Though the law is said to grant justice to the innocent, the same is sadly not true in case of rape victims. The laws are not very just and to top it they are in urgent need of a review. Till time it happens rape victims have little solace….
Justice prides herself on being blind to everything but the truth - yet as far as rape is concerned, the facts paint a different picture. Rape laws in India are extremely antiquated. Although the laws outline the crime in clear terms, the courts are filled with people who favour the accused and challenge the veracity of the victim’s allegation.
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Laws Governing Rape
The Mathura Case
Other Unjust
Judgements
Aftermath
Of Mathura Case
Debatable Points
Bias In The Law
Need For Review
Women In Arms
According to the Indian Penal Code, a man is said to have committed `rape’ when he has had sexual intercourse with a woman under these conditions:
a.Against her will
b.With her consent when her consent
has been obtained by putting her or any person in whom she is
interested
in, in fear of death or hurt.
c.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.
d.With her consent, when at the time
of giving such a consent, by reason of unsoundness of mind or
intoxication
on the administration by him personally or through
another of any stupefying or unwholesome
substance,
she is unable to understand the nature of the
consequences of that of which she gives consent.
e.With or without her consent, when
she is under 16 years of age.
Where rape is proved, the minimum punishment is ten years for custodial rape, gang rape, rape of pregnant women and minor girls under the age of 12 and seven years in other cases.
Sadly, in practice the odds are still stacked against the victim. Mathura, a 16-year-old tribal girl, had the misfortune to experience this at firsthand. On March 26, 1972, she was raped by two policemen in the compound of Desai Ganj police chowky in Chandrapur district of Maharashtra. Her relatives, who had come to register a complaint, were patiently waiting outside even as this heinous act was being perpetrated in the police station. When her relatives and the crowd threatened to burn the police chowky down, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama.
The case came up for hearing in the sessions court on June 1, 1974. But the judgement pronounced turned out to be in favour of the accused. Mathura was accused of being a "liar". It was stated that since she was "habituated to sexual intercourse," her consent was given. Under the circumstances, only sexual intercourse could be proved not rape.
The Nagpur bench of the Bombay High Court set aside the judgement of the sessions court and sentenced Ganpat and Tukaram to 5 years and 1 year of rigorous imprisonment respectively. The judgement was that passive submission due to fear induced by serious threats could not be construed as willing sexual intercourse.
However, the Supreme Court again acquitted the policemen. The judgement said that Mathura had not raised an alarm and there were no visible marks of injury on her body. The judgement did not distinguish between consent and forcible submission.
The Mathura case stirred the conscience of the whole nation. But it wasn’t the only case of its kind. Sakina, a poor 16-year-old girl from Kerala, had been lured to Ernakulam with the promise of finding a job. There, she was sold and forced into prostitution. For 18 months, she was held in captivity and raped by clients. A complaint by a neighbour led to her rescue. Aided by her parents and an advocate, Sakina filed suit in the High Court, naming the upper echelons of Kerala’s bureaucracy and society.
The High Court quashed the case, observing "It is improbable to believe that a man who desired to have sex on payment would come to a reluctant woman." The judgement added, "The version of a woman of this disposition is not so sacrosanct as to be taken for granted." This despite knowing that the girl had been beaten and held against her will.
In the case of Mohammed Habib v/s State, a High Court bench allowed a rapist to go scot-free merely because there was no injury to his penis, assuming that the victim had not resisted. That the victim was a seven-year-old girl who had suffered a ruptured hymen and bite marks on her body was not taken into consideration. Even witnesses, who saw the rape at a bus stop and then deposed in court, were unable to sway the court’s judgement.
In the Bhanwari Devi judgement, a judge remarked that the victim could not have been raped since she was a dalit while the accused hailed from the upper caste, and an upper caste man would not stoop to sexual relations with a dalit.
Clearly the law needs to be more sensitive to the feelings of the victim, who has had a traumatic time and scarcely needs to be reminded of it. Often the victim is abused and humiliated. "Don’t try to tell us that you didn’t enjoy it."
Fortunately, the outrage, resentment and demand for more stringent anti-rape laws, generated by the Mathura case, led to the Criminal Law Amendment Act 1983. It amended section 376 of the Indian Penal Code and stipulated that the penalty for rape should not be less than 7 years. It also provided for trial in camera and inserted a clause, making the disclosure of the victim’s identity a punishable offence.
There are a few points in the law, which are open to debate. Sexual intercourse by a man with his own wife, where the wife is over 15 years of age, is not rape. Sexual intercourse in a custodial situation is deemed an offence (policemen, public servants, managers of public hospitals and remand homes or wardens of jails), even if it is with the consent of the woman.
As a whole, the process of law is biased against the victim. If the victim is a minor, the onus is on the accused to prove his innocence. But if the victim is a major, it is up to her to prove her charge. Therefore, the defence finds it worthwhile to prove that the victim is a major.
Also, in rape cases, unless the woman is examined medically within 24 hours, it becomes difficult forensically to prove that rape has occurred.
The laws too are discriminatory in nature. According to Section 155 (4) of Indian Evidence Act, "When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix (victim) was of generally immoral character." Section 54 of Indian Evidence Act says, "In criminal proceedings (including rape) the fact that the accused person has a bad character is irrelevant, unless evidence has been given (by him) that he has a good character, in which case it becomes relevant."
When the laws themselves carry an inherent bias, how far can the victim be assured of justice?
The National Commission for Women has identified nine areas for review. These are:
a.Review of the definition of rape
b.Reduction of procedural delays
c.Uniformity in age of consent under
sections 375 and 376 of Indian Penal Code, 1860, to bring it in conformity
with the Child
Marriage Restraint Act, 1869
d.Whether exception to section 375
should be deleted
e.Whether section 155 clause 4 of
the Indian Evidence Act 1872 needs to be amended or deleted.
f.Whether statutory provisions
are needed for compensation to the rape victim
g.Whether provisions for counselling
legal aid should be made mandatory under laws.
h.Death penalty to persons convicted
for rape
i.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.
A number of changes are called for. Social workers have suggested that trials must be held without delay and that the panchnama must be recorded properly.
Women must also remember that it is against the law to arrest them at night. Also, a policeman cannot touch a woman when he is arresting her. The statements of women should be recorded in the presence of a relative, friend or a social worker.
Earlier, any discrepancy in the statement of the
victim was supposed to indicate that the victim was lying. In recent times,
the Supreme Court has said that minor,
insignificant contradictions in the statement of the prosecutrix should
not be a ground for discarding an otherwise
reliable prosecution case. A FIR (First Information Report) is an initiation
to move the legal machinery and investigate
a cognisable offence. Therefore, no FIR should be quashed without an inquiry.
The court should also refrain from being a
silent spectator while the victim is being cross-examined by the defence
lawyer. It should ensure that the victim is not harassed or
humiliated.
The court also held that it would be a travesty of justice to show mercy in rape cases. Accordingly, it enlarged the scope of Article 21 of the Constitution (right to life and dignity) when it ordered compensation for a foreign national who had been raped by some Railways employees in Calcutta.
Rape is a weapon that distorts a woman’s sexuality,
restricts her freedom of movement and violates her human rights. It leaves
a woman feeling exposed, humiliated and traumatised.
A rapist not only violates the victim’s privacy and personal integrity,
but also causes serious physical and psychological
damage. The law must take a fresh look at itself and take positive steps
to make it more difficult for an accused to
get judicial reprieve.
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