(The article titled Legal Rights of Rape Victims is written by Priya Gupta, a third-year BALLB (Hons.) student from IIMT and School of Law)
INTRODUCTION
The law of rape is not just a few sentences it is a whole book that has clearly demarcated chapters and cannot be read selectively.
In the words of Justice Arijit Pasayat, while a murderer destroys the physical frame of the victim on the other hand the rapist defiles the soul of a helpless female…
Whether it is rape or sexual harassment or any other kind of crime against women, the object behind is the same and that is to dominate women for the fulfilment of desire and lust of another man leaving the victim in a devastating state which sabotages the integrity and confidence of the victim, physically as well as mentally. The offence of rape not only deprives the woman of her bodily autonomy but also violates the right to life enumerated under Article 21 of the Constitution of India.
If we see the countries which have the highest number of rape cases the first position is taken by the United States of America and the second position is taken by Brazil and India is the third-largest country with the largest amount of rape cases. According to National Crime Record Bureau (NCRB) annual report in the year 2018, 34,000 rape cases were determined, that is one rape case was reported every 15 minutes in India and the conviction rate was only 27 %.
It is believed that 54% of cases are still unreported. In one study of 57 countries of the United Nations, it is said that only 11% of cases of rape in India are reported. So before starting the rights of the rape victim let us understand the definition of rape as given in the Indian penal code, 1860.
As per section 375 of IPC, a man is set to commit the offence of rape with the woman under the following six circumstances:
- Sexual intercourse against the victim’s will.
- Without the victim’s consent.
- Third with her consent when her consent has been obtained by putting her or any person that she may be interested in fear of death or hurt,
- With her consent when the man knows that he is not her husband
- With her consent when at the time of giving such consent she was intoxicated or is suffering from unsoundness of mind and does not understand the nature and consequences of that to which she gives consent.
- With or without her consent when she is under 18 years of age.
- When she is not in a position to communicate the consent.
Now, in this article, we will get to know about the Rights of the Rape Victim, which is as follows:
- Right to zero FIR,
- Free medical treatment,
- No two-finger test,
- Right to hassle-free and time-bound investigation,
- Right to trial with full dignity, speed, and protection,
- The right to compensation.
1. Right to Zero FIR:
This concept came from came after the Nirbhaya case, when the committee of Justice Verma was made. The report of the committee let down the concept of zero FIR. The Delhi High Court, firstly, recognised this concept in Kirti Vashishth V. State and Others (date of order: 29/11/2017).
Also, in a five-judge constitution bench in the case of Lalita Kumari V. Government of Uttar Pradesh 2014 (2) SCC 1, it was held that an FIR can be filed anywhere or in any place or in any police station and that the FIR should be filed under the section 154 of Cr.P.C., 1973.
Also, there is a provision in law if any public servant does not do so or does not file the FIR it will come under section 166 of the Indian Penal Code. 1860 wherein, the officer will be charged with 6 months to 2 years of rigorous imprisonment plus fine or both.
2. Right to free medical treatment in any government or private hospital:
Herein, a private hospital is any private hospital or any type of expensive or low-cost private hospital. Under section 357 of the Code of Criminal Procedure, 1973 if a hospital rejects or does not allow the treatment of the rape victim or demands treatment fees from the victim then it shall be penalised under section 166 be of the Indian Penal Code, 1860. This provision states that the refusal of the treatment of the rape victim by any cause will amount to a punishment of 1-year imprisonment or fine or both.
3. No Two-finger Test:
The third is the no two-finger test by a medical examiner. This concept was added under section 164-A of the Code of Criminal Procedure, 1973. Supreme Court also agrees and referred to the provision in the case of Lillu Alia Rajesh & Another V. State of Haryana, citation 2013 (14) SCC 643. In this particular case mentioned above, it was held that the two-finger test violates the right of rape survivors to privacy, physical, mental integrity and dignity. Therefore, it was held illegal.
4. Harassment-Free Investigation:
According to Section 154 (1) of the Code of Criminal Procedure, 1973 the statement of the rape survivor shall be recorded by a woman police officer or any woman officer. The provision to support this is Section 154 (5-A) of the code of criminal procedure 1973, which mentions the recording of the statement of the rape victim.
5. The right to a trial with full dignity, speed and protection:
Under Section 26(a) of the Code of Criminal Procedure, it mentions that the trial of such cases shall be held by a woman judge as far as practicable. Also according to Section 53A of the Evidence Act, ‘evidence of character or previous sexual experience is not relevant in certain rape cases.’ Section 327 (2) of the Code of Criminal Procedure,1973, mentions that the trial of rape shall be conducted in camera and Section 327 (3) of the Code of Criminal Procedure describes the confidentiality of the case proceedings and it assures no publication of the subject matter of the proceedings.
Also, Section 173(1A) of the Code of Criminal Procedure,1973, states that the investigation of the police shall be completed within two months from the date on which the information was recorded. Under Section 309 (1) of the Code of Criminal Procedure, 1973, it is stated that a sufficient number of special courts shall be established exclusively for the trial of rape cases. Courts also need to hold their proceedings and give judgements within two months from the date of filing of the charge sheet. Section 230 of the code of criminal procedure provides for maintaining a trial program. This concept was also stated in a case law named State of Kerala V. Rasheed AIR 2019 SC 721. Also in a case named Mahendra Chawla vs Union of India (date of order 5/12/2018). The Honourable Supreme Court lays down the guidelines of the Witness Protection Scheme, 2018.
6. Right to Compensation:
The last and the foremost important right is a right to compensation from the state. A new provision was added which is known as Section 357 of The Criminal Procedure Code,1973. It provides the provision of the victim compensation scheme. Supreme Court directed and provided the guidelines which are responsible for framing a scheme for compensation in the case of Nipun Saxena v. Union of India. In a very famous case of Serina Mandal Alias Piyada V. The State of West Bengal and Others (Citation: 2018 SCC online Cal 4238), the Supreme Court held that and described that the compensation under Section 357 A of the Code of Criminal Procedure is given because the state has a duty to protect its citizens and since the rape has occurred therefore the state has failed in fulfilling its duties. Therefore, due to this, it caused the violation of the fundamental right of the rape victim which is guaranteed under Article 21 of the Constitution of India. Hence, the \ compensation is awarded. This concept was further applied in the case of Manohar Singh V. State of Rajasthan and Others (Citation 2015 (3) SCC 449), herein, it was held that the compensation can be given even if the crime goes unpunished for want of adequate evidence, the state shall provide for the compensation to the rape victim.
Some Landmark Judgements
- Vishaka & Ors. v. State of Rajasthan & Ors. [(1997) 6 SCC 241]
A social worker in Rajasthan, Bhanwari Devi, was brutally gang-raped by five men while saving a child from the evils of child marriage. Bhanwari Devi along with some other Organisations for women protection filed a petition relating to the issue of Sexual Harassment at the Workplace, before the Supreme Court of India. The Hon’ble Supreme Court in the landmark judgement laid down nine guidelines for the prevention of Sexual Harassment at the workplace thus providing a safe working environment for women.
- Laxmi Vs Union of India [(2014) 4 SCC 427]
In this case, Supreme Court imposed stringent laws on the sale of acids openly in the market and to curb acid attacks in the society. The acid dealers were now to have a valid identity proof and pass for the sale of the same. The selling of acid to a person below the age of 18 years was also made illegal.
- Mukesh & Anr. vs State for NCT of Delhi [(2017) 6 SCC 1](Nirbhaya Rape Case)
The horrifying case of Nirbhaya was one of the most brutal and inhumane gang rape cases which lead to an uproar of public movement on a large scale nationwide. In this case, a para-medical student while travelling with her friend was gang-raped by 6 men on the bus. She was subjected to physical assault, unnatural sex, mutilation of her private parts and further thrown out of the bus naked on the highway. There were serious fatal injuries in her privates and multiple organ failure which ultimately lead to her death. The Supreme Court of India, while referring to the doctrine of ‘rarest of rare’ awarded the death penalty to all the accused in this case. Following this case, multiple changes have been done in the rape laws of India and it also led to the enactment of the Criminal Law Amendment of 2013.
Conclusion:
As we have seen a number of cases dealing with discrimination, restrictions, violence and brutality against women, we can conclude that these types of criminal minds are actually evolving from our society only. Parenting and schooling are the parameters for the basic development of mankind. Therefore, they must include sex education, equality and respect to other genders along with academics. Government should also make some stringent laws and keep an eagle eye on the proper execution of the same.
Though there are various provisions either preventive or punitive in the criminal laws for the protection of women but with the development and growth in society and technology, there is a need for appropriate changes in the Indian legal framework to deal with these heinous crimes against women.
These were some important rights of the rape survivors. Although in India, the taboos and dogmatism are deep-rooted but to know our rights is highly recommended and also it is the need of the hour. This will certainly help those females who have become prey to such evil aspects and therefore, lead our nation to a better and developed society.
