A Report on-

Comparison and critical analysis of the rape laws before and after the
Criminal Law Amendment

Women and Law

Under supervision of-: Submitted by-:

Mr. Abhinav Bhardwaj sumit sharma

141401021
 School of law

MANIPAL UNIVERSITY

JAIPUR

SESSION- 2017-2018

CERTIFICATE

This is to certify that sumit sharma of B.A LL.B. (IX sem) of Manipal University Jaipur has
completed the project work entitled “Impact Assessment of :-”. Comparison and
critical analysis of the rape laws before and after the Criminal Law
Amendment It is further certified that the candidate has made sincere efforts for the
completion of this project work.

Date- 15/10/18
 ACKNOWLEDGEMENT

I sumit sharma registration no. 141401021 of B.A. LL.B(hons.) IX semester would like to extend
my heartfelt gratitude to my women and law teacher for giving me this project. This helped me to
gain knowledge on this field and various aspects and loopholes. I would also thank him for helping
me throughout this project and to complete it in limited time frame.
Comparison and critical analysis of the rape laws before and after the
Criminal Law Amendment (2013)

INTRODUCTION

This project will critically analyse the Anti Rape Laws prevalent in India both before and after
the Criminal Amendment Act of 2013 which brought about some very necessary changes in
the Rape Laws of India. However on a personal note, I feel that some provisions are not very
conducive in providing the fullest extent of justice that should be dispensed to the victims of
this heinous crime. India is passing through a very turbulent phase with regard to women
security and cases of rapes, sexual assaults, acid attacks are on the rise on a daily basis. One of
the major reasons that have been attributed to the rise of these crimes has been the increased
number of unemployed youths who take to crime. The rise in the number of sexual crimes is
supported by empirical data. The National Crime Records Bureau in its data has shown that the
crimes have seen a gradual increase. It has seen a massive jump from 2,487 in 1997 to 24,206
in 2011 which is an increase of 873%[1]. This increase can be explained by two factors in my
opinion. One, there is an increased awareness about the crimes and hence the feeling that these
crimes should not go unreported has percolated in the society. This is a very important point
because in India Sexual Crimes always had this character of social stigma attached to it. This
meant that the victims would not take the matter to the relevant authorities and thus these crimes
would go unreported. The long tedious process of seeking justice also played an important role
in this behaviour of the victim in not reporting the crimes. The second reason which explains
the increased percentage is that the crimes have actually increased in number. This can also
blamed on not having effective deterrence due to a lax implementation of the prevalent laws
which can be argued to be comprehensive. Sociological conditions such as illiteracy,
unemployment and gender insensitivity among the youth can be attributed to the increased
crimes against women. The alarming situation is that despite the nationwide outrage, the crimes
against women have only been increasing which suggests that there is something seriously
wrong with our legal system when it comes to the prosecution and punishment of the
perpetrators of these crimes. Also the society should sensitise itself to the plight of the victims.
In our country it is commonly seen that rape victims are not treated well by the society and
some people go to the extent of blaming the rape on the victim. So not only the legal mechanism
but also the society needs to change its view towards the victims of rape and other sexual
crimes.

Analysis of laws before the criminal law amendment, 2013

Rape laws have seen numerous transitions before reaching the present form through the
criminal law amendment of 2013, which was brought through as an ordinance as the parliament
was not in session. This amendment was brought after a nationwide outrage against the brutal
rape of a physiotherapist student in Delhi .

Section 375 of the Indian Penal Code defines Rape. In common parlance rape is described as
sexual intercourse with a woman without her consent by force, fear or fraud[2]. Section 275
has seen an amendment in the year 1983, which overhauled the definition of rape and also
made changes to the punishments that were stipulated under the section 376. This was made
through the Criminal Law (Amendment) Act of 1983. Interestingly this amendment was also
brought about due to the widespread criticism of a judgment in the case of “Tukaram v State of
Maharashtra”[3], In this case the trial court had pronounced the accused as not guilty which
was based on the concept that the victim had given tacit consent to the act. It was also observed
that the girl was of promiscuous character which was used as reasoning for the tacit consent.
This was overturned by the Bombay High Court which rightly pointed out that there was a
huge difference between consent and passive submission. It was very correct in its observation
that mere surrender to another person’s lust should not be taken as consent. This was upturned
by the Supreme Court who acquitted all the accused. This judgment was criticised widely by
the civil society. The ramifications of the case were seen in the amendments that were brought
about in the IPC and the Indian Evidence Act. Section 376 A to D were added to the
IPC and section 114A was introduced in the Indian Evidence Act.

To analyse the laws before the criminal law amendment act 2013 it is important to know how
the sections have defined rape and the punishments associated with it. The crux of the definition
of rape in section 375 IPC before the amendment of 2013 is that rape involves coercive non
consensual sexual intercourse between a man and a woman. There are six circumstances that
can be said to be the constituents of rape. The primary condition necessary for rape to be
committed is that there must be the commission of sexual intercourse between the man and the
woman. It is widely believed that rape can only be committed if the sexual intercourse has been
done without the consent of the victim, but this is not always the case, rape can be committed
even after consent has been obtained if the age of the woman is below the age of sixteen
years. On a closer look at the circumstances required for the commission of rape it can be
broadly divided into three parts. The first two clauses reveal that they deal with sexual
intercourse with a woman ‘against her will’ and ‘without her consent’. This means that the
woman is consciously capable of giving or not giving consent to the act. The next two clauses
deal with the woman giving her consent due to coercion that is by putting her or any of her
family member to threat of hurt or grievous harm and it also deals when the consent is obtained
through misconception. The last two clauses deals with the situation when the consensual sex
with underage female person takes place.

Explanation of the term ‘Sexual Intercourse’ and ‘Penetration’

These are the terms that have undergone the most comprehensive change in the recent
amendment of 2013. Before the amendment of 2013, sexual intercourse was taken to mean the
penetration of the male genital organ into the female genital organ only. The courts interpreted
the term sexual intercourse as “mere slightest or partial penetration of the male organ within
the labia majora or the vulva or pudenda is sufficient to constitute ‘sexual intercourse’” The
courts have stressed on the fact that the depth of the penetration is immaterial. It is also laid
down that there is no requirement for injuries to be present on the private part of the woman to
constitute rape. The hymen need not be ruptured. Thus the essential condition of rape is
penetration and not ejaculation. Ejaculation without penetration will constitute as an attempt to
rape and not rape actually These conditions were expressly mentioned by the Supreme Court
in the case of “State of Uttar Pradesh v Babulnath”. The court in this case while delving into
the essential ingredients of rape made the observation that “To constitute the offence of rape it
is not at all necessary that there should be complete penetration of the male organ with the
emission of semen and rupture of hymen. Even Partial or slightest penetration of the male
organ within the labia majora or the vulva or pudenda with or without any emission of semen
or even an attempt at penetration into the private part of the victim would be quite enough for
the purposes of section 375 and 376 of the Indian Penal Code. That being so it is quite possible
to commit legally the offence of rape even without causing any injury to the genitals or leaving
any seminal stain”]. An important issue of widening the ambit of section 375 to include the
any bodily penetration as rape was raised in the case of Smt Sudesh Jhaku v KCJ & Ors.[ The
petitioners wanted to increase the ambit of the definition to include penetration of any male
body part into any orifice in the woman’s body. This however was rejected by the court which
was not in favour of tinkering with the existing definition of the term. The court said that it was
necessary to prevent chaos and confusion in the society with regard to the changed definition
of rape and hence Section 375 should not be altered.

It is also important to note that there is also an exception to section 375. The exception is
known as Marital Rape. Marital Rape is defined as non consensual sex with wife who is over
the age of 15 years. The crux of the argument is that any coercive or non consensual sex with
a wife over the age the age of 15 years will not be considered as rape within the purview of
section 375. The immunity of the husband from getting convicted for marital rape arises from
the assumption that after marriage husband gets a lifelong consent for sexual intercourse with
his wife. This is a very problematic situation according to me because this is in contravention
to the statute that states that the minimum age for marriage of a woman should be 18 years. So
if that is the case a man cannot marry a wife who is of 15 years of age. I also don’t agree with
the fact that Marital Rape is not considered to be rape because I don’t agree with the concept
of lifelong consent to sexual intercourse just because a couple is married.

Punishments

Section 376 of the IPC stipulates the punishments that are awarded if a person is convicted of
rape. There is a minimum punishment of seven years and it can also be given with a fine and
extend to life imprisonment. However Section 376(2) provides the situations where the
quantum of punishment will be very high and it will include rigorous imprisonment which will
not be less than a term of 10 years.

The punishment for gang rape is provided under sub section 2 of section 376 IPC which
postulates that when a woman is raped by more than one person then each of the person will
be convicted of the crime of gang rape and the punishment would not be less than ten years of
rigorous imprisonment in such cases.

Rape Laws after the Amendment of 2013.

The Criminal Law Amendment Act of 2013 was brought into effect after the horrific Delhi
Gang Rape case which shocked the whole nation with the brutality of the act committed.
Widespread protests and agitations forced the legislature to contemplate the changing of the
prevalent rape laws. The basic idea was to make them more stringent and introduce harsher
punishments besides broadening the ambit and definition of the term rape.

Late Justice J.S.Verma, Gopal Subramaniam and Ex-Justice Leila Seth comprised the rather
famous ‘Justice Verma Committee’ which was made to collect suggestions and make
recommendations for the legislature to make a law to combat rape and other crimes against
women[12].The technical committee was so proactive with its working that during its short
duration it received as many as 80,000 suggestions over which deliberations were done. These
suggestions were sent by various activists, lawyers, NGOs and other persons representing
the ‘civil society’. Since the legislature was adjourned and there was no session, the
committee’s recommendations were introduced via an ordinance.

The offence rape was now amended or given a broader meaning which was comprehensive
enough to include any kind of penetration and also in any body part of the woman or girl. This
was the most important change because earlier section 375 of the IPC only stipulated the Penile
Vaginal penetration as rape. The fact that the new recommendations added that any penetration
would be considered as rape was the most efficient tool in widening the ambit of the term rape
which was being demanded earlier on the basis of the recommendations of the fifth law
commission report. There was also the inclusion of registering complaints and medical
examination. The report categorically mentioned, “Any officer, who fails to register a case of
rape reported to him, or attempts to abort its investigation, commits an offence which shall be
punishable as prescribed

The committee gave extensive recommendations regarding avoiding marital rape as well as
rapes committed via commission of void marriages. This was very important as I feel that
Marital Rape is a loophole that is very explicit and on the face in nature. It is a topic that is not
very hidden that legislations are not being made on the issue. This is why it is such an important
thing since everyone knows about it and yet the effort to include it under the definition of rape
has only begun recently. To include this fact and observation the committee mentioned
compulsory registration of marriages so as to provide legal sanctity solemnization of marriage.
The Code of Criminal Procedure also underwent a similar overhauling attributed to the new
law and had previously gone through the same process after the judgment in the Supreme Court
decision in the “Gurmit Singh Case

Critical Comparison of the two legislations

It goes without saying that the laws have now changed drastically from what it existed
previously. Societal views changes from time to time with the advent of new values and
technologies. It is only fair that similarly laws which matter so much in regulating the law and
order prevailing in the society also changes from time to time. This is important to counter and
combat new types of crimes that have emerged of late such as cyber crimes which include data
theft, harassing, breach of privacy and so and so forth. The major rape and sexual assault cases
such as the ‘Shopian Rape Case, the Aruna Shanbaug Case, Nirbhaya Rape Case, Priya Patel],
the Mathura Rape Case, etc. all have had an effect on the functioning of rape laws and their
interpretations as well as reformations .Rape was included in the Indian Penal Code, 1860 in
its original form since 1924.

The Criminal Law (Amendment) Act, 2013 was a replacement of the Criminal Law
(Amendment) Ordinance, 2013. The Act was mandated to make change in the Indian IPC &
CrPC as well as the Indian Evidence Act. There was a rise in threats towards individual privacy
in the country] and it was high time to include certain new crimes under the Indian Penal Code
in consonance with the passing of time. A new crime that was introduced and was not provided
for in the country’s earlier legislations was ‘voyeurism’ which means the recording or viewing
images, movies or any such media material without the permission of the person portrayed or
screened in them would result in penal punishment. A ‘voyeur’ is defined as “a person who
derives sexual gratification from the covert observation of others as they undress or engage in
sexual activities.” Voyeurism is a criminal act which creates apprehension for society and is
infringement of expectations of privacy that all citizens have about their body which they do
not wish to expose it to others

The inclusion of voyeurism as a crime under the Indian Penal Code has made sale of
pornography, invasion of privacy and all forms of sale of defamatory pictures as prohibited and
this has resulted in apprehension in minds of criminals.

Another very important change from previous legislations is the much required change in the
procedure of providing evidence in the court of law. After the Mathura rape case the outcry did
result in amendment of Section 114A of the Indian Evidence Act. This was done to maintain
that despite there being the lack of consent given by the women, there was often a character
assassination of the women at the court trials which was very unfortunate. Thus there was a
transition from earlier legislations and Section 53A of the Indian Evidence Act was introduced
making it explicit that in a trial where there was sexual assault or rape then the evidence
supplied relating to the victim’s previous sexual experience or even for a matter of fact her
‘character’ could not be admissible in the court of law. Still is unfortunate that the character
assassination of the victim continues in the society which increases the hurt suffered by the
victim.
On instances of rape or sexual assault cases the evidence concerning consent is often derived
on the basis of the past conduct of the woman which seems rather frivolous as at the instance
of the abuse she might not have consented thus constituting the criminal act. In earlier cases
prostitutes could be raped and their right would not be protected as the victim’s previous sexual
experience and “promiscuous character” would always malign the proceedings and create a
bias in the judiciary’s mind. The sole reason for this inclusion of this amendment was to prevent
the breach of privacy of the victim’s sexual history by preventing it to be included as a piece
of evidence in court. Thus unwarranted intrusion in the privacy of the victim’s life should not
be supported by members of the civil society. The new law protected defamation of the woman
and rights of the woman to live with dignity[23].

Lastly and very importantly, there was also an introduction of sexual harassment at workplace
(under section 354 of the IPC in addition to the Sexual Harassment at Workplace Act, 2013)
and an enhanced definition of rape provided for in the amended law. The earlier legislation had
focused on coercion[24] and the fear of death or hurt of someone close to her[25] as an example
of force exerted or lack of consent when there was commission of rape. Another example of
deceit which culminated into the act of committing rape was commission of false marriages[26]

CONCLUSION

To conclude with the comparison between the legislations it can be said that the two major
substantive changes were introduction of sixteen forms of rape (Penetration made by object
and all parts of body included) and also the increase in age of consent. Both were introduced
to combat rise of rapes committed on minors specifically. Though there was another
recommendation by the J.S.Verma Committee which wanted to introduce marital rape under
section 375 but this was not allowed as it would have been a social controversy. One must also
note that the sexual harassment at workplace which was for the first time highlighted in the
case of Sakshi v. Union of India which was a public interest litigation seeking punishments for
sexual harassment committed against women at workplaces. It also wanted to widen the
interpretation of rape to include all forms of penetration to be covered, the court had then given
the decision in favour of the NGO but the parliament was did not recognise it. The 2013
Amendment and Act made this a reality as it gave sanction to the judgment. So I believe laws
can be made much more stringent than they already are