Chapter Title: Controlling women’s sexuality: rape law in India

Chapter Author(s): Geetanjali Gangoli

Book Title: International approaches to rape

Book Editor(s): Nicole Westmarland and Geetanjali Gangoli
Published by: Bristol University Press; Policy Press

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 six

Controlling women’s sexuality:

rape law in India
Geetanjali Gangoli

... when a woman is ravished, what is inflicted is not merely

physical injury, but the deepest sense of some deathless
shame…. (Justice Iyer, State of Maharasthra v Chandraprakash
Kewalchand Jain, 1990)

Rape is linked with power, that is, the power that men
enjoyed in society.… Rape brings out, and enlarges
opposition between the sexes nakedly, unlike other forms
of gender based oppression, such as lower wages for women.
Rape, and the fear of rape therefore is an instrument for
terrorising and paralysing women, contributing to a low
sense of self worth. (Gothoskar, 1980)

Indian feminist movements have recognised rape as a form of male

oppression and control over women since the 1970s. However, the
Indian legal system prefers to see it as an issue of loss of honour of the
raped woman. This chapter will address the long-standing conflicting
relationship between Indian feminists and the legal system.

The national context in relation to rape

Rape continues to be a serious issue for Indian women.The latest crime
statistics released by the Home Ministry’s National Crime Records
Bureau (NCRB, 2007) show that every hour 18 women become
victims of rape. The number of reported rapes a day has increased
nearly by 700% since 1971, when such cases were first recorded by the
NCRB. It has grown from seven cases a day to 53. In general, violent
crimes showed a decline of 16% between 1971 and 2006, but rape
cases increased by 678%.The rape conviction rate in 2007 was 26.4%,
which is in the same range as some other violent crimes, including

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International approaches to rape

kidnapping, armed robbery and arson, but lower than conviction rates
for others including dowry-related homicides, robbery and murder.
In India as in other parts of the world, the question of rape is linked
to women’s ‘status’ within society. As the author has argued elsewhere,
it is difficult to measure the ‘status of women’, especially in the context
of a large and diverse country such as India (Gangoli, 2007), but it
can be noted that Indian women do possess a number of legal rights.
These include certain fundamental rights incorporated in the Indian
constitution such as equality under the law for men and women (article
14), equal accessibility to public spaces (article 15), equal opportunity in
matters of public employment (article 16) and equal pay for equal work
(article 39). In addition, there are statutory provisions that guarantee
these rights, such as the 1976 Equal Remuneration Act and the 1976
Maternity Benefit Act. There are also a number of legal provisions
criminalising dowry1, such as the 1961 Dowry Prohibition Act, and
domestic violence.Women also have rights to property under personal
laws (Kishwar, 1994).
In spite of these rights, women’s position in Indian society is highly
variable, and depends to a large extent on class and caste. While
some Indian women have attained prestigious posts in the judiciary,
education, politics, IT, medicine and a myriad of other fields, they
are mainly upper-caste, upper-class women, and many of the benefits
they enjoy are denied to the majority of women in the country. The
mean age at marriage for females is 18 years while for males it is 22.6
years. However, more than half (51%) of illiterate females currently
married were below the legal age at marriage, that is, 18. Nearly 20%
of the 1.5 million girls married under the age of 15 years were already
mothers (Census of India, 2001). Most women have limited control
over various aspects of their lives including visiting their natal family,
making healthcare provisions and making expensive purchases. National
data also reveals that domestic violence is endemic (Kishor and Gupta
2004), as are dowry demands at marriage and son preference (Sunder
Rajan 2003), leading to female infanticide, sex pre-selection and the
abortion of female foetuses.
Further, there is some evidence that globalisation since the early
1990s has exacerbated class divisions and contributed to increasing
poverty. Structural factors such as caste, community and class status
can contribute to sexual violence, and affect women’s ability to access
the criminal justice system. Women from working-class, minority or
lower-caste Dalit groups are particularly vulnerable to sexual violence,
and this can sometimes be in the context of riot or conflict situations.
For example, Dalit women from lower castes in some parts of the

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 Rape law in India

country are very vulnerable to sexual violence from upper-caste men

(NCRB, 2007). A study conducted by People’s Union for Democratic
Rights (PUDR), a Delhi-based civil liberties group, looked at 10
cases of rape by police personnel and revealed that in most cases, the
victim was a working-class woman. In almost all cases, the accused
was acquitted; some have been reinstated in their old posts (PUDR,
1994). Communalisation and the social and economic marginalisation
of Muslims in post-independence India has resulted in sexual assaults
perpetrated on Muslim women, as was apparent in the anti-Muslim
riots in Gujarat in 2002 (Hameed et al, 2002).
As Susan Brownmiller (1975) has persuasively argued, women’s
fear of rape can prevent them from participating in public life, even
though rape and sexual assault is not confined to the public domain.
This is further complicated in the Indian context by constructions
of the ideal woman as sexless, or one whose sexuality is confined
within marriage. Within this context, non-marital sex, whether
coercive or voluntary, is considered problematic for women and is
seen as potentially shameful for the community or family. Thus rape
is experienced as something more than violence against individual
women; members of the communities of both the perpetrators (Hindus)
and the victims (Muslims) experience the rape of minority women
as symbolic dishonour of the community. In the case of the Gujarat
riots, it has also been persuasively argued that the nature of violence
against minority women – stripping, beating, throwing acid, raping,
burning, killing pregnant women, and killing children before their
parents’ eyes – went beyond collective dishonouring. It was meant to
destroy or punish the fertile Muslim female body and to destroy future
generations (Sarkar, 2002).

Defining rape: existing laws and policies

In India, rape is legally defined as penile penetration into the vagina,
which makes it a gender-specific crime, where only men can be
perpetrators and only women can be victims of rape.The rape law was
first enacted in 1860 as a part of the Indian Penal Code (IPC), which
was partly amended in 1983. However, the definition of rape continues
to remain the same as when it was first introduced in 1860, and under
s 375, the IPC states that a man is said to commit the offence of rape if
he has sexual intercourse with a woman in the following circumstances2:

• against the victim’s will;

• without the victim’s consent;

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International approaches to rape

• with her consent, when her consent has been obtained by putting
her or any person known to her in fear of death or harm;
• with her consent, when the man knows that he is not her husband;
• with her consent, when at the time of giving such consent she was
intoxicated, or suffering from unsoundness of mind and unable to
understand the nature and consequences of that to which she has
given consent;
• with or without her consent when she is under 16 years of age.

However, the law makes an exception in the case of rape within

marriage, except where the wife is under 15 years of age.The rape law
also allows the victim’s sexual history to be adduced during trial, under
s 155 of the 1872 Indian Evidence Act, which states that:‘When a man
is prosecuted for rape or an attempt to ravish, it may be shown that the
prosecutrix was of generally immoral character’.The same section does
not apply to the accused. Section 54 of the 1872 Indian Evidence Act
states that: ‘In criminal proceedings (including rape) the fact that the
accused has a bad character is irrelevant, unless evidence has been given
that he has a good character, in which case it becomes relevant’. It has
been suggested that the legal concern with defining rape as an offence
was to regulate the sexuality of the woman, not to protect her bodily
integrity (Das, 1996). This is certainly borne out by the exemption to
marital rape within rape law, and more specifically in the cases of rape
that led to a national feminist movement in the late 1970s on the issue
of ‘power’ rape or custodial rapes, which in turn led to amendments
to the rape law. As non-consensual penile penetration into the vagina
is defined as rape, only women or girls can be raped, and only men
can be charged under this law. However, s 377 IPC criminalised all
sex between men, consensual and non-consensual, and male rapes by
men can only be prosecuted under this Act3.
Three cases in the late 1970s and early 1980s created a public debate
around the issue of rape, and fed into the newly emerging feminist
movement in India.This movement created a nationwide campaign on
the issue of rape, which led to amendments to the rape law in 1983.
The first case was that of Rameezabee, a Muslim working-class
woman from Hyderabad. In April 1978, she and her husband were
arrested by the police for ‘loitering’ when they were returning from a
late-night visit to the cinema.The police demanded a fine.The husband
went home to bring the money. During his absence, Rameezabee was
raped by three policemen.When the husband returned, he was beaten
to death by the police. Rameezabee was prosecuted for enticing minor

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 Rape law in India

girls into prostitution. She was convicted on this charge, and was
subsequently released on probation for a year (Farooqi, 1984).
The second case was that of Mathura, a tribal agricultural labourer
from Maharashtra, aged around 14-16 years. She developed a
relationship with Ashok, the cousin of Nushi, her employer.Ashok and
Mathura decided to get married. On 26 March 1972, her brother, Gama,
complained to the local police that Mathura had been kidnapped by
Nushi and Ashok. Nushi, Ashok, Mathura and Gama were brought to
the police station for questioning, and to record their statements. At
10.30 pm, when they were leaving the police station, the head constable,
Tukaram, and constable Ganpat held Mathura back. She was subjected
to rape by Ganpat and attempted rape by Tukaram. Mathura came out
of the police station and announced to the crowd outside that she had
been raped. The crowd surrounded the station and exerted enough
pressure to ensure that a case of rape was registered.
While the Sessions Court acquitted the accused, the Bombay High
Court reversed the judgment, and convicted sentenced Tukaram and
Ganpat for rape.The court held that since the police were strangers to
Mathura, it was unlikely that ‘she would make any overtures or invite
the accused to satisfy her sexual desires’. Justice Koshal, Supreme Court,
reversed the High Court judgment. According to the judge, as there
were no injuries shown in the medical report, the story of ‘stiff resistance
having been put up by the girl is all false’ and the alleged intercourse
was a ‘peaceful affair’. Justice Koshal dismissed Mathura’s testimony that
she had raised an alarm, and further held that under s 375 IPC, only
the ‘fear of death or hurt’ could vitiate consent for sexual intercourse.
There was no such finding (quoted in Dhagamwar, 1992, p 253)
The third case was that of Maya Tyagi, a young middle-class woman,
who, on 18 July 1980, was driving to her parents’ house in Haryana.
The car broke down on the way, and while it was being repaired a
policeman in civilian dress tried to molest Maya and was beaten up
by her husband.The officer returned with a contingent of policemen.
The police opened fire and shot her husband dead. Maya Tyagi was
dragged out from her car, beaten, stripped and paraded through the
town. She was finally taken to the police station, where she was raped
by the police. She was charged with being a dacoit (armed robber),
and subsequently released on bail.
The three cases described above have several points in common. In all
three cases, the victims were innocent of having committed any crime.
Hence, the action of the police in holding them in custody was in
itself illegal. Rameezabee and Mathura were socially and economically
disadvantaged. Rameezabee was a Muslim and Mathura a tribal woman.

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International approaches to rape

In both these cases, the victim’s testimony was suspected. Mathura was
held to be a ‘shocking liar’, as she was not a virgin prior to the rape
and had a lover. As she was ‘habituated to sex’, the judge concluded
that she had consented to sexual intercourse with the accused. In two
of the three cases, the women was re-victimised by having false cases
filed against them – Rameezabee was convicted of procuring minor
girls into prostitution, and it was further alleged that her marriage was
illegal, and that she was sexually promiscuous. Maya Tyagi was accused
of being a dacoit. Mathura was castigated by the Supreme Court of
indulging in pre-marital sex and of lying.
The three cases, both individually and collectively, led to a major
campaign on the issue of rape in custody. Following the Rameezabee
incident, there was public protest in the city of Hyderabad.The police
opened fire on the protesting crowd, and several people were killed. As
a result, a commission of inquiry was set up headed by Justice Muktadar,
a sitting judge of the Andhra Pradesh High Court. Justice Mukhtadar
found the accused guilty of the offences of rape, murder and assault.
He recommended that they be prosecuted for these offences. The
judge further held that the inquiry revealed the ‘pitiable conditions
of suspect women particularly of the poor classes at the hands of the
police in the police station’ (Kannabiran, 1996, p 120). However, the
accused were acquitted by the Sessions Court of the charge of rape
and were admonished for wrongful confinement.
The Mathura case led to a major nationwide campaign on the issue of
custodial rape, following the open letter written in September 1979 by
four law teachers – Upendra Baxi, Lotika Sarkar,Vasudha Dhagamwar
and Raghunath Kelkar – to the Chief Justice of India.The Maya Tyagi
case was discussed in the Lok Sabha (House of Parliament) on over four
days, after which a judicial inquiry was initiated by the Uttar Pradesh
government (Gangoli, 2007).
The open letter referred to earlier deserves special mention. It
questioned the validity of a judgment passed by the Supreme Court.
The authors of the letter identified themselves as Indian citizens and
as teachers of law. The letter described the Mathura judgment as ‘an
extra ordinary decision sacrificing human rights of women under the
law and the constitution’. The authors enumerated their reservations
on the judgment, stating that a young girl could not be expected to
successfully raise the alarm for help when trapped by two policemen
inside a police station. They pointed out that the absence of marks of
injury on Mathura’s body need not imply absence of resistance. They
further stated that there is a clear difference in law and common sense
between submission and consent. The letter went on to state:

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 Rape law in India

Could not their Lordships have extended their analysis of

‘consent’ in a manner truly protective of the dignity and
rights of Mathura? One suspects that the Court gathered an
impression from Mathura’s liaison with her lover that she
was a person of easy virtue. Is the taboo against pre marital
sex so strong as to provide a licence to the Indian police to
rape young girls? Or to make them submit to their desires
in police stations? (Baxi et al, 1979, p 1)

The letter was circulated among civil liberty groups and women’s
organisations, initiating a campaign. Meetings were held in various
parts of the country. In Bombay, the Forum Against Rape, which was
made up of feminists from various organisations, was formed on 12
January 1980. In Delhi, demonstrations were held outside the Supreme
Court.At a national level, the feminist campaign focused on demanding
amendments to the rape law, asking for legal recognition of rape by
men in authority, formal recognition of rape within marriage, and an
expansion of rape beyond penile penetration to reflect the experiences
of women.

Rape law amendment

On 12 August 1980, a Bill was introduced in the Lok Sabha to amend
certain provisions of the rape law.The Bill suggested four major changes.
The first was a prohibition on press coverage of any incident of rape or
any publicity that revealed the name of the offender or the victim.The
second was a new section, which attempted to define consent more
clearly. In this definition, rape is held to have taken place when a man
has sexual intercourse with a woman ‘without her free and voluntary
consent’. A further amendment was that the marital rape exemption
would not be applicable in cases of judicial separation. A final, major
amendment was the introduction of s 376 to the IPC, which introduced
a new category of rape – rape by members of the police within their
official jurisdiction, by public servants, by superintendents or managers
of jails, remand homes, or hospitals, against women in their custody.
Gang rape was included within this category, punishable more severely
than other forms of rape. Under s 376, the onus of proof was shifted
from the victim to the accused, that is,‘if the woman stated that she did
not consent, the court would presume that she did not consent’. This
was a reversal of the generally applicable legal principle. Finally, the
Bill provided that under s 228A, rape cases be conducted ‘in camera’,
that is, unlike other trials, they would not be subjected to and open

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International approaches to rape

to public scrutiny and attendance (Bill No 162 of 1980). The Bill was
referred to a joint committee comprising representatives from both
houses of parliament, which consulted with women’s groups, lawyers
and the press (The Gazette of India, 1982).
The Joint Committee Report, voicing the concerns of some feminist
groups, opposed s 228A, holding that under certain circumstances,
publicity may be ‘necessary for proper investigation’ and may be
desired by the victim. Further, the committee suggested that provisions
regarding rapes by policemen be strengthened; that s 376 be extended
to all the staff of a jail, not merely the supervisory staff; that rapes in
hospitals be extended to include visitors, as well as patients; and that
rape of minors be included under the section. The committee also
believed that not all cases of sexual assault need be held in camera
(The Gazette of India, 1982).
Other general recommendations made by the committee included
that women should not be arrested after sunset and before sunrise;
that medical examination of the accused and of the complainant be
performed immediately on complaint; that social welfare officials
be associated in the procedures; and that compensation for social
ostracism be given to rape victims. However, the report did not accept
the recommendations of the Law Commission and various women’s
organisations that the past sexual history of the woman not be adduced
in the evidence or during cross-examination.
The final law did acknowledge the importance of custodial rape,
but did not take up many suggestions made by the women’s groups.
For example, the new law continued to treat the past sexual history
of the woman as relevant, and press restrictions on the trial were
imposed. Further, marital rape continued to be outside the remit of
the rape law, although the amendments allowed rape charges to be
brought in the case of judicially separated couples. While this was a
significant shift, the amendment did not go far enough in challenging
patriarchal assumptions about women’s rights within marriage (Mishra
and Singh, 2003). Finally, rape continues to be defined exclusively as
penile penetration into the vagina.The rape law therefore is based on,
and legitimises, several patriarchal presumptions and attitudes regarding
male and female sexuality, including the idea that within marriage
women are the sexual property of their husbands. At the time of
writing, recommendations have made to the Lok Sabha by the Law
Commission addressing some of these anomalies, and these are likely
to be implemented in the near future (see section below on analysis
of policies and interventions).

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 Rape law in India

Key criminal justice issues

Some of the key issues faced by women in accessing justice in rape

trials relate to social perceptions that influence the criminal justice
system. Women’s bodies are seen as repositories of community or
familial shame and honour, leading to a dichotomy between virtuous
and suspect women. Further, working-class women are seen as sexually
available, as they are less secluded and consequently less ‘respectable’ than
middle-class women. This section exams some key themes emerging
from case law on rape.

The police and custodial rape

As discussed above, the police, far from providing women with
protection in rape cases, have often been identified as potential
perpetrators of sexual assault. Cases of custodial rape by the police are
treated as ‘routine’ cases, negating the amendments made to the IPC
in 1983, and rates of conviction in cases of custodial rape are very low
(PUDR, 1994). This seems to indicate a benevolence on the part of
custodians of law and order towards perpetrators, analogous to that
displayed by the patriarch of a family towards a straying prodigal son.

Perceptions of working-class sexuality

Judicial interpretations in cases of custodial rape following the 1983
amendment demonstrate that in spite of the change in the law that
shifted the onus of proof in these cases on to the accused, judicial
interpretations remained centred on questions of the ‘character’ of the
complainant. As most cases of custodial rape are perpetrated against
working-class women, class assumptions regarding sexuality are also
apparent. In an incident in a village in the state of Bihar in 1988, a
large group of policemen gang-raped 19 women following a quarrel
between a policeman and local villagers.The case attracted much press
coverage, and the state government awarded the women Rs 1,000 as
an ex-gratia payment. However, as the investigation by the local police
was not carried out properly, and included just a perfunctory medical
examination, there was insufficient evidence to convict the accused, and
the judge remarked:‘It can not be ruled out that these ladies might speak
falsehood to get a sum of Rs. 1000 which was a huge sum for them’
(quoted in Baxi, 1995, p 128). Further, the judge noted the defence
counsel’s argument that ‘the women could not be equated with such
ladies who hailed from decent and respectable societies, as they were

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International approaches to rape

engaged in menial work, and were of questionable character’ (quoted

in Baxi, 1995, p 129).

Pre-marital sex
In the Suman Rani case, representations of women’s sexuality were
based on diverse understandings of pre-marital sex. Suman Rani, a
minor, had eloped with Ravi Shankar in March 1984. Her family had
filed a case for abduction. The police arrested the absconding couple
on 31 May 1984 at Bhiwani bus stop on the way to Jammu, where
they were headed. Suman Rani and Ravi Shankar were put in separate
rooms in the Patram Gate police post, where Suman Rani was raped
by two policemen, one of whom was Premchand. Ravi Shankar was
charged for abduction and rape under s 366 of the IPC. In the Sessions
Court, Bhiwani Khera, Ravi Shankar and the two policemen were
tried together, and convicted on the charge of rape, the policeman
getting the minimum sentence of 10 years under s 223 (Premchand
and Another v State of Haryana, 1989). Significantly, the Sessions Court
judge dismissed the plea that Suman Rani was ‘habituated to sexual
intercourse’, and therefore was not raped. He stated:

And all things said and done, even a girl of easy virtue is
also entitled to all the protection of law and can not be
compelled to sexual intercourse against her will and without
her consent. Offences of rape and other allied offences are
created for the protection of fallible, earthly mortals and
not for goddesses. (Premchand and Another v State of Haryana,
1989)

The Sessions Court judgment was overturned by the Punjab and

Haryana High Court at Chandigarh. Ravi Shankar was acquitted, as
it could not be proved that Suman Rani was below 18 years, and it
was held that she had had sex with Ravi Shankar of her free will. The
conviction and sentence of the two policemen was confirmed. The
accused appealed to the Supreme Court.The Supreme Court did not
dispute that Suman Rani had been raped in custody. However, Justice
S Ratnavel Pandian and Justice B C Ray were reluctant to award
the minimum punishment under s 223, accepting the argument that
‘the victim was a woman of questionable character and easy virtue
with lewd and lascivious behaviour’ (Premchand and Another v State of
Haryana, 1989).

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 Rape law in India

Rewarding the ‘good Indian woman’

While judgments like these bring out the more obvious misogynist
and conservative aspects of judicial functioning, one finds that even
seemingly ‘positive’ judgments can be based on similarly anti-women
sentiments. The central point of rape cases is the role of corroborative
evidence under the 1872 Indian Evidence Act, which is often reduced
to physical injuries suffered by the victim (1972 Cri L J 824 Raj) or
other witness statements (Naravan v State of Rajasthan, 2007). However,
some judges have argued that insistence on corroborative evidence is
tantamount to a denial of justice. In a case of custodial rape, in which
a co-petitioner was a Nagpur-based women’s group, the judges held
that to disbelieve a woman, especially a ‘young girl’, was to insult
womanhood, and they suggested that Indian women are unlikely to
lie about rape:

Ours is a conservative society where it concerns sexual

behaviour. Ours is not a permissive society, as in some of the
western or European countries. Our standards of decency
and morality are not the same as in those countries....
Courts must also realise that ordinarily a woman, more
so a young girl, will not stake her reputation by levying a
false charge concerning her chastity. (State of Maharasthra v
Chandraprakash Kewalchand Jain with Stree Atyachar Virodhi
Parishad v Chandraprakash Kewalchand Jain, 1990).

In an earlier case, the judge had similarly commented on the perceived

differences between eastern and western cultures, suggesting that, in the
Indian setting, women and girls would be bound by tradition and the
stigma of rape and non-marital sex. They would therefore fear being
ostracised by society, and their natal and marital family, thus risking
the family honour. Further, women and girls would be reluctant to
face interrogation by the court. It was stated that it was conceivable
that western women might lie about rape for several reasons, such as
financial considerations, psychological neurosis, revenge, notoriety or
publicity, hatred of one or all men or a desire for sympathy. However,
in the Indian context, these did not apply and ‘refusal to act on the
testimony of a victim of sexual assault in the absence of corroboration
as a rule, is adding insult to injury’ (Bharwada Bhoginbhai Hirjibhai v
State of Gujarat, 1983). In an earlier case, it was argued that insisting
on corroborative evidence was to ‘cling to a fossil formula’, and the
ruling stated that: ‘No woman of honour will accuse another of rape,

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International approaches to rape

since she sacrifices thereby what is dearest to her’ (Rafiq v State of Uttar
Pradesh, 1980).
Within this context, a woman is therefore only believed if she
is a ‘woman of honour’. What to the judicial mind constitutes an
honourable woman? It is a respectable married woman or a virginal
daughter? In another case of custodial rape, a married woman was raped
by a policeman, after being threatened that her husband, a labourer,
would be arrested if she did not consent. While the Bombay High
Court acquitted the accused on the grounds that the woman did not
raise an alarm, and that there were no injuries on her body, the Apex
Court reversed the judgment on the grounds that she was threatened
by the police, and because she was not a prostitute (State of Maharashtra
v Prakash and Another, 1984).

Shame and honour: lost chances

The judicial mind also exercises sympathy where the victim is a young
and virginal child.While deciding on an appeal made to the Supreme
Court 10 years after a child of nine was raped, the judges noted that
the loss of virginity had blighted her chances of a happy married life:

… the victim who is now 19 years old, after having lost

her virginity still remains unmarried undergoing the untold
agony of the traumatic experience and the deathless shame
suffered by her. Evidently, the victim is under the impression
that there is no monsoon season in her life and that her
future chances for getting married and settling down in a
respectable family are completely marred. (Madan Gopal
Kakkad v Naval Dubey and Another, 1992)

These judgments reveal a number of assumptions about male and

female sexuality. Most obvious is that the courts constantly emphasise
the ‘chastity’ of the raped woman, or its absence. Even in ‘positive’
judgments, when the woman conforms to the standards of womanhood
held as ideal by the judge, the focus is on the loss of honour and shame
suffered by the woman. Rape is not seen as a violation of bodily
integrity, but as a loss of family honour.

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 Rape law in India

Rape as crime of passion

Some case law also projects rape not as an act of violence, but as a
crime of passion, and rapists as ‘lusty brutes’ (Madan Gopal Kakkad v
Naval Dubey and Another, 1992). In the case of the abduction and gang
rape of Shashibala, a minor, the judge called the rape a ‘bestial act of
lust’ (Krishnalal v State of Haryana, 1980). In another case, where a
22-year-old man raped his cousin, the judgement uses language that
verges on pornography:

A philander of 22, appellant Phul Chand, overpowered by

sex stress in excess, hoisted himself into his cousin’s house
next door, and in broad daylight, overcame the temptingly
lonely prosecutrix [female prosecutor] of 24, Pushpa, raped
her in hurried heat, and made an urgent exit having fulfilled
his erotic sortie. (AIR 1980, SCC 249, 1980 Cri L J 8)

The language used converts an act of violence into a sexual odyssey,

while the description of the woman as ‘temptingly lonely’ objectifies
her. In a further attempt to reduce the seriousness of the crime, Justice
Krishna Iyer lists several ‘mitigating’ factors. He reluctantly admits that
‘rape is a violation with violence, of the private person of a woman’,
but goes on to state that ‘excessive punishment of the offender can
be counterproductive’ and the accused is described as a ‘hyper sexed
Homo Sapien’ (AIR 1980, SCC 249, 1980 Cri L J 8).
Another ‘extenuating’ factor mentioned in the judgement is the
perceived shift in Indian society towards sexual licentiousness, as evident
in the following quote:

It may be marginally extenuating to mention that modern

Indian conditions are drifting into societal permissiveness
on the carnal front, prompting proneness to pornos [sic] in
real life, what with libidinous ‘brahmacharis’, womanising
public men, lascivious dating and mating by unwed students.
Isolated prosecutions and annual suppression rhetoric will
stultify the law, where the vice is widespread and the larger
felons are left loose. (AIR 1980, SCC 249, 1980 Cri L J 8)

The judgement therefore fails to distinguish between consensual sexual

activity and violent, coercive sex.The inherent moralistic tenor projects
‘pre-marital’ sex – sex being defined only in terms of marriage – as
ushering in a social situation in which men have the unconditional

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International approaches to rape

‘right’ to rape, and women, no right to refuse any sexual initiative

from men.

Analysis of policies and interventions

Feminists soon realised that the 1983 IPC amendment did not yield
positive results at the level of women’s lives, nor did it lead to any
substantial improvement in judicial and police procedures. A feminist
lawyer pointed out that the amendment and the campaign behind it
could not succeed in ‘evolving a new definition of rape beyond the
parameters of ... notions of chastity, virginity, premium on marriage
and fear of female sexuality’ (Agnes, 1993). The rate of convictions
in cases of custodial rape is low, perhaps because stricter laws and
increased punitive measures make judges cautious in awarding the
full punishment available to them. In addition, as mentioned above,
feminist understanding of custodial rape as being limited to rape by
policemen might have been governed by political exigencies in the
early 1980s. However, an inability to extend custodial rape to include
other categories, including rape of minors or adult women within the
family, or of married women by their husbands, meant that a substantial
area of women’s experience was never centrally addressed.
In 1992, a Bill on sexual violence was proposed by feminists and
approved by the National Commission for Women that aimed to
expand the law on rape to reflect the experiences of women and
children:

The present law (on rape) has become so outdated in terms

of language and intent that it fails to acknowledge the true
nature of sexual assault. In particular, the existing law does
not address the increasingly visible offence of child sexual
abuse ... a substantial number of child sexual abuse cases are
occurring within the family. (1992 Sexual Violence Bill4)

The Bill attempted to extend the definition of rape beyond that of

penile penetration of the vagina. Hence, it included a range of non-
consensual sexual activities, that is: introduction by a man of his penis
into the vagina, external genitalia, anus or mouth of another person;
the introduction by one person of an object or a part of the body of
another person; the uttering of any word, making of any sound or
gesture, or exhibiting any object or part of the body for sexual purpose.
The charge of ‘aggravated sexual assault’ included assault by a police
officer, a member of the Armed Forces, a public servant or anyone in

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 Rape law in India

a position of trust, authority, guardianship or with economic and social

domination over someone ‘under such trust, authority or dominance’.
After much deliberation, the age of consent was fixed at 18 years.
While there were some concerns that this would lead to consensual
sex between adolescents being treated as an offence, it also provided for
the criminalisation of rape within marriage, as it included any sexual
intercourse between a married couple if the wife was under 18.
This Bill, however, was not adopted by the Indian state, and Saakshi,
one of the organisations involved in drafting the Bill, filed a writ petition
to the Supreme Court in 1997:

… praying for (a) issuance of a writ in the nature of a

declaration or any other appropriate writ or direction
declaring inter alia that ‘sexual intercourse’ as contained in
section 375 of the Indian Penal Code shall include all forms
of penetration such as penile/vaginal penetration, penile/
oral penetration, penile/anal penetration, finger/vaginal
and finger/anal penetration and object/vaginal penetration
and (b) to issue a consequential writ, order or direction to
the respondents in the Writ Petition and to their servants
and agents to register all such cases found to be true on
investigation. (Law Commission of India, 2000)

As a result, the Law Commission was directed by the court to file

a report on this matter. The Law Commission made the following
recommendations:

• changing the focus from rape to ‘sexual assault’, expanding the

definition beyond penile penetration to include penetration by any
part of the body and objects;
• deleting s 155(4) of the 1872 Indian Evidence Act, which had
previously allowed for a victim to be cross-examined about her
sexual history;
• introducing different gradations of punishment for rape, with higher
punishment for rape committed by the relatives and persons in ‘trust
or authority’, public servants, and superintendents, management and
staff of hospitals;
• introducing a new section of s 376(E), to include sexual harassment
in the workplace;
• shifting the burden of proof of consent in all rape cases to the accused;

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International approaches to rape

• introducing specific provisions to deal with the medical examination

of the victim and the accused by a registered medical practitioner,
and guidelines to the police to question minor victims of rape;
• providing compensation in some cases of sexual assault;
• treating sexual assault as a gender-neutral crime, allowing both
women and men to be prosecuted under the law; and men and
women to be treated as potential victims under the law;
• deleting s 377, as sexual assault was treated as gender-neutral.

The Law Commission’s recommendations have been submitted to

parliament and are likely to be applied in the main.

Suggested amendments in the law

While meeting many of the concerns of feminist groups, the
recommendations of the Law Commission do not go far enough in
some areas.The shift from penile penetration to other forms of sexual
assault (including sexual assault in the workplace) is a welcome step,
as it is based more widely on the experiences of women and children.
The deletion of the clause allowing the woman’s sexual history to be
adduced in trial is similarly a step in the right direction, as it could
make rape trials less traumatic for women and encourage more women
to come forward to report rape. Further, the focus on child rape, the
guidelines for medical examinations and police procedure in cases
involving children are useful.
However, the Law Commission does not take into account marital
rape, other than by raising the age of consent within marriage from
15 to 16 years. While commenting on recommendations by feminist
groups that the exemption to marital rape be removed, the report
states that ‘that may amount to excessive interference with the marital
relationship’ (Law Commission of India, 2000, p 14). The report
therefore continues to support the view that women are the sexual
property of their husbands.
Further, while the suggested deletion of s 377 – that is, the law
criminalising male homosexual activity – can be seen as highly desirable,
some feminists have argued that the proposed gender neutrality
could be problematic, as it could lead to false claims made by men
against women, and increase scrutiny of women’s sexual behaviour
in a patriarchal context (PRISM, 2006). In addition, Mumbai-based
LABIA (Lesbians and Bisexuals in Action) has suggested that the gender
neutrality introduced within the Sexual Assault Bill may work against
the interests of gay groups. Representatives of LABIA suggest that while

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 Rape law in India

the suggested decriminalisation of voluntary male homosexuality is a

positive development, the proposed Bill introduces for the first time
legal recognition of the sexuality of lesbian women in the context of
perpetrating violence. It is suggested that this could be problematic in
a predominantly homophobic social and legal context (Shah, 2006).
Finally, the question of compensation in rape cases remains a vexing
issue for Indian feminists.As mentioned above, case law can sometimes
treat women who accept compensation with scepticism. However,
women from working-class backgrounds may need compensation in
order to rebuild their life after a sexual assault, especially if they are
likely to face stigmatisation from wider society.

Conclusion
This chapter has highlighted some of the complex debates within
social, legal and feminist perceptions of rape in India. Rape and the
fear of rape continues to be an issue for many Indian women, even
though the conviction rate for rape stands at over a quarter of all cases
charged and brought to trial.While this may seem impressive, it should
be noted that case law reveals that judges are more likely to pass positive
judgements when they consider the victim to fit into the societally
acceptable norms of the ‘good’ woman, that is, a virginal, unmarried girl
or virtuous, married woman. Rape is associated with loss of honour for
the family or community, and therefore raped women often do not file
a report with the police. Also, while Indian feminists have campaigned
on the issue of rape, it has been primarily in the area of demanding legal
reforms and solutions, and there has been no concerted Rape Crisis
movement in India. Furthermore, feminist shelters for rape victims are
few and far between.This has led to rape victims becoming dependent
on their families and often lacking support when they need it most.
This could be another reason why many Indian women do not report
rape. However, there are no reliable statistics on the proportion of rape
cases reported (compare Gangoli, 2007).
The proposed changes to rape law in India will potentially contribute
to reducing the stigma of rape, as discussions on the character and sexual
history of the victim will no longer be considered legally relevant.
However, as noted above, marital rape continues to be unrecognised
by the law, and the issue of gender neutrality may cause problems in a
society that remains, in part, deeply patriarchal and conservative, as it can
increase sexual scrutiny of women, who could be seen as perpetrators
of sexual violence. Nevertheless, the suggested changes, based as they

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International approaches to rape

are mainly on feminist understandings of violence against women, are

a step in the right direction.

Notes
1
Dowry in the Indian context can be defined as money or property given by
the woman’s family to the husband’s family at the time of marriage.

2
There are currently changes being proposed to the rape law; see conclusion.

3
In July 2009, following years of concerted efforts by gay rights groups, the
Delhi High Court revoked the provision of s 377 of the Indian Penal Code
that criminalised consensual sexual acts of adults in private, holding that it
violated the fundamental right of life and liberty and the right to equality
as guaranteed in the Indian Constitution. This is currently not applicable to
the rest of the country.

4
Under existing law, s 376 of the IPC does criminalise child rape as a category
warranting greater punishment than some other forms of rape, but does not
address intra-family rape in particular.

Further reading
Gandhi, N. and Gandhi, S. (1992) The Issues at Stake:Theory and Practice
in the Contemporary Women’s Movement in India, New Delhi: Kali for
Women.
Sunder Rajan, R. (2003) The Scandal of the State. Women, Law and
Citizenship in Postcolonial India, New Delhi: Permanent Black.
Articles and research papers on Indian society and various aspects of
gender-based violence are available at www.indiatogether.org

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Baxi, P. (1995) ‘The normal and the pathological in the construction of
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