Controlling women's sexuality: rape law in India
Controlling women's sexuality: rape law in India
Abstract and Keywords
This chapter will address the long-standing conflicting relationship between Indian feminists and the legal system. Rape continues to be a serious issue for Indian women. In India as in other parts of the world, the question of rape is linked to women's ‘status’ within society. As the author has argued elsewhere, it is difficult to measure the ‘status of women’, especially in the context of a large and diverse country such as India.
Indian feminist movements have recognised rape as a form of male oppression and control over women since the 1970s. However, the Indian legal system prefers to see it as an issue of loss of honour of the raped woman. This chapter will address the long-standing conflicting relationship between Indian feminists and the legal system.
… when a woman is ravished, what is inflicted is not merely physical injury, but the deepest sense of some deathless shame…. (Justice Iyer, State of Maharasthra v Chandraprakash Kewalchand Jain, 1990)
Rape is linked with power, that is, the power that men enjoyed in society.… Rape brings out, and enlarges opposition between the sexes nakedly, unlike other forms of gender based oppression, such as lower wages for women. Rape, and the fear of rape therefore is an instrument for terrorising and paralysing women, contributing to a low sense of self worth. (Gothoskar, 1980)
The national context in relation to rape
Rape continues to be a serious issue for Indian women. The latest crime statistics released by the Home Ministry's National Crime Records Bureau (NCRB, 2007) show that every hour 18 women become victims of rape. The number of reported rapes a day has increased nearly by 700% since 1971, when such cases were first recorded by the NCRB. It has grown from seven cases a day to 53. In general, violent crimes showed a decline of 16% between 1971 and 2006, but rape cases increased by 678%. The rape conviction rate in 2007 was 26.4%, which is in the same range as some other violent crimes, including (p.102) kidnapping, armed robbery and arson, but lower than conviction rates for others including dowry-related homicides, robbery and murder.
In India as in other parts of the world, the question of rape is linked to women's ‘status’ within society. As the author has argued elsewhere, it is difficult to measure the ‘status of women’, especially in the context of a large and diverse country such as India (Gangoli, 2007), but it can be noted that Indian women do possess a number of legal rights. These include certain fundamental rights incorporated in the Indian constitution such as equality under the law for men and women (article 14), equal accessibility to public spaces (article 15), equal opportunity in matters of public employment (article 16) and equal pay for equal work (article 39). In addition, there are statutory provisions that guarantee these rights, such as the 1976 Equal Remuneration Act and the 1976 Maternity Benefit Act. There are also a number of legal provisions criminalising dowry1, such as the 1961 Dowry Prohibition Act, and domestic violence. Women also have rights to property under personal laws (Kishwar, 1994).
In spite of these rights, women's position in Indian society is highly variable, and depends to a large extent on class and caste. While some Indian women have attained prestigious posts in the judiciary, education, politics, IT, medicine and a myriad of other fields, they are mainly upper-caste, upper-class women, and many of the benefits they enjoy are denied to the majority of women in the country. The mean age at marriage for females is 18 years while for males it is 22.6 years. However, more than half (51%) of illiterate females currently married were below the legal age at marriage, that is, 18. Nearly 20% of the 1.5 million girls married under the age of 15 years were already mothers (Census of India, 2001). Most women have limited control over various aspects of their lives including visiting their natal family, making healthcare provisions and making expensive purchases. National data also reveals that domestic violence is endemic (Kishor and Gupta 2004), as are dowry demands at marriage and son preference (Sunder Rajan 2003), leading to female infanticide, sex pre-selection and the abortion of female foetuses.
Further, there is some evidence that globalisation since the early 1990s has exacerbated class divisions and contributed to increasing poverty. Structural factors such as caste, community and class status can contribute to sexual violence, and affect women's ability to access the criminal justice system. Women from working-class, minority or lower-caste Dalit groups are particularly vulnerable to sexual violence, and this can sometimes be in the context of riot or conflict situations. For example, Dalit women from lower castes in some parts of the (p.103) country are very vulnerable to sexual violence from upper-caste men (NCRB, 2007). A study conducted by People's Union for Democratic Rights (PUDR), a Delhi-based civil liberties group, looked at 10 cases of rape by police personnel and revealed that in most cases, the victim was a working-class woman. In almost all cases, the accused was acquitted; some have been reinstated in their old posts (PUDR, 1994). Communalisation and the social and economic marginalisation of Muslims in post-independence India has resulted in sexual assaults perpetrated on Muslim women, as was apparent in the anti-Muslim riots in Gujarat in 2002 (Hameed et al, 2002).
As Susan Brownmiller (1975) has persuasively argued, women's fear of rape can prevent them from participating in public life, even though rape and sexual assault is not confined to the public domain. This is further complicated in the Indian context by constructions of the ideal woman as sexless, or one whose sexuality is confined within marriage. Within this context, non-marital sex, whether coercive or voluntary, is considered problematic for women and is seen as potentially shameful for the community or family. Thus rape is experienced as something more than violence against individual women; members of the communities of both the perpetrators (Hindus) and the victims (Muslims) experience the rape of minority women as symbolic dishonour of the community. In the case of the Gujarat riots, it has also been persuasively argued that the nature of violence against minority women – stripping, beating, throwing acid, raping, burning, killing pregnant women, and killing children before their parents' eyes – went beyond collective dishonouring. It was meant to destroy or punish the fertile Muslim female body and to destroy future generations (Sarkar, 2002).
Defining rape: existing laws and policies
In India, rape is legally defined as penile penetration into the vagina, which makes it a gender-specific crime, where only men can be perpetrators and only women can be victims of rape. The rape law was first enacted in 1860 as a part of the Indian Penal Code (IPC), which was partly amended in 1983. However, the definition of rape continues to remain the same as when it was first introduced in 1860, and under s 375, the IPC states that a man is said to commit the offence of rape if he has sexual intercourse with a woman in the following circumstances2:
• against the victim's will;
• without the victim's consent;
• with her consent, when the man knows that he is not her husband;
• with her consent, when at the time of giving such consent she was intoxicated, or suffering from unsoundness of mind and unable to understand the nature and consequences of that to which she has given consent;
• with or without her consent when she is under 16 years of age.
Three cases in the late 1970s and early 1980s created a public debate around the issue of rape, and fed into the newly emerging feminist movement in India. This movement created a nationwide campaign on the issue of rape, which led to amendments to the rape law in 1983.
The first case was that of Rameezabee, a Muslim working-class woman from Hyderabad. In April 1978, she and her husband were arrested by the police for ‘loitering’ when they were returning from a late-night visit to the cinema. The police demanded a fine. The husband went home to bring the money. During his absence, Rameezabee was raped by three policemen. When the husband returned, he was beaten to death by the police. Rameezabee was prosecuted for enticing minor (p.105) girls into prostitution. She was convicted on this charge, and was subsequently released on probation for a year (Farooqi, 1984).
The second case was that of Mathura, a tribal agricultural labourer from Maharashtra, aged around 14–16 years. She developed a relationship with Ashok, the cousin of Nushi, her employer. Ashok and Mathura decided to get married. On 26 March 1972, her brother, Gama, complained to the local police that Mathura had been kidnapped by Nushi and Ashok. Nushi, Ashok, Mathura and Gama were brought to the police station for questioning, and to record their statements. At 10.30 pm, when they were leaving the police station, the head constable, Tukaram, and constable Ganpat held Mathura back. She was subjected to rape by Ganpat and attempted rape by Tukaram. Mathura came out of the police station and announced to the crowd outside that she had been raped. The crowd surrounded the station and exerted enough pressure to ensure that a case of rape was registered.
While the Sessions Court acquitted the accused, the Bombay High Court reversed the judgment, and convicted sentenced Tukaram and Ganpat for rape. The court held that since the police were strangers to Mathura, it was unlikely that ‘she would make any overtures or invite the accused to satisfy her sexual desires’. Justice Koshal, Supreme Court, reversed the High Court judgment. According to the judge, as there were no injuries shown in the medical report, the story of ‘stiff resistance having been put up by the girl is all false’ and the alleged intercourse was a ‘peaceful affair’. Justice Koshal dismissed Mathura's testimony that she had raised an alarm, and further held that under s 375 IPC, only the ‘fear of death or hurt’ could vitiate consent for sexual intercourse. There was no such finding (quoted in Dhagamwar, 1992, p 253)
The third case was that of Maya Tyagi, a young middle-class woman, who, on 18 July 1980, was driving to her parents' house in Haryana. The car broke down on the way, and while it was being repaired a policeman in civilian dress tried to molest Maya and was beaten up by her husband. The officer returned with a contingent of policemen. The police opened fire and shot her husband dead. Maya Tyagi was dragged out from her car, beaten, stripped and paraded through the town. She was finally taken to the police station, where she was raped by the police. She was charged with being a dacoit (armed robber), and subsequently released on bail.
The three cases described above have several points in common. In all three cases, the victims were innocent of having committed any crime. Hence, the action of the police in holding them in custody was in itself illegal. Rameezabee and Mathura were socially and economically disadvantaged. Rameezabee was a Muslim and Mathura a tribal woman. (p.106) In both these cases, the victim's testimony was suspected. Mathura was held to be a ‘shocking liar’, as she was not a virgin prior to the rape and had a lover. As she was ‘habituated to sex’, the judge concluded that she had consented to sexual intercourse with the accused. In two of the three cases, the women was re-victimised by having false cases filed against them – Rameezabee was convicted of procuring minor girls into prostitution, and it was further alleged that her marriage was illegal, and that she was sexually promiscuous. Maya Tyagi was accused of being a dacoit. Mathura was castigated by the Supreme Court of indulging in pre-marital sex and of lying.
The three cases, both individually and collectively, led to a major campaign on the issue of rape in custody. Following the Rameezabee incident, there was public protest in the city of Hyderabad. The police opened fire on the protesting crowd, and several people were killed. As a result, a commission of inquiry was set up headed by Justice Muktadar, a sitting judge of the Andhra Pradesh High Court. Justice Mukhtadar found the accused guilty of the offences of rape, murder and assault. He recommended that they be prosecuted for these offences. The judge further held that the inquiry revealed the ‘pitiable conditions of suspect women particularly of the poor classes at the hands of the police in the police station’ (Kannabiran, 1996, p 120). However, the accused were acquitted by the Sessions Court of the charge of rape and were admonished for wrongful confinement.
The Mathura case led to a major nationwide campaign on the issue of custodial rape, following the open letter written in September 1979 by four law teachers – Upendra Baxi, Lotika Sarkar, Vasudha Dhagamwar and Raghunath Kelkar – to the Chief Justice of India. The Maya Tyagi case was discussed in the Lok Sabha (House of Parliament) on over four days, after which a judicial inquiry was initiated by the Uttar Pradesh government (Gangoli, 2007).
The open letter referred to earlier deserves special mention. It questioned the validity of a judgment passed by the Supreme Court. The authors of the letter identified themselves as Indian citizens and as teachers of law. The letter described the Mathura judgment as ‘an extra ordinary decision sacrificing human rights of women under the law and the constitution’. The authors enumerated their reservations on the judgment, stating that a young girl could not be expected to successfully raise the alarm for help when trapped by two policemen inside a police station. They pointed out that the absence of marks of injury on Mathura's body need not imply absence of resistance. They further stated that there is a clear difference in law and common sense between submission and consent. The letter went on to state:
The letter was circulated among civil liberty groups and women's organisations, initiating a campaign. Meetings were held in various parts of the country. In Bombay, the Forum Against Rape, which was made up of feminists from various organisations, was formed on 12 January 1980. In Delhi, demonstrations were held outside the Supreme Court. At a national level, the feminist campaign focused on demanding amendments to the rape law, asking for legal recognition of rape by men in authority, formal recognition of rape within marriage, and an expansion of rape beyond penile penetration to reflect the experiences of women.
(p.107) Could not their Lordships have extended their analysis of ‘consent’ in a manner truly protective of the dignity and rights of Mathura? One suspects that the Court gathered an impression from Mathura's liaison with her lover that she was a person of easy virtue. Is the taboo against pre marital sex so strong as to provide a licence to the Indian police to rape young girls? Or to make them submit to their desires in police stations? (Baxi et al, 1979, p 1)
Rape law amendment
On 12 August 1980, a Bill was introduced in the Lok Sabha to amend certain provisions of the rape law. The Bill suggested four major changes. The first was a prohibition on press coverage of any incident of rape or any publicity that revealed the name of the offender or the victim. The second was a new section, which attempted to define consent more clearly. In this definition, rape is held to have taken place when a man has sexual intercourse with a woman ‘without her free and voluntary consent’. A further amendment was that the marital rape exemption would not be applicable in cases of judicial separation. A final, major amendment was the introduction of s 376 to the IPC, which introduced a new category of rape – rape by members of the police within their official jurisdiction, by public servants, by superintendents or managers of jails, remand homes, or hospitals, against women in their custody. Gang rape was included within this category, punishable more severely than other forms of rape. Under s 376, the onus of proof was shifted from the victim to the accused, that is, ‘if the woman stated that she did not consent, the court would presume that she did not consent’. This was a reversal of the generally applicable legal principle. Finally, the Bill provided that under s 228A, rape cases be conducted ‘in camera’, that is, unlike other trials, they would not be subjected to and open (p.108) to public scrutiny and attendance (Bill No 162 of 1980). The Bill was referred to a joint committee comprising representatives from both houses of parliament, which consulted with women's groups, lawyers and the press (The Gazette of India, 1982).
The Joint Committee Report, voicing the concerns of some feminist groups, opposed s 228A, holding that under certain circumstances, publicity may be ‘necessary for proper investigation’ and may be desired by the victim. Further, the committee suggested that provisions regarding rapes by policemen be strengthened; that s 376 be extended to all the staff of a jail, not merely the supervisory staff; that rapes in hospitals be extended to include visitors, as well as patients; and that rape of minors be included under the section. The committee also believed that not all cases of sexual assault need be held in camera (The Gazette of India, 1982).
Other general recommendations made by the committee included that women should not be arrested after sunset and before sunrise; that medical examination of the accused and of the complainant be performed immediately on complaint; that social welfare officials be associated in the procedures; and that compensation for social ostracism be given to rape victims. However, the report did not accept the recommendations of the Law Commission and various women's organisations that the past sexual history of the woman not be adduced in the evidence or during cross-examination.
The final law did acknowledge the importance of custodial rape, but did not take up many suggestions made by the women's groups. For example, the new law continued to treat the past sexual history of the woman as relevant, and press restrictions on the trial were imposed. Further, marital rape continued to be outside the remit of the rape law, although the amendments allowed rape charges to be brought in the case of judicially separated couples. While this was a significant shift, the amendment did not go far enough in challenging patriarchal assumptions about women's rights within marriage (Mishra and Singh, 2003). Finally, rape continues to be defined exclusively as penile penetration into the vagina. The rape law therefore is based on, and legitimises, several patriarchal presumptions and attitudes regarding male and female sexuality, including the idea that within marriage women are the sexual property of their husbands. At the time of writing, recommendations have made to the Lok Sabha by the Law Commission addressing some of these anomalies, and these are likely to be implemented in the near future (see section below on analysis of policies and interventions).
Some of the key issues faced by women in accessing justice in rape trials relate to social perceptions that influence the criminal justice system. Women's bodies are seen as repositories of community or familial shame and honour, leading to a dichotomy between virtuous and suspect women. Further, working-class women are seen as sexually available, as they are less secluded and consequently less ‘respectable’ than middle-class women. This section exams some key themes emerging from case law on rape.
The police and custodial rape
As discussed above, the police, far from providing women with protection in rape cases, have often been identified as potential perpetrators of sexual assault. Cases of custodial rape by the police are treated as ‘routine’ cases, negating the amendments made to the IPC in 1983, and rates of conviction in cases of custodial rape are very low (PUDR, 1994). This seems to indicate a benevolence on the part of custodians of law and order towards perpetrators, analogous to that displayed by the patriarch of a family towards a straying prodigal son.
Perceptions of working-class sexuality
Judicial interpretations in cases of custodial rape following the 1983 amendment demonstrate that in spite of the change in the law that shifted the onus of proof in these cases on to the accused, judicial interpretations remained centred on questions of the ‘character’ of the complainant. As most cases of custodial rape are perpetrated against working-class women, class assumptions regarding sexuality are also apparent. In an incident in a village in the state of Bihar in 1988, a large group of policemen gang-raped 19 women following a quarrel between a policeman and local villagers. The case attracted much press coverage, and the state government awarded the women Rs 1,000 as an ex-gratia payment. However, as the investigation by the local police was not carried out properly, and included just a perfunctory medical examination, there was insufficient evidence to convict the accused, and the judge remarked: ‘It can not be ruled out that these ladies might speak falsehood to get a sum of Rs. 1000 which was a huge sum for them’ (quoted in Baxi, 1995, p 128). Further, the judge noted the defence counsel's argument that ‘the women could not be equated with such ladies who hailed from decent and respectable societies, as they were (p.110) engaged in menial work, and were of questionable character’ (quoted in Baxi, 1995, p 129).
In the Suman Rani case, representations of women's sexuality were based on diverse understandings of pre-marital sex. Suman Rani, a minor, had eloped with Ravi Shankar in March 1984. Her family had filed a case for abduction. The police arrested the absconding couple on 31 May 1984 at Bhiwani bus stop on the way to Jammu, where they were headed. Suman Rani and Ravi Shankar were put in separate rooms in the Patram Gate police post, where Suman Rani was raped by two policemen, one of whom was Premchand. Ravi Shankar was charged for abduction and rape under s 366 of the IPC. In the Sessions Court, Bhiwani Khera, Ravi Shankar and the two policemen were tried together, and convicted on the charge of rape, the policeman getting the minimum sentence of 10 years under s 223 (Premchand and Another v State of Haryana, 1989). Significantly, the Sessions Court judge dismissed the plea that Suman Rani was ‘habituated to sexual intercourse’, and therefore was not raped. He stated:
The Sessions Court judgment was overturned by the Punjab and Haryana High Court at Chandigarh. Ravi Shankar was acquitted, as it could not be proved that Suman Rani was below 18 years, and it was held that she had had sex with Ravi Shankar of her free will. The conviction and sentence of the two policemen was confirmed. The accused appealed to the Supreme Court. The Supreme Court did not dispute that Suman Rani had been raped in custody. However, Justice S Ratnavel Pandian and Justice B C Ray were reluctant to award the minimum punishment under s 223, accepting the argument that ‘the victim was a woman of questionable character and easy virtue with lewd and lascivious behaviour’ (Premchand and Another v State of Haryana, 1989).
And all things said and done, even a girl of easy virtue is also entitled to all the protection of law and can not be compelled to sexual intercourse against her will and without her consent. Offences of rape and other allied offences are created for the protection of fallible, earthly mortals and not for goddesses. (Premchand and Another v State of Haryana, 1989)
While judgments like these bring out the more obvious misogynist and conservative aspects of judicial functioning, one finds that even seemingly ‘positive’ judgments can be based on similarly anti-women sentiments. The central point of rape cases is the role of corroborative evidence under the 1872 Indian Evidence Act, which is often reduced to physical injuries suffered by the victim (1972 Cri L J 824 Raj) or other witness statements (Naravan v State of Rajasthan, 2007). However, some judges have argued that insistence on corroborative evidence is tantamount to a denial of justice. In a case of custodial rape, in which a co-petitioner was a Nagpur-based women's group, the judges held that to disbelieve a woman, especially a ‘young girl’, was to insult womanhood, and they suggested that Indian women are unlikely to lie about rape:
In an earlier case, the judge had similarly commented on the perceived differences between eastern and western cultures, suggesting that, in the Indian setting, women and girls would be bound by tradition and the stigma of rape and non-marital sex. They would therefore fear being ostracised by society, and their natal and marital family, thus risking the family honour. Further, women and girls would be reluctant to face interrogation by the court. It was stated that it was conceivable that western women might lie about rape for several reasons, such as financial considerations, psychological neurosis, revenge, notoriety or publicity, hatred of one or all men or a desire for sympathy. However, in the Indian context, these did not apply and ‘refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury’ (Bharwada Bhoginbhai Hirjibhai v State of Gujarat, 1983). In an earlier case, it was argued that insisting on corroborative evidence was to ‘cling to a fossil formula’, and the ruling stated that: ‘No woman of honour will accuse another of rape, (p.112) since she sacrifices thereby what is dearest to her’ (Rafiq v State of Uttar Pradesh, 1980).
Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society, as in some of the western or European countries. Our standards of decency and morality are not the same as in those countries.… Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levying a false charge concerning her chastity. (State of Maharasthra v Chandraprakash Kewalchand Jain with Stree Atyachar Virodhi Parishad v Chandraprakash Kewalchand Jain, 1990).
Within this context, a woman is therefore only believed if she is a ‘woman of honour’. What to the judicial mind constitutes an honourable woman? It is a respectable married woman or a virginal daughter? In another case of custodial rape, a married woman was raped by a policeman, after being threatened that her husband, a labourer, would be arrested if she did not consent. While the Bombay High Court acquitted the accused on the grounds that the woman did not raise an alarm, and that there were no injuries on her body, the Apex Court reversed the judgment on the grounds that she was threatened by the police, and because she was not a prostitute (State of Maharashtra v Prakash and Another, 1984).
Shame and honour: lost chances
The judicial mind also exercises sympathy where the victim is a young and virginal child. While deciding on an appeal made to the Supreme Court 10 years after a child of nine was raped, the judges noted that the loss of virginity had blighted her chances of a happy married life:
These judgments reveal a number of assumptions about male and female sexuality. Most obvious is that the courts constantly emphasise the ‘chastity’ of the raped woman, or its absence. Even in ‘positive’ judgments, when the woman conforms to the standards of womanhood held as ideal by the judge, the focus is on the loss of honour and shame suffered by the woman. Rape is not seen as a violation of bodily integrity, but as a loss of family honour.
… the victim who is now 19 years old, after having lost her virginity still remains unmarried undergoing the untold agony of the traumatic experience and the deathless shame suffered by her. Evidently, the victim is under the impression that there is no monsoon season in her life and that her future chances for getting married and settling down in a respectable family are completely marred. (Madan Gopal Kakkad v Naval Dubey and Another, 1992)
Some case law also projects rape not as an act of violence, but as a crime of passion, and rapists as ‘lusty brutes’ (Madan Gopal Kakkad v Naval Dubey and Another, 1992). In the case of the abduction and gang rape of Shashibala, a minor, the judge called the rape a ‘bestial act of lust’ (Krishnalal v State of Haryana, 1980). In another case, where a 22-year-old man raped his cousin, the judgement uses language that verges on pornography:
The language used converts an act of violence into a sexual odyssey, while the description of the woman as ‘temptingly lonely’ objectifies her. In a further attempt to reduce the seriousness of the crime, Justice Krishna Iyer lists several ‘mitigating’ factors. He reluctantly admits that ‘rape is a violation with violence, of the private person of a woman’, but goes on to state that ‘excessive punishment of the offender can be counterproductive’ and the accused is described as a ‘hyper sexed Homo Sapien’ (AIR 1980, SCC 249, 1980 Cri L J 8).
A philander of 22, appellant Phul Chand, overpowered by sex stress in excess, hoisted himself into his cousin's house next door, and in broad daylight, overcame the temptingly lonely prosecutrix [female prosecutor] of 24, Pushpa, raped her in hurried heat, and made an urgent exit having fulfilled his erotic sortie. (AIR 1980, SCC 249, 1980 Cri L J 8)
Another ‘extenuating’ factor mentioned in the judgement is the perceived shift in Indian society towards sexual licentiousness, as evident in the following quote:
The judgement therefore fails to distinguish between consensual sexual activity and violent, coercive sex. The inherent moralistic tenor projects ‘pre-marital’ sex – sex being defined only in terms of marriage – as ushering in a social situation in which men have the unconditional (p.114) ‘right’ to rape, and women, no right to refuse any sexual initiative from men.
It may be marginally extenuating to mention that modern Indian conditions are drifting into societal permissiveness on the carnal front, prompting proneness to pornos [sic] in real life, what with libidinous ‘brahmacharis’, womanising public men, lascivious dating and mating by unwed students. Isolated prosecutions and annual suppression rhetoric will stultify the law, where the vice is widespread and the larger felons are left loose. (AIR 1980, SCC 249, 1980 Cri L J 8)
Analysis of policies and interventions
Feminists soon realised that the 1983 IPC amendment did not yield positive results at the level of women's lives, nor did it lead to any substantial improvement in judicial and police procedures. A feminist lawyer pointed out that the amendment and the campaign behind it could not succeed in ‘evolving a new definition of rape beyond the parameters of … notions of chastity, virginity, premium on marriage and fear of female sexuality’ (Agnes, 1993). The rate of convictions in cases of custodial rape is low, perhaps because stricter laws and increased punitive measures make judges cautious in awarding the full punishment available to them. In addition, as mentioned above, feminist understanding of custodial rape as being limited to rape by policemen might have been governed by political exigencies in the early 1980s. However, an inability to extend custodial rape to include other categories, including rape of minors or adult women within the family, or of married women by their husbands, meant that a substantial area of women's experience was never centrally addressed.
In 1992, a Bill on sexual violence was proposed by feminists and approved by the National Commission for Women that aimed to expand the law on rape to reflect the experiences of women and children:
The Bill attempted to extend the definition of rape beyond that of penile penetration of the vagina. Hence, it included a range of non-consensual sexual activities, that is: introduction by a man of his penis into the vagina, external genitalia, anus or mouth of another person; the introduction by one person of an object or a part of the body of another person; the uttering of any word, making of any sound or gesture, or exhibiting any object or part of the body for sexual purpose. The charge of ‘aggravated sexual assault’ included assault by a police officer, a member of the Armed Forces, a public servant or anyone in (p.115) a position of trust, authority, guardianship or with economic and social domination over someone ‘under such trust, authority or dominance’. After much deliberation, the age of consent was fixed at 18 years. While there were some concerns that this would lead to consensual sex between adolescents being treated as an offence, it also provided for the criminalisation of rape within marriage, as it included any sexual intercourse between a married couple if the wife was under 18.
The present law (on rape) has become so outdated in terms of language and intent that it fails to acknowledge the true nature of sexual assault. In particular, the existing law does not address the increasingly visible offence of child sexual abuse … a substantial number of child sexual abuse cases are occurring within the family. (1992 Sexual Violence Bill4)
This Bill, however, was not adopted by the Indian state, and Saakshi, one of the organisations involved in drafting the Bill, filed a writ petition to the Supreme Court in 1997:
… praying for (a) issuance of a writ in the nature of a declaration or any other appropriate writ or direction declaring inter alia that ‘sexual intercourse’ as contained in section 375 of the Indian Penal Code shall include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration and (b) to issue a consequential writ, order or direction to the respondents in the Writ Petition and to their servants and agents to register all such cases found to be true on investigation. (Law Commission of India, 2000)
As a result, the Law Commission was directed by the court to file a report on this matter. The Law Commission made the following recommendations:
• changing the focus from rape to ‘sexual assault’, expanding the definition beyond penile penetration to include penetration by any part of the body and objects;
• deleting s 155(4) of the 1872 Indian Evidence Act, which had previously allowed for a victim to be cross-examined about her sexual history;
• introducing different gradations of punishment for rape, with higher punishment for rape committed by the relatives and persons in ‘trust or authority’, public servants, and superintendents, management and staff of hospitals;
• introducing a new section of s 376(E), to include sexual harassment in the workplace;
• shifting the burden of proof of consent in all rape cases to the accused;
(p.116) • introducing specific provisions to deal with the medical examination of the victim and the accused by a registered medical practitioner, and guidelines to the police to question minor victims of rape;
• providing compensation in some cases of sexual assault;
• treating sexual assault as a gender-neutral crime, allowing both women and men to be prosecuted under the law; and men and women to be treated as potential victims under the law;
• deleting s 377, as sexual assault was treated as gender-neutral.
Suggested amendments in the law
While meeting many of the concerns of feminist groups, the recommendations of the Law Commission do not go far enough in some areas. The shift from penile penetration to other forms of sexual assault (including sexual assault in the workplace) is a welcome step, as it is based more widely on the experiences of women and children. The deletion of the clause allowing the woman's sexual history to be adduced in trial is similarly a step in the right direction, as it could make rape trials less traumatic for women and encourage more women to come forward to report rape. Further, the focus on child rape, the guidelines for medical examinations and police procedure in cases involving children are useful.
However, the Law Commission does not take into account marital rape, other than by raising the age of consent within marriage from 15 to 16 years. While commenting on recommendations by feminist groups that the exemption to marital rape be removed, the report states that ‘that may amount to excessive interference with the marital relationship’ (Law Commission of India, 2000, p 14). The report therefore continues to support the view that women are the sexual property of their husbands.
Further, while the suggested deletion of s 377 – that is, the law criminalising male homosexual activity – can be seen as highly desirable, some feminists have argued that the proposed gender neutrality could be problematic, as it could lead to false claims made by men against women, and increase scrutiny of women's sexual behaviour in a patriarchal context (PRISM, 2006). In addition, Mumbai-based LABIA (Lesbians and Bisexuals in Action) has suggested that the gender neutrality introduced within the Sexual Assault Bill may work against the interests of gay groups. Representatives of LABIA suggest that while (p.117) the suggested decriminalisation of voluntary male homosexuality is a positive development, the proposed Bill introduces for the first time legal recognition of the sexuality of lesbian women in the context of perpetrating violence. It is suggested that this could be problematic in a predominantly homophobic social and legal context (Shah, 2006).
Finally, the question of compensation in rape cases remains a vexing issue for Indian feminists. As mentioned above, case law can sometimes treat women who accept compensation with scepticism. However, women from working-class backgrounds may need compensation in order to rebuild their life after a sexual assault, especially if they are likely to face stigmatisation from wider society.
This chapter has highlighted some of the complex debates within social, legal and feminist perceptions of rape in India. Rape and the fear of rape continues to be an issue for many Indian women, even though the conviction rate for rape stands at over a quarter of all cases charged and brought to trial. While this may seem impressive, it should be noted that case law reveals that judges are more likely to pass positive judgements when they consider the victim to fit into the societally acceptable norms of the ‘good’ woman, that is, a virginal, unmarried girl or virtuous, married woman. Rape is associated with loss of honour for the family or community, and therefore raped women often do not file a report with the police. Also, while Indian feminists have campaigned on the issue of rape, it has been primarily in the area of demanding legal reforms and solutions, and there has been no concerted Rape Crisis movement in India. Furthermore, feminist shelters for rape victims are few and far between. This has led to rape victims becoming dependent on their families and often lacking support when they need it most. This could be another reason why many Indian women do not report rape. However, there are no reliable statistics on the proportion of rape cases reported (compare Gangoli, 2007).
The proposed changes to rape law in India will potentially contribute to reducing the stigma of rape, as discussions on the character and sexual history of the victim will no longer be considered legally relevant. However, as noted above, marital rape continues to be unrecognised by the law, and the issue of gender neutrality may cause problems in a society that remains, in part, deeply patriarchal and conservative, as it can increase sexual scrutiny of women, who could be seen as perpetrators of sexual violence. Nevertheless, the suggested changes, based as they (p.118) are mainly on feminist understandings of violence against women, are a step in the right direction.
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(1) Dowry in the Indian context can be defined as money or property given by the woman's family to the husband's family at the time of marriage.
(2) There are currently changes being proposed to the rape law; see conclusion.
(3) In July 2009, following years of concerted efforts by gay rights groups, the Delhi High Court revoked the provision of s 377 of the Indian Penal Code that criminalised consensual sexual acts of adults in private, holding that it violated the fundamental right of life and liberty and the right to equality as guaranteed in the Indian Constitution. This is currently not applicable to the rest of the country.
(4) Under existing law, s 376 of the IPC does criminalise child rape as a category warranting greater punishment than some other forms of rape, but does not address intra-family rape in particular.