PAPER WRITING

RAPE LAWS IN INDIA

SUBJECT: CRIMINAL LAW - I

SUBMITTED TO: DR. BALA KRISHNA REDDY

SUBMITTED BY: ANSHUL AGARWAL

I YEAR I SEMESTER

2019-LLB-10

NALSAR
UNIVERSITY OF LAW, HYDERABAD
 TABLE OF CONTENTS

INTRODUCTION TO RAPE....................................................................................................3

EXISTENCE AND DEVELOPMENT OF RAPE LAWS IN INDIA.......................................4

CONCLUSION..........................................................................................................................8

2
 INTRODUCTION TO RAPE

Violence against women and the reluctance of public authorities to deal with it are
longstanding themes of public debate in India. There is no doubt that the violence against
women is a serious challenge to the Indian Society.

One of these serious violence against women is Rape. It is a stigma which exists in the
society from a very long time. As per the report release by the Home Ministry’s National
Crime Records Bureau (NCRB) in 2014, a total of 3,707 penetrative sexual attacks (rapes)
were formally reported in India.1 And as per its report released in 2007, it shows that 18
women become victim of rape every hour.2 When the rape cases were first recorded by the
NCRB in 1971, the number of reported rapes a day has increased nearly by 700%. The
number of cases has grown from 7 cases a day to 53. 3 This is just the scene of the reported
case and the number of incidents that actually happen against women in the country are
actually higher. A commonly cited estimate of rape holds that only 1 in 10 cases is reported
to the police and the other 9 goes unreported.4

Like any other country, the law relating to rape do exist in India but the justice is hardly
achieved. In many of the cases, the victims of the rape thinks before filing a complaint
because of the stigma attached to the rape in the society. In India, the question of rape is
linked to the status of women in the society. Despite of several rights that are possessed by
Indian women which include certain fundamental rights provided by the Indian Constitution
such as Article 14, 15, 16 and 39, the position of the women in the Indian society is highly
variable and largely depends on the extent of caste and class. According to a study conducted
by a Delhi based civil liberties group, People’s Union for Democratic Rights, the victims in
most of the rape cases are either a women from working class or minority or lower caste Dalit
Groups.5

This paper tends to look into the existing rape laws in our country and the development of
those laws from one point of time to the other.
1
Aaron Karp, Sonal Marwah and Rita Manchanda, Unheard and Uncounted Violence against Women in India,
Small Arms Survey (2o15).
2
Geetanjali Gangoly and Nicole Westmarland, Controlling women’s sexuality: rape law in India,
INTERNATIoNAL APPRoACHES To RAPE (BooK) pd. by Bristol University Press, Policy Press (2011), pg. 101-
120.
3
Ibid.
4
Supra Note 1.
5
Supra Note 2.

3
 EXISTENCE AND DEVELOPMENT OF RAPE LAWS IN INDIA

In India, rape is a cognizable offence. There are many provisions related to rape in various
acts. Its legal definition in India is provided in the S.375 of the Indian Penal Code (IPC), a
legal code which was approved in 186o.6 It defines and prescribes the punishment of rape.
Prior to IPC, there were often diverse and conflicting laws prevailing across India. The
codification of these distinct laws began after the establishment of the first Law Commission
which decided to put the Criminal Law of the land in two separate codes; Indian Penal Code
(IPC) and Code of Criminal Procedure (CrPC).

Section 375 of the Indian Penal Code provides the definition which made the act of having
sex by a man with a woman, if it is done without the consent of woman or against her will. 7
This definition in the section also includes sexual intercourse when the consent of the woman
is obtained by putting either her or any other person in whom that woman is interested, in fear
of death or hurt. Additionally, sexual intercourse with or without her consent is also
considered as rape when she is under 18 years of age. But there are exceptions to it also, that
is where the concept of marital rape jumps in, which means that sexual intercourse or sexual
acts by a man with his wife who is above 15 years of age is not considered as rape.

The rape laws in India under the IPC had gone through a lot of amendments. But, for over a
century, after the enactment of IPC, 1860, all the criminal laws related to rape and various
other sexual assault cases remain unchanged. The amendment to these laws were made in
1983, only after the happening of a watershed incident of the Mathura custodial rape case.

Mathura, a young Adivasi tribal agricultural laborer from Maharashtra, aged around 14-16
years was allegedly raped by policemen in the police station. 8 While the session court
acquitted both the policemen, holding that she had sexual intercourse at the police station but
the rape had not been proved and that she was habituated to the sexual intercourse. 9 This
judgement of the session court was reversed by the Bombay High Court which held that since
the policemen were strangers to Mathura, it was unlikely that ‘she would make any proposals

6
Akshay Goel, Rape Laws in India – Appropriate or not?, LEGAL SERVICES INDIA,
http://www.legalservicesindia.com/article/471/Rape-Laws-In-India-Appropriate-or-not?.html.
7
Soibam Rocky Singh, Explained: The laws on rape and sexual crimes, THE HINDU (December 17, 2019
17:32 IST), https://www.thehindu.com/news/national/what-are-the-laws-on-rape-and-sexual-
crimes/article30233033.ece.
8
Supra Note 2.
9
Supra Note 7.

4
or invite the accused to satisfy her sexual desires’. 10 When the case reached the Supreme
Court of India, it again reversed the Bombay High Court verdict saying that “the intercourse
in question is not proved to amount to rape”. According to the Justice Koshal, no injuries
were shown in the medical report, the argument of ‘firm resistance having been put up by the
girl is all a lie’ and the alleged intercourse was a “peaceful affair”.11

This case led to a major nationwide campaign on the issue of custodial rape. The
controversial judgement delivered by the Supreme Court in this case also added fuel to the
fire and wide scale protests in the country started, demanding change in the existing rape laws
of India. This resulted into the introduction of a bill in Lok Sabha to amend various
provisions of the rape law and the Criminal Law (Second Amendment) Act of 1983. After
this amendment, “a section 114A in the Indian Evidence Act, 1872 was introduced which
presumed that there is absence of consent in certain prosecutions of rape if the victim says
so.12” Press restriction on the trial of the rape cases was also imposed after the amendment.
Section 228A was added in the IPC which now makes it punishable to disclose the identity of
the victim of certain offences including rape. Further, amendment was made to the marital
rape also where marital rape exemption would not be applicable in the cases of judicial
separation. A final and major amendment was the introduction of the section 376 of the IPC,
which introduced a new category of rape – rape by members of the police within their official
jurisdiction; by public servants; by superintendents or managers or staffs of: jails, remand
homes or other place of custody established by or under any law or woman’s or children’s
institution against women in their custody; by management or the staff of a hospital.
Provision for gang rape was also included within this category which was more severely
punishable than any other forms of rape.13

The scope of rape laws was also widened later on to make it gender neutral after the
recommendation made by the Law Commission in its 172 nd report. The recommendations
were made following the direction of the Supreme Court in a PIL filed by an NGO to widen
the definition of sexual intercourse in Section 375 of the IPC. This recommendation led to the
amendment in the “Indian Evidence Act in 2002 where a new provision was made which

10
Supra Note 2.
11
Ibid.
12
Supra Note 7.
13
Supra Note 2.

5
barred putting questions in the cross-examination of the victim as o her general ‘immoral
character’ in rape or attempt to rape cases.14”

A new Criminal (Amendment) Act, 2013 was also passed on March 21, 2013 following the
nationwide protest in response to the Nirbhaya Case. on December 16-17, 2012, 23 years old
medical student was brutally gang raped on a moving bus in New Delhi by six men. After the
horrific act she was thrown out of the bus at an isolated place. She succumbed to her injuries
on December 29, 2012, at a hospital in Singapore.15

The new amendment made the anti-rape law tougher and stricter. This also made the
punishments more stringent which included death for repeat rape offenders. The amendments
were made on the recommendation of the Justice J.S. Verma Committee. The amendment
increased jail terms in various sexual assault cases and also provided the death penalty in rape
cases where the act causes the death of the victim or leaves the victim in vegetative state. 16
The punishment to gang rape was increased from the prior ‘10 years to life imprisonment’ to
’20 years to life imprisonment’.17Additionally, before the 2013 amendment, there was no
specific provision in law for offences such as use of unwelcome physical contact; words or
gestures; demand or request for sexual favours; showing pornography against the will of a
woman or making sexual remarks. But, after the amendment, the law specifically defined
these offences and allocated punishment for them. Likewise, “stalking was made punishable
with up to 3 years in jail.18”

Recently, one more amendment, Criminal Law (Amendment) Act, 2018 was passed, again
following the nationwide protests and calls for stringent punishment after a case in January
2018, where an eight years old girl was kidnapped, raped and murdered by a group of men in
Rasana village near Kathua in Jammu and Kashmir. 19 This amendment specifically dealt with
the offences against minors. This act provided for minimum 20 years in jail to death penalty
for rape of a girl under 12 years of age. A new section in IPC was also introduced which
provided for the punishment of minimum 20 years of jail to imprisonment for life for the
offence of rape on a girl below 20 years of age. Lastly, the minimum jail term for rape, which

14
Supra Note 7.
15
How Nirbhaya case changed rape laws in India, TIMES OF INDIA, (Dec 19, 2019, 09:06 IST),
https://timesofindia.indiatimes.com/india/how-nirbhaya-case-changed-rape-laws-in-
india/articleshow/72868366.cms.
16
Supra Note 7.
17
Ibid.
18
Ibid.
19
Ibid.

6
was remained unaltered after the enactment of IPC in 1860 was also increased from 7 to 10
years.20

20
Ibid.

7
 CONCLUSION

As seen in the paper above, many amendments in the rape laws have been made in the
country. But all these amendments and changes will be helpful only if they are strictly
followed and the number of rape cases are decreased. Further, the need of the hour in current
times is the safety of women and improving the number of convictions in the rape cases that
are genuine by significantly upping the quality of investigation and evidence gathering.