BY-SREYASI BHATTACHARYA (HERITAGE LAW COLLEGE)
The word ‘rape’ has been derived from the Latin term ‘rapio’ which means ‘to seize’. Thus rape means a forcible seizure. In simple expression, it signifies as the crime of forcing a woman to submit themselves without her consent, fear, or fraud or the carnal understanding of a woman by force against her will. Section 375 of the Indian Penal Code defines 'Rape' and Section 376 deals with the punishment of rape.
Section 376C of the Indian Penal Code, 1860 deals with the “Sexual intercourse by a person in authority" under a new category of sexual offences comprising of a group of sections known as custodial rape which does not amount to rape as, under such cases, the consent of the victim is obtained under some compelling conditions. These persons occupy supervisory positions and take undue advantage of their authority.
A person is said to be in custody when he/she is under the strict supervision and control of another person or an institution who is said to be the custodian. The custodian has the absolute power of control over the individuals, including their movement, freedom, necessities like food and water, contact with the outside world, and so on. This relation of control and dependence guides towards a strong duty of care and protection on the custodian. But when these higher authorities start to take undue advantage of their position and induce any female inmate of such institution to have sexual intercourse with him, it is said to be ‘custodial rape’. Custodial Rape even under conditions of such supervision and control is a very serious violation where the aggressor not only takes advantage of his position for control over the woman but also violates her bodily integrity and the duty to care and protecting the citizens.
The concept of custodial rape applies to the superintendent of a jail, remand home, or other places of custody established by law. However, this is also directed to the management or staff of a hospital (government and private), mental health care institutions or rehabilitation centres, juvenile homes and shelter homes
HISTORY BEHIND THE ANTI-RAPE LAWS:
During the National Emergency from the year 1975 to 1977, the state presumed arbitrary powers, distribution with public accountability for its action and fastening down the civil liberties of the citizens. This incident awakened the consciousness of both the judiciary system and the civil society, of the dangers of the power of the state and how these powers can tread on personal liberties. It was during this duration when three cases of custodial rape occurred following the Mathura Rape Case [Tukaram and others vs. State of Maharashtra, AIR 1979 SC 185], Rameeza Bee in Andhra Pradesh (1978) and Maya Tyagi in Uttar Pradesh [ Sheo Kumar Gupta and Others vs. State of U.P. ].
Maya Tyagi is one such case in which the case the legal reforms were set off making a difference between custodial rape and rape. In this case, Maya Tyagi who was six months pregnant was dragged out of the car, beaten, stripped. When she did not move despite the cruel beatings, the cops shovelled a lathi into her vagina. She was paraded naked to the police station where she was raped. Her spouse was shot dead by the cops. In this movement, Maya Tyagi was supported by the former prime minister, Chaudhary Charan Singh. This case leads to the widespread protests from women’s organizations as well as political parties across the country. A judicial enquiry was ordered into this incident, and there was a parliamentary debate on the increasing rates in incidents of rape and violence against women.
Rameeza Bee in Andhra Pradesh (1978):
The case of Rameeza Bee occurred in Hyderabad in the year 1978. In this case, a woman named Rameeza Bee was raped by several policemen. When her husband, a rickshaw puller tried to protest against the heinous crime, he was murdered. As a protest, 22,000 people including the activists came up. They marched together towards the police station, blocked the roads, stoned the buildings and also burned certain property present in the compound. It was only after the call of two units of soldiers that the people could be brought under control. But this could not bring the end to the agitation. After a point of time, even the politicians got involved in this matter. The Chief Minister was stopped from leaving until the demands were fulfilled. The firing by the police at the crowd made the situation worse. A strike was declared and a total of 9 people were killed while 80 people were injured. The unrest was finally suppressed after the declaration of the President’s Rule and an appointment of the commission to enquire the rape and murder. Nobody focused on the main issue of gang rape by police officials. However, even after the enquiring committee found the policemen to be guilty, the charges were cleared by the Session’s court.
Mathura Rape Case:
In Tukaram and others vs. State of Maharashtra, (AIR 1979 SC 185) also known as the Mathura Rape case, wherein 1972, Mathura, an Adivasi girl, who was of an age between 14-16 years was sexually assaulted, raped by Constable Ganpat and Head Constable Tukaram also assaulted her by fondling her private parts. An FIR was lodged against the two police constables.
The Session’s Court judgement had held that as there was no satisfactory evidence of Mathura being below 16 years of age. The learned judge stated that Mathura did have intercourse with Constable Ganpat, and Tukaram did that because she was habitual to sexual intercourse.
On further appeal, the High Court found that the two Constables were guilty and therefore had sentenced Tukaram with one year of imprisonment and Ganpat with five years of imprisonment.
However, the Supreme Court said that the nature of consent of the victim had to be understood from the circumstances and the circumstances showed that the consent was not “passive”. There was no injury she had suffered, therefore it could not be concluded that the girl had been subject to any fear or was constraint such as it would justify an inference of “passive submission”. As for the allegations which were made against Tukaram, the first information report that was made by Mathura against Tukaram had serious allegations on which during the trial, she had gone back at the trial and the acts covered by which she assigned in her deposition to Ganpat instead of Tukaram. The court explained that if a girl could alter her words concerning such serious allegations, how could it be guaranteed that her words are truthful in association to what she now says about Tukaram? Thus the charge remained unproved against the head constable Tukaram. In conclusion, the appeal succeeded and was accepted. The verdict of the Supreme Court reversed from the verdict of the High Court and the conviction which were recorded against including the sentences which were imposed upon the appellants were set aside. Thus, the appellants were acquitted.
These three cases were aimed towards violence against women, which also showed abuse of power by public servants whose duty is to protect the people of the nation. However, it was seen that in all the three cases, the police acted with brutality to an extreme level and also without any fear of the law. These cases symbolised of institutional biases, blatant impunity, and indifference in the police forces. The public outrage against such cases gave momentum to the anti-rape campaign throughout the nation which demanded recognition of custodial rape as a separate offence under the law, which was seen to be more serious than rape.
BEGINNING OF THE ANTI- RAPE CAMPAIGN :
Women’s Rights Movement in India gained national attention with an Anti-rape movement in the year 1980. After the end of the emergency period, civil liberties organisations drew special attention towards the rape of women in the police custody, rape of poor at large, and sexual molestation of tribal women by the State Reserve Police (SRP), the Central Reserve Police (CRP) and other paramilitary forces. The media made a huge coverage on the statements of the women victims of sexual violence. Many started to question the powers given to the police and State authorities in the control of people’s lives. In the year 1980, when the Supreme Court of India gave its verdict on the Mathura Rape Case, there was a national outcry. The defence given by the policemen was that as she had a boyfriend, she was a loose girl and so, she could not be raped. The Supreme court had accepted such an argument. Lawyers including Ragunath Kelkar, Upendra Bakshi, Vasudha Dhagamwar and Lotika Sarkar wrote an open letter questioning the logic of the judgement.
Through this letter, many feminist groups brought the serious issue of rape to the forefront. Forum Against Rape which was later changed to Forum Against Oppression of Women was one such feminist and started a campaign to reopen the case. The demand of the campaign was to a retrial of the case and changes that should be brought in the law of rape ( Section 375 of the Indian Penal Code, 1860). There were reports which showed individual protests were also being performed by police officials around the country.
CATEGORY OF CUSTODIAL RAPE AS AN OFFENCE:
The case of Sheela Devi vs. State of Haryana and Anr, where the woman was raped and then murdered by a police constable in the police station. This case led to major protests. Finally, results were seen where the government introduced amendments in the law under rape and on the definition of rape. This amendment introduced the category of custodial rape.
The punishment for custodial rape was set to rigorous imprisonment of not less than ten years and may also extend to imprisonment for life and shall also be liable to fine.
PRESENT SCENARIO OF CUSTODIAL RAPE IN INDIA:
Sexual harassment is nothing but a showcase of male dominance. Every hour, two women are raped in the country. A study in 2017 by the parliamentary panel showed that Uttar Pradesh is at the top for the highest custodial rapes in India. It was seen in the data of 2015 from Women in Detention and Access to Justice where a total of 95 cases were reported from Uttar Pradesh, following two cases from Uttaranchal and one each from West Bengal and Andhra Pradesh. In the year 2016, out of 26 custodial rape cases filed in India, a total number of 11 cases were from Uttar Pradesh which had said to decrease from the previous years. In 2014, the CBI had filed charges of custodial rape against seven Tamil Nadu cops who tortured and raped a 49- year old woman. The court held that an amount of Rs 2 lakh shall be paid to the victim as compensation and the suspension of the policemen. Another custodial rape case was reported in Rajasthan that after the custodial death of his brother-in-law, the Dalit woman was raped, tortured and detained by the police for several days. According to the report of 2018, Madhya Pradesh is a state with the highest number of rape cases in the country for three consecutive years where out of a total number of 5433 cases, 54 were cases which involved children below six years of age.
The recent amendments in the Code of Criminal Procedure, helps faster trials of cases relating to sexual offences may not have any impact due to a large number of pending cases in the courts. The union minister had suggested having separate courts for cases based on sexual harassment or sexual assault. It is high time for such courts to start functioning.
There are many changes needed to be done to provide justice to all victims of sexual assault. Various changes have been spread in these three decades, which has brought a major change and also some hope for justice. The judicial and legislative actions have brought major changes which should be taken into consideration by the investigative officers and healthcare providers. Also in a case of sexual assault, safe trial and rehabilitation are provided.
Maya Tyagi case in Uttar Pradesh [ Sheo Kumar Gupta and Others vs. State of U.P., AIR 1978 All 386, 1978(37) FLR 118] from https://www.casemine.com/judgement/in/56b49278607dba348ffffe1c, https://feminisminindia.com/2017/06/22/historical-journey-rape-laws-india/, https://feminisminindia.com/2019/05/22/definition-rape-laws/, https://www.yourarticlelibrary.com/essay/rape-the-movement-against-rape-in-india/32972#:~:text=In%20another%20incident%20in%201980,paraded%20her%20through%20the%20streets.&text=The%20government%20introduced%20a%20bill,of%20proof%20onto%20the%20accused. ; and https://www.pressreader.com/catalog;
Rameeza Bee in Andhra Pradesh (1978) from https://www.jstor.org/stable/4366913?seq=1, https://feminisminindia.com/2017/06/22/historical-journey-rape-laws-india/, and https://feminisminindia.com/2019/05/22/definition-rape-laws/;
Mathura rape case [Tukaram and others vs. State of Maharashtra, AIR 1979 SC 185] fromhttps://lawlex.org/lex-bulletin/case-summary-tukaram-and-others-vs-state-of-maharashtra-mathura-rape-case/23555, https://feminisminindia.com/2017/06/22/historical-journey-rape-laws-india/, and https://feminisminindia.com/2019/05/22/definition-rape-laws/
Oxford Dictionary Of Law for the terms ‘Custody’ (page no.166) and ‘Rape’ (page no 508);
Study of Rape ( Section 375) and Custodial Rape ( section 376C) from the Textbook on Indian Penal Code by K.D. GAUR;
https://feminisminindia.com/2017/06/22/historical-journey-rape-laws-india/ for the study of the historical background of custodial rape;
https://feminisminindia.com/2019/05/22/definition-rape-laws/ for the definition of rape laws;
https://www.unive.it/media/allegato/dep/n24-2014/Ricerche/03_Patel.pdf for the study of a campaign against rape by women's movement in India;
https://www.sciencedirect.com/science/article/abs/pii/S1359178916300982 for understanding the origins and development of rape and sexual aggression against women;
https://www.hindustantimes.com/india-news/uttar-pradesh-tops-in-custodial-rape-cases-says-parliamentary-panel-report/story-Dg4LaFpt3jK9GJ6vXY2U1I.html for the study of custodial rape cases in U.P.;
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