Introduction
The scenario of our criminal justice system carries within itself great challenges and hurdles for victim. A report from a journal, revealed toppling down of cases of conviction to 16% in 1999 to 8% in 2003. Though various amendment came across to get rid out of the obsession for patriarchal nature of the Indian society but the approach is still not satisfactory. The justice which comes to the victim after facing a lot of humiliation no more hold good and it is said that “Justice delayed is justice denied”, the judiciary also needs to speed up the procedure.
Legislation in India
Indian Penal Code : Defines rape in Section 375 as –
A man is said to commit “rape” who, except in the case hereinafter accepted, has sexual intercourse with a woman under circumstances failing 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 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 or without her consent,
when she is under fourteen 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 thirteen years of age is not rape.
Section 376 of the penal code defines punishment for rape :
Rape is defined under section 376 of the Indian penal code and shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
Criminal Law (Amendment) Bill 2018
The Criminal Law (Amendment) Bill 2018 enhances the minimum sentence for offence of rape against girl children of all three age categories.
- Under new law, if the victim is under 12 years of age, the culprit faces minimum sentence of 20 years, up from 10 years previously. The maximum punishment is death penalty. In the cases of gang-rape of child under 12, the minimum punishment is life sentence (earlier 20 years) while the maximum is death penalty.
- In cases of child aged between 12 and 16, the offence of rape is punishable with the minimum sentence of 20 years, up from 10 years. Maximum punishment in such cases is life imprisonment. If a girl aged between 12 and 16 is gangraped, the convict faces minimum punishment of life sentence. If the victim is aged between 16 and 18, the offence of rape is punishable with minimum punishment of 10-year jail term and maximum is life imprisonment.
- Repeat offenders will be punished with life imprisonment or death. The Bill provides for time-bound investigation in cases of rape of girl children. The investigation into rape of a child must be completed within two months. The case is to be tried in a fast track court. The Bill states that any appeal against a sentence by the trial court must be disposed of within six months. Accused is not entitled to anticipatory bail, under new law, in offences of rape of child less than 16 years of age.
Flaws in the Rape Laws –
- MARITAL RAPE
Though in the recent years the judiciary has made offence against women transformed from a private issue into a public problem but still some points are untouched. The section 375 IPC does not incorporates the idea of Marital rape. It clearly says that the sexual intercourse by the husband with his wife is above the age of 15 years. It clearly neglects the dignity of a women who is also a wife of someone, who holds absolute right over her body. It also makes the will of husband as binding on the wife and valid in the eyes of law.
- Determination of age of Girl Victim
Further there is difference between the ages of majority for all other legal purposes i.e 18 years and for the offence of rape i.e 16 years. This has led to dichotomy whereby the girl is presumed to be incapable of taking independent decision in other matters, but is deemed to be capable enough to consent to the sexual intercourse of she is above the age of 16 years of age. The difference should be removed. The proof of age of the victim is significant because the consent of the victim is below the age of 16 years, then it also has to be proved that she did not consent to the sexual intercourse. The real problem arises when rape case occurs in a rural area and the age of the victim can’t be verified due to the unavailability of birth certificate.
Conclusion
Today feminism has engaged itself with the language of law and rights. The experience of the last decade not only raises question about the capacity of the last decade not only raises questions about the capacity of the law to act as a transformative instrument, but more fundamentally , points to the possibility that functioning in a manner compatible with legal discourse can radically refract the ethical and emancipator impulse of feminism itself.
The uncomfortable truth about rape laws in India. 