Anti-Sexual Violence Laws in India

Here is a list of women-related offences under the Indian Penal Code, 1860:

·         S.304B:  Dowry Death

·         S.313:    Causing miscarriage without woman’s consent

·         S.354:    Assault or criminal force on a woman with intent to outrage her modesty

·         S.366:    Kidnapping, abducting or inducing a woman compelling marriage

·         S.366A: Procuration of minor girl

·         S.366B: Importation of girl from foreign country

·         S.372:    Selling minor girl for prostitution

·         S.373:    Buying minor girl for prostitution

·         S.375:    Rape

·         S.498A: Cruelty against married woman by husband or his relatives

·         S.509:    Word, gesture or an act intended to insult the modesty of a woman

Other legislations include:

·        

       The Immoral Traffic (Prevention) Act, 1956

·         The Dowry Prohibition Act, 1961 (28 of 1961) (Amended in 1986)

·         The Indecent Representation of Women (Prohibition) Act, 1986

·         The Commission of Sati (Prevention) Act, 1987 (3 of 1988)

·         Protection of Women from Domestic Violence Act, 2005

The major offences that are reported widely throughout the country are under Sections 354, 375 and 509 of the Indian Penal Code. The first two offences are non-compoundable, cognizable and can be tried by a magistrate. However, shockingly, prior to the amendment to IPC as suggested by the Justice Verma Committee Report, both these offences were bailable.

The following major amendments were suggested by the Committee and were adopted by the Central Government under an ordinance:

·         S.100 of IPC (Right to Private Defence) has been expanded to include the right of self defence in cases of acid attack.

·         Clause (c) has been added to S.166A of IPC (Public Servant disobeying directions under law) to make the “non-recording of FIR” in cases of sexual offences punishable.

·         Section 326A (Hurt by Acid Attack) has been expanded to include means other than acid, which “produce a similar result”.

·         A new Section 354A has been added which is based on the Supreme Court guidelines in the Vishakha judgment. This section provides that “unwelcome physical contact, request for sexual favours, sexually coloured remarks, forcibly showing pornography and any other unwelcome physical, verbal or non-verbal conduct of sexual nature will be punishable”.

·         A new Section 354B has been added which makes “Assault or use of criminal force to women with intent to disrobe her” punishable. The provision reads, “Whoever assaults or uses criminal force or abets such act with the intention of disrobing a woman or compelling her to be naked in any public place will be punished”.

·         Section 354C has been added which makes “Voyeurism- watching a woman engaging in a private act when she does not expect to be observed”, punishable. Section 354D makes “Stalking” a punishable offence. Stalking has been defined as “Following or contacting or attempting to contact a person or monitoring the person digitally or spying on the person in a manner, which interferes with the mental peace of the person”

·         There has been a significant change in the Definition of Rape under Section 375 of IPC. The most important change is that it has been made a gender neutral offence. Earlier the definition of rape was limited to “forced sexual intercourse” by a man on a woman. The Ordinance has widely expanded this definition to include other forms of sexual acts in the definition of rape, and as mentioned earlier, it is no longer a gender-specific offence. The amended section reads,
“‘375.   A person  is said to commit “sexual assault” if that person––

(a) penetrates his penis, to any extent, into the vagina, mouth  urethra or anus of another  person or makes the person 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 another person or makes the person to do so with him or any other person; or

(c)  manipulates any part of the body of another person so as to cause penetration into the vagina, urethra, anus or any part of body of such  person  or makes the person to do so with him or any other person; or

(d)  applies his mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person;

(e) touches the vagina, penis, anus or breast of the  person or makes the person touch the vagina, penis, anus or breast of that person or any other person,

except where such penetration or touching is carried out for proper hygienic or medical purposes under the circumstances falling under any of the following seven descriptions:–

Firstly,–– Against the other person’s will.

Secondly. –– Without the other person’s consent.

Thirdly. –– With the other person’s consent when such consent has been obtained by putting such other person or any person in whom  such other person  is interested, in fear of death or of hurt.

Fourthly. –– When the  person assaulted is a female, 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 to be lawfully married.

Fifthly.–– With the consent of the other person when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by that person personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that action to which such other person gives consent.

Sixthly. –– With or without the other person’s consent, when such other person is under eighteen years of age.

Seventhly. –– When the person is unable to communicate consent.

Explanation 1.–– Penetration to any extent is “penetration” for the purposes of this section.

Explanation 2.–– For the purposes of this section, “vagina” shall also includelabia majora.

Explanation 3.–– Consent means an unequivocal voluntary agreement whenthe person by   words,   gestures or   any   form   of   non-verbal communication,communicates willingness to participate in the specific act:

Provided that, a person who does not physically   resist to the act ofpenetration shall not by the reason only of that fact, be regarded as consenting tothe sexual activity.

Exception.–– Sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault.
 

This amendment aims to resolve all the disputes which have arisen in the past regarding the definition of rape. Cases where there was no sexual intercourse per se could be only tried under Section 354 of the IPC, which provides for a significantly lesser punishment. The expansion of this definition was a much required step.

·         New Section 375E has been added which provides for either life imprisonment or death for repeat offenders.

·         Punishments for various categories of rapes have been enhanced.

·         Certain amendments have been made in the Code of Criminal Procedure, 1973. Some provisions have been added for the convenience of disabled victims for identification of witnesses of recording of statements. The amendments also make it mandatory that in cases where the victim is a woman, only female police officers can record statements.

·         The ordinance also amends the Indian Evidence Act, 1872. Previous sexual experience of the victim shall not be relevant in any case of sexual assault. Section 114A, which talks about presumptions cases of sexual assault has been amended to accommodate the change in the definition of Rape (under section 375 of IPC). The expression “dumb witnesses” has been replaced with “persons who are unable to communicate verbally”. Another significant change is that no question can be raised as to the moral character of the victim in cases of sexual assault. This had already been ordered by the Supreme Court in a judgment.