The news of two cold-blooded rapes, both in Uttar Pradesh. One in Hathras and the other in Balrampur had steered a widespread outcry in the country. To understand the backdrop of the concept of rape, we have to move back when the term was first introduced in the Public domain. The codification of Indian laws began with the enactment of the Charter Act, 1833 by the British Parliament which led to the establishment of the first Law Commission under the chairmanship of Lord Macaulay. Lord Macaulay was given the daunting task to make a uniform criminal code for a gigantic nation like India. With so many regional laws prevailing in the country in different areas based on religion, area, and ethnicity. It took 27 years' for the first Law Commission and Law Ministry to enact a Uniform Criminal Code to the country in 1860 and 15 months later on January 1, 1862, the Indian penal code was brought into the force.Position of IPC, 1862 concerning the Offence at the time of Independence was;
The term “Rape “gets highlighted in section 375 Chapter XVI of The Indian Penal Code. It states:
”the act of sex by a man with a woman if it was done against her will or without her consent."
The definition of rape also included sex when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Also, sex with or without her consent, when she is under 18 years is considered rape. However, the 1860 version of the IPC also ignored sex without consent between a husband and wife (aka marital rape), a clause that is missing from our anti-rape laws even today. The punishment for gang rape and repeat offenders was made harsher. All in all, the minimum punishment for rape was as lenient as two years in prison (the same as perjury) and the worst-case scenario was a life sentence. Under the exception, sexual intercourse or sexual acts.
Process of Evolution took place as follows:
"Society prepares the crime; the criminal commits it."
~ Henry Thomas Buckle
Criminal Law Amendment Act, 1983
It was quite evident that the rate at which the crime of rape was committed was alarming even back in those times. However, for over a century from the code being implemented from 1862, the laws on the offence of Rape remained the same. But in 1972, the incident of Mathura rape case or famously known as "Custodial Rape Case" took place which brought out the flaws in the rape law of the country. As apex court in its verdict, said no marks of injury were found on the girl after the incident and “their absence goes a long way to indicate that the alleged intercourse was a peaceful affair". This decision in turn led many scholars and legal jurists to take matters directly to the government to highlight the flaw in the rape law at that time and The Criminal Law Amendment Act, 1983 was brought.
The Criminal Law Amendment Act 1983 made a statutory provision in Section 114 (A) of the Indian Evidence Act, 1872 which now stated that if the victim says that she did not consent to the sexual intercourse, the Court shall presume that she did not give consent as a rebuttable presumption. New laws were also enacted following the incident. The Section 376 (punishment for rape) of the Indian Penal Code changed with the enactment, the amendment shifted the burden of proof from the accuser to the accused once it has been proved that intercourse took place it also added provisions for in-camera trials, the prohibition on the victim identity disclosure, and tougher sentences.
The amendment brought changes which helped the legal system in respect of the safety of women to get strengthened.
Nirbhaya Rape Incident and Criminal Law (Amendment) Act in 2013
In December 2012, when the Delhi rape case happened whole India's conscience was shaken with so many atrocities having being committed on the victim during the offence. To tackle the issue Parliament made amendments in the Criminal Law on the recommendation of the Justice J.S. Verma Committee, which was constituted to re-look the criminal laws in the country and recommend changes.
Criminal Law (Amendment) Act in 2013 was brought into existence and was passed in the legislature. The Amendment made sure that the scope of the definition of rape was widened and punishment was made more stringent and detrimental in its approach by increasing jail terms in most sexual assault cases and also providing for the death penalty in rape cases that cause the death of the victim or leaves her in a vegetative state.
It brought a big revolution in the field of women safety as new offences, by clearly defining offences such as the use of criminal force on a woman with intent to disrobe; voyeurism and stalking were introduced with stalking being made punishable with up to three years in jail.The punishment for gang rape was also increased to 20 years to life imprisonment from the earlier 10 years to life imprisonment. The new law was made sure that now boys of 16-18 years or slightly older may be branded rapists if they have non - consensual sex with a girl and even consensual sex with a girl of the same age and the judge will have no discretion in the matter.
Criminal Law (Amendment) Act, 2018
Kathua Rape incident, where an eight year old girl in Rasana village near Kathua in Jammu and Kashmir was abducted, raped and murdered by a group of men again led to questions on the safety of women and more particularly minor girls in our country.To solve these pertaining issues Criminal Law (Amendment) Act, 2018 was brought which for the first time put death penalty as a possible punishment for rape of a girl under 12 years; the minimum punishment is 20 years in jail. To take a note from this amendment was that minimum punishment for rape was also the first time increased from 7 to 10 years.
Written By: Mr. Piyush Jain,2nd Law Student, Lloyd's Law College, Noida, Law Intern at S.Bhambri & Associates (Advocates), Delhi.