No other crime in the world can be considered worse than a crime against humanity. Centuries of exploitation of the female of the species and a gender imbalance have rendered the augmentation of the worst form of exploitation of women; Rape.
It is common knowledge that law is an instrument of social change. The big task that then lies before society is to adapt the law so as to curb horrific crimes such as Rape. Rape just like other crimes such as Genocide is a crime against humanity and not solely against an individual being. Its commission is the major violation of human rights. This sentiment has been echoed worldwide in recent times.
An uprising has been created the world over in reaction to the recent brutal gangrape of a 23 year old medical intern in Delhi. While it is heartening to know, the laws have a more important role to play.
2.1 In the Indian context there exist a slew of legislations, judgments, guiding principles to prevent sexual harassment especially rape. These are supplemented by very many brilliant suggestions of the Law Commissions and Committees that have been constituted to overhaul rape laws in India. A critical examination of these is warranted for.
2.2 Important Landmarks
Post the Mathura case; there were some important amendments in Criminal Law.
The law, which dates from 1860, has been amended only twice since then, in 1983 and 2003.
The Criminal Law (Amendment) Act, 1983 brought about major changes in the laws on Rape. Hitherto, rape of a woman was treated as an 'ultimate violation of the self'. The Act of 1983 attempted to look upon Rape as a heinous crime which is traumatic for a woman and results in violation of her rights along with humiliation and degradation. The important changes brought about by the Act to strengthen both substantive and procedural law provisions can be summed up as below:
3.1 Consent ' For the purpose of law, the facts of force, the resistance and the absence of consent are legally essential to constitute the offence of rape This has caused a lot of ambiguity often leading to acquittals. The term 'Consent' needs to be defined in the Act as the very definition of the word has been debated in many cases before the Courts. An explanation should be added to the definition to differentiate between consent and mere passive submission. This distinction laid down in the Rao Harnarain Singh Sheoji Singh vs The State by the Punjab Haryana High Court has been followed by the Supreme Court in many subsequent cases and would be the most appropriate and comprehensive definition to incorporate.
3.2 Penetration -It must be noted that through a catena of judicial decisions it has been pronounced that even attempt to penetrate is sufficient. The rupture of the hymen is not necessary evidence.
3.3 Need of Corroboration by Prosecutrix- In Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat, the Supreme Court held that 'Corroboration is not a sine-qua-non for conviction in a rape case. In the India setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration is adding insult to injury. Further, viewing the evidence of the victim of rape with the aid of doubt-tinged glasses is to justify the charge of male chauvinism in a male dominated society. Thus there is great weight attached to the evidence of a victim of a sexual offence since a woman, especially in our tradition bound society will rarely make a false allegation for fear of being stigmatized or losing her reputation and ruining her prospects of marriage and being considered promiscuous. Thus the Corroboration Rule was followed by the Courts in a slew of cases but is yet to find its place in the statute books.
3.4 Medical Examination of Prosecutrix: There need to be made changes in the pattern of medical examinations conducted by the practitioners which feature:
3.5 Refusal of the Police to register F.I.R- As recently announced a rape victim can ask for an FIR to be lodged in any police station. The Supreme Court has held that the Police are duty bound to lodge an FIR. The aggrieved person could move the area Chief Judicial Magistrate with a complaint against the concerned officer in event the police refuses. The Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be, shall take action in a case of inaction upon filing of a complaint petition and give direction to institute the case within a specified time-frame." If the police fails to act even thereafter, "the CJM or CMM shall not only initiate action against the delinquent police officer but punish them suitably by sending them to jail, in case the cause shown is found to be unsatisfactory".
3.6 Delay in lodging of FIR's in rape cases-It is important to note that a Delay in filing a First Information Report (FIR) in rape cases is not material and fatal to the Prosecution case if properly explained. The Court should be sensitive to the fact that in such cases the delay may be due to the stigma often associated with the crime and the hesitation in the mind of the victim to report the case for fear of her and her family name being tarnished as a result.
3.7 Improvement of Sentencing Mechanisms - Sentencing mechanisms and stringent punishments for rape are already in vogue. This becomes evident as because capital punishment can be granted in the rarest of rare cases .However the onus finally rests on the judiciary to decide as to what constitutes 'Rarest of Rare cases'. For instance rape followed by murder would and should constitute the 'Rarest of Rare cases'.
The law allows the judge discretion to award a lesser punishment in special cases such as an aged person or a person of unsound mind,' says Ujjwal Nikam, a Special Public Prosecutor for the Government of Maharashtra.
Having said that sentencing guidelines for judges in India are nonexistent, which could lead to lenient sentences in rape cases. It is important that the evidence be properly built up. Numerous rounds of investigation of the victim should be kept at bay. Clearly the victim should be compensated out of the perpetrator's pocket which would have a deterrent effect.
Per Delhi Domestic Working Forum vs Union of India and Ors: SC 1995
Our judges are to be restricted to the contents of the file and the testimonies of witnesses. These increases manifold the scope for manipulation by lawyers who are to be equally blamed. With due respect to the judiciary, it cannot afford to be swayed by public sentiments alone in these cases.
India records the highest impunity in rape cases i.e. conviction rates are minimal and acquittals are maximum. Further a skewed sex ratio has further spurred on the occurrence of rape crimes.
India can ill afford any further deterioration of the situation than it exists today. Pressure is high to bring about a formidable change. The laws are still haphazard and the vital recommendations of the Law Commissions need to be crystallized with the Government garnering political will to implement those recommendations. A heartening fact is that the Justice Verma Committee constituted to revamp the rape laws in light of Nirbhaya's incident has been flooded with a gamut of suggestions and has already begun deliberations. Though the final stance taken by it is to grant life imprisonment to the perpetrators, crystallization of these amendments is the need of the hour. Amendments in the law to provide for replacement of term 'Rape' by Sexual Assault, stringent punishments and a host of other suggestions have been mooted, paving for a more robust adjudication of such crimes. The need for immediate health care response systems, especially trauma care for the victim, which should be independent of the investigative and judicial rigmarole, yet be mandated by law as a negotiable.Copyright 2022 – Helpline Law
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