File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Socio-Legal Analysis of Rape Laws in India: Nirbhaya to Hathras

After the 2012 Nirbhaya rape case, where the victim was brutally gang-raped and subsequently died in the hospital, the women of the country got some relief when there came some significant changes in the rape laws of the country in the year 2013. These changes gave an assurance to the people for a stricter and tougher legislation for an offence like rape in India.

Yet, here we are after 8 years with another heart-breaking case in Uttar Pradesh's Hathras of a young girl(19 years old) who was gang-raped in the most inhumane manner which led to her demise. The extend of cruelty and brutality in this case showcases that even after making stricter regulations, the system remains the same.

In a country where goddesses are worshipped for wealth, education and power, why are women being treated as commodities? Why don't they feel safe in their own country? Why do people question their character based on what they are wearing? And last but not the least why are only the women being questioned and blamed for in such situations of sexual harassment?

These questions are the reasons behind the result of a survey by the Thomson Reuters Foundation conducted in 2018 according to which, India ranked 1st for being "World's most dangerous country for women". This is very shameful for the world's biggest democracy as it surpasses war-zone countries like Afghanistan and Saudi Arabia.

Research Objectives
  • To analyse the changes brought in the criminal laws of the country in respect of the offence of rape.
  • To understand the impact of rape emergency in the country as a whole.
  • To understand the effects of rape in the Indian society for women and girls.
Research Questions
  • Whether the situation of rape victims have improved since Nirbhaya rape case of 2012?
  • Whether rape victim gets true justice in the court of law? � The victims include all the castes in the country.
Research Methodology
For the purpose of this research, I have taken the help of secondary data like books, journals, case laws, google search, news articles etc.

Limitations Of Study
  • As the country suffers from the Corona Virus and there is lockdown everywhere, there is no scope of conducting the research through survey-analysis. So, there is no primary data used in the paper.
  • For the purpose of this research, I have not included the rape cases of minors.
  • In the current times, social media promotes rape culture. So, this paper doesn't put light on this subject.

Rape Laws In India

IPC in 1860s, for the first time, defined Rape. It was defined as the act of sex against a woman's will or her consent and, it also included consent obtained by putting the victim or anyone she cares about in fear of death or hurt. The definition of rape remained unchanged for the next 100 years or so.

Then after Mathura custodial rape case where the perpetrators were given a clean chit by the supreme court, the rape laws went through some major changes. Custodial rape was added to the definition of rape this was regarding rapes committed by a police officer. It led to the insertion of 114 A in the Indian evidence act of 1872. This new section presumed a lack of consent in specific situations if the victim said so and applied to custodial rapes.

Section 228A was also added to the IPC this made it punishable to disclose the identity of victims of certain crimes and rape was one of them, it also prohibited character assassination of victims. Character assassination even though prohibited did not include cross-examination. This meant that when a victim took the stand lawyers made it a point to humiliate her by asking about her sexual history and discredit her evidence by showing the judges that the victim was 'immoral'.

This violated the sexual integrity of the victim and traumatized her even further. The Supreme court taking note of this after a PIL asked the law commission to recommend changes to our rape laws. This led to an amendment of section 155(4) of the Indian Evidence Act. After the amendment cross-examination of victims was prohibited.

On December 16, 2012, a physiotherapy intern was brutally gang-raped in a moving bus, later she was thrown from the bus and eventually after a few days succumbed to her injuries. This was the Nirbhaya gang rape case it shook the entire country and faced a lot of media coverage because of the barbaric nature of the crime. There was a lot of public outrage now the government wanted to change the laws to prevent a crime of this degree from ever happening again.

This led to the 2013 criminal amendment act and the Juvenile Justice Act. The 2013 criminal amendment widened the definition of rape and increased the punishment of gang rape to 20 years to life from the earlier punishment of 10 years to life. New crimes like the offenses of stalking, voyeurism, and acid attacks were added the minimum punishment for rape which had remained unchanged from 1860 was increased from 7 to 10 years. It also provided for the death penalty in cases where the victim was killed or left in a vegetative state. Vegetative state was included for the first time in the definition after the landmark Aruna Shanbaug case.

In January 2018 in the Kathua district of Jammu and Kashmir, an 8-year-old girl named Asifa Bano was raped and killed by a group of men. The main accused was a priest at a temple where the rape had taken place. This shocking case led to national protests and a demand for stricter laws. In the backdrop of Jammu and Kashmir where political changes were taking place, this case was heavily politicized on communal lines.

This led to the 2018 criminal amendment act, this act mainly changed POCSO as the rape was against a child. The act made the death penalty possible for the offense of the rape of a minor under 12 years old the minimum punishment is a 20 years jail term. Another section was inserted in the IPC which dealt with the offense of rape against a minor under 16 years the punishment was 20 years to life imprisonment.

So finally, according to Sec-375, a man is said to commit "rape" if he inserts his penis, uses his mouth, any body part or any other object in a woman's vagina, mouth, anus or urethra or makes her do any of the above to him or anybody else under the following conditions: against her will; against her consent; when a woman, or her loved one, is threatened with hurt or death; when consent is taken by a man pretending to be her husband; if the woman is of unsound mind, or if she has been drugged; if she is under 16 years of age (under 14 years in Manipur); if a wife is under 15 years of age (under 13 years in Manipur). According to IPC consent means a woman's unequivocal voluntary agreement by words, gestures or any form of verbal or non-verbal communication, communicating a willingness to participate in sexual acts.

Penalty for committing rape falls in two categories according to Section 376 of the IPC. Whoever, except for those mentioned in the second category, commits rape will be awarded a jail term of not less than not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. Those covered under this second category shall be penalized with a minimum 10-year jail term which may extend to life imprisonment (for the remainder of the person's natural life) and shall also be liable to fine.
  • A police officer who commits rape within the limits of the police station where he is appointed; in the premises of any police station; or if a woman is in police custody
  • A public servant
  • A member of the armed force deployed by the Centre/State government
  • Management/staff of a jail, remand home or other places of custody where women or children are lodged
  • Hospital staff who rape patients
  • A relative, guardian or teacher, or a person in a position of trust or authority who rapes their ward
  • Those who commit rape during communal or sectarian violence
  • Rape of a pregnant woman
  • Repeatedly rapes the same woman
  • Rape of a woman who incapable of giving consent
  • Is in a position of control or dominance
  • Rape of a woman suffering from mental or physical disability
  • Causes grievous bodily harm/maims/disfigures or endangers the life of a woman during rape.

Social Media Promoting Rape Culture In India

Rape culture is deeply entrenched in our Indian society!
It is present in the way we think, speak, and act. The way this patriarchal society normalises rape and sexual violence's is threatening the lives of many girls and women. This culture extends to rape jokes, casual sexism, acceptance of toxic masculinity, victim blaming, slut-shaming and other violent acts against women.

The society doesn't realise that rape and other crimes against women happens not because of what they wear but because of the dirty mind of men. If short skirts are the cause of rape, then why are the women who wear a saree or salwar or even a burqa getting raped?

India is considered to be a great democracy with many rights given to its people but can we really consider India as a great country when the betis of this country aren't safe here? .

While Social Media should be on the forefront of bringing awareness on this issue but what is happening today is completely opposite!

People on Social Media are very casually talking about rape and sexual harassment as a gossip and entertainment piece! Example is what happened in the "Bois Locker Room" case! Recent example of wide circulation of rape threats to MS Dhoni's daughter Ziva because her father couldn't perform well in IPL match!

Young generation, who are very fond of very casually posting pictures on Facebook, Instagram, etc are getting shock out of their life seeing their nude/morphed pictures widely getting circulated on social media and hence becoming easy targets for slut � shaming and possible rapes!

And we can see this with the recent cases of Sulli Deals and Bulli Bai App case where photos of Muslim women were uploaded on the app without their permission and then, they were virtually auction. This shows the toxicity in the minds of the masterminds of these sites and the need to have stronger and stricter laws in the cyberspace as well.

Basically, rape culture in our society is being fuelled by the media in terms of misogynist songs, objectification in popular culture, problematic lyrics, glamorisation of assault, slut shaming etc.

General language surrounding rape or violence, in terms of how these terms are used and described are also problematic. The premise of rape jokes lies in correlation of rape to defeat or even inconvenience. Not only does the use of rape for comic relief trivialise the trauma of victims but also normalises the idea of rape.

Even the manner in which gender based violence is reported or narratives around it is debated, with the undertones of ideas of placing honour in a woman's vagina and victim blaming, fuels rape culture. The toxic notions around masculinity and entitlement add to the situation in hand.

So, it would be very useful to spread awareness in the society through our legal community on;
  • What are the dos and don'ts of using social media
  • how we can curb promotion of rape culture through cautious use of social media
  • and eventually make the digital world a better place for both boys and girls.

Covid-19 Pandemic And Rape Crisis

While lockdowns and quarantines are essential to suppressing the global spread of COVID-19, they are trapping vulnerable women with abusive partners.

Staying at home is currently advocated as a primary source of personal and community safety. Yet for many women and young girls compelled to remain within the confines of their households, the threat of sexual violence clashes with these safety discourses against spreading contagion.

An RTI query revealed that crimes like Rape, Human Trafficking and Sexual Assault against women and minors witnessed a jump in the last 2 years of the pandemic in comparison to 2019.

Problems Still Faced By Women In Courts In India

Even after the long painful struggle of women's movement which have led to making of progressive laws, there have been numerous instances where the judgments show the prevailing patriarchal and misogynistic mindsets followed in the court rooms.

The Delhi High Court in the case of Mahmood Farooqui v. State (Govt of NCT of Delhi) acquitted the accused by overturning the trial court's conviction. The court gave a controversial judgment which examined the concept of consent in a deeply flawed manner stating that a feeble "no" may mean a "yes". "If the parties are in some kind of prohibited relationship, then also it would be difficult to lay down a general principle that an emphatic "no" would only communicate the intention of the other party.

If one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also amount to negation of any consent. But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble "no", was actually a denial of consent."

This shows the flaws in the "no means no" approach taken by courts whereby the sexual intercourse may stop after detecting a "no" from the other party. The issues come when the courts fail to appreciate the communication of "no" or establish that a feeble "no" may mean a yes. Thus, there's a need to shift the approach of courts and adopt a new concept of "yes means yes" while determining the consent in rape cases.

In California, Gov. Jerry Brown signed a bill into law and became the first U.S. state to define "yes means yes" law in sexual assault cases on college campuses. This law redefines the concept of consent and requires it to be "an affirmative, conscious and voluntary agreement to engage in sexual activity."

It shifts from the traditional view of "no means no" to a progressive view of "yes means yes" where the participant can move forward with sexual intercourse only after receiving a "yes" from the other party.

There have been cases where the rape survivors have been advised and compelled by police, courts and family members. The Madhya Pradesh high court ordered granting bail to the person who was accused of molesting a woman on the condition that he would get a 'rakhi' tied by her on the day of Raksha Bandhan.

Thus, with the increasing number of brutal cases, the patriarchal mindset of courts which leads to making of such insensitive statements, also adds up to the victim's trauma. It shows us the unfortunate reality of our society where the victims are the ones who are questioned about their morality and have to go through the blame and character assassination for being raped. Our society still tries to educate women about how to dress up in an "appropriate way" in order to stay safe and to defend themselves instead of teaching men about the gravity and consequences of rape.

Swati Maliwal, Chairperson of Delhi Commission for Women, said that, "Fear of rape is the permanent state of mind of women in this country. It's conditioned into us from the moment we are born and it's impossible to escape".

Even with Beti Bachao, Beti Padhao, the patriarchal mindset isn't going away till this date. It's the 21st Century, but still there is imbalance between the power of men in the society and the inferior and powerless women. That's why it can be sensed that the behaviour of rapists and abusers is often sanctioned in the mindset of this male-dominated society.

This is the reason it has been reported that only 14% of the women who suffer from sexual harassment or violence raise their voices to put a stop on them. But the no. of cases which are reported are so less due to the lack of awareness of rights as well as the fear of being judged by the society and the most important and prominent one is issue power of the accused.

It has been seen in every part of the country that if the accused has power � upper caste or the ones who are rich or as many connections � they use that power to take control of the case, hence the conviction rate is so low.

This difference in the power of men and women has been seen in every reported and unreported rape cases in India.

As the rape cases increase in the country, there can be seen a decrease in the proportion of women workforce. The fear of rape or sexual harassment can be one of the most prominent reasons for the same.

This is not only tragic for women in India, but is shameful for India as a whole. A report by IMF finds that if the no. of women and men in the workforce is equal, the economy of the country would see 27% more growth or even higher, making the dream of a $5 Trillion economy a reality.

Basically, the situation of rape emergency is not only a human rights or a criminal issue, but it also affects the economy of the country. So, let's hope that the Government soon realises the same and can finally bring real change for the women and the country.


Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly