This Article is written by Ashima Gupta student of VIPS, Delhi.
The rape laws in India has seen a lot of changes. Various amendments have been made over the years to expand the scope of the rape provisions and make the laws stricter. The original IPC of 1860 did not define rape properly and it’s scope was very limited. But as the crimes against women increased a need was felt to bring some major changes in the legal system. The Mathura Rape case was the beginning of the change. The case led to a great degree of introspection and led to new laws been made to ensure protection of women and rape survivors.
CRIMINAL LAW (AMENDMENT) ACT, 1983
The Mathura Rape case shocked the entire nation and proved to be a catalyst that propelled a lot of changes in Indian legal system. It was a case of custodial rape. A sixteen year old girl named Mathura was raped by two policemen. The Sessions Court acquitted the accused. On appeal they were convicted by the Bombay High Court but the Supreme Court reversed the order of the High Court and the cops were acquitted. The victim was accused of ‘Habituated Sexual Intercourse’. This decision was heavily criticized. The court took ‘passive submission’ by the victim as her ‘consent’. As a result of this erroneous decision of the Court the Criminal Law (Amendment) Act, 1983 was enacted and some significant changes were brought.
INDIAN PENAL CODE
- The provision for custodial rape and it’s punishment was added to the Indian Penal Code.
- Section 376(2) was added through the Amendment and it provided the punishment for rape by a person in authority. According to the Act, a person in authority means ‘police officer, public servant, a person on the management or the staff of the jail, or person on the management or the staff of the hospital’. The minimum punishment for this offence is rigorous imprisonment for ten years and maximum punishment for it could be imprisonment for life.
- Sections 376A, 376B, 376C, 376D were which provided for sexual intercourse by a person in authority not amounting to rape.
The Act shifted the onus of proof of consent on the accused. The Amendment added Section 114-A in the Indian Evidence Act. It provides for the presumption as to the non-consent of the victim. The person against whom this presumption is made has to prove his innocence and has to provide evidence for the same. So in other words, if a woman has been raped and she contends that she did not consent then the court shall presume that there was no consent.
THE INDIAN EVIDENCE (AMENDMENT) ACT OF 2002
Through this Amendment, Section 146 was added and Section 155 was deleted. Section 155 used to allow the defence lawyer to question the victim’s testimony on the basis of their moral character. Section 146 changed that and now the questions on moral character cannot be asked.
THE CRIMINAL LAW AMENDMENT, 2013
This Amendment Act was enacted as a result of the Nirbhaya case. The Nirbhaya case shocked the collective conscience of the society. On 16 December 2012 in Delhi, a 23 year old female was brutally gang raped in a moving bus. She suffered various grave injuries and she lost her life.
The heinousness and brutality of the crime shocked the entire nation. It was like a wake up call and raised a lot of questions about the legal system and its failure to provide protection to women. This case gained a lot of attention from the media all across the globe. There were widespread protests and people demanded changes to be made in the existing laws and demanded stricter laws to check violence against women. As a consequence of this, a three-member committee headed by Late Justice J.S. Verma, former Chief Justice of Supreme Court of India was constituted on December 23, The purpose of this committee was to recommend amendments to be made in Criminal Law for the Legislature to enhance the punishment and make rape laws and other crimes against women more combat. The committee submitted a comprehensive report and made some recommendations. According to the committee, rape is not just a crime of passion but an expression of power. The report asked for a Bill of Rights for Women, that would entitle a woman a life of security and would ensure that a woman has the right to have complete sexual autonomy.
The Verma Committee Report and the need for stricter laws for protection of women led to enactment of the Criminal Law Amendment, 2013.
Some important changes that has been brought through the Amendment Act are:
- Before the Amendment, though there were provisions that dealt with sexual harassment in the IPC but there was no such provision that clearly provided for the punishment for sexually harassing a person.
- Sexual harassment has now been made a gender neutral offence. Earlier only a man who forcefully shows pornography or makes unwelcome sexual advances, or demands/requests sexual favours from a woman could be punished.
- The 2013 Act has expanded the definition of rape to include the insertion of an object or any other body part into a woman’s vagina, anus or urethra. Oral sex has also been included in the definition.
- The New Act also defines consent, to mean an unequivocal agreement to engage in a particular sexual act; “Unequivocal Voluntary agreement” signifies willingness by the woman by “words, gestures or any form of verbal or non-verbal communications” to participate in the sexual act. The Act clarifies that the absence of resistance will not imply consent.
- Section 166A has been added to the IPC through the Act. It provides for punishment incase a public servant fails to record an FIR in cases of specified crimes against women including rape.
- Section 166B has also been inserted through the Amendment. This provision is for punishing those who are in charge of public or private hospital and refuse to provide free medical treatment to the victims of rape.
- Section 376 (2) was expanded and now the rape of a woman below the age of 16 years is considered as an aggravated offence. The punishment for it has also been enhanced.
- The scope of Section 376B has been expanded to include a public servant who uses his powers , abuses his position of authority and domination over a female by inducing or seducing her to have sexual intercourse with him. It also includes a person who is in a fiduciary relationship with the victim.
- Section 154 (1) of the Code of Criminal Procedure, 1973 has been amended. After the amendment, an FIR in certain offences against women including rape has to be recorded by a woman police officer or any woman officer.
- Section 375 (C) has been added to the CRPC and now it is mandatory for all private and public hospitals to immediately provide free medical treatment to victims of rape and acid attack and also to immediately inform the police of such incident.
- Section 53 (A) was added to the Indian Evidence Act. It states that in a prosecution for the offence of rape and when the consent is in question, then neither the character of the victim nor the accused is relevant. Also any evidence pertaining to previous sexual experiences of the victim is irrelevant.
CRIMINAL LAW AMENDMENT ACT, 2018
The Criminal Law Amendment Act, 2018 is a consequence of the barbaric incidents like the Kathua rape case and the Unnao rape case. It was passed to make the rape laws more stringent.
- Changes have been brought to Section 376 of the IPC. In clause 1, the punishment has been enhanced from seven years of imprisonment to ten years of imprisonment.
- Through the amendment punishment for rape of a woman under sixteen years of age has been added. This offence is punishable with rigorous imprisonment of a minimum twenty years which may extend to life imprisonment.
- Punishment for rape of a woman under twelve years of age has also been added by the amendment. In this kind of offence the minimum punishment is of twenty years rigorous imprisonment which may extend to imprisonment for life. The offender in these cases can also be punished with a death penalty. This is the first time death penalty has been introduced for the offence of rape.
- Section 376DA and 376DB has been added through the amendment to provide for punishment in cases of gang rape on a woman under sixteen years and twelve year. For a gang rape of a woman under twelve years of age, death penalty can be given.
- Changes have been brought in the CRPC as well. After the amendment, no anticipatory bail can be granted under Section 438 by a High Court or a Court of Session, if a person is accused of rape on a woman of under sixteen years of age.
- The Amendment has also provided for a speedy trial and investigation in rape cases.
- The convicted persons are also bound to compensate the victim. The convict is bound to pay for the victim’s rehabilitation and medical expenses.
- By the Amendment a change has been made in Section 42 of POCSO Act, 2012. The Section deals with Alternative Punishment and Sections 376A, 376C, 376D were substituted with 376A, 376AB, 376B, 376C, 376D, 376DA and 376DB of the IPC.
Thus, the scope of a lot of provision has been expanded and the rape laws has been made stricter.
- Criminal Law (Amendment) Act, 1983
- Criminal Law (Amendment) Act, 2013
- Criminal Law (Amendment) Act, 2018
- Yamini, Criminal Law (Amendment) Act, 2013: Sexual Offences https://www.lawctopus.com/Academike/criminal-law-amendment/
- Indian Evidence (Amendment) Act Of 2002
- Justice Verma Committee Summary https://prsindia.org/Policy/Report-summaries/Justice-verma-committee-report-summary
- Mukesh & Anr v. State For NCT Of Delhi & Ors. (2017) 6 SCC 1
- Tukaram And Anr v. State Of Maharashtra AIR 1979 SC 185
- The Indian Evidence Act, 1872
- The Code Of Criminal Procedure, 1973