Paper VI Assignment 

English Literature 

Evolution of anti-rape laws in India Since

independence

Jinal Mistry TYBA 

Roll no. :3114 

The word rape is derived from a Latino word implying ‘to seize’. Rape is a crime that

“involves sexual assault usually involving sexual intercourse which is initiated by one or

more persons against another person without that person’s consent”

Rape represents a special type of violence against women. While the act has not changed

much over the centuries, perceptions of it have changed with time. In the past, rape was seen

primarily as an assault on the honour of the family or on the 'property' of the husband. The

father or husband was the aggrieved party. The women might be punished for bringing

dishonour to the family. Later rape was discussed in terms of lust and uncontrollable sexual

impulses, from a male point of view. The past decade has altered this definition to an exercise

of power, a violation by force of the integrity of a person's body, a violation of the basic

human right to 'security of person', thus finally considering the victim's point of view.

As a patriarchal country, India's recognition of rape as a "​committed offence​" was introduced

to the judicial system through the reforms reinforced by the British government. They

incorporated rape in the ​Indian Penal Code ,Sections 375 and 376​ in ​1860​ while modelling it

on the bases of their own constitution.

According to the original provision as in Section 375, ​a man is said to have committed

rape who except in the case here in after excepted,has sexual intercourse with a woman

circumstances falling under any of the six following descriptions:

1. Against her will

2. Without her consent

3. With her consent, when her consent has been obtained by putting her or any person

whom she is interested in under fear of death or of hurt

4.With her consent when the man knows that he is not her husband,and her consent is

given because she believes that he is another man to whom she is or believes herself to

be lawfully married

5. 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 which she is

unable to understand the nature and consequences to which she gives consent.

6. With or without her consent when she is under 16 yes of age.

However, marital rape, despite being prevalent in India, was excluded in accordance with the

Victorian belief as stated by Sir Mathew Hale​" the husband cannot be guilty of a rape

committed by himself upon his lawful wife, for by their mutual matrimonial consent and

contract, the wife hath given herself in kind unto the husband,whom she cannot retract".

Later,it followed the abolition of child marriages under age 12.

The post-independence period observed an active participation of women in the

process of feminising the concept of rape , consequently ,enabling several amendments to the

Indian Constitution. ​This series of modifications was sparked by the voice of Mathura,a

young Aadivasi ,who was raped by two policemen while in their custody on March

26,1972. The rape was ignored as "consensual" sex since no visible marks or injuries

were observed and Mathura hadn't raised alarm throughout the deed. Thus, it was

inferred that she had been sexually active sufficiently assuming it to be her "consent".

The injustice that was cried out in protests throughout the nation brought to the forefront two

questions ," ​What was 'consent'?" and "Is it alright to let the politically powerful male roam

​ he answer to both the questions led to the

acquitted after committing rape?"T

1983,Amendment to Section 376 that included Custodial Rape, Section 376 (A), Marital

Rape,and Section 376 (B to D), Sexual Intercourse not amounting to rape and revealing
the identity of a rape‑victim as an offence, with a punishment of five years. In cases of

custodial rape, burden of proof would remain with the accused, if the victim makes a

statement that ​she did not consent​, the court ​would believe that she did not consent.​

Consent was thus defined as "an unequivocal voluntary agreement when the woman by

words, gestures or any form of verbal or non-verbal communication, communicates

willingness to participate in the specific sexual act: Provided that a woman who does not

physically resist to the act of penetration shall not by the reason only

of that fact, be regarded as consenting to the sexual activity".While the punishment for

rape was extended to an imprisonment of 10 years from 7 years, it banned the

publication of the victim's true identity, thus encouraging pseudonyms and anonymity.

​ Consent was regarded as a primal constituent while investigating rape and character

assassination was abolished, hence encouraging women to seek justice for their dignity. This

relation of a woman's integrity with the patriarchal nature of "rape" becomes very subjective.

Even if the whole act of "raping" was victimized, it didn't erase the scrutiny that a woman's

character had to confront after the subjugation of her body. The shame that a "raped" woman

was exposed to was still minimal as compared to the "guy who raped" her. The 1983

Amendment overlooked the fact that , under Section 155 (4) the advocate of this victim could

always manipulate their testimony into an evidence of "immoral" character, thus dismissing

the admission of the whole offence. This attack on her in the name of a legally allowed cross

examination, questioning her past sexual acts, her personal life and other private matters,

deterred many victims of rape from registering complaints. ​Hence, later in 2002,

recommended changes by the Law Comission were introduced through The Indian

Evidence (Amendment) Act of 2002, (5) which came into force on January 1, 2003,
deleting the section 155 (4) IEA and added a provision, section 146 IEA that removed

cross examination of the prosecutrix about her general moral character.

It is to be noted that women’s subjective experiences of rape are often subverted by

the “objective”​ ​law against rape. Women feminist writers have often underlined the fact that

rape is an offence of violence against character .In most cases of sexual violence patterns of

prejudices and gender biases have taken precedence over the actual violence itself. The

socio-cultural environment of Indian society only ensures that the victim's psychology,

mental health is severely affected by it. Thus, only monetary fines or imprisonment become

material compensation, unaffecting the status of the offended in their community. Along with

this,

Section 375 of the Indian Penal Code, 1860 limited rape to penile vaginal penetration

and stated that the victims could only be female and perpetrators male. This raises

questions

about the adequacy and sufficiency of this definition of rape. The scope of the law does

not

extend to acts of forced oral sex, sodomy or penetration by foreign objects.

The Amendment Act of 2013 was a huge improvement over this in many ways.

Firstly, the offence of rape was replaced with "sexual assault". It included within its

ambit a wider range of sexual offences than just penile vaginal penetration. It advocated

rape as gender neutral and hence now both men and women could be victims and

perpetrators.​The incident that triggered this phase of feminist rape law reform was the brutal

gang-rape and murder in December 2012 of Jyoti Pande, a 23 year-old Indian physiotherapy

student labelled Nirbhaya (or the fearless one) by the media. This event mobilised

large-scale protests all over India against state inaction towards such offences.
Despite stringent laws passed post-Nirbhaya, the collective conscience of the society was

taken aback with Kathua rape case, where an 8-year-old girl fell prey to the savage lust of a

gang, faced brutal sexual assault and murdered, to give vent to their pervert sexual appetite,

and sadistic pleasure. 2016 reported 21% of the absolute 39,068 instances of rape being

committed against minor young ladies underneath the age of 16 years.These horrific

incidences and the alleged political support to the perpetrators were reminder of the fact that

"rape culture" in India had not only failed to wane but loomed large in our society where such

crimes were committed with impunity.

​Therefore, once again following public uproar and political pressure, the Criminal

Amendment Act was passed on 6 August, 2018, proposing to enhance the punishment

for child rape.

It introduced three new offences relating to the rape of minors in

Section 376 stating that rape and gang rape of a young lady beneath the age of 12 years

implied thorough imprisonment of at least 20 years extendable to life imprisonment,

alongside fine to meet medicinal costs and recovery cost of the person in question, or,

with death​.​While amending the Criminal Procedure Code,Time-bound examination was

employed under section 173 of the Cr.P.C., 1973 shortening the duration of an

examination concerning the rape of a child to a quarter of a year ( 3 months). The

Ordinance corrected the section by decreasing the ideal opportunity for the

consummation of examination from a quarter of a year to two months ,extendable to all

offences of rape (counting rape, gang rape, and rape of minors younger than 12 years

and 16 years).

Amendment to Indian Evidence Act banned the two-finger test that decides the past

sexual experience or character of the unfortunate casualty in all rape cases. On one
hand, the remarkable progress this amendment guaranteed in rape justice was

applaudable ,however, many experts in the field pointed out it's shortcomings. "​Child

sexual abuse is unbiased,"however ,​minor child rape was identified with the female

community inspite of there being​ ​sufficient records and proof of sexual maltreatment

exacted on minor boys, and the equivalent ought to have been fused by the Amendment.

It also consists of one extremely relevant inquiry, “Since the punishment for rape of a

minor and that of homicide is death, what number of the culprits would leave their

unfortunate casualties alive?” an inquiry that appears to be outlandish Along these

lines, presently the odds are high that the guilty party may proceed to extreme measures

in their aggressive behaviour towards the victim

Besides, the unresponsiveness of law enforcement agencies towards examining rape

cases frequently prompts delays in documenting a charge sheet, which is regularly an

impression of broken examination. Deferral in the examination may lead to altering of

evidence, witness terrorising and in this manner acquittals in preliminary owing to need of

proof.A fatal flaw among the making of the bills of these laws is that The Law Commission

has not accepted the inclusion of marital rape in the category of sexual assault on the ground

that “it would amount to too much intrusion into the marital relationship

Accordingly, the IPC and its ongoing enemy of rape amendments proceed to

afflict from ambiguities, irregularities, and authoritative indifference towards its

transformation to a structured and systematic implementation of these laws that actually

facilitate the mental and physical condition of the victim. Even though, it is a fact that the

trajectory to the establishment of gender equality becomes one with many intersectional

issues, the endeavours of the Indian Judicial System are not negligible in the sense that there
is a recognition that "sexual assault" is a multi-dimensional obstacle as far as a country like

India is concerned.

BIBLIOGRAPHY

ARTICLES

● From Rape to Sexual Assault: Legal Provisions and Mental Health Implications by

RC Jiloha

● ANTI RAPE LAWS IN INDIA: A REVIEW by Apoorva Ramaswamy

● Standard of Consent in Rape Law in India: Towards an Affirmative Standard by

Anupriya Dhonchak published in Berkeley Journal of Gender, Law and Justice

WEBSITES::

● shodhganga.inflibnet.ac.in
● https://www.google.com/amp/s/www.youthkiawaaz.com/2018/08/indias-anti-rape-law

s-the-evolution/amp/

● https://www.google.com/amp/s/www.indiatoday.in/amp/india/story/child-rape-criminal-

law-amendment-bill-2018-1301038-2018-07-31