As a whole, the process of law is biased against the victim. If
the victim is a minor, the onus is on the accused to prove his innocence. But if
the victim is a major, it is up to her to prove her charge. Therefore, the
defence finds it worthwhile to prove that the victim is a
Also, in rape cases, unless the woman is examined medically within 24 hours, it becomes difficult forensically to prove that rape has occurred.
The laws too are discriminatory in nature. According to Section 155 (4) of Indian Evidence Act, "When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix (victim) was of generally immoral character." Section 54 of Indian Evidence Act says, "In criminal proceedings (including rape) the fact that the accused person has a bad character is irrelevant, unless evidence has been given (by him) that he has a good character, in which case it becomes relevant."
When the laws themselves carry an inherent bias, how far can the victim be assured of justice?
Rape is a weapon that distorts a woman's sexuality, restricts her freedom of movement and violates her human rights. It leaves a woman feeling exposed, humiliated and traumatised. A rapist not only violates the victim's privacy and personal integrity, but also causes serious physical and psychological damage.
The law must take a fresh look at itself and take positive steps to make it more difficult for an accused to get judicial reprieve.
Section 375 of the Indian Penal Code (IPC) defines rape. Rape
(from Latin rapio, to carry off, to overcome) means an unlawful intercourse done
by a man with a woman without her valid consent. In certain cases, when consent
is taken by fraudulent means or by misrepresentation, the act is still ûquite
rightly- taken as rape. A rapist, for instance can put a gun at his victim's
head and obtain consent. Still better, he could ask one of his goons to put a
gun on her husband's head and tell her that the gun would go off if she did not
relent. Consent could also be had fraudulently by giving her intoxicating or
stupefying substances ( Cannabis is just one of the many stupefying drugs which
can be given to achieve this). Another way of getting consent by fraudulent
means is by impersonation. A rapist may slip into the bed of an unsuspecting
woman in the thick of night, when the woman, taking him to be her husband not
only does not resist, but actively participates in the act. These cases are rare
but do occur occasionally. Finally the consent of a woman of unsound mind and of
a girl below 16 are not taken to be lawful consent because it is presumed that
these women are not in a position to truly understand the nature and gravity of
This was the position before 1983 and on the face of it the provisions sound fair enough. Yet Ganpat managed to wriggle out of the legal consequences of his act. If a police officer apprehends a person illegally and insists he will not free the man until his wife submits to the officer, how can one prove rape if she does so? No person in his right mind would imagine that such an act was not rape, yet the law would not recognize it so before 1983. The women had to prove she had not consented. The rapist was considered innocent unless proved otherwise.
The change in rape laws in 1983 improved the situation to a great extent. Among other things, the punishment for rape was made more severe. Before, the punishment prescribed under Section 376 of the IPC provided for a maximum sentence of life imprisonment but there was no minimum limit. Thus, in theory a rapist could get away with a sentence of say, just one month.
In 1983 although the legislature failed to increase the maximum sentence to capital punishment as was vehemently demanded by women's organizations, it prescribed a minimum sentence of seven years' imprisonment. Every rapist on being found guilty thereafter bad to undergo a minimum imprisonment of seven years. Besides, an important provision - Section 376(2) - was added to the IPC. This section introduced the concept of some special kinds of rape and prescribed a minimum of ten years for these cases. Furthermore, in such cases, the imprisonment had to be of a rigorous nature only. These included rape by a police officer within the premises of a police station; rape by a public servant of his junior while taking advantage of his official position; rape by an official in a jail or remand home of an inmate; rape by someone on the staff of a hospital of a woman in the hospital; rape of a pregnant women; rape of a, girl under 12 years of age end gang rape.
Rape by persons who are in a position of authority e.g. police officers, jail wardens, hospital staff etc., is generally termed custodial rape. Gang rape is a situation when a woman is raped by one or more than one person from amongst a group of persons acting in furtherance of their common intention. The important thing is that in such situations each of the persons within the group will be deemed to have raped the women even if each one of them did not actually have sexual intercourse with her. Thus if five men catch hold of a woman and only one ravishes her in order to, for instance, humiliate her husband because of some old vendetta, all the five men will be imprisoned for a minimum of ten years.
It is very difficult for the victim to prove absence of consent especially in cases of custodial rape, so a special section was added to the Indian Evidence Act (IEA). According to the new provision - Section 114A of the IEA - in cases of custodial rape, gang rape and rape of a pregnant woman, if the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shell shift to the accused. This was a major reform in the law.
The legislature did not stop at this. There can be cases when a person in authority can get a women to have intercourse with him "willingly" by offering handsome rewards in return. A superintendent of a jail can offer better living conditions to a woman prisoner if she "willingly" submits to him. Such cases will not amount to rape; nevertheless they do signify abuse of official position. For such cases four special provisions - 376A, 376B, 376C and 376D - were added to the IPC and a, punishment of five years' imprisonment provided. In effect, if a person in authority has had sexual intercourse with a women in his custody, he will firstly have to prove that the women in question had c6nsented. If he can't prove this he will be guilty of custodial rape and shell have to undergo a minimum rigorous imprisonment often years. Secondly, even if he is able to prove that the women did consent, he may not be charged with custodial rape yet he can be imprisoned for five years under Sections 376B, 376C and 376D.
It would seem that enough changes have been made in the rape laws to bring if on per with that of Western countries. However, there are still some glaring deficiencies. For one thing, the law does not provide for separate and speedy trials for heinous crimes such as child rape. The definition of rape too is finite restrictive. For raping a women, penile penetration must be proved. One can ravish a women equally or much more violently by shoving, for example, an iron rod into her private parts. Yet such a man would not be held guilty of rape. Several such cases have indeed come to light.
But the worst thing is the continued existence of Section 155(4) of the IEA, which provides that when amen is prosecuted for rape and if is shown that the woman in question is of immoral character then her evidence will not be taken into account. It may be argued that this provision offers protection to the accused against false allegations of a women whose character is suspect. Yet consider Section 54 of the same Act. Among other things it says that in cases of rape, the fact that the accused person is a bad character is irrelevant. In effect, for the purpose of proving that a men did rape the prosecutrix, it is irrelevant to show that he has a bed character. If the bad character of the prosecutrix is considered in cases of rape, why not the bad character of the accused too?
In fact, it can be argued that these provisions are unconstitutional as they contravene the equality clause under Article 14 of the Indian Constitution. Is it not highly unfair to apply different standards to the accused and the complainant only in rape cases?