Rape is one of the most common and under-reported crimes against women in India. According to NCRB, India recorded an average 87 rape cases every day in 2019 and 4,05,861 cases of crimes against women during the year 2019 itself. There are even classifications of rape for instance, ‘custodial rape’, ‘caste rape’, ‘gang rape’, ‘class rape’, ‘police rape’, ‘army rape’, ‘rape of minors’ & ‘date rape’. There are also other categories of rapes that are not yet acknowledged by the Indian legal system such as 'marital rape’ and ‘rape of sex workers’.
One of the major incidents that took place recently on 14th September 2020 in UP and that had provoked the public outrage is Hathras Rape Case (2020). The family of the 19-year-old Dalit woman, who died in a Delhi hospital after she was brutally gang-raped in a village in Hathras alleged that the police were forcibly trying to get her body cremated in the midnight. After her condition degraded, she was referred to Delhi's Safdarjung hospital where she succumbed. As news of her death spread, protests broke out in Delhi as well as in Hathras with all sections of society demanding justice for the deceased.
Rise of Feminism in Post- Independence Era
There had been many cases that outraged activists and the common public into protesting against rape. One such case was the Rameeza Bee rape case (1978). The incident took place in Hyderabad where a woman was raped by policemen and subsequently her husband was also murdered when he protested against the rape. It was this year 1978 that marked many beginnings for the woman’s movement in India. The Andhra Pradesh government appointed Justice K.A. Muktadar to head the Commission of Inquiry that probed the rape case of Rameeza Bee and the custodial death of her husband.
The category ‘custodial rape' was a consequence of the amendments made in law on rape (Section 375, IPC) after the agitations of 1980s. It was the Mathura Rape Case (1972) that took place in Maharashtra which generated an uproar on a national scale and through which the feminist groups themselves were able to assemble across the country for the very first time. In 1972, Mathura, a teenage Adivasi girl was abducted by policemen and raped at the police station. The policemen were acquitted by the Sessions Court. Although on further appeal, they were found guilty by the High Court but the verdict was again reversed by the SC.
The Supreme Court acquitted the accused. This judgment prompted lawyers Upendra Baxi, Ragunath Kelkar, Lotika Sarkar, and Vasudha Dhagamwar to write an open letter challenging the logic of consent applied in making the judgment and with this letter, feminist groups brought the issue of rape in limelight. Forum Against Rape (later changed to Forum Against Oppression of Women), a feminist group in Mumbai, came across this letter in 1980 and decided to start a campaign for reopening the case. This was the very first time that feminist groups had co-ordinated with other groups beyond their states. The Mathura rape case brought the concept of custodial rape and the Criminal Law (Amendment) Act, 1983.
Major Amendments to Anti-Rape Laws
In the aftermath of these gruesome incidents, the gang rape of a student in Delhi on 16th December 2012, led to countrywide anxiety (Nirbhaya Rape Case, 2012). Following the protests, a Verma Committee under the leadership of Retd. Justice Verma was constituted to come up with recommendations for the amendment to the law relating to sexual offences. The Committee rendered its report on 23rd January 2013. 90% of the recommendations were taken from the Justice Verma Committee Report in Criminal Law (Amendment) Act, 2013 brought under this case.
Further changes were made in the law after the 2012 Nirbhaya gang-rape case which generated demonstrations and protests throughout the country. The 2013 Amendment Act was promulgated with amendments in Section 375 of IPC, CrPC and Evidence Act, to make the laws against rape and sexual assaults against women more stringent.
Certain amendments included broadening the definition of rape, capital punishment for rape cases that have led to death or rendered the victim in a ‘persistent vegetative state’ and a minimum of 20 years imprisonment for gang rape.
New offences such as stalking, acid attacks, and voyeurism were added into the definition of rape. The minimum sentence was changed from seven years to 10 years. This was the first time the vegetative state was included since the landmark ‘Aruna Shanbaug case’.
Mohd. Akhtar v. State of Jammu and Kashmir i.e. the Kathua Rape Case brought Criminal Law (Amendment) Act, 2018. The recommendations were taken from the Justice JS Verma Committee to be incorporated in the 2018 amendment. While the death penalty for rape has long been demanded, this is the first time, where it has been actually introduced. It made the rape of a child below 16 years of age punishable by a minimum of 20 years imprisonment but provided for the death penalty for the rape of anyone below 12 years of age.
Some of the salient features of the 2018 Act are:
It specifies minimum imprisonment of 20 years which may extend up to life detainment or death sentence, for the rape of a girl under 12 years. While accused involved in the gangrape of a girl below 12 years of age will get life imprisonment or death.
Amendment was made to S. 376 (1), enhancing the term of punishment for offenders from 7 years to 10 years.
The amendment under S. 376 additionally provides a provision for the fine to be payable to the victim of rape.
S. 439 of the CrPC was amended to make it imperative for the Courts in cases of grant of bail to an accused under S. 376(3), S.376AB, S. 376DA or S.376 DB of the IPC to give notice of the application for bail to the Public Prosecutor.
The Judiciary and the legislature have to make many amendments if the rape laws are to be any deterrence. Severe and appropriate punishment should be inflicted to the offenders in a time-bound manner as delay in the procedure will tamper with justice. The arrest of the offenders will not solely suffice. The courts have to comprehend the fact that these conscienceless criminals who sometimes even mutilate and torture their victims who even include small children are not going to be deterred by a shorter span of imprisonment, thus lengthy span of imprisonment to these offenders and speedy justice is the need of the hour. Therefore, in the best interest of justice and society, these criminals should be sentenced to life imprisonment and the death penalty in most gruesome rape incidences.