From Mathura to Nirbhaya: The Reform in the Rape Laws

Mathura was between 14 and 16 years of age, poor, orphaned tribal girl when she was raped by
the two constables at night inside the Desai Ganj police station. This incident took place in the
year 1972. There was a stigma attached to rape then. Yet, Mathura bravely fought against her
oppression. The Session judge hold Mathura as a liar and the one habituated to sex. It
pronounced a reverting verdict. On appeal, the High Court penalized one of the constable form
five years imprisonment and another accused was directed to be imprisoned for one year. The
case then went to the Supreme Court. The Supreme Court overturns the conviction of
perpetrators and upheld the decision of the Session Court. The Supreme Court could not
visualize and understood the trauma and silence of a young girl in the custody of those who
assaulted her were in position of authority. The colonial male dominated mindset, the Victorian
notions of morality and the regressive patriarchal understanding operated when the Court
pronounced its verdict then. The case gained momentum in both social and legal terms because
of the protests it sparked and eventually it led to reform in the rape law in 19831. Rape since then
has been construed as brutal act of abuse of power and custodial rape further attracts stringent
punishment.

Since then, various decisions have been pronounced where it has been held that rape adversely
affects a victim psychic and some even argued that “Sexual violence apart from being a
dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a
serious blow to her supreme honour and offends her self-esteem and dignity — it degrades and
humiliates the victim and where the victim is a helpless innocent child, it leaves behind a
traumatic experience. The courts are, therefore, expected to deal with cases of sexual crime
against women with utmost sensitivity. Such cases need to be dealt with sternly and severely” 2.
Though the courts took patronizing approach and have dwelled upon the concept of hurt and the
honour, yet, in many cases they have adopted a sympathetic approach towards the rape survivor.
In State of Punjab v. Gurmit Singh3 it was stated that, “We must remember that a rapist not only
violates the victim’s privacy and personal integrity, but inevitably causes serious psychological
as well as physical harm in the process. Rape is not merely a physical assault — it is often

1
Criminal Law Amendment Act of 1983
2
State of Karnataka v. Krishnappa, (2000) 4 SCC 75
3
(1996) 2 SCC 384
destructive of the whole personality of the victim. A murderer destroys the physical body of his
victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a
great responsibility while trying an accused on charges of rape. They must deal with such cases
with utmost sensitivity”. In Bharwada Bhoginbhai Hirjibhai4 it was explained that if the
evidence of the victim does not suffer from any basic infirmity and the “probabilities-factor”
does not render it unworthy of credence, there is no reason to insist on corroboration except
corroboration by the medical evidence. In State of Punjab v. Ramdev Singh5 it has been said that
the prosecutrix stands on a higher pedestal than an injured witness.

Amidst these positive progressive decisions on rape law, it may be added, that it is not that the
courts have not expressed their regressive mindset. Rather there are number of decisions 6 where
the courts have taken anti-women stand and the victimized the women survivors who attempt to
seek justice. Yet in many cases, the courts have also acted to provide the justice to the victims.
There are matters where the courts have let off the accused because the accused has married the
victim, or where the police has pressurized the victim to compromise despite of the fact that rape
is a non-cognizable, non-compoundable and non-bailable offence. Complaints of rape by women
have been rejected because there are no marks of injury on the body of the victims or the signs
that show that she has not resisted or she that she has consented 7. At times, promiscuity has also
been used as a defence to acquit the accused8. Often, accused persons have been released on the
pretext of his age, loopholes in the investigation9, or it is alleged that the complainants have filed
false cases10. Shockingly, in Bhanwari Devi’s case the court opined that the higher caste people
cannot rape lower caste women and acquitted the accused persons while giving other similar
unreasonable arguments.

In December 2012, after the brutal gang rape of Jyoti Singh in a moving bus in Delhi, the strong
outrage erupted where men and women from different sections of society came together
demanding the severe penalty to be given the accused persons. In the wake of these protests, the
country witnessed an emerging debate around sexual violence, safety of women and consent
4
(1983) 3 SCC 217
5
(2004) 1 SCC 421
6
Pratap Misra v State of Orissa 1977 (3) SCC 41
7
Kunal Mandiyala v State of Maharashtra Cri WP 1787 of 2016 Bombay High Court
8
Rohit Tiwari v State Cr App. 928/2015 Delhi High Court
9
Anant v State of Maharashtra Cri Appeal 449 of 2013 Bombay High Court,
10
Mohit Nagar v State Cri MC 2454/2016 Delhi High Court
while substituting the taboo and stigma surrounding rape. The Justice Verma Committee
formulated immediately after the public outrage put forward many recommendations including
broadening the definition of rape while adding provisions relating to criminalization of marital
rape, introducing stringent punishment and to pragmatically deal with the issue of consent in
rape cases among others. The government, however brought the Criminal Law Amendment
Law11 in 2013. Legal reform recognized the principle of affirmative consent based on the
principle that consent must be nothing short of an unequivocal positive ‘Yes’ (whether through
words or gestures) to engage in a sexual act. This law defines consent as, “an unequivocal
unilateral agreement when a woman by words or gestures or any form of verbal or non-verbal
communication communicates willingness to participate in in the specific sexual act”. It is
clarified that absence of physical resistance would not itself amounts to consent. The object of
such amendment to the definition of consent is to thwart the patriarchal and prejudicial reading
of presence of consent in the judicial discourse where the past sexual history of the victim,
absence of physical injury and other such aspects are avoided so that the victim could access
justice without victimization or its threat.

This amendment made in 2013 also expanded the definition of rape to introduce clause vii in the
Section 375 which states that a man would be said to commit a rape if a woman “is unable to
communicate her consent”. Narrowly construed, it may imply that a woman is unable to
communicate her consent because of her physical or mental infirmities or illness or intoxication
of for any such reason, yet in case if these provisions are broadly analyzed it may also include
the situations where a woman is not given space to communicate and be heard of and therefore it
may be said that she is unable to provide her consent. When read with the requirement of
`unequivocal unilateral agreement’, it mandates that the sexual acts which are performed in
callous disregard of a women’s desire would constitute rape. Thus, in any sexual interaction, it
becomes essential that a woman is assured sufficient space and time to formulate and
communicate her consent to a specific sexual act.

The Supreme Court while pronouncing its verdict in Mukesh and others v. State for NCT of
Delhi12 (Nirbhaya’s case) too confirmed the award of death penalty to the accused persons while

11
Criminal Amendment Act 2013 Act no. 13 of 2013
12
Criminal Appeal 607-608 of 2017 and 609-610 of 2017 decided on May 5, 2017
describing the act of gang rape and death of the victim as `brutal, barbaric and diabolic’. Justice
Bhanumati while concurring with the majority verdict opined that “Crime against women is an
unlawful intrusion of her right to privacy, which offends her self-esteem and dignity” therefore it
is the duty of the court to carefully appreciate the evidences while dealing with the cases of rape.
She emphasized that the “Court must act with utmost sensitivity and appreciate the evidence of
prosecutrix in lieu of well settled legal principles”. She further clarified that “It is now well-
settled that conviction for an offence of rape can be based on the sole testimony of the
prosecutrix corroborated by medical evidence and other circumstantial evidence such as the
report of chemical examination, scientific examination etc., if the same is found natural and
trustworthy”. It is further elucidated that the “Persisting notion that the testimony of victim has to
be corroborated by other evidence must be removed. To equate a rape victim to an accomplice is
to add insult to womanhood. Ours is a conservative society and not a permissive society.
Ordinarily a woman, more so, a young woman will not stake her reputation by levelling a false
charge, concerning her chastity.” She further elucidated that “There is no legal compulsion to
look for corroboration of the prosecutrix’s testimony unless the evidence of the victim suffers
from serious infirmities, thereby seeking corroboration”.

Thus, the Supreme Court in the said judgement clearly established the principle that the rape as
an offence requires a different treatment in our male dominated society where the patriarchal
societyis hostile to women, in general and whereas the reported cases of crime against women
are on rise. Thus, in catena of cases, the courts have directed to deal with the matter relating to
rape sensitively and have held that the conviction can be found on the testimony of prosecutrix
alone unless there are compelling reasons to seek corroboration. It is stated that “the evidence of
prosecutrix is more reliable than the injured witness”13.

13
State of HP v Asha Ram (2005) 13 SCC 766