls because they are
female - can occur when they are mere infant, girl, adolescent, woman of
reproductive age to that of an elderly woman. Yet to what extent would the
recognition of the health impacts of rape serve as a preventive, not merely
curative measure in lobbying towards a zero tolerance of gender violence at
state and grassroots levels?
Changing social values -
and globalization - certainly alters the general comprehension of a word. In a
country rife with misconceptions about rape and rape victims, corrupt and
sloppy police work, widespread reports of police mistreatment of victims
including custodial rape, and deeply ingrained cultural and religious
stereotypes, more alertness by the courts is needed so that justice is seen to
be done, and not thwarted by the letter of the law. Sakshi fails that test. Inevitably, then, the Apex Court's ruling this time will not be
an end to this issue
REFERENCES
Books
1.
Nelson, Indian
Penal Code, 7th Edition (1983)
2.
Dr Sir Hari Singh Gour, Penal Law of India, 10th
Ed (1997)
3.
Ratanlal and Dhirajlal, Law of Crimes,
22nd Edition (2002)
4.
Pillai P.S.A., Criminal
Law, Butterworths, New Delhi
(2002)
Articles
1.
Siddharth Narain,
“For an effective law on Rape”,
Outlook Magazine vol.20 Issue. 23
2.
Shivkami
Ramchandran, “More than the letter
of law”, www.indiatogether.org
(Oct-2004.)
3.
Pamela Suresh
Kumar, “Violence Against Women”,
Press Information Bureau Report, March 2003, New Delhi
4.
Swapna Majumdar, “Redefining Abuse”, www.indiatogether.org (June 26, 2004)
5.
Sujata, “Changes in rape Law: How far they will help?”, Peoples March, Volume
4, No. 3, March 2003
6.
Laxmi Murthy, “Unnatural offences and section 377”, Info change news and features,
October 2003.
7.
Kavitha Choudary,
“Being gay will remain a crime, its
reason: our society doesn’t tolerate it”, Indian Express, September 09, 2003
8.
Meenu, “ Rape as a Psychological Assault”, (2000)
2 SCC (Jour) 44
9.
Jyothika Yog, “Supreme Court on Sakshi”, Lawyer’s Collective, Vol.20 no.1
Thesis Referred
1.
Roll no. 92-605, “Offences
Against Women in India,
Post Graduate College
of Law”, Osmania
University, Hyderabad (1995).
2.
Roll no. 92-611, “Matrimonal
Cruelty under Criminal Law”, Post
Graduate College
of Law, Osmania University, Hyderabad (1995).
Reports
3. National Crime Bureau Reports, 2003,
Ministry of Home Affairs, Govt. of India, New Delhi.
4. Report of 172nd Law Commission
on Rape Laws, Ministry of Law, Govt. of India, New Delhi.
5. Press Information Bureau Records,
Ministry of information and Broadcasting, Govt. of India, New Delhi.
6. Malimath Committee Report on Reforms of
Criminal Justice System, March 2003, Ministry of Home Affairs, Govt. of India, New Delhi.
Websites
[1] Former
Joint Commissioner, Special Branch, New
Delhi.
[2] Tukaram
v.
State of Maharastra
1978 Cr.LJ 1864 S.C
[3] As per
Section.375 of IPC a man is said to commit the offence of rape with a woman
under the following six circumstances: (1)Sexual intercourse against the
victims will, (2) Without the victims consent, (3) With her consent, when her
consent has been obtained by putting her or any person that she may be
interested in fear of death or hurt, (4)With her consent, when the man knows
that he is not her husband, (5)With her consent, when at the time of giving
such consent she was intoxicated, or is suffering from unsoundness of mind and
does not understand the nature and consequences of that to which she gives
consent, (6)With or without her consent when she is under sixteen years of age.
[4] Section 354
IPC: Whoever assaults or uses
criminal force on any woman, intending to outrage her modesty or knowing it
likely that he will thereby outrage her modesty, shall be punished with
imprisonment for a term which may extend to two years, or with fine, or with
both.
[5] Section 509 (Word, gesture or act
intended to insult the modesty of a woman) is included in Chapter 22 entitled
‘Of Criminal Intimidation, Insult and Annoyance’, and is cognisable, bailable
and triable by any magistrate. It holds: ‘Whoever, intending to insult the
modesty of a woman, utters any word, makes any sound or gesture, or exhibits
any object, intending that such word or sound shall be heard, or that such
gesture is seen by such woman, or intrudes upon the privacy of such woman, shall
be punished with simple imprisonment for a term which may extend to one year,
or with fine, or with both.’
[6] Siddharth Narain, “For an effective law on Rape”, Outlook Magazine vol.20 Issue. 23
[7] Sakshi
v. Union of India and
Others AIR 2004 SC 3566
[8] Supra note. 8
[9] Tukaram
v. State
of Maharashtra,
(1979) 2 SCC
[11] Sk.
Zakir v. State of Bihar,
(1983) 4 SCC 10 : 1983 SCC (Cri) 761
[12] Madan
Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204, 222 :
1992 SCC (Cri) 598
[13] Parikh, “Textbook of Medical Jurisprudence and Toxicology”, 5th Edn., p. 439
[14] Report
of Committee on Reforms on Criminal Justice system, March 2003.
[15] Exception to Section 375 of IPC –
Sexual Intercourse by a man with his own wife, the wife not being under the age
of 15 years of age, is not rape.
[16] Unnatural Offences – Whoever
voluntarily has carnal intercourse against the order of nature with any man,
woman or animal, shall be punished with imprisonment for life, or imprisonment
of either description for a term which may extend to ten years, and shall also
be liable to fine.
[17] AIR
1935 Sind 78
[18]Section 294
of the IPC holds that: ‘Whoever, to
the annoyance of others, (a) does any obscene act in any public place, or (b)
sings, recites and utters any obscene songs, ballads or words, in or near any
public space, shall be punished with imprisonment of either description for a
term that may extend to three months, or with fine, or with both.’ This
provision is included in Chapter XVI entitled ‘Of Offences Affecting Public
Health, Safety, Convenience and Morals’ and is cognisable, bailable and triable
by any magistrate.
[19] Supra
note. 4
[20] Supra
note. 5
[21] The
emphasis on obscenity points towards a code of norms defining sexuality and its
enactment in what comes to be defined as a public space. The statute does not
differentiate between consent and non-consent between two individuals. It is
oriented to a third, the public, wherein the witnessing of certain forms of
sexualised behaviour amounts to causing annoyance
[22] In
Girdhar Gopal (1953) Cr L J 964, it was held that under section 354 IPC
only women possess modesty that may be outraged. Thus men are inviolate and not
the repository of socially recognised attributes that shames them or society.
It is interesting, however, that the judgment holds that both men and women are
capable of outraging women’s modesty
[23] Section 498A of IPC - Husband or
relative of husband of a woman subjecting her to cruelty. Cruelty includes both
mental and physical cruelty.
No comments:
Post a Comment