RAPE: Section 375 (IPC) vs. Section 63 (BNS) [ Old vs. New].

Introduction

The offense of rape is a deeply serious and heinous crime that involves non-consensual sexual intercourse or penetration. It is a violation of an individual’s autonomy, bodily integrity, and basic human rights. Central to the concept of rape is the absence of consent, emphasizing the critical importance of mutual agreement and willingness in any sexual encounter. When one party engages in sexual activity without the clear and voluntary agreement of the other, it constitutes a criminal act.

Rape can manifest in various forms, involving physical force, threats, intimidation, coercion, or the victim’s incapacity to provide informed consent due to factors such as intoxication or unconsciousness. Laws regarding rape vary across jurisdictions, but they generally aim to protect individuals from sexual violence, ensure justice for survivors, and hold perpetrators accountable.

The emotional, physical, and psychological impact of rape on survivors is profound, necessitating legal measures to address not only the immediate harm caused but also the long-term consequences. Legal penalties for rape are severe, often including imprisonment, fines, and mandatory registration as a sex offender.

It is crucial to approach discussions about rape with sensitivity and empathy, recognizing the gravity of the offense and the importance of supporting survivors. Prevention efforts often focus on promoting awareness of consent, dismantling harmful attitudes and beliefs, and fostering a culture that prioritizes respect, communication, and the well-being of all individuals.

The section in the Indian Penal Code,1860

Section 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:

First. 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.

Exception 1. A medical procedure or intervention shall not constitute rape.

Exception 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.

Consent

Consent is an action taken by a person of their own free will and with a clear state of mind. According to the Merriam Webster dictionary, consent is the act of approving or giving assent. As per Section 375, consent can be defined as an explicit and voluntary agreement when a woman shows willingness to engage in a specific act through communication, verbal or non-verbal. The fundamental principle of consent is choice, not will.

Example:

Suppose two individuals, a man and a woman, are on a date. They engage in consensual kissing and hugging. However, when the man attempts to escalate the level of intimacy by attempting sexual intercourse, the woman clearly expresses her discomfort and explicitly says, “No, I do not want to go any further.”

In this scenario, if the man proceeds against the woman’s explicit refusal and engages in sexual intercourse without her consent, his actions may be considered a criminal offense. The absence of valid consent transforms the act into a potential case of rape or sexual assault, depending on the jurisdiction and legal definitions.

It’s important to emphasize that consent must be ongoing and can be withdrawn at any point during a sexual encounter. In the example above, the woman communicated her lack of consent clearly, and any continuation of the sexual act without her agreement could lead to legal consequences for the man.

This example underscores the significance of respecting and obtaining clear and voluntary consent in all intimate interactions to ensure that they remain lawful and consensual.

Types of Consent

Section 90 of the Indian Penal Code explains the concept of free consent. Consent is not considered to be free when a person is coerced through fear of harm or misled by false information. There are two distinct types of consent:

Implied Consent:  Implied consent is a type of consent that is communicated through actions, rather than spoken or written words. This can include gestures or other non-verbal forms of communication. Essentially, implied consent is consent that is inferred from signs, actions, or facts, or by a lack of response or silence. This type of consent is recognized by legal dictionaries and is often used in various legal contexts.                                                                                                                                         

Example: When you extend your hand for a handshake, the other person reciprocates by offering their hand as well. In this situation, the mutual exchange of handshakes implies consent for a brief physical interaction.

Explicit Consent: This is a clear and unambiguous agreement to engage in a specific activity, often conveyed verbally or through clear actions to prevent misunderstandings.

Example: Suppose you want to borrow a book from your friend. Instead of assuming that your friend will be okay with it, you should ask for their permission by saying something like, “May I borrow this book?” Your friend can then respond with a clear and affirmative “Yes” or a negative “No”.

Section 376

Punishment of Rape

(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which ¹ [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine].

 (2) Whoever,—

 (a) being a police officer, commits rape—

       (i) within the limits of the police station to which such police officer is appointed; or

       (ii) in the premises of any station house; or

       (iii) on a woman in such police officer’s custody or in the custody of a police officer     subordinate to such police officer; or

 (b) being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or

 (c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

 (d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or

 (e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

 (g) commits rape during communal or sectarian violence; or

 (h) commits rape on a woman knowing her to be pregnant; or

² * * * * *

 (j) commits rape, on a woman incapable of giving consent; or

 (k) being in a position of control or dominance over a woman, commits rape on such woman; or

 (l) commits rape on a woman suffering from mental or physical disability; or

 (m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

 (n) commits rape repeatedly on the same woman,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.

Explanation.—For the purposes of this sub-section,—

(a) “armed forces” means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government;

 (b) “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;

 (c) “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861 (5 of 1861);

 (d) “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children.

³ [(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this sub-section shall be paid to the victim.]

The section in the Bharatiya Nyaya Sanhita 2023

In the recently enacted Bharatiya Nyaya Sanhita (BNS) Act, a paradigm shift in legal provisions pertaining to sexual offenses is evident, notably within the ambit of what was formerly Section 375 in the Indian Penal Code (IPC), now delineated as Section 63 in the BNS Act. While the definitions and underlying punitive measures have been ostensibly retained, a nuanced transformation lies in the amplified severity of penalties for offenses stipulated in this section. This departure signifies a substantive commitment to addressing sexual offenses with heightened stringency, reflecting an earnest endeavor to safeguard the personal autonomy and dignity of individuals.

One pivotal stride towards substantive legal reform in the BNS Act is the explicit inclusion and penalization of marital rape. In stark contrast to the IPC, where marital rape was not explicitly addressed and lacked specified penalties, the BNS Act recognizes and categorically condemns this violation within the sanctity of marriage. This monumental shift represents a departure from archaic norms and underscores a commitment to recognizing the agency and autonomy of individuals, particularly women, within marital unions. By introducing punitive measures for marital rape, the BNS Act aligns itself with contemporary notions of justice, acknowledging the egregious nature of such offenses and their detrimental impact on victims.

The inclusion of provisions criminalizing marital rape is a crucial step forward in acknowledging and rectifying a historical legal loophole. This legislative evolution aims not only to provide justice to survivors but also to foster societal awareness and condemnation of all forms of sexual violence, irrespective of the relational context. It underscores the evolving nature of jurisprudence, where legal frameworks strive to reflect and respond to changing societal values and challenges. In effect, the BNS Act seeks to redress historical inadequacies, reinforce the commitment to gender equality, and foster a legal landscape that is more responsive to the complexities of human relationships and individual rights.

Landmark Judgment in Rape

Mukesh and Anr. Vs. State for NCT of Delhi & Ors. (2017)

Facts

The Nirbhaya case, occurring in Delhi on December 16, 2012, involved the brutal gang rape and assault of a 23-year-old physiotherapy student and her male friend aboard a moving bus. The perpetrators, six men including the bus driver, attacked the victims, inflicting severe injuries. After the assault, the victims were thrown from the bus, and the woman succumbed to her injuries at a hospital. The swift identification and arrest of the accused led to a fast-track trial, resulting in conviction and death sentences for four adult perpetrators. A juvenile involved in the crime received a three-year sentence. The case sparked nationwide protests, discussions on women’s safety, and changes in laws to address sexual offenses, with the four adult convicts ultimately executed in 2020.

Judgment

The Nirbhaya case judgment, delivered by a fast-track court in 2013, resulted in the conviction of four adult perpetrators for the brutal gang rape and murder of a 23-year-old physiotherapy student in Delhi in 2012. The court sentenced all four to death by hanging, citing the extreme brutality of the crime and the need for a strong deterrent against such heinous acts. The judgment triggered national and international attention, sparking debates on women’s safety and the legal treatment of sexual offenses. After a series of appeals, the Supreme Court of India upheld the death sentence. The convicts were subsequently executed by hanging in Tihar Jail on March 20, 2020. The Nirbhaya case led to significant changes in India’s legal framework related to sexual offenses, aiming to enhance the safety and security of women.

The State of Punjab vs. Gurmit Singh & Ors. ( 1996).

Facts

In this case, the girl was in class 10th and her final exams were going on. She was returning home after her exam when she was abducted in a van by the accusers. They took her to a tubewell kothi which belonged to one of them and all three of them committed rape on her. She was asked to remain silent and if she resisted or raised an alarm she would be killed.

Judgment

The court held the three of them liable for rape under Section 376 of IPC as at no point of time she willingly consented to the act. Also, the Apex Court laid down certain guidelines for trials in such cases:

• The delay in lodging an FIR is immaterial if it is properly explained.
• The testimony of the victim is vital in cases of sexual assault and if there is no special; reason to look for corroboration of her statement, the accused can be convicted on prosecutrix’s statement alone.
• The trial of sexual offence cases should be held in camera and by a lady judge.
• The Court should not make any observation that probably the prosecutrix is of loose character.
• The Court also has to see the victim is not getting harassed and humiliated in cross-examination during the trial.

Deelip Singh @ Dilip Kumar vs. State of Bihar ( 2004)

Facts

In this case, the accused and the victim were neighbors. They fell in love and the accused forced the girl for sexual intercourse. He promised her that he would marry her and continued to have sexual relations with her. The girl’s parents came to know when she became pregnant so they reported against him. He said that he never forced the girl and she was the one who consented.

Judgment

The man was held liable under Section 375 of IPC for rape. The judges said that the consent of the girl for sexual intercourse was obtained by fraud as he promised to marry her. The consent that is obtained by fraud committed with the victim is no consent.

Bhupinder Singh vs. U.T. Of Chandigarh (2008)

Facts

In this case, the accused and the victim worked in the same bank. After some time they married and started cohabiting in 1990. The victim was pregnant in 1991 and was asked to abort her child. She again became pregnant and during that time she learned from one of her husband’s friends that he was already married before marrying her. She tried to contact the accused after this but he was nowhere to be found. She filed a complaint against him.

Judgment

The Punjab & Haryana High Court held the accused liable under various sections of IPC including Section 376 for rape. The women had sexual intercourse with him only due to the reason that she considered him as her husband but in reality, he was not her legal husband.

BY: Aman Bijoriya ( 3rd Year, B.A.LL.B)