Rape in India
Rape is the fourth most common crime against women in India. According to the National Crime Records Bureau (NCRB) 2013 annual report, 24,923 rape cases were reported across India in 2012. Out of these, 24,470 were committed by someone known to the victim (98% of the cases).
India has been characterised as one of the "countries with the lowest per capita rates of rape". Many rapes go unreported in various countries including India. In India, consensual sex given on the false promise of marriage constitutes rape. The willingness to report the rape has increased in recent years, after several incidents of rape received widespread media attention and triggered public protest. This led the Government of India to reform its penal code for crimes of rape and sexual assault.
According to NCRB 2015 statistics, Madhya Pradesh has the highest raw number of rape reports among Indian states, while Jodhpur in Rajasthan has the highest per capita rate of rape reports in cities followed by Delhi, the capital city.
Definition in Indian Penal Code
§375. Rape. A man is said to commit "rape" who, except case hereinafter excepted, has sexual intercourse with a woman in circumstances falling under any of the six following descriptions:-
Firstly. –– Against her will.
Secondly. –– Without her consent.
Thirdly. –– 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.
Fourthly. –– 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.
Fifthly. –– 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.
Sixthly. –– 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 own wife, the wife not being under fifteen years of age, is not rape.
The above definition excluded marital rape, same sex crimes and considered all sex with a minor below the age of sixteen as rape.
After 3 February 2013, the definition was revised through the Criminal Law (Amendment) Act 2013, which also raised the legal age of minor to eighteen.
§375. A man is said to commit "rape" if he:–– (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, 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; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
Firstly. –– Against her will.
Secondly. –– Without her consent.
Thirdly. –– 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.
Fourthly. –– 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.
Fifthly. –– 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.
Sixthly. –– With or without her consent, when she is under eighteen years of age.
Seventhly. –– When she is unable to communicate consent.
Explanation 1. –– For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2. –– Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act;
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exceptions –– 1. A medical procedure or intervention shall not constitute rape; 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Even after the 2013 reform, marital rape when the wife and husband live together continued not to be a crime in India. Article 376B of the 2013 law made forced sexual intercourse by a man with his wife – if she is living separately – a crime, whether under a decree of separation or otherwise, punishable with at least a 2-year prison term. Forced sex by a man on his wife may also be considered a prosecutable domestic violence under other sections of Indian Penal code, such as Section 498(A) as well as the Protection of Women from Domestic Violence Act 2005. The crime of sexual assault on a child, that is anyone below the age of eighteen, is further outlined and mandatory punishments described in The Protection of Children from Sexual Offences Act 2012.
All sexual acts between the members of the same sex, consensual or forced, was previously a crime under Section 377 of Indian penal code, after the 2013 Criminal Law reform, with punishment the same as that of rape but it was later overturned in a landmark judgement of the Supreme Court on 6 September 2018 which stated all consensual sexual acts between adults who have met the age of consent are not violative of Section 377, hence decriminalizing gay sex in India.
Rape of minors
Using a small sample survey, Human Rights Watch projects more than 7,200 minors – 1.6 in 100,000 minors – are raped each year in India. Among these, victims who do report the assaults are alleged to suffer mistreatment and humiliation from the police. Minor girls are trafficked into prostitution in India, thus rape of minors conflates into a lifetime of suffering. Of the countries studied by Maplecroft on sex trafficking and crime against minors, India was ranked 7th worst.
Estimates of unreported rapes
Most rapes go unreported because the rape victims fear retaliation and humiliation, both in India and throughout the world. Indian parliamentarians have stated that the rape problem in India is being underestimated because many cases are not reported, even though more victims are increasingly coming out and reporting rape and sexual assaults.
Few states in India have tried to estimate or survey unreported cases sexual assault. The estimates for unreported rapes in India vary widely. The National Crime Records Bureau report of 2006 mentions that about 71% rape crimes go unreported. Marital rape is not a criminal act in India though sexual intercourse with wife aged between 15 and 18 years is considered as rape. Madiha Kark estimates 54% of rape crimes are unreported. A UN study of 57 countries estimates just 11% of rape and sexual assault cases worldwide are ever reported.
The conviction rate for rapists has fallen at a steep rate over the past 40 years. Out of all the rape trials in India, only one out of four leads to a conviction. The conviction rate for rape cases in India was 44.3 percent in 1973, 37.7 percent in 1983, 26.9 percent in 2009, 26.6 percent in 2010, 26.4 percent in 2011, 24.2% in 2012 and 27.1% in 2013.
India's conviction rate is higher than developed countries, such as the United Kingdom, which recorded a conviction rate of 7% in 2011-12. The conviction rate as low as 10% in Sweden and 25% in France.
Ajmer rape case
2012 Delhi Gang rape case
The gang rape of a 23-year-old student on a public bus, on 16 December 2012, sparked large protests across the capital Delhi. She was with a male friend who was severely beaten with an iron rod during the incident. This same rod was used to penetrate her so severely that the victim's intestines had to be surgically removed, before her death thirteen days after the attack.
The following day, there was an uproar in the Indian parliament over the incident. MPs in both houses had set aside their regular business to discuss the case and demanded strict punishment for those who carried out the attack. The Leader of the Opposition in the Lok Sabha, Sushma Swaraj, demanded that "the rapists should be hanged". Thousands of people, mostly young, participated in a massive demonstration on 22 December in protest. Police arrested six men suspected of rape.
2013 Mumbai gang rape
In August 2013, a 22-year-old photojournalist, who was interning with an English-language magazine in Mumbai, was gang-raped by five persons, including a juvenile, when she had gone to the deserted Shakti Mills compound, near Mahalaxmi in South Mumbai, with a male colleague on an assignment. This caused protests throughout the country since Mumbai with its very active nightlife was previously considered a safe haven for women. The city sessions court found the accused guilty and sentenced death penalty to the three repeat offenders in the Shakti Mills gang rape case, making them the first in the country to get the death sentence stipulated under the newly enacted Section 376E of the Indian Penal Code.
On 14 March 2015, a 71-year-old nun was allegedly gang-raped in Ranaghat, West Bengal by intruders at Convent of Jesus and Mary. The six intruders were recorded on CCTV during their crime of ransacking the chapel, destroying religious items, looting cash and the gang rape. Six men were arrested and charged with the crime by 1 April 2015, and identified to be Bangladeshi Muslims.
Delta Meghwal rape case
On 29 March 2016, the corpse of Delta Meghwal, a 17 year old Dalit girl, was found in her hostel's water tank. Following the registration of the police case the hostel warden, physical education teacher and principal were arrested by Bikaner police and kept under judicial custody. The State eventually acceded to a CBI inquiry after the issue became politicised.
Kathua rape case
On 17 January 2018, Asifa, an 8-year old minor girl, was raped and murdered in Rasana village near Kathua in Jammu and Kashmir. The incident made national news when charges were filed against eight men in April 2018. The arrests of the accused led to protests from groups, one of which was attended by two ministers from the Bharatiya Janata Party, both of whom have now resigned. The rape and murder, as well as the support the accused received, sparked widespread outrage.
Unnao rape case
The Unnao rape case saw an allegation that lawmaker Kuldeep Singh Sengar had raped a 17-year old girl in 2017. In 2018, the alleged victim's father was jailed under the Arms Act, and died in prison after being allegedly beaten up by Sengar's brother and several others. Also in 2018, a witness to the alleged assault, Yunus, died and was immediately buried by his family with no autopsy and no communication to police or investigators. Yunus' wife and family said Yunus had been ill and died a natural death. The uncle of the alleged victim was arrested and jailed in 2018 due to an 18 year old gun-firing case. In 2019, a truck with blackened license plates hit the car in which the alleged victim and others were riding in. As a result, the victim's paternal and maternal aunts were killed. The alleged victim and her lawyer were critically injured. The police officers assigned to provide security for the alleged victim were not present, with the explanation that there was no space in the car in which the alleged victim was travelling in.
Jammu and Kashmir
The rapes by Islamic militants have been reported since the Indo-Pakistani War of 1947. On 22 October 1947, Pashtun militants invaded Baramulla in a Pakistan army truck, and raped women including European nuns. In March 1990, Mrs. M. N. Paul, the wife of a BSF inspector was kidnapped, tortured and gang-raped for many days. Then her body with broken limbs was abandoned on a road.
The International Commission of Jurists have stated that though the attacks had not been proven beyond a doubt, there was credible evidence that it had happened. In 2011, the State Human Rights Commission (SHRC) asked for the reopening of the case.
Militant organisations such as Hizb-ul-Mujahideen, Jamiat-ul-Mujahideen and Harkat ul-Ansar have been accused of carrying out rapes. The Jammu Kashmir Liberation Front has been accused of ethnic cleansing of using murder, arson, and rape as a weapon of war to drive out hundreds of thousands of Hindu Kashmiri Pandits from the region. Following the rise of rapes by the Indian armed forces and militants, HRW has submitted that the victims of raper suffer ostracism and there is a "code of silence and fear" that prevents people from reporting such abuse. According to the HRW, the investigation of case of rape by Indian forces and militants is difficult because many Kashmiris are reluctant to discuss it for the fear of violent reprisals.
Human rights groups allege that the Indian armed forces under the protection of the Armed Forces (Special Powers) Act, 1958 have carried out a large amount of rapes in the Nagaland, Assam and Manipur provinces. Karlsson writes that there are reports that much of the violence against civilians, including sexual assault, is inflicted by the rebel groups and armed criminal gangs in the region.
There is wide discrepancy among reports of rape and sexual assault. For example, according to the People's Union for Civil Liberties (PUCL), the majority of those assaulted in 2007 were poor women from remote areas and Dalits. SR Darapuri of the PUCL alleged, "I analysed the rape figures for 2007 and I found that 90% of victims were Dalits and 85% of Dalit rape victims were underage girls." Darapuri allegations do not match with the data compiled by National Crime Records Bureau of India, which found 6.7% of rape and sexual assault victims were Dalits in 2007, where nearly 16% of Indian population is classified as Dalit. There were 391 cases of rape of Dalit victims reported in Uttar Pradesh in 2013 or about 1 per 100,000 Dalits in the state of about 200 million people (21% of which is classified as Dalit).
In recent years, variety of rapes have taken place during the communal riots. During the post 2002 Godhra train burning, in the certain parts of Gujarat, rape was carried out by rioters. Thirteen rape and assault cases were reported during the 2013 Muzaffarnagar riots.
The partition of India
Disputed rape cases
Potential abuse concerns
In April 2013, Judge Virender Bhat has suggested that the legal proposition of relying upon the sole attestation of the victim became "an easy weapon" to incriminate anyone in rape case. Justice Kailash Ghambhir of the Delhi High Court stated that penal provisions for rape are often being misused by women as a "weapon for vengeance and vendetta" to harass and blackmail their male friends by filing false cases to extort money and to force them get married. Saamna, mouthpiece of Shiv Sena in an editorial noted while supporting the Deputy Inspector General Of Police in Mumbai in an alleged rape complaint that it has become "a fashion to create sensation by charging someone for rape and molestation" while Shonee Kapoor, founder of Sahodar Men's Right Group, demanded that the name of the accused should not be made public till conviction.
In 2014, as per a report submitted by Delhi Commission for women 53% of reported rapes in 2012-13 were found to be 'false'. This report considered the cases that were dropped before going to trial as false, and failed to differentiate between the cases dropped due to coercion and cases where it was clear that women were lying.
The Hindu journalist, Rukmini Shrinivasan, investigated the cases further by only considering the cases that went to full trial. Out of 460 such cases in Delhi district courts in 2013 only 2% (12) were found to be committed by strangers. 41% (189) of these cases were filed by parents to criminalize and end consented sexual relationships, 24% (109) were filed under 'breach of promise to marry' and 30% (141) were found to be committed by acquaintances and relatives.
In 1991, the 4 Rajputana Rifles unit are alleged to have entered the village of Kunan Poshpora and raped between 30 and 100 women aged between 13 and 70. The Indian government carried out three inquiries into the allegations and concluded that it had been a hoax.
In May 2014 two girls aged 14 and 16 were allegedly gang raped and murdered in the northern state of Uttar Pradesh, though later investigations have alleged suicide as the cause of death in this instance. Two police officers were suspected of involvement in the crimes. The alleged gang rape was widely reported in the press both in India and globally.
Rape cases against internationals have led several countries to issue travel advisories that "women travellers should exercise caution when travelling in India even if they are travelling in a group; avoid hailing taxis from streets or using public transport at night, and to respect local dress codes and customs and avoid isolated areas".
In March 2013, a Swiss couple who were cycling from Orchha to Agra, decided to camp for a night in a village in Datia District. There they were physically assaulted by eight locals, robbed, the man was overpowered and tied up, while the 39-year-old woman was gang-raped in front of her husband at the village. The Swiss government issued a travel advisory in 2013 about the "increasing numbers of rapes and other sexual offences" happening in India.
The news coverage of the rapes and updated travel advisories have worried Indian tourism industry. Some media reports stated that high-profile rape cases had led to tourist numbers to drop 20 to 30 per cent compared to previous year. The Assocham agency found that of 1200 businesses surveyed more than 70% reported cancellations by female tourists from Britain, Canada, the U.S. and Canada along with a 25% decline overall. However, tourist arrivals in India increased from 6.5 million arrivals in 2012 to 6.8 million arrivals in 2013. Tourist arrivals in 2014 observed another 10% increase over 2013 levels.
In January 2015, the Tourism Ministry of India introduced emergency helplines for female tourists. The Indian government announced in April 2015, that tourists are now being given a "welcome card" by the immigration officer on arrival with resources to ensure their safety, that GPS-embedded tracking system are being introduced in all taxis, and tourist helplines in 12 foreign languages have been instituted.
In a non-tourism related case, Russia issued travel advisory to its citizens after a Russian national was raped in December 2009. The case was widely covered after a member of Indian parliament Shantaram Laxman Naik blamed the victim and the media for over emphasising the Russian rape case after, "she was raped by a state politician in his car after they had dinner together". Naik was criticised by leaders of Indian political parties such as CPI-M, BJP and SP for blaming the rape victim and media.
The Indian law prior to the Nirbhaya Incident took into account only acts of penile-vaginal intercourse within the definition of rape and forcible acts of penetration of vagina, mouth, urethra or anus through penis or an inanimate object did not fall within the definition of rape. Many rapists were not prosecuted because there was no law to punish such acts. The definition was expanded in 2013 to consider rape as any acts like penetration by penis, or any object or any part of body to any extent, into the vagina, mouth, urethra or anus of a woman or making her to do so with another person or applying of mouth to sexual organs without the consent or will of the woman constitutes the offence of rape.
The section has also clarified that penetration means "penetration to any extent", and lack of physical resistance is immaterial for constituting an offence. Except in certain aggravated situation the punishment will be imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
Section 53A of the Code of Criminal Procedure of the Indian law lays down certain provisions for medical examination of the accused. Section 164A of the Code of Criminal Procedure deals with the medical examination of the victim.
The revised statutes of 2013 Indian law, in section 376A, mandates minimum punishment in certain cases. For instance, if the sexual assault inflicts an injury which causes death or causes the victim to be in a persistent vegetative state, then the convicted rapist must be sentenced to rigorous imprisonment of at least twenty years and up to the remainder of the natural life or with a death penalty." In the case of "gang rape", the same mandatory sentencing is now required by law. The convicted is also required to pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim, and per Section 357 B in the Code of Criminal Procedure. Death penalty for the most extreme rape cases is specified.
The 2013 law also increased the age of consent from 16 years to 18 years, and any sexual activity with anyone less than age of 18, irrespective of consent, now constitutes statutory rape.
The new law has made it mandatory for all government and privately run hospitals in India to give free first aid and medical treatment to victims of rape.
As well, in May 2013, the Supreme Court of India held that the two-finger test on a rape victim violates her right to privacy, and asked the Delhi government to provide better medical procedures to confirm sexual assault.
On 3 November 2015 the Allahabad High Court observed that a child born out of rape will have inheritance rights over the property of the assaulter and will be treated as illegitimate, however if the child is taken for adoption then he/she will not have any rights on the property of the biological father.
National Database on Sexual Offenders (NDSO)
The government on September 20, 2018 launched the National Database on Sexual Offenders (NDSO). The database contains entries of offenders convicted under charges of rape, gang rape, POCSO and eve teasing. The portal as of now contains 440,000 entries of cases that have been reported since 2008. It's managed by the National Crime Records Bureau. The database is accessible only to the law enforcement agencies for investigation and monitoring purpose.
Fast track courts
As a result of the 2012 Delhi gang rape case, the Indian government implemented a fast-track court system to rapidly prosecute rape cases. The fast-track court system has been welcomed by some, but their fairness questioned by legal experts and scholars. The legal scholars state that the fast-track courts may not be fair in an impoverished country where millions of cases are backlogged, and there are an average of just 14 judges per million people - among the lowest in a United Nations study of 65 nations. Fast track courts divert limited judicial resources and add delays to prosecution of other crimes. They noted that Delhi state had instituted five fast-track courts in 2013 to handle rape cases, but there are no fast-track courts for murder. Mrinal Satish, of New Delhi's National Law University said, "there is a risk that in this emotional response and clamor for immediate justice, we could end up putting innocent people in prison".
Marital rape is not a criminal offence within Indian legal framework, except during the period of judicial separation of the partners. The marital rape exception, that is exception 2 of section 375 of the Indian Penal Code states that sexual intercourse by a man with his own wife, the wife not being under 18 years of age, is not rape. In the 1980s, women's rights groups lobbied for marital rape to be declared unlawful. Government officials argued that the contract of marriage presupposes consent to sex and that criminalising marital rape in turn would degrade family values in India. Forced sex by husbands upon wives does have legal consequences in Indian matrimonial law, in that it can be treated as a matrimonial fault, resulting in dissolution of the marriage. All religious personal laws and the secular law governing marriage and divorce in India deem ‘cruelty’ by one spouse to the other to be a ground for divorce. The originally enacted Hindu marriage Act provided that in order to constitute a cause for divorce, an act of cruelty should be such that it ‘produces a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party.’ Marital rape also amounts to ‘sexual abuse’ under the law regarding domestic violence enacted in 2005, under which aggrieved wives or female live-in partners can claim civil remedies, like injunction against violence, dispossession from home or direction to the husband/partner to pay maintenance. The law kicks in to regulate sexual violence in marriage only in cases when it is accompanied by extreme physical violence or when the health and safety of the wife is endangered, as in the case of minor wives.
This exception has restricted application when the wife has been living separately from the husband, with or without a decree of judicial separation. In such cases, the husband can be prosecuted for rape. If convicted, the minimum punishment is imprisonment for two years and imposition of a fine (Section 376B, IPC). This clause was ratified in the year 1983, a period of great upheaval in the history of rape law reform in India, when major changes were made for the first time since enactment of rape laws by the colonial state in 1860. The parliamentary committee that gave final shape to the 1983 amendments was disinclined to treating non-consensual sex between a separated couple as amounting to rape, on the grounds that a rape charge would heighten the possibilities of divorce by making reconciliation that much harder for the couple. Hence, the minimum sentence stipulated for this category of rape was set much lower than usual.
Until 2017, there was a discrepancy between two sub clauses of Section 375. Exception 2 stated that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” However, the same provision stated that a man is said to commit rape if he has sexual relations with a woman with or without her consent, when she is under 18 years of age. Independent Thought, a non-governmental organisation, in a petition in 2013, had challenged Exception 2. In a landmark ruling on 11 October 2017, the supreme court upheld the age of consent as 18 years. The court held that the distinction made between a married girl child and an unmarried girl child was illogical and ran against the provisions of the Protection of Children from Sexual Offences Act, 2012. Such a distinction also violated a child's right to liberty and dignity under Article 21 of the Constitution. Two other significant statutes undermined by the original IPC section were the Prohibition of Child Marriage Act, 2006 and the Juvenile Justice Act, both of which define a child as someone below the age of 18.
In February 2017, the Ministry of Health and Family Welfare unveiled resource material relating to health issues to be used as a part of a nationwide adolescent peer-education plan called Saathiya. Among other subjects, the material discusses relationships and consent. The material states, "Yes, adolescents frequently fall in love. They can feel attraction for a friend or any individual of the same or opposite sex. It is normal to have special feelings for someone. It is important for adolescents to understand that such relationships are based on mutual consent, trust, transparency and respect. It is alright to talk about such feelings to the person for whom you have them but always in a respectful manner. ... Boys should understand that when a girl says 'no' it means no."
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|Wikimedia Commons has media related to Rape in India.|
- "The rapes that India forgot". BBC. 5 January 2013.
- Vutz, Cornelia. "The situation of women and gender-specific violence in India" (PDF). Library Briefing. Library of the European Parliament. Retrieved 7 March 2013.