Essay on Recent Laws Made on Rape in India !
More recently it is being realised that rape should not be treated as a sex-crime but it should be viewed as an aggressive crime against person. Researchers have shown that very often the intention of the offender is aggression rather than sex enjoyment. Groth and Birnbaum observed that the rapist derives an eroticised pleasure not through sex but through an horroendous assault on victim’s body.
In case of a rape besides the psychological trauma, the woman is expected to prove physical injuries or some sort of non-genuine consent on her part. It is to be noted that majority of rape cases are not sudden occurrences but they are generally well planned.
The Criminal Law Amendment Act, 1983 has introduced certain important changes in the law relating to rape. A new Section 114-A has been inserted in the Indian Evidence Act. By this amendment the Act lays down that onus of proving that the woman had consented to the act shall be on the accused.
Some quarters feel that this stringent provision of the rape law would expose men to blackmail by interested elements and the women of easy virtue. However, the Supreme Court in Bhagwada Boghinbhai Hirji v. State of Gujarat, while rejecting this contention observed that, “instances of false allegations of sexual molestation which are made by western society women who are gold-diggers and seek to extract money by holding out the gun of public disclosure are extremely rare in tradition bound non-permissive Indian society where, by and large, sex is taboo.”
It must be stated that though the amendment Act has been widely acclaimed and criticised by the anti-rape movement, it has brought to the fore, key issues around press censorship, age of consent, appropriate punishment, burden of proof, custodial rape and the past sexual history of the victim. To that extent it has helped in controlling violence against women.
The police version is, however, different. They feel that this change in the law has placed policemen in a vulnerable position thus having a demoralising effect on them.
The offence of rape has been defined in Section 375 of the Indian Penal Code whereas Section 376 provides punishment for rape. Under this section, more severe punishment is provided for the rapist if he happens to be a police officer or public servant or a person on the management of the jail staff or remand home and commits rape on any inmate, thus abusing his official position.
The law relating to rape makes a distinction between vulval penetration and vaginal penetration. In order to constitute the offence of rape, the law merely requires medical evidence of penetration, and this may occur and even then hymen may remain intact, i.e., unruptured. Seminal emission is not necessary to establish rape. It is for this reason that absence of spermatozoa cannot negative the commission of rape.
It is significant to note that in 1997 ‘SAKSHI’, a voluntary organisation interested in the issues concerning women, through a PIL writ petition, approached the Supreme Court of India with a plea that existing Sections 375 and 376 of I.P.C. and judicial interpretation thereof is not in tune with the current state of affairs.
It has urged the apex court to direct, through an appropriate writ, that ‘sexual intercourse’ as contained in Section 375 should include all forms of penetration, such as vaginal, and oral penetration as also penetration by any part of body or by any object. The Supreme Court had directed the 15th Law Commission to examine the issue and the Law Commission after a careful review of the rape law in vogue has in its 172nd Report submitted to the Government of India on March 25, 2000, recommended that the law relating to rape may be made gender neutral, wider and more comprehensive to bring it in tune with current thinking.
However, a two-judge Bench of the Supreme Court in Sakshi v. Union of India and others, has rejected the plea for re-interpretation of the provisions of Section 375 IPC to give them a wide import by expressly specifying ‘various forms of penetration’ within its ambit.
The Court noted that there is absolutely no doubt about the interpretation of the provisions of Section 375 and the law is well settled. Re-interpretation of Section 375 of IPC will lead to a serious confusion in the minds of prosecuting agencies and would unnecessarily prolong the legal proceedings and would have adverse impact on society as a whole.
In the instant case, giving its opinion on the manner of recording evidence in cases of violence against women, the Court explained that the whole inquiry before a Court being to elicit the truth, it is absolutely necessary that the victim and the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment.
Section 273 of Cr. P.C. merely requires the evidence to be taken in the presence of the accused, The Section, however does not say that the evidence should be recorded in such a manner that the accused should have full view of the victim or the witnesses.
The Court remarked that the recording of evidence by way of video conferencing vis-a-vis Section 273 Cr. P.C. has been held permissible by the Court. In cases of rape, questions put in cross-examination are purposely designed to embarrass or confuse the victim of rape and child abuse.
It will, therefore, be better if the questions are to be put by the accused in cross-examination are given in writing to the Presiding Judge of the Court, who may put the same to the victim or witnesses in a language which is not embarrassing. Also, whenever a victim is required to give testimony, sufficient breaks should be given as and when required.