Why was section 375 IPC Introduced?

Women from centuries and the time from which civilization began has been subjected to very tough living conditions. Her voice has been oppressed under the huge pillars of ideologies which later formed the establishments of structures of patriarchy. This structure of patriarchy resulted in more loss for women (where in this paper we subject women as a human or individual first), than the good it had to do in order to protect the women.

As we evolved as humans our desire for getting more in terms of power, money and success grew and with this came the need to suppress others in order to feel powerful, often this was fulfilled by targeting the physically weaker human (in most cases women).

Women were often, and are often asked to just hold on to themselves and suffer the pain the misogyny that may come their way in terms of crimes be it domestic violence, rapes, sexual harassment, sexual assault etc. It took a lot of time for women to understand they have equal rights and under no law whether be personal law, general law and even in religious texts are they subjected to suffer all of this.

Talking of ‘RAPE’ was first introduced in IPC in 1860 and this was the time when it was defined or the first time. Rape in lay man terms is an act of physically being involved with someone without their consent.

Rape can happen with all genders be it a male, female or a transgender. Sadly, enough cases where a male is a victim are not brought to attention. This brings us to the question are laws gender neutral?

Rape can be done by a single person, more than one person called as gang rape, by a husband known as martial rape. Marital rape is however not an offence in our country as per law of land.

WHY HAS RAPE BEEN SUCH A MATTER OF DISCUSSION

After being defined in the code[i] in 1860 rape section 375 made punishable the act of sex by a man with a woman against her consent, it also includes a situation where consent is obtained by intoxication, or by obtaining consent by putting her or any person related to her in fear of death or of hurt.

Section 376 is referred to give punishment to whoever commits the offence, it is minimum to seven year of jail to extending up to life imprisonment.

The major case that caused the laws to be revised was the case of MATHURA RAPE CASE[ii], in this case a Dalit girl was raped by policemen in a police station of Maharashtra. This case was tried in session court where judge acquitted both policemen, but court was of conclusion that she had intercourse but there was no evidence of rape. The case further went to High court where judge reversed the order of acquittal. The supreme court however in 1978, gave a verdict saying there were no marks of injuries which indicates that intercourse was a peaceful affair.

This judgment was criticized and people demanded change in existing rape laws and therefore led to development of Criminal Law Act[iii] in which a new section of 114A was added to Evidence Act[iv]. This section added and presumed the absence of consent in prosecution of rape and was also applicable for custodial rape cases. In the code section 228A added which helped to conceal the identity of victim of certain offences including offence of rape.

WAS THIS CHANGE IN LAW SUFFICIENT ENOUGH?

After this verdict and amendment, rapes certainly did not stop, they were just not being reported. Even if they did, the nation did not witness a country wide protest until 2012 in NIRBHAYA RAPE CASE. In this case a girl was raped in a moving bus by six accused out of which five were adults and one was a minor. This case was one of the rarest of rear case and was classified as heinous crime against humanity. There was a nationwide protest, where people were demanding justice for this girl.

This case led to several laws being amended and several laws to be formulated. This case brought the amendment in criminal law in form of Criminal Law (amendment) Act 2013 to broaden the definition of rape and make punishment harsher in such offence.

Certain new offences were introduced like unwanted physical contact, demand for sexual favors, showing pornography against will of woman or making sexual remarks; these offences were clearly defined and were allocated punishments.

There were several changes in punishment of offences like that of gang rape was introduced from 10 to 20 years to life imprisonment, that of stalking was made punishable up to three years, offence of acid attack was increased to 10 years of imprisonment.

After the changes were made in general laws there were some changes made in procedural laws specifically talking about changes that were made in CrPC[v]. Section 154 which talks about information in case of cognizable case after the 2013 amendment section 154(1) was made to include in certain case of crime against women, the FIR is to be recorded by a woman police officer (preferably female) at a place of the victim’s choice.

Section 164 (5) was amended to include that it was mandatory for the Judicial Magistrate to record the statement of victim as soon as commission of offence was brought to notice of police in the manner prescribed by sub section 5 of section 164.

An explanation was added to section 197(1) which provides prosecution of judges and public servants in offence alleged to have been committed under section 166A,166B,354,354A,345B.354C.354D,370,375,376 AND 509 OF IPC.