LAW AGAINST RAPE IN INDIA
India is said to be one of the most unsafe countries for women in the world. Rape is a crime against humanity and one of the most gruesome acts of violence against a woman. The Law against Rape is contained under following provisions of IPC, namely:
Section 375: Definition of Act of Rape and nature of Consent
Section 376: Punishment for rape
Section 376A: Punishment for causing death or resulting in persistent vegetative state of victim
376AB. Punishment for rape on woman under twelve years of age
Section 376B: Sexual intercourse by husband upon his wife during separation
Section 376C: Sexual intercourse by a person in Authority
Section 376D: Gang Rape
Section 376DA: Punishment for gang rape on woman under sixteen years of age
Section 376DB: Punishment for gang-rape on woman under twelve years of age.
Section 376E: Punishment for repeat offenders
It might be evident from above sections that the law against rape in India is quite comprehensive and exhaustive.
Let us look at the legal provisions in more detail.
What is Rape according to Indian Penal Code, 1860?
The Law against Rape in India is contained in Section 375 of Indian Penal Code, 1860. It provides a comprehensive, exhaustive and unambiguous definition of Rape. This means that it covers all the possible acts of rape. Section 375 is not a gender neutral provision. According to sec 375, only a man can commit rape, and only against a woman. Section 375 in short explains that any act constitutes rape by a man against a woman if it involves penetration (either through bodily organ(s) such as penis, hands, fingers, mouth or through material objects) without the consent and against the will of the woman. Further, the section also states that a man can threaten a woman to perform sexual intercourse with another man, and this will also constitute rape.
The section broadly construes three types of rape:
1) Use of Force: When the act of alleged rape was done by using force when the woman refused to give consent for the act.
2) Statutory Rape: When the victim cannot give consent owing to young age or underdeveloped state of mind and reasoning.
3) Use of Fraud: Extracting consent of the woman using deceit or fraud. This can involve lying about certain facts or making promises without any intention to fulfil them.
Rape is a cognizable and a non-bailable offence. This means that a F.I.R registration is mandatory in case the Police receive information regarding the crime of rape. The Police can arrest without warrant and bail will not be granted as a matter of right.
What is the Nature of Consent in sexual intercourse?
Consent and will of the woman alleging rape is a central issue in cases of rape. Let us look at the nature of consent envisaged in section 375:
“375. Rape. - A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following seven descriptions:
First. Against her will.
Secondly. Without her consent.
Thirdly. 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.
Fourthly. 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.
Fifthly. 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.
Sixthly. With or without her consent, when she is under eighteen years of age.
Seventhly. When she is unable to communicate consent.
Explanation 1.For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1. A medical procedure or intervention shall not constitute rape.
Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”
From the above section, we can gather the following crucial points with regard to consent:
a) The act of sexual intercourse was performed against the will of the woman.
b) The act was done without the express consent of the woman.
c) The woman's consent was obtained by force, threat (to kill or harm her or someone else), and duress.
d) The woman's consent was obtained by misleading her to believe on a fact which the man knew was not true (such as misleading the woman to believe that the man was not married etc.)
e) The woman's consent was obtained by intoxicating her or impairing her decision making abilities.
f) Consent given by a female under the age of 16 years (14 years old in case of Manipur) is legally invalid and therefore any act of sexual intercourse followed on such consent constitutes rape.
Section 375 has to be read along with section 90 of IPC as well as section 114A of Indian Evidence Act. The woman need not prove express or implied consent. The court will presume non existence of consent in rape cases as per section 114A of the Indian Evidence Act. Further, section 90 of IPC states that if consent is given under fear or on misconception of ‘fact’, then it is not a valid consent. Section 375 (under Explanation 2) clearly defines nature of consent envisaged under the law in cases of rape:
“…….Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act”
Consent need not be explicit, and can be gathered from the circumstances of the case. Further, if the woman fails to physically resist against the act of Rape, it will not constitute as consenting to the act of intercourse.
Punishment for Rape:
Anyone who commits rape will be punished with rigorous imprisonment which can amount to ten years or up to imprisonment for life and shall also be liable to fine.
Punishment is enhanced to ten years or life-imprisonment upto the natural life of the convict if rape was committed by:
b. Public servant
c. Member of Armed forces
d. Person who is on management or staff of a jail, remand home, any other place of custody established by law (including a women's institution, children's institution
e. Person who is on management or staff of a hospital
f. Person who is a a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman;
g. Any person committing rape during communal or sectarian violence
h. Any person committing rape on a pregnant woman, or a woman incapable of giving consent.
This term is extended to twenty years or imprisonment for life (remainder of natural life) if the victim of rape was a woman under sixteen years of age.
Section 376A: Punishment for causing death or resulting in persistent vegetative state of victim (rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.)
376AB. Punishment for rape on woman under twelve years of age.(rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death.)
Section 376B: Sexual intercourse by husband upon his wife during separation (imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.)
Section 376C: Sexual intercourse by a person in Authority (sexual intercourse not amounting to the offence of rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine.)
Section 376D: Gang Rape (rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life and with fine)