In 2018, India was voted as the most dangerous country for women according to a poll conducted by the Thomson Reuters Foundation. High risk of sexual violence against women and forced slave labour were the key reasons propelling the country to the number one spot.
The 2018 survey by TRF's was a repeat of its 2011 exercise where India had also featured in the top 10 at the time. "India has shown utter disregard and disrespect for women... rape, marital rapes, sexual assault and harassment, female infanticide has gone unabated," Manjunath Gangadhara, a Karnataka state official was quoted as saying.
Gangadhara's statement finds merit in the rape statistics recorded by the National Crime Records Bureau (NCRB), an agency set up by the Home Ministry, to collect and analyze crime data as per the existing laws. If one goes by the latest crime statistics, a woman is raped every 16 minutes and 88 rape cases are recorded daily. In 2019, 32,033 rape cases were recorded of which 11% comprised of women from the backward Dalit community.
The assault and alleged gang-rape of the 18-year-old (her post-mortem report records her age as 22) Dalit girl from Hathras, Uttar Pradesh has shaken our collective conscience. As did the 2012 Delhi gang-rape case, the 2015 Mumbai gangrape case, Unnao Rape Case, the Kathua Rape case and if one wants to go further back in time then the Mathura Rape Case and Bhanwari Devi rape case stands out.
What is Rape?
A dictionary defines rape as any unlawful sexual intercourse or any other sexual penetration of the vagina, anus, or mouth of another person, with or without force, by a sex organ, other body parts, or foreign object, without the consent of the victim. The law, however, has different meanings of the same unlawful act.
In the Indian Penal Code (IPC), 1860, the offence of rape is covered from sections 375 – section 377. According to the IPC, a man is said to commit "rape" if he inserts his penis, uses his mouth, any body part or any other object in a woman's vagina, mouth, anus or urethra or makes her do any of the above to him or anybody else under the following conditions: against her will; against her consent; when a woman, or her loved one, is threatened with hurt or death; when consent is taken by a man pretending to be her husband; if the woman is of unsound mind, or if she has been drugged; if she is under 16 years of age (under 14 years in Manipur); if a wife is under 15 years of age (under 13 years in Manipur).
According to IPC consent means a woman's unequivocal voluntary agreement by words, gestures or any form of verbal or non-verbal communication, communicating a willingness to participate in sexual acts.
Punishment for Rape
Penalty for committing rape falls in two categories according to Section 376 of the IPC. Whoever, except for those mentioned in the second category, commits rape will be awarded a jail term of not less than not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
Those covered under this second category shall be penalized with a minimum 10-year jail term which may extend to life imprisonment (for the remainder of the person's natural life) and shall also be liable to fine.
• A police officer who commits rape within the limits of the police station where he is appointed; in the premises of any police station; or if a woman is in police custody
• A public servant
• A member of the armed force deployed by the Centre/State government
• Management/staff of a jail, remand home or other places of custody where women or children are lodged
• Hospital staff who rape patients
• A relative, guardian or teacher, or a person in a position of trust or authority who rapes their ward
• Those who commit rape during communal or sectarian violence
• Rape of a pregnant woman
• Repeatedly rapes the same woman
• Rape of a woman who incapable of giving consent
• Is in a position of control or dominance
• Rape of a woman suffering from mental or physical disability
• Causes grievous bodily harm/maims/disfigures or endangers the life of a woman during rape
Punishment for rape in other sections
Use of Rape as a weapon
Rape has been used as a weapon during wartimes. In 2008 the United Nations Security Council noted that "women and girls are particularly targeted by the use of sexual violence", including "as a tactic of war" and passed a resolution for the "immediate and complete cessation by all parties to armed conflict of all acts of sexual violence against civilians."
On February 23, 1991, at the height of militancy in the erstwhile state of Jammu and Kashmir, civilians accused soldiers of the Indian Army of allegedly committing mass rape of more than 30 women in two villages—Kunan and Poshpora, Kashmir's remote Kupwara district. Even as the Indian government debunked these allegations as baseless, the 2018 report by the Office of the United Nations High Commissioner for Human Rights (OHCHR) in a scathing indictment accused the Centre of failing to independently investigate allegations of sexual abuse by army personnel.
Drawing attention to 13 instances of human rights violations, the report also referred to the Kunan-Poshpara rape case to highlight the "state's impunity" towards sexual crimes in J&K as "all attempts to seek justice have been denied and blocked by the authorities at different levels."
According to an inquiry in the 2002 Gujarat riots, the Citizens for Peace and Justice (CPJ) found that "systematic sexual violence unleashed against young girls and women". "Rape was used as an instrument for the subjugation and humiliation of a community," the inquiry report read. "Barring a few, in most instances of sexual violence, the women victims were stripped and paraded naked, then gang-raped, and thereafter quartered and burnt beyond recognition," it added.
Reforms in rape laws
The 160-year-old IPC is a hangover from the colonial-era laws. There have been several piecemeal amendments to the IPC, but it hasn't been reformed in any way. In 2000, the Justice Malimath Committee had set out to reform criminal jurisprudence, but its recommendations were rejected.
Another attempt is being made by the Committee for Criminal Reforms—a five-member, all-male committee. However, this committee—constituted earlier this year in May—has faced intense backlash for the lack of diversity in its composition; terms of reference have not been made public; the curtailed time frame (six-month deadline which expires this month); and its methodology where pre-determined questions—as opposed to questions framed after public debates—would be released in six tranches.
In 1972, rape laws were amended for the first time forced by the furore in the Mathura rape case. On March 26, 1972, Mathura—a young Adivasi girl from Maharashtra accused policemen of gang-raping her. A trial court acquitted the policemen, a decision upheld by the Supreme Court. Only the high court found them guilty. The policemen defended themselves by saying that the girl was "loose" since she had a boyfriend and thus could not be raped. In its 1978 verdict, the top court said the absence of injury marks "goes a long way to indicate that the alleged intercourse was a peaceful affair".
The hue and cry over the 1978 verdict prompted the legislature to introduce and pass the Criminal Law (Second Amendment) Act of 1983. Several sections were included including criminalizing the disclosure of a rape victim's identity.
The Nirbhaya case or the 2012 Delhi gang-rape case was a watershed moment in the campaign for women's rights and safety leading to the passage of the Criminal Law (Amendment) Act in 2013 which widened the scope and definition of rape including making the punishment more stringent.
Criticisms and pitfalls of criminal jurisprudence
The lack of gender neutrality is perhaps one of the most defining characteristics of Indian rape laws. According to the IPC, a man cannot be a victim of rape. Directions in response to a PIL (Public Interest Litigation) in the Supreme Court led to recommendations by the Law Commission of India seeking to widen the scope and definition of sexual intercourse and making it more gender-neutral.
In 2018, with the Supreme Court decriminalizing consensual sex between homosexuals, it is even more important for rape laws to become more gender-neutral.
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