| RAPE LAW REDIFINED
By PRAVEEN DALAL 11/05/2005 At 05:39 AN ANALYSIS OF THE DEFICIENCIES AND FALLACIES OF INDIAN RAPE LAW. 
PRAVEEN DALAL, CONSULTANT AND ADVOCATE, DELHI HIGH COURT, INDIA The rape law in India is presently contained in sections 375 and 376 of the Indian Penal Code, 1860. The same are deficient in many aspects and are required to be amended immediately. For instance, section 375 provides that a “man” is said to commit “rape” if he has sexual intercourse with a woman under the circumstances falling under the six categories mentioned in the section. The explanation to section 375 provides that “penetration” is sufficient to constitute the sexual intercourse necessary to the offence of rape. Further, sexual intercourse with a girl below 16 years of age, even with her consent, is rape.
The fallacy of this section is that it is based on the “patriarchal” and “feminist” divide. This divide has unnecessarily and unreasonably “presumed” that only men can commit rape upon women. The section is starting with the words “a man is said to commit rape” and that is a misleading presumption that only men can commit rape upon women. There is nothing that proves either legally or scientifically that women cannot force men to have forceful sexual intercourse with them. The modern concept of “rape” is totally different from the traditional concept. There are growing incidences of “seduction” of men by women and they are equally “rape” within the meaning of section 375. The exploitation of males in the fashion industry and other areas is equally known. The explanation to section 375 makes the process of “penetration” an offence of rape even though it may not have resulted in a sexual intercourse. Thus, a male is liable for rape the moment he commits the act of “penetration”. It is strange that if he is “forced” to penetrate then the women are not liable for the offence of rape. If “penetration” is sufficient to constitute the sexual intercourse necessary to the offence of rape then the moment a male is forced to do the same there is an offence of rape committed by the woman. The absurdities of this section is further reflected in clause sixth of the section. It provides that sexual intercourse with a girl below 16 years of age, even with her consent, is rape. This is a good provision but it needs uniformity and equal treatment. For instance if a boy aging 18 years has sexual intercourse with a girl aged 15 years then he has committed the offence of rape even if the matter was purely “consensual”. So much so that even if the girl has persuaded and encouraged the reluctant boy for the act, still he is liable for the offence of rape. Now if a girl of 18 years has sexual intercourse with a boy of 15 years there is no provision in the IPC that can make her liable for the offence of rape. Recently, a news item showed that a major girl eloped with her “minor husband” and later on traced in a pregnant stage. The age of the boy was 14 years. The Delhi Police was clueless and was not in a position to decide what to do. These incidences are growing and the modern concept of rape has to be based on the contemporary standards and not on the basis of the traditional standards. Thus, unless the concept of rape is redefined the discrimination and absurdities will keep on multiplying.
 Email:: pd37@rediffmail.com, perry4law@yaho.com
 URL:: http://praveen-dalal.blogspot.com/
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The recent disturbing practice of the Courts to allow the rapist to marry the victim is a wrong practice that should be stoped as soon as possible. It must be noted that first of all rape is a non-compoundable offence that cannot be compounded by the court under any circumstances. Secondly, even exercising its inherent power U/S 482 of Cr.P.C a court cannot exempt an offender from the provisions of the rape law. The power under section 482 of Cr.P.C is conferred on the courts to do complete justice and not to provide gateways to the accused.
The practice seems to have originated because certain "consensual matters" are wrongly "converted" into rape cases. In that situation it may prove a potential tool in the hands of the judiciary to do the complete justice but not in case of a well planned savage attack on a female.
Thus, the "use" of section 482 and not its "misuse" is the need of the hour. It must be noted that the inherent power of the court can be used to "quash" a criminal proceedings even if the offence in question is a "non-compoundable" offence.
The ultimate justice can, however, be provided only if an offender is punished for the crime, whether it is the person "commmiting" the rape or the female "framing" an innocent accused. Thus, to discourage frivolous rape cases the courts must punish the "pretending victim" with sever punishment.
On the other hand all facilities must be provided to a "genuine victim" so that her suffering are not further aggravated.
Thus, the correct approach seems to be a "friendly solution of consensual cases" and imposing stringent punishment to both,i.e the rapist or the "framer".
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The directions of the Rajasthan High Court to expediate the trial of the rape victim from Germany is a good step in the right direction.
In today's world we cannot afford to say that "justice must not only be done but it must also be seemed to be done". The concept of justice requires that:
(1) it must firstly be done in a just, fair and reasonable manner,
(2) it must be seemed to be done, and
(3) it must be "felt" to be done.
Thus, unless this third element of "felt to be done" is satisfied, the concept of justice is not complete because this third element is the most important component of justice delivery system.
Now in almost every rape case the victim is at loss from every aspect. The direction to finish the trial in this case within one month shows the "justice oriented approach" of the court. The best part about this direction is that the court has also directed that the cost of staying for one month in India by the victim will be bear by the appropriate government. It is an important step in recognising an important aspect of "victimology" as well, where it is assured that victim is not forgoten while rendering justice.
Thus, the court has taken the need of justice seriously.
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The law dealing with rape cases should be more humane and compatible with the victim's safety and comfort. For instance, the recent rape trial of a German citizen can be taken care of effectively by using the information technology.
The safety of victims and the witnesses through the use of information technology was recognised by the Supreme Court in Sakshi v U.O.I .
The Supreme Court in this case observed: “The whole inquiry before a court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment. Section 273 Cr.P.C merely requires the evidence to be taken in the presence of the accused. The section, however, does not say that the evidence should be recorded in such a manner that the accused should have full view of the victim or the witnesses. Recording of evidence by video conferencing has already been upheld. Moreover, there is a major difference between substantive provisions defining crimes and providing punishment for the same and procedural enactment laying down the procedure of trial of such offences. Rules of procedure are handmaiden of justice and are meant to advance and not to obstruct the cause of justice. It is, therefore, permissible for the court to expand or enlarge the meanings of such provisions in order to elicit the truth and do justice with the parties.
Thus, in holding trial of child sex abuse or rape a screen or some arrangements may be made where the victim or witness (who may be equally vulnerable like the victim) do not see the body or face of the accused. Recording of evidence by way of video conferencing vis-à-vis Section 273 Cr.P.C is permissible".
Thus, if the trial cannot be finished within one month, as directed by the High Court, then the same should be proceeded with using the facilities of video conferencing. The victim need not come to India frequently and her evidence and testimonies can be recorded using the information technology. Her electronic statements can be "digitially signed" to make them admissible as per the Indian Evidence Act and the Cr.P.C.
Thus, electronic justice is the key to many evils associated with the trial of rape cases.
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Though, Mr. Dalal has raised a valid point in the present work, I disagree with him on certain points. 150 year old legal provisions on the rape law as contained under Article 375-376 of the I.P.C. definitely needs to be redrafted keeping in mind the changing societal attitude towards the rape, rapist and rape victim all. " From the inception of class society and patriarchy, rape has not only been a weapon to ‘show women their place’, it has also been used to teach an entire community a lesson, as an instrument of political mobilization, to instigate a community into armed conflict, as repression against social movements, as an act of aggression on the enemy in war". Rape is used as an instrument of maintaining class, caste, racial and ethnic distinctions and hierarchy. (1) In the present work, Mr. Dalal has taken the view that a rape can be committed by a "Female on Male". Too some extent we might agree with Mr. Dalal here but not totally. In certain exceptional situations the above view can be taken as a reality but considering the overall societal and family status a women has even today, I personally do not agree with this view totally. But, We must differentiate between a forced sexual intercourse by a male upon a female which is known as rape and a forced sexual intercourse by a female upon a male; and even by a female upon a female or by a male upon a male. Though in case of male child sexual abuse, the law is definitely needs to be gender neutral What I infer from the present work of Mr.Dalal is that he is equating "Rape" with "forced Sexual intercourse". Every rape is much more than a forced sexual intercourse, be it on a male body or on female body. It is the social stigma attached with the Rape which makes rape more heinous than the simple forced Sexual intercourse and that point fingers at her as if she is the criminal rather than a victim. Traditional culture depicts the raped woman as one doomed for life, having no other option than prostitution or suicide. Further, Rape is the manifestation of the common belief that women can and should be "taken by force". Rape is much more than the sexual valiance committed upon the body of a female. Rape starts the unending process of physical and mental suffering for a women. It can damage her psyche so badly that it may lead to suicide. Moreover, when a rape is committed upon a female it is the possibility of her conception that brings social stigma to the victim and which is missing in forced Sexual intercourse upon a male by a female as discussed by Mr.Dalal. 1.  http://www.peoplesmarch.com/archives/2003/mar2k3/suppli2.htm Regards, GEETA NARULA, Practicing Advocate, High Court Delhi contact at:  advocategeeta@yahoo.com / advocategeeta@rediffmail.com
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Once again it got proved that fast track justice is the need of hour specially in the rape cases. And this time, fast track court established by Chief Judicial Magistrate court of jodhpur to conduct the expeditious trial in rape case of a German tourist by two auto rickshaw drivers became the medium of this fast justice. Judgement delivered by the Additional District Judge Jodhpur is considered to be one of the quickest court verdicts. The fast track court delivered it in just 20 days and on June 1 it awarded sentence of life imprisonment to the two accused. It is not only the verdict of the court in this case which is being welcomed by thinkers , it is more the less time taken by the court in arriving at the judgement which is being applaused by all. Today, when more and more rape victims are daring to come forward to report the heinous crime commit ed upon them.This quick judgement will not only strengthen their faith in the judicial system but will also help them in coming out of the trauma of being a rape victim. Till that time comes we must generate opinion in favour of setting of such fast track court. Geeta Narula, Advocate, High Court Delhi CONTACT AT: advocategeeta@yahoo.com / advocategeeta@rediffmail.com | 