Author-Lipi Saini , National Forensic Science University, Delhi
Introduction
Rape is one of the most heinous and barbarous crimes of all time but still it has been a long struggle. Throughout most of the history women had no rights and were treated as mere property, therefore, rape was viewed as crime only in terms of property violation of another man. Rape is 4th most common crime against women in India.
In 2023 India, reported a significant rise in rape cases, with crimes against women increasing by 4% compared to the previous year cases.The total number of crimes against women rose from 4,28,278 in 2021 to 4,45,256 in 2022, marking an upward trend that has continued into 2023. Major metropolitan cities like Delhi, Mumbai and Bengaluru reported the highest number of rape cases against women. Many cases are left unreported as women get scared of the societal judgements and their slander behaviour against women. Rape is generally considered to be a gender based violence. This increase highlights ongoing issues in combating gender-based violence, despite efforts to improve legal frameworks and reporting mechanisms.
In India, the issue of rape has been a subject of instense scrutiny and debate, especially in wake of several high profile cases that have shaken the nation’s conscience.With the evolving time, there was shift in the cultural beliefs and norms which lead to the significant change in the definition of rape as a crime. The Indian rape laws trace its origin from the English common law. Rape cases were first mentioned in 1860 under Indian Penal Code (IPC).
Eventually rape laws were strengthened and made more strict over the decades due to some brutal and heinous rape cases that led to several major amendments in laws.
Definition of Rape in Indian Penal Code,1860
Under the Indian Penal Code (IPC), Section 375 defines the offence of rape. According this section a man commits “rape” if he:
- Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of any woman, or makes her do so with him or any other person.
- Inserts any object or a part of the body, not being the penis, into the vagina, urethra or anus of any woman, or makes her do so with him or any other person.
- Manipulates any part of the woman’s body so as to cause penetration into vagina, urethra, anus, any other part of the body.
- Applies this to the vagina, anus, or urethra of a woman or makes her do so with him or any other person.
However these acts are only considered rape if they are done under any of these circumstances:
- Against her will;
- Without her consent;
- 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 hurt;
- 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 lawfully married;
- With her consent, when, at the time of giving such consent, she is unable to understand the nature and consequences of that to which she gives consent due to unsoundness of mind, intoxication, or the administration of any stupefying or unwholesome substance;
- With or without her consent, when she is under eighteen years of age;
- When she is unable to communicate consent.
The section explicitly excludes consensual sexual acts between a husband and wife, unless the wife is below 15 years of age, which is a controversial aspect of the law due to ongoing debates around marital rape.
The punishment for rape under Section 376 of the IPC varies depending on the circumstances, with a minimum sentence of seven years and a maximum of life imprisonment or even the death penalty in aggravated cases.
Indian Penal Code, (“1 THE INDIAN PENAL CODE ___________ ARRANGEMENT OF SECTIONS __________ CHAPTER I CHAPTER II”) 1860
Definition of Rape in Bharatiya Nyaya Sanhita, 2023
The Bharatiya Nyaya Sanhita (BNS) 2023 is a part of a series of new bills introduced to replace the Indian Penal Code 1860. The BNS 2023 redefines various offenses, including rape, with the updated legal langauge and provisions.
Definition of Rape under Bharatiya Nyaya Sanhita 2023:
Under the BNS 2023, rape is defined with a similar structure to the IPC, focusing on the following key points:
- Acts Constituting Rape:
Rape is defined as non-consensual sexual intercourse or penetration by a man on a woman. This includes:
- Penetration of the vagina, anus, or mouth with the penis.
- Insertion of any object or body part, other than the penis, into the vagina, anus, or urethra.
- Manipulation of any part of the woman’s body to cause penetration.
2.Circumstances:
- The act is done without the woman’s consent.
- The act is performed against her will.
- Consent is obtained under fear of death or injury.
- Consent is obtained under false pretences, such as impersonating the woman’s husband.
- The woman is incapable of giving valid consent due to intoxication, unsoundness of mind, or if she is under the legal age of consent (18 years).
3. Punishment:
The BNS 2023 prescribes stringent punishments for rape, including life imprisonment and even the death penalty in certain aggravated cases, such as gang rape or rape of a minor.
The BNS 2023 aims to modernize and contextualize the legal framework for sexual offenses, emphasizing more victim-centric and stringent legal responses. The specific wording and additional legal provisions in BNS 2023 are meant to address contemporary issues related to sexual violence and ensure a more robust legal deterrent.
Landmark cases of Rape which shook the nations conscience
Nirbhaya Rape Case (2012)
In 2012, the gruesome Delhi rape case shook the whole country with the brutal gang rape of a young woman who was named Nirbhaya by media for not revealing her identity as per section Section 228A (2) of IPC. The case garnered widespread national and international attention due to the horrific nature of the crime and the subsequent public outcry for justice and reforms in India’s legal system. She was brutally gang raped by six men on a bus in Delhi, and her internal organs were pulled and her private parts were mutilated in a very inhuman manner that caused grave injuries which ultimately annihilated her life.She was treated as an object, an article for experimentation and prey to the pervert proclivity of the six.The four defendants were convicted of rape, kidnapping, murder and destruction of evidence in September 2013 and were sentenced to death penalty which was upheld by the Supreme Court in 2017 by stating that the case clearly came within the category of ‘rarest of rare case’.20 One of the accused Ram Singh, allegedly committed suicide in Tihar Jail and the juvenile perpetrator was sentenced to three years of punishment in a reform home, as per the provisions of the Juvenile Justice Act.
Mathura Rape Case (1972)
• Overview: A 16-year-old tribal girl named Mathura was raped by two policemen in Maharashtra. The trial court acquitted the accused due to the absence of physical injuries on Mathura, interpreting this as evidence of consent.
• Impact: The Supreme Court upheld the acquittal, which led to nationwide protests. The public outrage eventually led to the amendment of Indian rape laws in 1983, emphasizing the importance of consent and making custodial rape a specific offense under Section 376 of the Indian Penal Code (IPC).
Shakti Mills Gang Rape Case (2013)
• Overview: A photojournalist was gang-raped by five men in the Shakti Mills compound in Mumbai. This case was notable as one of the perpetrators was a repeat offender.
• Impact: The case resulted in the first death penalty for repeat offenders under the newly amended anti-rape laws of 2013. The verdict underscored the judiciary’s stance on deterring sexual violence.
In the end let’s discuss the recent Rape case which shook the nation after Nirbhaya Rape Case
The body of a woman doctor was found inside a seminar hall of the RG Kar Government Hospital in north Kolkata on August 9, 2024. Preliminary autopsy reports indicated that she was sexually abused before being murdered. A civic volunteer of Kolkata Police was arrested in connection with the crime the next day.
Doctors and other medical staff have been protesting in different parts of the country affecting the functioning of health facilities. They are pressing for a Central law to check violence against healthcare personnel, declaring hospitals safe zones with mandatory security entitlements among other demands.
Sources
Indian Penal Code, (“1 THE INDIAN PENAL CODE ___________ ARRANGEMENT OF SECTIONS __________ CHAPTER I CHAPTER II”) 1860
