ANALYSING THE RAPE LAWS: POST NIRBHAYA’S CASE
By Anu Elizabeth, 3rd year BA LLB (Hons.), CHRIST (Deemed to be University) Bangalore
Sexual violence against women is a rampant scenario across countries, irrespective of the stringent rules. Women still suffer from social evils such as Rape, marital Rape, dowry harassment, lack of education, domestic violence, female infanticide, and prostitution. These are only a handful of the many atrocities committed against women. Rape is one of the worst heinous crimes against women. Irrespective of the nature of the crime, the dignity of women is always put to the test. But this problem can be seen to change over time to an extent. When the IPC was created in 1860, it was the first time "rape" was introduced in our legal system. The Indian Penal Code refers to "sexual crimes" under sections 375 to 376E. Later in 1983, sexual offenses by public servants were added into section 114 A of the Indian evidence act. Even though the 1983 amendment prohibited character assignation, there were still problems regarding cross-examination of the victim, looking into her private life, and defining her as an evil character. Cross-examination was prohibited through the 2002 amendments. The Protection of Children from Sexual Offenses Act was passed in 2012 to fight child rape. The 2013 criminal amendment is one of the turning points in a change of the rape laws in the country. The Nirbhaya case was a step forward in analyzing the change required in society towards protecting women and their safety. The 2018 criminal law amendment ordinance does focus on the POCSO act on the age limit of the victim and its consequences. The 2018 amendment is just an ordinance yet to be passed by the parliament. This paper focuses on the social evil of Rape and its changes after Nirbhaya’s case and how to protect the lives of women’s future by providing suggestions for the betterment of society.
KEYWORDS: Amendments, Crime, Nirbhaya’s case, rape, and social.
Rape was never considered a felony against the victim initially; instead, it was considered a crime against property. The property in question was women who meant to belong to their husbands or fathers. The word “rape” is derived from the Latin word “repere,” which means “to grasp or take anything,” implying property once again. For the crime, the spouses or fathers used to get the compensation. The Hebrews had similar laws, and they took the concept of “an eye for an eye” very literally; as a result, the victim’s father was authorized to rape the rapist’s wife as a penalty for rape. The Celtic laws in pre-British England did recognize If you raped a virgin, recompense was paid to the father, and the victim was married to a culprit, according to Hammurabi’s code, one of the earliest sets of rules known to man rape against women as a crime against women, distinguishing between no consent and being in a state where you are unable to give consent, such as intoxication. These regulations, on the other hand, were the exception rather than the rule in the early rape laws. Rape was not considered a crime against the victim until the 12th century. In the Indian legal sense, The Indian legal code introduced in 1860 ‘Rape’ as a clearly defined offense. The Indian legal code introduced in 1860 ‘Rape’ as a clearly defined offense. Prior to this, India’s laws were frequently inconsistent and contradictory. The first Law Commission was established under the chairmanship of Lord Macaulay after the British Parliament passed the Charter Act of 1833, which led to the foundation of the first Law Commission. The Indian Penal Code, which established substantive criminal law, was the first to be enacted into law. The Indian penal code was enacted in October 1860, but just 15 months later, on January 1, 1862, it went into effect. In 1861, the first Code of Criminal Method was enacted, which codified the rules governing the establishment of criminal courts as well as the procedure to be followed in the investigation and trial of offenses.
1. Whether did rape laws have their existence before the Nirbhaya case?
2. Whether the Nirbhaya case has brought about changes in the rape laws?
3. Whether the post-Nirbhaya amendments still effective?
NIRBHAYA CASE ANALYSIS
A 23-year-old lady was severely attacked and raped on a moving bus in south Delhi on December 16, 2012. A female physiotherapy intern, Jyoti Singh, was beaten, gang-raped, and tormented. One of the young attackers stabbed her in the private areas with an iron rod, ripping her intestines apart. While everything was going on, the bus driver drove all around Delhi. When she died, only 5% of her intestines were still within her body. The tragedy sparked significant protests and rallies across the country. Ram Singh, a bus driver, committed suicide in Tihar Jail on March 11, 2013. Mukesh, Akshaya, Pawan, and Vinay were sentenced to death by a trial court in September 2013.
PROVISIONS IN LAW BEFORE NIRBHAYA'S CASE
The Tuka Ram and another vs. the state of Maharashtra, more widely known as the Mathura Rape Case, was one of the most national-level problems that united women's groups together. This case ushered in previously unheard-of legalizations. Justices P.S. Kailasam, A.D. Koshal, and Jaswant Singh made up the bench that handed down the decision in this case. The bench's ruling was widely criticized and denounced, resulting in a widespread public uproar and protest against the country's laws. The day had been labelled "Black Day in the History of Women's Empowerment." The reason this day was marked the black day in the history of women empowerment was that the court went so far as to say that since Mathura was 'habituated' to sexual intercourse, she perhaps initiated sexual intercourse, seduced the police officers, and then came out and cried rape to seem 'virtuous' in front of her brother, and partner. This judgment created a lot of public disturbance, and this case became the cornerstone of the national feminist movement in India. Irrespective of the decision, specific reforms were made by the government. The inclusion of 376(A),376(B),376(C), and 376(D) to IPC section 376 (punishment of rape under the Indian penal code) changed the law, making custodial rape punishable. (Which was revised again in 2013, following the Nirbhaya case) Additionally, the burden of proof was shifted from the victim to the offender. It also added provisions for in-camera trials, prohibiting the victim’s identity and harsher sentences.
AMENDMENTS POST NIRBHAYA CASE
1. The Nirbhaya Act
The Nirbhaya Act is a piece of legislation that was enacted in The Criminal Law (Amendment) Act 2013 (Nirbhaya Act), an Indian law passed by the Lok Sabha on March 19, 2013. On March 21, 2013, the Rajya Sabha amended the Indian Penal Code, the Indian Evidence Act, and the Code of Criminal Procedure, 1973 to address laws relating to sexual offenses. Certain adjustments have been made to the CrPC and Evidence Act, such as making the procedure of recording the victim's statement more victim-friendly and straightforward, the two most significant changes are The 'character of the victim' is no longer relevant, and there is now a presumption of 'no consent' in cases where sexual intercourse has been established and the victim has stated in court that she did not consent.
2. The Nirbhaya Act Criminal Law (Amendment) Act of 2013 amends the Nirbhaya Act. Criminal Law (Amendment) Act, 2013:
Concerning certain sexual offenses, it revised and added new provisions to the IPC. The IPC has been updated to include new crimes such as acid attacks, sexual harassment, voyeurism, and stalking. It includes oral sex and inserting an item or any other body part into a woman's vagina, urethra, or anus. The new amendment clarifies that "consent" is an unequivocal agreement to engage in a specific sexual act; it also explains that "consent" does not entail "no resistance." The Act's inability to outlaw marital rape is one of its most notable omissions. There is an exception to section 375 if the wife is not under 15. Rape (sexual assault) was previously a gender-neutral offense, but it is now a women-centric offense. Only a man is thought to be capable of perpetrating such a crime, and only against a woman. Gender neutrality was required in the following areas: When a transgender person or a male is raped. Even women have perpetrated sexual assaults on other women in a few cases.
3. Justice Verma Committee (JVC) recommendation:
(a) Rape Punishment: The panel did not propose that rapists get the death penalty. It argues that rape should be punishable by seven years to life in jail or a restraining order. It is suggested that those who cause death or a "permanent vegetative condition" be sentenced to RI for not less than 20 years but up to life, which is the duration of the person's life. It argues that gang rape should be punishable by at least 20 years in jail, with the possibility of life imprisonment, and that gang rape followed by death should be penalized by life imprisonment.
(b) Other sexual offenses: The group recognized the necessity to address all types of sexual crimes and made the following recommendations: Voyeurism is punishable by up to seven years in prison; stalking or repeated efforts to contact a person by any means is punishable by up to three years in jail. Acid attacks might result in up to seven years in prison, while drug trafficking could result in a penalty of seven to ten years in prison.
(c) Registration of rape reports and medical examinations: Every rape complaint must be registered by the Police. Civil society should fulfill its obligation to report every rape case that comes to its attention. "Any official who fails to register a case of rape reported to him, or attempts to obstruct its investigation, constitutes an infraction," the report states. Medical evaluation protocols for sexual assault victims have also been proposed. "Such protocol-based, expert medical examination is essential for uniform practice and implementation," the panel said.
(d) Women's Bill of Rights: A separate Bill of Rights for women that guarantees a woman's right to a life of dignity and security and the freedom to complete sexual autonomy, including in her relationships.
4. The Nirbhaya fund
The government has established the Nirbhaya Fund, which can be used for programs aimed primarily at improving women's safety and security. It is a non-lapsable corpus fund maintained by the Ministry of Finance's Department of Economic Affairs (DEA). According to the guidelines, the Ministry of Women and Child Development (MWCD) is responsible for serving as a nodal ministry for evaluating and recommending proposals and schemes for funding under the Nirbhaya Fund and (ii) reviewing and monitoring the progress of sanctioned schemes/projects in collaboration with line Ministries/Departments. Schemes/projects worth Rs. 9288.45 Cr. have been appraised under the Nirbhaya Fund so far. An amount of Rs.5712.85 crore has been allocated, and an amount of Rs.3544.06 crore has been disbursed/ released by the concerned Ministries/ Departments. The framework mentioned above outlines the key aspects of the Nirbhaya Fund, such as project contours, proposal submission procedures, proposal processing methods, and funding patterns. The framework does not include funding for non-governmental organizations. Under the Nirbhaya Fund, an Empowered Committee (EC) of Officers assesses and recommends proposals for financing and reviewing the status of implementation from time to time in collaboration with the respective Ministries/ Departments/ Implementing Agencies. Following the EC's approval, the competent Ministry/Department obtains permission from the Competent Financial Authority (CFA) to release funds from their respective budgets and implement the project/scheme directly or through States/UTs/Implementing Agencies. Furthermore, state/UT governments/implementing agencies follow it at their level.
The laws and regulations are curated or formulated in an antiquated mannerism, but the issue arises when they must be enforced. Yes, the government and the Constitution's writers considered different factors after the Nirbhaya case, bringing to numerous light forms of violence against women and the punishments associated with them, but that doesn't indicate that there is no crime against women all. As a result, it may be deduced that the judiciary, as the third pillar of the Constitution, has played a crucial role in determining the best solution in rape cases. The judiciary has attempted to achieve a balance and equilibrium in society at times by broadening the interpretation of various statutes and constitutions and at other times by laying down landmark judgments when there are no specific laws. The judiciary has attempted to bridge the gap between rapidly changing society and rigid rules (because of the lengthy and time-consuming process of enacting statutes by the legislature, it is difficult to amend these laws to keep up with rapidly changing society.
The Nirbhaya саse has raised the issue of inadequacy and lack of proper execution of the laws once again; nonetheless, the anti-rape Bill- criminal Law (Amendment) Bill, 2013 has been passed. The laws relating to rape victims have only been implemented after significant public outcry or diplomatic intervention. After the loss of Nirbhaya and mass demonstrations, the Amendment Bill was introduced. But irrespective of rules and regulations there are a lot of problems in relation to the implementation.
 Rachit Garg, A critique of rape laws in India, iPleaders (2021), https://blog.ipleaders.in/critique-rape-laws-india/ (last visited Apr 30, 2022).  Sexual-Violence-Classes-Workbook-for-Participants.pdf, https://www.selfadvocacyinfo.org/wp-content/uploads/2019/05/Sexual-Violence-Classes-Workbook-for-Participants.pdf (last visited Apr 30, 2022).  The length of sexual abuse in India, The Company Ninja (2022), https://thecompany.ninja/the-length-of-sexual-abuse-in-india/ (last visited Apr 30, 2022).  Mukesh and Anrs. Vs NCT Delhi (2017) 6 SCC 1  Tuka Ram And Anr vs State Of Maharashtra (1979) AIR 185,  The Indian Evidence Act, 1872, § 114(A), No. 1, Acts of the parliament, 1872 (India).  Rachit Garg, The journey from Mathura to Nirbhaya : rape laws in India, iPleaders (2020), https://blog.ipleaders.in/journey-mathura-nirbhaya-rape-laws-india/ (last visited Apr 30, 2022).  Nirbhaya Act - Criminal Law, Civils360 IAS (2020), https://civils360.com/2020/12/22/nirbhaya-act/ (last visited Apr 30, 2022).  Women Safety Initiatives Under Nirbhaya Fund, https://pib.gov.in/pib.gov.in/Pressreleaseshare.aspx?PRID=1705997 (last visited Apr 30, 2022).