Aayush Bhardwaj

 INTRODUCTION : We are living in the 21^st century and in era in which the mankind has achieve something formidable even which beyond the imagination of the human kind and when it comes Indian scenario it has been claimed in Manusmriti that “The society that provides respect and dignity to women flourishes with nobility and prosperity. And a society that does not put women on such pedestal has to face miseries and failures regardless of how much noble deeds they perform otherwise” a nation with this theory must not report even a single case of exploitation or any kind of misconduct with even but the truth is something shocking and we as a member of a society must be ashamed off. As per the reports of NCRB¹ 2020, the number of women get raped per day is mammoth number of 77 and in every 16 minutes a women has been raped somewhere in India this is something deplorable. Even the Hindi word for rape is balatkar which is in itself so humiliating and terrible as per the official reports NCRB it is the 4^th most common crime in India. We are in the country which believes in the concept of MAATRI² DEVO BHAVAH it means worship women or mother and YATR NARYASTU PUJYANTE RAMANTE TATR DEVTA, YATRESTU N PUJYANTE SARVASTRAFLA KRIYA it means where women are honored, divinity blossoms there and where ever women are dishonored all action no matter how noble it may it will unfruitful and impious. But now both the concepts are seems to be diminished otherwise this scenario would not be like this making as ashamed. But the nature of rape is so exhaustive it cant be defined in a single definition. Infringement of this basic human right is a shame even after strong and stringent laws made by the government still it is existing in this way it shows something wrong in the psychic and quality of punishment by law.

 PROVISIONS DEALS WITH RAPE [DEFINITION AND

PUNISHMENT] : To have a better understanding of this concept first we need to understand the concept of sexual harassment. In landmark judgement of Vishakha and others V state of Rajasthan, the Supreme court of India stated the sexual harassment has led to violation of fundamental rights, article³ 14, 15, 19(1)g and 21 have been violated in sexual harassment further the court laid down elements that would establish a sexual harassment:

1. Physical contact and advances
2. Any demand of sexual favors
3. Any remarks on the body which is sexually coloured

1 NCRB REPORTS 2020

2 MANUSMRITI 3 INDIAN CONSTITUTION

1. Showing off pornography
2. Any other forcible physical, verbal or nonverbal conduct of sexual nature

Now we will talk about the provisions of rape in the Indian law, as we know the severity nature of rape as it has comes under the cognizable offence, the provisions deals with rape are as follows:

i. When we talk about Indian Penal Code 1860 : Section 375, 376A, 376B, 376C and 376D deals with rape. ii. When we talk about Criminal Procedure Section : 53(1)[4], 164A[5], 327(2)6 of CrPC deals with rape.

iii. Section 114-a[3] of Indian Evidence Act deals with rape.

Rape has been defined in the legal eyes in the section 375 of IPC⁴ 1860 as : A man is said commit rape if he:

1. Penetrates his penis in to the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons;
2. Inserts any object or a part of the body, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other persons; or
3. Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus o any part of body of such woman or makes her to do so with him or any other person; or
4. Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.

As stated above to constitute the act of rape must be committed by a ,man with a woman against her will and without her consent under any of the following 7 descriptions,viz..,

1. Against her will.
2. Without her consent.
3. With consent obtained by putting her or any other person in whom she is interested under fear of death or of hurt.
4. With consent but given under misconception of fact that the man was her husband.
5. Consent given by reason of unsoundness of mind, or under influence of intoxication o any stupefying or unwholesome substance.
6. When the women is under eighteen with or without her consent (previously itwas 16 only)
7. When the woman is unable to communicate consent.

But we also need to know that there are two exceptions of section 375:

1. A medical procedure or intervention
2. Sexual intercourse by a man with his own wife when she is not below 15 years of age.

4 SECTION 375 of INDIAN PENAL CODE 1860

Now we will discus about the punishment of rape in the Indian law:

1. Section 376 of Indian Penal Code 1860 states the punishment for rape that is imprisonment of not less than 7 years or which may also increase to life imprisonment along with fine too.
2. Section 376A it deals with the punishment in case of death for the haunting dormancy state of victim. In this scenario of the case the punishment will be 20 years which may extend to lifetime imprisonment.
3. Section 376B deals with with sexual intercourse of husband with wife during breaking up the marital bond or separation then the punishment will be minimum of two years along with fine which increase up to 7 years along with the fine as well.
4. Section 376C deals with punishment for the sexual intercourse done by the person in authority for which the punishment is minimum 6 years of imprisonment which increase up to 10 years along fine.
5. Section 376D deals with the punishment for the gang rape, for which the punishment will be minimum of 20 years or which may extend to lifetime imprisonment along with fine.
6. Section 376E stated the punishment of the repetition of crime by offenders for which the punishment is lifetime imprisonment or death penalty.
7. Section 228A[2] deals with provision that name of the rape victim will not revealed or made public and punishment for those who revealed the name of the rape victim for whom the punishment is minimum of 2 years of imprisonment and fine.

 LANDMARK JUDGEMENTS THAT LED TO THE

MODIFICATION ON RAPE LAWS IN INDIA  : The judgments that

led to the modification of rape law in India in this we will discuss the five landmark judgement are as follows:

I. Nirbhaya case⁵ : The Nirbhaya judgment of 2013 was considered to be the landmark judgments the unfortunate incident shook the whole nation to most extreme extent in that case, The Supreme Court broadened the definition of rape and also after the examining the facts the court ordered death sentence to for adults and the minor was sent to minor reform center for 3 years. Modification of definition of rape led to the penetration in any part of woman body part for which the punishment is not less than 20 years of imprisonment and death sentence severity of the scenario if it extreme it will be given.

5 www.ipleaders.in

1. State of Maharashtra V. Madhukar⁶ : In this case there was an inspector who was willing to have physical relations with one girl so he went to his place where she was residing, after which the complaint was filed which led to dismissal of inspector from his service. But the shocking thing was that High Court said that the women was of easy virtue so the decision was given in favour of inspector which was later overruled by the The Supreme Court by stating that any women even of easy virtue is eligible for her fundamental rights.
2. Sakshi V. Union of India : In this case the petition was filed by Sakshi and NGO in which they want to modify and redefine the meaning of rape. On this The Law Commission of India in 2000 altered the portion of the definition of rape. The term rape should be replaced by sexual assault and any form of penetration should be under the term sexual intercourse under definition section.
3. Vishakha V. State of Rajasthan⁷ : In this case there was women named Bhanwari Devi was gang raped by 5 men the reason was that she was preventing child marriage. After which she went to the Trial court where the court ordered that he 5 men were not guilty after that Vishakha and a group that works for women education and research took the the case of Bavaria Devi and filed petition in Supreme Court for sexual harassment at workplace, in which the The Apex Court held that Safety and security of women at workplace is a must and then concluded the matter by convicted the five accuse and gave a new definition of sexual harassment.
4. State V. Deepak : In this case it was stated by the session court judge that even if a women is a sex worker then it does not mean that there always acceptance for sexual intercourse even for that the ,man has to take the consent , being sex worker does not led to abolition of fundamental rights for such individual fundamental right is for all even here they have the right to be sought approval for such acts.

 CONCLUSION :  In conclusion to that we need to understand along with judiciary there something which has to be taken consideration that education that help individual to understand the distinction between good touch and bad touch after that there has to be a mandate which every must be given private defense classes so defend themselves in this there’s mission run by Grand master Shifuji Shaurya Bhardwaj named mission prahar that helps the girls and women basics self defense something of that must be mandatory. Now the has to make stringent punishment so that these shameful acts. But the pornographic has to be completely banned in the nation so that psyche can be countered, and also to have large number of female in the police service. The foremost important is upbringing of boy must be in such a way that his viewpoint for is like as scriptural as we discussed earlier. There has to be a legislation that assures the protection of women irrespective of the time only we can claim “SAARE

6 AIR 1991 SC 207, (1991) 1 SCC 57

7 (1997) 6 SCC 241

JAHAN SE ACHA HINDUSTAN HUMARA” otherwise it does not mean any sense if we fail to protect our integral part of society and curb out this sexual assaultive acts from the nation.