Author: Manpreet Rathor, Army Law College, Pune
Abstract
India has a serious problem with rape and sexual violence, and the legal system in place to deal with it has long been a source of worry. In previous studies on Section 375 of the Indian Criminal Code (IPC), which deals with the crime of rape, the Law Commission of India has suggested several ways to strengthen the current judicial system. The suggestions include expanding the definition of rape to cover all non-consensual sexual penetration, using terminology that is gender-neutral, defining consent in more complex ways, making marital rape a crime, and toughening rape sanctions. These suggestions are meant to fill in the gaps and legal blind spots in the existing system and make the law more accommodating to the requirements of rape victims. In order to effectively address the problem of rape in India, it is crucial to comprehend the suggestions provided by the Law Commission and how they can affect the country’s legal system.
Introduction
The Indian Criminal Code (IPC) section 375 addresses the crime of rape. The effectiveness of this section in defending rape victims and delivering justice has come under scrutiny throughout the years. In response, the Law Commission of India has issued a number of papers that include suggestions for improving the provision and boosting the protection provided to rape victims.
The Law Commission’s proposals address a number of rape-related topics, such as the definition of rape, the use of terminology that is gender-neutral, the idea of consent, the criminality of marital rape, and rape sanctions. These suggestions are meant to fill in the gaps and legal blind spots in the existing system and make the law more sensitive to the requirements of rape victims.
This subject is extremely important because rape is a severe and pervasive issue in India. The Law Commission’s suggestions might significantly enhance the way rape cases are handled and offer more defense and aid to those who have been hurt by this horrific crime. Understanding the Law Commission’s proposals and how they can affect India’s legal system on rape is crucial.
The Law Commission of India presented many reports, including the 42nd, 84th, 156th, and 172nd, on the topic of rape that included suggestions and recommendations and reflected the Commission’s developing attitude to these complex phenomena. As we will notice later that the legislature has taken many of the recommendations made by the Commission in these Reports into consideration and has amended or added to the Indian Penal Code of 1860, the Code of Criminal Procedure of 1973, and the Evidence Act of 1872. While those Reports that did not receive a favourable reaction have in many ways served as a valuable resource for women’s organisations and others in constructing their cases for more and better legislation, both substantive and procedural.
42nd Report of Law Commission of India (Year 1971)
In 1971, the Law Commission of India released its 42nd report. The report addressed the subject of “marital rape” and suggested that the Indian Criminal Code’s (IPC) exception for rape under Section 375 be eliminated.
Rape was then defined by Section 375 of the IPC as a crime carried out by a male against a woman either against her will or without her agreement. For non-consensual sexual contact between a husband and his wife, a special rule was developed under the presumption that marriage guaranteed perpetual assent to sexual contact.
According to the Law Commission’s report, this exclusion should be eliminated from the IPC since it is unfair and discriminatory. The report made the case that sexual autonomy should be acknowledged as a fundamental right of every person and that marriage should not be viewed as an unrevocable permission to sexual activity.
The exception for marital rape is still present in the IPC today notwithstanding the suggestions made in the 42nd Report. Yet, with calls for the punishment of marital rape and stronger protection for victims of this type of sexual abuse, the subject has received more attention and lobbying in recent years.
Overall, the Law Commission’s 42nd Report was a significant step toward acknowledging the problem of marital rape and promoting stronger protection for sexual autonomy and bodily integrity in marriage.
84th Report of Law Commission of India (Year 1980)
The nation’s political landscape had radically transformed when the topic of consent was covered in depth for the second time in a Law Commission report.
This report was undoubtedly a result of the national outrage following the Supreme Court’s decision in the famous Mathura rape case. The Supreme Court’s approach was too legalistic and exposed the conceptual gaps in the criminal justice system. The ruling sparked a significant nationwide campaign for rape law reform as well as a public outrage over the perceived injustice.
Following the Outrage on Mathura Rape case, the government requested the Commission to investigate the situation and offer recommendations for proposing rape law reforms for consideration by the government. As will be addressed below, the Commission’s recommendations for significant changes to the rape statute matched many of the requests made by the women’s movement.
The definition, the question of consent, the burden of proof, arrest procedures, and trial-related questions were all addressed in the 84th report on “Rape and Allied Offences: Some Questions of Substantive Law, Procedure, and Evidence, 1980” (— also referred to as the 84th report). It should also be noted that while the Commission’s 42nd Report mostly contained suggestions about unlawful sexual activity including coercion and fraud as well as coercive and deceptive sexual encounters, the 84th Report went farther in that area. In the Report under consideration, certain crucial suggestions were made as follows:
In defining the term “rape,” the Commission emphasized the significance of consent and noted that “consent is the anti-thesis of rape”. Even while some people might find discussions about consent to be complicated, the issue cannot, in accordance with the demands of the topic, be simplified to a straightforward one-phrase expression. According to the Commission, because there are so many different types of situations in life, the law must be adaptable enough to take them into account. The Commission emphasized that the absence of consent is a crucial element of the crime’s actus reus, and it also emphasized that this is how India’s legal system defines the offense. This focus on the need for consent was appreciated by the Commission.
156thReport of the Law Commission of India (Year 1997)
The subject of sexual harassment at work was covered in the 156th Report of the Law Commission of India, which was released in 1997. The report acknowledged that sexual harassment is a significant issue in India and offered many solutions.
One of the report’s main suggestions was to add a new offense called “sexual harassment” to the Indian Criminal Code (IPC). According to the report, the offense should be defined broadly to cover any unwelcome sexual behavior, including physical, verbal, and nonverbal behavior. The report suggested that the offense be applied to both men and women and be gender-neutral.
The report proposed the creation of a new civil remedy for those who have experienced workplace sexual harassment. The remedy would enable anyone who has been sexually harassed to demand restitution and damages from their employers.
In addition to these suggestions, the 156th Report recommended for the implementation of preventive measures to deal with workplace sexual harassment. These steps included creating internal complaint committees, creating workplace policies and norms, and offering education and awareness campaigns to both employers and employees.
Overall, the Law Commission of India’s 156th Report was a significant step in tackling the problem of sexual harassment at work. The report’s proposals could strengthen the legal framework for combating sexual harassment and offer victims of this type of gender-based violence more protection and assistance.
172nd Report of the Law Commission of India (Year 2000)
The 172nd Report of the Law Commission of India, which came out in 2000, included rape as a topic. The Indian Penal Code’s Section 375 is among the recommendations made in the report to improve the legal framework for addressing rape (IPC).
The definition of rape should be expanded to cover all instances of non-consensual sexual penetration, including penile, digital, and object penetration, according to one of the report’s main recommendations. To ensure that the law is more inclusive and sensitive to the needs of victims of all genders, the report also suggested that gender-neutral wording be used.
The adoption of a more complex definition of consent that takes into consideration elements like compulsion, fear, and intoxication was another key suggestion of the report. The report made the case that the IPC’s present definition of consent was too limited and did not sufficiently capture the realities of sexual violence.
The 172nd Report suggested that marital rape be made a crime in recognition of the fact that marriage should not be viewed as a permit for uninvited sex. The current exclusion for marital rape in Section 375 of the IPC, according to the report, is discriminatory and infringes on the rights of women.
An organization going by the name of Sakshi wrote to the Supreme Court of India in the interim and after the release of the Commission’s 156 Report, specifically requesting guidelines about the definition of the word “sexual intercourse” as it occurs in Section 375 of the Indian Criminal Code. According to the Supreme Court’s ruling from August 1999, the Law Commission was to “examine the petitioner’s complaints and if it would be practicable to make modifications to the Indian Criminal Code or to address them in any other way in order to close any gaps” To present its 172 Report on the “Review of Rape Laws” to the Government of India, the Commission set out in 2000.
Sakshi requested in her petition that the court rule that all forms of penetration, including object/vaginal penetration, penile/vaginal penetration, penile/oral penetration, penile/anal penetration, and penile/vaginal penetration, are included in the definition of “sexual intercourse” as stated in section 375 of the Indian Penal Code.
It was claimed that it wouldn’t be fair to define “penetration” in the Interpretation annexed to section 375 of the Indian Criminal Code to encompass all types of penetration given the incidence of child sexual abuse.
Following extensive consultations, including with Sakshi and other organizations like the National Commission for Women, the Commission suggested modifications in its Report (172nd) to broaden and gender-neutralize the scope of the offence under section 375. Additional adjustments were suggested in Sections 376, 376A, and 376D. The Commission also suggested that section 377 be removed, a new section 376F related to illegal sex be added, and that the penalty under section 509 be made more severe. The Commission proposed similar amendments to the Evidence Act of 1872 and the Code of Criminal Procedure of 1973 to close procedural loopholes.
Overall, the Law Commission of India’s 172nd Report represented an important development in the fight against rape and sexual violence in India. The suggestions provided in the report have the potential to strengthen the legal framework for dealing with rape and to give victims of this horrible crime more protection and support.
Conclusion
With respect to Section 375 of the Indian Criminal Code, the Law Commission of India has issued a number of suggestions over the years to strengthen the legal framework for dealing with rape and sexual violence in India. The recommendations were made in an effort to close any legal gaps and loopholes and make the law more sensitive to the needs of sexual assault victims.
The recommendations include criminalizing marital rape, expanding the definition of rape to cover any non-consensual sexual penetration, creating a more complex understanding of consent, and toughening rape sanctions. The Law Commission has also advocated for the implementation of preventative measures to deal with sexual harassment in the workplace, such as workplace policies and standards, internal complaints committees, and training and awareness programs for both employers and employees.
Overall, the Law Commission of India’s recommendations are crucial for strengthening the country’s legal framework for combating sexual violence and harassment. By putting these suggestions into action, society as a whole would become safer and more just while also offering victims of these crimes better protection and support.
FAQS
Q1. What is Section 375 of the Indian Penal Code and why is it significant?
Answer: Section 375 of the Indian Penal Code (IPC) defines the offense of rape in India. It is significant because it forms the primary legal framework for addressing sexual violence in the country. The Law Commission of India has repeatedly examined this section through various reports (42nd, 84th, 156th, and 172nd) to address gaps and inadequacies in the existing law, particularly in light of evolving understanding of sexual violence and victims’ rights.
Q2. What were the main recommendations of the 42nd Law Commission Report (1971)?
Answer: The 42nd Report specifically addressed marital rape and recommended the removal of the marital rape exception from Section 375 of the IPC. The report argued that the exception was unfair and discriminatory, emphasizing that sexual autonomy should be recognized as a fundamental right and that marriage should not be considered as irrevocable consent to sexual activity. Despite these recommendations, the marital rape exception remains in the IPC today.
Q3. How did the Mathura rape case influence the 84th Law Commission Report (1980)?
Answer: The 84th Report was largely a response to national outrage following the Supreme Court’s decision in the Mathura rape case. The Court’s legalistic approach exposed conceptual gaps in the criminal justice system and sparked nationwide demands for rape law reform. The report emphasized that “consent is the anti-thesis of rape” and focused on making the law more adaptable to various real-life situations while highlighting the absence of consent as a crucial element of the crime.
Q4. What workplace-related recommendations were made in the 156th Report (1997)?
Answer: The 156th Report focused on sexual harassment at the workplace and made several key recommendations:
Addition of a new offense called “sexual harassment” to the IPC with a broad definition covering physical, verbal, and non-verbal unwelcome sexual behavior
Making the offense gender-neutral, applicable to both men and women
Creating civil remedies for victims to seek compensation and damages from employers
Implementation of preventive measures including internal complaint committees, workplace policies, and awareness campaigns
Q5. What major changes did the 172nd Report (2000) propose for the definition of rape?
Answer: The 172nd Report proposed expanding the definition of rape to include:
All forms of non-consensual sexual penetration (penile, digital, and object penetration)
Gender-neutral language to make the law more inclusive for victims of all genders
A more comprehensive definition of consent considering factors like coercion, fear, and intoxication
Criminalization of marital rape, arguing that the existing exception was discriminatory and violated women’s rights
Q6. What was the Sakshi petition and how did it influence the 172nd Report?
Answer: Sakshi, an organization, petitioned the Supreme Court requesting guidelines on the definition of “sexual intercourse” in Section 375. They argued that the definition should include all forms of penetration (penile/vaginal, penile/oral, penile/anal, and object/vaginal penetration) particularly in light of child sexual abuse cases. The Supreme Court directed the Law Commission to examine these concerns, leading to the comprehensive 172nd Report with recommendations for broader and gender-neutral amendments.
Q7. Have any of the Law Commission’s recommendations been implemented?
Answer: Yes, the legislature has adopted many recommendations from these reports and amended the Indian Penal Code of 1860, Code of Criminal Procedure of 1973, and Evidence Act of 1872 accordingly. However, some recommendations, particularly regarding marital rape criminalization, have not received favorable response. Those unimplemented recommendations have served as valuable resources for women’s organizations and advocates in building cases for better legislation.
Q8. Why are these Law Commission recommendations important for India’s legal system?
Answer: These recommendations are crucial because they:
Address gaps and legal loopholes in existing rape laws
Make the legal framework more sensitive to victims’ needs across all genders
Provide better protection and support for sexual violence victims
Respond to evolving understanding of consent and sexual autonomy.
