(Written especially for this website)

                              -Dr. Anil Aggrawal
 
 

When Mathura, a minor and orphan Harijan girl, filed a case against Ganpat, a police constable
for raping her, little did she realize that she was undertaking an exercise in futility. As far as
her innocent little mind worked, the facts of the case were very clear and indisputable. She
had a boy friend and wanted to marry him. Her brother, who was against this marriage, lodged
an abduction report with the police. Rather than do anything about the case, the police
constable Ganpat saw his chance, summoned her to the police station at night, terrified her into
submission and quenched his lust on her. Having thus satisfied his lust, he let her go.

This case occurred in 1978, when the rape laws in our country were heavily skewed in favor
of the rapist. The most controversial question was of course regarding the consent of the
female. In most cases, the victim found it impossible to prove that she had not consented to the
act.

The same happened in Mathura's case. The Supreme Court ruled (Tukaram Vs. State of
Maharashtra, AIR 1979 SC 185; (1979) 2SCC 143; 1978 CrLJ 1864; 1979 SCC 143),
that there were no injuries on the person of the girl, which meant that she did not put up
resistance and that the incidence was a "peaceful affair"! Ganpat, who in similar circumstances
in a Western country would have gone behind bars for life, was acquitted.

So much for women's rights and women's liberation in our country. Nevertheless, the case
stirred up a hornet's nest and the government was forced to wake up from its long slumber. In
1983, a comprehensive change was made in the rape laws, yet it was not enough to clip the
dangerously overgrown claws of the rapists. Most women activists and lawyers feel that we
are still miles behind equivalent laws compared to our western counterparts.

Section 375 of the Indian Penal Code (IPC) defines rape. Rape (from Latin rapio, to carry
off, to overcome) means an unlawful intercourse done by a man with a woman without her
valid consent. In certain cases, when consent is taken by fraudulent means or by
misrepresentation, the act is still ûquite rightly- taken as rape. A rapist, for instance can put a
gun at his victim's head and obtain consent. Still better, he could ask one of his goons to put a
gun on her husband's head and tell her that the gun would go off if she did not relent. Consent
could also be had fraudulently by giving her intoxicating or stupefying substances ( Cannabis
is just one of the many stupefying drugs which can be given to achieve this). Another way of
getting consent by fraudulent means is by impersonation. A rapist may slip into the bed of an
unsuspecting woman in the thick of night, when the woman, taking him to be her husband not
only does not resist, but actively participates in the act. These cases are rare but do occur
occasionally. Finally the consent of a woman of unsound mind and of a girl below 16 are not
taken to be lawful consent because it is presumed that these women are not in a position to
truly understand the nature and gravity of sexual intercourse.

This was the position before 1983 and on the face of it the provisions sound fair enough. Yet
Ganpat managed to wriggle out of the legal consequences of his act. If a police officer
apprehends a person illegally and insists he will not free the man until his wife submits to the
officer, how can one prove rape if she does so? No person in his right mind would imagine
that such an act was not rape, yet the law would not recognize it so before 1983. The women
had to prove she had not consented. The rapist was considered innocent unless proved
otherwise.

The change in rape laws in 1983 improved the situation to a great extent. Among other things,
the punishment for rape was made more severe. Before, the punishment prescribed under
Section 376 of the IPC provided for a maximum sentence of life imprisonment but there was
no minimum limit. Thus, in theory a rapist could get away with a sentence of say, just one
month.

In 1983 although the legislature failed to increase the maximum sentence to capital
punishment as was vehemently demanded by women's organizations, it prescribed a minimum
sentence of seven years' imprisonment. Every rapist on being found guilty thereafter bad to
undergo a minimum imprisonment of seven years. Besides, an important provision - Section
376(2) - was added to the IPC. This section introduced the concept of some special kinds of
rape and prescribed a minimum of ten years for these cases. Furthermore, in such cases, the
imprisonment had to be of a rigorous nature only. These included rape by a police officer
within the premises of a police station; rape by a public servant of his junior while taking
advantage of his official position; rape by an official in a jail or remand home of an inmate;
rape by someone on the staff of a hospital of a woman in the hospital; rape of a pregnant
women; rape of a, girl under 12 years of age end gang rape.

Rape by persons who are in a position of authority e.g. police officers, jail wardens, hospital
staff etc., is generally termed custodial rape. Gang rape is a situation when a woman is raped
by one or more than one person from amongst a group of persons acting in furtherance of their
common intention. The important thing is that in such situations each of the persons within the
group will be deemed to have raped the women even if each one of them did not actually
have sexual intercourse with her. Thus if five men catch hold of a woman and only one
ravishes her in order to, for instance, humiliate her husband because of some old vendetta, all
the five men will be imprisoned for a minimum of ten years.

It is very difficult for the victim to prove absence of consent especially in cases of custodial
rape, so a special section was added to the Indian Evidence Act (IEA). According to the new
provision - Section 114A of the IEA - in cases of custodial rape, gang rape and rape of a
pregnant woman, if the victim states in court that she did not consent, then the court shall
presume that she did not consent and the burden of proving consent shell shift to the accused.
This was a major reform in the law.

The legislature did not stop at this. There can be cases when a person in authority can get a
women to have intercourse with him "willingly" by offering handsome rewards in return. A
superintendent of a jail can offer better living conditions to a woman prisoner if she "willingly"
submits to him. Such cases will not amount to rape; nevertheless they do signify abuse of
official position. For such cases four special provisions - 376A, 376B, 376C and 376D - were
added to the IPC and a, punishment of five years' imprisonment provided. In effect, if a
person in authority has had sexual intercourse with a women in his custody, he will firstly have
to prove that the women in question had consented. If he can't prove this he will be guilty of
custodial rape and shall have to undergo a minimum rigorous imprisonment often years.
Secondly, even if he is able to prove that the women did consent, he may not be charged with
custodial rape yet he can be imprisoned for five years under Sections 376B, 376C and 376D.

It would seem that enough changes have been made in the rape laws to bring it on par with
that of Western countries. However, there are still some glaring deficiencies. For one thing,
the law does not provide for separate and speedy trials for heinous crimes such as child rape.
The definition of rape too is finite restrictive. For raping a women, penile penetration must be
proved. One can ravish a women equally or much more violently by shoving, for example, an
iron rod into her private parts. Yet such a man would not be held guilty of rape. Several such
cases have indeed come to light.

But the worst thing is the continued existence of Section 155(4) of the IEA, which provides
that when amen is prosecuted for rape and if is shown that the woman in question is of
immoral character then her evidence will not be taken into account. It may be argued that this
provision offers protection to the accused against false allegations of a women whose
character is suspect. Yet consider Section 54 of the same Act. Among other things it says that
in cases of rape, the fact that the accused person is a bad character is irrelevant. In effect, for
the purpose of proving that a men did rape the prosecutrix, it is irrelevant to show that he has a
bad character. If the bad character of the prosecutrix is considered in cases of rape, why not
the bad character of the accused too?

In fact, it can be argued that these provisions are unconstitutional as they contravene the
equality clause under Article 14 of the Indian Constitution. Is it not highly unfair to apply
different standards to the accused and the complainant only in rape cases?

(Dr. Anil Aggrawal is a professor of Forensic Medicine at the Maulana Azad
Medical College, New Delhi-110 002. He specializes in detection and
investigation of sex crimes and in sex laws around the world. His E-mail is
dr_anil@hotmail.com and his Website address is
http://members.tripod.com/~Prof_Anil_Aggrawal/index.htm)