The Trajectory of Anti-rape Laws in India

Syllabus: GS1/Society/GS2/Polity & Governance

Context

• Chief Justice of India B. R. Gavai highlighted India’s evolving legal reforms aimed at better protecting sexual assault survivors and redefining consent.

Background

• Tukaram vs State of Maharashtra, 1979: Chief Justice of India B. R. Gavai recently termed the 1979 Supreme Court judgment an “institutional embarrassment”.
• The Supreme Court’s 1979 ruling showed three major failures:
  • Misunderstanding of consent: The Court treated absence of injuries as proof of consent, ignoring power imbalance and custodial coercion.
  • Ignoring socio-economic vulnerability: The Court did not consider the victim’s age, tribal background, poverty, and fear of authority.
  • Silence on police abuse & illegal detention: No condemnation of the police calling a minor girl at night or using a police station as a site of assault.
• A public letter highlighted the difference between consent and submission. It noted that the absence of resistance is not equal to consent. The letter triggered national outrage, galvanising legal reform.

Evolution of Legal Reforms

• Criminal Law Amendment Act, 1983: Introduced custodial rape as a specific offence under Section 376 IPC.
  • Shifted burden of proof onto the accused when sexual intercourse in custody is established.
  • First major recognition of power-based sexual assault.
• Vishaka Guidelines (1997): Laid foundation for workplace sexual harassment law.
• Criminal Law (Amendment) Act, 2013: In response to the 2012 Nirbhaya case, the amendments broadened the definition of rape as in Section 375 to include acts other than forcible sexual intercourse.
  • Most importantly, it clarified that silence or a feeble no by a woman cannot be translated as a ‘yes’. 
  • Besides, the amendments raised the age of consent from 16 to 18 years.
  • It made non-registration of FIR by police punishable.
  • Introduced penalties for hospitals denying treatment.
  • Provided the death penalty for extreme cases.
• Criminal Law (Amendment) Act, 2018: Death penalty for rape if the victime is a girl below 12 years.
  • Minimum 20 years of penalty if the victim is a girl below 16 years.
  • Fast-track investigation & trial timelines (2 months for investigation, 2 months for trial, 6 months for appeals).
• Bharatiya Nyaya Sanhita (BNS), 2023: Made sexual offences gender-neutral for victims and perpetrators.
  • Uniform death penalty/life imprisonment for gang rape if the victim is a women below 18.
  • Introduced offences like:
    • Sexual intercourse under false pretences.
    • Expanded definition of sexual harassment.

Significance

• Intervention by Parliament: The Mathura case is one of the clearest examples in India where a judicial misstep forced Parliament to intervene, correct course, and rebuild public trust in the justice system.
• Legislature acts as a democratic safety net: The evolution showed that the Parliament is responsive to public emotion and societal morality.
• Law evolves through Society Intervention: Reform came not because the system wanted it, but because citizens demanded it.
• Institutional checks and balances: The judiciary interprets law but when interpretation becomes unjust, the legislature intervenes with statutory change. This maintains public trust and systemic legitimacy.

Source: TH