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Rape laws in India
VIOLACIîN LAW IN INDIA, review the concepts.
It is simply 'Rape', a word described in section 375 of Indian Penal Code 1860, must be interpreted strictly? Or is it a phenomenon psychological to be understood and dealt with more empathy and less the law? What is the scope of this term and narrowly defined according to law what is the impact of this definition sentences imposed on the unfortunate victims of this unbearable mental agony? This project aims to study the Gaps in the current definition and scope of the phenomenon called Rape.
The word 'Rape' is derived from the Latin word "rapio" which means "seize". Therefore, rape, literally means an attack by force and that is the essence of the offense. In the common language, means sex without consent by force, fear or fraud. In other words, rape is rape with violence by the person deprived of a woman.
Although the law is said to grant justice to the innocent, it is unfortunately not true in the case of rape victims. Justice is proud to be blind to everything but the truth – however, in regard to rape, the facts paint a different picture. Violation of Indian laws are very outdated. Although the laws of the crime pattern in clear terms, the courts are filled with people who are in favor of the defendant and challenge the veracity of the complaint by the victim.
The Supreme Court has opined in Maharashtra v Madhukar Narayan Mardikar that
".. Even at an easy virtue woman has the right to privacy and nobody can invade your privacy, and when he likes. Also, is not open to every person to violate her person as and when it wants. Therefore, only because she is a woman of evil life, his testimony can not be thrown overboard. "
Violation of Indian laws are outdated; Cases in which justice has been done the victim because of the interpretation of the law, the evaluation of evidence, the long delays in the harsh and humiliating trial and interrogation of the victim are presented with alarming frequency. This report refers to administrative mandates of existing laws relating to rape in India and certain recent developments in this field.
The rape is a weapon that distorts women's sexuality, restricts her freedom of movement and violates their human rights. Leaves a woman feeling exposed, humiliated and traumatized. A rapist not only violates the privacy of victims and staff, integrity, but also causes serious physical and psychological damage. The law must have a new look at itself and take positive steps to make it harder for a defendant to obtain judicial pardon. . What is sad about rape in India is lack of seriousness with which the crime is often treated.Statistics 2000 show that on average a woman is raped every hour in India
As observed by Justice Arjit Pasayat:
"While a murderer destroys the physical structure of the victim, a rapist degrades and defiles the soul of a helpless woman."
Sexual harassment is nothing less than the showcasing of male dominance. Given the chance, these men (those who commit sexual harassement) will try to fulfill his wish.
Violation
Violation means illicit sexual intercourse by a man with a woman without her valid consent. (Section 375 of the Code Indian Penal)
A man said to commit "rape" if she has sex with a woman under circumstances falling under any of the six following descriptions: —
Against his will.
Without their consent.
With your consent, where consent has been obtained to put it or any other person you are interested in danger of death or injury.
With your consent, when man knows he is not her husband, and to give their consent, because she believes it's another man who is or believes to be legally married.
With consent, when, at the time of giving consent by reason of insanity or intoxication or the administration by him personally or through of any narcotic drug or other harmful substance, which is incapable of understanding the nature and consequences of that to which she gives consent.
With or without her consent, when under sixteen years of age.
Explanation: Penetration is sufficient to constitute the act necessary for the sexual offense of rape.
Exception: Sexual intercourse by a man with his own wife, the woman is not less than fifteen years age is not a violation.
Barriers to Justice:
Rape is defined in India as an intentional relationship, sexual unlawful with a woman without her consent. The essential elements of this definition under Section 375 of Indian Penal Code as "sex with A woman and lack of consent. This definition should therefore not include acts of forced oral sex or sodomy or penetration of foreign objects, but the actions that are criminalized under Section 354 of the IPC, which deals with "criminal assault of a woman with intent to offend her modesty and Section 377 of the IPC, covering "carnal intercourse against the order of nature".
The definition leaves some unanswered questions. For example, what about the EXUAL s relations with a man with his wife without her consent, when the woman is over 16 years old? Judicial interpretation also has meant that sexual relations in a situation of deprivation of liberty (police station, public hospitals, remand homes and prisons) is a crime, without having to go into the question of consent. In addition, anal intercourse or oral sex and penetration with objects not within the scope of section 375.
Furthermore, it recognizes other forms of sexual assault, as prolonged sexual assault by family members, etc. in violation marriage as more serious forms of rape. This causes a grave injustice to many victims. In many cases of rape of a child, the child has been hacked by fingers or objects or force must perform oral or anal sex, however this is not considered rape by the courts.
Also, if the victim is a minor, the onus on the accused to prove his innocence. But if the victim is greater, to prove her charge. Therefore, the defense feels that vale punishment prove that the victim is greater. Another problem is that unless women were medically examined at 24 hours, it becomes difficult to prove that forensic rape has occurred. Very often, you can not show penetration, judges are trying to "rape" cases under more relaxed sections: "offending the modesty of a woman ", for example, carry much lighter punishment.
Adding to this is the Section. 155 (4) of the Evidence Act (repealed), which allows the victim to be questioned of his past sexual history that the defense used to humiliate the victim in the courtroom. At the same time, Article 54 says: "In the criminal proceedings (including rape) the fact that the defendant has a bad character is irrelevant, at least on record (for him) that has a good character, in which case it is important. "
Section 375 of Indian Penal Code (IPC) only considers the Penile-vaginal penetration forced to rape. Penetration any other object, either in life-threatening (a knife, an iron bar, etc), although physically harmful is not a violation. The penis is given a position privileged in comparison with other objects that can be inserted, because of the primacy of place on the virginity of women. Breaking the hymen of women – the ultimate symbol sexual purity – should be avoided at all costs. "Sexual intercourse by a man with his own wife, the woman is under 15 years of age is not rape," according to this section. In other words, forced sexual relations within marriage is beyond the scope of the crime of rape.
The way some Courts have interpreted the law or to evaluate the evidence has often proved to be an obstacle. Despite Supreme Court rulings on the contrary, judges of courts below generally insist on tests of physical endurance or marks of injury to celebrate a woman has not consented. Evidence of a woman without corroboration is not considered enough.
Therefore, the laws on rape to be the biggest deterrent, there must be a victim of cooperation, professional investigations, diligent prosecution, and a speedy trial. On the contrary, there is no law that fails, but the applicants, the process and implementation
Early in Evolution
Several difficulties with the rape law highlighted by insensitive treatment by the judiciary
• The Mathura rape case is illustrative. (Tukaram v. State of Maharashtra, AIR 1979 SC 185In March 1972, 16 years girl old tribal girl was raped by two policemen in the compound of Desai Ganj Police Chowky in Chandrapur district of Maharashtra. His family, which had been recorded a complaint, were patiently waiting outside even if this heinous act was perpetrated in the police station. When relatives and the crowd threatened to burn the police chowky below, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama. At the Hearing, Mathura was accused of being a "liar" and since she was "habituated to sexual intercourse", gave his consent. The Nagpur bench of Bombay High Court set aside the sentence arguing that the passive submission due to fear induced by serious threats can not be interpreted as a voluntary sexual relationship. However, the decision of the Supreme Court remains a blot on his record so far. The basis for the acquittal was that Mathura had not raised an alarm and had no visible signs of injuries on his body. The ruling made no distinction between consent and submission by force
The rape case galvanized the movement Mathura women in order to reform the criminal law dealing with rape. In 1983 the government passed the Criminal Law Amendment Act. Amending Article 376 of the IPC and improvement the punishment of rape but also provides a greater penalty of a minimum of 10 years imprisonment for police officers or prison staff, detention centers or other places of detention established by law. The law also introduces a new Article 114-A of the SIA, to raise a presumption regarding the absence of consent in cases of custodial rape, rape in pregnant women and gang rape, at least partially removed weak evidence of a rape victim who has so far been unfairly attached to her testimony without taking note of the fact that India, unlike in the West a revelation of the identity of girls, the integration into society of all time to come, and unless her story was real painful she had not taken a risk so serious only to defame accused.The Act also provides for the trial in camera. It also inserts a new section in the IPC Section 228 (A), which makes that disclosure of the identity of the victims of these amendments were not sufficient to contain the increase in the number of cases of violence Sexual violence. A fundamental flaw in the law was the definition of rape under Section 375 of Indian Penal Code (IPC), which only took into account the penetration penile-vaginal. Other physical and mental injuries were no longer discussed in the sections 354 and 509 of the IPC as "outraging the modesty of a woman."
Although the amendment was accepted only in part the demands of the campaign, the penalty was an indication of some measure of success. However, the insufficiency of these measures was evident in the case Suman Rani. [In spite of severe punishment carried through modification in cases of custodial rape, the Supreme Court reduced the sentence to five years on grounds that the woman was of a "doubtful" and "easy life" with "obscene" and "conduct lascivious. "The court also dismissed a motion for reconsideration filed by women's groups. Suman Rani's case was no exception, the judiciary the award is usually less than the minimum sentence in rape trials despite the legal mandate established by the amendment. In Mohd.Habib against the State, Delhi High Court allowed a rapist to go scot-free simply because there were no injury marks on his penis, which the High Court was indicative of presumed consent.
• In Mohd.Habib Vs State, Delhi High Court allowed a rapist to go unpunished simply because there were no injury marks on his penis, which the Court Superior presumed was an indication of no resistance. The most important facts, such as the age of the victim (is seven years) and had suffered a hymen broken and bite marks on her body were not considered by the High Court. Even the witnesses who witnessed this horrific act, could not influence the Court Top.
• In another case of consciousness, agitation of the cases, Sakina, a girl of sixteen poor in Kerala, who was lured to Ernakulam with the promise of finding good work, which was sold and forced into prostitution. There are eighteen months held captive and raped by clients. He was eventually rescued by police, acting on a complaint lodged by his neighbour.With help of their parents, and a lawyer, Sakina filed a complaint with the High Court delivered the names of the top echelons of the bureaucracy and society demand Kerala.The was crushed by the High Court, while noting that 'No likely to believe that a man who wants sex in the payment would go to a reluctant woman, and that the version of the victim was not so sacrosanct as to be assumed.
· Whereas, vs. State of Punjab. Gurmit Singh, the Supreme Court has informed the lower judiciary, which even if the child victim is shown to be accustomed to sex, the Court should not describe her to be of loose character.
• The Supreme Court in the case of State of Maharashtra vs. Madhukar N. Mardikar, argued that "the unchastity of a woman does not make it open to every person to violate her person as and when it wants. She has a right to protect their person if not an attempt to violate its person against his will. She has the same right to protection of the law. Therefore, simply because she is the easy virtue, her testimony can not be thrown overboard .
As Chairman of the Board of Railway vs. Chandrima Das, an advocate of the practice of the Calcutta High Court filed a Article.226 request under the Constitution of India against the various railway authorities of the eastern railway claim compensation to the victim (Smt. Hanufa Khatoon) - A Bangladeshi national, who was raped at the Howrah station for railway security men. The High Court awarded Rs 10 lacs as compensation.
The Supreme Court also held that the aid can be granted to the victim for two reasons: first, in the field of national jurisprudence on the basis of constitutional provisions, and secondly, in the field of Human Rights jurisprudence on the basis of the Universal Declaration of Human Rights, 1948 that has international recognition as the "Moral Code of Conduct'-approved by the General Assembly of the United Nations.
Given the above, the Supreme Court has established the following guidelines for prosecution of rape cases:
1.The allegations of sexual assault should have legal representation. That person should be informed.
2. Legal aid should be provided to the police station because the victim may be in a state of distress.
3. The police should be obliged to inform the victim of his right to counsel before being questioned.
4. A list of lawyers willing to act in such cases must be kept at the police station.
5. Advocates are appointed by the Court on the application by police in the first, but so that the victim is not questioned without one, the lawyer is authorized to act on the police station before leaving the Court is requested or obtained.
6. In all rape trials, the anonymity of the victim should be kept
7. You need to set Criminal Injuries Compensation Board with respect to the guiding principles contained in the article. 38 (1) of the Constitution of India. As some victims also incur substantial losses.
8. Compensation for victims shall be awarded by the Court on the sentencing of offenders and for the International Criminal Injuries Compensation Board, whether or not a conviction has taken place. The Board shall take into account pain, suffering, shock and loss of income due to pregnancy and delivery, if it incurred as a result of rape.
Recent Developments
In 1997, Sakshi, an organization involved in issues on women and children, approached the Supreme Court through a court order asking for directions on the definition of rape in the CPI. Although the Supreme Court did not interpret the provisions of Section 375 of the IPC to include all forms of penetration such as penis / vaginal penetration, penile / oral penetration, penile / anal penetration, finger / vaginal penetration, finger / anal penetration, and the object / vaginal penetration within its ambit. Instead, the judges sought refuge behind a strict interpretation of criminal laws and the doctrine of state decisis - to that any alteration [in this case, the definition of rape] would result in chaos and confusion, which instructed the Law Commission of India to respond to the issues raised in the petition. The Law Commission, under the chairmanship of Justice P. Jeevan Reddy, responded by saying that the 156th Report of Law Commission has addressed these issues. The Supreme Court, however, agree that the 156th Sakshi report did not address the specific issues raised in the petition for defense. In August 1999, which instructed the Law Commission to examine these issues. (Sakshi v. Union of India)
After detailed consultations with the organizations, the Law Commission released its 172nd Report on Review of Rape Laws in 2000. The Law Commission recommended changing the focus of the `rape to assault," the definition of what is beyond penile penetration to include penetration anywhere in the body and objects, taking into account the cunnilingus and fellatio.
The report recommends the abolition of section 155 (4) of the Act tests, which would prevent a victim of rape from being cross-examined about his character "general immoral and sexual history. suggested sentence classified, with a greater punishment for the violation committed by relatives and people in `trust or authority, public officials, and superintendents, management and staff of the hospitals. It introduced a new section 376 (E), which include sexual harassment in the workplace.
The commission recommended that the load proof of consent of the accused. He suggested specific provisions dealing with the medical examination of the victim and the accused by a medical practitioner. He said that girls who are victims of rape should be questioned only by a female police officer, failing which a woman described as a social organization recognized to do the questioning. The commission suggested that the law relating to sexual assault be gender neutral, ie men and women can be accused of rape men, women and children. This meant that for the first time the sexual assault of minor children was prosecutable under the law. Requested Section 377 of the IPC has been dropped, as the decriminalization of sodomy.
However, the recommendations did not consider marital rape. Rose the age of consent for women from 15 to 16 years, after which the woman is not protected against marital rape. It still offers a window for the judges to reduce the sentence if the sentences below the specified minimum sentence, as suggested by the Commission, which states: "Any number of situations may arise, that the Commission can not anticipate or on the basis of the recommendations of the Law Commission, the Government enacted an amendment to the winter session of Parliament in 2002, deleting Section 155 (4) and inserted a clause in Section 146 of the Evidence Act, which means that a rape victim can not be questioned about of his past sexual behavior and its "general immoral character" ..
Criminal Law Act 2005 amendment
The bill, drafted by the Attorney Ms. Kirti Singh and AIDWA legal coordinator, is based on the 172nd report of the Law Commission to amend the laws relating to sexual assault in Section 375, 376, 354 and 509 of the IPC and relevant sections of the Code of Criminal Procedure of 1973 and the Evidence Act 1872. The recommendations are based on the national consultation on the issue organized by the National Commission for Women
• The major changes that occurred seeks through this amendment is to replace the existing section 375 of the IPC with the following:
"375.Sexual Assault: Sexual assault means —
(a) The introduction (to any extent) by a man of his penis into the vagina (which term includes the labia majora), anus or urethra, or mouth of any woman or child —
(b) the introduction of any measure of a man of an object or a body part (other than penis) into the vagina (which term includes the lips older) or anus or urethra of a woman
(c) the introduction of any measure, by a person of an object or body part (other than penis) into the vagina (the term which includes the mouth lips) or anus or urethra of a child.
(d) manipulation of any part of the body of a child in order to cause penetration the vagina (which term includes the labia majora), anus or urethra of the offender by any part of the body of the child; "
Similarly, the amendment 2005 brought many changes in rape laws, especially related to the procedure detailed examination of the victim and the accused, both by the insertion of new sections 164-A, 174 (1A), (b) and 53-A (a) CrPC, made it clear that, besides physical examination, also include an examination of blood stains blood, semen, swabs in case of sexual offenses, sputum and sweat, hair samples and finger nail clippings by using modern and scientific techniques including DNA analysis and other evidence that the RMP considers necessary in a particular case. Section 174 (1A), (b), CrPC added to make mandatory the investigation by Judge court in cases of custodial rape and murder cases.
Recommended changes to the Evidence Act 1872 are in S About the Author
Ramola Kakkar found death in her flat