a thought on rape laws in india

The current wide media coverage of huge number of rape cases from across the country provokes this note.

Rape is one of the most heinous of all crimes against women.A rapist not only causes physical injuries but indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, chastity, honour and reputation.It destroys the entire psychology of a woman and pushes her into a deep emotional crisis. It is a crime against basic human rights one is entitled to and a clear violation of the Right to Life.It's the one of gravest crimes against humanity and civilization.Women, regardless of their age and social status form an integral part of society and protecting them from sexual humiliation and degradation is the responsibility of society.

However i shall be restraining myself on only law related.The Indian Penal Code (45 of 1860) was enacted in the year 1860 but the provision relating to Rape embodied in Section 375 and 376 has remained substantially similar since the enactment.It is rather dismal to note that the law dealing with Rape has remained largely untouched since the original enactment.The law on Rape needs to be overhauled to ensure there is no miscarriage of justice and the reputation and dignity of women is protected from the clutches of barbaric rapists. While preserving the basic human rights of women is of paramount importance, the law should must take a shape to facilitate speedy justice. It need recognize the cases of “frame-ups” and wrongful implication of innocent , though pure gender neutrality is neither feasible nor desirable in the Indian setting.

The most vital ingredients to the offence of rape are 

a) Sexual intercourse by a man with a woman against her will

b) Her lack of consent,

and these two ingredient suggest that the definition and scope of the terms 'penetration', 'corroboration', 'consent' and 'marital rape' largely remain the grey areas, which must me crystallized to facilitate speedy and coherent justice.

Regarding 'penetration' substitution of the term “ Sexual assault” for “Rape” and by definition making it to include all kinds of penetration in the vagina, anus or urethra of another whether by a part of the human body or an object may resolve the legal complexities around 'sexual intercourse'.

It is almost a continuously emphasized dictum from higher courts to accord appropriate value for human psychology and behavioural probabilities in evaluating evidence to avoid miscarriage of justice. Emphasis is laid on the fact that minor discrepancies in the statement of the Prosecutrix should throw out an otherwise reliable prosecution case. Corroborative evidence is not an imperative component of judicial credence in every case of rape unless there are compelling reasons which necessitated looking for corroboration. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. The apex court has often taken a view "In the India setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration, is adding insult to injury. Further, viewing the evidence of the victim of rape with the aid of doubt-tinged glasses is to justify the charge of male chauvinism in a male dominated society. Thus there is great weight attached to the evidence of a victim of a sexual offence since a woman, especially in our tradition bound society will rarely make a false allegation for fear of being stigmatized or losing her reputation and ruining her prospects of marriage and being considered promiscuous. The corroboration rule was followed by the Courts in a slew of cases but is yet to find its place in the statute books."

Lack of consensus is vital ingredient of offence of rape. however the observation of Supreme Court must be invariably taken into account that “A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent" as understood in law.” Consent as a defense to a charge of rape requires voluntary participation after the exercise of intelligence based on knowledge of the moral quality of the act and the free exercise of choice between resistance and assent. There is a difference between consent and submission. Every consent involves submission but not vice-versa. Consent in order to be a valid defense to rape, must be an act of reason accompanied with deliberation after the mind has weighed the good and evil and with the capacity to withdraw assent as per one’s will. Consent therefore implies the “exercise of a free and untrammeled right to forbid or withhold what is being consented to, it is always voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.”

However while consent or lack of it is unnecessarily being extended to the cases where charge of rape lies on sole ground of consensual sex with false promise of marriage. non execution of  contract for marriages can not  be resolved through rape laws, but unfortunately being resorted to a great extent. Law must evolve to take care of these emerging menace.

Another related new trend is charge of rape by live in partners or partner of an affair against other, subsequent to break ups. The new social realities indicate that these cases need be classified under marital crimes. The couples in love and live in arrangements should be regarded at par with married couples and the law relating to marital sexual offences should be applied.