The crime of rape is an offence of very heinous nature. The crime of rape is a major problem for our legal system. Under reporting is one of the primary issue with the offence of rape. Only one in sixty nine offences get reported and the accused is tried. Collective efforts of government, law commission of India, and other women rights activists have successfully worked together to amend the loopholes which were there in the legal system. The amendments or changes were done time to time as per the changes in the society but still many loopholes exist in our legal system. There have been both factual and procedural changes in order to provide justice to the victim. Three main statutes on which the criminal law system is based upon are Code of Criminal Procedure which provides procedural provisions for criminal law. Indian Evidence Act which deal with procedural aspect to ensure justice and truth and lastly the substantive part of criminal law i.e. the Indian Penal Code.
The Criminal Law (Amendment) Act of 1983
Mathura case shook the country to its nerves and forced the authorities to amend the laws and implement changes in legal system. [i] Punishments for concepts like custodial rape were added and enhanced punishment for offences under Section 376 was also added. Presumption of the absence of consent in cases booked under Section 376 was also considered. This was brought in power by amending Section 114(A) of the Indian Evidence Act. Thus, in cases of custodial rape, rape of a pregnant woman, and gang rape, if it is proved that the accused had sexual intercourse with the woman who is alleged to have been raped, and the question is whether it was without the consent of the woman, and she states before the Court that she did not consent, the Court shall presume that she did not consent. This amendment helped in overcoming gender inequality which existed in Workplaces, Police station, jails and other situations in which the victim was over powered and a forceful sexual act was committed. Non consensual intercourse was extremely difficult to be proved through testimonies.
One more dimension to the issue of custodial rape situations is that the examining doctor should also understand that the victim’s ability to put up resistance against the accuser’s advances is largely dependent on gender-based power relations. There could be situations where a woman is overpowered and subject to sexual intercourse without her consent, but is left with no injuries, or few injuries, that might be seen as evidence of resistance[ii].
The Supreme Court judgment in 2000
Before to the case of State of Karnataka V Manjanna[iii] the medical examination of victim by the doctors was done only after they received a request from the police. Hence for medical examination the victim had to first lodge a police complaint in a police station of correct jurisdiction. There could have been delay in this because of social stigma and getting blamed for being a victim. Women have to overcome mental and physical trauma. The post the delay the complaint was to be registered and then request was forwarded to the doctor at the government hospital. If women had approached the doctors directly then they used to deny collecting the evidence and hence due to delay the evidence was lost. The benefit of doubt was provided to the accused.
But in this judgment in the year 2000 the Supreme Court recognized that the rape victims need for medical examination and medicolegal emergency was constituted. The victim could now approach the medical examiners before approaching the police. Hence now without police request doctors have to examine the patient and collect necessary evidence.
The judgment recognises the three ways by which a hospital may receive a victim of rape: voluntary reporting by the victim; reporting on requisition by the police, and reporting on requisition by the Court. Unfortunately this information has not been disseminated to all doctors, and the majority of them still insist on a police requisition before examining a rape victim.
The Indian Evidence (Amendment) Act of 2002
Section 155 of the said act used to allow the defense lawyer to question the victim’s testimony on the basis of her moral character. This attack on the victim’s name and reputation which questions there past sexual acts and personal life also become a barrier as to why victim is not ready to lodge a complaint against the accused and press rape charges. In 2002 amendment Section 155 was deleted and Section 146 was added. According to the new provision the defense counsel cannot put questions in cross examination about her general moral character. Hence unwarranted attack on sexual acts of victims of rape was removed. [iv]
However the medical examiner that examines the victim and collects all the evidences from the victim often require information about the past sexual acts, intercourse and sexual practices of the victim. This is done so that the interpretation regarding physical and genital finding in the victim could be done correctly. Injury sustained by a victim of rape who was virgin is different from those who have experienced sexual intercourse in the past. But the doctor has to explain to the victim why he is seeking this information and how it would help her case. She must also be told about the deletion of Section 155 of the Indian Evidence Act. This is required because victim often feels hesitant and past experiences or character might be used against her by the defense lawyer.
The Code of Criminal Procedure (Amendment) Act of 2005
Some High Courts followed the liberal interpretation of Section 53 of CrPC and it became a mandatory practice that rape victim was examined only by female doctors. This was made so that victim is more comfortable with women. But the number of female doctors is really less and hence the options are limited. Especially in rural areas where if a women doctor in available then the work load is too high which lead to delay and evidences are collected in an inefficient manner. In the said amendment specific Section for medication examination of victims of rape were introduced. Section 164(A), Section 53(A) and provision for inquiry in cases of custodial rape and death which is covered in Section 176(1A) (a) (b) CrPC.
Section 164(A) CrPC talks about the legal requirements for medical examination of a victim of rape. Consent of the victim is mandatory and should be part of the report. Only with the consent of the victim (and in the case of a minor by the parent or guardian) may the examination be conducted by any registered medical practitioner (only allopathic doctors registered under the Medical Council of India (MCI)) employed in a hospital run by the government or a local authority, and, in the absence of such a practitioner, by any other registered medical practitioner.
Examination by women doctor is preferred and incase women doctor is not available then a male doctor can conduct the examination. The examination has to be conducted within 24hrs and must not be delayed. The consent for partial examination also exists and it’s the victim’s choice to report the crime or not. Though in medicolegal cases doctor report the crime the police. Even Section 39 CrPC (allowing the public to give information in certain offences) does not enumerate Section 375 IPC or 376 IPC.
Section 53(A) CrPC sets down the requirements of medical examination of a person accused of rape. Before this amendment there were no guidelines on whether age estimation has to be done, whether a potency examination was sufficient or not.
Amendments are also made to Section 176 CrPC regarding an inquiry by a magistrate into the cause of death, by adding Section (1A) by which if “(a) any person dies or disappears, or (b) rape is alleged to have been committed on any woman, while such person or woman is in the custody of police or in any other custody authorized by the Magistrate or the Court under this Code, in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed.” This amendment now makes it compulsory for the magistrate to m investigate all cases of custodial rape and deaths in custody.
The Code of Criminal Procedure (Amendment) Act of 2008
Victims were hesitant in lodging their complaints are the process was very cumbersome and the victim had to narrate all the instances to a male police officer. The victim is psychologically harassed in open Courts and she has to repeatedly describe her traumatic experience. All the problems were dealt in this amendment.
A provision has been added to Section 157 CrPC dealing with the procedure of investigation in relation to the offence of rape. The recording of the statement of the victim shall be conducted at the residence of the victim or in the place of her choice and, as far as practicable, by a woman police officer in the presence of her parents or guardians or near relatives or social worker of the locality.
Section 173 of CrPC makes it compulsory that an investigation in relation to rape of a child must be completed within three months of date on which the information is recorded. Also, report which is forwarded to a magistrate it should contain the report of the medical examination of the woman where an investigation relates to an offence under Sections 376, 376A, 376B, 376C, and 376D IPC.
The amendment to Section 309 CrPC has the additional proviso that when the inquiry or trial relates to an offence under Sections 376 to 376D IPC, the inquiry or trial shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witnesses.
Through Section 327 CrPC in camera inquiry was made mandatory and trial for rape of an offence under Section 376, 376A, 376B, 376C or 376D IPC, victims of rape were still not comfortable in Court proceedings. The 2008 amendment to Section 327 CrPC allowed an in camera trial to be conducted, as far as is practicable, by a woman judge or magistrate. It also partially lifts the ban on printing or publishing trial proceedings in relation to an offence of rape, subject to maintaining confidentiality of the names and addresses of the parties.
Section 357(A) CrPC was added as the victim compensation scheme was introduced. All state governments in consultation with the central government prepare a scheme for victim compensation. District as well as state legal services authority provides compensation decided by the Court.
The Criminal Law Amendment, 2013
The criminal law amendment, 2013 was the consequence of the Nirbhaya rape case[v] in 2012. This rape shook the whole world, when 23 year old physiotherapy student was travelling with her friend in a private bus in southern Delhi. The girl was gang raped, beaten and tortured. She died few days later at Singapore, where she was under treatment.
After the incident came to light there were numerous protests condemning the then laws and seeking for strong and stringent laws, hence the Criminal Law Amendment, 2013 came into force.
Indian Penal Code, 1860 (IPC)
- New provision under Section 166 A for punishing public servants who refuse to record a FIR in cases of specified crimes against women including rape was added
- Section 166 B which dealt with punishing those in charge of a public or private hospital for refusal to provide free medical treatment for victims of rape was added
- The definition of rape in Section 375 was widened to include acts other than forcible peno-vaginal penetration or sexual intercourse. The amended Section 375 includes forcible penetration by the man of his penis, any part of his body or any object into the vagina, mouth, urethra or anus of a woman or making her do so with him or any other person; manipulation of any part of the body of a woman so as to cause penetration into the vagina, urethra or anus of a woman or making her do so with him or any other person; and applying his mouth to the vagina, anus or urethra of a woman or making her to do so with him or any other person.
- The term Consent was re-defined by adding an explanation to Section 375 as “unequivocal voluntary agreement” signifying willingness by the woman by “words, gestures or any form of verbal or non-verbal communications” to participate in the sexual act. This definition clarifies that women’s silence or absence of ‘no’ cannot be construed as a “yes”.
- The minimum age required to give valid consent was raised from 16 to 18 years.
- Section 376 (2) was expanded to included rape committed by a member of the armed forces deployed in an area by the Central or a State Government in such area.
- Section 376 (2) was also expanded to consider rape of a woman below the age of 16 years as aggravated and hence enhanced punishment for it.
- The judicial discretion which was available and could be used for reducing sentence was removed.
- A separate Section 376 D was made for the offence of gang rape with a higher punishment. The Section states that, where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine.
- Separate Section for rape that caused death or persistent vegetative state of the victim under Section 376 A was introduced. death penalty as a punishment for rape that caused vegetative state or death was also provided.
- To deal with abuse of a position of authority or fiduciary relationship by certain persons to induce or seduce any woman in his custody or charge to have sexual intercourse with him was also added.
- The amendment also included a Section 376E for repeated offenders and laid down stricter punishment for persons convicted under this Section. Death penalty was set in this Section as the punishment along with life imprisonment without parole.
- Punishment for sexual intercourse by a husband upon his wife during separation without her consent (Section 376B, substituting Section 376A) was increased to seven years, with a minimum punishment of two years.
Code of Criminal Procedure, 1973 (CrPC)
- Amendment was made in Section 154 (1) and for certain offences against women (including rape), the FIR has to be recorded by a woman police officer or any woman officer. It also added that in case of a woman who is temporarily or permanently mentally or physically disabled and alleges commission or attempt of an offence under Section 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, 376E or Section 509 of the Indian Penal Code, 1860, such information shall be recorded by a police officer, at her residence or at a place of her choice, in the presence of an interpreter or a special educator. Along with this, such information shall be video-graphed and her statement before the Magistrate under Section 164 CrPC shall be recorded as soon as possible by the police officer.
- Section 164(5A) was added and now it is mandatory for recording of statement of the victim/survivor by the Judicial Magistrate, as soon as the commission of the offence is brought to the notice of the police.
- Section 197(1), CrPC was amended and explanation was added to the effect that it would not be necessary to seek prior sanction from the Appropriate Government for prosecution of a public servant for any of the offences of sexual abuse. This is for the obvious reason that the Section 197 is intended to protect public servants from malicious prosecution for acts done in the discharge of duties. It cannot be argued by any stretch of imagination that sexual abuse happened as a part of public duties, hence the said amendment was made to enable expeditious prosecution of public servants for rape and other forms of sexual abuse.
- Section 375C, was been added which makes it mandatory for all public and private hospitals to immediately provide free first aid or medical treatment to victims of acid attack and rape, and to immediately inform the police of such incident.
Indian Evidence Act, 1872 (IEA)
- Section 53 A was added was added and it deals with ‘evidence of character or previous sexual experience’. As per this section, in a prosecution for an offence of rape, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the question of such consent or quality of consent.
- The existing Section 114A was substituted by a new one stating that in a prosecution for rape under clauses (a) to (n) of Section 376(2) IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.
- The proviso to Section 146 was substituted with the existing one to state that, in a prosecution for rape, it shall not be permissible to adduce evidence or to put questions in the cross examination of the victim as to the general immoral character or previous sexual experience of such person with any person for proving such consent or quality of consent.
Criminal Law Amendment Act, 2018
The legislature enacted the Criminal Law Amendment Act, 2018, to amend the Indian Penal Code, 1860, Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973 and the Protection of Children from Sexual Offences Act, 2012. This was done as a result of two unfortunate rape cases, one in 2017 at Unnao, Uttar Pradesh and one in 2018 at Kathuna, Jammu and Kashmir. Unnao Rape case [vi]is an incident of gang rape of a 17 year old girl in June 2017 at Unnao, U.P. The main accused in this case was a politician who is now convicted for the rape and is sentenced to life imprisonment.
Kathuna Rape case[vii] is the tragic rape and murder of 8 year old girl at Kathuna in the then state of Jammu and Kashmir in 2018. It is believed that the girl was abducted and kept inside a shrine and was repeatedly raped and murdered.
It amendment received the President’s assent on 11-08-2018 and was notified on the same day, to be effective from 21-04-2018.
Salient features of the Act are:
- Minimum jail term of 20 years which may go up to life in prison or death sentence is provided as punishment for the rape of a girl under 12 years. While perpetrators involved in the gang rape of a girl below 12 years of age will get life imprisonment or death.
- Sub-Section (1) of S. 376, punishment for perpetrators, was increased from 7 years to 10 years.
- The amendment under S. 376 additionally makes a provision for the fine to be payable to the victim.
- S. 439 of the CrPC was amended to make it imperative for the Courts in cases of grant of bail to an accused under S. 376(3), S.376 AB , S. 376DA or S.376 DB of the IPC to give notice of the application for bail to the Public Prosecutor.
All the amendments were made from time to time but still we have not developed a rational system to provide justice to rape victims. We are living in a progressive society and law is not static nature. Law must also change with changes in the society. The need of the hour is to focus on how to provide education and gender sensitization so that such mind sets are avoided. The government needs to step in as it is its responsibility to maintain law and order. Laws must be made more stringent in order to create a fear in the mind of the person who might attempt the offense.
[i] Tuka Ram and Anr v. State of Maharashtra [1979 AIR 185, 1979 SCR (1) 810]
[ii] Commonwealth legal information institute, free access to commonwealth and common law [Internet]. [place unknown]: Common LII. Criminal Law (Amendment) Act, 1983 (43 of 1983); 1983 Dec 26 [cited 2010 Mar 15]; [about 3 screens]. Available from: http://www.498a.org/contents/amendments/Act%2046%20of%201983.pdf
[iii] State of Karnataka v. Manjanna (2000 SC (Crl)1031)/CriLJ 3471/ 2000(6) SCC 188.
[iv] Indian Evidence (Amendment) Act, 2002 (4 of 2003) [Internet]. 2002 Dec 31[cited 2010 Mar 15]. Available from: http://www.commonlii.org/in/legis/num_act/iea2002205/
[v] Mukesh & Anr vs State For Nct Of Delhi & Ors
[vi] Kuldeep Singh Sengar vs State Of U.P. & Anr
[vii] Mohd. Akhtar vs The State Of Jammu And Kashmir
- Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009); 2009 Jan 7
- Code of Criminal Procedure (Amendment) Act, 2005; 2005
- Criminal Law (Amendment) Act, 1983 (43 of 1983)
- Law Commission of India. 172nd report on review of rape laws. 2000 Mar 25. [cited 2010 Mar 14]. Available from: http://www.lawcommissionofindia.nic.in/rapelaws.htm