THE OFFENCE OF RAPE: HOW FAR HAVE WE COME?

INTRODUCTION

It is a widely prejudiced and deliberately unaccepted fact that women have been the driving force of the human race without even getting enough credit. Yet, patriarchy continues to exist and dominate society since the dawn of civilization. Sexual offence is one of the most- extreme and effective forms of this male-dominated society. Sexual offences in India have been enshrined and punishable under sections 375, 376, 376-A, 376-B, 376- C, 376-D of the Indian Penal Code.

WHAT CONSTITUTES A RAPE?

Section 375 of The Indian Penal Code, 1860 relates to the offence of rape.

The essential ingredients to constitute the offence of rape are-

  • Sexual intercourse by a man with a woman
  • Sexual intercourse must be falling under any of the circumstances provided under the seven clauses of section 375.

IMPORTANT AMENDMENTS AT A GLANCE

  1. TUKARAM V. STATE OF MAHARASHTRA[1]

Major changes brought through this amendment –

  • The burden of proof for proving free consent lies on the accused
  • Section 376A – 376D were added
  • Disclosure of the identity of the rape victim made was made punishable by adding section 228A
  1. MUKESH & ANR V. STATE FOR NCT OF DELHI & ORS [2]

Major changes brought through this amendment –

  • Inclusion of section 166A covering the sexual offences done by a public servant
  • Inclusion of section 326A, 326B covering the issue of acid attack punishable with imprisonment up to 10 years or fine or both
  • Inclusion of Section 365A dealing with Sexual Harassment, 365B dealing with the offence of compelling a woman to take off her garments, 365C dealing with Voyeurism (watching a woman without her garments or engaged in sexual activity), 365D dealing with the offence of stalking
  1. MOHD AKHTAR V. THE STATE OF JAMMU & KASHMIR [3]

Major changes brought by this amendment –

  • The minimum punishment of rape was increased from 7 years to 10 years
  • Gang rape of girls below 16 years of age is punishable with life imprisonment and of those below 12 years of age punishable with a minimum of 20 years of imprisonment or death penalty
  • Provisions for speedy investigation and trial (each within 2 months) and disposal of appeal within 6 months
  • No provision of anticipatory bail for a person accused of raping girls below 16 years of age
IS THE DEATH PENALTY EFFECTIVE IN DETERRING FURTHER CRIMES AGAINST WOMEN?

16th of December 2012, I still remember as I sat still reading about the Nirbhaya case, going completely numb. 20th March 2020, after almost seven years of committing this brutal crime, the four convicts were finally hanged in the darkness of pre-dawn, ending a horrific chapter in India’s long history of sexual assault that has sheared the nation’s soul. As the execution of this death penalty is being celebrated across the whole country, it is being said that though delayed, justice has finally been served to the victim, her family as well as the whole society.

Society believes that the death penalty serves as a strong deterrence against future crimes. But there is no available evidence to support this assumption. There is, in fact, evidence that shows that the crimes against women have only increased over the past seven years even after the introduction of the death penalty by the stringent Criminal Law (Amendment) Act, 2013.[4]  However, if one looks into the legal complications involved in the execution of the death penalty, then it becomes clear that there is a never-ending delay in its execution and this long wait for justice causes further trauma to the victim and her family. 

The final argument against the death penalty is based on the debate between Retributive Justice and Reformative Justice. In modern civilized society, the provision of the death penalty is seen as a form of retribution as the available pieces of evidence show that neither it delivers a true form of justice to the victim, nor does it have a deterrence effect.[5]  This is the reason why capital punishment has been abolished in several modern liberal societies such as west European countries. So, in a modern democracy, reformative justice is advocated over retributive justice to reform not just the criminal but the society as well.[6]

FINDING THE LOOPHOLES IN THE SYSTEM

Systemic delays are another significant factor why the death penalty has failed to serve its purpose in the due process of delivering justice. The Hathras Gang-Rape case can prove to be the perfect example of that. The 19-year-old Dalit girl from Hathras, Uttar Pradesh was brutally raped during the daylight and succumbed on September 29th, 2020. The Uttar Pradesh Police, on the other hand, forcefully cremated her body without even letting her family know in the early morning of the following day.

Multiple factors have prevented the family from getting speedy justice as promised by Chief Minister Yogi Adityanath. The rescheduling of important hearings like that of the “forceful cremation” as Justice Ranjoy Roy remained absent, the application of bail by three of the accused, the amount of time taken by CBI to complete the probe, file a charge sheet and hand it over to the victim’s family and her lawyer, the delay in hearing the family’s plea on the transfer of the case out of Uttar Pradesh by the Supreme Court followed by its rejection only made the delivery of justice a far-fledged dream.

CONCLUSION

The existing laws related to sexual offences against women were made more stringent with the enactment of the Criminal Law (Amendment) Ordinance, 2018. Regardless of how stringent the laws are, the statistics show that they have failed to meet the expectations of the justice system. The underlying reason could be the uncertainty of conviction, the long duration of legal trials, and taboos related to sexual offences that exist in the society further victimizes the woman and her family and sometimes prevents them from reporting the crime. Therefore, it is time to look into this issue from different angles to find ways that can help in preventing crimes against women.

Spreading Awareness through legal aid drives to break the existing taboos, more reporting of cases related to sexual offences, improving the policing system, making witness protection schemes to prevent witness hostility, conducting speedy trials, and making them easily affordable to everyone can help in serving justice.

Author(s) Name: Baishali Bhattacharjee (Assam University, Silchar)

References:

[1] 1979 AIR 185, 1979 SCR (1) 810

[2] (2017) 6 SCC 1

[3] (2018) 5 SCC 497

[4] Sahiba Vyas, The Role of Stringent Laws In Deterrence Of Statutory Rape, <https://www.legalserviceindia.com/legal/article-3094-the-role-of-stringent-laws-in-deterrence-of-statutory-rape.html>

[5] Soibam Rocky Singh & Jaideep Deo Bhanj & Saurabh Trivedi, Better conviction rate not the death penalty will deter sexual offenders, The Hindu (April 23, 2018, 12:00 AM), <https://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/better-conviction-rate-not-death-penalty-will-deter-sexual-offenders/article23640863.ece.>

[6] Ministry of Law And Justice Government of India And United Nations Development Programme, Towards Victim Friendly Responses and Procedures for Prosecuting Rape: A Study Of Pre-Trial And Trial Stages Of Rape Prosecutions In Delhi (Jan 2014-March 2015), https://doj.gov.in/sites/default/files/PLD%20report.pdf.

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