Theoretical overview
Rape is defined under section 375 of Indian penal code, 1860. The old provision of rape only contained penile or vaginal penetration as rape but with leading case laws, the court acknowledged that it should include all kinds of possible penetration and not just penile or vaginal penetration under definition of rape. The court did not change the definition but said that this is a serious issue, and the parliament should address this problem. With this view, parliament has widened the definition of rape.
As per section 375 of Indian penal code A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: –
First – Against her will.
Secondly – Without her consent.
Thirdly – 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.
Fourthly – With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly – 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 or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly – With or without her consent, when she is under sixteen years of age
It is to be noted that a medical procedure or intervention shall not constitute rape. Only a man can commit rape and even consensual sex with a girl below 18 years of age is considered as rape. When women is not able to communicate consent it is regarded as rape as well. Consent could be my words gesture or any form of verbal and nonverbal communication but if a woman does not resist to the act of the penetration, that does not mean that she is consenting to the sex. Also, all conditions of a valid consent are applicable as per section 90 of Indian penal code that should not be forced or taken by fear or under any mistake of fact.
The role of will and consent in the offence of rape
Rape is committed against the will of the girl and without her consent. Act done against her will is wider than the act done against her consent as act done against someone’s will is always without their consent but vice versa it cannot be possible.
Section 376 of Indian penal code defines punishment for rape which is rigorous imprisonment of 10 years which can extend up to life imprisonment. Also, rape of a woman under 16 years of age is regarded as more heinous offence and the punishment for the same is rigorous imprisonment for 20 years which can extend up to life imprisonment.
Different criminal amendments regarding the offence of rape.
- Major changes in the content of rape through the criminal law amendment act 1983 – the burden of proof of consent lies on the accused. Custodial rape was put in the purview of rape under articles 376(2). Section 376A – 376d were added. Disclosing identity of the victim was made punishable in the view of newly added section 228a in IPC.
- Changes by criminal law amendment act 2013 – certain recommendations were given which were the increment in the punishment for rape, increment in the punishment for other sexual offences like voyeurism and acid attack. Provisions for registering complaints of rape.
- Criminal law amendment ordinance 2018 – Specially for the rape of minor girls below 16 and 12 years of age minimum punishment of rape was increased from 7 to 10 years. Gangrape of a girl below 16 years can make a man liable for life imprisonment for rest of his life. Punishment for rape of a girl below 12 years was increased to minimum 20 years and up to death penalty. Provisions for speedy investigation and trial were made
Section 377 of Indian penal code defines carnal intercourse against order of nature with man or woman or animal an offence for which a person can be held liable for imprisonment for life which can extend up to 10 years and fine.
But with the leading case law of naz foundation vs. government of national capital territory of Delhi 2009, article 377 was struck down as it is violative of article 14, 15 and 21 of Indian constitution. Now this offence is no more an offence.
Relevant sections/articles
Section 375 – A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: –
First – Against her will.
Secondly – Without her consent.
Thirdly – 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.
Fourthly – With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly – 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 or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly – With or without her consent, when she is under sixteen years of age
376. Punishment for rape –
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever –
(a) being a police officer commits rape –
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years
377. Unnatural offences – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Article 15 of constitution – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public
(3) Nothing in this article shall prevent the State from making any special provision for women and children
(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Important case laws
Tukaram vs. State of Maharashtra (1979) – also known as Mathura bai rape case. It was the case of custodial rape where the accused plead that the tribal, women who was the victim, was habitual of sex and showed no resistance. This led to the criminal law amendment act of 1983.
Nirbhaya case (2012) – it is also known as the Delhi gang rape case. It lead to the criminal law amendment act of 2013 also known as Nirbhaya act or the anti-rape act which was based on the Justice Verma committee.
State of Punjab v. Gurmit Singh (1996) – The girl in this case was in 10th grade, and her final examinations were underway. She was returning home after her exam when she was kidnapped by the accusers in a van. They took her to a kothi belonging to one of them, she was forced to drink alcohol, and then all three of them raped her. She was told that if she did not comply or raise an alert, she would be killed. The Court found the three of them guilty of rape under Section 376 of the Indian Penal Code since she did not readily consent to the act. The Supreme Court also established a set of guidelines for the trial of rape cases, ensuring protection and a sense of confidence to the rape victims.
Points to remember
- Rape is defined under section 375 of Indian penal code, 1860. The old provision of rape only contained penile or vaginal penetration as rape but with leading case laws, the court acknowledged that it should include all kinds of possible penetration and not just penile or vaginal penetration under definition of rape
- It is to be noted that a medical procedure or intervention shall not constitute rape
- Rape is committed against the will of the girl and without her consent
- Section 376 of Indian penal code defines punishment for rape which is rigorous imprisonment of 10 years which can extend up to life imprisonment. Also, rape of a woman under 16 years of age is regarded as more heinous offence and the punishment for the same is rigorous imprisonment for 20 years which can extend up to life imprisonment.
- Section 377 of Indian penal code defines carnal intercourse against order of nature with man or woman or animal an offence for which a person can be held liable for imprisonment for life which can extend up to 10 years and fine.
