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March 2015
Constitution of India and Polity
The present constitution of India was framed by the Constitution Assembly of India setup under Cabinet Mission Plan of May 16, 1946.
Composition of Constituent Assembly:-
1-The Constituent Assembly consisted of 385 members, of which 292 were elected by he elected members of the Provincial Legislative Assemblies while 93 members were nominated by the Princely States. To these were to be added a representative each from the four Chief Commissioners Provinces of Delhi, Ajmer-Marwar, Coorg and British Baluchistan.
1-Dr. B.R. Ambedkar
2-N. Gopalaswami Ayyar
3-K.M. Munshi
4-Syyed Mohd. Saadulla
5-N.Madhav Rao
6-D.P.Khaitan (T Krishnamachari, after Kahitan’s Death in 1948)
3-K.M. Munshi
4-Syyed Mohd. Saadulla
5-N.Madhav Rao
6-D.P.Khaitan (T Krishnamachari, after Kahitan’s Death in 1948)
Vollyball Facts
| Some important measurement in Volleyball | |
|---|---|
| Length of Court | 18 meter |
| Width of Court | 9 meter |
| Weight of ball | 250 -260 grams |
| Circumference of the ball | 65-67 cm |
| Net | 1m (+/- 3cm) wide and 9.5 m long |
| Net's height | 2.43 m (for men) and 2.24 m (for women) |
| Ball Internal Pressure | 0.40 to 0.45 Kg/cm |
Some important terminology in Volleyball :- Antennae, Attack hit, Back zone players, Dribbling, Libero, Front Zone players, Blocking, Smash, Rotation, Boosting, Net fault, Volley Pass, Forearm pass, Service, Hook serve, Set up, Referee etc.
Table Tennis Facts
| Some important measurements in Table Tennis | |
|---|---|
| Length of the table | 2.74 metre (9 feet) |
| Width of the table | 1.52 metre (5 feet) |
| Height of the table | 76 cn |
| Weight of the ball | 2.4 to 2.53 gram |
| Diameter of the ball | 37.2 to 38.2 mm |
| Colour of the ball | White or Yellow |
Some important terminology in Table Tennis :- Foil, End line, Late control, Flat hit, Block stroke, Service, Penholder grip, Back spin, Centre line, Half Court, Side spin, Swing stroke, Push Stroke, Rally, Let, Reverse, Top Spin, Drop shot, Lob, Chopped return, Counter hitting etc.
Lawn Tennis Facts
3-competitions for women (in Wimbledon Championship) were introduced in 1884.
| Some important measurements in Lawn Tennis | |
|---|---|
| Length of the court | 78 feet or 23.77 m (singles) |
| Width of the court | 27 feet or 8.23 m (singles), 36 feet or 10.97 m (doubles) |
| Height of the net | 3 feet (0.914 m) |
| Weight of the ball | 56.0 to 59.4 gram |
| Maximum length of the frame of the racket | 32 inches (81.28 cm) |
| Colour of the ball | White or Yellow |
Some important terminology in Lawn Tennis :- Ace, Advantage, A let, Back hand drive, Deuce, Chip Shot, Volley, Half Volley, Let fault, Foot fault, Double Fault, Smash, Service, Grand Slam, Singles sticks, Love, Slice.
Hockey Facts
In Olympics, India has won the hockey title a maximum of 8 times. The first World Cup Hockey was played in Barcelona in 1971.
| Year | Place | Winner | Runners Up | India's Position |
|---|---|---|---|---|
| 1971 | Barcelona | Pakistan | Spain | Third |
| 1972 | Amsterdam | Holland | India | Second |
| 1975 | Kuala Lumpur | India | Pakistan | First |
| 1978 | Buenos Aires | Pakistan | Holland | Sixth |
| 1982 | Mumbai | Pakistan | West Germany | Fifth |
| 1986 | London | Australia | England | Twelfth |
| 1990 | Lahore | Holland | Pakistan | Tenth |
| 1994 | Sydney | Pakistan | Holland | Fifth |
| 1998 | Utrecht | Holland | Spain | Ninth |
| 2002 | Kuala Lumpur | Germany | Australia | Tenth |
| 2006 | Germany | Germany | Australia | Eleventh |
The World Cup 2010 to be held in New Delhi.
| Some important measurement in Hockey | |
|---|---|
| No. of Players | 11 players in each team |
| Length of Playing field | 91.44 meters |
| Width of the Playing field | 50 to 55 meters |
| Weight of the Ball | 155 to 163 grams |
| Circumference of the Ball | 223- 224 cm |
| Colour of the Ball | White |
| Weight of the Hockey (Stick) | 280 grams (max) |
Some important Terminology in Hockey :- Advantage, Back-stick, Bully, Carry, Dribble, Dodge, Goal line, Green Card, Flick, Free hit, Face of Stick, Jab Stroke, Lung Stroke, Melle, Off side, Penalty shoot out, Short Corner, Striking circle or Shooting circle, Square pass, Tackling, Through pass, Under cutting, Stick, Penalty stroke, Scoop, Side line, Tie breaker, Penalty, Under cutting, Volley, Centre forward, Roll in, Push in, Shooting, Half volley, Full back etc.
Redefining the Rape Laws in India: A Constructive and Comparative Approach
Rape is a crime of violence; it is not sex. At common law, rape was defined as the unlawful carnal knowledge of a woman, without her consent. Carnal knowledge was defined as sexual intercourse. Sexual intercourse implied genital copulation. Genital copulation, in turn, connoted the act of sexual intercourse . Unlawful carnal knowledge required sexual penetration, however slight. Today, in addition to the requirement of carnal knowledge, most rape statutes require force or threat of force against the will and without the consent of the victim. Numerous law review articles have been written on the requirements of force and against the will of the victim. The articles focus on the force requirement and not the penetration requirement, which is the male understanding of what is necessary when a woman is threatened with the crime of rape.
Penetration is required in addition to the force and against the will requirements. Penetration, at common law, was defined as the penetration of the sexual organ of the female by the sexual organ of the male. What is the female sex organ: the vagina, the vulva, the labia? What is the male sex organ: the penis? The requirement of penetration by ‘some male organ type mechanism’ removed other types of conduct with the vulva from the crime of rape. The penetration of the vulva by the male sex organ is not regarded as rape by most legislation. Some legislation legislated penetration of the vulva, but required a showing of penetration of the vagina.
Fletcher also observed that "sometime in the last two or three centuries, our scientific thinking about crime began to shift from the harm done to the act that brings about the harm". Furthermore, instead of seeing harm first and the action as the means for bringing about the harm, we are now inclined to see the action first and the harm as a contingent consequence of the action. "Most criminal statutes focus on the act, rather than social harm".
Rape is an invasion of a woman's body in which her private, personal inner space is violated. The act of rape denies woman autonomy by abridging her right to determine when, with whom, and how she will allow an individual to enter her zone of body privacy. In addition to the physical harm, the crime of rape grants man domination over the woman's zone of body privacy. Under the Indian Penal Code (IPC), the crime of rape occurs when the following happens:
"A male ... has sexual intercourse with a female not his wife ... and compels her to submit by force or by threat of [force] ... [or] has substantially impaired her power to appraise or control her conduct by administering ... without her knowledge drugs [and] the female is unconscious ... [or she] is less than 10 years old." reference to rape as sexual intercourse suggests that rape is not a crime if it is sex. But rape is not sex.
Some suggest that sexual intercourse has to include penetration of the vagina, however slight, and anything less is not rape because it is not intercourse. Thus, the touching of the female’s sex organ, without the penetration of the vagina, cannot constitute rape under the IPC. Rape, however, is not sex; it is a crime, and it is a crime of violence. The crime is complete when the act is done, or the social harm has occurred. The act is done when the female's private, personal inner space is violated, and that space is violated when an uninvited individual enters the zone of protected pleasures.
Penetration is required in addition to the force and against the will requirements. Penetration, at common law, was defined as the penetration of the sexual organ of the female by the sexual organ of the male. What is the female sex organ: the vagina, the vulva, the labia? What is the male sex organ: the penis? The requirement of penetration by ‘some male organ type mechanism’ removed other types of conduct with the vulva from the crime of rape. The penetration of the vulva by the male sex organ is not regarded as rape by most legislation. Some legislation legislated penetration of the vulva, but required a showing of penetration of the vagina.
Fletcher also observed that "sometime in the last two or three centuries, our scientific thinking about crime began to shift from the harm done to the act that brings about the harm". Furthermore, instead of seeing harm first and the action as the means for bringing about the harm, we are now inclined to see the action first and the harm as a contingent consequence of the action. "Most criminal statutes focus on the act, rather than social harm".
Rape is an invasion of a woman's body in which her private, personal inner space is violated. The act of rape denies woman autonomy by abridging her right to determine when, with whom, and how she will allow an individual to enter her zone of body privacy. In addition to the physical harm, the crime of rape grants man domination over the woman's zone of body privacy. Under the Indian Penal Code (IPC), the crime of rape occurs when the following happens:
"A male ... has sexual intercourse with a female not his wife ... and compels her to submit by force or by threat of [force] ... [or] has substantially impaired her power to appraise or control her conduct by administering ... without her knowledge drugs [and] the female is unconscious ... [or she] is less than 10 years old." reference to rape as sexual intercourse suggests that rape is not a crime if it is sex. But rape is not sex.
Some suggest that sexual intercourse has to include penetration of the vagina, however slight, and anything less is not rape because it is not intercourse. Thus, the touching of the female’s sex organ, without the penetration of the vagina, cannot constitute rape under the IPC. Rape, however, is not sex; it is a crime, and it is a crime of violence. The crime is complete when the act is done, or the social harm has occurred. The act is done when the female's private, personal inner space is violated, and that space is violated when an uninvited individual enters the zone of protected pleasures.
Definitions of Rape: Penetration.
The variations in definitions as to what constitutes sexual intercourse is part of the problem in defining what has to be penetrated. With respect to the raping of a woman by a man, most states require penetration of the vagina. Defining what has to be penetrated is significant because if rape is viewed as a crime against the woman, then any conduct that is perceived as violative to the woman should be classified as rape. Many statutes, with respect to the penetration element, provide that an offender has to engage in sexual intercourse. It is assumed that penetration has to be effectuated in order for there to be sexual intercourse. The statutes, however, fail to state what has to be penetrated--the vagina, the vulva, the labia, or the clitoris? Some states refer to penetration of the female organ without further defining penetration.
To penetrate is ‘to enter or force a way into; [to] pierce.’ Penetration is the ‘act or process of piercing or penetrating something.’ How do we determine what constitutes a sex organ? And what needs to be penetrated? And can it be penetrated? Even though there are numerous articles stating the force and against the will requirements are male responses to being attacked, the male question has not been addressed with respect to penetration. Penetration is required in addition to the force and against the will requirements. Penetration, too, is a male understood type conduct. The penetration of requirement does not necessarily require that the vagina is completely entered or that the hymen is ruptured. Is entering the vulva or labia sufficient?
Penetration, at common law, was defined as the penetration of the sexual organ of the female by the sexual organ of the male. What is the female sex organ: the vagina, the vulva, the labia? What is the male sex organ: the penis? The requirement of penetration by ‘some male organ type mechanism’ removed other types of conduct with the vulva from the crime of rape. The penetration of the vulva by the male sex organ is not regarded as rape by most jurisdictions. Some jurisdictions legislating penetration of the vulva, but required a showing of penetration of the vagina.
At early common law when rape statutes were initially written, women were deemed property of men. Virgin daughters were a valuable commodity belonging to their fathers; wives were the chattel of their husbands. The father or husband ownership right of women made rape a crime against property. Because rape was a property offense, the father or husband was the victim rather than the woman. Because fathers or husbands were the victims of rape, men wrote rape laws for their own benefit and therefore, included a penetration requirement. Penetration requires male type conduct and therefore, evolved as the measuring rod for determining when conduct had gone far enough to constitute a crime. One commentator has stated the following:
"Criminal law that reflects male views and male standards imposes its judgment on men who have injured other men. It is "boys’ rules" applied to a boys’ fight. In rape, the male standard defines a crime committed against women, and male standards are used not only to judge men, but also to judge the conduct of women victims.
Delaware’s unlawful sexual intercourse statute is common to most jurisdictions. Delaware’s statute provides that one is guilty of a class A felony when the person intentionally engages in sexual intercourse "without the victim's consent." Sexual intercourse is defined as "[a]ny act of physical union of the genitalia or anus of [one] person with the mouth, anus or genitalia of another person. It occurs upon any penetration, however slight." Sexual intercourse is also defined as “[a]ny act of cunnilingus or fellatio, regardless of whether penetration occurs." Cunnilingus is "any oral contact with the female genitalia." Sexual contact is "any intentional touching of the anus, breast, buttocks or genitalia of another person, which touching, under the circumstances as viewed by a reasonable person, is sexual in nature. Sexual contact shall also include touching of those specified areas when covered by clothing." For the woman, the physical contact of her genitalia, her clitoris, her sex organ by the penis or any object may be considered to be as violative as the penetration of her vagina.
A Practical Approach towards Redefining.
The narrow legal definition of rape, recently reiterated in the Sakshi case, has been criticized by Indian and international women's and children's organizations, who insist that broader interpretations are needed to protect victims, and also to serve justice. Rape is defined in India as intentional, unlawful sexual intercourse with a woman without her consent. The essential elements of this definition under Section 375 of the Indian Penal Code are ‘sexual intercourse with a woman’ and the absence of consent. This definition therefore does not include acts of forced oral sex, or sodomy, or penetration by foreign objects; instead those actions are criminalized under Section 354 of the IPC, which deals with ‘criminal assault on a woman with intent to outrage her modesty’ and Section 377 IPC, covering ‘carnal intercourse against the order of nature’.
The narrow definition of rape has been criticized by Indian and international women’s and children’s organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with any constitutional provisions, natural justice or equity. Their reasons have been succinctly encapsulated in a recent Public Interest Litigation before the Supreme Court in Sakshi v. Union of India:
... the interpretation [by which such other forms of abuse as offences fall under Section 354 IPC or Section 377 IPC] is ... contrary to the contemporary understanding of sexual abuse and violence all over the world. There has been for some time a growing body of feminist legal theory and jurisprudence which has clearly established rape as an experience of humiliation, degradation and violation rather than an outdated notion of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and thereby condone such behaviour.
But in Sakshi, the Supreme Court did not interpret the provisions of Section 375 IPC to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina penetration, finger/anal penetration, and object/vaginal penetration within its ambit. Instead, the judges sought refuge behind the strict interpretation of penal statutes and the doctrine of state decisis - a view that any alteration [in this case, of the definition of rape] would result in chaos and confusion. In the present case, the respondent authorities has been trying to treat sexual violence, other than penile/vaginal penetration, as lesser offences falling under either Section 377 or 354 of the IPC and not as a sexual offence under Section 375/376 IPC. But it has been found that offences such as sexual abuse of minor children and women by penetration other than penile/vaginal penetration, which would take any other form and could also be through use of objects whose impact on the victims is in no manner less than the trauma of penile/vaginal penetration as traditionally understood under Section 375/376, have been treated as offences tailing under Section 354 of the IPC as outraging the modesty of a women or under Section 377 IPC as unnatural offenses.
A plain reading of Section 375 of the IPC would make it apparent that the term "sexual intercourse’ has not been defined and is, therefore, subject to and is capable of judicial interpretation. And the Section also does not in any way limit the term penetration to mean penile/vaginal penetration. Limiting the understanding of "rape" to abuse by penile/vaginal penetration only, runs contrary to the contemporary understanding of sexual abuse law and denies majority of women and children access to adequate redress in violation of Article 21 of the Constitution. Sexual abuse of children, particularly minor girl, children by means and manner other than penile/vaginal penetration is common and may take the form of penile/anal penetration, penile/oral penetration, finger/vaginal penetration or object/ vaginal penetration. It is submitted that by treating such forms of abuse as offenses falling under Section 354 IPC or 377 IPC, the very intent of the amendment of Section 376 IPC by incorporating Sub-section 2(f) therein is defeated. The said interpretation is also contrary to the contemporary understanding of sexual abuse and violence all over the world.
A purposive approach is being adopted in some of other countries so that the criminals do not go untouched on mere technicality of law. A strong reliance was also placed on some decisions of House of Lords to substantiate the contentions and the most notable being R v. R where it was held as under:
‘The rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her consent no longer forms part of the law of England since a husband and wife are now to be regarded as equal partners in marriage and it is unacceptable that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances or that it is an incident of modern marriage that the wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force. In Section 1(1) of the Sexual Offences (Amendment) Act, 1976, which defines rape as having ‘unlawful’ intercourse with a woman without her consent, the word 'unlawful' is to be treated as mere surplus age and not as meaning ‘outside marriage’, since it is clearly unlawful to have sexual intercourse with any woman without her consent.’
Even international law now says that rape may be accepted as "the sexual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or of the mouth of the victim by the penis of the perpetrator; by coercion or force or threat of use of force against the victim or a third person." Similarly, Article 2 of the Declaration on the elimination of Violence Against Women reads as follows:
Violence against women shall be understood to encompass but not limited to ... Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation.
Judgments by the Australian courts reveal that insertion of objects into the victim's vagina and anus amount to rape. The definition of rape states that sexual penetration of the body is necessary but the slightest penetration of the body of the female by the male organ is sufficient. Emphasis on the word "slightest" reveals the intent behind the definition is to give the victim and not the criminal the benefit of the doubt.
To penetrate is ‘to enter or force a way into; [to] pierce.’ Penetration is the ‘act or process of piercing or penetrating something.’ How do we determine what constitutes a sex organ? And what needs to be penetrated? And can it be penetrated? Even though there are numerous articles stating the force and against the will requirements are male responses to being attacked, the male question has not been addressed with respect to penetration. Penetration is required in addition to the force and against the will requirements. Penetration, too, is a male understood type conduct. The penetration of requirement does not necessarily require that the vagina is completely entered or that the hymen is ruptured. Is entering the vulva or labia sufficient?
Penetration, at common law, was defined as the penetration of the sexual organ of the female by the sexual organ of the male. What is the female sex organ: the vagina, the vulva, the labia? What is the male sex organ: the penis? The requirement of penetration by ‘some male organ type mechanism’ removed other types of conduct with the vulva from the crime of rape. The penetration of the vulva by the male sex organ is not regarded as rape by most jurisdictions. Some jurisdictions legislating penetration of the vulva, but required a showing of penetration of the vagina.
At early common law when rape statutes were initially written, women were deemed property of men. Virgin daughters were a valuable commodity belonging to their fathers; wives were the chattel of their husbands. The father or husband ownership right of women made rape a crime against property. Because rape was a property offense, the father or husband was the victim rather than the woman. Because fathers or husbands were the victims of rape, men wrote rape laws for their own benefit and therefore, included a penetration requirement. Penetration requires male type conduct and therefore, evolved as the measuring rod for determining when conduct had gone far enough to constitute a crime. One commentator has stated the following:
"Criminal law that reflects male views and male standards imposes its judgment on men who have injured other men. It is "boys’ rules" applied to a boys’ fight. In rape, the male standard defines a crime committed against women, and male standards are used not only to judge men, but also to judge the conduct of women victims.
Delaware’s unlawful sexual intercourse statute is common to most jurisdictions. Delaware’s statute provides that one is guilty of a class A felony when the person intentionally engages in sexual intercourse "without the victim's consent." Sexual intercourse is defined as "[a]ny act of physical union of the genitalia or anus of [one] person with the mouth, anus or genitalia of another person. It occurs upon any penetration, however slight." Sexual intercourse is also defined as “[a]ny act of cunnilingus or fellatio, regardless of whether penetration occurs." Cunnilingus is "any oral contact with the female genitalia." Sexual contact is "any intentional touching of the anus, breast, buttocks or genitalia of another person, which touching, under the circumstances as viewed by a reasonable person, is sexual in nature. Sexual contact shall also include touching of those specified areas when covered by clothing." For the woman, the physical contact of her genitalia, her clitoris, her sex organ by the penis or any object may be considered to be as violative as the penetration of her vagina.
A Practical Approach towards Redefining.
The narrow legal definition of rape, recently reiterated in the Sakshi case, has been criticized by Indian and international women's and children's organizations, who insist that broader interpretations are needed to protect victims, and also to serve justice. Rape is defined in India as intentional, unlawful sexual intercourse with a woman without her consent. The essential elements of this definition under Section 375 of the Indian Penal Code are ‘sexual intercourse with a woman’ and the absence of consent. This definition therefore does not include acts of forced oral sex, or sodomy, or penetration by foreign objects; instead those actions are criminalized under Section 354 of the IPC, which deals with ‘criminal assault on a woman with intent to outrage her modesty’ and Section 377 IPC, covering ‘carnal intercourse against the order of nature’.
The narrow definition of rape has been criticized by Indian and international women’s and children’s organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with any constitutional provisions, natural justice or equity. Their reasons have been succinctly encapsulated in a recent Public Interest Litigation before the Supreme Court in Sakshi v. Union of India:
... the interpretation [by which such other forms of abuse as offences fall under Section 354 IPC or Section 377 IPC] is ... contrary to the contemporary understanding of sexual abuse and violence all over the world. There has been for some time a growing body of feminist legal theory and jurisprudence which has clearly established rape as an experience of humiliation, degradation and violation rather than an outdated notion of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and thereby condone such behaviour.
But in Sakshi, the Supreme Court did not interpret the provisions of Section 375 IPC to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina penetration, finger/anal penetration, and object/vaginal penetration within its ambit. Instead, the judges sought refuge behind the strict interpretation of penal statutes and the doctrine of state decisis - a view that any alteration [in this case, of the definition of rape] would result in chaos and confusion. In the present case, the respondent authorities has been trying to treat sexual violence, other than penile/vaginal penetration, as lesser offences falling under either Section 377 or 354 of the IPC and not as a sexual offence under Section 375/376 IPC. But it has been found that offences such as sexual abuse of minor children and women by penetration other than penile/vaginal penetration, which would take any other form and could also be through use of objects whose impact on the victims is in no manner less than the trauma of penile/vaginal penetration as traditionally understood under Section 375/376, have been treated as offences tailing under Section 354 of the IPC as outraging the modesty of a women or under Section 377 IPC as unnatural offenses.
A plain reading of Section 375 of the IPC would make it apparent that the term "sexual intercourse’ has not been defined and is, therefore, subject to and is capable of judicial interpretation. And the Section also does not in any way limit the term penetration to mean penile/vaginal penetration. Limiting the understanding of "rape" to abuse by penile/vaginal penetration only, runs contrary to the contemporary understanding of sexual abuse law and denies majority of women and children access to adequate redress in violation of Article 21 of the Constitution. Sexual abuse of children, particularly minor girl, children by means and manner other than penile/vaginal penetration is common and may take the form of penile/anal penetration, penile/oral penetration, finger/vaginal penetration or object/ vaginal penetration. It is submitted that by treating such forms of abuse as offenses falling under Section 354 IPC or 377 IPC, the very intent of the amendment of Section 376 IPC by incorporating Sub-section 2(f) therein is defeated. The said interpretation is also contrary to the contemporary understanding of sexual abuse and violence all over the world.
A purposive approach is being adopted in some of other countries so that the criminals do not go untouched on mere technicality of law. A strong reliance was also placed on some decisions of House of Lords to substantiate the contentions and the most notable being R v. R where it was held as under:
‘The rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her consent no longer forms part of the law of England since a husband and wife are now to be regarded as equal partners in marriage and it is unacceptable that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances or that it is an incident of modern marriage that the wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force. In Section 1(1) of the Sexual Offences (Amendment) Act, 1976, which defines rape as having ‘unlawful’ intercourse with a woman without her consent, the word 'unlawful' is to be treated as mere surplus age and not as meaning ‘outside marriage’, since it is clearly unlawful to have sexual intercourse with any woman without her consent.’
Even international law now says that rape may be accepted as "the sexual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or of the mouth of the victim by the penis of the perpetrator; by coercion or force or threat of use of force against the victim or a third person." Similarly, Article 2 of the Declaration on the elimination of Violence Against Women reads as follows:
Violence against women shall be understood to encompass but not limited to ... Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation.
Judgments by the Australian courts reveal that insertion of objects into the victim's vagina and anus amount to rape. The definition of rape states that sexual penetration of the body is necessary but the slightest penetration of the body of the female by the male organ is sufficient. Emphasis on the word "slightest" reveals the intent behind the definition is to give the victim and not the criminal the benefit of the doubt.
Redefining Rape
After a careful review of the rape law in vogue and an intensive deliberation with Sakshi v. Union of India , the National Commission for Women and the other organizations, the Law Commission in its 172nd report submitted to the Government of India recommended, inter alia that the law relating to ‘rape’ be made gender neutral, wider and more comprehensive to bring it in tune with the current thinking.
So the proposed re-cast Section 375 would read as:
So the proposed re-cast Section 375 would read as:
Section 375. Sexual Assault
: Sexual assault means-
(a) penetrating the vagina (this term shall include the labia majora ), the anus or urethra of any person with-
i. any part of the body of another person, or
ii. an object manipulated by another person except where such penetration is carried out for proper hygienic or medical purposes;
(b) manipulating any part of the body of another person so as to cause penetration of the vagina (which shall include the labia majora ), the anus or urethra of the offender by any part of the other person’s body;
(c) introducing any part of the penis of a person into the mouth of another person;
(d) engaging in cunnilinggus or fellatio; or
(e) containing sexual assault as defined in clauses (a) to (d) above in circumstances falling under any of the six following descriptions:
First - Against the other person’s will.
Secondly - Without the other person’s consent.
Thirdly - With the other person’s consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or hurt.
Fourthly - Where the other person is a female, with her consent, when the man knows that he is not the husband of such other person and that her consent is given because she believes that the offender is another man to whom she is or believes herself to be lawfully married.
Fifthly - With the consent of the other person, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by the offender personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that to which such other person gives consent.
Sixthly - With or without the other person’s consent, when such other person is under sixteen years of age.
Explanation: Penetration to any extent is penetration for the purpose of this section.
Exception: Sexual intercourse by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault.
Conclusion
Rape obviously is a very serious crime with severe trauma to the victim. The victims of rape are generally women. The crime of rape punishes victimizers for entering into an individual's most private sphere. Laws punish individuals for that invasion. Entering a woman's most private sphere does not have to include male type conduct in order for the invasion to be severely punished by law. Unlike men, women have at least two most private spheres-the clitoris and the vagina. The clitoris and the vagina are both female sex organs. The punishment for the invasion of either of those most private spheres should be identical.
The private sphere for women should be defined in women's terms and from a woman's perspective; otherwise, rape will continue to be a crime of violence on women by men, as defined by men. This practice permits men to continue, as they have from the beginning of history, to treat women as property. This affords men the right to touch a woman's body, even her treasures, until she resists to the point that he understands that she is resisting. As we approach the millennium, it is time for women to say "no." A woman's body is not the property of a man, and he is not entitled to touch, unless he gets permission. There is no right for anyone to invade a woman's most private sphere. The severity of the punishment is generally related to the invasion. The severity of the invasion of a woman's body ought to be defined from a woman's perspective of intrusiveness. Rape is the invasion of the female sex organs by a male. Including the clitoris as a female sex organ in the definition of rape reflects the woman's perspective of intrusiveness. Consequently, because the clitoris, like the vagina, is a sex organ in which the nonconsensual invasion is so intrusive, the invasion of it, like that of the vagina, is rape.
Nevertheless, proposal for reforms of the fifteenth Law Commission seems to be a progressive gender-neutral rape law in India. The proposed section 375, replacing the present one, if enacted, will, therefore, be a mere symbolic legislative exercise. A symbolic law, embodying certain values and expressing the consensus of the society to adhere to theses values, nevertheless, undeniably generates a process of creating social consensus and consequential conditions that are conductive to mobilize such a change. The proposed reforms in the substantive rape law, therefore, would undeniably give a further momentum to the untiring efforts of women’s organizations to do away with the ‘pro-male’, ‘male-oriented’ and ‘gender’ biased’ sexual morals reflected in the Indian Law relating to rape. It, if favorably responded to, by the legislature, would not only make the substantive rape law free from the century, but would also take the rape law in a new progressive direction in the new millennium.
(a) penetrating the vagina (this term shall include the labia majora ), the anus or urethra of any person with-
i. any part of the body of another person, or
ii. an object manipulated by another person except where such penetration is carried out for proper hygienic or medical purposes;
(b) manipulating any part of the body of another person so as to cause penetration of the vagina (which shall include the labia majora ), the anus or urethra of the offender by any part of the other person’s body;
(c) introducing any part of the penis of a person into the mouth of another person;
(d) engaging in cunnilinggus or fellatio; or
(e) containing sexual assault as defined in clauses (a) to (d) above in circumstances falling under any of the six following descriptions:
First - Against the other person’s will.
Secondly - Without the other person’s consent.
Thirdly - With the other person’s consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or hurt.
Fourthly - Where the other person is a female, with her consent, when the man knows that he is not the husband of such other person and that her consent is given because she believes that the offender is another man to whom she is or believes herself to be lawfully married.
Fifthly - With the consent of the other person, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by the offender personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that to which such other person gives consent.
Sixthly - With or without the other person’s consent, when such other person is under sixteen years of age.
Explanation: Penetration to any extent is penetration for the purpose of this section.
Exception: Sexual intercourse by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault.
Conclusion
Rape obviously is a very serious crime with severe trauma to the victim. The victims of rape are generally women. The crime of rape punishes victimizers for entering into an individual's most private sphere. Laws punish individuals for that invasion. Entering a woman's most private sphere does not have to include male type conduct in order for the invasion to be severely punished by law. Unlike men, women have at least two most private spheres-the clitoris and the vagina. The clitoris and the vagina are both female sex organs. The punishment for the invasion of either of those most private spheres should be identical.
The private sphere for women should be defined in women's terms and from a woman's perspective; otherwise, rape will continue to be a crime of violence on women by men, as defined by men. This practice permits men to continue, as they have from the beginning of history, to treat women as property. This affords men the right to touch a woman's body, even her treasures, until she resists to the point that he understands that she is resisting. As we approach the millennium, it is time for women to say "no." A woman's body is not the property of a man, and he is not entitled to touch, unless he gets permission. There is no right for anyone to invade a woman's most private sphere. The severity of the punishment is generally related to the invasion. The severity of the invasion of a woman's body ought to be defined from a woman's perspective of intrusiveness. Rape is the invasion of the female sex organs by a male. Including the clitoris as a female sex organ in the definition of rape reflects the woman's perspective of intrusiveness. Consequently, because the clitoris, like the vagina, is a sex organ in which the nonconsensual invasion is so intrusive, the invasion of it, like that of the vagina, is rape.
Nevertheless, proposal for reforms of the fifteenth Law Commission seems to be a progressive gender-neutral rape law in India. The proposed section 375, replacing the present one, if enacted, will, therefore, be a mere symbolic legislative exercise. A symbolic law, embodying certain values and expressing the consensus of the society to adhere to theses values, nevertheless, undeniably generates a process of creating social consensus and consequential conditions that are conductive to mobilize such a change. The proposed reforms in the substantive rape law, therefore, would undeniably give a further momentum to the untiring efforts of women’s organizations to do away with the ‘pro-male’, ‘male-oriented’ and ‘gender’ biased’ sexual morals reflected in the Indian Law relating to rape. It, if favorably responded to, by the legislature, would not only make the substantive rape law free from the century, but would also take the rape law in a new progressive direction in the new millennium.
Rape Laws in India
Rape is a stigma which exists in the society from a long time. The dictionary meaning of word rape is “the ravishing or violation of a woman.” The rape victim i.e. a woman as woman cannot commit rape due to biological reasons. She is traumatized after the event; it is very difficult for a woman to come out of this trauma. Rape in India is a cognizable offence. There are many provisions in various Acts. The word rape is legally defined u/s 375 of Indian Penal Code, 1860. It defines the rape and also prescribes its punishment. Whenever a man penetrates or does sexual intercourse with a woman without her consent or will it amounts to rape. Penetration here means that only a slightest of the touch of penis to vagina amounts to rape, unruptured hymen of woman does not prove that rape was not committed. There are exceptions to it also i.e. when a man does sexual intercourse with his wife who is above 15 years of age. The rape law under Indian Penal Code had gone through a lot of amendments. In 1983, amendment was made and S. 376(2) i.e. Custodial rape, S. 376(A) i.e. marital rape & S. 376(B to D) i.e. Sexual Intercourse not amounting to rape were added.
U/s 228A of Indian Penal Code, No person can disclose the name of the rape victim and if anybody discloses the name, he shall be punished with either description for a term which may extend to two years and shall also be liable for fine.
U/s 114-A of Indian Evidence Act, presumption can be made as to the absence of consent in certain prosecutions for rape.
U/s 53(1) of Code of Criminal Procedure, When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
U/s 164A of Code of Criminal Procedure, provisions for medical examination of rape victim are given.
U/s 327(2) of Code of Criminal Procedure, there should be in camera trial for all rape victims.
The Judiciary in India is burdened with a lot of work and therefore judgment of the rape cases comes very late. Sometimes it comes so late that either of the parties had died. So, there should be speedy trials in rape cases so that the victim gets justice as it is rightly stated that “Justice delayed is justice denied.”
As every coin has two sides, in this case also there are two sides. Many a times girls also make fake complaints just to ruin the life of a boy, sometimes the parents of girl compels her to file a complaint against the boy she loves, as the law shows a lot of sympathy towards the girl. The accused is left with nothing, when the complaint is made his life is ruined irrespective of the fact that he was proved guilty or not. So, in my views there must come an amendment which equalizes the burden of proof on both the sides and the law works smoothly. It should be such that is contradicts the statement i.e. “Law is there for vigilant.”
Introduction:
Rape is a crime, which has a devastating effect on the survivors; it has been described as a “beginning of a nightmare”. The aftershocks include depression, fear, guilt-complex, suicidal-action, diminished sexual interest. etc., “one becomes afraid of’……..writes a victim, “half the human race”. Referring to the pitiable condition of women in society Mr. Justice S. Ahmad observed that “unfortunately, a woman in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution “enjoy, equal status”. “Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honorable and peaceful life”.
Rape is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, normally, the right to life contained in Article 21 .
Incidence and prevalence:
South Africa has the highest per capita rate of reported rapes in the world: 119 per 100000 people, according to the UN. That compares with 30 per 100000 in the US. Analysts and women’s advocacy groups argue South Africa’s total, including unreported rapes could be five to nine times higher .
Police statistics show more than 50000 rapes are reported every year . In 1987 and 1991 number of cases reported were7767 and 9793 respectively. About 26% (11112) increase in number in the year 1992 – (NCRB). There is one rape in every 54 minutes .
As observed by Justice Arjit Pasayat:
” While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”
Justice Krishna Iyer has observed in a very famous case of Rafiq v. State :
“A murderer kills the body but a rapist kills the soul.”
What is Rape?
Rape under English law is defined more particularly where the law cover all the aspect of rape. Under the Sexual Offences Act 2003, which came into force in April 2004, rape in England and Wales was redefined from non-consensual vaginal or anal intercourse, and is now defined as non-consensual penile penetration of the vagina, anus or mouth of another person. The changes also made rape punishable with a maximum sentence of life imprisonment. Although a woman who forces a man to have sex cannot be prosecuted for rape under English law, if she helps a man commit a rape she can be prosecuted for the crime (see, for example, the conviction of Claire Marsh in 2001). A woman can also be prosecuted for causing a man to engage in sexual activity without his consent, a crime which also carries a maximum life sentence if it involves penetration of the mouth, anus or vagina. The statute also includes a new sexual crime, called “assault by penetration”, which also has the same punishment as rape, and is committed when someone sexually penetrates the anus or vagina with a part of his or her body, or with an object, without that person’s consent.
Sexual offence act, 2003 states as follows:-
Rape
(1) A person (A) commits an offence if-
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents .
With compare to this law, law of India under penal code not cover the penetration of mouth and if such happened then that not amount to rape under our present law above all in India it is observe by our Hon’ble courts that in case of rape if any woman help to commit such rape she will be not charge for the offence of rape as she help to commit the rape but in England it happens and their punishment are also more than us so any one before committing this must think and in the mind of people there is some fear about law and it’s punishment.
Like every other country, laws relating to rape do exist in India. However, justice is rarely achieved. In most cases, rape victims themselves hesitate to make a complaint due to the stigma attached to it in society. Sometimes, even if a complaint is made, the offender gets away due to wide spread ignorance of the laws relating to the offense.
Rape means an unlawful intercourse done by a man with a woman without her valid consent. (Section 375 of the Indian Penal Code, 1860 )
A man is said to commit “rape” if he has sexual intercourse with a woman under 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 in whom she is interested in fear of death or of hurt.
4. 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.
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 another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
6. With or without her consent, when she is under sixteen years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
AMENDMENTS TO RAPE LAWS IN 1983 were made to address mainly 3 issues :
A. Minimum Punishment in rape cases (IPC Section 376 sub section 1)
B. Special cases of rape (IPC Section 376 subsection 2 a-g )& A)
C. Marital Rape (IPC Section 376 A)
D. Abuse of official power (IPC Section 376,B,C,D)
A. MINIUM PUNISHMENT (Section 376 subsection 1 of Indian Penal Code)
1. Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both : Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
Issues
Prior to this amendment, minimum punishment wasn’t specified, hence this is commendable, but if the judge decides that there is an adequate reason the punishment can be reduced.
B. SPECIAL CASES OF RAPE like rape of a girl who is below twelve years of age, rape knowing the woman to be pregnant , gang rape, and custodial rape definitions, Specific (and sometimes increased) Punishment in some of these cases Shift of burden of proof to defendant from the victim in some of these cases. (Section 376 subsection 2 (a-g) of Indian Penal Code)
1. Rape of a woman who is under twelve years of age [Sec.376 (2) (f)]
Punishment
Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Issues
Unfortunately other than the increased minimum punishment from 7 years to 10 years, no other special concession is given to Child Rape given the increased trauma for the girl. Since even the minimum punishment can be reduced by the judges, much needs to be done in this area.
2. Rape of a woman, knowing her to be pregnant (Sec.376 Subsection 2- e)
Punishment
Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Exemption from burden of proof if the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused
3. Gang Rape ( Sec.376 Subsection 2- g)
“Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. ”
Thus even if five men force a women into having sexual intercourse with only one of them, the remaining four will also be considered to have committed rape under this law. Punishment
Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Exemption from burden of proof :
If the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused.
4. Custodial Rape: (Sec.376 Subsection 2 a, b, c , d):
Rape committed on a woman in their or their subordinate’s custody by
a) police officer
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to, which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him;
b) public servant
c) management or the staff of a jail, remand home or other place of custody or a women’s or children’s institution
d) management or on the staff of a hospital
Punishment
Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine :Provided that the court.
To understand the impact of sexual harassment on women one must listen to the account of its victims as no one conveys the meaning and truth of sexual harassment better than the women who have endured it. In response to the question “What kind of emotional response do eve-teasing /sexual harassment evoke in you”, not a single woman ticked the category of “indifferent”. The survey of the Gender Study Group shows that most women felt disgusted, insulted and scared by any sort of harassment.
Women often internalise male perceptions of sexual harassment and blame themselves for having brought on the harassment. They not only doubt the validity of their own experiences but begin to believe that they themselves must be ‘abnormal’, ‘cheap’, ‘indecent’ or deserving the violence that comes their way.
Sexual harassment is nothing less than the showcasing of male dominance. Given an opportunity, such men (those committing sexual harassment) would try fulfilling their desire. However, it also not true that all cases of sexual harassment are such- where the accused is guilty of conceiving the intention of a sexual intercourse. But it also depends on each individual case and circumstances, because it may well be the case that the woman may also be at fault.
Every 60 minutes, two women are raped in this country. What is more horrendous is that 133 elderly women were sexually assaulted last year, according to the latest report prepared by the National Crime Records Bureau (NCRB). A total of 20,737 cases of rape were reported last year registering a 7.2 per cent increase over the previous year, with Madhya Pradesh becoming the “rape capital” of the country by topping the list of such incidents.
Going by the NCRB statistics, two women are raped in the country every hour. Madhya Pradesh accounted for 14.5 per cent of the total cases (3,010), with West Bengal following with 2,106 such incidents. Records of high incidence in other states include Uttar Pradesh (1,648), Bihar (1,555) and Rajasthan (1,238). The national capital had 598 cases in which 602 women were sexually assaulted.
In its report Crime in India — 2007, the NCRB noted that offenders were known to the victims in as many as 19,188 cases (92.5 per cent). That included 6,902 incidents in which neighbours were involved. Parents or close family members were involved in 405 cases while in 1,448 cases relatives were involved. “Everywhere in this country, over 90 per cent of the victims are raped by person known to them,” a senior police official said.
According to the official statistics of 1991, one woman is molested every 26 minutes. These statistics refer to the reported cases. Whereas, if the unreported cases were to be included, it would be a matter of seconds- rather than minutes. investigation of Most cases are not reported by victims because of various reasons such as family pressures, the manner of the police, the unreasonably long and unjust process and application of law; and the resulting consequences thereof.
In instances where women have reported such illegal and unwelcome behavior, there have been significant victories in the past decade or so. Also considering the fact the sometimes these victories are achieved after a wait of a decade or so.
As Kiran Bedi., Retd. Joint Commissioner, Special Branch has observed:
“The law of rape is not just a few sentences. It is a whole book, which has clearly demarcated chapters and cannot be read selectively. We cannot read the preamble and suddenly reach the last chapter and claim to have understood and applied it.”
In the Mathura rape case , wherein Mathura- a sixteen year old tribal girl was raped by two policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra.
Her relatives, who had come to register a complaint, were patiently waiting outside even as the heinous act was being committed in the police station. When her relatives and the assembled crowd threatened to burn down the police chowky, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama.
The case came for hearing on 1st June, 1974 in the session’s court. The judgment however 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 voluntary; under the circumstances only sexual intercourse could be proved and not rape.
On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused namely Tukaram and Ganpat to one and five years of rigorous imprisonment respectively. The Court held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse.
When the appeal was made to the Supreme Court, the Senior Counsel “Ram Jethmalani” while defending the accused Policemen divided the concept of consent into two i.e. Express and Implied consent. He said that there was not express consent but it was implied because Mathura raised no alarm, there was no tearing of clothes, no semen on clothes, no cry for help etc, he again said if there had not been any consent, there would have been at least a cry for help. These circumstances are enough to show that there was implied consent. The Supreme Court acquitted both the accused and held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her.
The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent. However, the Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A) of the Evidence Act , which states that if the victim girl says that she did no consent to the sexual intercourse, the Court shall presume that she did not consent.
In Mohd.Habib Vs State , the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.
In State of Punjab vs. Gurmit Singh , the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.
The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar , held that “the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard.”
In Delhi Domestic Working Women v. Union of India , the Apex Court laid down the following broad guidelines:
• The complainants of sexual assault cases should be provided with legal representation i.e. they should be provided an advocate who could help her properly.
• Legal assistance will have to be provided at the police station since victim of sexual assault might very well be in a distressed state upon arrival at the police station and guidance of a lawyer at that stage is very necessary.
• The police should be under duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.
• A list of advocates who deal in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.
• In all rape trials anonymity of victim must be maintained, as far as necessary.
• A “Criminal Injuries Compensation Board” should be established.
• Interim compensation should be given to rape victim even if the case is still going on in the court.
• Medical help should be provided and woman should be allowed to abort the child if she becomes pregnant due to the incidence.
• Compensation should be provided to rape victim to rehabilitate herself.
In B. Gautam v. Shubra Chakraborthy , it was held that Rs. 1000 per month should be given to rape victim as an interim compensation.
In Chairman, Railway Board vs. Chandrima Das , a practicing Advocate of the Calcutta High Court filed a petition under Article.226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon) – a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation.
An appeal was preferred and it was contended by the state that:
a) The railway was not liable to pay the compensation to the victim for she was a foreigner.
b) That the remedy for compensation lies in the domain of private law and not public law. i.e. that the victim should have approached the Civil Court for seeking damages; and should have not come to the High Court under Article.226.
Considering the above said contentions, the Supreme Court observed:
“Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would be avoidable under public law. It was more so, when it was not a mere violation of any ordinary right, but the violation of fundamental rights was involved- as the petitioner was a victim of rape, which a violation of fundamental right of every person guaranteed under Article.21 of the Constitution.”
The Supreme Court also held that the relief can be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the ‘Moral Code of Conduct’- adopted by the General Assembly of the United Nation.
Causes of Increased Rape Cases in India:
Rape, molestation and abductions, the crimes are numerous but low conviction rates for the same is one of the major reasons for the growing number of offences against women, point out experts.
“Apart from other factors, the low conviction rate in the cases of rape is the biggest worry we have today. There is hardly any deterrence. Law should provide fast track courts to deal with such cases,” says Girija Vyas, Chairperson, National Commission for Women (NCW).
While there were 37,000 cases of molestation and eve-teasing in 2006-07, the conviction rate for such crimes, is below 30 per cent. For rape it is just a dismal 27 per cent.
Brinda Karat, All India Democratic Women’s Association (AIDWA), member says, “I have raised the issue in the Parliament several times that there is a need to step up conviction rate in rape cases drastically. Poor legal system, wrong understanding of policemen in these cases and lengthy procedures especially in child rape where after horrifying rounds of investigation the victim starts feeling that she is an accused and should not have registered the case, are few reasons for low conviction rate.”
“In every 10 hours, a girl of the age of 1-10 is being raped in India. We are raising this issue and have demanded enforcement of stringent laws by government,” she adds.
Reacting to a recent incident in which a minor was raped by a constable and his accomplice in a moving car in the national capital, Vyas says, “This is a special case and it should be dealt with a fast track court. On many occasions, complains do not get registered on time and then it is very difficult to prove that rape actually happened. It should be registered within 24 hours of the incident.”
The accused believe they can get away with it. Officials are corrupt and easily bribed (some are even committing rapes themselves). Women are shamed and humiliated when they come forward because of the backward notion that it’s the woman’s fault (even when the ‘women’ are young children). If they make a case, it becomes public knowledge and their families and society shun them in many cases as they are then seen as ‘damaged goods’. If unmarried they will have great difficulty getting married. Courts don’t always do justice for the victim and find rapists not guilty for ridiculous reasons.
Predators know this and take advantage of it. Even if they get caught, if they have enough money or influence, nothing will happen to them. A woman would have to turn the case into a media circus to have a chance at justice and 90% of rape victims in India would not do so out of fear and shame .
There is a need for review in certain provisions under various laws related to rape so that victims get 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.
Conclusion:
The courts and the legislature have to make many changes if the laws of rape are to be any deterrence. The sentence of punishment, which normally ranges from one to ten years, where on an average most convicts get away with three to four years of rigorous imprisonment with a very small fine; and in some cases, where the accused is resourceful or influential- may even expiate by paying huge amounts of money and get exculpated. The courts have to comprehend the fact that these conscienceless criminals- who sometimes even beat and torture their victims- who even include small children, are not going to be deterred or ennobled by such a small time of imprisonment. Therefore, in the best interest of justice and the society, these criminals should be sentenced to life imprisonment.
Law remains but the number of victims (including minor) continues to increase destroying the very soul of the helpless women. The concept of marital rape does not exist in India. Contrary to the popular belief rape is almost never perpetrated for sexual gratification. It is an ‘acts of violence that happens to be expressed through sexual means’.
The Amendment 1983 has brought about some important changes in the existing laws of rape as a response to the growing public opinion demanding more stringent anti rape laws. It amends Section 376 IPC and enhances the punishment of rape it also provides enhanced punishment of minimum of 10 years of imprisonment for police officers or staff of jail, the remand homes or other places of custody established by law. The Act further inserts a new Section 114-A IEA, by raising a presumption as to absence of consent in cases of custodial rape, rape on pregnant women and gang rape at least partially, removed the infirmity from the evidence of a victim of rape that was hitherto unjustly attached to her testimony without taking note of the fact that in India, unlike the occident a disclosure of the girls identity, rehabilitation in society for all times to come and unless her story was painfully true she would not have taken such a grave risk merely to malign the accused.
Severe and certain punishment in a time bound manner, of the rapists has some deterrent value. Arrest alone may not constitute a strong societal response. Lengthy prison sentences have some behavior-altering deterrent values. Many well-known jurists and public men have advocated capital punishment for the criminals who commit rape as it is an offence worse than murder so far as its impact is concerned. Still there is need for amending the anomaly related to the age of consent, and of wife in accordance with the Marriage Act in India.
MKRdezign
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