A CRITICAL STUDY ON LEGISLATIVE DEVELOPMENTS RELATING

TO RAPE IN INDIA
 LIST OF CASES

Sr. NAME OF CASES

No.

1. Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922

2. Chairman, Railway Board v. Chandrima Das AIR 2000 SC 988

3. Delhi Domestic Working Women‗s Forum v. Union of India(1995)1 SCC 14.

4. Dileep Singh v. State of Bihar(2005) 1 SCC 88

5. Koppula Venkatrao v. State of AP(2004) 3 SCC 602

6. Kuldeep Singh Sengar vs State Of U.P. & Anr. ALLAHABAD, CRIMINAL

REVISION No. - 1181 of 2019

7. Mohd. Akhtar v. The State Of Jammu And Kashmir

8. Mohd.Habib v. State (Delhi High Court)

9. Pratap Mishra v. State of Orissa AIR 1977 SC 1307

10. R V. R (1992) 94 Cr App R 216, 3 WLR 767,

11. Raju v. State of Karnataka AIR 1994 SC 222

12. Rafiq v. State 1981 AIR 559

13. Saakshi v. Union of India AIR 2004 SC 3566.

14. State of Maharashtra v. Chandraprakash Kewalchand Jain(1990) 1 SCC 550

15. State of Maharashtra v. Madhukar N. Mardikar

16. State of Punjab v. Gurmit Singh AIR 1996 SC 1393

17. State of H.P v. Mango Ram (2000) 7 SCC 224

18. Tukaram v. State of Maharashtra AIR 1979 SC 185.

19. Tukaram and Another v/s State of Maharashtra Cr L J 1864 of 1978.

 ABBREVIATIONS

A. : article

AC : Appeal Cases

AIR : All India Reporter

BWF : Badminton World Federation

BRPD : Bureau of Police Research and Development, New Delhi.

Ccs : Central Civil Services

CEDAW : Convention on Elimination of Discrimination Against Women,

1999

CHRC : Canadian Human Rights Commission

CMRA : Child Marriage Restraint Act,1929

CniLJ : Criminal Law Journal

COHSE : Confederation of Health Service Employees

CRPC : Code of Criminal Procedure, 1973

DLR : Delhi Law Review

EU : European Union

FEOC : Equal Employment Opportunity Commission

FGM : female Genital Mutilation

FIR : First information Report

HMA : Hindu Marriage Act, 1955

IAS : Indian Administrative Services

IEA : Indian Evidence Act, 1872

IPC : Indian Penal Code, 1860

IPS : Indian Police Services

LCI : Law commission of India

LSD : Lok Sabha Debates

MINCAVA : The Minnesota Center Against Violence and Abuse

MULR : Mclbourne University Law Review

NCC : National Cadets Core

NCW : National Commission for Women

NGO : Non-government organization

NHRC : National Human Rights Commission

NOC : Notes on Case

NOW : National Organization for Women

NWS : National Women‗s Study

POCSO : Protection of Children From Sexual Offences Act

PM : Prime Minister

PTSD : Post Traumatic Stress Disorder

QBD : Queen's Bench Division

RI : Rigorous Imprisonment

Scc : Supreme Court Cases

SDA : Sex Discrimination Act

Sec. : Section

SI : Simple Imprisonment s

SCcW : Supreme Court Weekly

SC : Supreme Court

TFMRCSA : Tears Foundation and Medical Research Council of South Africa

CEFDAW : The Convention on the Elimination of all Forms of Discrimination Against

Women

ICPD : The International Conference on Population and Development

UN : United Nations

UNDP : United Nation's Development Fund

UNFPA : United Nations Population Fund

]NICEF : United Nations Children‗s Fund

UNICF : United Nations Children's Fund

UNIFEM : United Nations Development Fund For Women

VAWA : Violence Against Women Act. 1994

VAWO : The Violence Against Women Office

WWU : Working Women United

 INDEX

CHAPTER-1 INTRODUCTION

• Review of literature
• Sattement of Problem
• Research Question:
• Research Methodology
• Research Objectives
• Research Hypothesis
• Limitations of Study

CHAPTER- II HISTORY OF THE LGBTOIA+ COMMUNITY ANCIENT INDIA

CHAPTER 3 LEGISLATIVE DEVELOPMENTS IN INDIA

CHAPTER 4 ROLE OF JUDICIARY: JUDICIAL ACTIVISM

CHAPTER-5 CONCLUSION AND SUGESTION

BIBLIOGRAPHY
 CHAPTER-1

INTRODUCTION

Rape is a crime against the soul, according to a well-known proverb, it kills the victim from the
inside out. Rape is an offence which ultimately degrades the soul of a victim. 1 It is not limited to
any physical harm or injury but also damages the mental peace and harmony of the victim that
imposes a stigma on the victim (be it men, child or women) with which the victim is destined to
suffer till the last breath.

Instead of receiving sympathy and treatment, the victim of this crime is socially shunned and
humiliated, her character and dignity being forever tarnished, which has an adverse effect on
both physical and mental health. It is the most morally and physically abhorrent crime in society
since it violates the victim's body, mind, and privacy. A rapist ruins and defiles the soul of a
vulnerable female, whereas a murderer destroys the victim's physical form. Rape results in
uprooting the entire life of the individual who is subjected to it. A rape victim cannot be
considered an accomplice in any way.

Because rape leaves a lifelong mark on the victim's life, a rape victim is held in more regard than
an injured witness. It has been observed by Justice Ajit Pasayat, in the case, State of Punjab v.
Gurmit Singh & Ors2. that:

"of late, crime against women in general and rape, in particular, is on the increase. It is not
merely a physical assault, it is often destructive of the whole personality of his victim. A
murderer destroys the physical body of the victim but a rapist degrades the very soul of the
helpless female. The courts, therefore shoulder a great responsibility while trying an accused on
the charges of rape".

The societal norms have a huge impact on the people, and due to this reason, people are of the
view that the offence of rape can only be committed on a woman, holding a man liable to be a
perpetrator of the heinous and brutal crime, and the woman as a victim. The legal provisions in

1
Rafiq vs State Of U.P, 1981 AIR 559, 1981 SCR (1) 402
2
State of Punjab v. Gurmit Singh & Ors; 1996 AIR 1393 1996 SCC (2) 384 JT 1996 (1) 298 1996 SCALE (1) 309
India also do not criminalize the offence of male rape, thereby increasing the risks of violence
upon the males.

There are various laws to regulate such heinous crime but when it comes on the implementation
part, we lack somewhere or we need to make an attempt to have a hold upon it.3 Thus, abruptly
leads in interpreting the crime in diversified way which sometimes even leads to miscarriage of
justice. As per Section 375 (b) of the Indian Penal Code, 1860 that a man is said to commit rape
if he inserts any object or a part of the body, not being the penis, into the vagina, the urethra or
anus of a woman or makes her to do so with him or any other person. The change in definition of
rape is due to the liberal interpretation of the term, it is the need of the hour and we have to move
according to the present scenario legislature and judiciary are trying to curb this issue defining
these term in a more concrete manner.

Sexual offences like rape constitute an altogether different kind of crime which is the result of
perverse mind. Those who commit such crimes are usually psychologically sadistic persons
exhibiting that tendency in committing rape. Rape is a crime of violence, often regarded by the
woman as a life-threatening act in which fear and humiliation are her dominant emotions. It is an
assault on the woman, her family as well as community. Sexual violence, particularly rape is a
global problem that does not spare any socioeconomic group or culture, especially among
adolescents and young adults. Sexual assault is a neglected public health issue in most of the
developing countries.The word ‗rape‘ has come from Latin word ‗rapio‘ which means ‗to seize‘.
The offence of rape in its simplest term is ―the ravishment of a woman, without her consent, by
force, fear or fraud‖, or as ―carnal knowledge of a woman, by force against her will‖. Basically,
Rape is the carnal knowledge of any woman above the age of particular years, against her will;
or of a woman child, under that age, with or against her will.

Female Rape and its concept

"of late, crime against women in general and rape, in particular, is on the increase.Rape is not
merely a physical assault- it is often destructive of the whole personality of his victim. A
murderer destroys the physical body of the victim; a rapist degrades the very soul of the helpless

3
https://www.writinglaw.com/rape-indian-penal-code/ last accessed on 3 March 2023
female. The courts, therefore shoulder a great responsibility while trying an accused on the
charges of rape4" - Justice Arjit Pasayat

The word "crime" is a very common word that comes across in day to day life. The semantic
meaning of 'crime against women' is direct or indirect physical or mental cruelty to Girls and
women's. Crimes which are directed specifically against women and in which only women are
victims are characterized as "Crime against Women". Rape is the most heinous crime committed
against women by men. It is a considered as a shame and insulting for the woman and her family
and so must be dealt with as a gravest act against human dignity. A murder destroys the physical
body of the victim, but a rapist degrades the very soul of the helpless female.

The Supreme Court of India, while showing its concern over the most heinous crime rape
observed that, "Rape is a crime not only against the person of a woman but a crime against the
entire society. It destroys the entire psychology of a woman and pushes her into deep emotional
crisis. Rape is therefore the most hated crime.

It is a crime against basic human rights and violates the victims most cherished rights, namely
right of life, which includes right to live with human dignity contained in Article 21"5. Sexual
assault on women is a common phenomenon in our country. The offence "sexual assault" also
includes various other separate offences defined in the Indian Penal Code, 1860 called
molestation, eve-teasing, child sex abuse, rape, marital rape, domestic violence.

Of all these crimes, Rape is the most violent crime which is committed against women.
According to Section 375 6, Rape means an unlawful intercourse done by a man with a woman
without her valid consent. Rape outrages a woman's modesty. After a rape incident, a woman
lives a pathetic life which includes fear, depression, guilt complex, suicidal action and social
stigma.

Rape is a sordid reality all across the world, which reflects the sexism in society where there is
unequal power distribution between men and women. It is both serious and controversial in
nature. There is no other crime as interwoven with conflicts and sexual politics as rape. The

4
Shri Bodhisattwa Gautam v. Miss Subhra Chakroborty, 1996 AIR 922; State of Punjab v. Ramdev Singh, AIR 2004
SC 1290: (2003) 6 Suppl. SCR 995: (2004) 1 SCC 421: JT 2003 (10) SC 416: (2003) 10 SCALE 791
5
Indian Penal Code, 1860
6
Constitution of India, 1950
consequent distress and the psychological damage done to a victim destroys her aspirations in
life which is deplorable. While the lawmakers have presented a progressive set of laws to counter
this gruesome criminal act. However, the wave of rape still rages across the nation.

Insufficiency in the current laws related to rape is one of the biggest reasons for the same. Other
than this, there are some more factors responsible for the instant scenario. One of those includes
filing false rape cases by bogus victims. Now, this article is dedicated to examining the two
questions of whether the laws relating to rape sufficient to protect the rightful victims, but
prevent the misuse by bogus victims? Examining the two questions, the article shall make certain
suggestions based on facts as to how these laws can be made sufficient enough in dealing with
the issues.

Rape Laws in India

In order to understand whether the current rape laws sufficient in protecting the rightful victims,
we need to understand the legal provision relating to rape in India. The Criminal Law
(Amendment) Act of 20137 made several changes to the definition of rape under Section 375 of
the Indian Penal Code (IPC). Under the new definition, a man is said to commit rape when he
penetrates his penis to any extent into the vagina of a woman. Now, how far has the penis gone
inside the vagina is immaterial. Even a slight penetration of penis by a man into the vagina of a
woman amounts to rape.

Clause (a) of Section 375 has clearly said that insertion of penis by a man to any extent into the
vagina, mouth, urethra or anus of a woman is rape.

Now, under clause (b) of the said section, notwithstanding the fact whether a man himself inserts
the same or makes the woman do so, the same shall be considered rape.

Clause (c) to the said action provides that if a man manipulates any part of the body other than
penis into the vagina, the urethra or anus of a woman or any part of the body of such woman or
makes her to do so with him or any other person.

7
In order to understand whether the current rape laws sufficient in protecting the rightful victims, we need to
understand the legal provision relating to rape in India. The Criminal Law (Amendment) Act of 2013
Lastly, we have clause (d) to the section clearly says that a man is said to commit rape if he
applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any
other person. Now, the acts defined under these four clauses (a) to (d) under Section 375 of the
Indian Penal Code must be under the circumstances falling under any of the seven descriptions,
which are as follows:

First- Against her will.

Second- Without her consent

Thirdly- With her consent but the consent was obtained by putting her or any person close to her
in fear of death or of hurt.

Fourthly- With her consent but the man knows that he is not her husband and the consent was
given because the woman believes that he is the man with whom she is or believes herself to be
lawfully married.

Fifthly- With her consent but at the time of giving such consent the woman was unable to
understand the nature and consequences of her consent.

Sixthly- With or without her consent, when the woman is below the age of 18 years.

Insufficiency in the current legislation

One of the biggest issues with the legislative definition of rape is its adherence to the penetration
paradigm. This is one of the biggest reasons why rape laws are insufficient in protecting the
rightful victim. It may be noted that, penetration is not the only essence of the offence of rape. It
is rather a denial of sexual autonomy, or simply subjecting the victim without her consent to any
overtly sexual act, whether penetrative or not, and further humiliation and degradation that come
with this physical invasion, making a travesty of the autonomy of the individual to make out who
she wishes to engage in sexual act, at what time and to what extent.

This was recognised as the harm caused by the rape by the Justice Verma Committee. According
to the Justice Verma Committee, penetrative acts which presently constitute the offence of rape
along with the non-penetrative acts which violate the sexual autonomy and bodily integrity of the
victim together may be consolidated into ‗sexual assault‘, with gradations based on harm. Also,
if we look at the definition of rape from the Canadian Criminal Code and the UN Handbook,
both have suggested to shift the focus from penetration paradigm.

Although, the aforesaid amendments have included non-peno-vaginal act under the definition of
rape, yet the focus on penetration remains unchanged. It is important to understand that fondling
of breasts or touching one‘s penis to a woman‘s breasts, or ejaculating onto a woman‘s face or
body or her mouth without even touching her are no less humiliating and invasive than
penetration. Therefore, it is no longer desirable to distinguish penetration from other overt sexual
activities. This would give a definition to the said crime from a woman‘s perspective which
currently is based on the male idea of sex.

Understanding of consent- A Progressive change

The Criminal Law (Amendment) Act, 20138 has however brought over some reformative
provisions making the laws related to rape crime sufficient to some extent. Some of those
progressive steps include understanding of ‗consent‘ where the focus has been shifted to action
of the accused and not the sexual history of the victim. Therefore, a lack of resistance or
submission has now been distinguished from overt agreement or ‗consent‘.

It may be understood that every act done, ―against the will‖ of a woman is done, ―without the
consent‖ but an act done, ‗without the consent‘ is not necessarily ‗against her will‘. The
expression ‗against her will‘ imports that the act is done in spite of the opposition of the woman
to the doing of it. However, where the man had carnal knowledge of a girl‘s imbecile mind and it
was discovered that the act was without the consent of the girl, as she was incapable of giving
the same because of the defect in understanding. In such a case, it was held that the man was
guilty of rape.

Factors responsible for causing hindrance to the protection of a rape victim

The introduction of the new provisions following amendments have other than expanding the
definition of rape, included varying degrees of punishment, ranging from a minimum of seven
years in jail to the death penalty, in cases where the victim dies or is left in a vegetative state.

8
The Criminal Law (Amendment) Act, 2013
The legal age of consent was also raised from 16-18 and it is compulsory now for all the
government and private clinics to give free medical treatment to victims of rape.

However, in the earlier paragraphs, we saw the issues with respect to the current legislations of
rape. Now, it may be important to note a few factors which are responsible for causing hindrance
in rendering justice to a rightful victim. One of the biggest factors for responsible for the same is
the filing of false rape cases by bogus victims. Other than this, we have the Social Stigma
surrounding a rape victim and the archaic practice of two-finger test for determining the
occurrence of rape. In the upcoming paragraph, we shall be dealing with each of them, however
emphasising on the false rape case issue.

False cases involving bogus victims

One of the biggest reasons for the failure in rendering protection to a rightful victim is the filing
of false cases by bogus ones. Even though the new rape laws of 2013 have been designed with an
exceptionally inclusive approach in providing justice to rape cases. However, still, there has been
a number of incidents where rape laws have been misused leading to number of frivolous cases.

The Delhi Commission of Woman (DCW) has put up a remarkably shocking statistics
underlining that 53.2 % of the rape cases filed with the Police between April 2013 and July 2014
were frivolous. The changes brought over in respect of rape laws by the Criminal Law
Amendment Act, 20139 are prone to gross abuse and misuse by woman having some evil or
ulterior motive.

Other than increasing the minimum punishment from seven to ten years and maximum up to
death sentence, the new Act has raised the age of consent from sixteen to eighteen with the
condition that the same needs to be absolute and cannot be established by circumstantial
evidence. These changes, though progressive for rightful victims, provide an opportunity to the
bogus ones to misuse it with ulterior motive. In the upcoming paragraph, we shall discuss the
menace of false rape cases which is causing injustice to both an innocent accused and a rightful
victim.

9
The Delhi Commission of Woman (DCW) has put up a remarkably shocking statistics underlining that 53.2 % of
the rape cases filed with the Police between April 2013 and July 2014 were frivolous. The changes brought over in
respect of rape laws by the Criminal Law Amendment Act, 2013
Social stigma surrounding a rape victim

One of those factors is the social stigma surrounding rape. It may be noted that only 5-6% of
rape cases are reported in India every year. So many cases go unreported citing the fear of
humiliation and retaliation on the part of the victim. The victims find it difficult to register an
FIR against the offender itself. The judiciary is itself divided over whether the police have an
obligation or not under the law to investigate accusations of rape before lodging an FIR.

Archaic and Unscientific practice of two-finger test for determining the occurrence rape

Along, with the aforementioned stigma, there are some bogus practices in the medical industry
with respect to the surgical determination of rape incident. This is the famous two-finger test,
wherein the doctor fingers into the vagina to see if the same is lax and the hymen is absent. Now,
in this case, if the same is proved, then it is concluded that the sex was routine and therefore
consensual. This test was traumatising because ultimately hindered shifted focus to the sexual
history of the victim and not the action of the accused. Fortunately, In June, 2020, a division
bench of the Gujarat High Court observing the practice of two-finger test archaic and outdated
deemed it unconstitutional, as the same was violative of the victim‘s rights to privacy, physical
and mental integrity and dignity.

According to the court, whether a survivor is habituated to sexual intercourse prior to the assault
has absolutely no bearing on whether she consented when the rape occurred. Also, under Section
155 of the Evidence Act, a rape victim‘s credibility cannot be compromised on the ground that
she generally is of immoral character. This decision of the Judiciary is welcoming and a grand
step towards a future where women‘s privacy and integrity shall not be compromised for
outdated practices.

Menace of fake rape cases in India

Recent case matter involving false rape case

As discussed above, not every rape victim is genuine, there are some who file bogus cases with
ulterior motive. This makes it difficult for the law-makers to bring any change with respect to the
laws related to rape. One of the criticisms made against the expansion of the definition of rape
beyond penetration is its over-criminalisation which might consequently lead to dilution of the
value of sanctions made.

In 2020, the Kerala High court expressing its displeasure at a false rape complaint lodge by a
woman against a health inspector granted bail to the latter. The Health inspector as a result was
detained behind the bars for seventy-seven days. The complaint was made under Sections 323
(voluntarily causing serious injury), 506 (i) (criminal intimidation), 376, 376(2)(n) and 376C (b)
(rape) of the Indian Penal Code. However, later she withdrew the same saying that the same was
a consensual sex and not rape10.

Recommendation of the NHRC with respect to the growing fake rape cases menace

The National Human Rights Commission (NHRC) has recommended securing the rape accused
from frivolous cases by making their identities confidential, until they are found guilty. A study
which was conducted by the Centre for Women‘s Development Studies affiliated to the Ministry
of Education and commissioned by the National Human Rights Commission sought to
understand sexual violence against women from the perspective of sexual predators. It conveyed
that a time has come, when it is necessary to safeguard and protect the identity of the alleged or
actual offender, whose personal details can be freely circulated. While revealing the identity of
the victim of sexual crime is punishable under the law, the same principle does not apply to the
offender. Securing the accused from any false claim by a bogus victim is the need of the hour.

Also, a study titled, ―Interrogating violence against women from the other side: An exploratory
study into the world of perpetrators‖- made similar a assertion. The study prescribed that keeping
the identity of an accused and particularly juvenile ones anonymous would be beneficial. It
further said that however the issues of identification and naming of the principal accused may
not appear important in the larger scheme of things, they have ramifications especially for the
accused himself, who later is found innocent.

10
In 2020, the Kerala High court expressing its displeasure at a false rape complaint lodge by a woman against a
health inspector granted bail to the latter. The Health inspector as a result was detained behind the bars for
seventy-seven days. The complaint was made under Sections 323 (voluntarily causing serious injury), 506 (i)
(criminal intimidation), 376, 376(2)(n) and 376C (b) (rape) of the Indian Penal Code. However, later she withdrew
the same saying that the same was a consensual sex and not rape
It has been therefore recommended to introduce progressive reforms for perpetrators rather
declaring them guilty at the time of lodging charges against them. A crime like rape must not
only be understood from the context of an illegal activity that breaches a given statutory law, but
as a transgression targeted at violating the agency of the victim(s).

Criticism by a woman right activist lawyer regarding fake rape cases

According to a lawyer and women rights activist, Vrinda Grover, raising the age of statutory rape
to 18 years, the state has criminalised consensual sexual relationship between adolescents and
permitted parental and societal control over the lives of such people. This consequently provides
fodder for the ―false cases‖ narrative. According to Vrinda Grover, there is compelling proves
available for the state to change the law and revert the age of statutory rape to sixteen years.

Low status of women:

In India, gender equality is still prevailing. Also, India is amongst the countries in the world that
have the lowest women's health and safety. Women are treated as inferior. A wife's duty is
considered to serve his husband.

Inappropriate guidance in sex education:

We Indians hesitate in talking about sexuality, reproductive rights, menstruation, or sexual

desires. But the reality is this aspect has a lot of potential to change the current landscape.
Providing adolescent education or sex education in primary school might remove the root cause
of the problem.

Lot of laws but no justice:

India has too many laws, but the problem lies with the enforcement. Delay in trials, slow
investigation, and low rate of conviction is other important cause. The conviction rate in India is
around 26%. India has about 15 judges for every 1 million people, while China has 159 judges.
In the Hyderabad case, the police refused to lodge a complaint and did not track her phone,
saying that she must have 'eloped with her boyfriend.' The woman's family had also told the
National Commission for Women that Hyderabad Police wasted precious time, which could have
saved her life.
Lack of Public Safety:

There is no safety for women. Women who drink, smoke, or go to pubs are seen as morally loose
in Indian society. No matter what time of the day it is, a woman is seen as an object of
entertainment. Street lights in many cities are still extremely poor. Also, the absence of women's
toilets is a cause of serious concern to women's safety.

Blaming clothing:

People often judge girls by their clothes. Nevertheless, the victims are often blamed for wearing
provocative clothes. A legislator in Rajasthan suggested banning skirts as a uniform for girls in
private schools, citing it as the reason for increased sexual harassment cases.

Less number of female police:

According to studies, it can be concluded that women are more likely to report sexual crimes to
female police as they are more comfortable with them. When a woman reports to male police,
they often have a fear of being demeaned by them. Women, most of the time, prefer to stay silent
or ignored when they face sexual violence. They believe that if they speak up, nobody will
support them.

Review of literature

Vandana Sexual11 Violence Against Women—Human Rights and Penal Perspective focuses on
sexual violence: its concepts, determinants and dimensions. It endeavors to analyse it from the
legal and human rights perspective. The book explores the deep interlinking between gender and
sexual violence. It traces the development of Indian law in each case. The book elaborately
analyses various critical legal issues related to rape and sexual harassment and the judicial
response in each case as exhibited through the decisions of higher judiciary with a focus on the
decisions of the Supreme Court of India. This book will prove to be an indispensable aide for
students, teachers, researchers, academicians, members of the Bar and Judiciary, and for anyone
interested in the legal and human rights issues related to sexual violence.

11
Vandana, Sexual Violence Against Women – Penal Law AndHuman Rights Perspectives, 2009.
 12
Dipa Dube The most dreaded, yet the most frequent, the most tabooed, yet the most discussed
the most traumatic, yet the most discarded: possibly, that is how one would describe the term.
The gravity and brutality of the offence has drawn concerns from all quarters yet the offence has
continued unabated, with abysmally low conviction rates, even lighter and sometimes, erratic
sentencing patterns and unsympathetic treatment of its victims. Rape Laws in India is a bold
attempt on the part of the author to encourage a debate amongst the policymakers, judges and
academicians. It analyses core issues in rape laws in force in India. The subject has been dealt
with comprehensively, while unearthing the historical influences in the laws, revealing the
patriarchal overtones and criticizing the conventional and conformist traditions of judicial
decision making. The entire development of the law has been traced, with emphasis on shifting
concerns and focus. The numerous legislative amendments redefining the offence, enhancing
punishment and procedural technicalities have been discussed, as also the judicial activism of the
nineties, which contributed significantly through rights assertion and protective decision making.
Apt references to international developments and municipal laws of nations have been provided
in order to give a comparative treatment to the subject. Emerging issues in rape laws in India and
practicable suggestions find a place in the book. Overall, it attempts an informative and critical
study of the subject from diverse perspectives.

PK Das13 the Offence of Rape has been dealt with under the Indian Penal Code not as a mere
provision with a limited scope but has acquired a very wide dimension in terms of its definition
as well as scope. The obvious reason is the challenge posed by the increasing number of
instances of commission of such crimes in the society and a corresponding urgent need to re-
impose the deterrent effect of our penal law. Even though the IPC was codified in the year 1860
i.e. about 157 years ago with provisions considered very stringent in terms of the punishments
laid down for different offences therein, it has somewhere failed to achieve its purpose. The ever
increasing number of such offences being committed in the society is the best evidence of its
shortcomings. Perhaps, Indian societal humanitarian and ethical status is responsible for such
upraise in criminal statistics. The legislature, executive, judges and lawyers on the one hand and
our legal system on the other are well aware and conscious of the menace posed by such crimes.
However, there is hardly any control over the commission of such heinous crimes. Further, the

12
Dipa Dube, Rape Laws In India, Lexis Nexis; First edition (2008)
13
PK Das Handbook on Anti-Rape Laws in India Paperback – 1 Jan 2017
voice raised by the social activists, NGOs, women interest organizations, time and again in India
and abroad, has also failed to yield any fruitful results at the ground level though it cannot be
denied that a fight against such a heinous crime has to be a continuous one and not a mere one-
time affair. Our judicial system even at the cost of being charged with ‗judicial activism‗ has
discharged its functions by acting in the most desirable manner not restraining itself from hearing
the voice of conscience and thus delivered some landmark judgments going beyond the literal
interpretation to the black letters of the law. This has been done inter alia in the area of basic
human rights of women.

Lynn A. Higgins 14 Rape does not have to happen. The fact that it does--and in the United States a
rape is reported every six minutes--indicates that we live in a rape- prone culture where rape or
the threat of rape functions as a tool for enforcing sexual difference and hierarchy.

Rape and Representation explore how cultural forms construct and re-enforce social attitudes and
behaviors that perpetuate sexual violence. The essays proceed from the observation that literature
not only reflects but also contributes to what society believes about itself.

Fourteen essays by authors in the fields of English, American and African-American, German,
African, Brazilian, Classical, and French literature and film present a wide range of texts from
different historical periods and cultures. Contributors demythologize patriarchal representation in
literature and art in order to show how it makes rape seem natural and inevitable. Contributors
include the editors, John J. Winkler, Patricia Klindiest Joplin, Susan Winnett, Ellen Rooney,
Coppélia Kahn, Eileen Julien, Marta Peixoto, Kathryn Gravdal, Carla Freccero, Nellie V.
McKay, Nancy A. Jones, and Froma I. Zeitlin. Their work raises pressing--and often difficult--
questions for feminist criticism.

Vimala Veeraraghavan15 provide a comprehensive account based on empirical data on the rape
phenomenon and rape victims. A pioneering work in the field, as the rapists, victims and the
parents of the rape victims have been personally interviewed and their problems, views and
suggestions have been incorporated in the book. A few case studies have been included to show
the typical trauma undergone by the rape victims.

14
Lynn A. Higgins Rape and Representation Columbia University Press, 15-Jul-1993
15
VimalaVeeraraghavan Rape and Victims of Rape: A Socio-psychological Analysis Northern Book Centre, 1987.
Pratiksha Baxi16 Sexual violence in general and rape in particular, is under-reported in India. The
social stigma associated with rape is the biggest hurdle that a rape survivor faces right from the
time of reporting the matter to the police to the stage of trial. This book, one of the first
ethnographic studies of rape trials in India, focuses on the everyday socio-legal processes that
underlie the making of rape trials. It describes how state law is transformed in its localization,
often to the point of bearing little resemblance to written law.

The work centers around four extended case studies in a trial court in Ahmadabad. These case
studies show how the effects of power and knowledge congeal to disqualify women's (and
children's) testimonies at different sites of state law such as the police station, forensic science
laboratory, or the hospital and the court.

This book describes multiple ways in which public secrecy is subjected to specific revelations in
rape trials that do not bring justice to a rape survivor but address and reinforce deeply entrenched
phallocentric notions of justice.

Bringing sociological insights to the contested and anguishing issue of rape trials, this book is an
essential read for all those committed to a just and safe society for women in India.

Julie A. Allison, Lawrence S. Wrightsman17 Rape is probably the most misunderstood of violent
crimes. The dynamics related to both rapists and rape victims are explored in this volume, which
dispels many mistaken beliefs about rape by synthesizing current research from a psychological
perspective.

Among the topics explored are: that only a very small proportion of rapists are ever convicted;
that when an accusation of rape is made, it is the victim who too often becomes the focus of
attention; and that while the stereotype of the rapist as a madman, a stranger to the victim, is still
prevalent, most rapes are committed by someone known to the victim.

16
Public Secrets of Law: Rape Trials in India, Oxford University Press, 2014.
17
Rape: The Misunderstood Crime, SAGE, 21-Jun-1993
Georges Vigarello 18 this important new book, by one of the leading social historians in France
today, analyses the changing meaning of rape through numerous case studies across the
centuries. The book begins with a history of the relative tolerance of sexual violence in early
modern France, and the tendency to condemn the victims by enveloping them in the shame of the
act. It then traces the changing legal attitudes to sexual violence at the end of the eighteenth
century, and the slow recognition of the role of moral violence in rape in the nineteenth century.
Vigarello also stresses the importance of the new medical jurisprudence and the introduction of
forensic psychiatry into the courtroom.

But despite the increased number of convictions in the nineteenth century, it was only after the
campaigns conducted by feminists in the twentieth century that the true gravity of rape as a crime
against women's integrity was fully recognized. As a result, acts of sexual violence are no longer
assessed in terms of the risk of debauchery, but in terms of the risk of 'psychic murder' and inner
damage. A History of Rape is a valuable resource for students and scholars of social history, and
anyone interested in changing attitudes to sexuality and sexual violence 19.

Rama Mehta20 in this book the status of Women in Society has become very important lately.
Though the secondary status of women has constantly invited The philosophers and sociologists
have been invited for research because of the secondary status of women. This position of
women has been the cause of anger from centuries. The present times seem most appropriate to
highlight sociological problems because this is the age of communication and the aspiration for
an egalitarian society is at its peak, despite formidable handicaps. Women form almost 50
percent of the population and to imagine and advanced society without the advancement of
women would be anything but wise. This book is just another bid to understand women‗s
position in a socio-legal context. Since law is an instrument to bring about the social change, this
makes the study socio-legal. A small portion of the book is devoted to the Western aspects which
give it a comparative touch. The rest of the book takes up the Indian position; a brief history,
constitutional framework and the laws enacted for women in India. How far these laws have
succeeded in ameliorating women‗s condition is for the reader to assess.
18
Georges Vigarello A History of Rape: Sexual Violence in France from the 16th to the 20th Century Wiley, 02-Jan-
2001
19
https://www.aljazeera.com/indepth/opinion/2012/12/201212319356987371.html
20
Rama Mehta Socio-Legal Status of Woman In India Mittal Publications, 1987. 28 A.S. Altekar The Position of
Women in Hindu Civilization Motilal Banarsidass
A.S. Altekar28 The position of women in Hindu civilization will enable the reader to understand
the subject in the right perspective. This work not only surveys the status of Hindu women
during the last four thousand years, but also indicates the common lines on which the problems
of the present one must be resolved. Treatment is quite reasonable; the boundaries of Hindu
civilization are not crossed nor exaggerated under its pretext, nor vice-versa. The subject has
never been treated with such realism, purity and comprehensiveness. Women in India have been
active in social and religious matters. Things here do not work like a society where religion takes
a long time to be accepted, and even women have souls. This book discusses issues such
as ―widow status marriage and divorce‖ and property and rights to clothes and jewelry, because
it is based on a critical survey of all available data.

Sattement of Problem

A CRITICAL STUDY ON LEGISLATIVE DEVELOPMENTS RELATING TO RAPE IN

INDIA

Research Question:

There are much progress to curb the offence of rape by the legislative and judicial development
but how far this problem has been reduced. Through my study, I want to study critically these
developments that whether the laws and judiciary made enough provisions which can help to
stop the offence of rape?

Research Methodology

The objective of this study has been to find out the attitude of the legislature and judiciary
towards rape and its victims and as such, it is a fact-finding investigation of the laws of India and
judicial decisions of the higher courts.

The method of the study is doctrinal or arm chair method of library research. In the analysis of
the cases, this research has used law reports and journals especially relating to Criminal Law and
Justice. After review of the relevant judgments, the researcher has analyzed the response of the
judiciary from the victimological perspective. Finally, based on studies of relevant laws and case
studies, the researcher has made a critical analysis of the present scenario with stress on future
initiatives, keeping in mind the international developments.
Research Objectives

The object of the present study is to study and critically analyses in a holistic manner the crime
of rape in the socio-legal background of India. The study aims at evaluating the effectiveness of
the current legal regime in curbing and regulating the heinous offence of rape in India.

The present work has following objectives:

 To study the historical background of the problem of rape in India.

 To analyse the role of social, religious, cultural and economic factors in perpetrating this
heinous offence against women in India.
 To analyse the role of Extra-Constitutional bodies like Khap Panchayats and Kangaroo
Courts in reinforcing the patriarchal notions in the society.
 To evaluate the current legal regime on rape in India.
 To study and analyse the different dimensions of rape in India i.e., marital rape, gang
rape, rape with girl lesser than 12 and 16 years of age etc.
 To evaluate the effectiveness of the Criminal Law Amendment Act 2013 (Post Nirbhaya
Case) in curbing the offence of rape in India.
 To evaluate the effectiveness of the Criminal Law Amendment Act 2018 in curbing the
offence of rape in India.
 To study the judicial response towards the problem.
 To effectively analyse the international law, treaties and conventions on curbing the
heinous offence of rape against women.

Research Hypothesis

The researcher has assumed hypothesis for the research: -

 That the current laws dealing with rape are not enforced effectively.
 That despite prescribing harshest penalties like capital punishment the offence of rape
could not be curbed.
  That the offence can be better curbed by changing societal mindset rather than enacting
stringent laws.
 That in most cases the victim of rape is left to fend for herself without any aid and help
from state and society.

Limitations of Study

Certainly, here's a concise list of limitations that could apply to your study:

Sample Size and Diversity: The study's limited sample size or lack of diverse participants might
not provide a comprehensive representation of the LGBTQI+ community and adult males,
leading to potential bias in the findings.

Sampling Bias: If participants are self-selected or recruited through specific channels, the study
might not accurately reflect the broader population's perspectives and experiences.

Subjective Interpretation: The interpretation of qualitative data, such as interviews or open-ended

survey responses, can be subjective and influenced by the researcher's biases, potentially
impacting the objectivity of the study.

Cross-Cultural Variations: The study's findings might not be easily generalized to different
cultural contexts, as attitudes, legal systems, and societal norms related to rape can vary widely.

Time Constraints: A limited timeframe for data collection and analysis might not allow for a
thorough exploration of the complex and evolving nature of laws and punishments for rape.

Recall Bias: Participants' recollection of their experiences might be influenced by memory

biases, affecting the accuracy and reliability of the information provided.

Social Desirability Bias: Participants might provide responses that they believe align with
societal expectations or norms, rather than their true feelings or experiences.

Ethical Considerations: Delving into sensitive topics like rape might lead to participants'
discomfort, affecting the depth and authenticity of their responses.
Incomplete Historical Context: The study might not fully consider the historical evolution of
laws and punishments for rape, potentially leading to a limited understanding of the topic.

Legal Complexity: Laws related to rape can be complex and open to interpretation. The study
might not fully capture the intricate legal nuances that influence outcomes.

Lack of Comparative Analysis: A lack of comparison with other types of crime or different
victim populations might limit the broader understanding of the LGBTQI+ community's and
adult males' experiences.

Limited Focus on Perpetrators: The study might primarily concentrate on victims' experiences,
potentially missing insights into the motivations, behaviors, and demographics of perpetrators.

Access to Data: Limited access to official records, legal documents, or confidential information
could hinder the study's depth and accuracy.

Changing Attitudes: Societal attitudes towards the LGBTQI+ community and male victims of
rape are evolving. The study might not capture the most up-to-date perspectives.

Secondary Data Reliance: If relying heavily on secondary sources, the study might not have
direct control over the accuracy and completeness of the data.

Legal Definitions: The study might not fully address variations in legal definitions of rape,
consent, and related terms across different jurisdictions.

Quantitative vs. Qualitative Balance: Depending on the study's focus, a skewed emphasis on
either quantitative or qualitative data might limit a well-rounded understanding of the issue.

Participant Anonymity: Ensuring participant anonymity might lead to missing crucial contextual
information that could enrich the findings.

Influence of Media: The study might not account for the potential impact of media portrayal and
coverage of rape cases on public perception and legal outcomes.

Limited Long-Term Perspective: The study might lack insights into the long-term effects of legal
actions and societal attitudes on victims and communities.
 CHAPTER- II

HISTORY OF THE LGBTOIA+ COMMUNITY ANCIENT INDIA

Vedic wisdom was originally communicated verbally, but at the beginning of the Kali Yuga,
Srila Vyasadeva placed it in written form. The four Vedas are among these publications, along
with the Brahmanas, Aranyakas, Upanisads, and literature referred to as the "fifth Veda"
(includes: Shastras, Samhitas, Itihasas, Puranas, Ramayana, Mahabharata, Bhagavad Gita, etc.).
Almost all of the material previously listed makes reference to people of the third sex.

Manu collected the verses pertaining to ethical behaviour and civic values from the Vedas after
Brahma had dispensed them at the beginning of creation. This resulted in the formation of the
Dharma Shastra. Similar to this, when compiling the Artha Shastra, Brhaspati excluded the
verses that dealt with politics, the economy, and prosperity. The Kama Shastra was created by
Nandi, a companion of Lord Siva, by excluding texts that dealt with sensual pleasure and
sexuality15.This Kama Shastra was written, along with the rest of the Vedic literature, about five
thousand years ago by the renowned sage Vyasadeva.16 After that, it was broken up into
numerous pieces and nearly lost until it was assembled again by the brahmana sage Vatsyayana
in the Gupta era, or around 300 A.D.21

Since there are no real English equivalents for the Sanskrit terms napumsaka, shandha, kliba, etc.
and because these words cover such a wide range of different people, referred them simply as
―third sex‖ or ―third gender.‖

Three Categories of Gender:

According to prakriti, or nature, the human sex or gender is clearly separated into three different
categories throughout Vedic literature. There are three of them: pums- prakriti, stri-prakriti, and
tritiya-prakriti, or the third sex.22 These three genders are not solely based on physical traits, but
rather on an evaluation of the whole person, taking into account both the subtle and gross bodies

21
Alain Danielou, THE COMPLETE KAMA SUTRA 1.1.13, 14 and p. 4.
22
Bhaktivedanta Swami Prabhupada , SRIMAD BHAGAVATAM , (4.17.26, 8.3.24, 4.28.61, and 10.1, notes); Alain
Danielou, THE COMPLETE KAMA SUTRA (2.9.1); William R. Levacy, BENEATH A VEDIC SKY (p. 363) and G. Buhler,
THE LAWS OF MANU (p. 84, Manusmriti 3.49).
(psychological and physical), as well as a special factor based on social interaction (procreative
state).

The Kama Sutra, or "codes of sensual pleasure." Even though it is sometimes presented to
Westerners in the guise of an exotic sex manual, the unabridged Kama Shastra offers a unique
window into the Vedic India of the past with regard to sexual understandings. The Kama Sutra
categorises people of the third sex into a number of groups, some of which are still discernible
now and are widely known as homosexual men and lesbians. They are frequently identifiable as
effeminate males or masculine girls while they are young, and they are distinguished by an
innate gay tendency that becomes apparent during puberty. Although lesbians and gay men are
the most visible members of this group, it also includes different types of persons like
transgenders and intersex individuals.

Vedic society was all-inclusive, and every person was regarded as an essential component of the
larger total. As a result, every group of guys was catered to and given work that suited their
personalities. Citizens of the third gender were not persecuted or denied fundamental rights.
They were permitted to maintain their own communities or towns, live together in matrimony,
and pursue all forms of employment. It is erroneous to suppose that Sanskrit terms like kliba
(gay)23, shandha/shandhi (An Eunuch), and napumsaka21 (guy who has no taste for women and
does not procreate) mean anything about homosexuality. Despite the fact that this may
technically refer to sick, elderly, or castrated men, it most frequently refers to the gay or
homosexual male, depending ofcourse upon the context and behaviour of the character being
described, only refer to castrated men or neuters, especially when we take into account the fact
that castration was not a practise that was routinely used in ancient India.

Gay men may live as transvestites or they could integrate into society as regular guys by dressing
and acting like women. Transvestites were welcomed to all religious, birth, and marriage events,
since their attendance was regarded as lucky and fortunate. Even today, India still practises this
custom. Lesbians were accepted as svairini, or independent women, and were allowed to support
themselves. No one anticipated that they would accept a husband. Of the total population, which
most estimates put at around 5%, people of the third sex made up a very small minority.

23
Alain Danielou, THE COMPLETE KAMA SUTRA, 2.9.2
They were viewed as unaffected by the typical ties of procreation and family life and were not
seen as a threat in any way. They were given their own unique status in this way and accepted
into the refined Vedic culture.

First, the third sex is divided into groups based on whether its members have more male or
feminine physical traits. These are referred to as svairini, or lesbians, and kliba, or homosexual
men. Then, based on whether their behaviour is male or female, each of these categories is split
into two. They are then broken down even further into numerous subcategories. The most
notable representatives of the third sex are homosexuals. Their third-nature identity is revealed
by their exclusive romantic and sexual desire for people who are of the same physical sex,
despite the fact that they appear to be regular males and females. Gay men feel the attractions
that women typically feel, while lesbian women feel the attractions that men typically feel. Other
forms of "cross-gender" behaviour are frequently displayed by such individuals, but not always.

The term "Kami" refers to people who are attracted to both men and women at the same time or
who practise homosexuality for reasons other than natural desire. Sanskrit terminology for those
who alternate between heterosexuality and homosexuality on occasion is paksha.24 The Srimad
Bhagavatam makes reference to bisexual women (kamini).

There were eight different types of marriage according to the Vedic system, and the homosexual
marriage that occurred between gay males or lesbians was classified under the gandharva or
celestial variety. This type of marriage was not recommended for members of the brahmana
community but often practiced by heterosexual men and women belonging to the other classes.
The gandharva marriage is defined as a union of love and cohabitation, recognized under
common law, but without the need of parental consent or religious ceremony. 24 In the
Jayamangala, an important twelfth-century commentary on the Kama Sutra, it is stated: ―Citizens
with this kind of homosexual inclination, who renounce women and can do without them
willingly because they love each other, get married together, bound by a deep and trusting
friendship.‖

24
Bhaktivedanta Swami Prabhupada, SRIMAD BHAGAVATAM 5.24.16.
Due to their inability to produce offspring, males of the third sex are not eligible to receive
family inheritance according to both the Manusmriti 28and Narada-smriti. But the Manusmriti
indicates that if they "somehow or other" succeed in taking wives and bearing offspring, the
children in such situations are entitled to a share30. In either case, the family is obligated to
support their third-gender children in accordance with their means. The Yajnavalkya-smriti and
the four Dharmasutras— Apastamba, Gautama Baudhayana, and Vasistha repeat the same
instructions. Further, according to the Vasistha Dharmasutra a king should care for third-gender
subjects without families because their estates revert to him upon death.

Vilifying third sex individuals (kliba) is forbidden by the Artha Shastra. A fee of twelve silver
panas is enforced if the person being demonised is genuinely impotent; if not, a punishment of
twenty-four panas is levied. A fine of 36 panas is imposed for making fun of a person of the third
sex in public. The fines are increased if the victim is a superior or another person's wife; the fines
are listed for people of equal standing. The penalty are divided in half if the victim is an inferior
or if the vilification was done unintentionally, while intoxicated, etc. 25

Scriptures pertaining to ayurveda, or the science of life, health, and medicine, are referred to as
the Ayur Shastra. The Sushruta Samhita, which is a bit older and more well-known, and the
Caraka Samhita, which is highly regarded among Ayurvedic physicians and health professionals,
is the two most well-known works in this category. Both publications go into great depth about
the third sex and claim that it is innate and incurable. There are numerous examples of saints,
demigods, and even the Supreme Lord defying gender expectations and emerging in a variety of
sex and gender identities throughout Hindu and Vedic writings. These include all possible
genders, including male, female, and hermaphrodite.

Hinduism acknowledges God as limitless and free of any gender bounds. The Supreme Lord
displays countless varieties of forms, much like an actor on a stage, for the purpose of engaging
in transcendental pastimes (lila). The Hindu deities listed below offer fascinating examples of
saints, demigods, and Lord incarnations connected to gender variety and transformation, such as:

• Deities that are hermaphrodite (half man, half woman)

25
Ibid (3.18.4-5)
 • Deities that manifest in all three genders
• Male deities who become female, or female deities who become male
• Male deities with female moods, or female deities with male moods
• Deities born from two males, or from two females
• Deities born from a single male, or from a single female
• Deities who avoid the opposite sex, and
• Deities with principal companions of the same gender.

These many illustrations show the striking degree of gender diversity present in Hinduism.
Homosexuals, transgenders, bisexuals, hermaphrodites, and other members of the third sex who
live in India identify with these deities and give them enormous reverence and devotion. They
come in great numbers to commemorate the important holidays and festivals associated with
them, along with other Hindus. Due to their dual male and feminine natures, these individuals
were connected to these celestial characters in traditional Hinduism. They were seen as lucky
representations of harmony, fortune, and culture and were used in a variety of religious rituals.

MEDIVAL INDIA:

In the early mediaeval era, there are a few sporadic references to same-sex love, but by the late
mediaeval era, there is a vast amount of writing on the subject. The majority of the content is
focused on men Armed migrants started entering India from west of the Hindukush mountains in
the last years of the eleventh century. Perso-Turko-Arabic cultural traditions were brought to
India by the new immigrants. Originally restricted to military hubs, this governing class and their
cultural traditions quickly spread across a wide area thanks to the Sufi movement33. Both the
courts and the Sufis had an impact on mediaeval literature, but the latter had a greater impact.

We are concerned about two key aspects of this time period.

First, the new ruling class tended to settle in urban areas; an obvious trend from the thirteenth
century onwards is an increase in urbanisation. The thriving markets and towns produced a street
culture built on male interaction. Men from various social groups, castes, and communities
mixed in these bazaars; here homoerotically oriented men met and formed relationships. Caste
divisions started to disappear in urban marketplaces due to communal eating, drinking, and
social interactions.
Second, a noticeable growth of texts began about this time because to the rapid development of
the paper-making business. The state has always provided funding for the growth of literacy.
Bazaars had established the book trade by the fifteenth century. We also know that book sellers
placed orders for titles they anticipated would be more well-liked. As a result, people from
various social strata could access the majority of the texts that we extracted.26

Romantic and sensual interactions between men across class and religious lines are depicted in
mediaeval poetry. In Mir's "gbazals Oove poems," a variety of male youths—including Sayyids,
Brahmans, Mughals, Turks, gardeners, soldiers, masons, firework makers, washermen,
moneychangers, boatmen, flower sellers, musicians, singers, goldsmiths, doctors, perfumers, and
even sons of judges (qazis) and law-givers—are referred to as "bazaar boys." An example of a
love connection between two males, one Muslim and one Hindu, can be found in Mir's narrative
poetry Sbola-i Isbq.

BRITISH ERA

It is inconceivable to exaggerate the contribution made by Victorian British academics and

educators to the homophobic climate currently present in India. Victorian educators strongly
brainwashed many professional and religious figures who were growing up in India during the
nineteenth and twentieth centuries with homophobic stereotypes and views, and these antiquated
notions still exist today. Even though most people will find these opinions to be absurd by
today's standards, India nonetheless upholds regulations that are founded on such
misconceptions. As a result, millions of third-sex individuals in India are stigmatised as societal
misfits and compelled to spend their lives in silence and deprivation since they lack civil rights.

The following passages are drawn from books that were published and widely read in India at the
beginning of the 20th century. Numerous of these works are still cited as authoritative sources
today, and it is clear that they have a homophobic and nasty attitude towards people who identify
as third sex. Be aware of how closely these texts' statements resemble modern Christian
fundamentalism and how far they depart from the ancient Hindu values of inclusivity and
tolerance.

26
Ibid 181
―The Reason for the Present Disasters: The present government has laid down severe penalties
for unnatural fornication and the subjects fear these penalties, but who then are the immoral ones
who practice unnatural immorality? We are not told how to recognize them, but in the section on
oral sex, the author of the Kama Sutra has drawn a portrait of their activities and has also
introduced us to their identity, saying, Usually, this act is performed by shandas .These evil
practices are spreading among young men today like an infectious disease. If these tendencies
were removed from their hearts by good education, they could become healthy, disease-free,
good-charactered heroes, who would adorn the country by their lives. Such boys do not engage
solely in oral activity, they also engage in another type of unnatural fornication. People involved
in theatre commonly are puppets of that type of vice. They all pretend to be pure, though.‖27

Pandit Madhavacarya alters the Kama Sutra in his own corrupted version in order to promote his
own "modern" Victorian values and views. He exploits the ninth chapter of the Kama Sutra,
which discusses persons of the third sex, to accuse them of being immoral and unnatural
fornicators—terms and charges that are not found in the Kama Sutra—and to blame them "for
the present disasters" of society. He continues by calling homosexuality "evil practises" that are
"spreading like an infectious disease" and suggesting that education can treat it. Last but not
least, Pandit Madhavacarya links gay behaviour to an alleged dagger battle that took place in an
Indian college. He effectively conveys his disdain for homosexuality and those who identify as
third sex through this.

―Hermaphrodites: Therefore it is necessary to discuss those beings who are neither men nor
women. Eunuchs exist not only in India and in the East but also in Europe and America. In India
the eunuchs are formally organized. There is complete agreement and unity among them and
they are constantly intent upon expanding their community. You can well ask what sort of
wretched person would want to join the community of these hijras. You might not know, but
there are countless such men who are counted as men but whose emotions are exactly the same
as those of women. there are women who, to all intents and purposes, are free from the qualities
of women and have manly qualities. Such women are well built and slightly fair with a muddy
complexion.........The Existence of Eunuchs is Dangerous: Do not allow eunuchs or hijras to
enter the house. If the existence of lewd women is a danger, so is the presence of eunuchs.

27
Pandit Madhavacharya, KAMASUTRAM, (Bombay: Venkateswara Steam Press, 1911, 1995).
Eunuchs may corrupt the thoughts of respectable women with their poisonous conversation.
Therefore it is not wise to let them come into the house or to make them guard women. Instead,
it is an invitation to the corruption of respectable women…‖ 28

Hasan expresses concern over their organisation, wonders what sort of despicable people would
join such a society, and even warns that they should not be allowed inside the home— ideas that
are in direct opposition to traditional Hindu beliefs that eunuchs are fortunate and especially
helpful in domestic spheres. His portrayals of gay men and lesbians under the category
"Hermaphrodites" are extremely hilarious, especially when he compares lesbians to bloodthirsty,
murderous vampires!

21ST CENTURY: CONSTITUTIONALITY OF 377

Consensual sexual activity between members of the same sex is classified as a "unnatural
offence" under Section 377 of the IPC since it goes "against the order of nature." Ten years in
prison were the suggested sentence. The clause is a Victorian- era statute that has persisted until
the twenty-first century. Although the law does not specifically target the LGBTQ community,
since it was included to the Penal Code in 1860, members of the group have primarily been
subjected to persecution. The word "persecute" is crucial in this context because prosecutions,
where people are formally detained or made the subject of legal proceedings, are
uncommon38.The law instead legalises a more subversive type of harassment, such as extortion,
institutional discrimination, or governmental assault.39 It's interesting to note that homosexuality
has never been criminalised or decriminalised in more than 123 nations worldwide. Currently,
same-sex relationships are actively illegal in 57 nations.

The human rights organisation AIDS Bhedbhav Virodhi Andolan (ABVA) petitioned the Delhi
High Court in 1994 in an effort to challenge the validity of Section 377.A 1994 survey that
revealed two-thirds of the inmates at Tihar Jail, India's largest prison, had engaged in
homosexual conduct, led to the petition. The authorities rejected suggestions to make condoms
available in the prison because they believed doing so would be equivalent to legalising
homosexuality.

28
Hakim Mohammed YusufHasan, ed., DO SHIZA (Lahore, 3rd ed.1934).
In its appeal, ABVA sought to advance just such legalisation, challenging Section 377's
constitutionality on a number of grounds and calling for its total repeal. Ultimately, the petition
sat in the Court for eight years until being quietly dismissed.

The Delhi High Court received a plea from the Naz Foundation, an NGO that works in the area
of HIV/AIDS intervention and prevention and whose mandate includes dealing with homosexual
and MSM people, in December 2001 contesting the validity of Section 377.

The Naz Foundation (India) Trust contested the validity of Section 377 of the Indian Penal Code
on the grounds of Articles 14, 15, 19 and 21. The Foundation argued that Section 377 has no
place in contemporary society because it represents an outdated view of the purpose of sex,
which is to facilitate reproduction. Additionally, the police had turned the clause into a weapon,
which complicated efforts to stop the spread of HIV/AIDS. The Foundation mentioned a 2001
incident in Lucknow where HIV prevention workers were accused of plotting to commit a felony
while they were giving out condoms to homosexual males. The Naz Foundation also claimed
that the clause was being abused to criminalise non-penovaginal consensual sex practises.

The petition argued that the discriminatory attitudes displayed by state entities against sexuality
minority undermined the HIV/AIDS prevention work of the Naz Foundation. Lawyers
Collective, an organisation that offers human rights legal services, was representing the
petitioners. Promoting HIV/AIDS prevention in the society would be impossible unless the self-
respect and dignity of sexuality minority were restored by eliminating discriminatory legislation
like Section 377.

The filing of the suit was met with a sharply split response from activists and attorneys working
on queer rights in the country, according to Naisargi Dave's ethnography of queer activism in
India. Many groups felt they hadn't been consulted about this decision that would have an impact
on their future activity, which was the basis for one degree of criticism. Another substantial
criticism of the petition was made because it was seen as taking an elite stance in calling for the
decriminalisation of sexual activity in private. This ignored the large majority of people from
disadvantaged socio-economic backgrounds who were unable to live in any type of private place.
Women's organisations disagreed with this emphasis on privacy because a major goal of their
campaign was to end impunity in the home. In this situation, returning to the right to privacy will
reinforce the private realm by adding still another layer of seclusion.

The state's response to the case came in the form of an affidavit submitted to the Delhi High
Court by the Ministry of Home Affairs in September 2003, even as discussions raged within the
LGBTQ community.46 The affidavit that was presented in opposition to the petition submitted
by the Naz Foundation stated that Section 377 was enacted as a reaction to then-current Indian
norms and that the law reflected societal beliefs. It was highlighted that society's persistent
hostility towards homosexuality was strong enough to support treating it as a crime, even when
adults engaged in it secretly.

Importantly, it also stated that no such case existed to serve as the foundation for the petition and
that, in order for a court to evaluate the provision in its function as a judge, an application to the
facts of a particular, prior case would be required.

The petition was sent back to the Delhi High Court in 2006 for review after some procedural
back and forth.29 The National Aids Control Organisation (NACO), on behalf of the Ministry of
Health and Family Welfare, filed an affidavit stating that the enforcement of Section 377 had a
negative impact on the spread of risky sexual behaviours among MSM people.

This time, the Ministry of Health and Family Welfare entered the fray in support of the petition.
Voices against 377 entered the debate at this point by submitting an intervention petition. The
intervention was noteworthy because it brought actual lived experiences into the courtroom. A
variety of people submitted affidavits detailing their unique legal marginalisation experiences.
B.P. Singhal, a former member of the Bharatiya Janata Party, and the Joint Action Council
Kannur, a group that denies the existence of HIV/AIDS, were the other two parties that rejected
the petition.

The Delhi High Court's two-judge panel, which included Chief Justice A.P. Shah and Justice S.
Muralidhar, heard the case's closing arguments in November 2008. The court issued its ruling in
Naz Foundation v. Government of NCT of Delhi on July 2, 2009, eight months after the case was
filed48. It stated that private, consensual sexual actions between adults will be protected by the

29
LGBT Section 377,” Lawyers Collective, 14 July 2017, http://www.lawyerscollective.org/our-initiatives/law-and-
sexuality.
constitution and remain outside of Section 377's criminal purview. The court determined that it
was against the constitutional rights to privacy, equality, non-discrimination, dignity, and health
to criminalise LGBT people for engaging in intimate sexual encounters in this way. The 105-
page paper quickly established itself as a landmark, not just for this particular outcome but also
for the ways in which it advanced constitutional doctrine and launched a fresh conversation
about how to imagine LGBT identity in the legal system.

As observed in earlier case law, this new rhetoric did away with the stereotype of the
homosexual as a wicked person and instead embraced queer people with a language of dignity
and inclusivity.

The judgement was contested through a petition submitted to the Supreme Court of India in the
same month. Astrologer Suresh Kumar Koushal was the first of the several petitions, and then
quickly came religious groups including the Apostolic Churches Alliance, the All India Muslim
Personal Law Board, and the Krantikari Manuvadi Morcha. Every party from the lower court's
ruling joined the case in which the Delhi Commission for the Protection of Children's Rights was
involved, with the notable exception of the Ministry of Home Affairs.

They stated that decriminalising homosexuality would be harmful to the institution of marriage
and would tempt young people to engage in gay behaviour because the right to privacy does not
include the freedom to commit any crime.

The Naz Foundation also saw a rise in supporters in tandem with these skyrocketing figures. A
wide range of voices, in addition to the NACO, Voices Against 377, and the Naz Foundation,
submitted interventions to the court. Parents of LGBT people from all over the nation gathered
for an intervention, together with advocates for mental health, educators, legal experts, and
Member of Parliament Shyam Benegal. ‗

2013 judgment

The Supreme Court issued its ruling in Suresh Kumar Koushal v. Naz Foundation on December
11, 2013. The court overturned the Delhi High Court's ruling and determined that Section 377
did not violate the Constitution's basic rights, dealing a severe blow to LGBTQ people. The
judgement spends a significant amount of space analysing how appellate courts have interpreted
Section 377. The court traces the - colonial origins of the section's current meaning. 30

Unofficial transcripts make it clear that the judges were quite curious in the definition of "carnal
intercourse against the order of nature." In the end, there is no clear solution to this query, since
the judges note that "from these cases no uniform test can be culled out to classify acts as carnal
intercourse against the order of nature."

The court decided that, at most, the act itself and the circumstances surrounding its execution
may be used to assess whether an action was within the scope of the section. The fact that non-
consensual and clearly coercive circumstances were involved in the majority of instances
brought under this provision may serve as one of the guiding principles in this respect. In light of
this, the justices stated that "we are apprehensive of whether the court would rule similarly in a
case of proved consensual intercourse between adults." The final statement made instead
highlighted that Section 377 would apply regardless of age and consent and prohibit sexual
conduct regardless of gender identity and orientation. However, no attempt was made to truly
clear the air on this front. In other words, Section 377 could theoretically be applied to
heterosexual couples having "carnal intercourse" as well. Final arguments in this case were held
before the division bench of Justices G.S. Singhvi and S.J. Mukhopadhyay beginning in
February 2012 and lasting till the end of March 2012. 21 months after the proceedings
concluded, the Supreme Court announced its decision.

Before summarily rejecting each of the main constitutional objections to Section 377 raised by
Articles 14, 15, and 21 of the Indian Constitution, the court provided a condensed analysis of
each. The court also made startling remarks during the proceedings, with the following one being
possibly the most infamous: "In its anxiety to protect the so-called rights of LGBT persons and
to declare that Section 377 IPC violates the right to privacy, autonomy, and dignity, the High
Court has extensively relied upon the judgments of other jurisdictions."

• Aftermath of the Judgment:

30
Civil Appeal No. 10972 OF 2013
The ruling was a crushing setback for the cause and LGBTQ people in general. In no uncertain
terms, the nation's top appeal court appeared to put an end to a legal dispute that had lasted for
more than ten years. Queer people were also relegated to the category of unapprehended felons
after four years of having equal citizenship under the law. Due to the judgement, many other
discussions about the future of LGBT rights involving antidiscrimination or relationship
recognition would once again have to take a back seat as the fight against criminalization took
centre stage. However, it is also true that the movement was revived by the opposition to the
decision.

First of all, it stimulated more discussion of the subject in public than ever before. Second, it
gave rise to a variety of discussions about LGBT rights and their intersections with various
movements. Finally, despite this, the legal process continued as lawyers continued to pursue
various legal remedies before the court. 31

In response to the decision, there were enormous, well-organized protests in 22 locations

throughout the world, including 17 cities in India. The protests, known as the Global Day of
Rage Against Section 377, saw sizable crowds of people assembling in each of the locations to
denounce the ruling and call for the repeal of the section. The government was also under
pressure to act as a result of this lively public dialogue.

Several political parties released comments denouncing the decision and its repercussions.
Additionally, the National Human Rights Commission issued a statement saying that "all people
regardless of their sexual orientation or gender identity should be able to enjoy their human
rights." This organisation had previously kept mute on the subject. In the meantime, Satyamev
Jayate, a well- known TV programme hosted by Bollywood superstar Aamir Khan, aired an
episode focusing on LGBTQ lives, giving discussion of LGBTQ issues one of its biggest public
platforms. While the federal government is dragging its feet on the decriminalisation issue,
advocacy work is being done at the state level to change the law. A state amendment to a federal
statute generally cannot directly conflict with it; if it does, the amendment is deemed "repugnant"
and requires presidential approval. However, the Koushal Court's interpretation of Section 377
gave states enough latitude to change it without running afoul of the central statute. The Koushal

31
COALITION FOR SEX WORKERS AND SEXUALITY MINORITY RIGHTS, “Dignity First,” 2014.
http://altlawforum.org/campaigns/dignity-first-one-year-of-resistance-to-re-criminalisation-of-lgbt-lives/.
decision holds that "carnal intercourse against the order of nature" should be determined on a
case-by-case basis rather than defining what constitutes such behaviour. State governments could
provide a clarification to the clause that eliminates this ambiguity in this area. In a number of
states, efforts to pressure legislatures on this issue have been continuing, and at least one has
experienced significant progress:

In 2017, the state of Karnataka's Transgender Policy, which was passed, emphasised the
importance of repealing Section 377.

The idea of recasting the entire argument as a larger anti-discrimination issue has gained
momentum as well. This is for both tactical and practical reasons. LGBTQ activists are up
against a central government that is hostile to homosexuality on the one hand. Developing
partnerships with other marginalised groups is essential. In addition, there is a growing
awareness of the linkages between discrimination against LGBTQ people and other forms of
prejudice, such as that based on caste, religion, and disability. Any discussion on a thorough anti-
discrimination law enables the promotion of LGBTQ rights in new and various settings. This
strategy is still in its early stages.

While numerous civil society consultations have been undertaken to bring organisations together
to explore the topic, the Delhi State government has expressed a special interest in a
comprehensive antidiscrimination bill. Despite the use of these alternate tactics, the legal road
was not given up: shortly after the ruling, eight parties, among them the Union of India filed a
review petition challenging the ruling. The dismissal of the petition by a two-judge court dealt
the lawsuit yet another setback. The legal dispute persisted, and the potential approval of a
curative petition represented the process's last stage. A limited remedy by which the court
recognises that a particular judgement might need to be reexamined in order to right a
miscarriage of justice is the curative petition: ―In such case it would not only be proper but also
obligatory both legally and morally to rectify the error.‖55

The curative is a constrained remedy founded on the tenet that the process of justice should
always take precedence over any technicality, even when that technicality is as weighty and
conclusive as a court ruling. By agreeing to consider a curative petition submitted by seven
parties to the case on April 22, 2014—the government did not participate in this phase of the
process—the Supreme Court made a significant step towards realising the promise of this
principle. The case underwent another crucial development on February 2, 2016, when the three
senior judges of the court essentially agreed on the case's constitutional importance and gave it
permission to be heard by a constitution bench.

The constitution bench would then ideally hear constitutional arguments on the issue after
determining, as is undoubtedly the case at this stage, whether the Koushal case warranted review
at all. Later that year, a group of five gay and lesbian Indians petitioned the court again, claiming
that the reintroduction of Section 377 had a direct impact on them. A group of three transgender
people subsequently adopted the strategy used in the Navtej Johar petition. Despite the NALSA
ruling, these people subsequently asserted that Section 377 had a negative influence on their
lives. The Court issued an important judgement that expressed displeasure of the Koushal
decision even as it took longer than expected to form a bench to handle these issues.

In K.S. Puttaswamy v. Union of India56, a nine-judge Supreme Court panel addressed the
boundaries of the right to privacy, explicitly stating that Koushal was a "discordant note" in the
court's record and criticising it for its bias and incorrect application of the law. When the Navtej
Johar petition came before the Supreme Court in January 2018, the court said that the Koushal
case ruling needed to be reconsidered and sent the case to a constitution bench. This decision
essentially grants the request for a new hearing that was made in the curative petitions. It will
now be interesting to observe if the court reverses a decision that it deemed to be erroneous on its
own.

2018 judgment

Transgender people have no other visibility for a very long time except in the area of criminal
law. In terms of criminalization and harassment, transgender people were visibly present in front
of the law and continually subject to its harshness. Contrarily, there has frequently been near
total invisibility when it comes to any type of civil entitlement. Gender identity is an essential
and inescapable element among the tools used by the Indian state to determine civil personhood.
To establish a variety of relationships in civil and official society, such as obtaining a driver's
licence, accessing legal services, employment opportunities, university admissions, and
necessary benefits, such as health care, identification documents such as a birth certificate,
passport, or ration card are necessary.

Male and female were the only gender markers that were available to people, and there was no
defined process for how a change within the gender binary would be represented on an identity
document. There were a few state-issued documents that did allow for identification such as
passports at the national level and ration cards at the state level, but even in these cases there
were no set standard criteria for identification. Regarding the subject of gender-affirming
surgery, it wasn't obvious if even the post-operative certificate given by a doctor acknowledging
a change in gender had any kind of legal standing.

The National Legal Services Authority of India filed a writ petition with the Supreme Court in
2012, asking the court to issue a number of directives, starting with requiring the government to
grant transgender people the same rights as those available to male and female citizens. The
National Legal Services Authority of India was primarily established to provide free legal aid
services to underprivileged sections of society.

The petition then requested more specific remedies, such as ordering the government to include
transgender as a third gender category in various identity documents, establishing reserved
positions in educational and professional settings, recognising the right to marry and adopt,
offering free surgery for sexual reassignment, and recognising and granting legal status as a third
gender to transgender people.

This final remedy served to highlight the petition's primary error:

The presumption, that everyone in the transgender community wants to identify as a "third sex."
When we consider the situation of people who might want to identify as either male or female,
the issue with this becomes clear. Instead of claiming "transgender" or "third gender" as an
identification category, a person may be born as a man but desire to identify as a girl or vice
versa. The petition posed the danger of having an adverse effect by effectively forcing the entire
community to fall under the third sex/third gender category without taking into account the
possibility that some members may desire to be recognised as male or female. Additionally, the
petition might deny transgender people fundamental rights that they would otherwise have been
able to enjoy under the same laws as males and women.
The NALSA decision was issued by the court on April 15, 2014, and said that "Moral failure lies
in society's unwillingness to contain or embrace different gender identities and expressions."32
The court began by using these terms in its first paragraph before creating a document that was
incredibly inclusive. Greeted with the kind of enthusiasm that Naz Foundation received, the
judgment was lauded not just for the specific remedies that it crafted for a historically
marginalized community, but also for its revitalization of a constitutional promise that the Court
seemed to have forgotten with Koushal.

The Court gave a broad definition of transgender identity, noting that it could be used to refer to
a variety of identities and experiences, "including but not limited to pre-operative, post-operative
and non-operative transsexual people" who did not identify with the sex assigned to them at
birth. The court definition's breadth also covered identity claims, in which a person who chose to
be recognised as a male, female, or third gender but did not identify with the sex assigned to
them at birth might do so.

The harm of non-recognition may manifest on two different levels: first, when a process for
acknowledging gender change did not exist or was overly complicated; and second, where the
"third gender" was not explicitly recognised by the law as a separate category. In terms of the
first level, the issue of recognition is primarily one of procedure: how many administrative,
psychiatric, and medical hurdles should someone have to pass through before being
appropriately recognised as a citizen? According to the court, the examination should be
psychological; in this instance, the person's own gender identification must effectively take
precedence in deciding gender. When a third gender or transgender identity is not recognised by
the law, which, as the court recognised, is the case at nearly every level, recognition at the
second level becomes problematic. According to the court, the legal system must universally
recognise a third gender category.

Regarding the constitutional doctrine it used to address legal gender recognition, the court stated
that non-recognition of transgender identity denies transgender people the equal protection of the
law and exposes them disproportionately to harassment, violence, and sexual assault, whether at

32
NALSA V. UNION OF INDIA, AIR 2014 SC 1863
home, in public places, or by the police. Additionally, the court found that Article 21 of the
Constitution recognised gender identity. According to Article 21, the right to dignity is a part of
the right to life.

Given that gender is the foundation of one's sense of self and is a crucial component of one's
identity, the legal acknowledgment of gender identity is at the centre of the right to dignity. The
court reaffirmed that each person's personal autonomy was included in the right to personal
liberty protected by Article 21. This positive right to make decisions about one's life and to
express himself/herself is a part of one's personal autonomy. Gender self-determination would
consequently fall under term personal liberty as a fundamental aspect of individual sovereignty
under Article 21. The court outlined a comprehensive list of requirements for federal and state
governments to follow in its operative portion. The first two specifically addressed the issue of
gender recognition: the constitutional recognition of a "third gender" category as well as the
granting of legal recognition based on an individual's self- identification as male, female, or third
gender. The other directions closely correspond to the areas of socioeconomic rights, public
health and sanitation, stigma and public awareness, and public health and sanitation. The first
category required the government to take action to ensure that transgender people received
proper medical attention, separate devoted HIV/serosurveillance measures, and separate
dedicated public restrooms. The government was urged to offer the transgender community
different social welfare programmes and to recognise them as a socially and economically
backward class under the heading of socioeconomic rights. To support this, the government was
asked to offer affirmative action for transgender people in workplaces and government positions.
The court also ordered the government to take action to raise public awareness about transgender
people, to restore their respect and status in society, and to take serious action to address
community issues like depression, suicidal thoughts, fear, shame, gender dysphoria, social
pressure, and social stigma.

The court's crucial, concluding action was an implied admission of its institutional limits in
formulating real policies for the transgender population. As a result, it deferred it to an executive
body rather than attempting to impose its own suggestions for operationalizing legal recognition.
An expert committee was established by the Ministry of Social Justice and Empowerment in
2013 to conduct a thorough analysis of the issues the transgender population was facing and to
recommend policy changes. A comprehensive list of suggestions for tackling transgender
discrimination on many levels was presented in the committee report. 33 The NALSA court ruled
that the suggestions in this report were to be put into effect within six months of the ruling and
evaluated in light of the legal declarations it made.

ROAD AHEAD – IS DECRIMINALIZATION ENOUGH?

LGBTQIA+ individuals and couples have petitioned the Supreme Court and other High Courts
for the right to wed.All of these petitions either criticise the Hindu Marriage Act or the secular
SMA. Earlier before the Delhi High Court, the Indian government opposed marital equality in its
pleadings. It contended that current legal precedent did not include any right to public
acknowledgement of marriage and instead only recognised same-sex intimate relationships
through the right to privacy. The State had a valid interest in restricting marriage to different-sex
couples because existing law (including family, civil, and criminal law) and India's sociocultural
ethos only recognised marriages between a biological man and a biological woman However, in
the context of India's transgender community, some kind of relationship recognition is already
discernible. The Madras High Court recognised a trans woman as a woman under the Hindu
Marriage Act in Arunkumar v. Inspector General after the Supreme Court acknowledged a right
to gender identification. However, the court's ruling only accepts the union of transgender people
who identify as belonging to the binary of traditional gender and whose relationships follow the
heterosexual norm.

Additionally, because traditional transgender communities, like hijras, have been there for a
while in the Indian subcontinent, courts have frequently recognised their non-kin community
groups' customary succession practises based on the Guru-Chela tradition. However, because it
is founded on customary law rather than rights- based justifications, this recognition predates the
Indian Supreme Court's present acknowledgment of LGBT+ constitutional rights. As a result, it
does not illustrate how constitutional ideas and family law interact, and it has not helped to
include transgender people in other family law areas like marriage, adoption, and
33
Report of the Expert Committee on the Issues relating to Transgender Persons, Ministry of Social Justice and
Empowerment (MSJE), Government of India, 27 January 2014,
http://socialjustice.nic.in/writereaddata/UploadFile/Binder2.pdf.
27 Tarunabh Khaitan, “NALSA V UNION OF INDIA: WHAT COURTS SAY, WHAT COURTS DO,” LAW AND
OTHER THINGS, 1 May 2014,
http://lawandotherthings.blogspot.ca/2014/05/nalsa-v-union-of-india-what-courts-say.html
succession.As a result, discussions over LGBT+ constitutional rights and family law have
become more urgent against the backdrop of persistent legal challenges. However, discussions
within the LGBT+ rights movement in India have always been sparked by the legal
acknowledgment of queer relationships. The AIDS Bhedbhav Virodhi Andolan expressed the
hopes of India's LGBT community for relationship recognition, including access to marriage and
parenthood, in one of the earliest reports on the state of homosexuality in that country.The report
also emphasised the necessity to recognise partnerships that are not centred on sex and to look
beyond conjugality in order to secure access to public benefits68.Since then, feminism and queer
activism has placed a strong emphasis on legal inclusion and the acknowledgement of various
families that transcend marital status or sexual orientation.
 CHAPTER 3

AIDS ATACK CYBER CELL

With cyberthreats increasing significantly, cybersecurity awareness is vital to keeping your

workforce and business safe online. In fact, to raise awareness about the importance of
cybersecurity, Cybersecurity Awareness Month (earlier known as National Cybersecurity
Awareness Month) is observed every October. This initiative is supported by the Cybersecurity
& Infrastructure Security Agency (CISA) and National Cybersecurity Alliance to educate
individuals and organizations about the role they play in improving cybersecurity and the steps
they can take to be more secure in the digital world.

Cybersecurity awareness

What is cybersecurity awareness?

Cybersecurity awareness is an ongoing process of educating and training employees about the
threats that lurk in cyberspace, how to prevent such threats and what they must do in the event of
a security incident. It also helps to inculcate in them a sense of proactive responsibility for
keeping the company and its assets safe and secure. In simple terms, cybersecurity awareness is
knowing what security threats are and acting responsibly to avoid potential risks.

Cybersecurity awareness includes being aware of the latest security threats, cybersecurity best
practices, the dangers of clicking on a malicious link or downloading an infected attachment,
interacting online, disclosing sensitive information and so on. Security awareness training
programs help to enhance your organization‘s security posture and tighten its processes, thereby
paving the way to building a more resilient business. Cybersecurity awareness must be an
organization-wide initiative for it to be most effective and beneficial.

Why is cybersecurity awareness important?

Despite having best-in-class defense systems and measures in place, many organizations still
experience security breaches. Unfortunately, it is often human error that has been a major
contributing factor behind many data breaches. According to Verizon‘s 2022 Data Breach
Investigations Report, more than 80% of breaches involved the human element, including social
engineering attacks, errors and misuse of stolen credentials. Threat actors look to exploit this
weakness to infiltrate an organization‘s networks and systems. This is where cybersecurity
awareness comes in.

Cybersecurity awareness helps educate your employees about malicious methods used by
cybercriminals, how they can be easy targets, how to spot potential threats and what they can do
to avoid falling victim to these insidious threats. It empowers your workforce with the right
knowledge and resources to identify and flag potential threats before they cause any damage.

Ignoring or not conducting cybersecurity awareness training regularly can have serious
consequences on your business such as legal penalties, financial loss and cost of remediation,
loss of intellectual property, damaged company reputation, loss of customer trust and so on.
After all, your company‘s cybersecurity strategy is only as strong as your weakest link — your
employees.

What is cybersecurity awareness training?

With cybercrime continuing its upward trend, cybersecurity is a top priority for businesses of all
sizes. Security awareness training is a critical component of an organization‘s cybersecurity
strategy. It encompasses various tools and techniques used to inform and equip employees about
security risks and how to avoid them. This helps them understand the cyber-risks your business
faces every day, the impact they have on your business and their roles and responsibilities with
regard to the safety and security of digital assets.

What is the purpose of cybersecurity awareness training?

Cybercriminals are constantly evolving and devising new methods to exploit vulnerabilities to
steal valuable data from businesses. Additionally, they look to exploit human behavior and
emotions. It is no surprise social engineering attacks like phishing, spear phishing, business
email compromise (BEC), etc., are so successful.

Well-educated and trained employees can quickly identify these threats, which can significantly
reduce the risk of cybersecurity incidents and help prevent data breaches. Security awareness
training not only helps stop threat actors in their tracks, but also promotes an organizational
culture that is focused on heightened security. Cybersecurity awareness training is a necessity for
the survival of your organization. Your organization must invest in cybersecurity training, tools
and talent to minimize risk and ensure company-wide data security. A well-defined cybersecurity
awareness training can help significantly reduce the cost and number of security incidents in
your organization.

What should be included in cybersecurity awareness training?

Over the years, cybersecurity awareness training has come a long way from being largely
reserved for security professionals to include IT administrators and other employees. The scope
of cybersecurity awareness programs may vary depending on the number of employees, how
aware they are, budget and so on. Regardless of what the scope is, here are some courses that
every cybersecurity awareness training program must include.

Email security: Email is one of the most important communications tools for businesses today.
However, it is also the entry point for several types of cybercrime, including phishing,
ransomware, malware and BEC. About 94% of all dangerous ransomware and other malware
enter an organization through email. Therefore, email security training is crucial to protect your
employees and business from malicious email attacks. Email security training will help
employees be mindful of unsafe links and attachments.

Phishing and social engineering: The human attack surface is the primary gateway for threat
actors. Social engineering attackers are aware of how humans think and work. They leverage this
knowledge to exploit human behavior and emotions to influence their targets to take desired
actions. For example, disclosing sensitive information, granting system access, sharing
credentials, transferring funds and so on. Verizon‘s 2021 Data Breach Investigations Report
revealed that more than 35% of data breaches involved phishing. Phishing and social engineering
attacks are targeted and convincing, making them highly successful. However, with the right
training and skills, your employees can spot warning signs and greatly reduce the probability of
falling victim to these scams.

Ransomware and malware: Malware, such as ransomware, enters an organization via phishing
emails. It is estimated that about 300,000 new pieces of malware are created daily. SonicWall‘s
2021 Cyber Threat Report revealed ransomware attacks increased by a whopping 48% in 202034.
Ransomware awareness training will help employees understand how these attacks are executed,
the tactics threat actors use and the actions they can take against rising ransomware attacks.

Browser security: Web browsers are hot targets for hackers since they are the gateways to the
internet and hold large volumes of sensitive data, including personal information. Not all
websites you visit online are safe. Therefore, browser/internet security training, including best
practices, browser security tips, the different types of browser threats, internet and social media
policies, can go a long way toward maintaining confidentiality and browsing the web safely.

Information security: Your organization‘s information is the most prized asset. That‘s why
protecting its confidentiality, integrity and availability should be everyone‘s responsibility. Your
training programs must include courses that emphasize the criticality of data security and
responsibilities toward protecting the data. Train your employees on how to handle, share, store
and dispose of sensitive information safely. Having a clear understanding of the legal and
regulatory obligations of a breach is critical. Employees should also be trained on incident
reporting to remediate issues quickly and minimize risk.

Remote work protocol: Working remotely is the new norm, as is evident with most organizations
globally implementing a hybrid work model. This poses greater challenges for organizations
since they must now ensure safety and security both in the office and at home (or anywhere).
This also means additional security risks. However, these risks can be significantly reduced with
the right knowledge and tools for your employees. Your training programs must include the
dangers of connecting to unsecured public Wi-Fi networks, the use of personal devices and
unauthorized software, and the importance of VPNs for additional layers of security, to name a
few.

Physical security: Physical security includes everything from being aware of shoulder surfers to
protecting your company-provided laptops and mobile devices from potential security risks. For

34
Ransomware and malware: Malware, such as ransomware, enters an organization via phishing emails. It is
estimated that about 300,000 new pieces of malware are created daily. SonicWall’s 2021 Cyber Threat Report
revealed ransomware attacks increased by a whopping 48% in 2020 . Ransomware awareness training will help
employees understand how these attacks are executed, the tactics threat actors use and the actions they can take
against rising ransomware attacks
example, locking the devices when stepping away, keeping the workstation clean, avoiding
tailgating, and storing confidential files and printed materials in a secure place.

Removable media security: Removable media, such as USB drives, CDs, portable hard drives,
smartphones, SD cards, etc., offer convenient ways to copy, transfer and store data. However,
there are risks of data exposure, virus or malware infection, data loss and theft. Educate your
employees about your organization‘s removable media policy, the risks involved with using
removable media, especially untrusted/unsanctioned removable media, the importance of the
policy and the repercussions of not following procedure.

Password security: According to the Federal Trade Commission‘s (FTC) Consumer Sentinel
Network, more than 5.7 million cybercrime reports were filed by consumers in 2021, of which
25% were for identity theft. The importance of having a strong password is paramount in today‘s
threat-laden environment. Security awareness programs must include password management and
password best practices, including what constitutes a strong password and how to generate one.
Your employees must also use multifactor authentication (MFA) whenever possible to prevent
account compromises.

Incident response: Having an incident response (IR) plan and IR team is not enough. You must
also educate your employees about their roles and responsibilities in the event of a security
incident. The harsh reality is security incidents are inevitable. Your organization‘s preparedness
to deal with such incidents can be the difference maker between grappling with legal and
regulatory issues and quickly recovering from crises and avoiding further damage.

Cyber awareness challenges

While cybersecurity awareness cannot solve cybercrime, businesses today realize its importance
in mitigating potential risks. In fact, most companies provide some sort of security awareness
training to their employees. However, statistics of successful data breaches in recent years
indicate that there is still room for improvement in cyber awareness. Cybersecurity awareness is
a must in the digital world. That being said, developing cyber awareness programs can be labor-
intensive and challenging.
Cybercriminals constantly come up with new attack methods. Catching up with new trends and
updating training programs is harder than it sounds. This also makes cybersecurity training
materials rapidly outdated since the knowledge and skills that worked today may not be
sufficient for tomorrow‘s threats.

Developing cybersecurity awareness programs is often a manual process (unless your company
uses a fully managed cyber awareness program). Therefore, selecting security content, creating
resources, testing training materials and tools can be time-consuming and burdensome.

It is always a challenge to generate interest and engage employees. Repetitive curriculum, too
much information, duration of the course and complexity can discourage employee participation.

Supplement cybersecurity awareness with Spanning Backup

Cybercrime is a growing challenge not just for big companies but for small businesses as well.
Despite implementing state-of-the-art security solutions, deploying security personnel and
training employees, threat actors continue to successfully evade defense systems.

When cybersecurity incidents occur, your secure backup is your last line of defense. Whether it
is due to human error, illegitimate deletion, ransomware or hackers, if your organization has a
secure, clean backup of your data, you can quickly get back to action with minimal or no
disruption to your business.

Spanning Backup for Google Workspace, Microsoft 365 and Salesforce makes backup seamless
with a quick and easy setup that‘s accompanied by an intuitive interface. That means no
expensive training costs, no lengthy installations and configurations, and no headaches.

What‘s more? No need for admin intervention — your employees can restore their own data,
allowing IT admins to continue focusing on critical tasks.

Key facts

 HIV remains a major global public health issue, having claimed 40.4 million [32.9–51.3
million] lives so far with ongoing transmission in all countries globally; with some
countries reporting increasing trends in new infections when previously on the decline.
  There were an estimated 39.0 million [33.1–45.7 million] people living with HIV at the
end of 2022, two thirds of whom (25.6 million) are in the WHO African Region.
 In 2022, 630 000 [480 000–880 000] people died from HIV-related causes and 1.3
million [1.0–1.7 million] people acquired HIV.
 There is no cure for HIV infection. However, with access to effective HIV prevention,
diagnosis, treatment and care, including for opportunistic infections, HIV infection has
become a manageable chronic health condition, enabling people living with HIV to lead
long and healthy lives.
 WHO, the Global Fund and UNAIDS all have global HIV strategies that are aligned with
the SDG target 3.3 of ending the HIV epidemic by 2030.35
 By 2025, 95% of all people living with HIV (PLHIV) should have a diagnosis, 95% of
those should be taking lifesaving antiretroviral treatment (ART) and 95% of PLHIV on
treatment should achieve a suppressed viral load for the benefit of the person‘s health and
for reducing onward HIV transmission. In 2022, these percentages were 86(%) [73–
>98%], 89(%) 75–>98%] and 93(%) [79–>98%], respectively.
 When considering all people living with HIV, 86% [73>–98%] knew their status, 76%
[65–89%] were receiving antiretroviral therapy and 71% [60–83%] had suppressed viral
loads.
 Overview
 Human immunodeficiency virus (HIV) is an infection that attacks the body‘s immune
system. Acquired immunodeficiency syndrome (AIDS) is the most advanced stage of the
disease.
 HIV targets the body‘s white blood cells, weakening the immune system. This makes it
easier to get sick with diseases like tuberculosis, infections and some cancers.
 HIV is spread from the body fluids of an infected person, including blood, breast milk,
semen and vaginal fluids. It is not spread by kisses, hugs or sharing food. It can also
spread from a mother to her baby.
 HIV can be treated and prevented with antiretroviral therapy (ART). Untreated HIV can
progress to AIDS, often after many years.

35
WHO, the Global Fund and UNAIDS all have global HIV strategies that are aligned with the SDG target 3.3 of
ending the HIV epidemic by 2030.
  WHO now defines Advanced HIV Disease (AHD) as CD4 cell count less than
200cells/mm3 or WHO stage 3 or 4 in adults and adolescents. All children with HIV
younger than 5 years of age are considered to have advanced HIV disease.

Signs and symptoms

The symptoms of HIV vary depending on the stage of infection.

The disease spreads more easily in the first few months after a person is infected, but many are
unaware of their status until the later stages. In the first few weeks after being infected people
may not experience symptoms. Others may have an influenza-like illness including:

fever

headache

rash

sore throat.

The infection progressively weakens the immune system. This can cause other signs and
symptoms:

swollen lymph nodes

weight loss

fever

diarrhoea

cough.

Without treatment, people with HIV infection can also develop severe illnesses:

tuberculosis (TB)

cryptococcal meningitis

severe bacterial infections

cancers such as lymphomas and Kaposi's sarcoma.

HIV causes other infections to get worse, such as hepatitis C, hepatitis B and mpox.

Transmission

HIV can be transmitted via the exchange of a variety of body fluids from people living with HIV,
such as blood, breast milk, semen and vaginal secretions. HIV can also be transmitted during
pregnancy and delivery to the child. People cannot become infected through ordinary day-to-day
contact such as kissing, hugging, shaking hands, or sharing personal objects, food or water.

It is important to note that people with HIV who are taking ART and have an undetectable viral
load do not transmit HIV to their sexual partners. Early access to ART and support to remain on
treatment is therefore critical not only to improve the health of people with HIV but also to
prevent HIV transmission.

Risk factors

Behaviours and conditions that put people at greater risk of contracting HIV include:

having condomless anal or vaginal sex;

having another sexually transmitted infection (STI) such as syphilis, herpes, chlamydia,
gonorrhoea and bacterial vaginosis;

engaging in harmful use of alcohol and drugs in the context of sexual behaviour;

sharing contaminated needles, syringes and other injecting equipment and drug solutions when
injecting drugs;

receiving unsafe injections, blood transfusions and tissue transplantation, and medical procedures
that involve unsterile cutting or piercing; and

experiencing accidental needle stick injuries, including among health workers.

Diagnosis
HIV can be diagnosed through rapid diagnostic tests that provide same-day results. This greatly
facilitates early diagnosis and linkage with treatment and prevention. People can also use HIV
self-tests to test themselves. However, no single test can provide a full HIV positive diagnosis;
confirmatory testing is required, conducted by a qualified and trained health or community
worker at a community centre or clinic. HIV infection can be detected with great accuracy using
WHO prequalified tests within a nationally approved testing strategy and algorithm.

Most widely used HIV diagnostic tests detect antibodies produced by the person as part of their
immune response to fight HIV. In most cases, people develop antibodies to HIV within 28 days
of infection. During this time, people are in the so-called window period when they have low
levels of antibodies which cannot be detected by many rapid tests, but may transmit HIV to
others. People who have had a recent high-risk exposure and test negative can have a further test
after 28 days.

Following a positive diagnosis, people should be retested before they are enrolled in treatment
and care to rule out any potential testing or reporting error. While testing for adolescents and
adults has been made simple and efficient, this is not the case for babies born to HIV-positive
mothers. For children less than 18 months of age, rapid antibody testing is not sufficient to
identify HIV infection – virological testing must be provided as early as birth or at 6 weeks of
age. New technologies are now available to perform this test at the point of care and enable
same-day results, which will accelerate appropriate linkage with treatment and care.

Prevention

HIV is a preventable disease.

Reduce the risk of HIV infection by:

using a male or female condom during sex

being tested for HIV and sexually transmitted infections

having a voluntary medical male circumcision

using harm reduction services for people who inject and use drugs.
Doctors may suggest medicines and medical devices to help prevent HIV, including:

antiretroviral drugs (ARVs), including oral PrEP and long acting products

dapivirine vaginal rings

injectable long acting cabotegravir.

ARVs can also be used to prevent mothers from passing HIV to their children.

People taking antiretroviral therapy (ART) and who have no evidence of virus in the blood will
not pass HIV to their sexual partners. Access to testing and ART is an important part of
preventing HIV.

Treatment

There is no cure for HIV infection. It is treated with antiretroviral drugs, which stop the virus
from replicating in the body.

Current antiretroviral therapy (ART) does not cure HIV infection but allows a person‘s immune
system to get stronger. This helps them to fight other infections.

Currently, ART must be taken every day for the rest of a person‘s life.

ART lowers the amount of the virus in a person‘s body. This stops symptoms and allows people
to live a full and healthy life. People living with HIV who are taking ART and who have no
evidence of virus in the blood will not spread the virus to their sexual partners.

Pregnant women with HIV should have access to and take ART as soon as possible. This
protects the health of the mother and will help prevent HIV from passing to the fetus before
birth, or to the baby through breast milk.

Antiretroviral drugs given to people without HIV can prevent the disease.

When given before possible exposures to HIV it is called pre-exposure prophylaxis (PrEP) and
when given after an exposure it is called post-exposure prophylaxis (PEP). People can use PrEP
or PEP when the risk of contracting HIV is high; people should seek advice from a clinician
when thinking about using PrEP or PEP.
Advanced HIV disease remains a persistent problem in the HIV response. WHO is supporting
countries to implement the advanced HIV disease package of care to reduce illness and death.
Newer HIV medicines and short course treatments for opportunistic infections like cryptococcal
meningitis are being developed that may change the way people take ART and prevention
medicines, including access to injectable formulations, in the future.

More information on HIV treatments

WHO response

Global health sector strategies on, respectively, HIV, viral hepatitis, and sexually transmitted
infections for the period 2022–2030 (GHSSs) guide the health sector in implementing
strategically focused responses to achieve the goals of ending AIDS, viral hepatitis B and C and
sexually transmitted infections by 2030 36.

The GHSS recommend shared and disease-specific country actions supported by actions by
WHO and partners. They consider the epidemiological, technological, and contextual shifts of
previous years, foster learnings across the disease areas, and create opportunities to leverage
innovations and new knowledge for effective responses to the diseases. They call for a precise
focus to reach the people most affected and at risk for each disease that addresses inequities.
They promote synergies under a universal health coverage and primary health care framework
and contribute to achieving the goals of the 2030 Agenda for Sustainable Development.

The AIDS Trojan, also known as the PC Cyborg virus, was the first ever ransomware virus
documented. It was released via floppy disk before most of us ever had the opportunity to touch
a computer in 1989.

The AIDS trojan was created by a biologist Joseph Popp who handed out 20,000 infected disks
to attendees of the World Health Organization‘s AIDS conference. The disks were labeled
―AIDS Information - Introductory Diskettes‖, and included leaflets that warned that the software
would ―Adversely affect other program applications‖ and also stated, ―you will owe

36
Global health sector strategies on, respectively, HIV, viral hepatitis, and sexually transmitted infections for the
period 2022–2030 (GHSSs) guide the health sector in implementing strategically focused responses to achieve the
goals of ending AIDS, viral hepatitis B and C and sexually transmitted infections by 2030
compensation and possible damages to PC Cyborg Corporation and your microcomputer will
stop functioning normally.‖

The program would count the number of times the computer was booted and once it reached 90
it would hide the directories and encrypt or lock the names of the files on the C drive. To regain
access, the users would have to send $189 to PC Cyborg Corporation at a PO box in Panama.
The AIDS Trojan was pretty easy to overcome as it used simple symmetric cryptography and
tools were soon available to decrypt the files.

Aside from being the father of ransomware, Joseph L. Popp was a very interesting person. Some
of his other accomplishments included studying hamadryas baboons in East Africa for fifteen
years, opening the The Joseph L. Popp, Jr. Butterfly Conservatory in upstate New York, self-
publishing Popular Evolution, a new model for the ultimate kind of self-help that argues that
humanity's only purpose is to "maximizing reproductive success‖ before his death in 200737.

37
Aside from being the father of ransomware, Joseph L. Popp was a very interesting person. Some of his other
accomplishments included studying hamadryas baboons in East Africa for fifteen years, opening the The Joseph L.
Popp, Jr. Butterfly Conservatory in upstate New York, self-publishing Popular Evolution, a new model for the
ultimate kind of self-help that argues that humanity's only purpose is to "maximizing reproductive success” before
his death in 2007
 CHAPTER 4

ROLE OF JUDICIARY: JUDICIAL ACTIVISM

Rape is a formidable problem worldwide. Meanwhile, India is on its way to being the rape
capital of the world. For women across India, fear is a constant companion and rape is the
stranger they may face every hour, any street, and any public place at any time. Today, rape is a
growing problem in society and it is becoming difficult to ignore the shocking statistics about
this crime. It is becoming the fastest growing crime in India. According to the latest figures of
2018, India ranks third in the world in rape cases38. This word is not new, it is completely
popular in India as well as in foreign countries from centuries. Neither this word is new nor this
act is new. Each time only the ‗victim‗ is new, and the man who transcends the boundaries of
animalism is new. Rape incidents have been happening for years. In the recent incidents of rape
cases are coming to light, these reports really disturbed our soul and minds? The word rape is
within our minds. Forcible physical torture of a man towards a woman or even ‗far more‗ is
something on which we need to think long and far.

Writing the word ‗rape‗, it hurts too deep inside, a spark arises from the tendons of the body.
How independent is today‗s woman? How free she is? When the drum of women‗s freedom is
beaten from the forums, no one knows then, where the voices of all from innocent girls and the
victims, are suppressed? Women are divided into so many classes and pains nobody knows how
much they are suffering. Are they obedient to one article or one speech? Or is there any truth in
speeches? There is a long list of women-Laws that stand in their favor, Stronger than words But
in the absence of 'realization' Helpless, poor and powerless. Where do we start the real fight for
women's rights? With her own rape body, tortured with tender heart, by the rights of the
deceitful, or by the constant imposition of obligations on those women. Nature has given a
beautiful boon to a woman. The process of giving birth begins with a sacred bond like Shaddi in
India. But for the rape victims, this boon becomes a curse and ends their whole life. Not only that
woman is stigmatized, she is forced to live an abusive life. What kind of test of humanity is to be
given a woman, a barbarous rapist who is easily accepted in society after some punishment? The
victim has been made stigmatized of all ages without any offense. Even after the convict is

38
Belinda Goldsmith, Meka Beresford, Thomson Reuters Foundation report
https://poll2018.trust.org/country/?id=india
sentenced, the victim always remains stigmatized. She can never free from that stigma in any
situation. It is written in the scriptures that a woman is an object of enjoyment, simply because
she considers it as enjoyment 39. A few vermin have made women a victim of their lust? If she is
not able to retaliate still her fault and if she fights for justice for herself even then its to blame?
The male-dominated society has made all the arrangements for it.

There are so many statements in the Damini case that she made a mistake by trying to defend,
she made a mistake, it would not have happened if she had surrendered….. In villages, she is
called a witch and hanged in front of the whole village in her nude. At the same time, there are
more sophisticated tactics in cities to remove it from the path.

Even if all this does not happen, then the same word as ―ijjat lute‖ is also given to the same
woman. To take suicidal steps, considering it as disrespectful.

Legislation’s birth after Mathura case (Criminal Law (Amendment) Act of 1983)

The infamous Mathura case called for a significant amendment to the Code of Criminal
Procedure in 1983, particularly regarding rape in custody, the provision of enhanced penalty
under the sections of Section 376 (2) IPC and the absence of consent in the cases registered
under it were anticipated. Section 376 (2) I.P.C. This was done by bringing an amendment to the
Indian Evidence Act, Section 114 (a) Indian Evidence Act. Thus, in custody rape cases, rape of a
pregnant woman, and gang rape, if it is proved that the accused has had sexual intercourse with
the woman who is allegedly raped, And the question arises whether it was without the consent of
the woman, and she says before the court that she did not give her consent, The court will admit
that the woman did not give her consent. This amendment seeks to remove gender inequalities
that may exist in workplaces, police stations, prisons and other such situations, in which the
victim is tortured and a forced sexual act is performed 40.

In such situations, it is extremely difficult to prove that this was a non-inconsistent action
through the testimony of other witnesses. By punishing the absence of consent (section 114 (a)
IEA) and increasing custody rape cases (section 376 (2) IPC), the legislature is trying to address

39
Yajur Veda 30.5 and 30.9 explicitly
40
Supreme Court of India. Judgments, the judgment information system of India. Tukaram and Another v/s State
of Maharashtra Cr L J 1864 of 1978.
these flaws. Another dimension to the issue of custody rape status is that the investigating doctor
must also understand that the victim's ability to resist, against the accused‗s advances is largely
dependent on gender-based power relations. There may be situations where a woman is
overbearing and subject to sexual intercourse without her consent, but no injury, or is left with
some injuries, can be seen as evidence of resistance41.

Section 375 and Section 376 of the Indian Penal Code, 1860 defines the crime of rape and
punishment for criminals under this law. These clauses remained unchanged since their inception
in 1860 until amendments came after heavy opposition in 1983 in the controversial verdict of the
Supreme Court in Mathura rape case

Rape Laws in India

Rape is a stigma which has been present in society from long time. According to dictionary, the
meaning of word rape is ―abduction or violation of a woman‖. As a rape victim, a woman
cannot rape a woman due to biological reasons. After the incident, women faced with a very
traumatic situation because it is too difficult for her to come out of this type of trauma. Rape is a
cognizable offense in India. In various enactments, several provisions define the term rape
section 375 [1] of the Indian Penal Code, 1860.

This section of the Indian Penal Code defines rape and it also prescribes its punishment.
Whenever a man has intercourse with or has sex with a woman without her consent, or will he
want to rape her. Penetration here means raping only a small amount to touch the penis from the
vagina, the woman's uncontrolled hymen does not prove there was no rape. But exception to this
is, if a man has sexual intercourse with his wife, who is above 15 years is no rape. The rape laws
under Indian Penal Code went through various amendments. In 1983, the amendment was made
and section 376 (2) which deals with custodial rape, Section 376 (A) which provides for marital
rape and Sections 376 (B to D), which excluded sexual relations from the amount of rape.

41
Commonwealth legal information institute, free access to commonwealth and common law [Internet]. [place
unknown]: Common LII. Criminal Law (Amendment) Act, 1983 (43 of 1983); 1983 Dec 26 [cited
2010 Mar 15]; [about 3 screens]. Available from:
http://www.498a.org/contents/amendments/Act%2046%20of%201983.pdf
The disclosure of the identity of the victim of certain offences in the Indian Penal Code, is
mandatory the name of the rape victim will be secure no person can disclose the name of the rape
victim and if anyone found guilty of reveals the name, He will either be punished for such details
which can be up to two years and shall also be liable to fine42.

Indian Evidence Act, ―presumption can be made as to the absence of consent in certain
prosecutions for rape where sexual intercourse by the accused is proved and the question is
whether it was without the consent of women alleged to have rape and she states in her evidence
before the court that she did not give her consent, the court shall admit that she did not give her
consent. In the absence of consent, only two facts have to prove first is sexual intercourse with
women and second is rape committed without her consent‖.

In the Code of Criminal Procedure, When a person is arrested on a charge of committing an

offence of such a nature and alleged to have been committed under such circumstances that there
are reasonable grounds for believing that an examination of his person will afford evidence as to
the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the
request of a police officer, not below the rank of sub-inspector, and for any person acting in good
faith in his aid and under his direction, to make such an examination of the person arrested as is
reasonably necessary in order to ascertain the facts which may afford such evidence, and to use
such force as is reasonably necessary for that purpose43.

When the crime of committing rape or attempted rape is being investigated, it is proposed to
obtain the person of the woman who has been alleged with or committed or attempted to rape,
examined by a medical expert, such examination shall be conducted by a registered physician
working in a hospital run by the government or administrative authority. In the absence of such
practitioner, by any other registered medical practitioner, with the consent of such woman or any
person to give such consent on her behalf and such woman shall be sent from such registered
medical practitioner within twenty-four hours to get information related to such crime.

42
Criminal Law (Amendment) Act 1983 (43 of 1983) Section 228-A.
43
The Code of Criminal Procedure, 1973, s. 53(1).
Code of Criminal Procedure, there should be in camera trial for all rape victims.

Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape179 or an
offence under section 376, provided that the presiding Judge may, if he thinks fit, or on an
application made by either of the parties, allow any particular person to have access to, or be or
remain in, the room or building used by the Court: [Provided further that in-camera trial shall be
conducted as far as practicable by a woman Judge or Magistrate].

The workload is very high due to a large number of cases on the judiciary in India and this is one
of the main reasons for the decision of rape cases coming too late. It is seen so late that either
side had died. Delay of hearing seems to be justice denied. if we really try to find true meaning,
we find, the late hearing of the rape cases that means, judiciary don't want to give justice to
victim there should be speedy trails in the rape cases, the victim gets justice at right time.

A coin has two sides, many times in some cases, also there are two sides. Sometimes the parents
of the girl compel her to file a complaint against the boy whom she loves, as the law shows a lot
of sympathy towards the girl. Such kind of fake complaints is filed just to ruin the life of a boy.
In such cases, the accused is left with nothing, when the complaint is made whether he was
proved guilty or not his life is ruined irrespective of all the facts. But it is not a fact of all cases
such kind of events are very few.

Rape is a very disgusting crime, which has a devastating effect on survivors and also affects the
hearts and minds of those who hear it. It cannot be described as "the beginning of a bad dream".
Aftershocks include many side effects such as depression, fear, guilt, suicidal action, decreased
sexual interest, etc. Referring to the pitiable condition of women in society Mr. Justice S. Ahmad
observed that ―unfortunately, a woman in our country, belongs to a class or group of society
who are in a disadvantaged position on account of several social barriers and impediments and
have, therefore, been victims of tyranny at the hands of men with whom they, unfortunately,
under the Constitution ―enjoy, equal status‖. ―`Women also have the right to life and liberty;
they also have the right to be respected and treated as equal citizens. Their honour and dignity
cannot be touched or violated. They also have the right to lead an honorable and peaceful life‖. In
Indian constitution the right to life as enshrined in Article 21, rape is a crime against basic human
rights and also deprives the victim of fundamental rights is the most violent for the victim, if we
go through the worldwide situation. We can found a similar condition regarding that crime.
According to the United Nations, South Africa has the highest per-capita rape rate in the world:
119 per 100,000 people181. This compares with 30 per 100000 in the United States182. Analysts
and women's advocacy groups argue that South Africa's total, which includes unreported rape
cases, may be five to nine times higher after counting them.

Police statistics show more than 50000 rapes are reported every year. In 1987 and 1991 number
of cases reported were 7767 and 9793 respectively. About 26% (11112) increase in number in
the year 44. There is one rape in every 54 minutes.

Rape is specifically defined under English law where the law covers all aspects of rape. Under
the Sexual Offenses Act 2003, which came into force in April 2004, rape in England and Wales
is redefined as non-consensual vaginal or anal sex, and in its definition non-consensual sex of
another person's vagina, anus or mouth Penis penetration is covered under this sexual offense
act. These changes made it punishable by a maximum sentence of life imprisonment for rape
convicts. Although a woman who forces a man to have sex, that man cannot be prosecuted for
rape under English law, if she helps a man to rape someone. So she could be prosecuted for the
crime (for example, the 2001 conviction of Claire Marsh). A woman can also be prosecuted for
pressuring a man to engage in sexual activity, a crime that also carries maximum punishment if it
involves penetration of the mouth, anus, or vagina. The law also includes a new sexual offense,
known as "assault by penetration", which carries penalties similar to rape and is committed when
ssomeone sexually penetrates the anus or vagina with a part of his or her body, or with an object,
without that person's consent.

As observed by Justice Arjit Pasayat: ―While a murderer destroys the physical frame of the
victim, a rapist degrades and defiles the soul of a helpless female‖.

Justice Krishna Iyer has observed in a very famous case of Rafiq v. State of UP ―A murderer
kills the body but a rapist kills the soul.45

Mathura was a tribal girl living with her brother Gama. She worked as a laborer in Nushi's house.
During the period of employment, she fall in love with Nushi's sister's son, Ashok and had sexual

44
Africa Confidential, Volumes 38-39., Miramoor Publications Limited, 1997, 24 july 1998, vol.39 no
45
1981 AIR 559
relations with her. They both decided to get married. Mathura's brother lodged a complaint to the
police, which ensured that Mathura was kidnapped on March 26, 1972 by Nushi, her husband
Laxman and Ashok. The statements of Ashok and Mathura were recorded at around 10:30 pm,
and thereafter the head constable Baburao asked all the persons to bring a copy of the entry
regarding the date of birth of Mathura. Gama and all the individuals left the police station. The
policemen asked Mathura to stay in the police station only. After that Ganpat, appellant No.1
closed the doors, took Mathura to the washroom, to turn off the lights from inside and he raped
her there. After Ganpat was satisfied, the appellant No. 2 Tukaram went to the washroom to try
to rape her, but he failed because he was heavily drunken but touched her private parts. When
Mathura did not come out for a long time, Ashok and Nushi became suspicious and this grew
more suspicious when the station lights were switched off.

Special Leave

The appeal by special leave was filed against the of the High Court of Judicature at Bombay
reversing a judgment of acquittal of the two appellants of an offence under Section 376 read with
Section 34 of the Indian Penal Code recorded by the Sessions Judge, Chandrapur, on the 1st june
1974, and convicting Tukaram, of an offence under Section 354 of the Code and Ganpat of one
under Section 376 thereof. The Bombay High Court (Nagpur Bench) reversed the filing and
sentenced Tukaram to rigorous imprisonment for one year and Ganpat for five years.

Supreme Court Observations

The observation of Supreme Court that ―evidence regarding consent has to be inferred from the
available circumstances and ―that from those circumstances it could not be deduced that the girl
had been subjected to or was under any fear or compulsion such as would justify an inference of
any passive submission, and this contention appears to us to be well-based.‖

However, Supreme Court further observed that ―In coming to the conclusion that the consent of
the girl was a case of „passive submission‟, the High Court mainly relied on the circumstance
that at the relevant time the girl was in the police station where she would feel helpless in the
presence of the two appellants who were persons in authority and whose advances she could
hardly repel all by herself and inferred that her submission to the act of sexual intercourse must
be regarded as the result of fear and, therefore, as no consent in the eye of law.‖
Supreme Court Decision

Supreme Court held that ―we conclude that the sexual intercourse in question is not proved to
amount to rape and that no offence is brought home to Ganpat appellant.‖ With regard to
Tukaram, Court held that ―We do not, therefore, propose to take the girl at her word in relation to
Tukaram appellant and hold that the charge remains wholly unproved against him.‖

Consequences of the Supreme Court decision

After the Supreme Court acquitted the accused, there was public outcry and protests, Upendra
Baxi Vasudha Dhagamwar Raghunath Kelkar Lotika Sarkar law‗s professor wrote an open letter
to the Supreme Court. Which eventually led to THE CRIMINAL LAW (SECOND
AMENDMENT) ACT, 1983 in which:

Section 114(A) was added to Evidence Act which states that if the victim says that she did not
consent to the sexual intercourse, the Court shall presume that she did not consent (rebuttable
presumption of law).

376(A), Section 376(B), Section 376(C), Section 376(D) IPC were also added which made
custodial rape punishable (which were further amended in 2013 after Nirbhaya Rape Case).

Issues in Amendments to Rape Laws in 1983

There are four issues which made Amendments to Rape Laws in 1983 are as follows:

A. Minimum Punishment in rape cases (IPC Section 376 sub section 1)

B. Special cases of rape (IPC Section 376 subsection 2 a-g) & A)

C. Marital Rape (IPC Section 376 A)

D. Abuse of official power (IPC Section 376,B,C,D)

MINIUM PUNISHMENT

Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished
with imprisonment of either description for a term which shall not be less than seven years but
which may be for life or for a term which may extend to ten years and shall also be liable to fine
unless the woman raped is his own wife and is not under twelve years of age, in which case, he
shall be punished with imprisonment of either description for a term which may extend to two
years or with fine or with both : Provided that the court may, for adequate and special reasons to
be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven
years.

Before this amendment, minimum punishment wasn't specified, hence this is commendable, but
if the judge decides that there is an adequate reason the punishment can be reduced.

SPECIAL CASES OF RAPE

like rape of a girl who is below twelve years of age, rape knowing the woman to be pregnant,
gang rape, and custodial rape definitions, Specific (and sometimes increased) Punishment in
some of these cases Shift of burden of proof to defendant from the victim in some of these cases.
(Section 376 subsection 2 (a-g) of Indian Penal Code)

Rape of a woman who is under twelve years of age [Sec.376 (2) (f)]

Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for
life and shall also be liable to fine: Provided that the court may, for adequate and special reasons
to be mentioned in the judgment, impose a sentence of imprisonment of either description for a
term of less than ten years.

Unfortunately, other than the increased minimum punishment from 7 years to 10 years, no other
special concession is given to Child Rape given the increased trauma for the girl. Since even the
minimum punishment can be reduced by the judges, much needs to be done in this area.

Rape of a woman, knowing her to be pregnant

Rigorous imprisonment for a term which shall not be less than ten years but which may be for
life and shall also be liable to fine: Provided that the court may, for adequate and special reasons
to be mentioned in the judgment, impose a sentence of imprisonment of either description for a
term of less than ten years.
Exemption from burden of proof if the victim states in court that she did not consent, then the
court shall presume that she did not consent and the burden of proving consent shall shift to the
accused46

Gang Rape

"Where a woman is raped by one or more in a group of persons acting in furtherance of their
common intention, each of the persons shall be deemed to have committed gang rape within the
meaning of this sub-section. "

Thus even if five men force a women into having sexual intercourse with only one of them, the
remaining four will also be considered to have committed rape under this law. Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for
life and shall also be liable to fine: Provided that the court may, for adequate and special reasons
to be mentioned in the judgment, impose a sentence of imprisonment of either description for a
term of less than ten years.

Exemption from burden of proof :

If the victim states in court that she did not consent, then the court shall presume that she did not
consent and the burden of proving consent shall shift to the accused.

Custodial Rape:

Rape committed on a woman in their or their subordinate's custody by police officer within the
limits of the police station to which he is appointed; orin the premises of any station house
whether or not situated in the police station to, which he is appointed; or on a woman in his
custody or in the custody of a police officer subordinate to him; public servant management or
the staff of a jail, remand home or other place of custody or a women's or children's institution
management or on the staff of a hospita47 Punishment of rape The punishment prescribed for
custodial rape is at least 10 years of rigorous imprisonment which may extend up to life
imprisonment along with a fine.

46
The Indian Penal Code, 1860 (Act 45 of 1860), s. 376(2)(e)
47
The Indian Penal Code, 1860 (Act 45 of 1860), s. 376(2)(a)(b)(c)(d).
To understand the impact of sexual hsarassment on women one must listen to the account of its
victims as no one conveys the meaning and truth of sexual harassment better than the women
who have endured it. In response to the question "What kind of emotional response do eve-
teasing /sexual harassment evoke in you", not a single woman ticked the category of
"indifferent". The survey of the Gender Study Group shows that most women felt disgusted,
insulted and scared by any sort of harassment.

Women often internalize male perceptions of sexual harassment and blame themselves for
having brought on the harassment. They not only doubt the validity of their own experiences but
begin to believe that they themselves must be 'abnormal', ‗cheap‗, 'indecent' or deserving the
violence that comes their way.

Sexual harassment is nothing less than the showcasing of male dominance. Given an
opportunity, such men (those committing sexual harassment) would try fulfilling their desire.
However, it also not true that all cases of sexual harassment are such- where the accused is guilty
of conceiving the intention of a sexual intercourse. But it also depends on each individual case
and circumstances, because it may well be the case that the woman may also be at fault.

Every 60 minutes, two women are raped in India. What is more horrendous is that 133 elderly
women were sexually assaulted last year, according to the latest report prepared by the National
Crime Records Bureau (NCRB). A total of 20,737 cases of rape were reported last year
registering a 7.2 per cent increase over the previous year, with Madhya Pradesh becoming the
―rape capital‖ of the country by topping the list of such incidents.

Going by the NCRB statistics, two women are raped in the country every hour. Madhya Pradesh
accounted for 14.5 per cent of the total cases (3,010), with West Bengal following with 2,106
such incidents. Records of high incidence in other states include Uttar Pradesh (1,648), Bihar
(1,555) and Rajasthan (1,238). The national capital had 598 cases in which 602 women were
sexually assaulted.

In its report Crime in India — 2007, the NCRB noted that offenders were known to the victims
in as many as 19,188 cases (92.5 per cent). That included 6,902 incidents in which neighbors
were involved. Parents or close family members were involved in 405 cases while in 1,448 cases
relatives were involved. ―Everywhere in this country, over 90 per cent of the victims are raped
by person known to them,‖ a senior police official said.

Increased Rape Cases in India:

Rape, molestation and abductions, the crimes are numerous but low conviction rates for the same
is one of the major reasons for the growing number of offences against women, point out experts.

Apart from other factors, the low conviction rate in the cases of rape is the biggest worry we
have today. There is hardly any deterrence. Law should provide fast track courts to deal with
such cases," says Girija Vyas, Chairperson, National Commission for Women (NCW).48

While there were 37,000 cases of molestation and eve-teasing in 2006-07, the conviction rate for
such crimes, is below 30%. For rape, it is just a dismal 27%.

Brinda Karat, All India Democratic Women's Association (AIDWA), member says, "I have
raised the issue in the Parliament several times that there is a need to step up conviction rate in
rape cases drastically. Poor legal system, a wrong understanding of policemen in these cases and
lengthy procedures especially in child rape where after horrifying rounds of investigation the
victim starts feeling that she is an accused and should not have registered the case, are few
reasons for low conviction rate."

"In every 10 hours, a girl of the age of 1-10 is being raped in India. We are raising this issue and
have demanded enforcement of stringent laws by government," she adds.

Reacting to a recent incident in which a minor was raped by a constable and his accomplice in a
moving car in the national capital, Vyas says, "This is a special case and it should be dealt with a
fast-track court. On many occasions, complains do not get registered on time and then it is very
difficult to prove that rape actually happened. It should be registered within 24 hours of the
incident.

The accused believe they can get away with it. Officials are corrupt and easily bribed (some are
even committing rapes themselves). Women are shamed and humiliated when they come
forward because of the backward notion that it's the woman's fault (even when the 'women' are

48
The Tribune, Chandigarh, 28 April 2008.
young children). If they make a case, it becomes public knowledge and their families and society
shun them in many cases as they are then seen as 'damaged goods'. If unmarried they will have
great difficulty getting married. Courts don't always do justice for the victim and find rapists not
guilty for ridiculous reasons.

Predators know this and take advantage of it, even if they get caught, if they have enough money
or influence, nothing will happen to them. A woman would have to turn the case into a media
circus to have a chance at justice and 90% of rape victims in India would not do so out of fear
and shame.

There is a need for review in certain provisions under various laws related to rape so that victims
get justice.

Definitions of Rape: Penetration

The variations in definitions as to what constitutes sexual intercourse is part of the problem in
defining what has to be penetrated. With respect to the raping of a woman by a man, most states
require penetration of the vagina. Defining what has to be penetrated is significant because if
rape is viewed as a crime against the woman, then any conduct that is perceived as violate to the
woman should be classified as rape. Many statutes, with respect to the penetration element,
provide that an offender has to engage in sexual intercourse. It is assumed that penetration has to
be effectuated in order for there to be sexual intercourse. The statutes, however, fail to state what
has to be penetrated--the vagina, the vulva, the labia, or the clitoris? Some states refer to
penetration of the female organ without further defining penetration.

To penetrate is ―to enter or force a way into; [to] pierce.‖ Penetration is the ―act or process of
piercing or penetrating something.‖ How do we determine what constitutes a sex organ? And
what needs to be penetrated? And can it be penetrated? Even though there are numerous articles
stating the force and against the will requirements are male responses to being attacked, the male
question has not been addressed with respect to penetration. Penetration is required in addition to
the force and against the will requirements. Penetration, too, is a male understood type conduct.
The penetration of requirement does not necessarily require that the vagina is completely entered
or that the hymen is ruptured. Is entering the vulva or labia sufficient?
At early common law when rape statutes were initially written, women were deemed property of
men. Virgin daughters were a valuable commodity belonging to their fathers; wives were the
chattel of their husbands. The father or husband ownership right of women made rape a crime
against property. Because rape was a property offense, the father or husband was the victim
rather than the woman. Because fathers or husbands were the victims of rape, men wrote rape
laws for their own benefit and therefore, included a penetration requirement. Penetration requires
male type conduct and therefore, evolved as the measuring rod for determining when conduct
had gone far enough to constitute a crime. One commentator has stated the following:

"Criminal law that reflects male views and male standards imposes its judgment on men who
have injured other men. It is "boys' rules" applied to a boys' fight. In rape, the male standard
defines a crime committed against women, and male standards are used not only to judge men,
but also to judge the conduct of women victims.

Delaware's unlawful sexual intercourse statute is common to most jurisdictions. Delaware's

statute provides that one is guilty of a class A felony when the person intentionally engages in
sexual intercourse "without the victim's consent." Sexual intercourse is defined as ―[any act of
physical union of the genitalia or anus of [one] person with the mouth, anus or genitalia of
another person. It occurs upon any penetration, however slight.‖ Sexual intercourse is also
defined as ―any act of cunnilingus or fellatio, regardless of whether penetration occurs.‖
Cunnilingus is ―any oral contact with the female genitalia‖. Sexual contact is ―any intentional
touching of the anus, breast, buttocks or genitalia of another person, which touching, under the
circumstances as viewed by a reasonable person, is sexual in nature. Sexual contact shall also
include touching of those specified areas when covered by clothing.‖ For the woman, the
physical contact of her genitalia, her clitoris, her sex organ by the penis or any object may be
considered to be as violate as the penetration of her vagina.

A strong reliance was also placed on certain decisions of the House of Lords so that they would
be satisfied and the most notable being R v R194. where it was held as under:

The rule that a husband cannot be criminally liable for raping his wife if he has sexual
intercourse with her without her consent no longer forms part of the law of England since a
husband and wife are now to be regarded as equal partners in marriage and it is unacceptable that
by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances or that
it is an incident of modern marriage that the wife consents to intercourse in all circumstances,
including sexual intercourse obtained only by force. In Section 1(1) of the Sexual Offences
(Amendment) Act, 1976, which defines rape as having ‗unlawful‗ intercourse with a woman
without her consent, the word ‗unlawful‗ is to be treated as mere surplus age and not as meaning
'outside marriage', since it is clearly unlawful to have sexual intercourse with any woman without
her consent.‖

Now, even international law says that rape may be proved as "the sexual penetration, however
slight it may be, of the vagina or anus of the victim by the penis of the perpetrator or any other
object used by the perpetrator; or of the mouth of the victim by the penis of the perpetrator; by
coercion or force or threat of use of force against the victim or a third person." Similarly, Article
2 of the Declaration on the elimination of Violence against Women reads as follows:

Violence against women shall be understood to encompass but not limited to . Physical, sexual
and psychological violence occurring in the family, including battering, sexual abuse of female
children in the household, dowry related violence, marital rape, female genital mutilation and
other traditional practices harmful to women, non-spousal violence and violence related to
exploitation.‖

Judgments by the Australian courts reveal that insertion of objects into the victim's vagina and
anus amount to rape. The definition of rape states that sexual penetration of the body is necessary
but the slightest penetration of the body of the female by the male organ is sufficient. Emphasis
on the word "slightest" reveals that the intention behind the definition is to give benefit of doubt
to the victim and not the criminal.

Re-definition of Rape

After a careful review of the rape law in vogue and an intensive deliberation with Sakshi v.
Union of India,195 the National Commission for Women and the other organizations, the Law
Commission in its 172nd Report submitted to the Government of India has recommended, inter
alia that the law relating to 'rape' would be made gender neutral, wider and more comprehensive
to bring it in positive with the current thinking.
So the proposed re-cast Section 375 would read as:

Section 375, Sexual Assault : ―Sexual assault means-

(a) penetrating the vagina (this term shall include the labia majora), the anus or urethra of
any person with-

i. any part of the body of another person, or

ii. an object manipulated by another person except where such penetration is carried out for
proper hygienic or medical purposes;

(b) manipulating any part of the body of another person so as to cause penetration of the
vagina (which shall include the labia majora), the anus or urethra of the offender by any part of
the other person's body;

(c) introducing any part of the penis of a person into the mouth of another person;

(d) engaging in cunnilinggus or fellatio; or

(e) containing sexual assault as defined in clauses (a) to (d) above in circumstances falling
under any of the six following descriptions:

First - Against the other person's will. Secondly - Without the other person's consent.

Justice Verma Committee Suggestion49

The constitution of this Committee is in response to the country-wide peaceful public outcry of
civil society, led by the youth, against the failure of governance to provide a safe and dignified
environment for the women of India, who are constantly exposed to sexual violence. The
immediate cause was the brutal gang rape of a young woman in the heart of the nation‗s capital
in a public transport vehicle in the late evening of December 16, 2012. We refrain from saying
anything more about the incident, which is sub judice for the trial in a court of law for the
offences committed by the rapists. It is unfortunate that such a horrific gang rape (and the
49
https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe
%20report.pdf (retrieved on 10/1/20)
subsequent death of the victim) was required to trigger the response needed for the preservation
of the rule of law—the bedrock of a republic democracy. Let us hope that this tragedy would
occasion better governance, with the State taking all necessary measures to ensure a safe
environment for the women in the country, thus preventing the recurrence of such sexual
violence.

The urgency of the matter impelled the Committee to undertake the performance of the assigned
task within the short period of 30 days to enable the authorities, with all their resources, to take
the necessary follow up action within a further 30-day period, so that the same or a substantial
portion of the same may be completed before commencement of the next session of the
Parliament, which, we hope, will undertake the needed legislative exercise recommended by this
Committee.

The report recommended the following amendments in Rape and Sexual Assault-

In Dileep Singh v. State of Bihar197 the Supreme Court observed that ―though will and consent
often interlace and an act done against the will of the person can be said to be an act done
without consent, the Indian Penal Code categorizes these two expressions under separate heads
in order to as comprehensive as possible

section 90- Consent known to be given under fear or misconception.—―A consent is not such a
consent as is intended by any section of this Code, if the consent is given by a person under fear
of injury, or under a misconception of fact, and if the person doing the act knows, or has reason
to believe, that the consent was given in consequence of such fear or misconception; or (Consent
of insane person) if the consent is given by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and consequence of that to which he gives his
consent; or [Consent of child] unless the contrary appears from the context, if the consent is
given by a person who is under twelve years of age.‖

In this context the decision of Supreme Court in State of H.P v. Mango Ram is noteworthy. The
Court observed as follows:

The evidence as a whole indicates that there was resistance by the prosecutrix and there was no
voluntary participation by her for the sexual act. If body is submitted due to fear of terror body, it
cannot be construed as a consented sexual act. Consent can be ascertained only on a careful
study of all relevant circumstances. From the evidence on record, it cannot be said that the
prosecutrix had given consent and thereafter she turned round and acted against the interest of
the accused. There is clear credible evidence that she resisted the onslaught and made all possible
efforts to prevent the accused from committing rape on her. Therefore, the finding entered by the
learned Sessions Judge that there was consent of the prosecutrix is without any basis.‖
The United Nations Handbook points out that the definitions of rape and sexual assault have
evolved over time, from requiring use of force or violence, to requiring a lack of positive
consent‖.

Penetration

The section further clarifies that mere penetration is sufficient to constitute the offence of rape.‖

In Koppula Venkatrao v. State of AP199 the Supreme Court held as follows:

The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without
penetration constitutes an attempt to commit rape and not actual rape. Definition of ―rape‖ as
contained in Section 375 IPC refers to ―sexual intercourse‖ and the Explanation appended to the
section provides that penetration is sufficient to constitute the sexual intercourse necessary to the
offence of rape. Intercourse means sexual connection.‖

Pursuant to the aforesaid observation the offence of ‗attempt to commit rape‗ also need
elaboration. Section 376 read with Section 511 of IPC penalizes the offence of ‗attempt to rape‗.

Evidence and Proof

It is well settled that the evidence of the victim of rape is on the same footing as the evidence of
an injured complainant or witness. Her testimony alone is sufficient for conviction. In
prosecutions of rape cases, the law doesn‗t require any corroboration. Abundant caution is the
only way through the court may consider some corroboration which satisfy its conscience and
rule out any false accusation.200 However, the above principle of presumption while prosecuting
rape cases emerged in the aforesaid background.
In Tukaram v. State of Maharashtra201 the Supreme Court had disbelieved the statement of the
victim of rape, on the ground that the circumstantial evidence did not lead to the inference of
guilt and ―in fact derogates in no uncertain measure from the inference drawn by it.‖202

The facts were these - Mathura was a young girl labourer of year 14-16. Her bother and she were
brought to their local police station to record their statements in respect of a complaint lodged by
her brother. While at the police station, Mathura was raped by Head Constable Tukaram and
Constable Ganpat, a fact which she reported to a crowd that had gathered outside the police
station. Mathura was then examined by a doctor, who advised her to file a police complaint,
which complaint was registered by the police after some hesitation and protests from the crowd.

Following this verdict, a nation-wide protest was launched for inclusion of custodial rape within
the legislative provision. The Supreme Court‗s judgment was criticized by four eminent law
teachers – Upendra Baxi, Vasudha Dhagamdar, Raghunath Kelkar, and Lotika Sarkar – who
posed the following questions in an open letter to the Supreme Court-

Was this not a decision which violated human rights of women under the law and the
Constitution?

The judgment provided no cogent analysis as to why the factors which weighed with the High
Court were insufficient to justify conviction for rape?

Accordingly, the Criminal Law Amendment Act, 1983 was passed which included situation of
aggravated rape‖ under section 376A to E. Further, the India Evidence Act, 1872 was also
amended by the Criminal Law Amendment Act, 1983 and section 114A was incorporated which
imposed the burden of proving ―consent‖ upon the accused in the aforesaid cases of aggravated
rape. This was an exception of the general rule of presumption of innocence of the accused.‖

The effect of the Criminal Law Amendment of 1983

The effect of the Criminal Law Amendment of 1983 was examined by the Supreme Court50 and
it was observed as follows:

50
hri Bodhisattwa Gautam v. Shubra Chakraborty, 1996 SCC (1) 490.
―In spite of the decision of this Court that (depending upon the circumstances of the case)
corroboration of the prosecutrix was not necessary, the cases continued to end in acquittal on
account of mishandling of the crime by the police and the invocation of the theory of ‗consent‗
by the courts who tried the offence. To overcome this difficulty, the legislature intervened and
introduced Section 114-A in the Evidence Act by Act No. 43 of 1983 reading as under

114-A. Presumption as to absence of consent in certain prosecutions for rape.— In a prosecution

for rape under clause (a) or clause (b) or clause(c) or clause (d) or clause

(e) or clause (g) of subsection (2) of Section 376 of the Indian Penal Code (45 of 1860), where
sexual intercourse by the accused is proved and the question is whether it was without the
consent of the woman alleged to have been raped and she states in her evidence before the Court
that she did not consent, the Court shall presume that she did not consent.‖

Further in State of Maharashtra v. Chandraprakash Kewalchand Jain the Court observed:204

It is necessary at the outset to state what the approach of the court should be while evaluating the
prosecution evidence, particularly the evidence of the prosecutrix, in sex offences. Is it essential
that the evidence of the prosecutrix should be corroborated in material particulars before the
court bases a conviction on her testimony? Does the rule of prudence demand that in all cases
save the rarest of rare the court should look for corroboration before acting on the evidence of
the prosecutrix? Let us see if the Evidence Act provides the clue. Under the said statute
‗Evidence‗ means and includes all statements which the court permits or requires to be made
before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts,
except the contents of documents, may be proved by oral evidence. Section 118 then tells us who
may give oral evidence. According to that section all persons are competent to testify unless the
court considers that they are prevented from understanding the questions put to them, or from
giving rational answers to those questions, by tender years, extreme old age, disease, whether of
body or mind, or any other cause of the same kind. Even in the case of an accomplice Section
133 provides that he shall be a competent witness against an accused person; and a conviction is
not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
However, illustration (b) to Section 114, which lays down a rule of practice, says that the court
‗may‗ presume that an accomplice is unworthy of credit, unless he is corroborated in material
particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a
competent witness and a conviction based solely on his uncorroborated evidence is not illegal
although in view of Section 114, illustration (b), courts do not as a matter of practice do so and
look for corroboration in material particulars. This is the conjoint effect of Sections 133 and 114,
illustration (b).

A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of
the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is
corroborated in material particulars. She is undoubtedly a competent witness under Section 118
and her evidence must receive the same weight as is attached to an injured in cases of physical
violence. The same degree of care and caution must attach in the evaluation of her evidence as in
the case of an injured complainant or witness and no more. What is necessary is that the court
must be alive to and conscious of the fact that it is dealing with the evidence of a person who is
interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels
satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice
incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to
look for corroboration. If for some reason the court is hesitant to place implicit reliance on the
testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony
short of corroboration required in the case of an accomplice. The nature of evidence required to
lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and
circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is
entitled to base a conviction on her evidence unless the same is shown to be infirm and not
trustworthy. If the totality of the circumstances appearing on the record of the case disclose that
the prosecutrix does not have a strong motive to falsely involve the person charged, the court
should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in
our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be
accepted. The degree of proof required must not be higher than is expected of an injured witness.
For the above reasons we think that exception has rightly been taken to the approach of the High
Court as is reflected in the following passage:
The private sphere for women should be defined in women's terms and from a woman's
perspective; otherwise, rape will continue to be a crime of violence on women by men, as
defined by men. This practice permits men to continue, as they have from the beginning of
history, to treat women as property. This affords men the right to touch a woman's body, even
her treasures, until she resists to the point that he understands that she is resisting. As we
approach the millennium, it is time for women to say "no." A woman's body is not the property
of a man, and he is not entitled to touch, unless he gets permission. There is no right for anyone
to invade a woman's most private sphere. The severity of the punishment is generally related to
the invasion. The severity of the invasion of a woman's body ought to be defined from a woman's
perspective of intrusiveness. Rape is the invasion of the female sex organs by a male. Including
the clitoris as a female sex organ in the definition of rape reflects the woman's perspective of
intrusiveness. Consequently, because the clitoris, like the vagina, is a sex organ in which the
nonconsensual invasion is so intrusive, the invasion of it, like that of the vagina, is rape.

Nevertheless, proposal for reforms of the fifteenth Law Commission seems to be a progressive
gender-neutral rape law in India. The proposed section 375, replacing the present one, if enacted,
will, therefore, be a mere symbolic legislative exercise. A symbolic law, embodying certain
values and expressing the consensus of the society to adhere to these values, nevertheless,
undeniably generates a process of creating social consensus and consequential conditions that are
conductive to mobilize such a change. The proposed reforms in the substantive rape law,
therefore, would undeniably give a further momentum to the untiring efforts of women's
organizations to do away with the 'pro-male', 'male-oriented' and 'gender' biased' sexual morals
reflected in the Indian Law relating to rape. It, if favorably responded to, by the legislature,
would not only make the substantive rape law free from the century, but would also take the rape
law in a new progressive direction in the new millennium.

Mathura case of the year 1972-

There was no change in the laws of rape and sexual violence until almost 100 years after the
1860s, but the rape of a tribal woman named Mathura in police custody at Desaiganj police
station in Maharashtra on March 26, 1972, significantly affected these rules.
The session court, in its judgment, acquitted the accused policemen, admitting that the woman
had intercourse in the police station but no evidence of rape was found and that the woman was
addicted to sexual relations.

However, contrary to this decision of the Sessions Court, the High Court withdrew the acquittal
of the accused. After this, the Supreme Court again changed the High Court's decision, saying
that no clear evidence of rape is available in this case. The Supreme Court held that there were
no bruises or bruises on the woman's body which meant that the so-called relations were
established by her own will.

Sexual Offence Act, 2003

It states as follows: -

Rape

(1) A person (A) commits an offence if-

(a) The intentionally penetrates the vagina, anus or mouth of another person (B) with his
penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances,
including any steps A has taken to ascertain whether B consents.

With compare to this law, law of India under penal code not cover the penetration of mouth and
if such happened then that not amount to rape under our present law above all in India it is
observe by our Hon'ble courts that in case of rape if any woman help to commit such rape she
will be not charge for the offence of rape as she help to commit the rape but in England it
happens and their punishment are also more than us so any one before committing this must
think and in the mind of people there is some fear about law and it's punishment.
Like every other country, laws relating to rape do exist in India. However, justice is rarely
achieved. In most cases, rape victims themselves hesitate to make a complaint due to the stigma
attached to it in society. Sometimes, even if a complaint is made, the offender gets away due to
wide spread ignorance of the laws relating to the offense.

Rape means an unlawful intercourse done by a man with a woman without her valid consent.‖

A man is said to commit "rape" if he has sexual intercourse with a woman under circumstances
falling under any of the six following descriptions: -

Against her will.

Without her consent.

With her consent, when her consent has been obtained by putting her or any person in whom she
is interested in fear of death or of hurt.

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.

With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences of that to
which she gives consent.

With or without her consent, when she is under sixteen 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 wife, the wife not being under fifteen years of
age, is not rape.‖
Women Sexual Harassment at Workplace (Prevention and Prohibition) Act, 2013

The revised Women's Sexual Harassment at Workplace (Prevention and Prohibition) Bill 2012
was introduced in the Rajya Sabha on February 25, 2013 with the objective of protecting women
from sexual harassment at private and public workplaces. The bill was passed in the Lok Sabha
on 3 August 2012 without any discussion. In this bill, in addition to women employees working
in the office, provision has been made to provide protection to workers from sexual harassment.
The provision of protection from sexual harassment to women coming for treatment in hospitals
and also to students and researchers of colleges and universities was not originally in the original
bill brought in 2010, but in the amended bill, they have also been brought under the purview of
the Bill. The main provisions of the proposed Act are as follows:

Under this law, sexual comment or any kind of physical gain or wrongful touching of the
workplace is placed under the category of crime.

The proposed Act provides for investigation of complaints within a time limit of 90 days.

There is a provision of fine of up to 50 thousand rupees on the employer for violating the
provisions.

The proposed Act also includes assistants working in homes.

According to this law, a provision has been made to form an Internal Complaints Committee in
any organization having 10 or more employees.

It will be mandatory to implement the Internal Complaints Committee in both organized and
unorganized sectors.

According to Article 14 of the Act, if a complaint of a woman turns out to be malicious or

presents her misleading documents, she can be punished. Article 16 of the Act provides that the
identity of the accused is not public, even if she is sexually convicted of harassment offense only.

In companies where less than 10 employees work, the officer of that district can set up a local
complaints committee.
It is important to note that the work of providing protection to women at the workplace from
sexual exploitation has been going on for 15 years only with the Vishaka guidelines given by the
Supreme Court. After 15 years, the government has decided to enact a law to provide sexual
protection to women. The above act has not only made several important provisions to prevent
sexual exploitation, but also broadened the scope.

Amendment in Criminal Law in 2013

After the Mathura case, there was a demand for immediate change in the laws related to rape in
the country.

Apart from this, section 228A was added in the IPC which said that in some crimes like rape, the
identity of the victim should be kept secret and in case of not doing so, a provision for
punishment should be made. After the rape and murder case in Delhi in December 2012, the
Criminal Law (Amendment) Act, 2013 was passed in the country which further broadened the
definition of rape and toughened the penal provisions under it.

In this act, Justice J.J.s. The suggestions of the Verma Committee were incorporated which were
made to reform and review criminal laws in the country. The Act extended the term of
imprisonment in cases of sexual violence and also provided for the death penalty in cases where
the victim dies or dies.

Under these changes, some new provisions were also added which included: Forcibly removing a
woman's clothes,

Including sexual cues and stalking etc.

In the case of gang rape, the punishment was increased from 10 years to 20 years or life
imprisonment.

Undesirable physical touching, words or gestures and seeking sexual favors etc. were also
involved in sexual offenses.
Unnao Rape Case51

In December 2018, a case was registered after 4 months of gang rape. In March, the woman
lodged an FIR for gang rape. The woman had told that she had a love affair with Shivam Trivedi,
a resident of the village. Shivam took her to Rae Bareli and raped her and made a video. After
this, he kept raping continuously. If you pressurized marriage, then you took Rae Bareli and put
it in a room. He placed under house arrest here. After this, on 12 December 2018, accused
Shivam came with his partner Shubham Trivedi. Both took to the temple on the pretext of getting
married and gang raped. Bihar Police arrested the accused Shivam Trivedi and Shubham Trivedi
on the orders of the court and sent them to jail. In Unnao, Uttar Pradesh, two gang rape accused,
who were out on bail two days ago, burnt the victim's girl in the wee hours of Thursday. Police
sent the woman in critical condition to the district hospital, where doctors sent her to the trauma
center in Lucknow. The victim was set on fire by five accused. The police have arrested all the
accused. These include Shivam Trivedi, his father Ramkishore, Shubham Trivedi, Harishankar
and Umesh Bajpayee.

The National Women's Commission and Chief Minister Adityanath have sought a report in this
matter. The victim was taken by air ambulance to Safdarganj Hospital in Delhi. According to
police, the incident is from Hindunagar in Bihar police station area. The victim was going to Rae
Bareli court to hear the gang rape case. As she was going to catch the train, the two main accused
Shubham and Shivam Trivedi and three of their companions, already seated on the way,
surrounded the young woman. After this, sprayed kerosene on it and set it on fire. The woman
kept running for about one km in a burning condition. In the statement the woman gave the
names of the accused, SP Vikrant Veer said that the condition of the victim is critical. She has
burned 90%. The woman has given the names of the accused in the statement. Police said that
Shubham and Shivam were released on bail two days ago in the gang rape case. The rape case
was registered on the order of the Rae Bareli court. National Women's Commission Chairperson
Rekha Sharma has written a letter to UP DGP OP Singh regarding the rape victim. The
Commission has sought a report in this matter. It asks which police officers have been taken
action for not providing security to the victim. The commission has asked for full details of the
action taken so far from the date of filing the case of the victim.

51
Kuldeep Singh Sengar vs State Of U.P. & Anr. ALLAHABAD, CRIMINAL REVISION No. - 1181 of 2019
Kathua Case52

A special court has given the verdict on Monday in the case of rape and murder of an eight-year-
old girl in Kathua, Jammu and Kashmir. In this, 5 people have been convicted. So far 6 out of 7
people have been convicted in this case. In the case which shocked the nation, the hearing in the
closed room was completed on June 3. It was then announced by District and Sessions Judge
Tejwinder Singh that the verdict could be pronounced on 10 June. Officials said on Sunday that
strict security arrangements have been made in and around the court in view of the verdict in
Kathua.

According to the fifteen-page charge sheet, an eight-year-old girl who was abducted on January
10 last year was raped and held hostage in a village temple in Kathua district. He was kept
unconscious for four days and later murdered. The case began on a daily basis in the first week
of June last year in the district and sessions court in Pathankot, neighboring state of Punjab. The
Supreme Court had ordered the case to be sent out of Jammu and Kashmir after which the case
was referred to a court in Pathankot, about 100 km from Jammu and 30 km from Kathua.

The order of the apex court came after the lawyers in Kathua prevented the Crime Branch
officials from filing the charge sheet in this sensational case. The prosecution team in this case
included JK Chopra, SS Basra and Harminder Singh. The crime branch arrested village head
Sanji Ram, his son Vishal, teenage nephew and his friend Anand Dutta in this case. Two special
police officers Deepak Khajuria and Surendra Verma were also arrested in this case. Head
constables Tilak Raj and SI Anand Dutta were also arrested for allegedly taking four lakh rupees
from Sanji Ram and destroying important evidence. The District and Sessions Judge has framed
charges of rape and murder against seven of the eight accused. The trial against the juvenile
accused is yet to begin and the J&K High Court will hear the petition on his age.If the accused
are convicted, they can be sentenced to minimum life imprisonment and maximum death
sentence. On 10 June 2019, six of the seven defendants were convicted and one acquitted. Three
of those convicted were sentenced to life in prison and three to five years.

52
https://theprint.in/india/governance/inside-story-of-how-one-of-the-most-horrific-rape-murders-of-jk- was-
planned-executed/48129/. (retrieved on 20.8.20)
RAPE LAWS IN INDIA

The anti-rape law has been encoded in the Indian penal code. Section 375 of Indian Penal Code
defines what constitute to rape. Section 376 of the Indian Penal Code on the other hand
enumerates the punishment of rape. The explanation given in section 375 of the Indian Penal
Code; it is stated that ―penetration‖ is enough to commit the ―sexual intercourse‖ which is
essential for the crime of rape. Full penetration is not required in case of rape; ―if any part of the
organ of male goes within the labium of the pudendum of the woman, no matter how little it
amounts to rape‖.

―The one and only essential ingredients is to consider whether it is rape or not is whether the
male organ entered into the person of the woman‖. According to the existing law it is not
important that ―hymen‖ should be ―ruptured‖.

In the famous case R. Vs. Furroll53 a six year old child was raped but she was not injured or hurt
also her private part was not injured. But after that incident she was suffering from ―gonorrhoea‖
which the accused also suffered. In this case it was held that the accused is the guilty of
committing rape. So to prove that a particular intercourse is raped or not absent of consent is
essential. If there is consent then it is not a rape. But it is essential that consent must be free
consent. Here the meaning of the term free consent is different from the Indian contract act,
1872. According to the criminal law in case of rape misrepresentation is not an essential
ingredient.

The most important and controversy question comes i.e. if a man rape a prostitute then whether
he can immune from getting punishment because of the fact that the woman is a prostitute? Or
whether the term of his punishment being reduced because the girl is a prostitute?

In this regard The Supreme Court gave a judgement in the case of Premchand v. State of
Haryana54, which was heavily criticised among the public. In this case the Supreme Court
reduced the minimum punishment of 100 years for rape to 5 years considering the conduct of the
raped girl. The judgement result to various criticism and movement by various women

53
(1923) GLJ 1185
54
AIR 1989 SC 937
organisation. After that a review petition was filed. But it is failed still the Supreme Court tried
to justify their action by saying that-

―we have neither characterised the victim, Suman Rani, as a woman of questionable character
and easy virtue nor made any reference to her character or reputation in any part of our
judgement but used the expression ―conduct‖ in the lexicographical meaning for the limited
purpose of showing as to how Suman Rani had behaved or conducted herself in not telling
anyone for 5 days about the sexual assault perpetrated on her.‖

In the end the Supreme Court observed-

―...we would like to express that this court is second to none in upholding the decency and
dignity of womanhood and we have not expressed any view in our judgement that character,
reputation or status of raped victim is a relevant factor for consideration by the court while
awarding the sentence to the rapist.‖

But this situation has been changed in another case i.e. the State of Maharashtra vs. Madhuker[5]
.In this case one Madhuker who was a police inspector, had knocked at the hut of one Banubi at
night and want to be physical with her. But she started shouting, on hearing that her neighbour
and husband came in. On the basis of her complain the inspector got dismissed.

But after the primary inquiry had been done it was found that Banubi was a ―woman of easy
virtue‖. On the appeal of the police inspector the High Court took into account the fact that
Banubi was a woman of easy virtue and passed an order in favour of the inspector. This case
further went to Supreme Court. According to Supreme Court-

―Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and
when he likes. So also it is not open to any and every person to violate her person as and when he
wishes. She is entitled to protect her person if there is an attempt to violate it against her wish.
She is equally entitled to protection of law. Therefore merely because she is woman of easy
virtue her evidence cannot be thrown overboard.‖
DEVELOPMENT OF RAPE LAWS IN INDIA

55
Let‘s start with the Tukaram vs. State of Maharastra which is commonly known as The
MATHURA RAPE CASE. This a worthy case to discuss in the social transformation perspective
because this is the very first case which led to public outrage and as a result of the protest the
reforms have been made in the existing law. In this case, a 16 years old girl who belonged to a
tribal community named Mathura was raped in a Police station. After which, the family members
made a criminal complaint against those two police officers. But the Supreme Court of India
rejected this case stating – ―Mathura‘s body bore no outwards sign of rape‖.

This judgement leads to a huge movement by many women groups all over the nation.
Consecutively, huge protest, four eminent law professors wrote an open complaint letter to the
Chief Justice of India opposing this judgement. After this entire incident an amendment was
made in criminal law in 1983. The main features of the criminal law amendment, 1983 are:

For the first time custodial rape has been recognised.

Closed proceeding for the rape trials.

It is also banned the publication of victims identifications.

Another famous case Sakshi vs. Union of India 56 is significant in this regards. A NGO called
Sakshi filed a Public Interest Litigation for redefine the term rape. In this case the law
commission of India was directed by the Supreme Court of India to respond to the specific issue
raised in the petition. After the several meetings and consultation with Sakshi; law commission
of India in 2000 published its 172 reports on the review of rape law.

The highlights of the 172 law commission report are following below:

Rape should be replaced by the term sexual assault.

All form of penetration should come under the purview of Sexual intercourse as contained in 375
of Indian penal code.

55
AIR 1979 SC 185
56
AIR 2004 SC 3566
In the year of 2002 an amendment of section 146 of the Indian Evidence Act has been made57.
According to this amendment, it does not allowed any types of cross examination of rape victims
that directly or indirectly raised questions about the moral character of the rape victim also any
types of question which is about the previous sexual experience of the victims.

After the Delhi Gang Rape case people start protesting; several protect by public took place. It
became the burning topic of the nation. People from all over the India joined this protest either
by physically or by virtually. Many people raised their voice against this incident on various
social networking sites. All they want is to safer and better country for women.

Then the government form a committee to recommend legal reforms and also suggest the other
ways to eliminate sexual violation. This committee was headed by Justice Verma. The justice
Verma‘s committee received more than 80,000 recommendations from all over the world. The
main aim of the committee was to create a tough anti rape law and to make a safer country for
women58. After 29 days the report was submitted by the justice Verma‘s committee. The
committees report not only recommended for strong law for crimes against women but also
recommend many essential things which can take an important role to gender equality and social
transformation.

It included many things; like:

 Police reforms
 Educational reforms
 Special training for boys
 Special training for the officers who are in criminal justice system
 Establishment of rape crisis centres.

Finally on 19th march 2013 the bill was passed by the Lok Sabha and on 21st March 2013 it was
passed by the Rajya Sabha. On 2nd April 2013 the bill received the assent of the president.
Under this new act ―the term ―sexual assault‖ has been replaced back to rape.‖ The offence rape
is not a gender neutral offence. According to the new act only man can commit rape. The clause

57
See the Indian Evidence Act 146
58
REPORT TO THE COMMITTEE ON AMENDMENTS TO CRIMINAL LAWS, available at
http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf
which is dealing with the ―touching of private part‖ has been removed from the new act.59
According to the criminal (amendment) act, 2013; marital rape does not consider as rape. This is
criticised by several jurist, women organisation and NGOS.

RAPE AND JUDICIARY

Our judiciary system has played positive as well as negative role in rape cases. n our country
Judiciary is known as the independent wing of government. This independent Judiciary has two
roles:

1) the traditional role i.e. to interpret the laws, and another is

2) Judicial activism i.e. to go beyond the statute and to exercise the discretionary power to
provide justice.

Our Indian judiciary can be regarded as a creative judiciary. Credibility of judicial process
ultimately depends on the manner of doing administration of justice. Justice K. Subba Rao
explains the function of the judiciary as thus:

It is balancing wheel of the federation;

It keeps equilibrium between fundamental rights and social justice; it forms all forms of
authorities within the bounds;

It controls the Administrative Tribunals60

A problem with rape trials is the interpretation of victim‘s consent by courts. The current law and
the amended version consider non-consensual penetration for sexual purpose as sexual assault.
But determination of consent is hampering justice. The core of the offence of sexual assault
remains sexual intercourse without consent. The term consent has itself been subjected to
numerous interpretations.

59
THE CRIMINAL LAW (AMENDMENT) ACTS,2013, available at http://indiacode.nic.in/acts-inpdf/132013.pdf
60
Akshay Goel, http://www.legalindia.in/rape-laws-in-india
 61
In Mohd.Habib v. State , Delhi High Court allowed a rapist to go scot-free merely because
there were no marks of injury on his private part- which the High Court presumed was a
indication of no resistance. The most important facts such as the age of the victim (being seven
years) and that she had suffered a ruptured hymen and the bite marks on her body were not
considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not
sway the High Court‘s judgment.

In a case in 2016, there was a case pertains to an allegation of rape by a woman in Bangalore 19
years ago. While the Sessions Court had acquitted the three men accused, the Karnataka high
court later sentenced them to life imprisonment. The Supreme Court has set aside the high court
judgment and set free the accused, citing reasons including inconsistencies in the woman‘s
statements, hostile witnesses and the medical report conducted after the incident.

The woman has said she works as a domestic worker, though a witness (her roommate) said she
was a sex worker – leading the judges to treat the case as one where she was not paid her dues by
the men, who were her clients.

In their order, a Supreme Court bench comprising Justices Pinaki Chandra Ghosh and Amitava
Roy said:

―Her conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays [a]
somewhat submissive and consensual disposition. From the nature of the exchanges between her
and the accused persons as narrated by her, the same are not at all consistent with those of an
unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human
conduct.

―Her post incident conduct and movements are also noticeably unusual. Instead of hurrying back
home in a distressed, humiliated and a devastated state, she stayed back in and around the place
of occurrence, enquired about the same from persons whom she claims to have met in the late
hours of night, returned to the spot to identify the garage and even look at the broken glass
bangles, discarded litter etc. According to her, she wandered around the place and as disclosed
by her in her evidence, to collect information so as to teach the accused persons a lesson. Her

61
1989 CriLJ 137
vengeful attitude in the facts and circumstances, as disclosed by her, if true, demonstrably
evinces a conduct manifested by a feeling of frustration stoked by an intense feeling of
deprivation of something expected, desired or promised. Her confident movements alone past
midnight, in that state are also out of the ordinary.‖ 62

The court felt it necessary to bring up the woman‘s actions and behaviour after the alleged
incident, comparing them to what they see as ‗usual‘ in that situation, in order to assess whether
or not they think the incident occurred.

In State V. Deepak & Ors.63 Decided by Sessions Court Judge Kaveri Baweja in 2014, the judge
said that being a sex worker had nothing to do with the victim‘s allegations of gang rape. ―The
accused had taken the plea she was a sex worker and illegally living in India (the woman was
from Rwanda),‖ Grover said, ―and wanted to implicate them in a false case so that she could stay
in the country.‖

In that case, Baweja ruled:

―It may be reiterated that simply because the victim was working as a sex worker before the
incident in question, does not confer any right upon anyone to violate her dignity or to rob her
and can certainly not be a ground to award lesser than the minimum prescribed punishment.‖

Judges are applying the discretionary power to provide better justice to women in the new
context of the Socio-Economic conditions. Judiciary has played an active role in enforcing and
strengthening goals towards protection of rights of the women of the land. The courts in India
have tried to interpret laws in consonance with the international treaties and conventions for
betterment of women , which are as follows :-

In 1992, Vishakha Judgement, came about after the case received unprecedented media attention
and for the first time the Supreme Court defined ‗Sexual harassment at work place‘. And the
Apex Court laid down landmark guidelines.

62
https://thewire.in/gender/supreme-court-rape-sex-work
63
https://indiankanoon.org/doc/170354337/
In State of Punjab v. Gurmit Singh, the Supreme Court has advised the lower judiciary, that even
if the victim girl is shown to be habituated to sex, the Court should not describe her to be of
loose character.64

The Supreme Court has in the case of State of Maharashtra v. Madhukar N. Mardikar65, held that
―the unchastity of a woman does not make her open to any and every person to violate her person
as and when he wishes. She is entitled to protect her person if there is an attempt to violate her
person against her wish. She is equally entitled to the protection of law. Therefore merely
because she is of easy virtue, her evidence cannot be thrown overboard.‖

Suo Motto v. State of Rajasthan66 popularly known as German Lady rape case. It is a landmark
judgment laying down principles and guidelines for the protection of dignity of the women.
Hon‘ble Mr. Justice N.N. Mathur, who wrote the judgment, took Suo Motto cognizance of a rape
case of a foreign tourist in Rajasthan in May 2005 which had hit the headlines of State and
national newspapers. In this case, court laid down certain highly relevant guidelines for criminal
investigation and trial of offences against women in rape cases. The court opined:

―In order to combat the increasing crime against women and to ensure protection and
preservation of their human rights – the criminal justice system needs to be addressed from the
point of view of systemic victim support service. There is need to promote proactive role of
police as well as trial courts‖

In the landmark case of The Chairman, Railway Board v. Chandrima Das, the Hon'ble Court
held that rape is not a mere matter of violation of an ordinary right of a person but the violation
of Fundamental Rights which is involved. Rape is a crime not only against the person of a
woman; it is a crime against the entire society. It is a crime against basic human rights and is
violative of the victims most cherished right, namely, right to life which includes right to live
with human dignity contained in Article 21.

64
1996 AIR 1393
65
AIR 1991 SC 207,
66
RLW 2005 (2) Raj 1385
Recently in Nipun Saxena & Ors. v. Union of India, Supreme Court Bench headed by Justice
M.B. Lokur and Justice Deepak Gupta, has accepted the National Legal Services Authority
(NALSA) Scheme called Victim Compensation for Survivors of Sexual Assault and Acid
Attack.

The Gang Rape victims will be compensated from Rs.5 Lacs – Rs.10 Lacs, the rape victim‘s
forRs.4 Lacs – Rs.7 Lacs, unnatural sex assault victims from Rs.4 Lacs - Rs.7 Lacs. He victims
who have loss of their foetus will be compensated from Rs.2 Lacs- Rs.3 Lacs. Victims who got
their face disfigures from acid attack will be compensated from Rs.7 Lacs- Rs.8 Lacs, depending
up cases.
 CHAPTER-5

CONCLUSION AND SUGESTION

Rape cases in India are rising day by day and still striving for justice. Women are not safe,
neither in the daylight nor in the night. In India, a woman is reportedly raped every 15 minutes.
Moreover, Rape is the fourth most common crime against a woman in India. Although there are
laws in India to protect a woman from sexual offences and rape, talking about justice, is rarely
received in India. Also, the conviction rate is too low in India.

Often, rape victims do not report to the police because they hesitate to make a complaint due to
the stigma attached to it in society. Society, most of the time, blames only the victim either by
saying they have male friends or they wear provocative clothes, or they walk out of the home at
night. Majorly, victims do not come forward to complain because they are not aware of the laws
that have been made for their protection and safety. India still needs to make more strict laws for
rapes.

The women neither ask nor deserve to be raped, abused, or assaulted. In my view, providing self-
defense training to a woman should be made mandatory at the school level. Providing adequate
sex education at the primary level of school can also help reduce rape in India to some extent.
Measures need to be taken by the Government to introduce laws to every citizen. We should
establish zero-tolerance policies for sexual harassment and violence at the place where we live or
work.

But, again, the question that arises is what if the laws have been made and there is no change in
the society? What about the mentality of the people living in society? What about customs &
traditions? Over time, the government has only dealt with the crime of rape in response to
widespread outcry following new, more heinous cases.

As a result, the victims are still not given a secure and protective atmosphere by our system.
Notwithstanding the laws' progressive revisions, there are still some contentious issues that
require quick consideration, such as marital rape and the gender neutrality of rape legislation,
according to the Justice Verma Committee's report. The vagueness and consistency of the court
rulings have come to light in a number of situations. There are many incidences that go
unreported because the victims are afraid of social stigma.

At every turn, from police stations to courtrooms, victims are subjected to harassment. Every
stage of the victims' battle for justice, from the poor healthcare system to the criminal
enforcement system, adds to their agony. Our society significantly contributes to creating
obstacles to getting justice. The absence of legal action against male sexual victimisation is
mostly due to decreased reporting of male sexual violence and victims' reluctance to come
forward.

If a male is sexually assaulted by another male, Section 377 of the Indian Penal Code, 1860
applies; but, if he is assaulted by a girl, no particular legal provision exists. It is critical to pay
close attention to the definitions, categories, and types of sexual victimisation that need to be
altered in order to minimise gender prejudice. In India women are still seen and treated as merely
the personal asset of men within social and legal discourses. The fact that marital rape is not
recognized because it is assumed that a man cannot harm himself. Marriage is an institution
where the identities of man and a woman get merged and they become one in the eyes of law.

Such standards don't look at marital rape as a serious or heinous crime rather they treat it more as
an ethical issue linking it to family honour. However, this belief system fails to recognize the
very fact that rape is an aggressive, heinous and violent crime against a being where the object of
law should be to deter violence at any cost. So, until and until change originates from inside the
society together with the legal reforms, the impact of the laws will never be fully realized. Many
incidences go unreported because the victims are afraid of social stigma. At every turn, from
police stations to courtrooms, victims are subjected to harassment.

Every stage of the victims' battle for justice, from the poor healthcare system to the criminal
enforcement system, adds to their agony. Our society significantly contributes to creating
obstacles to getting justice. Therefore, until and until change originates from inside the society
with the legal reforms, the impact of the laws will never be fully realized. Capital Punishment is
allowed for anyone convicted of raping children under the age of 12.
But what about rape of a woman above 12 years, Rape is Rape. There is no difference between
committing Rape of a girl below 12 years or above 12 years, then why such a huge difference is
there in the punishment. Why death is penalty only for rapist of children below12 years of age.
This new law may protect children below 12 years, because rapist will think several times before
raping a child below 12, as there will be fear of death among such people, but what about girls
who are above 12. Committing Rape, not only injures a girl physically, but also injures her
mentally. It spoils the whole life of a girl.

While committing this heinous crime, accused is in his sense. There is always presence of mental
element to make physical relationship with a girl even without her consent. Granting
imprisonment for several years can't change the mindset of the accused person. A rapist is not
safe for the society and hence should be given death penalty i.e. Capital Punishment, so that
there could be an example in front of society and the cases of rape can be reduced. In rape cases,
age of the victim should be considered immaterial for granting death penalty to the rapist.

There is a significant difference between will and consent. There is a proper definition of consent
under the Indian Penal Code. On the other hand, the will is still not being clearly defined. Due to
no proper definition consent and will is being interpreted as the same thing and therefore the
decision passed by the court is vague and no proper justice is being served to the victim.

Therefore there is a dire need to introduce a formal definition of a will under the Indian Penal
Code. Section 375 of the Indian Penal Code is one of the talked about sections due to the
increase in the number of rape cases in India in the amendments brought in the past few years
have brought significant changes in the section but still there are quite many existing flaws
which need to be addressed.

We have numerous regulations in place to regulate such horrible crime, but when it comes to
implementation, we either lack someplace or need to make an effort to control it. As a result, the
crime is interpreted in a variety of ways, which can lead to a miscarriage of justice. The same
needs significant changes which can be achieved by changing legislative minds.
Suggestions

The culture of rape is prevalent in the world. It is involved in the behaviour of the world,
embodied in our way of thinking, speaking and moving. While the contexts may be
different, rape culture has always been patriarchal beliefs; Power and control lie in it.

1. There should an amendment in IPC. The Punishment of Rape must and should be
death penalty. Guilty of rape, hard to hard Punishment should be determined. All
the routes of the guilty should be blocked. So that the guilty can be punished.
2. Support and give confidence to survivors of sexual violence. Bring awareness, and
challenge victim-blaming statements, so that this does not happen again in the
future.
3. The government must ensure its citizens to provide justice. The government
should be counselling the police that they should register a complaint without
biasness on the basis of caste, creed, or on religion.
4. Identity of caste should be secret does not mention in FIR, when the case goes into
courts that become biased by caste system.
5. Rape cases speedy trial is very important, along with speedy trial hard punishment
is necessary.
6. Special courts must be built for such kind of Rape cases, fair hearing is also
necessary.
7. Decent and good literature should teach from the begging class, decent literature
must be a part of our classes. Cheap type of literature should avoid from the
classes on all level.
8. Parents and other siblings/ like sisters says strictly to their brothers if they will
harassed any girl or misbehaved with then they will never accept that thing they
will not permit to enter the house.
9. The education system must be such kind which develops a thought in girls to
critically examine the person, media, and social media how the sexuality is
depicted. How does it take the brain diverted? Girls must aware of it.
10. Women should take a self-defence class. It is very useful for women self-reliant
and self-defence, your voice and your body are powerful tools for prevention.
11. Government and education institutions should teach girls and parents to raise their
voices about the myths and realities of sexual assault. Which will reduce the
hesitation of his children, friends, and parents from childhood? Which will give
more complaints about crimes against women? Because of that, the culprit will not
be freshly elevated. Which will give more complaints about crime, so the culprit
will not be elevated?
12. People should donate their time or money to the local Rape Crisis Centres, instead
of donating their time or money to the temple by creating a local rape centres.
13. What is the government's policy of local K-12 school board prevention of rape and
violence? The syllabus of education includes a text-based on the prevention of
rape and violence, change it if it is not active, the government will have to take
such steps soon. Include such kind of thing in the syllabus as soon as possible.
14. If you are witness to sexual harassment in the workplace or in public places,
uncover the behaviour. Do not bear it. Raise voice against it.
15. Pledge to commit or condemn any act of violence at any time.
16. Get help from any support agency or take action by interfering directly, when you
see someone taking advantage of someone who is not able to give consent, act on
it immediately.
17. Age of consent is determined, consent is mandatory and every sexual engagement
you make - there should be no excuse. Consent should be without undue coercion.
Women's / Girls educate herself on what it means to receive and give consent.
18. Prostitution is considered a taboo in India and is not discussed openly. However, it
poses a enormous threat to the fabric of India society for its role in weakening the
institution of marriage, sexually transmitted diseases, abduction of young girls,
isolation of prostitutes from society, rape etc. Abolition of prostitution is a
mammoth task as it is an ancient practice traced back to the Devadasis system and
has existed too long. It is a general misconception that prostitution in India is
 illegal, rather prostitution is legal but pimping, owning and managing a brothel is
illegal. By Amending the Law existing law relating to Immoral Traffic
(Prevention) Act, 1956 which regulates and legalised the prostitution in India, so
much, so that all states will acquire responsibility to manage brothels and it can
fulfil this obligation by granting license to authorized person. It shall also
formulate guidelines regarding age of prostitutes, rights as to medical care, right
against exploitation and rape. On the flipside, legalization of prostitution could be
misinterpreted as the promulgation of prostitution. But by amending the existing
law and establishing the agencies to work for the betterment of sex-workers
conditions, desire for sexual pleasures can be satisfied with due regard to decency
of social norms, without adversely affecting the health, by having regard to the
medical history of the sex worker and this may decrease the rise of sex related
heinous crimes like rape, and there is a great possibility that this could be a
revenue- generating industry for the Government.
19. The curriculum of Indian education should be changed, in which Ramayana and
Mahabharata should be changed and it should not be taught in curriculum.
Because he has a grudge at home, Fighting, female exploitation, and multi- wives,
multi- husband and female abduction are depicted. Which children from childhood
develop the same mindset?
 BIBLIOGRAPHY

1. Amnesty International on India – A Report on Torture Rape and Deaths in Custody

(1992).
2. Baxi, P.M., The Law of Rape, Including Position of Child Victims: An Overview, Report
on Seminar on Child Rape, held in New Delhi October 7-8, 1992.
3. Bidwai Praful, Fighting terror, upholding law, the Centrality of human rights, Compiled
by UNDP, Sustainable Development Networking Program (2002).
4. BJS Special report: International Crime Rates, Washington, DC: U.S., Department of
Justice (1998).
5. Central Office of Information, Britain‗s Legal Systems London: HMSO, (1993).
6. Central Office of Information, Criminal Justice, London: HMSO, (1992).
7. Central Office of Information, The British System of Government, London: HMSO
(1992).
8. Committee on the Elimination of All Forms of Violence against Women, General
Recommendation on Violence against Women (Eleventh Session 1992).
9. Compensation for Victims of Crimes of Violence, 4 (1964), Home Office, Scottish Home
& Health Department, Great Britain, 35th General Assembly Session of the ICPO-
Interpol, Berne, (August 1966). 10. Compensation for Victims of Crimes of Violence,
HMSO, Great Britain, (1961).
10. Crime in India 2013. Ministry of Home Affairs, Govt. of India, New Delhi.
11. International Crime Victims Survey (ICVS), 2000.
12. Korean Women drafted for sexual service by Japan: The Comfort women issues, General
Korean Council for the Women (February 25, 1992).
13. Law Commission of India, 154th Report on Criminal Procedure Report 1973, (1996).
14. Law Commission of India, 172nd Report on Review on Rap Laws, (March, 2000).
15. Law Commission of India, 84th Report on Rape and Allied Offences, (1980).
16. Liberia, Swiss, S., Our Forgotten Family: The Plight of Refugees and the Displaced, New
York: The Women's Commission for Refugee Women and Children, (1991).
17. Liberia, Swiss, S., Women and Children Gravely Mistreated, Boston, Mass: Physicians
for Human Rights (1991).
 18. Lokika Sarkar, Report on National Specialized Agencies and Women‗s Equality, Centre
for Women‗s Development Studies, U.N. Fund for Women, 1988, L.C.1.
19. Muehlenhard, C.L., SIECUS Report, 24(2), (1996).
20. Murray, L., Cohen, Ralph Garofalo, Richard Boucher & Theoharis Seghorn. The
Psychology of Raids, Seminar in Psychiatry, 3 (August 1971).
21. National Centre for Victims of Crime, Statutory and Constitutional Protection of Victims‗
Rights: Implementation and Impact on Crime Victims, Final Report, Arlington, VA
(1996).
22. Penal Practices in the Changing Society, HMSO, Great Britain (1959).
23. PUCL Bulletin, November 2002.

News reports

1. 3 paraded naked in Rajasthan, 8 arrested, Time of India, December 1, 2012, New

Delhi.
2. A minor boy raped seven-year-old girl at a Najafgarh Farmhouse, The Times of India,
June 21, 2013, New Delhi.
3. Another rape reported, The Hindustan Times, October 14, 2015, New Delhi.
4. Another woman alleges rape by father in law, The Times of India, July 12, 2012,
New Delhi.
5. Aruna is still on our conscience, The Times of India, August 18, 2015, New Delhi.
6. Attempted Rape Case – Court Raps Cops for shielding facts, Indian Express,
February 7, 1992, New Delhi.
7. Bid to Kill witness in Court, man held, The Times of India, August 18, 2015, New
Delhi.
8. Bilkis Rape case – CBI Indict Gujrat Police, The Times of India, February 26, 2005,
New Delhi.
9. Boy Rapes minor girl, The Hindustan Times, March 15, 2012, New Delhi.
10. Cases of Minor rapes top all crimes on kids, The Hindustan Times, May 1, 2013,
New Delhi.
11. Child Rape, The Hindustan Times, October 12, 2016, New Delhi.
12. Cops acquitted, The Hindu, March 18, 2015, Hyderabad.
13. Court hands man one day jail sentence for raping 14 years old, The Times of India,
August 134, 2015, New Delhi.

14. Crime against Women is on rise, The Times of India, May 15, 2016, New Delhi.
15. Custodial death abuse of police power rising, The Times of India November 22, 2014,
New Delhi.
16. Delaying verdict amounts to violation of SC order, The Times of India, July 4, 2015,
New Delhi.
17. Every Girl Is a Target, The Hindustan Time, Octobur 19, 2013, New delhi.
18. Failure of the state and society in carrying Out their duties Properly, The Times of
India, August 5, 2014, New Delhi.
19. For village girl, real ordeal begins after rape, The Times of India, April 11, 2014,
New Delhi.
20. Fresher‗s forced into sexual act, Hindustan Times, September 4, 2012, New Delhi.
21. Gang rape victim eyes justice for Gujrat women after ruling, The Hindu, August 9,
2014, Hyderabad.
22. HC Frees Swiss paedophiles, The Times of India, March 26, 2004, New Delhi.
23. Heart break, The Times of India, July 3, 2005, New Delhi.
24. Hell of Dalit Women Exposed Guardian, May 9, 2015, U.K.
25. Helplines set up for Women in distress, The Hindustan Times. August 13, 2016, New
Delhi.
26. Hillary Maxell, India‗s ―Untouchables‖ Face Violence, Discrimination, for National
Geographic News, June 2, 2013.
27. Human Rights Crimes in Kashmir: A Pattern of Impunity, Asia Watch, (June 1993).
28. Identification of rapist by Victim not mandatory: Supreme Court – Times of India,
May 1, 2003, New Delhi.
29. Imrana, a mother of five, raped by her father-in-law, The Indian Express, June 15,
2005, New Delhi.
30. Intimate enemy, The Hindu, June 24, 2015, New Delhi.
31. Just Justice, The Times of India, March 14, 2014, New Delhi.
 32. Justice Denied meets Justice Delayed, The Indian Express, May 4, 2013, New Delhi.
33. Liberty at stake, Hindustan Times, HT City, September 4, 2012, New Delhi.
34. M. P. Police downplay minor rape by DSP, The Times of India, July 16, 2004, New
Delhi.
35. Magic Bill, Sunday Pioneer, August 28, 2006, New Delhi.
36. Man ejaculated on Women‗s head in cinema hall, Times of India, March 17, 2003,
New Delhi.
37. Man sentenced to death for rape and murder of 18 months old, The Times of India,
July 18, 1997, New Delhi.
38. Marital Rape – Exemption or Protection. The Hindustan Times, July 30, 1996, New
Delhi.
39. Minister acquitted from rape charges, Times of India, March 18, 2013, New Delhi.
40. No Justice for Rape Victims, Indian Express, March 4, 1992, New Delhi.
41. Pandey Mani, Incest is ―Extreme case‖ of defiance, The Times of India, New Delhi,
April 23, 1995, New Delhi.

Statutes

• The Constitution of India, 1950.

• Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power
1985.
• Delhi Police Act, 1978.
• International Covenant on Civil and Political Rights, 1966.
• Legal Services Authorities Act, 1987
• Penal Procedural Code, 1993, Art. 429 (Spain).
• The Child Marriage Restraint Act, 2006.
• The Child Protection Act of 1990, U.S.A.
• The Code of Criminal Procedure, 1993, Ukraine.
• The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
Punishment, 1984.
• The Cr.P.C. (Amendment) Act, 2005.
• The Criminal law (Amendment Act) 2013
 • The Criminal Injuries Compensation, Act 1995 (U.K.).
• The Law on Judiciary 1993, Ukraine.
• The Omnibus Crime Control Act, 1990, U.S.A.
• The Prevention of Child Marriage Bill 2004.
• The Protection of Human Rights Act, 1993.
• The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
• The Universal Declaration of Human Rights, 1948.
• Criminal Procedure Code, 1973.
• The Criminal Law (Amendment) Act, 2013
• The Victims of Crime Assistance Act, 1996 of Victoria in Australia.
• The Victims of Crime Assistance Act, 1996, Australia.
• The Violence Against Women Act, 1991, U.S.A
• The POCSO (Prevention of Children from Sexual Offences) Act 2012.
• The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013.

Articles

1. Ahamed, I.N., Death sentence and criminal justice in Human Rights Prospective,
November 2010, Vol. 118, p. 330-333.
2. Chattopadhyay, Sudhir Shankar, ―Criminal Justice System needs overhaul‖,
Frontline September 7, 2012, p. 12-15.
3. Abraham, Meghna, Continued trials of Hamida, The Lawyer's Collective, Vol. II,
No.3, (March, 1996) Bombay.
4. Agnes, Flavia, Fighting Rape has amending law helped, cover story, The Lawyers
Collective, (February 1990) Bombay.
5. Barbara, E., Smith, & Jane Roberts Chapman, Rape Law Reform Legislation:
Practitioner's Perceptions of the Effectiveness of Specific Provisions, Response, 10
(1987).
6. Between crime and punishment, is the criminal justice system in India beleaguered
beyond rescue? Frontline, Volume 19-Issue 11, (May 25 – June 07, 2002).
7. Burgess, & Holmstrom, Rape Trauma Syndrome, American Journal of Psychiatry,
131 (1974).
8. Burt, M.R., Cultural myths and supports for rape, Journal of Personality and Social
Psychology, 38 (1980).
9. Burt, Martha, R., Katz Bonnier, L., Rape, Robbery and Burglary: Responses to Actual
and Feared Criminal Victimisation, with Special Focus on Women and the Elderly,
Victimology, 10 (1985).
10. Camilla, E. Le Grand, Rape and Rape Laws: Sexism in Society in Law, California
Law Review, 61 (1973).
11. Check, J.V.P., and Malimath, N.M., Sex role stereotyping and reactions to depictions
of strangers versus acquaintance rape, Journal of Personality and Social Psychology,
45, (1983).
12. Child Sexual Abuse a macabre menace, cover story, The Lawyers Collective, Vol. 11,
(December 12, 1996), Bombay.
13. D.R. Development of Victimology in India, Indian Journal of Criminology, Vol. 13,
No. 2, (July 1985). 14. Desai, Nishtha, Paedophilia in Goa After Peats, The Lawyer
Collective, Vol. 12-No. 5, (May, 1997).
14. Diana Scully, & Joseph Marolla, Riding the Bull at Gilley's: Convicted Rapists
Described the Rewards of Rape, Social Problems, 32 (February, 1985).
15. Dr. Kameshwari, G., Child as a Victim of Rape, 2 SCC Journal Section, (2001).
16. Edna Erez, Victim Participation in Sentencing Rhetoric and Reality, 18:1 Journal of
Criminal Justice (An International Journal), (1990).
17. Frazier, P.A., & Burnett, J.W., Immediate coping strategies among rape victims,
Journal of Counseling and Development, 72 (1994).
18. Grubbing D., Sexual Offending: A Cross-cultural comparison, Annual Review of Sex
Research, 3 (1993).
19. Kavita Bajeli, Datt, Predator's Psyche-Sleuths and Shrinks try to puzzle out what goes
on in a rapist's mind, India Today (Dec. 14, 2003).
20. Kennedy, H.G., & Grubin, D.H., Patterns of denial in sex offenders. Psychological
Medicine, 22(1), (1992).
21. Kilpatrick, Dean, G., Lois, J., Veronen, & Resick Patricia, A., The Aftermath of
Rape; Recent Empirical Findings, American Journal of Orthopsychiatry, 49 (1979).
22. Krishna Iyer, V.R., Indian Judicature, Frontline, Volume 19-Issue 11 (May 25-June
07, 2002).
23. Lang R..A., Neuropsychological deficits in sexual offenders: Implications for
treatment. Sexual and Marital Therapy, 8(2) (1993).
24. Larson, N., The female sex offender. Contemporary Sexuality, 26(9), (1992).
25. Le Roy, L., Lamborn, The Constitutionalisation of Victims‗ Rights in the United
States: The Rationale, in Kirchhoff et al (ed.) International Debates of Victimology,
WSV Publishing (1994).
26. McCaul, K.D., Veltum, L.G., Boyechko, V., & Crawford, J.J., Understanding
attributions of victim blame for rape: Sex, Violence, and Forcibility, Journal of
Applied Social Psychology, 20 (1990).
27. Mckibben, A., proulex, J., & Lusign, R., Relationships between conflict, affect and
deviant sexual behaviuors in rapists and paedophiles. Behaviour Research and
Theraphy, 32(5), (1994).
28. Mio, J. S., & Foster, J. D., Effect of rape upon victims and families: Implication for a
comprehensive family-therapy, American Journal of Family Theraphy, 19(2), (1991).
29. Mohanta, J., and mishra, G, J., Victimology: Scope of Forensic Science, Indian
Journal of Criminology (Jan 1991).
30. Nagel, B., Matsuo, H., Mclntyre, K, P., Morrison, N., Attitudes toward victims of
rape: effects of gender, race, religion, and social class, June; 20(6) 2005: 725-37 ,
Department of Pathology, Saint Louis University, USA, (2005).
31. Narrain, Siddhart, For an effective low on rape, Frontline, Volume 20 – issue 23,
(November, 08 – 21, 2003).
32. Oliver, L., Hall, G. D., & Neuhaus, S. M., A comparison of the personality and
background characteristics of adolescent sex offenders and other adolescent
offenders, Criminal Justice and behavior, 20(4), (1993).
33. Pamela Lakes Wood, The Victim in Forcible Rape Case: A Feminist View, American
Criminal Law Review, 7 (1973).
 34. Paul David, M., The Medical Examination in Sexual Offences, July 15, Medicine,
Science and the Law, (1978).
35. Pound, Roscoe, Discretion, dispensation and mitigation: The problem of the
individual special case, New York University Law Review 35: (1960).
36. Raghavan, R.K.A, A case study on crime, Frontline, Volume 17 – Issue 13, (June 24-
July 07, 2000).
37. Raman, Surekha, Child Sexual Abuse and Law. The Lawyers Collective, Vol. 10,
No.10 & 11, (October-November 1995) Bombay.
38. Report on Seminar on Child Rape, ‗held in New Delhi October 7-8, 1992, Organized
by National Commission for Women (April 1993).
39. Rishi,DD, Registration of the First Information Report and the Action thereon: Role
of the Victim, (1995), Cr.L.J., Journal Section.
40. Sarrel, P. & Masters, W., Sexual molestation of men by women, Archives of Sexual
Behaviour, 11, (1982).
41. Schwartz, D., Negative impact of sexual abuse on adult male gender: Issues and
Strategies of intervention, Child and Adolescent Social Work Journal, 11(3) (1994).
42. Shirley Feldman, Summers and Karen Lindner, Perceptions of Victims and
Defendants in Criminal Assault Cases, Criminal Justice and Behaviour, 3(1976).
43. Silverman, D., Sharing the crisis of rape: Counseling of mates and families of
victims, American Journal of Orthopsychiatry, 48 (1978).
44. Struckman Johnson, C. & Struckman Johnson, D., Men pressured and forced into
sexual experience, Archives of Sexual Behaviouir¸23(1), (1994).
45. Struckman, Johnson, C., & Struckman, Johnson, D., Acceptance of male rape myths
among college men and women. Sex Roles, 27 (3-4), (1992).
46. Sutherland, Sandra, & Donald Scherl, Patterns of Response Among Victims of Rape,
American Journal of Orthopsychiatry, 40 (1970).
47. Taylor, S, E., Adjustment to threatening event: A theory of cognitive adaptation,
American Psychologist, 38, (1983).
48. The victim‗s veto; A Way to Increase victim Impact on criminal case Dispositions,
California Law Review, 77(2), (1989).

Journals
 • All India Reports
• All England Reports
• India Bar Review
• Journal of Indian Law Institute
• Journal of Law Teachers of India
• Delhi Law Review
• Supreme Court Cases
• Supreme Court Journal
• Supreme Court Reports
• Juris Net
• ALJ
• Journal of Criminal Law
• Heinonline (Criminal law Journals)
• Criminal Law Review
• Lexis Library (Criminal Law Journal)
• Journal of Criminal Law and Criminology

Websites

• http://www.aic.gov.au/
• http://www.amnesty.org/
• http://www.cjsonline.gov.uk/victim/walkthrough/index.html.
• http://www.cjsonline.gov.uk/victim/walkthrough/index.html.
• http://www.cps.gov.uk/victims_witnesses/treatment.htmlcourts.court
• http://www.cps.gov.uk/victims_witnesses/treatment.html.compenation.
• http://www.cps.giv.uk/victims_witnesses/treatment.html.statement.state mentthe the
Treatment of Victims and Witnesses.
• http://www.equalitynow.org/action_eng_16_1.html
• http://www.feminist.com/images/generalimages/box-1.gif
• http://www.greenleft.orgau/what.htm.
• http://www.healthyplace.com/Communities/Abuse/lisk/guilt_shame.htm .
• http://www.hrw.org/worldfacts2k1/denmark/
• http://www.hrw.org/worldfacts2k1/spain/
• http://www.hrw.org/wr2k2/.internationaljusitce.htmlInternationalCrimin al Courts.
• http://www.hrw.org/wr2k2/internationaljusitce.htmlMixedNationalInternationalCourt
s. Mixed National-International Courts.
• http://www.hrwr.org/wr2k2/internationaljustice.htmalUniversalJurisdicti onUniversal
Jurisdiction.
• http://www.ichrpr.org.
• http://www.iccolumnists.expressindia.com/full_column.php|content_id= 23229.
• http://www.india.inhdymedia.org/en/2005/05/210607.shtml.
• http://www.interights.org/page.php|dirHome&page.
• http://www.interights.org/searchdatabases.php|dirdatabase.
• http:/www.interpol.iont/Public/Children/SexualAbuse/NationalLaws/
• http://www.justicewomen.org/news/india/march04/unsafe.html.
• http://www.justicewomen./Singapore_16_2html.
• http://www.legalservicesindia.com
• http://www.mdcrimevictims.org/_pages/a_availa_help/a1_help_intro.ht m
• http://www.mdcrimevictims.org/_pages/.c_legal_rights/c1_legal_rights_ intro.htm
• http://www.mdcrimevictims.org/_pages/e_legal_rights/c1_legal_rights_intr o.htm.
• http://www.mdcrimevictims.org/_pages/c_legislation_policy/c2_legis_feder al.htm.
• http://www.nartionmaster.com/grtaph_T/cri_rap&int=_1
• http://www.ncbi.nlm.nih.gov/entrez/query.fcgi+db=PubMed&cmd=Sear
ch&terMorrison_h
• http://www.ncbuy.com/reference/coiuntry/iontro_in.html
• http://www.ncvc.org/law/SBOOK/TOC.HTM.
• http://www.ncvc.org/vroom/impact.htm
• http://www.ohchr.org/english/bdies/chr/iondex.htm
• http://www.peacewomen.org/news/India/Aug04/rapevictim.htm
• http://www.pucl.org/Topics/Law/2002/response.htm
• http://www.pucl.org/Topics/Law/2003/malimath.htm
• http://www.scotland.gov.uk
• http://www.scu.edu/ethics/publications/iie/v3n2/justworld.html