Justice Delayed Or Delivered - Analysing The Effectiveness Of Rape Laws In Contemporary India
Author: LawSphereX
Category: Criminal Law
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JUSTICE DELAYED OR DELIVERED? ANALYSING THE
EFFECTIVENESS OF RAPE LAWS IN CONTEMPORARY INDIA
Tejal, IIM Rohtak
ABSTRACT
Rape and sexual violence are issues not only for legal discussion but also a very profound sociological challenge. As a law student and citizen of a society suffering from the alarmingly frequent occurrences of sexual violence, rape laws have long been an issue of deep reflection. The choice of looking into the effectiveness of rape laws in modern India is a conscious, deliberate decision driven by an interest in probing the intersection between law and society and also understanding the critical issues pertaining to the way the judicial system deals with rape cases. The central question of this study revolves around whether India's legal system is really delivering justice to victims or failing them due to systemic delays, inefficiencies, and deeprooted societal prejudices.
Despite many legal reforms, in response to the Nirbhaya case, for instance, introducing the Criminal Law Amendment Act of 2013 that increased punishments for sexual offenses and established fast-track courts, the issue persists of delayed justice. Other inefficiencies of the judiciary system and practical issues in terms of underdeveloped forensic infrastructure continue to detract from the efficiency of rape laws. The backlog of cases and prolonged legal proceedings result in emotional, financial, and social burdens on victims, raising the critical question: can justice be considered delivered if it comes at such a steep price to the victim's well-being? Furthermore, the sociological factors contributing to delays in justice are significant. Victims often face societal stigma, victim-blaming attitudes, and family pressures that discourage them from reporting the crime.
The problem is therefore worsened by the fears of retaliation, emotional trauma, and cultural norms discouraging women from speaking out. Many cases go unreported, and those reported ones are weakened due to the delayed collection of evidence and incomplete investigations. Such silence perpetuates a culture that lets the guilty off free and further traumatizes victims. This paper critically looks at the sociological and legal factors that have contributed to delays in delivering justice in rape cases. It is going to explore the gap between rape laws and the implementation thereof, questioning if the law framework adequately meets the needs of survivors.
This study examines the inefficiencies in investigation, societal barriers to reporting, and the emotional and financial costs of seeking justice in an effort to provide a comprehensive analysis of the factors hindering timely justice for rape survivors. The core objective is to assess whether the legal system, despite its many provisions, is truly serving justice to the victims of sexual violence or simply aggravating their suffering through protracted litigation. This project is neither purely an academic exercise nor a personal mission, but rather an opportunity to contribute to a greater understanding of how legal reforms may be enhanced to better serve the people they are supposed to protect.
This research aspires to provoke relevant and meaningful discussions and actionable reform measures that can make justice, in all its humane dimensions, more effective for victims of sexual violence in India.
INTRODUCTION
The Rapists are all innocent until proven guilty. But not the victim. The victim is a liar until proven honest. " A lot has been written and discussed about Rape it has multiple views exist about its causes and punishments but the studies of Rape are dispersed in nature and it is essential to take a holistic approach to it and delve deeper into the root causes. This paper aims to analyze the problem of Rape-a Heinous offense in India and the latent difficulties faced by victims to achieve justice. Understanding it from multiple perspectives suggests measures for mitigating this crime in the country, using the highlighted incidents from the Mathura case of 1972 to the Nirbhaya case of 2012. Well, these cases have revolutionized rape laws in India, but the trail of rape cases did not end there. Rape can never be a mistake, as it is always a crime.
Rape is not the violent manifestation of sexual behavior but is the sexual manifestation of violent behavior. Rape, according to the definition provided in Section 375 of the IPC. Therefore, The issue of rape laws in India has been a subject matter of great concern, not merely within the legal circles but to every individual who is informed of the alarming frequency to which sexual violence impacts our society. This is not simply a question of legal provision but an intricate intermeshing of law, society, and culture. A woman is treated as an object in India. Our epic, The Mahabharata has an instance of this. The Pandavas, after losing their crown and property, gambled on their wife, Draupadi. They treated her like an object.
To this, Bhishma had then said, “A woman and a slave are the property of others1 As a law student and a constituent member of society, I was more than troubled by the same continuing challenges rape survivors face. While seeking justice, they find themselves at the receiving end of societal prejudice. I chose the topic of the paper, “Justice Delayed or Delivered? ". Analyzing the Effectiveness of Rape Laws in Contemporary India*, was chosen not as a casual inquiry, but as a deliberate exploration into the sociological and legal dynamics that underlie one of the most critical issues facing our nation today. The question central to this analysis is whether the Indian legal system is truly delivering justice to victims of sexual violence, or whether it is failing them due to systemic inefficiencies, delays, and deeply entrenched societal biases.
This question goes beyond the mere curiosity of academics—it directly involves the lived reality of rape survivors, who often face tremendous problems in navigating a judicial system that may not fully appreciate the urgency of their plight. Even with the introduction of several legal reforms, such as the Criminal Law (Amendment) Act of 2013, and the establishment of fast-track courts, the central issue of justice delayed remains a concern. This very foundation of this research is to examine whether the legal mechanisms that have been put in place to protect rape victims are actually working or if, on the surface, they continue to be riddled with inefficiencies that prolong suffering for survivors . Delayed rape cases don't just hurt the victims; they also erode social confidence in the judiciary system, losing faith in its ability to deliver justice on time and in a fair manner.
One of the significant reasons behind the delay is the social factors that do not permit immediate reporting, such as stigma surrounding rape, victim-blaming attitudes, and the pressure from society that keeps silencing the survivors. The fear of revenge, psychological trauma, and reluctance on the part of family members and community to endorse the victims have only widened the problem. The low quality of investigation and lack of forensic and law enforcement means exacerbate this silence in that it only delays the time for justice and also usually leaves a victim with less hope. Furthermore, even in cases that are reported, the long-drawn judicial process is a source of emotional and financial burden to survivors. The legal procedure forces victims to relive their traumatic experiences time and again, and many give up their pursuit of justice at the cost of
1 Poonam A. Bamba, “In the Name of Family Honour” 7 DJAJ 58 (2011).
high prices and psychological burdens. Is it really possible to term justice delivered when it comes at such a tremendous personal and societal cost? The words of Justice A. K. Sikri on gender issues are significant2. ‘For some people, it’s not easy to attend a Court. They might not be able to perceive events of the Court. A judge should keep in mind certain points pertaining to gender. Females are still at disadvantage as compared to males. Assuming certain things about a female might result in inequality. An experience of a woman cannot be taken as representative of all females. A judge should bear in mind certain points; social background, age and disability, etc. A female as a witness or victim cannot be equated with men. For instance, a female might find it difficult to attend court due to child care issues.
’ Furthermore, we would like to see whether reforms such as fast-track courts have meaningfully expedited the process or if the delays remain entrenched in the system. This study, taking a holistic approach that integrates both legal analysis and sociological insights, aims to determine whether the existing legal framework adequately serves the needs of survivors or if further reforms are necessary to ensure justice is truly delivered. This research ultimately aims to contribute to an ongoing dialogue about how the legal system can be transformed to better support rape survivors and make justice not just a hope but a timely and achievable reality. We certainly acknowledge that women as an issue are on dialysis.
Alive3 BRIEF HISTORY From decades of legal evolution surrounding sexual violence, particularly rape, the country has witnessed significant changes in its sexual violence legislation. Pivotal cases and societal movements have spearheaded crucial amendments to the law. Changes to the legal landscape became apparent especially after the notorious Mathura Rape Case of 1972, exposing the long-standing defects of judicial handling in rape cases. There, two policemen were let off on the charges of raping a young tribal woman who had been kept in police custody. Such judicial failure to clearly distinguish "submission" and "consent" was further echoed nationwide, which later resulted in the Criminal Law Amendment Act of 1983, an act providing critical changes
2 A.K. Sikri, “Gender Justice” 7(1) DJAJ 18-29 (2011).
3 National Law University, Delhi Conference (NLU, Delhi, 2016
for dealing with custodial rape and for prohibiting the revealing of identity of the victims. In December 2012, yet another case shook the Indian nation: The Delhi Rape Case (Nirbhaya Case). It really became one such movement galvanizing opinion and creating a call to amend with haste. The brutal gang rape and the subsequent death of a young woman on a bus in Delhi sparked nationwide outrage to form the Justice Verma Committee. Some of the recommendations of the Committee would include stricter punishments, removal of the marital rape exception, as well as clearer definitions and better protection against sexual violence.
This gave birth to the Criminal Law (Amendment) Act, 2013, which widened the scope of rape, enhanced punishments, and added new offenses including stalking and voyeurism Subsequent cases, such as the Unnao and Kathua rapes, underscore the continued necessity for vigilance and reform. These highly publicized cases brought to the forefront persistent problems of impunity, societal indifference, and institutional inefficacy in bringing perpetrators of sexual crimes to book. Even with legislative milestones, whether these laws are adequately implemented continues to be in dispute since long trials, acquittal, and blaming of the victim continue to make efforts towards the quest for justice. While these amendments have indeed survived the test of time, what remains unchanged is the aggravation of the suffering of the victim.
Even with legal reforms, the experiences of the victims remain unresolved and, in most cases, the social and psychological suffering have become even more pronounced and complex.
OBJECTIVE
The primary objective of this research is to critically analyze the effectiveness of justice in rape cases within the Indian legal system, focusing on the psychological, social, and legal challenges that survivors face. This research will be exploring the mental and emotional toll on victims, particularly the long-term trauma caused by societal stigma, delayed investigations, and prolonged judicial processes, all of which contribute to the worsening of the victim's suffering. A key focus of this study is the sociological roots of rape reporting in India, especially the cultural and familial factors that often prevent survivors from coming forward. Many rape cases remain unreported due to fear of social ostracism, lack of support from the victim's family, and patriarchal norms that often discourage women from seeking justice.
In particular, cases involving incestuous rape, where the perpetrator is a close family member or relative, are especially underreported, as victims may feel even more trapped by their circumstances.
According to the National Crime Records Bureau (NCRB), about 30 percent of rape cases reported in India involve family members or relatives, though this estimate is likely a gross underestimation because many people remain silent because of either fear, shame, or familial pressure. The study will also examine investigation delays and insensitive handling of victims that result in secondary victimization in the court process. It will focus on the role of the criminal justice system to understand whether legal reforms, for example, the Criminal Law Amendment Acts of 1983 and 2013, have addressed the concerns or whether social and institutional barriers continue to persist as obstacles in the administration of justice.
By taking into consideration the systemic challenges encountered by rape survivors, this study will try to determine if the legal reforms undertaken by India have brought significant changes in delivering justice, or if the persisting barriers—caused by societal attitudes, judicial inefficiencies, and the continuing trauma faced by the victims—have hindered the meaningful advancement of India. STATEMENT OF PROBLEM The rape rate is on the surge. The conviction rate is low at 27. 8%. It means out of 100 accused; only 28 get convicted. Rape is not something new, but the issue is still unaddressed. Every time a rape takes place, we adhere to strict legislation. Why rape is on the continuous rise even after providing strict punishments? The problem of rape needs a prompt and effective solution. What makes a human being intrude on other's basic right to live with dignity?
Does the society give way to his barbaric act? Are low reporting cases due to societal attitude? According to the data of NCRB, as many as 32,033 cases of rape were reported in 2019. This is a pathetic state. The figure of rape cases questions society's morality, adequacy of legal structure, and judge's and police personnel's sensitivity. The figure also highlights the total failure of preventive measures. The violence involved in rape cases is also aggravating. The rape victim's suffering does not end there. She is further made to suffer by police, doctors, judges, family members, colleagues, and the matrimonial market. Each time a rape is reported, we fail as a society. Indian society is a patriarchal setup which makes the victim afraid of reporting too. Figure quoted above only reflects a minor part of the rape; in most cases, women fail to report rape.
It is worthwhile to note here that after Tukaram v State of Maharashtra4, The Criminal Law (Amendment) Act, 1983 came into existence. For the very first time, "Custodial Rape" came to be recognized as an independent category of rape. "Burden of proof" was relaxed in the favour of the prosecutrix. In 2004, an NGO named Sakshi approached the Court to redefine the term “rape” to include all forms of insertions5. The Highest Court directed the Law Commission of India to consider the same issue and make suggestions. The Law Commission, in its 172nd report, suggested that the word “rape” must be replaced with “sexual assault”. All types of penetrations must be included in the term "Sexual Intercourse" under Section 375 of IPC. Still, the legislature waited for such a long period for the Nirbhaya case to occur. After the Nirbhaya case, public outrage forced the Government to reconsider.
The Criminal Law (Amendment) Act, 2013 was enacted. The legislature waits for incidents to occur. It acts after such incidents and not before them. Had the steps taken after Nirbhaya been successful, Kathua6 and Unnao case7 would have never been seen in the country. Rape case needs to be solved urgently with effective results.
LITERATURE REVIEW
Literature Review
is essential for every research. It not only adds to a researcher’s knowledge of existing availability but also helps in planning. Susan Brownmiller 8in her book, “Against Our Will: Men, Women and Rape” asserts “rape” is an intentional act of men against women to keep them frightened. Rape is not confined to having sex but extends to asserting supremacy. She has evaluated rape in war times. She has also provided that “women” is considered “object” and not even a human9 Pratiksha Baxi in her book, “Justice is a secret: Compromise in rape trials”, while discussing rapes in Gujrat throws light on the fact that the Indian Criminal Justice System is against the
4 AIR 1979 SC 185. Hereinafter called, Mathura rape case.
5 Sakshi v. Union of India (A.I.R. 2004 S.C. 3566).
6 State of Jammu Kashmir v. Deepak Khajuria @ Deepu (Case registration no. 34/2018).
7 C.B.I v. Kuldip Singh Sengar, (Cri. Case No. 1228/2018).
8 Brownmiller, Susan. Against Our Will
Men, Women and Rape. New York: Simon and Schuster, 1975..
9 Susan Brownmiller, “Against Our Will
Men, Women and Rape” (Fantom Books, New York, 1975). rape victim. The focus of such trials is not on punishing the guilty but on reaching a compromise. However, compromise in such cases is illegal. 10 G. S. Bajpai and Shriya Gauba, in the book “Victim Justice: A Paradigm Shift in Criminal Justice System in India”, have discussed how an adversarial system deprives a victim of all his rights. The victim has been reduced to a mere witness and the state has the right to prosecute. Even after legislative and judicial efforts, the needs of the victim are unsettled. They have suggested, the right to know the outcome of the investigation, the decision on compensation and the right to protection, etc. 11 Sukhdev Bhatia and Abheesha Jain, in the book “Rapes in India- and a way out”, have pointed out that strict laws have ended in rapists murdering the victim, especially in gang rape cases12.
Justice A. K. Sikri (2010) in his article “Gender Justice” has explained the role of the judge. A judge has to work under an adversarial system. Within that system, he has to do justice in an unequal society by ensuring equal platform and purposive interpretation. He also explains that many women are unable to attend courts due to gender-specific issues and also understand the court's process. 13 Dharmendra Kumar Mishra and Anshu Mishra in “Reconceptualising Sexual Offences in India” discuss the changes made in IPC, 1860 and IEA. It also talks about recommendations of the Justice Verma Committee. It concludes the article by saying a change in the general attitude of people is the need of the hour. 14 The Malimath Committee Report (2003) suggests the changes that need to be made in criminal law and order. It also suggests the need for a speedy trial of rape cases.
15 The Justice Verma Committee (2013) was formed after the Nirbhaya case. It has suggested 10Pratiksha Baxi, “Public Secrets of Law: Rape Trials in India” (Oxford University Press, New Delhi, 2014 11 G. S. Bajpai and Shriya Gauba, “Victim Justice: A Paradigm Shift in Criminal Justice System in India” (Thomas Reuters, India, 2016).
12 Sukhdev Bhatia and Abheesha Jain, “Rapes in India- and a way out” (Blue Rose, India, 2017).
13 Justice A.K. Sikri, “Gender Justice” 7(1) DJAJ 18-29 (2011
14 Dharmendra Kumar Mishra and Anshu Mishra, “Reconceptualising Sexual Offences in India” 43(1) BLJ 43-
52 (2014).
15 Id
changes in the laws relating to rape. 16 Dr. Tiwari J. K. (2014), in “Judicial Attitude towards Justice of Victims”, has discussed many landmark judgments relating to victims. It tells that the Indian Criminal System cannot afford to treat the victim as a forgotten man. Judiciary has taken a pragmatic approach in awarding compensation. Statutory provisions in this regard are lacking. Statutory assurance will promote the cause of justice. The accused will be under monetary threat to compensate, and the crime rate will decline. The victim will also not be forgotten men. 17. B. P Sehgal (1995), in “Compensation to Victims of State Excesses”, has discussed the plight of the victim and also remarked that if that victim is a woman, her status is worst. The focus of the entire system is on the accused. How can he lead a normal life after the incident? Nobody cares for the victim.
Rather he is faced with adjournments, interrogations, harassment by society and the system and loss of earning, etc18 R. N. Mangoli and Nandini G. Devarmani in “Role of Victims in Criminal Justice System: A Critical Analysis from Indian Perspective”, have tried to evaluate the 2008 Amendment in Cr. P. C. It has compared the international definition of “victim” given by the UN with the Indian definition. It has evaluated the role of the victim in the criminal system. The article concludes that getting justice is a costly and timeconsuming process. Indian criminal system focuses on compensation and not on restitution. Indian criminal system should move towards restorative justice where both offender and victim should try to resolve the difference amicably and discuss the impact of the act on society19 Dr.
Sushma Suri, in “An Analytical Study of Rape in Delhi”, conducted an empirical study of
100 rape victims in Delhi. She observed that in most of the cases victim is illiterate and poor,
and the rapist is already known. She has also noted that the victim’s own house is used for the offence. She has suggested mental counselling, training and literacy20 16 Justice Verma Committee Report, available at: https://www.thehindu.com/news/resources/full-textof-justicevermas-report-pdf/article4339457.ece (Last Modified June 13, 2016)
17 Michaela Lehner-Zimmerer, “Future Challenges of International Victimology” 4(2) AJCJS (2011).
18 Sehgal Singh, “Compensation to victims of State Excesses – A New Dimension in the Field of Victimology in India”, in K.L. Bhatia, Juris vicissitude, Law and Change Towards 21s t Century, 179 (1995). 19 Role of Victims in Criminal Justice System: A Critical Analysis from Indian Perspective, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2814578 (Visited on July 30, 2020).
20 Dr. Sushma Suri, in “An Analytical Study of Rape in Delhi” 2(3) IJPER 60-68 (2013).
Dr. B. P. Dwivedi in the article “Sexual Harassment of Women: Anathema to the Human Rights Jurisprudence”, has provided that sexual violence takes away a woman’s general human right. Such violence takes away fundamental rights, and therefore remedy under Article 32 should be availed21 Manika Kamthan in “Rape and Compensation: An Economic Analysis of the Criminal Law on Rape in India”, has explained that every criminal act has a cost. She has further analysed the cost of rape in monetary terms. It is the only offence that involves social, mental and transaction costs. Compensation must be given. She has materialized everything by using terms like “marriage market”. 22 Ved Kumari & Ravindar Barn in “Sentencing in Rape Cases: A Critical Appraisal of Judicial Decisions in India”, have pointed out that there is a need for training judges, especially in the field of sentencing23 Dr.
Namita Jain & Ms. Aditi Tyagi in “State of Rape Victims in India” discuss various physical and mental problems faced by rape victims and conclude by suggesting a change in society’s attitude24 Dr Rituparna Bhattacharyya in “Criminal Law (Amendment) Act, 2013: Will it ensure women’s safety in public spaces? ” have reviewed the Criminal Law (Amendment) Act, 2013 and drawn a comparison with existing laws. She has pointed out issues like “marital rape” and “legal immunity” for army officials. She sums up her article by terming the Act as progressive25 Definition and Limitation Rape, as per Section 375 of the Indian Penal Code (IPC), 26 21 Dr. B. P. Dwivedi, “Sexual Harassment of Women: Anathema to the Human Rights Jurisprudence” 1(1) IJLJ 1-8 (2010). 22 Manika Kamthan, “Rape and Compensation: An Economic Analysis of the Criminal Law on Rape in India” 7(1) NLR 38-45 (2013).
23 Ved Kumari & Ravindar Barn, “Sentencing in Rape Cases
A Critical Appraisal of Judicial Decisions in India”, Vol 59, JILI (2017
24 Dr. Namita Jain & Ms. Aditi Tyagi, “State of Rape Victims in India”, 19, SCAI (2020).
25 Dr Rituparna Bhattacharyya, “Criminal Law (Amendment) Act, 2013
Will it ensure women’s safety in public spaces?”,1(1),SCI (2013)
26 https://www.indiacode.nic.in/
Rape. -- 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 to 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 to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, Under the circumstances falling under any of the following seven 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, by reason 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 eighteen years of age. Seventhly. When she is unable to communicate consent.
But such extensive defining of rape in the books or statues though elaborate and extensive, can seldom depict the extent to which a survivor undergoes trauma and does not portray the fundamental cultural and social problems affecting the treatment given to cases. Such elaboration has limitations such as
1 Narrow scope of Definition
Whereas the law defines rape as an illegal act, its definition may be much too narrow and does not necessarily reach into the crux of the sexual-violence issue. It traditionally defined rape as penetrated by the penis, in disregard of other kinds of sexual attacks, whether by digital or object penetration, which, under previous definitions, were not rapes. Although the Criminal Law (Amendment) Act, 2013 27has widened the legal definition of rape to include more varied sexual offenses, it remains questionable whether the law can effectively cover all aspects of sexual violence.
2 Societal and cultural Limitations
Rape laws, although important in court proceedings, do not exist in a vacuum. They are deeply interwoven into the fabric of society and, at times, serve as an impetus to subvert their effectiveness. In India, the term "rape" has a meaning not only for the criminal act but also as a stigma on a woman's honour and dignity. The relationship with a woman's "honour" makes victim-blaming inevitable; instead of the perpetrator, the society questions the character of the survivor. So even if legal justice is delivered, it remains incomplete due to the continued societal stigmatization of the victim.
3 The Perpetuation of Gender Norms
The legal definition of rape also intersects with deeply entrenched patriarchal norms that may hinder the effective application of laws. Many women are conditioned to remain silent about their victimization due to fear of retribution, social exclusion, or the humiliation that comes with publicly accusing someone of sexual violence. This could happen, especially where the perpetrator happens to be a family member or even another member within the same community, causing such social pressure to make one withdraw their case-the more complex
27 https://www.indiacode.nic.in/
thing in ensuring justice.28
4. Psychological and Social Impact
Although legal justice is accorded, there can exist profound social and psychological aftereffects for the victim in terms of depth and duration. Survivors often face social ostracism, alienation, and victim-blaming, which can overshadow the legal victory. Women may experience lifelong trauma due to the rape, compounded by societal judgments and their perceived loss of honour. This societal stigmatization can lead to further emotional harm, and in many cases, survivors may find it more difficult to reintegrate into society, even after the rapist has been convicted. The broader societal context of shame and silence, linked to the honour of women, continues undermining the spirit of legal justice.29
5. Reluctance to Report
The stigma attached to rape cases in society leads to underreporting of such crimes. The fear of not being believed, the trauma of reliving the incident during legal proceedings, and the lack of support from family or community make it difficult for many victims to report rape. The societal judgment faced by survivors often outweighs the hope for legal redress, leaving many to suffer in silence.
6 Justice Served but Not Received
Even when justice is served in the courtroom, the social narrative about rape prevents the victim from ever really feeling relief or closure. Survivors might feel that their dignity is lost forever due to the societal backlash they experience. Legal justice becomes inconsequential when society continues labelling the victim as a "broken" or "dishonoured" individual, irrespective of the punishment meted out to the offender. Therefore, the word "rape" in legal terms often goes beyond the criminal act itself and becomes intertwined with complex societal dynamics that affect the lives of survivors in ways that law alone cannot address. Even when the legal system delivers justice, it remains incomplete when the society continues to stigmatize and ostracize the victim.
The limitations of the definition of rape, legally and socially, point out that deeper reforms in society must accompany 28 Crime in India, 2019, available at: https://ncrb. gov. in/en/crime-india-2019-0 (Visited on July 13, 2020). 29 Sunita V S Bandewar, Amita Pitre, Lakshmi Lingam, “Five years post Nirbhaya: Critical insights into the status of response to sexual assault” IJME (2018). amendments in law. To bring justice to survivors, the understanding of rape needs a paradigm shift from being a crime to being an attack on the dignity, humanity, and agency of a woman. That should be addressed by the barriers still affecting many cultures and psyches about silencing survivors and perpetuating cycles of trauma. SOCIETY, STIGMATIZATION & BARRIERS Indian society is a patriarchal one. Males possess, many rights whereas a woman has none.
Moreover, she is a victim of many social and religious evils like honour killing, sati, rape, dowry death, female feticide, sexual harassment at home and workplace, and cruelty. In many Indian families, female education is not given much importance as compared to the man. She is supposed to work in the kitchen or raise children. As a result, she is unaware of her rights. This lack of education has further contributed to her downfall and has made her a vulnerable victim30. In Bodhisattvas Gautam v. Subhra Chakraborty case, the Supreme Court observed: ‘Rape is a crime not only against the person of a woman; it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into a deep emotional crisis. It is, therefore, a most dreaded crime.
It is violative of the victims’ most cherished right, namely right to life, which includes the right to live with human dignity as contained in Art 21 of the Constitution. ’31 In India, women encounter a new type of violence every day, ranging from harassment, assault, and cruelty. Several Acts have been amended to recognize different kinds of offences against a woman. Major amendments were made after the famous Nirbhaya case in the Indian Penal Code (IPC), and new offences like stalking, acid attack, and voyeurism were added. The insertion of new categories of offences has not changed a women’s condition as a vulnerable victim. Nirbhaya Fund, created for rape victims, has been under-utilized. Women face violence in schools, public parks, workplaces, hospitals and private also. The lack of proper sanitation conditions is also an obstacle to women’s empowerment.
Marital Rape, which is violence inside their house, is still not recognized as an offence by the IPC. There is a growing demand for 30 Dr. Tukaram S. Sawant, “Place of the Woman in Indian Society: A Brief Review” 21(9) JHSS 21-25 (2016).
31 AIR 1996 SC 922
making rape gender-neutral. 32 Till recently, the offence of adultery treated women as property of the husband. The other man was punished for using his husband’s chattel. Chief Justice Deepak Mishra held that any provision (Section 497 of the Indian Penal Code) that treats women as unequal is unconstitutional. The husband is not the owner of the woman. Section 497 of the IPC is arbitrary. It can be the ground of divorce but not a criminal offence33. No doubt, because of Government initiatives and incentives, education amongst females is rising. As per the gender inequality index, India ranks 108th and on the global gender gap index, 112th. 34 Violence at the workplace was recognized in the Vishakha case. 35 Furthermore, it is an offence. Vishakha Guidelines are legally binding. The place of work is also not safe.
In the year 2022, as many as 32, 033 rape cases were reported, as per NCRB data. In other words, 88 rape cases were reported daily. Out of these 32,033 rape cases, 30,165 rape cases were committed by people known to the victim. According to National Crime reports Bureau 2019, the conviction rate and trial rate are going down. Out of which 600 rape cases were against co-workers and employers. 3615 In Vishakha Case, the Supreme Court (SC) has given special guidelines to be followed at the workplace. However, as per the judge who delivered this judgment, Justice Sujata Manohar, there is a need to revise Vishakha guidelines. The revision should be such as to include past incidents. She said this regarding the Me-Too Movement. The Vishakha judgment was delivered by Justice Manohar, CJI Late J. S. Verma and, Justice B. N. Kirpal.
Vishakha Guidelines were drafted for present sexual harassment cases. 32 Marital-Rape-in-India-Needs-Legal-Recognition, available at: https://www. researchgate. net/profile /Pradeep- Pandey-2/publication/272290152_Marital_Rape_in_India_-_Needs_Legal_Recognition/ links/5e03792592851c83649a3ceb/Marital-Rape-in-India-Needs-Legal-Recognition. pdf (Visited on July 29, 2021).
33 Joseph Shine Vs. Union of India, W.P.No. 194/2017.
34 Global Gender Gap Index, available at
https://pib.gov.in/PressReleasePage.aspx?PRID=1602397 #:~:text=On%20this%20index%2C%20India%20ranked,2018%20to%200.668%20in%202020: (Visited on July 1, 2020)
35 Vishaka & Others v State of Rajasthan & Others (1997) 6 SCC 241, Hereinafter called Vishaka case
36 Crime in India, 2023, available at
https://ncrb.gov.in/en/crime-india-2019-0 (Visited on July 13, 2020).
‘We had not considered (what to do with) incidents of sexual harassment that took place in the past — like those that have now been reported. It is time we need to rethink how to deal with sexual harassment, especially in cases, where the incident has taken place in the past. In these circumstances, the Vishakha guidelines especially need to be reexamined about the preventive and remedial measures for the woman,’ ‘The revision panel may include legal experts and sociologists. However, there is no limitation on time. But it will become challenging for the judges to determine the truth in examination and cross-examination. Judges should be sensitized37. ’ She further added, ‘No purpose will be served if women limit themselves only to social media. They have the option to approach the police instead of the social media.
’ ‘Section 509 (outraging women’s modesty) of the Indian Penal Code, 186038 needs to be made more specific. As thinking changes, remedies should also change. The National Commission for Women (NCW) has been asking women to approach them, but then it is an advisory body. ’ Indian families still consider home, the safest place for girls. However, it is shocking to look at the figure of acquaintance rape. In the majority of cases reported, the offender is either victim’s brother, father, grandfather, son, or acquaintance. As many as 30,165 rape cases (94. 2% of total rape cases) were registered against close and other relatives39. The mere recognition of new offences is not the solution to women’s vulnerability as victims but a change of social attitude is.
Pandit Jawaharlal Nehru said, ‘If you educate a man, you educate an individual; however, if you educate a woman, you educate a whole family. Women empowered means mother India empowered. 40’ Some females can break social barriers, but there are still more taboos about getting good pay and stable jobs. Education and bringing women into employment can end their status as women 37 “Need to rethink Vishakha to include incidents from past: Its author Justice Sujata Manohar”, available at: https://indianexpress. com/article/india/metoo-need-to-rethink-vishakha-to-includeincidents-from-past-itsauthor-justice-manohar-5408334/(Visited on July 5, 2020).
38 Indian Penal Code, 1860 (Act 45 of 1860). Hereinafter, it will be referred as IPC.
39 Crime in India, 2023, available at
https://ncrb. gov. in/en/crime-india-2019-0 (Visited on July 15, 2020). 40 Satarupa Dutta, “The Changing Patterns and Lived Experiences of Women Pursuing Higher Education Postmarriage in India” JIWS 17(1) 171 (2016). victims. 41 Due to increasing incidents of rape and crimes against women, concerns about their safety have become a deterrent in women’s employment. Nirbhaya’s case has shaken women so much that they are scared to go out at night. In the survey conducted with 2500 women, 82% of them reported that they leave the workplace early as they feel insecure at night42. It is important to note that after this horrible gang rape, the United Nations Secretary-General Ban Ki-moon has asked the nation to take protective measures for women. Navi Pillay (the United Nations High Commissioner for Human Rights) has notified rape as a national problem in India.
As per a survey conducted by Thomson Reuters Foundation, India has been declared the most dangerous nation for females. India has topped the table even though after the Nirbhaya case, women's security has become the prime agenda. 43 Table showing rape cases in the years 2020, 2021, 2022: https://www. ncrb. gov. in/uploads/nationalcrimerecordsbureau/custom/1701859939TABLE12. pdf The data on rape cases in India shows the following trends over three years: ● 2020: 28,046 cases (rate of 4. 3 per 100,000 population) ● 2021: 31,677 cases (rate of 4. 8 per 100,000 population) ● 2022: 31,516 cases (rate of 4. 7 per 100,000 population) The number of cases increased from 2020 to 2021, but the rate slightly decreased in 2022. The overall trend indicates relatively high consistency in the number of reported cases, despite slight fluctuations.
41 Rouf Ahmad Bhat, “Role of Education in the Empowement of Women in India” 6(10) JEP (2015).
42 Mandakini Devasher Surie, “Where are India’s Working Women?” In Asia Weekly Insights and Analysis, March 9, 2016. 43 Exclusive: India most dangerous country for women with sexual violence rife - global poll, available at: https://www.reuters.com/article/us-women-dangerous-poll-exclusive/exclusive-india-mostdangerous-countryfor-women-with-sexual-violence-rife-global-poll-idUSKBN1JM01X (Visited on June 27, 2018).
From the above table, we see how serious the offence of rape is. If we analyze the above table, we will see that adult women victims outnumber child rape victims. But still, the number of child rape victims is 4,977. That too only reported. Policymakers are focusing on "Beti Bachao, Beti Padhao" slogans and are allocating funds to various schemes like the Nirbhaya fund. Good intentions need effective execution. The funds are underutilized44. Being born as a woman is victimization itself in India. Female infanticide, though illegal, is practiced. She is denied education as she grows up; if educated, she is denied employment. Even when employed, she is paid less than her male counterpart and suffers sexual harassment in the workplace. She doesn't feel safe at her workplace or at home as well. Many Indian women die due to a lack of post-maternity care.
After having kids, they are made to leave jobs as the Indian patriarchal system supposes them to take care of the child. They are harassed by their husbands and their relatives for dowry. Demand for dowry is an offence under the IPC. They are subjected to cruelty, abuse and, rape. Marital Rape is not even considered a form of rape in India. It is absolutely fine for a husband to have a relationship of sexual nature with his wife and, her consent is immaterial. In this way, she is a commodity that can be bought and sold and has no will of her own. She is a victim, who does not even have a victim’s right in an accused centric system. 45 44 Sunita V S Bandewar, Amita Pitre, Lakshmi Lingam, “Five years post Nirbhaya: Critical insights into the status of response to sexual assault” IJME (2018). 45 N.
Subasini, “Indian Constitution and Women Legal Rights: A Conglomerate Analysis”, 20(5) IO 1418-1425 (2021).
“A woman loses her voice, autonomy after entering marriage” Justice DY Chandrachud. 46 When she enters the court, she does not have a place to sit; she does not even get travel expenses. Most of the rape, molestation, acid attacks, and stalking cases go unreported due to social stigma. Many commit suicide after being victimized as they are not brought up to fight against injustice. 47 The Indian criminal justice system is accused-centric, where the accused possess all rights and the victim has none. Though after 2009, the system moved toward victim centric. It follows the maxim “Better that ten guilty people escape than that one innocent suffers”48. Even before the beginning of the trial, he or she is presumed to be innocent. The guilt has to be proved beyond doubt.
The offender has many rights, namely, the right to bail, the right to be represented, the right to be heard, the right to know the grounds of arrest, and, many other rights. The victim does not even have a right to be represented by the lawyer of her choice. The accused can avail any advocate. The victim does not even have a right to choose his advocate. He can only assist the public prosecutor. Politicians add to the agony of female victims. After the Nirbhaya case, one Indian minister described it as a small incident that has cost Indian tourism billions. Some politicians have said rapes happen “accidentally”, rape was “right” and, “boys make mistakes”. 49 EXAMINING THE LEGAL COMPENSATION NALSA’s “Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes -2018”, the rape victim should get compensation of 4-7 lakhs.
and 5-10 lakhs in case of gang rape or loss of life. 50 At present different states provide different compensation to rape victims. The difference is huge. On the one hand, the State of Orissa provides Rs 10,000, and
46 Bodhisattvas Gautam v. Subhra Chakraborty, AIR 1996 SC 92.
47 Tauffiqu Ahamad, Anil Kumar Mishra, “Legal status and rights of women in Indian constitution”, 1(1) IJAER 39-42 (2016). 48 Fritz Allhoff, “Wrongful Convictions, Wrongful Acquittals, and Blackstone’s Ratio”, 43 AJLP 39 (2018). 49 Anu Anand, “India minister condemned for calling Delhi gang-rape a small incident'”, The Guardian, Aug. 22, 2014. 50 Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes -2018 available at: https://nalsa. gov. in/services/victim-compensation/nalsa-s-compensation-scheme-forwomen-victims-survivorsof-sexual-assault-other-crimes---2018 (Visited on July 29, 2020). on the other, the state of Goa gives Rs 10 lakh. The amount is not uniform51. Historically, rape was treated as an offence of theft and women as an object whose ownership lay with guardians or husbands. So, rape was an offence against the ownership and not against the person.
In the IPC, the offence of rape is treated as an “offence against the human body”. However, the rape of a wife by her husband is not an offence, we can say she is an object. In Ramayana, Ravana committed this offence on Rambha. Her husband cursed Ravana that the moment Ravana will touch any woman against her will, his head will break into parts. This example shows that even powerful people should not escape punishment. 52 After the famous Mathura Case, the Criminal Law (Amendment) Act, 1983 was passed. It introduced custodial rape as a separate offence. It provided severer punishment in certain rape cases. The relevant sections of substantive and procedural code were changed. The burden of proof, which was earlier on the prosecution, transferred to the accused in aggravated rape cases. This offence is low reported. The reason behind low reporting is victim shaming and blaming.
Likewise, the medico-legal data is incomplete. Very few women take medical assistance in case of sexual violence. Rape has both physical and mental effects on the victim. Some victims may suffer from diseases like HIV, some may commit suicide and others may be murdered. They also face social stigma53. Rape may be defined as coerced or otherwise physical penetration of the penis or other body part or object in the vulva or anus. An attempt to do so is an attempt to rape. Rape by many people is gang Rape. The question is not why an individual or group committed a particular crime but why a particular person or group has been victimized. The focus is on filling the knowledge gap between crime and justice54. The very first provision that deals with the punishment provided for the offence of rape is Section 376 of the IPC.
Section 376(1) provides that any person who commits the offence of rape is liable to be punished with a period of
51 Minimum compensation for Rape Rs 4 lakh, rules SC, available at
http://timesofindia.indiatimes. com/articleshow/65694248.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign =cppst (Visited on October 15, 2020).
52 K. M. Tripathi & Anindita Chatarjee Rao, “Reporting Rape Cases in India”, 5(7) IJHAMS 1-8 (2017).
53 Sexual Violence, available at
https://www.who.int/violence_injury_prevention/violence/global campaign/en/chap6.pdf (Visited on July 29, 2020).
54 Victimology, available at
http://wps. ablongman. com/wps/media/objects/1893/1938583/CH 15 web. pdf (Visited on July 29, 2020). imprisonment, which shall not be less than 10 years; however, the same may exceed a punishment of life imprisonment. Also, it must be noted that the type of imprisonment provided under this Section for the offence of rape is rigorous imprisonment. Further, it provides that this shall not apply to the cases provided under sub-section 2 of Section 376. In Section 376(2) {Section 376(2) of the Indian Penal Code, 1860 deals with aggravated rape, including: Rape on a woman in a position of control or dominance ,Rape on a woman with a mental or physical disability ,Rape while causing grievous bodily harm ,Repeated rape on the same woman , Rape committed by police officers and other public servants .
The punishment for these crimes can include: Rigorous imprisonment for at least ten years, Imprisonment for life, and Fine }, punishment for a period which shall not be less than 10 years and which may extend to life imprisonment is imposed on any person who falls under the below-mentioned category and commits the offence of rape under the below-mentioned circumstances.
55 ● If a police officer commits the offence of rape on the premises of the police station or on a woman who is in custody; ● If a public servant on his duty commits rape with a woman who is in the custody of such public servant or in the custody of any of his sub-ordinate; ● If a person in the armed forces commits rape in the area where he is deployed; ● If a person who is in the management of a jail, remand home, any women's institution commits the offence of rape on any woman (who is an inmate of any such aforesaid place) by taking advantage of his post; ● If a person working in a hospital, commits. rape in that hospital where he is working; ● If a person, who is a relative, guardian, or teacher of a woman, or is in a position of trust or authority towards her, perpetrates an act of rape on her.
● If a person commits the offence of rape with a woman during communal or sectarian violence;
55 https://www.indiacode.nic.in/showdata?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=425
● If a person commits rape on a pregnant woman (in spite of having knowledge about her pregnancy); ● If a person commits rape with a woman who is capable of providing her consent; ● If a person commits rape on a woman with whom he has a position of control or dominance; ● If a person commits rape with a woman who is mentally or physically unwell; ● If a person severely injures or grievously hurts, maims, disfigures or endangers a woman's life while committing the offence of rape; ● If a person repeatedly rapes the same woman. ● Also, it is pertinent to note that the convicted person is punished with rigorous imprisonment, and further, the term life imprisonment' will include a sentence for the rest of the convicted person's life. ● Section 376A IPC – Act led to the death of the victim – punishment- rigorous imprisonment of not less than 20 years – may extend upto life imprisonment.
● Section 376AB IPC – Offence of rape with a women essentially under 12 years of age – punishment – imprisonment of 20 years and may extend to life imprisonment – has to pay fine amount to sustain medical expenses to the victim. ● Section 376C IPC – Even though martial rape is not criminalized in India , the aforementioned section penalises a husband who forces himself on his wife or forces his wife to have sexual intercourse with him. However, this provision is if the wife is living separately – absence of consent- punishment- imprisonment not less than 2 years that may extend upto 7 years. ● Section 376D IPC- Punishment for a person having sexual intercourse by abusing who his position of authority [ does not amounts to rape] – punishment-imprisonment not less than 5 years than may extend upto 10 years and fine.
● Section 376DA & 376DB of IPC – 376DA- provides punishment to a person accused of gang rape of women under 16 years of age- 376DB- provides punishment to a person accused of gang rape of women under 12 years of age – life imprisonment with fine. ● Section 376E IPC- punishment for repeated offenders- life imprisonment. 56 Section 64 of the Bharatiya Nyaya Sanhita deals with punishment for rape. Section 64(1) states that “Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. ” ● Section 65: This Section highlights punishment for rape in certain cases.
Section 65(1) states that whoever commits an offence of rape on a woman under 16 years of age should be punished with rigorous imprisonment for a term not less than 20 years but which may extend to imprisonment for life, which should mean imprisonment for the remainder of that person’s natural life, and a fine provided that such fine should be paid to the victim and should be a reasonable amount to meet the medical expenses and rehabilitation of the victim. ● On the other hand, Section 65(2) illustrates that whoever commits rape on a woman under 12 years of age should be punished with punishment mentioned in sub-section (1) or with death.
● Section 66: Whoever commits an offence of rape and causes the death of the woman or causes her to be in a persistent vegetative state should be punished with rigorous imprisonment for a term not less than 20 years but which may extend to imprisonment for life, which should mean imprisonment for the remainder of that person’s natural life, or with death. ● Section 67: As per this provision, sexual intercourse by a husband with his wife during separation and without her consent should be punished with imprisonment for a term not less than 2 years but may extend to 7 years and also be liable to fine. ● Section 68: This Section of BNS deals with sexual intercourse by a person in authority being in a position of authority or a fiduciary relationship, or a public servant, or superintendent
56 https://www.indiacode.nic.in/showdata?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=425
or manager (of jail, remand home, women’s institution, or children’s institution or other place of custody established under any law), or on the management of a hospital or being on the staff of a hospital. It states that if a person in authority abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, should be punished with rigorous imprisonment for a term not less than 5 years but which may extend to 10 years and a fine.
● Section 69: This section illustrates that if an individual who by deceitful means or by making a promise to marry a woman without any intention of fulfilling the same has sexual intercourse with her, such sexual intercourse does not amount to the offence of rape, should be punished with imprisonment which may extend to 10 years and should a fine. ● Section 70: It deals with the punishments for the offence of Gang rape. o As per Section 70(1) of the BNS, “Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, and with fine.
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Provided further that any fine imposed under this sub-section shall be paid to the victim. ” o As per Section 70(2) of the BNS, “Where a woman under eighteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death. Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Provided further that any fine imposed under this sub-section shall be paid to the victim.
” Apart from these provisions, the new law BNS, 2023 also defines punishment for repeated offenders for an offence of rape under Section 71. It states that if a previously convicted person of an offence punishable under Sections 64, 65, 66, or 70 of BNS commits the same offence and is convicted under the same Sections then they should be punished with imprisonment for life which should means imprisonment for the remainder of that person’s natural life, or with death. Moreover, the law also punishes those who disclose the identity of a victim of certain offences, etc. , and those who print or publish any matter relating to Court proceedings without permission under Section 72 and Section 73 respectively. 57 The compensation laws of India are very strictly codified for rape cases, but society and culture pose deep problems in the effective application of these laws.
A difference in compensation across various states, as shown by NALSA's "Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes - 2018," does not show much uniformity. Even after the legal justice is served, the social stigma faced by rape victims continues to mar their lives. In Indian society, a woman’s honor is often linked to her sexual purity, leading to a permanent stain on her identity, which cannot be easily restored, regardless of compensation. Though there are legal frameworks such as the IPC and the BNS, the social perception of rape makes it difficult to restore their dignity among women. The experience of rape is worsened for most by public humiliation, victim blaming, and other forms of social exclusion, thereby making justice incomplete because legal reparation alone cannot heal psychological and social scars left on the victim.
Indeed, some women would even prefer death to the trauma of rape, making this crime an intense psychological assault. It is clear that rape is such a grave offense, not only in the violation of the body but also in its irreparable attack on a woman's dignity and identity. In such a society, even when the administration of justice is realized, the long-term social judgment of that delivery creates the elusiveness of true justice. The real question to ponder, though, is: When the social rehabilitation of a victim remains impossible, does justice ever get served? Can any compensation balance out the lifelong consequences that come with a crime such as taking away a woman's identity in a society where her honor is everything? Not yet.
Therefore, sociological stigma, victim blame, and cultural barriers make reporting rape cases and prosecution difficult for the victims against criminals in India.
57 https://www.indiacode.nic.in/showdata?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=425
LEGISLATURE ON RAPE Different nations define rape according to the circumstances prevailing in their respective nation. Lord Macaulay structured IPC, 1860, accordingly. It was obvious that the penal code would have an English influence. India followed an adversarial system. The system in which the accused possesses all rights and the victim possesses none. The rape law does not recognize Marital Rape as rape though it is ground for divorce. The code criminalized same-sex sexual acts. However, Section 377 of the IPC has been declared against the constitution. Adultery was an offence at that time. Recently, it has been declared unconstitutional by Apex Court. The code initially defined rape in penile vagina penetration terms. However, the 2013 Amendment has considered oral sex and insertion of an object as rape.
58 JUDICIARY ON RAPE The role of the legislature and judiciary are complementary. The law provides and set norms for rights and duties. The judiciary, on the other hand, decides on these rights and duties. Judges help in maintaining the rule of law. Indian judiciary is held in high esteem due to the impartiality of judges. However, judges have been flawed many times in delivering justice to rape victims. In the Mathura case, the Apex Court acquitted the accused and held there were voluntary consent and no injury signs on the prosecutrix's body. It resulted in a women’s movement for rights. The case led to public outrage. The conservative approach of the judiciary was exposed. Not only this but misuse of power by police was also exposed. The controversial judgment forced the legislature to bring an amendment to IPC and IEA. The Criminal Law (Second Amendment) Act, 1983 was passed.
Section 114(A) in the IEA, 187259 was added. It provided that in case intercourse is proved and the raped alleges that she did not consent, then the burden of proof will shift to the accused. Sections 376(A), 376(B), 376(C) and 376(D) were added to IPC, which were later amended by the 2013 amendment. Section 376 (2) provided a new category by the name of Custodial Rape. Section 228 A was introduced, which provided that the victim’s identity should not be made known. Section 228 A was later amended by the 2013 amendment. The 2013 amendment later amended section 228 A. The attitude of the judiciary
58 Section 375 and Section 377 of the IPC
59 Indian Evidence Act, 1872 (Act 1 of 1872).
hasn’t really changed from the Mathura Case to the RG Kar Medical College, Kolkata it’s a testimony of the light-hearted attitude of prosecutors and the judiciary altogether. The Judiciary might have delivered justice but was it really satisfactory? Considering the plight of achieving that justice the answer seems on the negative stances. In the Vishakha case, the Indian Judiciary read international instruments and fundamental rights. Before this case, there were no directions on dealing with sexual harassment in the workplace. The only remedy available was a complaint under Section 35460and Section 50961of the IPC. This was a progressive judgment for the woman. The SC gave detailed directions for "sexual harassment. " The court included "physical contact" and "sexually coloured remarks" under this head. It also marked "sexual harassment" as a violation of equality and dignity.
The Sakshi case. This case is not only worth mentioning but also praising. The Court restricted itself to the doctrine of stare decisis, meaning following precedents. It refused to read rape beyond penis-vagina penetration. The court suggested that necessary changes must be brought into the definition by the legislature. It recognized that rape by other means is not unknown, and a necessary step in that direction must be taken. The Delhi rape case62, this case is one of the most brutal cases relating to gang rape. She was not even treated as a human. It is noteworthy that way back in 2004, the court asked the legislature to recognize other forms of rape, but it paid no attention to this case. She was cruelly gang raped. They went on to insert an iron rod into her sexual part. The brutality level was so high that she died due to the injuries suffered by the act.
The Nirbhaya case made the public come out on the streets and protest. The Government appointed J. S Verma Committee63 to suggest changes in the rape law. The Government later passed the 2013 Amendment. Not all the suggestions of the committee were accepted. For instance, the committee provided for the criminalization of Marital Rape, but the suggestion was rejected. The definition of rape was suggested to be made gender neutral, but this suggestion was also not accepted.
60 Outraging women’s modesty by criminal assault
61 Words, gestures or act intended to insult women’s modesty.
62 Mukesh and Others V NCT Delhi (2017) 6 SCC 1.
63 Justice J.S. Verma, Justice Leila Seth, et.al. Report of the Committee on Amendments to Criminal Law (2013).
In the Vishakha case, the Indian Judiciary read international instruments and fundamental rights. Before this case, there were no directions on dealing with sexual harassment in the workplace. The only remedy available was a complaint under Section 354and Section 509of the IPC. This was a progressive judgment for the woman. The SC gave detailed directions for "sexual harassment. " The court included "physical contact" and "sexually coloured remarks" under this head. It also marked "sexual harassment" as a violation of equality and dignity. The Mumbai76 gang rape case or what was also referred to in the media as “Shakti Mills gang rape”, involved the gang rape of a young photojournalist on assignment at the Shakti Mills compound in South Mumbai on August 22, 2013. The five defendants were convicted in March 2014.
The following month three of the four adult convicts, who had been repeat offenders, were sentenced to death under a provision of the newly enacted Criminal Law (Amendment) Act. The fourth received a life sentence, and the juvenile offender was sentenced to three years of reform school, the maximum sentence allowed under the Juvenile Justice Act. The death penalty for rape was introduced in certain cases. The convicts were given the death penalty except for one juvenile. One convict committed suicide in the prison itself. The 2013 amendment clearly defined the concept of consent in rape cases. It is important to note that the judiciary has taken a pragmatic approach in declaring Section
377 and Section 497 of the IPC as unconstitutional