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Are Rape Laws Obsolete in India?

Are Rape Laws Obsolete in India?

Are rape laws obsolete in India?[1]

By Byomakesha Kumar Singh,

According to poll of Thomson Reuters, New Delhi is one of the world’s worst cities in the world for violence against women.[2] After the protest, Criminal Law Amendment Act was introduced in 2013 which led to harsher punishments on the rapist but the sad news is that, the criminal justice system remains vulnerable to the political pressures and allows many of the accused to go scot free (even the law makers are also accused of this heinous crime!)

Sexual intercourse when not consented to amounts to rape. When filmmaker Aniruddha Roy Chowdhury advocates through the voice of Amitabh Bacchan in the movie Pink that ‘No means no’, Delhi High Court put the whole country in awe when Mahmood Farooqui was acquitted of rape committed to an American woman saying “a feeble no means yes”.[3] There is a practice of sexualism in India since ancient times under the euphemism of ‘Devdasi’ where girls who are offered to gods are exploited and forced to live as sex workers. Although the Women Dedication (Prevention) Act, 1988 has tried to put a check on it but the Mathamma practice is still continuing in parts of Andhra Pradesh, Tamil Nadu and Telengana. The officials who are employed to be the protector of the people i.e. army has become the deadliest predators, the Kunan Pushpora in 1991 bearing its live examples. Then comes the biggest shame of the protectors of the law and supposed guardians of powerless people, police in the name of Mathura Rape Case.[4]

Women are seen as a property of their owners- father after birth the husband after marriage. They are not given to exercise liberty and in many rural areas, tribal justice and feudal practices continue, including the routine use of gang-rape as a way to settle scores. Section 375 of the Indian Penal Code, defines rape as sexual intercourse against her will and without her consent.[5] Does it anyway means that being a wife to someone means submitting one’s will to her husband? The concept of marital rape is not criminalized in India with an excuse of high illiteracy rate, poverty, extreme religious beliefs and the very 'sanctity' of marriage. The most a wife can do is charging her husband with a minor offense of cruelty or at the most a restraining order under the Domestic Violence Act. The Indian government records data on spousal violence, and according to the 2015-16 National Health and Family Survey (NFHS-4), around 5.4 percent of women have experienced sexual violence from their partners. Overall, 2.5 percent and 3.6 percent married women have answered affirmatively to categories of "forced her to perform any sexual acts that she did not want to" and "forced her with threats or in any other way to perform any sexual acts that she did not want to" respectively.

Rape laws have become stringent after the horrifying gang rape in Delhi but the problem in India is that it believes in framing laws rather than following it and takes it as a mere advisory mechanism. This has further exacerbated the situation. The system of providing justice to the victim by penalizing the law breaker is another everlasting procedure–the case is sure to get mired for years, even decades, in an overcrowded, weighed-down court system that seemingly exists only to prove over and over the axiom that justice delayed is justice denied. Introducing fast-track courts is a largely decorative measure; these cases are heard by the same courts and judges, and are therefore afflicted by the same problems of resources and time.

The force of social pressure in India is far more powerful than any law that must be harnessed for true change. Mindsets are impossible to legislate for or against – but they can be altered with the thundering roar of the vox populi. Immense change in rape laws has happened with death penalty in ‘rarest of rare cases’- which is mostly ambiguous and depends on the facts and circumstances of each case. The recent rape case of a eight year old Muslim girl by Hindu men in Kathua and also the rape by a member of Bharatiya Janta Party in Uttar Pradesh aggravated the punishment for person convicted of raping children under twelve year as death penalty.[6] The irony lies in the fact that it falls under rarest of rare cases whereas the development of breast and matured sex organs in grown up girls makes raping them a milder offense awarded with a life imprisonment with a variation in time duration unless the victim is left in permanent vegetative state.

Although rape laws are there to provide justice to the victim legally and even given compensation but they cannot be protected from social banishment. The Indian legal system is a  total failure in safeguarding the dignity of women socially where they besides being socially ostracized are being labeled and blacklisted.

Rape is a total negative act which cannot be excused under the garb of the rapist being emasculated financially or socially or educationally. A crime is a crime and nothing should be compromised with it. Mostly the women are stifled from reporting their grievances due to societal pressure aided with lack of education. Even the society does not accept the victims with open arms. They have this idea of parochialism which only can be eradicated by education. Hence, “it’s not just about a few rotten apples, it’s the barrel itself that is rotten”[7].

Furthermore, in what could become a contentious issue, the Narendra Modi government has downsized its first large-scale initiative for women, trimming the plan for a rape crisis centre in every district. Now, there will be only one centre in every state or Union Territory. The budget for the project has also been slashed from Rs 244.48 crore to Rs 18 crore.

To maintain the dignity of women must be considered and decent medical test procedures should be followed. The sound was of women tired of harassment, angry at police and government indifference, who want better for themselves, their daughters, sisters and friends, and all the men who support them. As a responsible citizen everyone must cooperate not just in mere legislating but in following the law- a small breakthrough to bridge the gap. That, more than in any law, is where hope lies.


[1] By Byomakesha Kumar Singh, Student( 3rd  year), National Law University and Judicial Academy, Assam

[2] https://af.reuters.com/article/commoditiesNews/idAFL4N1M14XB accessed on 14 December, 2018.

[3]  Mahmood Farooqui  v. State( Government of NCT Delhi), CRL. APPEAL NO. 944 OF 2016

[4] Tuka Ram And Anr vs State Of Maharashtra on 15 September, 1978

[5] Section 375, Indian Penal Code, 1860.

[6] https://timesofindia.indiatimes.com/india/cabinet-clears-law-to-punish-rapists-of-minors-with-life-in-jail-or-death/articleshow/63863562.cms accessed on 14 May, 2018.

[7] https://www.globalcitizen.org/en/content/india-rape-law-victim-justice-hrw/ accessed on 15 December, 2018.

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