Rape (Section 375 of the I.P.C)

" While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female." - Justice Arijit Pasayat, Supreme Court, India "When a woman is ravished, what is inflicted is not mere physical injury but the deep sense of some deathless shame… judicial response to Human Rights cannot be blunted by legal bigotry."-Justice Krishnaier, Supreme Court, India

Definition

s.375 of the Indian Penal Code, 1860, defines rape thus:
375. Rape
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.
Explanation- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Punishment:

Rape is punishable under s.376, of the Indian Penal Code, which runs thus:
376. Punishment for rape

Whoever, except in the cases provided for by subsection (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.
Whoever,-

being a police officer commits rape-
within the limits of the police station to which he is appointed; or
in the premises of any station house whether or not situated in the police station to which he is appointed; or
on a woman in his custody or in the custody of a police officer subordinate to him; or

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
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
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
commits rape on a woman knowing her to be pregnant; or
commits rape on a woman when she is under twelve years of age; or
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.

Explanation 1 - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.
Explanation 2 - "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children.
Explanation 3 - "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring, medical attention or rehabilitation.

Criminal Law Amendment Act, 1983:

The Criminal Law Amendment Act has substantially changed Sections.375 and 376 of the IPC. Several new sections have been introduced therein- viz. Sections. 376(A), 376(B), 376(C), 376(D) of the IPC.

Section. 376(A) punishes sexual intercourse with wife without her consent by a judicially separated husband.

Section. 376(B) punishes for sexual intercourse by a public servant with a woman in custody.

Section. 376(C) punishes sexual intercourse by superintendent of jail, remand house, etc. whereas,

Section. 376(D) punishes sexual intercourse by any member of the management or staff of a hospital with any woman in that hospital.

These new sections have been introduced with a view to stop sexual abuse of women in custody, care and control by various persons- which though not amounting to rape were nevertheless considered highly reprehensible.

The Judiciary’s say:

India seems to have a dearth of laws on social issues, and needless to say, Rape is one among these social issues, desperately in need of a law, to punish the perpetrators of the heinous crime. However, the Judiciary has not allowed much room for any one to go scot free, by laying down guidelines and regulations in certain cases, to awarding compensation to the victims (albeit hardly any comfort and consolation to the victim, after such a disastrous crime being committed), and from imprisoning, to awarding death penalties to offenders.

Since India follows the rule of stare decisis, simply put, that the decision of a Higher Court binds a lower court in its own decisions, these guidelines and regulations play a rather important rule, particularly since there is no law to aid the victims of rape. Article 21, of the Indian Constitution, which ensures to every individual, a right to life and personal liberty, has been subject to wide interpretation. The word ‘life’ has been expanded enough to include the modesty and honour of a woman within its gamut. Thus, any act in contravention of this implication is to be met with penal consequences. The most important cases, with a brief version of the facts and decisions are herein elaborated:

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Vishaka v. State of Rajasthan:

It was in 1997 in Vishaka Vs. State of Rajasthan and others, that for the first time sexual harassment had been explicitly- legally defined as an unwelcome sexual gesture or behaviour whether directly or indirectly as

Sexually coloured remarks
Physical contact and advances
Showing pornography
A demand or request for sexual favours
Any other unwelcome physical, verbal/non-verbal conduct being sexual in nature.

It was in this landmark case that the sexual harassment was identified as a separate illegal behaviour. The critical factor in sexual harassment is the unwelcome nature of the behaviour. Thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator- which is to be considered.

In the abovementioned case, the judgment was delivered by J.S.Verma. CJ, on behalf of Sujata Manohar and B.N.Kirpal, JJ., on a writ petition filed by ‘Vihska’- a non Governmental organization working for gender equality by way of PIL seeking enforcement of fundamental rights of working women under Article.21 of the Constitution.

The immediate cause for filing the petition was the alleged brutal gang rape of a social worker of Rajasthan. The Supreme Court in absence of any enacted law (which still remains absent- save the Supreme Court guidelines as stated hereunder) to provide for effective enforcement of basic human rights of gender equality and guarantee against sexual harassement, laid down the following guidelines:

All the employers in charge of work place whether in the public or the private sector, should take appropriate steps to prevent sexual harassement without prejudice to the generality of his obligation, he should take the following steps:

Express prohibition of sexual harassment which includes physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornographic or any other unwelcome physical, verbal/ non-verbal conduct of sexual nature should be noticed, published and circulated in appropriate ways.
The rules and regulations of government and public sector bodies relating to conduct and discipline should include rules prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
As regards private employers, steps should be taken to include the aforesaid prohibitions in the Standing Orders under the Industrial Employment (Standing Orders) Act, 1946.
Appropriate work conditions should be provided in respect of work leisure, health, hygiene- to further ensure that there is no hostile environment towards women and no woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

Where such conduct amounts to specific offences under the Indian Penal Code or any other law the employer shall initiate appropriate action in accordance with the law, by making a complaint with the appropriate authority.
Victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer. As stated by the Supreme Court, these guidelines are applicable to:

The employer or other responsible persons or other institutions to prevent sexual harassment and to provide procedures for the resolution of complaints;
Women who either draw a regular salary, receive an honorarium, or work in a voluntary capacity- in the government, private or organized sector come under the purview of these guidelines.

Preventive Steps:

Express prohibition of sexual harassment should be notified and circulated.
Inclusion of prohibition of sexual harassment in the rules and regulations of government and public sector.
Inclusion of prohibition of sexual harassment in the standing orders under the Industrial Employment (Standing Orders) Act, 1946 by the private employers.
Provision should be made for appropriate work conditions for women.

Procedure pertaining to filing of complaints:

Employers must provide a Complaints Committee which is to be headed by a woman; of which half members should be women.
Complaints Committee should also include an NGO or other organization- which is familiar with sexual harassment.
Complaints procedure should be time bound.
Confidentiality of the complaints procedure has to be maintained.
Complainant or witnesses should not be victimized Or discriminated against- while dealing with complaints.
The Committee should make an annual report to the concerned Government department and also inform of the action (if any) taken so far by them.

Miscellaneous Provisions:

Guidelines should be prominently notified to create awareness as regards the rights of the female employees.
The employers should assist the persons affected, in cases of sexual harassment by outsiders or third parties.
Sexual harassment should be discussed at worker’s meetings, employer-employee meetings and at other appropriate forums.
Both Central and State governments are required to adopt measures including legislations to insure that private employers also observe these guidelines.

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Chairman, Railway Board v. Chandrima Das

In this case, a practicing Advocate of the Calcutta High Court filed a petition under Article.226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon)- a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation. An appeal was preferred and it was contended by the state that:

The railway was not liable to pay the compensation to the victim for she was a foreigner.
That the remedy for compensation lies in the domain of private law and not public law. i.e. that the victim should have approached the Civil Court for seeking damages; and should have not come to the High Court under Article.226.

Considering the above said contentions, the Supreme Court observed:

"Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would be avoidable under public law. It was more so, when it was not a mere violation of any ordinary right, but the violation of fundamental rights was involved- as the petitioner was a victim of rape, which a violation of fundamental right of every person guaranteed under Article.21 of the Constitution."

The Supreme Court also held that the relief can be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the ‘Moral Code of Conduct’- adopted by the General Assembly of the United Nations.

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Rafique’s case

Rape laws in order to be of great deterrence, must have a cooperative victim, professional investigation, diligent prosecution; and an expeditious trial. For otherwise it shall not be the law, that fails, but the applicants, the process and application. Failure of law reflects the failure of the society to protect and serve humanity. In view of the above, the Supreme Court has laid down the following guidelines for the trial of rape cases14:

The complaints of sexual assault cases should be provided with legal representation. Such a person should be well acquainted. The Advocates role should not merely be of explaining to the victim the nature of the proceedings, to prepare for the case and assist her, but to provide her with guidance as to how she might obtain help of a different nature from other agencies- for e.g. psychiatric consultation or medical assistance.
Legal assistance should be provided at the police Station, since the victim may be in a distressed state. Guidance and support of a lawyer at this stage would be of great help.
The police should be under a duty to inform the victim of her right to a counsel before being interrogated.
A list of lawyers willing to act in these cases should be kept at the police station.
Advocates shall be appointed by the Court on an application by the police at the earliest, but in order that the victim is not questioned without one, the Advocate shall be authorized to act at the police Station before leave of the Court is sought or obtained.
In all rape trials, anonymity of the victim must be maintained
It is necessary to setup Criminal Injuries Compensation Board with regard to the Directive Principles contained under Article 38(1) of the Constitution of India. As some victims also incur Substantial losses.
Compensation for the victims shall be awarded by the Court on the conviction of the offender and by the Criminal Injuries Compensation Board- whether or not a conviction has taken place. The Board will take into account pain, suffering, shock as well as loss of earnings due to pregnancy and child birth if this accrued as a result of rape.

Dhananjoy Chatterjee’s case

This was probably the ONLY case in India, where a death sentence was awarded for rape. On March 5, 1990, Dhananjay Chatterjee brutally rapes Hetal Parekh, a schoolgirl from Kolkata, and was sentenced to Death by the Alipore Sessions Court in 1991. [Only a sessions court has the authority to award a death sentence, all other courts can either affirm or negate it, but NOT award it on its own]. Dhananjay’s challenge of the order in the High Court failed, as his plea was dismissed. The Supreme Court also dismissed his petition, and awarded the Death Penalty, which was later affirmed by the President.

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