Institute of Law, Nirma University

Laws in Changing Society

RAPE LAWS IN INDIA: PROBLEMS IN

PROSECUTION DUE TO LOOPHOLES IN
THE LAW

Submitted to: Submitted by:

Dr. N. Bangkim Singh Aayush Kothari

Asst. Prof. 14BAL093
ILNU, Ahmedabad. Semester - IV
 INTRODUCTION

Rapes are not only widespread in India but it is also pervasive and ever-growing. It is the
time to deliberate on the issue and understand where we lack in the socio-legal fight against
this heinous crime. This paper tries to unravel the gulf between rape laws and the reality
through an analytical approach. It takes a historical approach to rape laws while tracing their
gradual development. Presently the offence of rape has a punishment of seven years which
might extent to 10 years. If section 375 of the Indian Penal Code is taken into consideration
we see that the offence of rape materializes only when there is sexual intercourse between
man and a woman. The offence does not include penetration of any other object or finger into
the vagina or the mouth. It is also very problematic that the Juvenile Justice Act provides
partial escape to juveniles with respect to the offence. Even in cases in which they are found
to be clearly guilty they are not given adequate punishment. The registration of the complaint
becomes another uphill task due to major loopholes in the system. Moreover even when the
complaint is successfully registered the further inquiry into the case is another embarrassment
for the victim and a blot on the face of the law enforcing agencies. All this in the face of data
that shows more than 50% of the cases go unreported because the publicity of the offence
might hinder marriage prospects of the girl and also lead to public humiliation of the family
as a whole. Rape laws have to be amended so as to meet the overwhelming demand of the
public for stricter punishments and loopholes in the present system. The realization that rape
is not only a law and order problem but also a social and cultural problem has to be
developed.
 RAPE

Definition of Rape

The word “rape” which means a “forcible seizure; an intercourse with a woman without her
consent or with her consent obtained through fraud” originates from the Latin term “Rapere”
meaning “to seize” or “to take by force”. Rape forms that category of offences which affect
the human body.1

According to Indian Penal Code,

Section 375 “Rape A person is said to commit “rape” who, except case hereinafter excepted,
has sexual intercourse with another person in circumstances falling under any of the
following six descriptions :-

“Firstly – 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 the under in fear of death or of hurt

Fourthly – With the consent, when 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 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.

1
Dr Surinder Mediratta, Crimes against woman and the law,2010
The above definition excluded martial rape, same sex crimes and considered all sex with a
minor below the age of fifteen as rape.”2

“Essentials Ingredients of ‘Rape’

i. There has to necessarily be intercourse between a man and a woman.

ii. The intercourse should satisfy either one of the situations enlisted and elucidated
above.
iii. It is important to note however that for the commencement of the offence of rape
complete penetration is not a condition. Even when the penetration is partial rape is
said to be committed.”3

The landmark case of Sakshi v. Union of India 4 elucidates the initial and present state of laws
regarding rape.

It was observed by the apex court that section 375 of the Indian penal code does not define
clearly the word “sexual intercourse”. It was meticulously explained by the Supreme Court
that the word “sexual intercourse” would be interpreted to include –

1. Penile/vaginal penetration.
2. Penile/anal penetration.
3. Finger/vaginal penetration.
4. Object/vaginal penetration.

This could have been a major shift in the jurisprudence regarding rape in India. This kind of
liberal interpretation could have. not only increased the ambit and scope of the section but
also could have increased the burden on the defence to prove the innocence of the accused.

However, the court took a dismal direction by considering only penile/vaginal penetration.
for the purpose of the offence under section 375. The court in its squeamish attitude opened
that increasing the ambit of section 375 to include all kinds of penetrations. would go on and
increase the punishments of the previous convicts and this would be a violation of their
fundamental right under Article 20 of the constitution. A cautious reading of Article 20 (1)
led to such a overly cautious interpretation of section 375 of IPC.

2
Id.
3
CRIMINAL MANUAL
4
AIR 2004 SC 3566
It was further observed. that other kinds of penetrations would be covered under the category
of offences called “unnatural offences”. which are encapsulated under Sec 377 of IPC. The
court opined that such offences could not be put. under the head of rape because that would
make section 375 all-encompassing. This was rather a disappointing judgment that could
have changed. the course of rape laws had it been taken a little more enthusiastically.
 RAPE LAWS IN INDIA

1. Section 376 of Indian Penal Code – Punishment for Rape.5

2. Section 228A of Indian Penal Code – sections relating to non disclosure of the
identity of the victim.6
3. Section 114A of Indian Evidence Act –presumption of an absence of consent on the
part of the victim for sexual intercourse in the instance of rape charge.7
4. Section 53(1) of Code of Criminal Procedure – “When a person is arrested on charge
of committing an offence of such a nature and alleged to have been committed under
such circumstances that. there are reasonable. grounds for believing that an
examination. of this person will afford evidence as to the commission of the offence,
it shall be lawful for a registered medical practitioner, acting at the request of a police
officer not below the rank. of sub-inspector, and for any person acting in good faith
and under his direction, to make such an examination of the. person arrested as is
reasonably necessary in order to ascertain the facts which may afford such evidence,
and to use such force as is reasonably for that purpose.”8
5. Section 164A of Code of Criminal Procedure – “Recording of Confessions and
statements, provision for medical examination. of rape victim is given.”9
6. Section 327(2) of Code of Criminal Procedure – Courts to remain open for the
purpose of inquiring and in camera trial of all the rape victims.10

5
Section 376 of Indian Penal Code
6
Section 228A of Indian Penal Code
7
Section 114A of Indian Evidence Act
8
Section 53(1) of Code of Criminal Procedure
9
Section 164A of Code of Criminal Procedure
10
Section 327(2) of Code of Criminal Procedure
 PRESENT CONDITION IN INDIA

Looking at the present condition of rape laws in India we can be sure of only one thing that
the laws are not being implemented the way they ought to be implemented. A very literal
interpretation of the laws has been adopted and nourished continuously. There are
innumerable loopholes in the laws regarding rape that need to be addressed and rectified by
the responsible agencies. The high time has already passed long back. Today is the time to
respond to the emergency that has been long overlooked.

The main points of concern are –

1. Presumption of innocence –
It is an established understanding that the presumption of innocence is in the favour of
the accused till he is proven guilty. Also the law leaves a major bone of contention by
giving the accused the right to remain silent. This leaves no scope for asking difficult
questions to the accused during cross examination. It is therefore the victim who has
to face humiliation in the hands of the defence lawyer and answer embarrassing
questions. This is how rape laws in India are lopsided in the favour of the accused.

2. Right to appeal of the convicted –

However important the right to appeal might be it makes things easier for the accused
who can always go to a higher court to appeal against his conviction or sentence. 11
This is the main reason why unwarranted delay is caused in the conviction of the
accused.

Presently in India we can say that the laws might not always be that moderate but the
problem is that their implementation is not at par with the present conditions. The need of the
hour is in favour of more stringent punishments to increase the deterrent effect of the laws.
The phrase “JUSTICE DELAYED IS JUSTICE DENIED” is personified in the Indian
scenario. The slow proceedings and the cumbersome process makes justice not only difficult
to achieve but also difficult to imagine.

11
http://www.brissc.org.au/resources/for/for_7.html
One inevitable aspect of anything in India is corruption and it is quite evident that the sin of
corruption has not left this sphere untouched. The use of money power is not new to turn the
tables in favour of the defence. Both judiciary and the police are infected by the disease.
However more depressing is the fact that money is also used to coerce the victim to withdraw
the allegations or in favour of wrong confessions. It is also very shocking to think that out of
court settlements are also entered into in rape cases.
 LOOPHOLES IN THE LAW

1. The most prominent loophole is that the any forced penetration that does not include
penile-vaginal penetration is not covered under section 375 of Indian Penal code. It is
surprising to note that where penetration does not fully happen in such cases even
forced intercourse is not considered rape rather it is dealt with in a different section
under IPC, i.e., Section 354 which is considered less grave. The offence under 354 is
bailable and the punishment too is less than that for rape.

2. Another issue is regarding the identity of the victim. The identity of the victim is still
not fully secured. This is because section 228A still stands unamended. It is more
surprising that even after case like Sakshi vs. UOI such a situation still prevails. This
allows the victim’s identity to be exposed to media and to the public at large. Because
of this women have to face undue stigmatization.

3. The most prominent loophole is the delay which is faced by the victim from the stage
of filing an F.I.R. to the police inquiry and more crucially in the courts. The victim
has to face continuous mental trauma at each stage of the process. The other problem
is that the criminal laws provide many narrow escape routes to the accused.
 SOCIOLOGICAL PERSPECTIVE ON RAPE

Now if we dissect the offence of rape sociologically it is seen that more than the physical and
emotional trauma the victim has to face problems that can best be explained sociologically –

1. Constant labelling and stigmatization –

Due to the conservative nature of the Indian society and populace the rape victim’s life
becomes very difficult. She has to face nasty labelling and deal with the all the by-
products of the backwardness of the Indian society.

2. Rape as crime against the honour of the woman –

The conception that rape is a crime against the honour of the woman goes a long way in
further weakening the social standing of the victim. It is important to understand that
nothing can really take away the honour of any woman.

3. The child born out of rapes –

Many a times it is quite late when the victim realises that she is pregnant after the
occurrence of rape. Sometimes the foetus crosses the legal age of being aborted. In such
cases along with the added trauma to the mother the child has to face stigma throughout
his life. Also research suggests that such children have low IQ and also low self esteem.

4. The need to increase social awareness –

There is an ardent need to increase the education and awareness related to rape laws and
steps to be taken after being victimitised by the offender. Also awareness has to be
inculcated in india as to the lack of sensitivity towards the victim and her family.
 CONDUCT OF THE VICTIM

In the Indian Criminal Justice System, to distinguish the event of Rape, the victim needs to
experience different medicinal examinations including mental, physical and biological.
Firstly the issue is that a number of the administration doctor's facilities specialists, especially
in provincial territories where clinics are very few and that too at distant places, decline to
lead any examination of the victim unless the instance of rape is alluded by police to direct
the examination. Such a postponement in medical examination ends up being the reason for
deferral in a definitive examination furthermore in the outcomes. Looking by the point of
view of the victim, she needs to assemble such a great amount of boldness to go to a doctor
for having the examination and the specialist denies on the face that I won't do the
examination, simply see what happens to the victim she is as of now under weight and this
sort of conduct is finished with her.

The court is somewhere else where rape is done over and over of the distressed victim. This
is on account of trash inquiries, even not remembering that she is as of now experiencing
mental injury, paying little mind to that consecutive embarrassing questions are asked.
Numerous times she is asked to portray the entire scene of the crime, what can be all the
more discouraging to a victim to review all of what she needs to overlook and describe in
front of everyone.

Presently seeing at the medical examination she needs to experience is truly woeful and a
disgrace to the constitutional point of view as in these examination her right to privacy is
additionally at risk as the privilege is disregarded while having the examination. The test
which is done is disgraceful yet paying little heed to halting it even after court decision
regarding the same. The test is the two finger test.12

12
Supra 1
 CONCLUSION

The laws in India need improvements with context to the offence of rape. The paper has tried
to raise few very important points which need to be addressed urgently. There is a dire need
to change the definition of rape to include all kinds of penetrations and not only penile
vaginal penetration. Sensitivity has to be developed in the courtrooms towards the victim, as
the procedure in the court room is like again raping the victim by words, the lawyer is so
harsh on the victim as he/she says to narrate the whole situation openly in the court about
what happened, this is so bad and the procedure needs to be changed. There are some blatant
absurdities in the medical inquiries also that need to be done away with, the procedure that is
used to examine the rape victim is against the dignity of a women and needs to be changed.
Main changes that are needed so as to support the other changes is the change in the society
and the thinking of the society. There should be guidelines provided to authority so as to
direct them how to behave with the rape victim and if not adhered to them they will be
charged for the non-compliance. There is a urgent need to address the point that the society
labels the victim of rape as other, they treat them as a spot on their society which makes it
difficult for the victim to live a peaceful and a better life as she also suffers the taunt that are
being passed by the society. She is sodomised by the society in different ways. The narrow
minded thinking of the society needs to be changed by making them aware so social
awareness regarding the society should be taught to them. Sometimes when there is a child
born out of a rape victim then the government should support the victim and the child also in
leading a healthy life. The victim should be supported by the government in finding the
accused. The society should be taught that the victim is also a part of the society only as she
did not willingly had her rape, she was subjected to it. Rather than treating her badly you
should support her in leading a normal and peaceful life and also supporting her by helping
her in finding the accused and also telling her that if you tell and file a FIR, then the accused
can be find out and justice will be served to you. Justice, after all should be delivered in
practice rather than in theory.