Rape is generally defined as the violation of a woman’s chastity, but it is also a violation of her mental tranquillity and social standing. Social stigma has always been attached to rape and usually, the victim never overcomes her mental trauma. There have also been instances of rape subsequently resulting in the death of the victim. Rape has now become the fourth most common crime against women in India. This article aims to trace the evolution of rape laws in India and how they have been modified in accordance with contemporary events. The article enlists the major amendments in criminal law concerning rape and the way criminal law has been made more women-friendly.
On 14th September 2020, a 19-year-old Dalit girl was allegedly gang-raped by four upper-caste men in Hathras district of Uttar Pradesh, India. The victim succumbed to her injuries after two weeks after the incident. The caste system is deep-rooted in India and the practice has been followed for centuries but what is more alarming is the misuse of such a differentiation to misbehave, sexually abuse and rape women of the lower castes, as has happened in Hathras. A total of 87 rape cases were reported each day in India in the year 2019 according to the National Crime Records Bureau. To curb and combat rape in India, it is of paramount importance for the citizens to be aware of the anti-rape laws in India and the situations through which the same has evolved.
Development of Rape Laws
Rape was first mentioned when the Indian Penal Code was written in 1860. Sections 375 to 376E of the IPC refer to ‘sexual offences’. Section 375 defines rape as sexual intercourse with a woman under the following circumstances: –
- Against her will.
- Without her consent.
- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
- With her consent, when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
- With or without her consent, when she is under sixteen years of age.
The explanation of the said section clearly states that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape and that sexual intercourse by a man with his wife, with wife not under the age of 15 years, would not amount to rape. Thus, marital rape is not a crime in India if the wife is above 15 years of age.
Criminal Law (Amendment) Act, 1983
“After independence, during the rise of feminism in the 1970s, the rape by police, army and security forces & landlord rape became prominent issues.” The first significant case in this regard is the Mathura Rape Casewhere the 16-year-old victim from the tribal community was raped in a police station in 1972. The sessions court held that the policemen were not guilty of the offence of rape as the girl did not raise any alarm and was habituated to sexual intercourse. When taken to the Supreme Court, the case was rejected as the court observed that the “victim’s body bore no outward sign of rape”. It led to a nationwide upheaval since submission during rape was misinterpreted as consent. This case brought about the Criminal Law (Amendment) Act, 1983 wherein a new category called ‘custodial rape’ was introduced.
Apart from this, another amendment made in the criminal law was “enhanced punishments for offences under Section 376 IPC and presumption of the absence of consent in cases booked under section 376 IPC. This was done by introducing an amendment in the Indian Evidence Act via initiation of section 114A IEA. 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 tries to overcome the gender inequities which can exist at workplaces, police stations, jails, and other such situations, in which the victim is overpowered and a forceful sexual act committed.”
Further, Section 228A was inserted in the IPC which prescribes punishment for any person who prints or publishes the name or any other information related to the identity of a victim except if such revelation is with the assent of the person in question or, in the event that the victim is dead, minor or is of unsound mind, the disclosure may be made by the closest relative of the person in question, or by or under an order of the Court. Also, Sections 327(2) & 327(3) of the Code of Criminal Procedure mandated camera proceedings and prohibition of printing or publishing such proceedings respectively. The said amendment also brought in other women-friendly laws apart from those concerning rape.
Another incident that fired activists and common people into protesting against rape was the rape case of a woman named Rameeza Bee who was raped by numerous policemen in 1978. Her spouse was murdered when he was protesting against the rape of his wife. This year marked many women’s movements in India. The Andhra Pradesh government appointed Justice K.A. Muktadar to take charge of the Commission of Inquiry that probed the rape case of Rameeza Bee and the custodial death of her husband.
The Unchastity of Women and Rape
In State of Punjab v. Gurmit Singh, the Supreme Court instructed the lower judiciary that even if the victim appears to be habituated to sex, the court must not describe her to be of ‘loose character’.
The Apex Court had, in the case of State of Maharashtra v. Madhukar N. Mardikar, held that “the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of the law. Therefore, merely because she is of easy virtue, her evidence cannot be thrown overboard.”
These judgments received a statutory backing with the amendment of the Indian Evidence Act in 2002. Through this amendment, Sec. 155(4) which allowed the defence lawyer to disrepute the victim by questioning her ‘immoral character’ and raising queries on the same during the course of cross-examination was done away with. This provision was felt to have dissuaded the victims from registering cases against rape. After the elimination of the aforementioned section, a fresh provision was introduced through Sec. 146 of the Indian Evidence Act which clearly stated that raising questions about the general moral character of the prosecutrix was no longer permitted.
That being said, a medical practitioner examining the victim would require information about her previous sexual acts for accurate analysis of the physical or genital findings. The rationale behind such a requirement is that discoveries of forceful acts on a virgo intacta would be different from a person who has previously indulged in sexual practices. In such a situation, the medical practitioner is allowed to ask for the same but only after a clear explanation regarding the amendment of Sec. 155(4) and how the same is going to help her in obtaining justice lest the victim is hesitant of parting with such crucial information which may, in her view, be used as a weapon by the defence lawyer.
The POCSO Act, 2012
The impact that an act resulting in sexual abuse can have on the tender mind of a child, is grave. Thus, the protection of children from such monstrous acts becomes imperative. With the view of protecting children especially from sexual abuse and pornography, the Protection of Children from Sexual Offences (POCSO) Act with its 46 sections was enacted in 2012. The said act widened the scope of offences made towards which were not covered under the Indian Penal Code. The POCSO Act enlists the offences of sexual assault, sexual harassment, pornography, protecting the interest, and promoting the welfare of children. The modus operandi followed during the recording of evidence, investigation, and trial of offences, the establishment of special courts or speedy trial of cases is child-friendly. The main objective of the Act is to protect the child at every phase of the judicial process.
Significant features of the POCSO Act are that:
- The legislation is gender-neutral. It means that crimes committed against children would be dealt irrespective of the child’s gender.
- This Act follows the rule of “guilty until proven innocent” instead of the general rule of “innocent until proven guilty.”
- For the prevention of the misuse of law, the Act encompasses penalties for false complaints and false information with malicious intent.
- The child’s statement can be recorded at the child’s residence or a place that they choose and shall be preferably done by a female police officer, not below the rank of sub-inspector.
- The Act imposes punishments for attempted crimes as well as aiding or abetting these crimes or failure to report such crimes.
- The Act also proposes for special courts to be established for handling trials regarding sexual abuse of the child with every trial being completed within a period of one year.
- Children are not made to repeat their testimony in court and they may give the testimony using a video stream instead. The defence shall ask questions only through the judge and is not allowed to question them in a hostile manner. An interpreter, translator, special educator, or any other expert’s assistance would be provided to the child in the court.
- The POCSO Act has modified the idea of consensual sex as recognised under the Indian Penal Code. The age of consent has been extended from 16 years to 18 years of age which means that a child or any other person can be prosecuted for engaging in a sexual act with a child regardless of whether the former has consented or not.
- The Act has also outlined the criteria for awarding compensation by the Special Court which includes loss of educational or employment opportunities as well as disability, disease, or pregnancy as a result of the abuse. 
Nirbhaya Gang Rape and the Criminal Law (Amendment) Act, 2013
“In the wake of protests regarding the rape of a student in Delhi in December 2012, a Committee under the guidance of Retd. Justice J S Verma was constituted to come up with recommendations for the amendment to the law relating to sexual offences. The Committee rendered its report on 23rd January 2013 and 90% of the recommendations were taken from the Justice Verma Committee Report in Criminal Law (Amendment) Act, 2013 brought through this case. The Amendment Act of 2013 brought major changes to The Indian Penal Code, Code of Criminal Procedure, and the Indian Evidence Act to make the laws against rape and sexual assaults against women more stringent.
The amendments included widening the definition of rape under S. 375 IPC, capital punishment for rape cases that have led to death or has caused the victim to remain in a ‘persistent vegetative state’ (S. 376A IPC), and a minimum of 20 years of incarceration for gang rape (S. 376D IPC). Additional offences such as stalking (S. 354D IPC) acid attacks (S. 326A & S. 326B IPC), and voyeurism (S. 354C IPC) were added to the definition of rape. The minimum sentence was changed from 7 years to 10 years. The vegetative state was defined and included after the ground-breaking ‘Aruna Shanbaug case’.”
The amendments made to the Code of Criminal Procedure, 1973 would include the following:
- In the case of sexual offences and an acid attack, the statement will be recorded by a woman police officer or a woman officer [Sec. 154(1)].
- Statement of witnesses may be audio-video recorded and the statement of a victim for cases of sexual assault and rape will be recorded by a woman police officer or a woman officer [Sec. 161].
- Judicial Magistrate shall record the statement of the victim of such offences in the manner prescribed under Sec. 164(5) of the Code of Criminal Procedure, 1973 as soon as the commission of such offence is reported [Sec 164(5A)].
- Cognizance of Offence; Cases of marital rape shall only be reported by the wife [Sec. 198B].
- Evidence to be taken in presence of the accused. Where the evidence of a person below 18 years who has been subjected to sexual assault or sexual offence is being recorded, the court will ensure that the person will not be confronted by the accused. [Sec.273]
- The trial in rape cases must be conducted daily and shall as far as possible be completed within 2 months [Sec.309(1)].
- Compensation to be in addition to fine paid under Sec. 326A or Sec. 376D of Indian Penal Code. A medical practitioner has to mandatorily inform the police. [Sec.357B].
- Immediate first-aid or medical treatment will be provided free of cost by all hospitals to the victims of any offence covered under Sec. 326, Sec. 376, Sec. 376A, Sec. 376B, Sec. 376D, Sec. 376E of the Indian Penal Code, 1860; medical professionals are required to immediately report the crime to the police which is not in the interest of the survivor who may not want to report the crime [Sec.357C]. 
Amendments made in the Indian Evidence Act (S. 53A, 114A, 146) laid down protective measures for women and made ‘consent’ more important than ‘previous sexual experience’. The women would be presumed to not have given her consent and for cases registered for rape, disclosure of previous sexual experiences would not be necessary.
Criminal Law (Amendment) Act, 2018
Mohd. Akhtar v. State of Jammu and Kashmir (the Kathua Rape Case) brought the Criminal Law (Amendment) Act, 2018. The need for an amendment was strengthened considering the Unnao Rape Case of 2017 as well. In both cases, the victims were minors (8 years and 17 years respectively). The proposals were taken from the Justice JS Verma Committee to be fused in the 2018 amendment. While capital punishment for rape has been demanded for a long time, this was the first time, where it was incepted. It made the rape of a child under 16 years old punishable of at least 20 years of imprisonment and also incorporated capital punishment for the rape of any person under 12 years.
Some key modifications that were made through this amendment:
- It spelled out minimum imprisonment of 20 years which may extend up to life detainment or death sentence, for the rape of a girl under 12 years while accused involved in the gangrape of a girl below 12 years of age will be awarded life imprisonment or death.
- S. 376 (1) of IPC was amended to increase the term of punishment from 7 years to 10 years for the offenders.
- The amendment under S. 376 also provides a provision for the fine to be payable to the victim of rape.
- Amendment was made to S. 439 of the CrPC to make it crucial for the Courts in cases of grant of bail to a suspect under S. 376(3), S.376AB, S. 376DA or S.376 DB of the IPC to give notice of the application for bail to the Public Prosecutor.
Due to such changes in criminal law from time to time, the extension of justice to the victims can be done more effectively. Rape laws should not only be punitive but should also have a deterrent effect. There have been considerable reservations against the laws being gender-biased which can lead to misuse of immunities provided to women against men and thus there is a demand for gender-neutral laws as were proposed by the Law Commission in its 172nd Report. Another concern is the huge pendency of cases and disability of fast track courts in resolving the matters. Overall, the measures in favour of the women seem sufficient provided proper implementation of the laws is ensured.
 Tukaram v. State of Maharashtra AIR 1979 SC 185.
 N Jagadeesh, Legal changes towards justice for sexual assault victim, 7 Indian Journal of Medical Ethics (2010).
 State of Punjab v. Gurmit Singh (1996) 2 SCC 384.
 State of Maharashtra v. Madhukar Narayan Mardikar (1991) 1 SCC 57.
 supra note at 4.
 Mohd. Akhtar v. State of Jammu and Kashmir (2019)14SCC752; 2018 SCC OnLine SC 1716.
 supra note at 8.