The trajectory of anti-rape laws in India | Explained

Forty-six years after the Supreme Court acquitted two policemen in the custodial rape of a teenage tribal girl in Maharashtra, concluding she consented to the sexual intercourse as there were no visible marks of physical injury on her, Chief Justice of India B. R. Gavai India called the judgment “a moment of institutional embarrassment”. The judgment reflected a deeply regressive and patriarchal understanding of consent, effectively denying the social context of power, coercion, and vulnerability in which sexual violence often occurs.

The Chief Justice said the “troubling” judgment in Tukaram versus State of Maharashtra in 1979 became a turning point as the verdict brought the nation together in protest, for the legal system had failed to protect the dignity of the very person it was meant to safeguard. The acquittal ignited the women’s rights movement for stronger rape laws in India.

It also forced Parliament to address the lapses in criminal law; to strengthen legal protections against custodial rape; to make punishments under the Dowry Prohibition Act more stringent; and to introduce the Family Courts Act. A series of Criminal Law Amendments, from 1983 to the spirit of changes made in sexual offences’ provisions in the Bharatiya Nyaya Sanhita (BNS) in 2023, trace their spirit to the top court’s “institutional failure” in the Mathura rape (Tukaram versus State of Maharashtra) judgment.

The trajectory of the case

The 1979 judgment, which further condemned a custodial rape survivor, was pronounced even before the “the ink had dried” in Justice Krishna Iyer’s verdict in the Nandini Satpathy (1978) case. The court, speaking through Justice Iyer, condemned the practice of calling women to police stations and declared that a woman must be questioned by the police only at her residence.

The incident in the Mathura rape case happened in March 1972. The rape survivor, an orphan aged between 14 and 16 years, was one among four who were called to the police station at night. After a brief questioning, she was asked to stay behind while the others were asked to leave. She was subjected to sexual assault by two policemen, a head constable and a constable inside the police station. The trial court, in its judgment, found the rape survivor a “shocking liar” whose testimony “is riddled with falsehood and improbabilities”. The court came to the conclusion that she had sexual intercourse while at the police station but rape had not been proved and that she was “habituated” to sexual intercourse.

The Bombay High Court, in 1976, overturned the Sessions Judge’s findings and concluded the teenager was subject to forcible sexual intercourse amounting to rape. The High Court had held that the so-called ‘consent’ to act was only ‘passive submission’ by a helpless victim to persons in authority whose advances she could hardly repel by herself. In an appeal by the two policemen, the Supreme Court set aside the High Court judgment, agreeing with the petitioners that the “alleged intercourse was a peaceful affair” as there were no marks of injury on her person.

A letter which shook the nation

What brought the Mathura rape case into national consciousness and sparked outrage was a letter written by four intellectuals to the court in September 1979, shortly after the acquittal of the two accused policemen.

The September 1979 letter by Upendra Baxi, Vasudha Dhagamwar, Raghunath Kelkar and Lotika Sarkar pointed out to the judges the clear difference, both in law and common sense, between ‘submission’ and ‘consent’. Consent involves submission; but the converse is not necessarily true. Nor is absence of resistance necessarily indicative of consent, they argued.

The letter pointed out that there was not a single word in the judgment condemning the very act of calling a teenage girl and detaining her at the police station in gross violation of the law. Nor was there a single word in the judgment condemning the use of the police station as a theatre of rape or submission to sexual intercourse. “The Court gave no consideration whatsoever to the socio-economic status, the lack of knowledge of legal rights, the age of the victim, lack of access to legal services, and the fear complex which haunts the poor and the exploited in Indian police stations. May we respectfully suggest that you and your distinguished colleagues visit incognito, wearing the visage of poverty, some police stations in villages adjoining Delhi?” the letter had challenged the Supreme Court judges.

Myriad amendments

The public furore following the 1979 judgment led Parliament to introduce the Criminal Law Amendment Act of 1983 in which custodial rape was included as a separate offence under Section 376 of the erstwhile Indian Penal Code (IPC). The amendment shifted the burden of proof in custodial rape cases from the rape survivor to the accused if the fact of sexual intercourse was established. The top court framed the historic Vishaka guidelines against sexual harassment at the workplace when a public interest petition was filed after the gangrape of Bhanwari Devi, a Kumhar woman and an auxiliary nurse midwife, who raised her voice as part of her job against child marriage, especially in upper caste families.

The brutal gangrape and fatal assault of a 22-year-old physiotherapy intern in a moving bus by six men on a December 2012 night had the nation rise in protest again, demanding stricter laws to protect women and punish their attackers. The Criminal Law Amendment Act, 2013, loosely crafted on the recommendations of the Justice J.S. Verma Committee, introduced, among others, provisions to punish police officers who do not record an FIR in sexual violence cases against women, or hospitals which do not provide free care to sexual assault victims. The 2013 amendments broadened the definition of rape as in Section 375 to include acts other than forcible sexual intercourse.

Most importantly, it clarified that silence or a feeble no by a woman cannot be translated as a ‘yes’. Besides, the amendments raised the age of consent from 16 to 18 years.

The amendments awarded death penalty to repeat offenders or if rape led to the death or ‘persistent vegetative state’ of the victim.

The Unnao and Kathua rape cases of 2017 and 2018 compelled Parliament to usher in further amendments to make criminal laws for sexual offences against women more stringent. In the Unnao case, former BJP MLA Kuldeep Singh Sengar was convicted for the kidnap and rape of a minor girl.

The Criminal Law Amendment Act of 2018 provided death penalty as a punishment in rape cases in which the victims are below 12 years of age. The 2018 amendments also included a minimum of 20 years imprisonment if the victim is under 16 years of age. The amendments fast-tracked investigation as well as the trial and appeal proceedings in rape cases — two months to complete a probe and trial, and six months to wrap up appeals.

Finally, the Criminal Law Amendment Act, 2023 through the BNS, made sexual offences against women and children gender-neutral for both the victims and the perpetrators. It uniformly made gang rape of a woman aged below 18 years punishable with death or life imprisonment. The BNS also brought in new offences like sexual intercourse under false pretences and broadened the definition of sexual harassment.