Implementation and Enforcement of rape laws in India: Gender justice or Gender-sensitive
In India, the criminal justice system holds enormous challenges and obstacles for rape victims. They have to face humiliation in society because for this reason many cases are not even reported after such types of atrocities with women in India. There are innumerable issues and concerns about the protection of women who form these types of malicious or brutal acts in the 21st century of civilized society. The authors in this paper are inclined to bring out or examine the difficulties confronted by the victims of these atrocious crimes, the inefficiency of administration in implementing rape laws and its enforcement is a crucial concern and question. As in many cases, victims are denied to exercising their basic constitutional, fundamental, and human rights concerning a dignified life, that we discussed further in this paper. The circumstance was grimmer until the modification of the Indian Penal Code (IPC) and the Indian Evidence Act in 1983. Several Amendments were inserted which shall be examined later in this paper. Still, the problem is not very satisfactory for and the victims of rape. However, the Courts are on the way to furnishing gender justice but their strategy is still not gender-sensitive. The problem of Courts is still restricted to the patriarchal approach so that they don’t even wait to comply with such problems to ascertain the offense of the accused.
We have attempted to research the Rape Laws in India and the difficulties in their enforcement. We have struggled to demonstrate the extent of additional reforms in the laws to make the way less traumatic for the victims of rape. Our insistence remains that even though today our judiciary may be furnishing so-called gender justice but it still needs the gender-sensitive method. The justice which furnished to the victim after confronting a lot of humiliation no more holds good and as it is told that “justice delayed is justice denied”, the Indian judiciary also needs to speed up the process of justice delivering in the criminal justice system of India.
WHAT IS RAPE?
In reasonable and layman terminology, rape means, an act of sexual intercourse or assault with women without her consent or willingness. The legal definition of rape is provided under sec. 375 of Indian penal code, 1860, which provides: -
A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her do so with him or any other person; or (c) manipulates any part of the body of a woman to cause penetration into the vagina, urethra, anus, or any part of the body of such woman or makes her do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman, or makes her do so with him or any other person.
Rape is formulated in most jurisdictions as sexual intercourse, or distinct elements of sexual penetration, perpetrated by a perpetrator against a sufferer without their consent or willingness. The definition of rape is inconsistent between governmental health organizations, law enforcement, health providers, and legal professions. Rape is considered as an evil act in every society, it is a horrific act and a massive violation or destruction of the dignity of women. In India women a paramount position in society, since the period of Rigveda, and, Vedas. These malicious act of rape causes massive vulnerability to women, sexually, physically, mentally, etc. Women in India, are confronting severe issues and concerns concerning their freedom of movement, right to a dignified life, freedom of speech and expression, etc. There is a need for gender justice and a gender-sensitive approach in India for preventing these horrible and heinous crimes in society.
RAPE LAWS IN INDIA “The law of rape is not just a few sentences. It is a whole book, which has clearly demarcated chapters and cannot be read selectively. We cannot read the preamble and suddenly reach the last chapter and claim to have understood and applied it.” —Kiran Bedi
Indian Penal Code:
Sexual Offences: Section 375. IPC defines “Rape” as:
A man is said to commit “rape” who, except in the case hereinafter accepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
First: Against her will. Secondly: Without her consent. Thirdly: 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. Fourthly: 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.
Fifthly: 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. Sixthly: With or without her consent, when she is under sixteen years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offense of rape. Exception: Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.
Section 376 - Prescribes the “Punishment for Rape”:
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of fewer than seven years. (2) Whoever: - (a) Being a police officer commits rape- (i) Within the limits of the police station to which he is appointed; or (ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii)On a woman is his custody or in the custody of a police officer subordinate to him; or (b) Being a public servant, takes advantage of his official position and commits rape on a woman is custody as such public servant or in the custody of a public servant subordinate to him; or
(c) Being on the management or the staff of a jail, remand home, or another place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) Being on the management or the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) Commits rape on a woman knowing her to be pregnant; or (f) Commits rape when she is under twelve years of age; or (g) Commits gang rape,
Shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of fewer than ten years.
Explanation 1: Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2: ”Women’s or children’s institution “means an institution, whether called an orphanage or a home for neglected women or children or a widows’ home or by any other name, which is established and maintained for the reception and care of women or children.”
Explanation: 3: “Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.
Later few additional amendments were made to formulate the way to justice simpler for the sufferer of rape. In 2005, Section 164A was expanded to the Criminal Procedure Code which furnishes for the medical inspection of the victim by a doctor appointed in the government hospital and his deficiency by any private doctor empowered his name is enrolled in the State Medical Register.
The legislature carried about a modification in by Act 4 of 2003 (sec. 3) by injecting a proviso to section 146 of the Indian Evidence Act 1872 that in litigation for rape it shall not be acceptable to impose questions in the cross-examination of the victim concerning her ethical personality. This oversaw the deletion of section 155 (4) of the Indian Evidence Act in 2003, whereby the ‘generally immoral character’ of the sufferer can be a ground put forward by the accused of rape.
As such we could collect data only from Rajasthan and the Delhi Police websites. As per the Rajasthan police website rape cases in the state for the month of June, July and August stands at 531, 634 and 526. The Delhi police website says, that until August 15, this year, 908 rape cases and 1523 cases related to kidnapping were reported for this year.
More than three women were raped everyday in Haryana during the first six months this year, despite the Covid-19 lockdown, director general of police (DGP) Manoj Yadava told the media recently, claiming a 20.46% drop in incidents of crime against women. He said as many as 657 rape cases were reported between January and June 2020 as compared to 803 last year. according to the annual National Crime Record Bureau’s ‘Crime in India’ 2019 report released on Tuesday, UP reported the highest number of crimes against women (59,853), accounting for 14.7 per cent of such cases across the country. This was followed by Rajasthan (41,550 cases; 10.2 per cent) and Maharashtra (37,144 cases; 9.2 per cent). Assam reported the highest rate of crime against women at 177.8 (per lakh population), followed by Rajasthan (110.4) and Haryana (108.5). Rajasthan reported the highest number of rapes with 5,997 cases, followed by UP (3,065) and Madhya Pradesh (2,485).
In terms of rate of rape cases, Rajasthan was the highest at 15.9 (per lakh population), followed by Kerala (11.1) and Haryana (10.9). Uttar Pradesh reported the most cases against Scheduled Castes – 11,829 cases, accounting for 25.8 per cent of the cases across the country. It was followed by Rajasthan (6,794 cases; 14.8 per cent) and Bihar (6,544; 14.2 per cent).
THE FLAWS IN THE RAPE LAWS:
However, sliding modifications have been instructed in the rape laws still few questions remain unchanged and are open to discussion. Section 375, IPC does not indicate MARITAL RAPE. It simply says that the sexual intercourse by the husband with his wife if the wife is above the age of 15 years. It nullifies the notion that even as a wife of someone a woman carries absolute right over her body. It outrightly makes the will of the husband binding for the wife without the consent of that woman and valid in the eye of law.
DETERMINATION OF AGE OF GIRL VICTIMS:
Moreover, there is the distinction between the ages of the majority for all other legitimate objectives, i.e. 18 years, and the offense of rape i.e. 16 years. This has led to the contradiction whereby a girl is supposed to be unable of taking independent decisions in other consequences but is considered to be eligible adequate to consent to the sexual intercourse if she is above the age of 16 years. This disparity should be eliminated. The proof of age of rape victim is substantial because the permission of the victim is immaterial where she is below 16 years. The responsibility of verifying the age of the victim lies totally in the prosecution. If it is not proved that the sufferer is below the age of 16 years, then it also has to be substantiated that she did not consent to sexual intercourse. In the rape trials of rural areas, the actual difficulty occurs when a reasonable birth certificate cannot be produced. The credibility of the ossification test is still worried and where the examination holds up an edge of two years, the advantage of the question has been given to the accused. Thus, the decision of the age of the girl sufferer should not be left to the discretion of the judiciary.
Section 376 of IPC specifies the least punishment of ten years and the ultimate punishment of life imprisonment for the crime of rape. The need for the award of capital punishment for the crime of rape stays unfulfilled. The difficulty occurs with the proviso to section 376 of IPC which provides the discretion to the Courts to increase lessen the minimum punishment of 10 years. This capacity has been utilized time and again by the judiciary. It puts forward questions over the intent of the legislators. In my belief, rape is a brutal act for which even stoning the accused to death is inadequate to reimburse for the destruction resulted in the victim.
In Bhan Singh vs. the State of Haryana, a 7 years old girl was raped by a boy of 18 years. She was severely injured and left in an unconscious condition. The Sessions Court convicted the accused for 5 years of rigorous imprisonment. The appeal to enhance the sentence was dismissed on the following reasoning: “Although rape warrants a more severe sentence, considering that the accused was only 18 years of age, it would not be in the interest of justice to enhance the sentence of 5 years imposed by the trial court.”
NEED FOR REVIEW
As in India, the rate of these atrocious crimes of rape is increasing day by day, the laws we have today is coming to be ineffective. The need for retow rape laws is necessary according to the social observation and condition of womenwomenciety with respect to their safety and dignity. The existing laws put victims in troubling situations because of the procedure, victims have tohavenfront a lot of challenges in every step of there for getting justice for such malicia ous act of offenders in society. Laws for adequate implementation of the existing is needed inserted, provisions for increasing the punishment is very crucial aspect of review the. With the reference of aforementioned, it is clearly said that there is an urgent need to review the existing laws related to the sexual offenses specifically rape laws in India.
The National Commission for Women has identified nine area for review. These are:
1. Review of the definition of rape 2. Reduction of procedural delays 3. Uniformity in the age of consent under Sections 375 and 376 of Indian Penal Code, 1860, bring it in conformity with the Child Marriage Restraint Act, 1869. 4. Whether exception to Section 375 should be deleted 5. Whether Section 155 clause 4 of the Indian Evidence Act, 1872 needs to be amended or deleted. 6. Whether statutory provisions are needed for compensation to the rape victim
7. Whether provisions for counseling legal aid should be made mandatory under laws. 8. Death penalty to persons convicted for rape. 9. Recommendation for enhancement of punishment in cases where the accused, with the knowledge of suffering from HIV infection/AIDS, infects the victim as a result of rape.
Further, a detailed piece of legislation protecting nearly every facet of sexual assault against women and minors has been drafted at the ambition of the All India Democratic Women’s Association (AIDWA). It is named the Criminal Law Amendment Bill. It is established on the 172nd report of the Law Commission to modify laws pertaining to sexual assault in Sections 375, 376, 354 and 509 of the IPC, the related sections of the Code of Criminal Procedure (CrPC), 1973, and the Indian Evidence Act. When it comes to being the law, the legislation will be named the Criminal Law Amendment Act, 2000. The recommendations include: • provisions for quick trials; • recording the statements of victims at places of their choice; • investigation of cases by women police officers; and • Hearing of cases, wherever possible, by women judges.
The Bill also deals with marital rape and formulates punishment for rape within marriage. But the Bill is still not the Act and is not the law of the land.
SLOPPINESS OF ADMINISTRATION
Nine years after the Nirbhaya gang-rape case in December 2012 that resulted in more stringent rape laws - criminal law (amendment) act 2013, girls and women survivor of sexual violence and rape in India continue to face a significant barrier in access to justice and to support services such as health care, counseling, legal aid, etc. Due to a lack of systematic and procedural reform, the law has failed to attain its primary objective.
In most cases, the accused get away with minor punishments due to lack of evidence and they are also protected by police and politicians. In the recent Hathras case, the body of the victim was cremated in the dead of the night in the absence of her family. The vaginal swabs in rape cases should be taken within 72 hours while in this case the samples were taken after eight days of the victim being admitted to the hospital. These actions on the part of police professionals show the wide gap between government efforts on paper and implementation in reality.
In the IPC, all sexual offenses are cognizable. It is mandated by law for police to immediately file FIR in complaints of sexual offenses. The police in most cases disbelieves the women's complaint and often pressurize them to compromise. On Dec 26, 2018, in Shahjahanpur, UP, a 28-year-old woman who was allegedly raped by her neighbor committed suicide after the police refused to file an FIR and instead pressurized her to marry one of the men.
It is a legal obligation for doctors in India to provide for first aid and a medical test, free of cost to the women and girls who approach them and disclose rape. Apart from collecting forensic evidence, they must provide therapeutic care to survivors. However, recent cases show that instead of providing a safe environment for treatment, a doctor's attitude towards the survivors can leave them traumatized for the second time.
In 2014 the Ministry of Health issued guidelines for medico-legal care for survivors of sexual violence to standardize health care professionals. The guidelines eliminated specifically what is commonly known as the 'two-finger test'. Still, several states have continued to practice the two-finger test despite the availability of SAEK. This behavior and belief of the administration towards the victims of rape become a barrier in the implementation and enforcement of rape laws in India. The administration seems ineffective in discharging their functions in the adequate manner.
THE PATRIARCHAL APPROACH OF JUDICIARY
The procedure of judiciary in the rape lawsuits has been confusing. The Courts though impart gender justice but simultaneously they remark heavily upon the patriarchal problems like sexuality and virginity of the sufferer. A judge should only glimpse into the evidence in issue i.e. whether the act of sexual intercourse was against the will of the sufferer or not? It is not our personal viewpoint but the viewpoint of the honorable Supreme Court in Maharashtra v Madhukar Narayan Mardikar which says: “...Even a woman with easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also, it is not open to any and every person to violate her person as and when he wishes. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.”
Accordingly, the question is lies here, why judiciary need to put these types of disrespecting comments on the character of a victim? Why judiciary interfere in the personal relations and behavior of the victim? By remarking on the character or interfering in the personal affairs of the victim's judiciary itself violate the “right to privacy" of victims, which is enriched under article 20 of the Constitution of India.
In 1984, the early year after the amendment, commenced with a judgment that indicates a very unfavorable perspective of women’s sexuality. In Jayanti Rani Panda vs. State of West Bengal, a school teacher had seduced a young girl but when she conceived, he refused to marry her. The girl filed a complaint that since her consent to sexual intercourse was given under a false promise of marriage, it was not valid consent. Hence the act amounted to rape. The Calcutta High Court held: “Failure to keep the promise at a future uncertain date does not amount to the misconception of fact. If a fully grown girl consents to sexual intercourse on the promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity.” The Court neglected the fact that the consent obtained under the misconception of fact is no consent in the eye of law. Contrary to these ruling authors intended to express that, there no one should be authorized to obtain the advantages of fraud in sexual matters.
Furthermore, there have been illustrations where the Courts have curtailed the sentence of the accused simply because the sufferer got married during the pendency of the lawsuit. The Court infers that since the rape did not “mar the likelihoods of marriage”, the offence is less terrible and merits deduction of verdict. We don’t see the offence and the fact of victim getting married even remotely related to each other. According to our learned judiciary the only damage resulted in by the malicious offence of rape to the victim is this, that the chances of her getting married comes to be dismal and fortunately if she gets married then the destruction resulted in is undone.
In a horrible assertion, the Court went on to the extent of telling that, “Sexual morals of the tribe to which the girl belonged are to be taken into consideration to assess the seriousness of the crime.” What we are incapable to comprehend is that as to how the Court is getting on to verify the sexual morals of the people? Even if the judiciary is furnishing gender justice it is bare of the burden over the loss of virginity or the wedding prospects of the victim. The Court ignores that by again and again underlining such questions they continue hitting upon the sexuality of the women. The sufferer is made to think that it’s you who is paralyzed for life and not the accused. In our viewpoint, the sufferer should only be inquired whether the act was against her permission if she is above the age of 16 years and once it is verified there should be a conviction if the accused. There is barely any requirement to remark upon the character and sexuality of the victim in the court of law.
At this historic moment, feminism must reconsider its engagement with the language of rights and the law. The experience of the last decade not only raises questions about the capacity of the law to act as a transformative instrument but more fundamentally, points to the possibility that functioning in a manner compatible with legal discourse can radically refract the ethical and emancipator impulse of feminism itself. There is growing feminist unease at the interface of the law with sexuality. The failure of the law to deliver justice in feminist terms is understood to be a result of the interpretation of the law in sexist ways so that the law’s capacity to be just would be freed from the biases of individuals.
It is only through the process of sensitizing various branches of the government and more importantly, the members of society to the rights and concerns of women can gender justice become a reality. Law is only one method by which the various problems of women can be resolved.