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Journey of Anti-Rape Laws in India
Jan 5th, 2021 | by malvika singhal
The women in India have been suppressed and subjected to sexual and domestic violence for the longest time without any stringent laws and punishments for the offenders. True freedom comes when you feel safe in your homeland which seems impossible with loopholes in the legal system that let the accused walk away freely and with dignity, without any consequences. It is not only degrading to women but also society as a whole. With time, the honourable courts have amended the laws and brought in changes that have proved to be beneficial for the Indian women. The first anti-rape movement India Against Rape started in the early 1980s after a girl of only 14-16 years of age was raped by two policemen. This case brought the biggest changes in the rape laws and shook the country to its very core. Moving from the 1980s, Criminal Law Amendment Act, 1983 to Criminal Law Amendment Act, 2013 also called the Nirbhaya Act, the journey of anti-rape laws has been extremely commendable.
1. Mathura Rape Case
Mathura was a young orphan girl of age 14 or 16 years, living with two of her brothers. She worked with her brothers as a labourer to earn their daily living. Mathura used to work as a house help at the house of one Nushi. While working there, she came in contact with Ashok, son of the Nushi's sister and they formed an intimate relationship. Soon Mathura and Ashok decided to get married but Mathura's brother Gama was against such a union. The incident is suspected to have taken place on 24th March 1972 when Gama filed a complaint about Ashok and his relatives kidnapping Mathura. The police on receiving the complaint called upon Ashok, Nushi, and their family members. After recording the statements of the two, everyone was asked to leave the police station except Mathura and then she was raped by two policemen in the police station. According to a report, head constable Ganpat raped her and the other accused police constable Tuka Ram fondled her private parts. After getting suspicious, the crowd gathered and threatened to burn down the station.
Effect of the case on the Anti-rape laws
The severe public outrage from different parts of the country led to The Criminal Law Amendment Act, 1983( no. 43) which amended the following provisions:
- Section 114 (A) of the Evidence Act, 1872 states that if the victim says that she did not consent to the sexual intercourse, it should be presumed by the court that she did not consent to it.
- Section 376(A), 376(B), 376(C), 376(D) IPC were added which made custodial rape punishable.
- Besides defining custodial rape, the amendment shifted the burden of proof from the accuser to the accused once intercourse was established; it also added provisions for in-camera trials, the prohibition on the victim identity disclosure, and severe punishments.
- Section 288 (A) was added which states that anyone who without the permission of the victim not even with the permission of the next kin publishes the identity of the victim of offences under section 376 and 376 (A), 376(B), 376(C), 376 (D) except for the investigating officer for the inquiry shall be punished.
2. Vishaka Guidelines
The Vishaka Guidelines were laid down in the year 1997 by the honourable Supreme Court to prevent sexual harassment of women at workplace. The guidelines were given in Vishaka Case, a petition filed after Bhawari Devi was brutally raped at her workplace. This was done to form concrete provisions regarding sexual harassment at the workplace. Before, 1997 there were no such provisions laid down exclusively for abuse of female employees at their workplace. In the event of such an act, the offence was brought under section 354 of the IPC which made the act that outrages the modesty of a woman punishable, and section 509 of the same act makes words and gestures by an individual/s outraging modesty of any woman punishable. But this wasn't enough to prevent such events from happening in the future.
Effects of the Vishaka Case on the anti-rape laws
The above said legislation was derived from the Vishaka Guidelines passed by the Government of India in the year 2013. The main purpose of the Vishaka Guidelines was to prevent the harassment of women employees at their workplace and create a safer work environment for them. The Supreme Court made it mandatory for every employer to comply with the guidelines or strict action shall be taken for the non-compliance. The legislative void continued and the Apex Court in the case of Apparel Export Promotion Council v. A.K Chopra recapitulated the Vishakha Guidelines. Dr Medha Kotwal of Aalochana (an NGO) brought the attention of the court towards many individual cases of sexual harassment stating that the Vishakha Guidelines were not being effectively implemented. Converting the letter into a writ petition, the Supreme Court took cognizance and undertook to monitor the implementation of the Vishakha Guidelines across the country and held that in case of non-compliance, it would be open to the aggrieved persons to approach High Courts. The bill was first introduced in the Parliament by the Women and Child Development Minister Krishna Tirath in 2007 and after a long legislative process, it became the said Act in 2013.
3. Delhi Gang Rape
The incident shook the consciousness of the whole country, demanding justice for Nirbhaya and also called for changes in the laws relating to the security and safety of women. The incident led to an amendment in criminal law bringing amendments, as a result of which the Criminal Amendment Act, 2013 came into existence. A judicial committee, namely, the Justice Verma Committee, headed by a former judge of the Supreme Court was appointed.
Effects of the Nirbhaya Case on Anti-Rape Laws
1. Rape: The committee suggested that the offences of rape should remain as a separate offence and not be merged with "sexual assault". The committee also suggested that the punishment for such convicts to be of seven years to life imprisonment and if leaving the victim in a permanent vegetative state, should not be less than 20 years.
2. Sexual assault: It talked about punishment for various sexual offences like
(I) Voyeurism: Up to seven years imprisonment
(II) Stalking: up to three years imprisonment
(III) Acid Attacks: up to seven years imprisonment
(IV) Trafficking: up to seven to ten years imprisonment
3. Armed Forces (Special Powers) Act (AFSPA): The continuance of the Armed Forces (Special Powers) Act (AFSPA) in conflict areas needs to be revisited. At present, the AFSPA requires a sanction by the central government for initiating prosecution against armed forces personnel. The Committee has recommended that the requirement of sanction for prosecution of armed forces personnel should be specifically excluded when a sexual offence is alleged.
4. Punishment for offences against women: The committee suggested for the offences like rape, no death penalty should be given to the accused because there is no deterrent effect on the number of the cases.
5. Medical examination of a rape victim: the committee suggested to discontinue the "two-finger test" as it is demeaning and the panel said, "Such protocol-based, the professional medical examination is imperative for uniform practice and implementation."
6. Insertion of new sections in IPC to prevent rapes and sexual abuse.
Conclusion
The cases of rape and sexual assault have increased with time and accordingly, changes have been made. From the Mathura to Nirbhaya, the Indian judicial system has gone through a complete makeover making the anti-rape laws more stringent and victim-friendly with deterrent punishment for the offenders. But even with stricter punishment and higher conviction rate, the crime against women is not decreasing. The mindset and the attitude of the society also need to be changed and ways of making the society a safer place for the women have to be built into the conscious of the people starting from their childhood.
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