Legally Speaking | Rape, outrage, and the legal system: Tracing the evolution of India's rape laws
Rape laws in India have evolved in response to public outcry and civil society movements.
The brutal rape and murder of a postgraduate trainee doctor at Kolkata’s RG Kar Medical College has once again highlighted issues surrounding violence against women, the role of the legal system, and societal attitudes. The history of rape laws in India reveals that public outrage following heinous crimes has often served as a catalyst for legal reforms. This article examines how rape laws in India have evolved in response to public outcry and civil society movements.
The term "rape" was introduced into the Indian legal system by Thomas Babington Macaulay through the Indian Penal Code in 1860. Initially, the definition was limited to non-consensual peno-vaginal intercourse, with no distinction made regarding the nature or gravity of the offence. The first significant amendment to these laws occurred in 1983, sparked by public outrage over what is now known as the Mathura case.
On March 26, 1972, a 14- to 16-year-old Adivasi girl named Mathura was summoned to a police station along with her husband following a kidnapping complaint filed by her brother. After recording statements around 10:30 PM, the police officers sent the male members away but detained Mathura, subsequently gang-raping her. The trial court acquitted the police officers, claiming that Mathura had falsely accused them of rape to protect her virtue. The Bombay high court overturned this verdict, convicting the assailants and noting, "Mere passive or helpless surrender of the body and its resignation to the other's lust induced by threats or fear cannot be equated with the desire or will, nor can furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition."
However, the Supreme Court later reversed the high court's decision, citing the absence of injuries on Mathura's body and her failure to cry out for help as evidence that she had consented to the intercourse. The Supreme Court’s judgment was widely criticized, leading to an open letter from a group of law professors condemning the Court's prejudiced and misogynistic perspective. Although the Supreme Court’s acquittal stood, the public outcry resulted in legal changes. A rebuttable presumption in favour of the survivor was introduced in Section 114(A) of the Evidence Act, and custodial rape was recognized as a distinct offence, carrying a minimum punishment of seven years. The burden of proof shifted from the survivor to the offender, and provisions for in-camera trials and the protection of the survivor’s identity were also enacted.
Despite these legal changes, data from the National Crime Records Bureau (NCRB) showed that the incidence of rape did not decrease. On the contrary, rape cases increased by 12.1% between 1983 and 1984.
In 1996, the Supreme Court delivered the landmark judgment in State of Punjab v. Gurmit Singh, stating, "If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars." This judgment established that a survivor’s reliable testimony could be sufficient for conviction without the need for corroboration.
The next major legal reform followed the horrific Nirbhaya case in December 2012, in which a young woman was brutally gang-raped and mutilated while returning home. The woman succumbed to her injuries, and the barbaric nature of the crime triggered widespread protests and demands for changes to rape laws. In response, the government formed the Justice Verma Committee in 2013, which invited suggestions from across the country and drafted recommendations. Most of these recommendations were incorporated into an amendment in 2013. The amendment broadened the definition of rape to include oral sex, penetration by objects, and manipulation of a woman's body to cause penetration. It also introduced a range of sexual offences, including stalking, voyeurism, and sexual harassment. The definition of consent was expanded to require "unequivocal voluntary agreement," and the age of consent was raised to 18 years. A mandatory minimum sentence of seven years for rape was also established.
The public outcry also led to changes in the Juvenile Justice Act, enabling courts to try 16- to 18-year-olds as adults for "heinous crimes." However, despite these legal reforms, rape cases continued to rise, from 24,157 in 2012 to 34,530 in 2014. Violent crimes that shocked society, such as the Unnao rape in 2017 and the Kathua rape in 2018, continued unabated.
In response, further amendments were made to the rape laws in 2018, introducing more stringent punishments. The mandatory minimum sentence for rape was increased to ten years, and the death penalty was introduced for the rape of children under 12 years old.
Despite these harsher laws, the frequency of heinous crimes has not decreased. Whether it be the brutal rape in Hathras in 2020, the gang rape of a Spanish tourist in Jharkhand, the recent RG Kar rape and murder case, or the gang rape and murder of a 14-year-old Dalit girl in Muzaffarpur, Bihar, legal amendments alone have not created a safer environment for women.
Preeti Pratishruti Dash, in her analysis of 1,635 rape judgments from 2013 to 2018, argued that the mandatory minimum sentence, which removed judicial discretion, might be counterproductive. She suggested that judges who previously invoked sexist stereotypes under older laws might be less likely to convict defendants if the conviction carried a mandatory minimum of seven years.
Several judgments reveal how the behaviour of the survivor is closely scrutinized to see if she fits the mould of the "perfect victim." If she slept after the assault, her behaviour is deemed unbecoming of an Indian woman. Her feeble "no" might be interpreted as a "yes," her clothing might be considered sexually provocative, implying she "asked for it," or she might be disbelieved if she failed to promptly report the crime despite being educated, did not sustain injuries, or smiled after the incident.
The reality is that the legal system is deeply entrenched in societal values. Until society learns to respect women and their agency, no legal change will have a lasting impact. The need of the hour is not to mould women into "perfect victims" but to hold perpetrators accountable.
Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.
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