Rape stands as one of the most brutal and inhumane crimes, yet throughout much of history, it took a long struggle for it to be recognized as a violation of a woman’s bodily integrity and sexual autonomy. Historically, women were seen as property, and as a result, rape was viewed through the lens of property crime—an offense not against the victim herself, but against the man who “owned” her.
Over time, societal beliefs and norms shifted, prompting a redefinition of rape as a crime. In India, anti-rape laws find their roots in English common law, first formally addressed in the Indian Penal Code (IPC) in 1860. However, colonial-era biases persisted, such as Sir Matthew Hale’s 17th-century comment that rape was an “accusation easily made and hard to prove,” reflecting deep-seated prejudices against victims. Courts often focused more on questioning the woman’s credibility, scrutinising her sexual history and virginity, rather than seeking to establish the guilt of the accused.
Despite this, significant changes occurred as a result of several high-profile, brutal cases that spurred amendments to the law. The rise of the Women’s Movement further accelerated the push for change, bringing both societal awareness and legislative reform. This paper examines landmark cases like the Mathura, Delhi, Unnao, and Kathua rape cases, all of which contributed to key amendments in 1983, 2013, and 2018. It also highlights the influence of the Justice Verma Committee, which played a crucial role in advocating for reform following the Delhi rape case.
Rape remains one of the most prevalent crimes against women in India, with thousands of cases reported each year. According to the National Crime Records Bureau (NCRB), over 31,000 rape cases were registered in 2021, with a staggering majority of the perpetrators known to the victims. While some have characterized India as having a relatively low per capita rape rate, the issue remains pervasive, especially in certain regions, prompting ongoing efforts to improve both the legal framework and societal attitudes toward sexual violence.
Mathura rape case to delhi rape case
Over the decades, a series of brutal cases has led to significant changes in India’s anti-rape laws. One of the most pivotal cases in this evolution was the infamous Mathura rape case, which became a catalyst for public outrage and legal reform. The case involved Mathura, a young Adivasi girl allegedly raped by two policemen while in custody. The trial court initially acquitted the officers, concluding that while Mathura had engaged in sexual intercourse, it was not rape, citing her past sexual history as evidence of her “voluntary” consent. The High Court later reversed the decision, recognizing that her submission was the result of fear, but the Supreme Court’s final verdict again acquitted the accused, arguing there was no physical evidence of resistance, such as injuries, and no signs of alarm. This ruling sparked national protests and led to widespread criticism of the legal system’s understanding of “consent.”
The outrage was not limited to the streets. Legal scholars and activists, including Upendra Baxi, Lotika Sarkar, Vasudha Dhagamwar, and Raghunath Kelkar, published an open letter to the Chief Justice of India, challenging the court’s interpretation of consent. They emphasised that submission under duress or fear cannot be equated to genuine consent. This marked the beginning of a nationwide feminist movement, with groups like the Forum Against Oppression of Women in Mumbai calling for a review of the case. The protests, coupled with a rising number of custodial rape cases, such as those involving Rameeza Bee and Maya Tyagi, forced a reexamination of India’s rape laws.
In response to the public outcry, the Criminal Law (Second Amendment) Act of 1983 was passed, introducing key reforms aimed at addressing custodial rape. New provisions were added to the Indian Penal Code, such as Sections 376-B, 376-C, and 376-D, which specifically dealt with custodial rape cases. Additionally, Section 114A was inserted into the Indian Evidence Act, shifting the burden of proof onto the accused in cases where the victim claimed lack of consent. This represented a significant step forward in ensuring that victims would no longer be subjected to unjust scrutiny regarding their sexual history or behaviour during trials. The introduction of Section 228A also prohibited the disclosure of a rape victim’s identity, further protecting survivors from public shame and stigma.
While these reforms were significant, they did not entirely eliminate the biases present in the judicial system. On the one hand, progressive judgments like the 1996 Supreme Court ruling in The State of Punjab v. Gurmit Singh & Ors recognized the psychological and emotional devastation caused by rape, noting that it was not merely a physical assault but an act that destroyed the very soul of the victim. The court also stressed the need for sensitivity in handling rape cases, especially during cross-examination, to prevent further victimizing survivors. This demonstrated a shift towards more compassionate legal practices.
However, the battle for justice was far from over. In many instances, courts continued to exhibit a deeply patriarchal mindset. One such example was the case of Bhanwari Devi, a Kumhar woman who worked as a social worker, or sathin, challenging traditional practices like child marriage. As a result of her activism, Bhanwari was gang-raped by upper-caste men, but the court shockingly acquitted the accused. The ruling stated that “an upper-caste man could not have defiled himself by raping a lower-caste woman,” reinforcing casteist and misogynistic attitudes. This judgement drew widespread condemnation and highlighted the deeply ingrained biases within the judicial system.
Although Bhanwari Devi never received justice for her assault, her case had a lasting impact on the legal landscape. Activists filed a public interest petition in the Supreme Court, arguing that Bhanwari’s rape was directly linked to her work as a social worker, which had angered her attackers. In response, the court issued the Vishakha Guidelines in 1997, setting out clear norms to protect women from sexual harassment in the workplace. These guidelines were a landmark achievement, laying the foundation for future legislation, including the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013.
While legal reforms have undoubtedly progressed, the journey towards gender justice in India remains fraught with challenges. Despite the amendments and new laws, deeply entrenched patriarchal and casteist mindsets continue to hinder the effective implementation of these reforms, as seen in judgments like Bhanwari Devi’s case. Addressing these societal and cultural attitudes is essential if true justice for rape survivors is to be achieved.
The nirbhaya rape case
In 2012, the horrific Delhi rape case shocked the entire nation, revealing the darkest depths of human cruelty. A young woman, later named Nirbhaya by the media to protect her identity under Section 228A(2) of the Indian Penal Code, was brutally gang-raped by six men on a bus in Delhi. The savagery of the attack was beyond comprehension.. Not only was she sexually assaulted, but her internal organs were severely damaged, and her private parts were mutilated in an unimaginably brutal manner. The perpetrators treated her as nothing more than an object, subjecting her to their twisted and perverse desires. Their actions left her in critical condition, suffering immense physical and emotional trauma. Despite receiving every possible medical treatment, the injuries she sustained were too severe. On December 29, 2012, she succumbed to her wounds in a Singapore hospital.
This case not only shook India but also sparked international outrage, bringing attention to the issue of sexual violence against women. The gruesome details of the crime ignited widespread protests across the country, with citizens demanding justice for Nirbhaya and reforms in the laws that governed crimes of sexual violence. The brutal nature of the attack and the courage with which Nirbhaya fought for her life touched millions, symbolising a broader fight against the mistreatment of women in society.
In September 2013, four of the accused were convicted of charges including rape, kidnapping, murder, and destruction of evidence.They were sentenced to death, a choice that was maintained by the Apex Court in 2017. The Court classified the case as a “rarest of uncommon” occasion, where the seriousness of the wrongdoing legitimised capital discipline. One of the accused, Ram Singh, allegedly took his own life while in Tihar Jail. The juvenile involved in the crime, due to his age, was sentenced to three years in a reform home under the Juvenile Justice Act, sparking debates about whether juveniles should receive harsher punishments for particularly heinous crimes.
The Nirbhaya case became a turning point in India’s legal and societal landscape, triggering legal reforms and a shift in public consciousness around the issue of gender-based violence. It spurred the government to introduce stricter laws against sexual assault, leading to the passing of the Criminal Law (Amendment) Act in 2013. The case also forced a national conversation on issues such as the treatment of women, the role of law enforcement, and the accountability of the judicial system in dealing with crimes against women.
Shakti mills gang rape case
In August 2013, a shocking incident occurred in the Shakti Mills compound in South Mumbai, where a 22-year-old photojournalist, interning with an English-language magazine, was gang-raped by five individuals, including a juvenile. She had been visiting the deserted area near Mahalaxmi for an assignment with a male colleague when the attack took place. This crime sent shockwaves across the country, particularly because Mumbai, with its vibrant nightlife, had long been regarded as a relatively safe city for women.
The case was swiftly brought to trial, and the city sessions court found all the accused guilty. Three of the perpetrators, who were repeat offenders, were sentenced to death under the newly introduced Section 376E of the Indian Penal Code, becoming the first individuals in India to receive this punishment. However, on November 25, 2021, the Bombay High Court reduced the death sentences to life imprisonment.
This case stirred widespread outrage and led to debates about women’s safety in urban spaces, legal reforms, and the broader issue of violence against women in India.
Kathua and unnao rape case
On January 17, 2018, an appalling crime occurred in Rasana village, located in the Kathua district of Jammu and Kashmir, where an 8-year-old girl named Asifa was brutally raped and murdered. The crime gained national attention in April 2018 when charges were brought against eight men involved in the incident. The arrest of the accused provoked protests from various groups, including one rally attended by two ministers from the Bharatiya Janata Party (BJP), both of whom later resigned due to the public backlash. The heinous crime, along with the support shown for the accused, ignited widespread outrage across the country.
Similarly, the Unnao rape case also stirred national anger. The case involved Kuldeep Singh Sengar, a legislator, accused of raping a 17-year-old girl in 2017. In 2018, the victim’s father was captured beneath the Arms Act and afterward passed on in care after supposedly being beaten by Sengar’s brother and others. That same year, a key witness, Yunus, passed away and was hastily buried by his family without an autopsy or police notification. While Yunus’ family insisted he had died of natural causes due to illness, suspicions arose. Meanwhile, the victim’s uncle was imprisoned in 2018 for a gun-firing incident that had occurred 18 years prior. Tragedy struck again in 2019 when a truck with blackened licence plates collided with the car carrying the victim, her lawyer, and family members. The crash killed her paternal and maternal aunts, leaving the victim and her lawyer critically injured. At the time of the crash, the security officers assigned to protect the victim were notably absent, with the explanation that the vehicle lacked space for them.
Both cases underscored the deep flaws in the justice system and sparked national debates on the treatment of victims of sexual violence in India.
Justice verma committee report
Following the nationwide protests and widespread outrage after the Nirbhaya case, the government responded swiftly by forming the Justice J.S. Verma Committee to propose changes to criminal laws, particularly those concerning sexual crimes. The committee’s recommendations covered a broad spectrum of issues related to sexual violence.
One of the key suggestions was the removal of the exception for marital rape. The committee emphasised that the relationship between the accused and the victim should not influence the determination of whether consent was given, stating, “the relationship between the accused and the complainant is not important to the request into whether the complainant agreed to the sexual action.” The committee too critiqued the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Bill, 2012, particularly criticizing the structure of Internal Complaints Committees. It argued that these committees undermined the purpose of the bill, recommending instead the establishment of employment tribunals to handle such complaints.
Regarding punishments for rape, the committee advocated for a graded system. It recognized that while all rape is morally reprehensible, the degree of physical and emotional trauma can vary. The committee noted that in some instances, victims could recover with the appropriate societal support and resume a normal life. They explained, “we do not say that such a situation is less morally depraved, but the degree of injury to the person may be much less and does not warrant punishment with death.” The committee also reviewed data from the Working Group on Human Rights, which highlighted a consistent decline in the murder rate in India over the past two decades, even as the execution of death sentences slowed since 1980. Based on this, the committee suggested that introducing the death penalty for rape may not serve as an effective deterrent. Many scholars, women’s rights advocates, and stakeholders echoed this sentiment, viewing the death penalty as a backward step in terms of sentencing and rehabilitation. However, the committee did suggest life imprisonment for serious offenders, ensuring they remain in prison for the rest of their lives.
The committee also recommended new criminal offences be added to the Indian Penal Code, including voyeurism, stalking, and intentional non-consensual touching. It further advised against the use of the “two-finger test” during medical examinations of rape victims. The report clearly stated that “the size of the vaginal introitus has no bearing on a case of sexual assault” and that conclusions such as being “habituated to sexual intercourse” should not be drawn from this test, as it is both irrelevant and forbidden by law.
In addition to these legal reforms, the committee underscored the importance of gender equality and proposed a separate Bill of Rights for women. The draft of this Bill emphasised that “Every woman shall be entitled to respect for her life and the integrity and security of her person. All shapes of viciousness, abuse, pitiless, barbaric or debasing discipline and treatment focusing on ladies are disallowed.”
The criminal law amendment act 2013
In line with the recommendations of the Justice Verma Committee, the Criminal Law Amendment Act of 2013 came into effect on February 3, 2013, introducing significant reforms in the Indian Penal Code (IPC) of 1860, the Code of Criminal Procedure of 1973, and the Indian Evidence Act of 1872.
One of the most crucial changes brought about by this amendment was the expansion of the definition of rape. Prior to this, the legal definition of rape was limited to penile-vaginal intercourse. However, the amendment replaced Section 375 of the IPC and broadened its scope by including all forms of bodily penetration under the crime of rape.
The changed Area 375 presently characterises assault as the act of a man entering, to any degree, the vagina, mouth, urethra, or butt of a lady with his penis or causing her to do so with him or another individual. It also includes the insertion of any object or body part, not being the penis, into these areas or causing her to do the same, or any form of manipulation leading to such penetration. Additionally, the act of applying his mouth to these parts of a woman or making her do so with him or another person is also considered rape.
The revision moreover presented a clear definition of assent, indicating it as “an unequivocal intentional understanding when the lady, through words, signals, or any shape of verbal or non-verbal communication, indicates her willingness to engage in the sexual act.” Furthermore, the age of consent was raised from 16 to 18 years.
Section 376(2) was broadened to include instances where members of the armed forces deployed in specific areas commit rape. A new provision, Section 376A, stipulated that if rape resulted in the victim’s death or placed her in a persistent vegetative state, the perpetrator would face rigorous imprisonment for no less than 20 years, up to life imprisonment, which would mean the remainder of their natural life, or the death penalty. Section 376B made it an offence for a husband to engage in sexual intercourse with his wife during a period of separation, carrying a punishment of 2 to 7 years in prison, along with a fine. Section 376C addressed sexual acts by individuals in positions of authority, such as those in fiduciary relationships or public servants, with a punishment of up to life imprisonment. A new Section 376D was introduced to penalize gang rape, with a minimum sentence of 20 years that could extend to life imprisonment, along with a fine. Section 376E presented harsher punishments for rehash wrongdoers, counting life detainment or the passing punishment.
While the amendment was a landmark step towards curbing violence against women, it faced criticism for not incorporating certain recommendations of the Justice Verma Committee. These omitted suggestions included making sexual assault laws gender-neutral, disqualifying politicians accused of sexual offenses from running for office, and criminalizing marital rape. Despite these shortcomings, the passage of the act marked a significant moment in the fight for women’s rights and legal protections against sexual violence.
The criminal amendment act, 2018
The Criminal Law Amendment Act of 2018 brought significant changes to various legal provisions, including the Indian Penal Code (IPC), the Indian Evidence Act of 1872, the Code of Criminal Procedure of 1973, and the Protection of Children from Sexual Offences (POCSO) Act of 2012.
Key amendments were made to sections 166A, 228A, and 376 of the IPC, while three new sections—376 AB, 376DA, and 376 DB—were introduced. The amendment to Section 376(1) increased the minimum punishment for rape to no less than ten years, which can extend to life imprisonment, along with a fine.
A new sub-section, 376(3), was added, prescribing a minimum punishment of twenty years for the rape of a woman under the age of sixteen. This sentence can be extended to life imprisonment and includes a fine.
Section 376AB, inserted after Section 376A, addresses cases involving the rape of a girl under twelve years of age. It mandates a minimum sentence of twenty years of rigorous imprisonment, which can be extended to life imprisonment, and includes the possibility of a death sentence, along with a fine.
Section 376DA, added after Section 376D, deals with gang rape involving a victim under sixteen years of age. It stipulates that each person involved in such an act will be punished with life imprisonment and fined.
Section 376DB, concerning gang rape of a girl under twelve years of age, establishes that all participants in such an offense will be sentenced to life imprisonment or death, along with a fine.
These amendments reflected a more stringent approach to sexual crimes, particularly those involving minors, with a focus on harsher penalties and broader protections for vulnerable victims.
The Kolkata doctar rape case
In recent times, the horrific rape and murder of a postgraduate trainee doctor in Kolkata has shed light on the continuing challenges faced by victims of sexual violence. This case, which occurred in August 2024, led to widespread public outrage, sparking protests from medical students and staff, who demanded accountability and justice. The victim’s family accused the police of a cover-up, alleging that authorities cremated the body hastily and offered bribes to keep them silent. This led to the case being transferred to the Central Bureau of Investigation (CBI) after significant public pressure and legal intervention.
This case highlights not only the shortcomings of law enforcement in handling such crimes but also reflects the deep-seated patriarchal attitudes still present in society. Despite legal reforms and stricter laws introduced to protect women, cases like this expose how systemic failures continue to perpetuate injustice. The authorities’ initial mishandling of the case points to a critical need for institutional reforms in how rape cases are investigated and prosecuted.
The ongoing public protests surrounding the Kolkata doctor case emphasise the need for a societal shift that, alongside legal reform, can work to eliminate the stigma and victim-blaming culture that often deters the pursuit of justice. In this light, the case acts as a sobering reminder of the distance yet to be travelled in India’s journey toward gender justice.
Continuing struggle of women in courts
Despite the long, painful struggle of the women’s movement and the creation of progressive laws, numerous court judgments still reflect deeply ingrained patriarchal and misogynistic attitudes. These judgments reveal the biases that persist in legal systems, undermining the progress made toward gender justice.
In the case of Mahmood Farooqui v. State (Govt of NCT of Delhi), the Delhi High Court overturned the trial court’s conviction and acquitted the accused. The court’s ruling on the issue of consent stirred controversy as it suggested that a feeble “no” might imply consent. The judgement stated that in relationships where parties know each other or have had prior physical contact, it can be challenging to interpret whether a hesitant or weak “no” truly signifies a lack of consent. This reasoning is problematic, as it weakens the understanding of consent and introduces ambiguity into what should be a clear concept.
Such judgments uncover the blemishes in the “no implies no” approach customarily taken by courts, where sexual action is anticipated to halt once a “no” is communicated. However, when courts fail to recognize the importance of a clear “no” or suggest that a weak refusal could be interpreted as consent, they undermine the very notion of consent. A shift in judicial perspective is necessary, with the adoption of a “yes means yes” approach to sexual consent, ensuring that only an affirmative, conscious, and voluntary agreement can validate the act.In the U.S., California got to be the to begin with state to present a “yes implies yes” law, requiring that assent for sexual action be certifiable and voluntary. This redefinition is a much-needed shift from the traditional “no means no” mindset.
There have also been instances where rape survivors have been pressured by police, courts, and even family members.For illustration, in a questionable administering, the Madhya Pradesh Tall Court allowed safeguard to a man denounced of attack, with the condition that he would permit the survivor to tie a ‘rakhi’ on him amid Raksha Bandhan. This decision trivialised the trauma faced by the survivor and reinforced a regressive attitude towards gender justice.
Similarly, in Vikas Garg & Others v. State of Haryana (popularly known as the Jindal University rape case), The Punjab and Haryana High Court granted bail to the accused, but in doing so, the court made patriarchal remarks about the victim’s character, describing her behaviour as “promiscuous.” The court remarked that the case reflected a “degenerative mindset” among youth, involving drugs, alcohol, and casual sexual relationships, thereby shifting the focus away from the crime and onto the victim’s lifestyle choices.
In another troubling case, the Karnataka High Court, while granting bail to an accused in Rakesh B v. State of Karnataka, remarked that the victim’s behaviour—falling asleep after the incident—was “unbecoming of an Indian woman,” further perpetuating regressive stereotypes and questioning the survivor’s response to the trauma.
These judgments highlight how the patriarchal mindset within the judiciary often exacerbates the suffering of survivors, subjecting them to character assassination and moral scrutiny instead of addressing the crime itself. Our society still focuses on advising women on how to dress or behave “appropriately” to protect themselves rather than addressing the need to educate men on the gravity and consequences of sexual violence. These legal decisions demonstrate that, despite progress, societal attitudes toward sexual violence and consent still need significant transformation.
Conclusion
Over the years, the issue of rape has largely been addressed by the government in reaction to public outcry, usually following particularly horrific incidents. This reactive approach has left our system lacking in its ability to provide victims with a truly safe and supportive environment. Despite various progressive reforms in legislation, certain critical issues—such as marital rape and gender neutrality in rape laws—remain unresolved, even though they were highlighted by the Justice Verma Committee and demand urgent attention.
Many court cases have exposed inconsistencies and ambiguity in judicial rulings. For instance, the Farooqui case undermined years of legal progress, echoing the setback seen in the infamous Mathura case from 38 years ago. Such decisions illustrate how deeply rooted patriarchy still influences societal norms and judicial perspectives. The lingering effects of colonial-era attitudes are evident, and the status of women in society continues to be constrained by these outdated mindsets.
Countless instances of sexual assault remain unreported due to the victim’s fear of social stigma and humiliation. Survivors often face harassment at every stage of seeking justice, from police stations to courtrooms. The trauma is compounded by deficiencies in the healthcare and law enforcement systems, making the pursuit of justice an additional burden. Social attitudes, too, play a significant role in hindering justice for victims. Therefore, the true impact of legal reforms can only be achieved if societal change accompanies legislative progress.
Author: Chetan Hingsley, a 2nd-Year BALLB Student at VSSD College, CSJM University.
