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What is Rape? What are the laws and rights of rape victims in India

A safe society is when it is rape free. India is having high rates of crimes and rape is the fourth most common crime in India. Rape is one of the most heinous crime, on an average 88 cases of rape are registered in India daily. The lives of rape victims are fully spoiled. In this article we are dealing with the laws & rights of rape victims in India.

Section 375 of IPC (1860) defines rape. The POCSO Act 2012 deals with the sexual offences against the children. We have six rights for the rape victims, Right to zero FIR, free medical treatment in any private hospital, no two finger testing during medical examination, harassment free and time bound police investigation, trial with full dignity, speedy & protection, Right to compensation. The objective of this article is to make aware the victims about their rights & stop such heinous crime to create a safer society for our females.

It wasn't her dress ; it was your evil mind. India is the 2nd largest populated country in the world and also it has high crime rates than other countries. Rape is the fourth most common crime in India. According to 2019 annual report of the National crime Records bureau (NCRB) 32,033 Rape cases were registered across the country or an average of 88 cases daily.

So, it is said that "A safe society is when it's rape free" . So, how can we define rape? Rape can be defined as:
  1. Unlawful sexual activity & usually sexual intercourse carried out forcibly or under threat of injury against a person's will or with a person who is beneath a certain age or incapable of valid concent because of mental illness, mental deficiency, intoxication, unconsciousness or deception.
  2. Rape is forced sexual intercourse, including vaginal, anal, or oral penetration, penetration may be by a body part or an object.
Rape is one of the worst crime which spoils the whole life of the victims & there are many such rape incidents which are not even reported because of the societies mind set which still curse the women's to put short dress but it was not her dress it was the evil mind. The question arises why rape cases takes place every year the answer is because of not having strict laws for the devil minds.

Rapist are nothing but monsters in human face so Hang the rapist, we want justice. The rape victims had a greater impact on their life they may suffer from depression, post - traumatic stress disorder or may contemplate suicide. So, what are your views on it what should be the laws? This type of crime is not against an individual but it is against the humanity.

This article focuses on what are the types of rapes, what are the laws & Rights of rape victims in India.

Types Of Rape

  1. Aggravated rape:

    Aggravated rape can be because of the special position of either the victim or the criminal.
    • Rape by someone having authority or control over the victim because of there legal status ( like police officer, public servant, armed forces personnel, jail staff)
    • Rape by someone who is in a position of trust with the victim ( like hospital staffs, relatives, guardians).
    • Special nature of victims.
    • Rape involving violent circumstances.
    The punishment for committing such aggravated rape is rigorous Imprisonment of between 10 years & life with fine.
  2. Crime of rape & murder:

    During a rape, if the accused injured the women so badly that she dies, or goes into a vegetative state , he can be given the death sentence or life time imprisonment.
  3. Gang rape:

    If a women is raped at the same time by a group of people, each of them will be Punished for committing the crime (section 376D IPC) . The punishment is rigorous for 20 years or life time Imprisonment.
  4. Repeat offenders:

    The law (section 376E IPC) allows the death sentence to be imposed where a person is convicted for second time for rape.

The laws for rape crimes in India

Rape & sexual crimes are considered crime under Indian law in the Indian penal code (1860) IPC. Section 375 of the Indian penal code (IPC) define rape as:
A man is said to commit rape who except in the case hereinafter excepted, has sexual intercourse with a women under circumstances falling under any of the six following descriptions.
  1. Against her will.
  2. Without her consent.
  3. 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.
  4. With her consent when the man knows that he is not her husband, & that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
  5. 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 on unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  6. With or without her consent when she is under sixteen years of age. Explanation- penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
    Criminal law (amendment) Act 2013

In 2012 the capital of India Delhi witnessed the most horrific gang rape which is referred as Nirbhaya rape case, which shook the entire nation and lead to the introduction of more tougher laws in the form of criminal amendment Act 2013.

Under the new amendment Act, of 2013 the minimum sentence of rape was altered from seven years to ten years . Furthermore, in cases which resulted in the death of the victim being left in a vegetative state, the minimum sentence has been duly increased to twenty years, However under the case cited above since one of the accused was still a minor, he had to be tried as a juvenile at that time & thus this one specific accused escaped the complete brunt of the law despite being 17 years old & just a few months shy of becoming an adult.

In order to avoid such cases in future the age for being tried as an adult for violent crimes such as rape & murder had been rightfully altered from 18 to 16.

The legislation further upheld that if children within the age of 16 to 18 undertake in activities comprising of gruesome & violent murders and rapes they deserve to be tried & punished as adults.

Sexual offences against children are defined in the pocso act 2012.

Protection of children from sexual offences Act, 2012 ( POCSO)

In order to effectively address the crimes of sexual abuse & sexual exploitation of children the ministry of women & child development introduced the POCSO Act, 2012. The Act was enacted to protect the children from sexual assault, sexual harassment, and pornography. This Act was also amended in 2019 to make provisions for enhancement of punishment for various offences to ensure safety, security & dignity of a child.

Silent features of this Act:
  1. The Act is gender neutral & regards the best interest & welfare of the child as a matter of paramount importance at every stage so as to ensure the healthy, physical, emotional, intellectual & social development of a child.
  2. It defines different forms of sexual abuse, including penetrative , non - penetrative assault as well as sexual harassment & pornography & seems a sexual assault to be aggravated under certain circumstances such as when the abused child is mentally ill or when abuse is committed by a person in a position of trust or authority vis - a vis the child, like a family member, police officer, teacher or doctor.
  3. People who traffic children for sexual purposes are also punishable under the provision relating to abetment in the act. The prescribe stringent punishment graded as per the gravity of the offences with a maximum term of rigorous imprisonment for life and fine.
  4. It defines child pornography as any visual depiction of sexually explicit conduct involving a child which include photograph , video, digital or computer generated images indistinguishable from an actual child.

Rights of a Rape victim

  1. Right to zero FIR
    The term zero FIR means that the person can file an FIR in any police station, irrespective of the place of incident of the jurisdiction. The same FIR later should be transferred to the police station having jurisdiction for the investigation to begin. For instance let us suppose if a girl got raped by someone in West Bengal & didn't tell anyone about the incident & came to Delhi.

    Now, if she wants to file an FIR against that rapist, she can directly go to any police station in Delhi & can file an FIR against the person. The same FIR will be transferred by Delhi Police to west Bengal police. This concept is known as concept of zero FIR. The concept of zero FIR came into force after the Nirbhaya case.
  2. Free medical treatment in any private hospitals
    According to section 357C of code of criminal procedure, no private or government hospitals can charge fees for the treatment of rape victims. All hospitals either private or public, shall immediately provide first aid to the victims free of cost. If any of the hospitals, demanded a fee for the treatment of rape victims, then they shall be punished under section 166B of IPC ( non - treatment of the victim) for up to 1 year & shall be liable for a fine or both.
  3. No two - finger test during the medical examination
    No doctor shall possess the right to do two finger tests while doing the medical examination. According to section 164A of the code of criminal procedure, this provision tells us how the report will be made and what things will be written under the report. The supreme Court itself supported this ruling in the case of Lillu Alias Rajesh and another vs state of Haryana and stated that two finger test and it's interpretation violates the right of rape survivors to privacy, mental integrity and dignity. Hence, it is illegal.

    The only work of doctor is to check whether there is nay injury in private parts or not? Is the rape has been committed with the victim or not? Is there any recent sexual activity happened or not? No doctor has the right to check about the past activity of the victim. Keeping this in mind.

    Ministry of Health issued a guideline under which a medico kit has been provided in every hospital to collect the DNA sample for forensic testing.

    The report shall contain:
    • Name and address
    • Age
    • Description of the material taken for the DNA Testing
    • Marks of injury (if any)
    • General mental condition
    • Other reasonable material (if any)
    A male doctor is going to do the examination ; he must take the consent for doing the same. Also he must tell what objects he used at the time of examination, what procedure he is going to follow. But, he cannot do a two finger test otherwise it will charge him for rape under section 375 of IPC for inserting an object in private part.
  4. Harassment free and time bound police investigation

    According to section 154(1) CrPC, the statement shall be recorded by a women police officer or any other officer. The officer will come as per the time decided by you or favourable to you. And they shall fix the place as per your convenience. The women officer shall record the statement in the victims presence parents or guardian.

    A magistrate shall record the statement as per sec 164(5A) the lady police officer shall take the victim in court and the statement should be recorded in the chamber of magistrate. If rape victim is dumb or mentally disable to explain the situation, then Analyzer Educator social interpretation will be present at that moment to understand the sign.
  5. Trial with full dignity, speedy and protection

    • Section 26 of CrPC states that the trial shall be practicable by the court presided over by a women. Further, no question shall be asked to victim that assassinates the character of her.
    • Section 53A of the Indian Evidence Act states any question pertaining to previous sex history is irrelevant.
    • Section 327(2) of CrPC defines the inquiry and trial of rape shall be conducted on camera.
    • Section 327(3) of CrPC states that the statement given by the victim to the magistrate shall be confidential.
    • Section 173(1A) of CrPC states that investigation shall be completed within two months from the date on which the information was recorded.
  6. Right to compensation

    A new provision has been introduced as section 357A of code of criminal procedure, which states the victim compensation scheme. The supreme Court has laid this provision down for framing a scheme for compensation with Nipun saxena vs union of India keeping this in mind, National legal service authority made the rules for compensation scheme for women victims.

Rape is one of the worst crime done by human beings, it is not against an individual but against the whole humanity. So, this type of crime must stop to make a idle society. We must change our mind sets and make our society saver for females. The rapist must be punished so that this type of crime shall not take place again and we can give a safe environment to our females and make a better society.

References: Written By: Md Janeshar Alam - 1st Year Student BA-LLB(H) - Techno India University, Kolkata

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