My reaction on “Tukaram v. State of Maharashtra”
The word rape is derived from the Latin term “rapio”, which in literal sense means ‘to seize’. Thus rape, very loosely, means an act of forcible sexual intercourse with a female by a man without her consent. Section 375 of the Indian Penal Code 1860 defines rape. The present definition of rape is the resultant of public outcry after the infamous Mathura Rape Case. The section presently reads as under:
Mathura a tribal girl not more than the age of 14 to 16 years was raped by one of the two police officers as another policeman was too drunk to do so but he does molest that girl, when they were doing so she did not oppose them in the fear and even shouted for help. When she and her brother Gama walked to the trial court to demand justice they said that as she did not shout and not even opposed them also she was expected to have an intimate relationship with her lover Ashok so this is a case of consensual sex and not rape also there was no injury on her body. He called Mathura a “shocking liar” and stated that her statements “is riddled with falsehood and improbabilities”. The District Judge even went on to say that even though she had sexual intercourse, she was not subjected to rape. The Judge even went on to say she would have voluntarily surrendered her body the constable. I think in my opinion the judgment given by the judges of the trial court was not at all valid because if the girl even if she is having sexual intercourse more than once with the person she feels comfortable with or even more than one man but this doesn’t mean that it is a license to rape a woman because the above was with her consent and will but in this very case there is no such consent was given to the policeman to rape her. Even I feel that calling a girl a “shocking liar” by the judge is not the ethical thing just because there were no marks on her body and she did not oppose those very two police officers. But the High Court explains the difference between passive submission and consent. He said that in this particular case the girl gives the passive submission i.e. under the threat but not the consent. Also, HC held both the police officers guilty. I think that the High court gave a very reasonable judgment. But this also got challenged in the Supreme Court and hence both of the accused were acquitted. This judgment was criticized and therefore amendment was made in the Criminal Law in the year 1983.
The main point of the uproar has been the fact that this was custodial rape. The court conveniently ignored the fact that a woman may be subjected to custodial rape due to the fear of being beaten up or for the fear of the safety of her family members. Another point of the uproar has been the fact as per the medical evidence, there was no penetration, and thus the court concluded that she was not raped. The SC in Mathura’s case did not convict the accused persons because there was no actual penetration and no visible injury on the body of the girl.
I think if the judgment was given for this particular case now vs. then are far different and better from each other. As the present scenario is totally different from that of the earlier as there was no such comfort to the victim and her rights.
The Criminal Law (Amendment) Act 1983
Acting on huge public criticism of the judiciary in the inadequacy of the law of rape patent in a number of judgments of the Apex Court and its failure to safeguard the rights of the innocent victims against this crime, the Parliament, in 1983 and 2003, extensively amended the law of rape, to make it more realistic.
Those amendments are:
- A clause was added which talks about the unsound mind and intoxicated women clause sixthly to Section 375 IPC. It says that if a woman in any such condition gives the consent then that consent would not be considered valid.
According to me, this is a very nice interpretation as no women in this state would in their subconscious to give consent.
- New sections that talk about custodial rape were added i.e. from section 376B to 376D IPC. It talks about the rape under the custody of the police.
As per me, the incoming of these sections would help the women so that they could not be the victim of custodial rapes as well as this is done so that the protector of law should not break the law.
- The punishment for rape provided in Section 376 IPC is a minimum of seven years imprisonment under clause 1 and ten years under clause 2.Section 228A IPC prohibits the disclosure of the identity of victims in rape cases under sections 376, 376A to 376D, IPC.
According to me if the parents of the victim or victim herself want to disclose her identity then no one should have the right to disclose that as in our county there is a taboo that if the girl is raped then it’s she who loses her dignity, not the guy, so it is the very good amendment.
- The Evidence Act, 1872 was amended by inserting Sec.114A drawing a conclusive presumption as to the absence of consent of the woman in case of prosecution of rape under Sec 376 (2) clauses (a) to (g), IPC shifting the burden of proof of innocence on the accused.
This the very important clause as per this victim need not go through the procedure of proving herself true, it is the accused who need to prove himself innocent. So that she should not struggle.
- Section 327 CrPC which confers the right of an open court trial has been amended making the provisions for the trial of rape cases or an offense under Section 376A to 376D, IPC in the camera, and prohibition of publication of trial proceedings in such cases without the prior approval of the court.
Yes, this provision has opened the way that even the juvenile can communicate through the camera trail so that she should not face the real court which according to me that would be more comfortable than the real proceedings in the court.
Punishment for Rape after amendment in 1983
Punishment provision under section 376 also provided the clause for rape by police officials or the member of an armed force or any person in the management of the jail, remand home or another place of custody or woman’s or children institution or by the person on the management of the hospital or any other authority, with rigorous punishment of not less than 10 years but which may extend to imprisonment for life.
In this particular which is also known as Mathura Bai case, the girl could have real justice if she would be a girl of the 20th century. Moreover, she was a minor girl then the punishment would be more severe. Mathura Bai is the only girl that led to the amendment in the laws. But India is great in making laws but when it comes to its implementation our country needs to work a bit more.
Author: priyanshi bhardwaj,
Trinity Institute of Professional Studies