In another instance of conscience stirring cases, Sakina- a poor sixteen year old girl from Kerala,

who was lured to Ernakulam with the promise of finding her a good job, where she was sold and
forced into prostitution. There for eighteen long months she was held captive and raped by clients.
Finally she was rescued by the police- acting on a complaint filed by her neighbour. With the help of
her parents and an Advocate, Sakina filed a suit in the High Court- giving the names of the upper
echelons of the bureaucracy and society of Kerala.

The suit was squashed by the High Court, while observing that 'it is improbable to believe that a man
who desired sex on payment would go to a reluctant woman; and that the version of the victim was
not so sacrosanct as to be taken for granted.'

Whereas, in State of Punjab v. 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 v. 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."

Also the Bandit Queen case, which depicts the tragic story of a village girl. Phoolan Devi, who was
exposed from an early age to the lust and brutality of some men. She was married to a man old
enough to be her father. She was beaten and raped by him. She was later thrown out of the village-
accused of luring boys of the upper caste. She was arrested by the police and subjected to
indignation and humiliation. Was also kidnapped and raped by the leader of dacoits and later by the
leader of a gang of Thakurs, who striped her naked and paraded her in front of the entire village.
This is truly one story that shows the apathy of the existing society.

In Chairman, Railway Board v. 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.

Impediments to 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 the present circumstances when offences against women
are on the rise, when young girls are raped by their doctors, by presidential guards in broad daylight,
the definition of rape to be of any deterrence, falls extremely inadequate. It does not address forced
penetration of objects and parts of the body into the vagina and anus; and forced oral or anal
intercourse.
It also does not recognize other forms of sexual assaults, like protracted sexual assault by relatives,
marital rape etc. as aggravated forms of rape. This causes grave injustice to many victims. In many
cases of child rape, the child has been penetrated through fingers or by objects or been force to
perform oral or anal sex; yet this is not considered rape by the Courts.

Adding to this is Section. 155(4) of the Evidence Act, which allows the victim to be questioned of her
past sexual history which the defense uses to humiliate the victim in the Courtroom.

One of the major obstacles in delivering justice in rape cases is the poor quality of investigations.
The reason behind this ranges from gender bias and corruption to the general inefficiency of the
police. In many cases the police have even refused to lodge the FIR or have lodged incomplete FIR.

The victims are not taken for prompt medical examination, because in cases of rape, or attempt to
rape- medical examination of the victim and of the accused soon after the incident often yields a
wealth of corroborative evidence. Therefore, such an opportunity should not be lost by the police.

The manner in which some courts have interpreted the law or assessed the evidence has often
proved to be an obstacle also. In spite of Supreme Court judgments to the contrary, lower court
judges often insist on evidence of physical resistance or marks of injuries to hold that a woman has
not consented. A woman's evidence without corroboration is not considered sufficient.

The long time that is taken to complete a rape trial often by allowing senseless adjournments; and
the giving of evidence by the victim in the presence of the accused and the harsh cross examination
in the Court are some other major obstacles.

As observed by Krishna Iyer, J. in Rafique's case:

"When a woman is ravished, what is inflicted is not mere physical injury but the deep sense of some
deathless shame… judicial response to Human Rights cannot be blunted by legal bigotry."

Therefore rape laws in order to be of great deterrence must have a cooperative victim, professional
investigation, diligent prosecution; and an expeditious trial. For otherwise it shall not be the law, that
fails, but the applicants, the process and application.
Failure of law reflects the failure of the society to protect and serve humanity.
In view of the above, the Supreme Court has laid down the following guidelines for the trial of
rape cases:
1.The complaints of sexual assault cases should be provided with legal representation. Such a
person should be well acquainted. The Advocates role should not merely be of explaining to the
victim the nature of the proceedings, to prepare for the case and assist her, but to provide her with
guidance as to how she might obtain help of a different nature from other agencies- for e.g.
psychiatric consultation or medical assistance.
2. Legal assistance should be provided at the police Station, since the victim may be in a distressed
state. Guidance and support of a lawyer at this stage would be of great help.
3. The police should be under a duty to inform the victim of her right to a counsel before being
interrogated.
4. A list of lawyers willing to act in these cases should be kept at the police station.
5. Advocates shall be appointed by the Court on an application by the police at the earliest, but in
order that the victim is not questioned without one, the Advocate shall be authorized to act at the
police Station before leave of the Court is sought or obtained.
6. In all rape trials, anonymity of the victim must be maintained.
7. It is necessary to setup Criminal Injuries Compensation Board with regard to the Directive
Principles contained under Article 38(1) of the Constitution of India. As some victims also incur
Substantial losses.
8. Compensation for the victims shall be awarded by the Court on the conviction of the offender and
by the Criminal Injuries Compensation Board- whether or not a conviction has taken place. The
Board will take into account pain, suffering, shock as well as loss of earnings due to pregnancy and
childbirth if this accrued as a result of rape.

The National Commission for Women be asked to frame schemes for compensation and
rehabilitation to ensure justice to the victims of such crimes.
As observed by Justice Saghir Ahmad,
"Unfortunately a woman in our country belongs to a class or group of society who are in an
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."

The Legacy of SAKSHI:

In Sakshi v. Union of India , the Supreme Court made the following observations:
... 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 past, however, judges have actively sought the spirit of the law,
and not just its literal wording. This activism has greatly benefited powerless minorities, such as
bonded labourers, prison inmates, sex workers and others crusading for protection of their human
rights. Those hoping for such activism from the judges this time were disappointed. One reason for
the judges' reluctance to make a liberal interpretation could be that for some time now, there has
been a significant debate ongoing that activist judges have overstepped the boundaries of the
judiciary and impinged on legislative matters.

Concern over such criticism is understandable. But at the same time, the courts should recognize
that the legal system is an effective delivery system of the benefits the law guarantees, especially
when the beneficiaries are the weaker sections of society. There is precedent for such an expanded
view. For example, while dealing with a case of rape of an eight year old girl in Madan Gopal Kakkad
v. Naval Dubey , the Supreme Court acknowledged the severity of the crime of child rape and saw fit
to use the "sword of justice" to punish the criminal under Article 376 IPC in a case where there was
only partial penetration of the victim.

The Court opined:

Though all sexual assaults on female children are not reported and do not come to light there is an
alarming increase of sexual offences on children. This is due to the reasons that children are
ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes
who display the unscrupulous, deceitful and insidious art of luring female children and young girls.
Therefore such offenders who are a menace to civilized society should be mercilessly punished in
the severest terms.

The constitution endows the Supreme Court with a residuary power under Article 142 power to pass
such decrees or make such orders as are necessary for doing complete justice in matters before it.
The role that the Apex Court plays under Article 142 is plainly that of a 'problem solver' in nebulous
areas of the law. This provision permits the Supreme Court to do more than what the letter of the law
requires; activism, therefore, can be undertaken with sure legal footing.
Judges are expected to be circumspect and self-disciplined in the discharge of their judicial
functions. But the fact is, judicial activism in India is partly the consequence of a legislative vacuum,
especially in the field of human rights. Where lawmakers are inattentive to the rights of citizens, the
Constitution empowers the Apex Court to be, at times, plainly legislative in nature. The rule of strict
construction is not a rule to be applied universally and, in any event, should not "leave loopholes for
the offender to sneak out of the meshes of the law and criminal jurisprudence must depart from old
canons defeating criminal statutes and calculated to protect the public health."

Rape laws Internationally:

The rule of strict interpretation does not also prevent the court from interpreting a statute according
to its current meaning and applying the language to consider the recent scientific developments and
the knowledge it provides us with. Thus, in R v. Ireland (House of Lords, 1997), psychiatric injury
caused by silent telephone calls was held to amount to 'assault' and 'bodily harm' under Section 20
and 47 of the Offence Against the Persons Act, even though at the time of the enactment of the Act -
in 1861 - the field of psychiatry didn't include this understanding.

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.
Fellow commonwealth nation Singapore's Penal Code contains a provision identical to that of
Section 377 of the Indian Penal Code. In a judgment rendered by the Court of Appeal in Singapore it
was held that forced anal intercourse represented the gravest form of sexual abuse and by its very
act contained an element of violence. Australian law defines rape as sexual intercourse without
consent in the Criminal Law Consolidation Act in Section 48. Sexual intercourse includes anal and
oral intercourse in Section 5 under the same Act. 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. In light of the multitude of case law and well evolved
jurisprudence on the subject, not altering the definition of rape merely because "the entire legal
fraternity of India, lawyers or judges, have the definition of India, lawyers or judges, have the
definition contained in Section 375 IPC engrained in their minds ..." is ludicrous. The Indian Penal
Code was drafted at a time when Indians were not allowed the freedom to think for themselves by
the English. It came into force in 1860 and in the past 140 years has gone through few changes. An
independent democracy should not confine itself to laws made with a bias towards the now outdated
principles of colonial criminal law. The judiciary and the legislature have a duty to promote the
principles enshrined in the Constitution and a responsibility, however lofty it may seem, to ensure
that the perpetrators of these violent crimes are punished.

Changing social values - and globalization - certainly alters the general comprehension of a word. In
a country rife with misconceptions about rape and rape victims, corrupt and sloppy police work,
widespread reports of police mistreatment of victims including custodial rape, and deeply ingrained
cultural and religious stereotypes, more alertness by the courts is needed so that justice is seen to
be done, and not thwarted by the letter of the law. Sakshi fails that test. Inevitably, then, the Apex
Court's ruling this time will not be an end to this issue.

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.

The Supreme Court in Sakshi v. Union of India had recognized the inadequacies in the law relating
to rape and had suggested that the legislature should bring about the required changes. The law
commission had examined the entire law relating to rape and sexual assault in IPC and suggested a
complete overhauling of the law.

The Bill, drafted by Ms Kirti Singh advocate and legal convener of AIDWA, is based on 172nd report
of the Law Commission to amend the laws relating to sexual assault in Section 375, 376, 354 and
509 IPC and the relevant sections of the Code of Criminal Procedure 1973 and the Indian Evidence
Act 1872. The recommendations are based on the national consultation on the issue organized by
the national commission for women.

The major changes sought to be brought about through this amendment are substitution of existing
section 375 of the IPC with the following:
375. Sexual Assault: Sexual assault means -
(a) The introduction (to any extent) by a man of his penis, into the vagina (which term shall include
the labia majora), the anus or urethra or mouth of any woman or child

(b) the introduction to any extent by a man of an object or a part of the body (other than the penis)
into the vagina(which term shall include the labia majora) or anus or urethra of a woman

(c) the introduction to any extent by a person of an object or a part of the body (other than the penis)
into the vagina(which term shall include the labia majora) or anus or urethra of a child.

(d) manipulating any part of the body of a child so as to cause penetration of the vagina (which term
shall include labia majora) anus or the urethra of the offender by any part of the child's body;

However, if they truly have realized their mistake and wish to return to society, the Court and jail
authorities may leave such men on parole; but only after they have served a minimum of half the
sentence imposed on them. It is outright clear that sexual offences are to be excoriated, but if death
sentence is given to such convicts- so as to deter the rest, then no doubt that the graph of rape
cases will come down considerably- but it may also happen that those who commit such offences-
simply to leave no witnesses or evidence, may even kill their victims and dispose off their bodies
(whereas it is observed that in most cases- it is the victim who is the only source of evidence in most
cases), thereby frustrating the main object of the Indian Penal Code and the legislature. Studying the
laws, the process, the application of those laws, one thing is certain- the entire structure of justice
needs an over haul, otherwise the victim shall no longer the woman, but humanity.
The author can be reached at: mishitajethi@legalserviceindia.com / Print This Article
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