Yesterday was the trial hearing of the Marine Drive rape case involving police constable Sunil More. Then a police constable attached to the Marine Drive police station in South Mumbai, was arrested on charges of allegedly raping a College girl, a minor, on April 21 inside the police station. The first trail was not a successful day at court since the victim fainted during the proceeding and therefore the court was adjourned. The Supreme court has issued an statement, asking the police and Mumbai court to complete the investigation and give out the verdict by latest April2006.
The above is just one in thousands of Rape incidents occurring in India every damn year. Today women have to be alert always any where, may it be park, public transport, cinemahall, education institute or work place. Mahila Ashrams and orphanages are also not spared. Worst can be expected from people whom a woman trusts fully, especially in metropolitan cities, even the homes are not safe. Traditional socio cultural notion of ownership over women's body and sexuality by the male is another factor leading to women's sexual harassment.
In most of the rape cases the victim is branded as a woman of loose morals. Child and adolescents rape are on the rise, about 58% are below 16 years. In recent years girl children in the age group of 6 - 12 years have been more victimized. Then we cases of Custodial rape which is extremely heinous since the offenders are supposed to be guardians of the law. Witnesses refuse to testify against offenders or men in power, which makes it impossible for the victim to get justice.
Overall a look at the status of women in India today is a cause for concern. Right from female foeticide, infanticide, child marriage, domestic violence, sexual violence, sexual harassment at the work place to the treatment meted out to elderly women makes any thinking person to wonder at the nature of the society.
Though the law is said to grant justice to the innocent, the same is sadly not true in many cases involving crime against women. This stands true especially when it comes laws imposed by the Indian judiciary system involving sexual assault and rape cases. The laws governing rape are not very just and to top it they are in urgent need of a review. Till time it happens rape victims have little solace......
Justice prides herself on being blind to everything but the truth-yet as far as rape is concerned, the facts paint a different picture. Rape is a weapon that distorts a woman's sexuality, restricts her freedom of movement and violates her human rights. It leaves a woman feeling exposed, humiliated and traumatized. A rapist not only violates the victim's privacy and personal integrity, but also causes serious physical and psychological damage.
However rape laws in India are extremely antiquated.Although the laws outline the crime in clear terms, the courts are filled with people who favour the accused and challenge the veracity of the victim's allegation.
Laws governing 'rape'
According to Section 375 of Indian Penal Code, a man is said to have committed `rape' when he has had sexual intercourse with a woman under these conditions:
1. Against her will
2. With her consent when her consent has been obtained by putting her or any person in whom she is interested in, in fear of death or hurt.
3. 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.
4. With her consent, when at the time of giving such a consent, by reason of unsoundness of mind or intoxication on the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature of the consequences of that of which she gives consent.
5. With or without her consent, when she is under 16 years of age.
Where rape is proved, the minimum punishment is ten years for custodial rape, gang rape, rape of pregnant women and minor girls under the age of 12 and seven years in other cases.
The debatable points on the above definition of 'rape' -
1. Sexual intercourse by a man with his own wife, where the wife is over 15 years of age, is not rape.
2. Sexual intercourse in a custodial situation is deemed an offence(policemen, public servants, managers of public hospitals and remand homes or wardens of jails), even if it is with the consent of the woman.
The victim is the accused in the eyes of law
As a whole, the process of law is biased against the victim. If the victim is a minor, the onus is on the accused to prove his innocence. But if the victim is a major, it is up to her to prove her charge. Therefore, the defense finds it worthwhile to prove that the victim is a major.
Also, in rape cases, unless the woman is examined medically within 24 hours, it becomes difficult forensically to prove that rape has occurred.
The laws too are discriminatory in nature. According to Section 155 (4) of Indian Evidence Act, "When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix (victim) was of generally immoral character." Section 54 of Indian Evidence Act says, "In criminal proceedings (including rape) the fact that the accused person has a bad character is irrelevant, unless> evidence has been given (by him) that he has a good character, in which case it becomes relevant."
Here are synmposis of three cases, which highlight the need to immditetely review the laws pertaining to 'rape' and 'sexual assault'.
1. The Mathura Case -
On March 26, 1972, 16 year old Mathura was raped by two policemen in the compound of Desai Ganj police chowky in Chandrapur district of Maharashtra. Her relatives, who had come to register a complaint, were patiently waiting outside even as this heinous act was being perpetrated in the police station. When her relatives and the crowd threatened to burn the police chowky down, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama.
The case came up for hearing in the sessions court on June 1, 1974. But the judgment pronounced turned out to be in favour of the accused. Mathura was accused of being a "liar". It was stated that since she was "habituated to sexual intercourse," her consent was given. Under the circumstances, only sexual intercourse could be proved not rape.
The Nagpur bench of the Bombay High Court set aside the judgment of the sessions court and sentenced Ganpat and Tukaram to 5 years and 1 year of rigorous imprisonment respectively. The judgment was that passive submission due to fear induced by serious threats could not be construed as willing sexual intercourse.
However, the Supreme Court again acquitted the policemen. The judgment said that Mathura had not raised an alarm and there were no visible marks of injury on her body. The judgment did not distinguish between consent and forcible submission.
Fortunately, the outrage, resentment and demand for more stringent anti-rape laws, generated by the Mathura case, led to the Criminal Law Amendment Act 1983. It amended section 376 of the Indian Penal Code and stipulated that the penalty for rape should not be less than 7 years. It also provided for trial in camera and inserted a clause, making the disclosure of the victim's identity a punishable offence.
2. The Sakina Case -
Sakina, a poor 16-year-old girl from Kerala, had been lured to Ernakulam with the promise of finding a job. There, she was sold and forced into prostitution. For 18 months, she was held in captivity and raped by clients. A complaint by a neighbour led to her rescue. Aided by her parents and an advocate, Sakina filed suit in the High Court, naming the upper echelons of Kerala's bureaucracy and society.
The High Court quashed the case, observing "It is improbable to believe that a man who desired to have sex on payment would come to a reluctant woman." The judgment added, "The version of a woman of this disposition is not so sacrosanct as to be taken for granted." This despite knowing that the girl had been beaten and held against her will.
Clearly the law needs to be more sensitive to the feelings of the victim, who has had a traumatic time and scarcely needs to be reminded of it. Often in Sakina's case she was abused and humiliated with questions such as "Don't try to tell us that you didn't enjoy it.
3. Case of an eight year old (Identity dis-closed) -
An eight-year-old child, penetrated in three orifices by her father, could not be considered either rape or an 'unnatural offence'. The problem here was that the abuse didn't fall within the definition of rape or outrage of modesty or 'unnatural acts' as laid down by law. She had been violated mentally and physically. But rape laws only recognize sexual crimes involving penile penetration. Here the violation was oral, anal and involved finger penetration.
Finally The CSO Sakshi, a women's resource centre working with victims of sexual abuse, filed the Public Interest Litigation (PIL) in 1997 after the Delhi High Court declared that the case of an eight-year-old child, penetrated in three orifices by her father as invalid.
The PIL questioned the legal procedures during a trial and urged the apex court to alter the definition of sexual intercourse [with reference to section 375 of the Indian Penal Code (IPC)].
The decision on the above case was received in June 2004, more on this, here
Need for Review
When the laws themselves carry an inherent bias, how far can the victim beassured of justice?
The National Commission for Women has identified nine areas for review. These are:
1. Review of the definition of rape
2. Reduction of procedural delays
3.Uniformity in age of consent under sections 375 and 376 of Indian Penal Code, 1860, to bring it in conformity with the Child Marriage Restraint Act, 1869
4. Whether exception to section 375 should be deleted
5. Whether section 155 clause 4 of the Indian Evidence Act 1872 needs to be amended or deleted.
6. Whether statutory provisions are needed for compensation to the rape victim
7. Whether provisions for counseling legal aid should be made mandatory under laws.
8. Death penalty to persons convicted for rape
9. Recommendation for enhancement of punishment in cases where the accused, with the knowledge of suffering from HIV infection/AIDS, infects the victim as a result of rape.
Violence against women exists in various forms in every day life in all societies. Women victims of violence should be given special attention and comprehensive assistance. To this end, legal measures should be formulated to prevent violence and to assist women victims. However since law, the legal system and society are closely interlinked it is not possible to enforce the rights provided in law without changes in social institutions, values and attitudes. Social change cannot be brought about through law.
It is only through the process of sensitizing various branches of the government and more importantly the members of society to the rights and concerns of women can gender justice become a reality. Law is only one method by which the various problems of women can be resolved.
*Important Link -
A must read write up on "Harassment and Rape Laws in India" by Dhruv Desai - 4th year law- Symbiosis Society's law college, Pune.