The various inconsistencies of law on Aggravated rape in India.
Sanskruti Yukta Nayak
The absence of a definite statutory provision on aggravated rape has led to numerous erroneous and whimsical judicial outcomes that are inconsistent with social realities and result in faulty precedents. This paper explores the need for a separate section on aggravated rape in light of the current socio-economic conditions of the Indian society. Further, the paper argues that the lack of a uniform definition of aggravated rape has not only led to interpretation problems in various judicial outcomes but has also blurred the periphery of aggravated rape from other forms of rape resulting in definitional ambiguities and misinterpretation. Furthermore, this has led to courts restricting their interpretations to “penetration” and “skin to skin contact” although this goes against the very essence of aggravated rape which is dependent on power dynamics involved in the victim-perpetrator relationship. Moreover, this paper makes a case for the inclusion of socio-economic realities into the framework of aggravated rape which is lacking in the current provision leading to issues of lack of gender neutrality and inclusivity of sufferings of vulnerable groups in the society.
Although Indian statutes do not lay down any uniform definition for aggravated rape, however, it might be interpreted as accounting for the exacerbated circumstances of rape in light of certain aggravating factors. Different jurisdictions and legal frameworks have different interpretations and definitions of what constitutes an aggravated rape. For instance, the Council of Europe Convention on preventing and combating violence against women and domestic violence lists eight situations that constitute aggravating factors for an assault, including repetitive wrongdoing, extreme violence, and the use of a weapon to threaten the victim or survivor. Both POCSO and IPC lay down circumstances constituting aggravated rape under broader definitional ambit of aggravated sexual assault. POCSO, which outlines aggravated sexual offences against a child, establishes circumstances for aggravated sexual assault which would include assault by somebody in a position of authority or by causing grievous injury by using dangerous weapons. Section 376(2) of the Indian penal code establishes a set of graded punishment for certain aggravating circumstances. This section's aggravating circumstances are identical to those in POCSO, and are focused on the victim-perpetrator interaction, the age of the victim, etc. Despite this extensive list distinguishing sexual assault and aggravated sexual assault, the Indian legislations does not define aggravated rape. Instead, the aggravating circumstances are contained in the provision related to punishment of rape in IPC. Despite the recommendations of Verma Committee to include a separate provision for punishment of aggravated rape after the gruesome Nirbhaya rape case which shook the conscience of the nation and redirected our focus on the definitional ambiguity in our current rape laws, the legislature failed to create a distinct provision to account for aggravated rape.
The Verma Committee recommendations correctly pointed out that “rape is an expression of power rather than a ‘crime of passion’.” Numerous cases of aggravated rape like Kathua rape case and Mathura rape case reaffirm that an offence like aggravated rape has a vast correlation with power dynamics and its influence on victim-perpetrator relationship.
Therefore, this paper argues that in a country like India where there are varying power hierarchies and social identities, the provisions related to aggravated rape should be inclusive of these socio- economic realities. This paper tries to broaden this argument by pointing out several flaws with the current definition and judicial approach related to aggravated rape. Although the current provisions related to aggravated rape tries to include exploitation by persons in position of “power and authority” in its ambit, it fails to define terms like “control” and “dominance” and opens floodgates to misinterpretations of the provisions. The paper analyses and argues for a standard broad definition of aggravated rape, the absence of which leads to misinterpretation of the provision. Further, the current provision related to aggravated rape in IPC blurs the distinction between rape simpliciter and aggravated rape. The problems with the interpretations of the provisions are exacerbated by the courts' erroneous use of the 'penetration' test, which has resulted in the undermining of features of power dynamics that are crucial in the offence of aggravated rape. Further, this paper makes a case on how vulnerable castes and groups are often caught in the existing power dynamics of the society which paves its way into their systemic sexual violence and explores the need of a separate provision for them in the framework of aggravated rape.
II. Subsisting legislative provisions and the approach taken by the Court in cases of aggravated rape
The provisions relating to aggravated rape have been enlisted under the ambit of aggravated sexual assault in both POCSO and IPC. IPC explores circumstances under which an offence can be included under an aggravating case of sexual assault and prescribes a higher degree of punishment which extends from 10 years to life imprisonment under section 376(2). Furthermore, Section 114A of the Evidence Act specifies that in case of an aggravated rape, if sexual intercourse is proven and the woman claims that she did not consent, it would be assumed that she did not consent. The circumstances of aggravated sexual assault underneath the POCSO Act are much broader than that of the IPC. The act widens the ambit of aggravated sexual assault by not restricting it to the “test of penetration” which assess whether any explicit penetration inside the victim’s vagina has taken place in order to determine cases of aggravated rape. While Section 6 of POCSO specifies punishment for Aggravated penetrative sexual assault, Section 9 of the Act elaborates on the punishment for aggravated cases of sexual assault.
The concept of aggravated rape has evolved through judicial decisions and dilemmas. The Delhi High Court in Mohd. Habib v. State let a rapist off the hook simply because there were no indications of physical damage, which the Court assumed to mean that there was no resistance. The Court ignored the various relevant details and focused on narrow standards of interpretation. As a result, the first substantial revisions were enacted in 1983, when the Legislature stated that aggravated rape should be punished more severely. The initial framework related to aggravated rape was influenced by the Mathura rape case where policemen raped an Adivasi girl and upon filing of a case, the lower court gave a controversial judgement indicating that the victim was ‘of loose morals’ which invigorated the entire nation resulting in the closer examination of laws related to aggravated rape. Further, the heinous nature of Nirbhaya rape case forced the policymakers to redirect their attention to the definitional flaws in the provision related to aggravated rape. This led to the criminal law amendment act 2018 which broadened the concept of 'penetration' beyond vaginal penetration and included newer standards of interpretations of aggravated rape. Despite this, various judgements of the court, in the recent past have restricted the interpretation of this provision to the test of ‘penetration’ resulting in numerous ambiguous judicial precedents. The Apex Court in the case of Tarakeshwar v State of Bihar has observed that penetration is sine qua non to constitute an offence under Section 375 and 376 of IPC. It goes on to state that no offence of aggravated sexual assault can be made out unless there was “penetration to some extent”. Further, the Apex Court stresses on “clear and cogent evidence” in order to prove penetration while making a case for aggravated sexual assault.
III. Legislative deficit and inconsistencies in the approach adopted by courts in cases of aggravated rape
On evaluating the provisions of aggravated rape in our statutes and approach taken by the courts, the argument furthered in this section is that the lack of a uniform broad definition of aggravated rape opens floodgates of misinterpretation by courts resulting in faulty precedents. This section examines how different standards of punishments across POCSO, IPC and other legislations have led to interpretational ambiguity among courts resulting in narrowing down of the provision according to the whims and fancies of the judges. This argument is furthered by explaining how the current amendments to the section which resulted in increasing the minimum punishment for all forms of rape to be 10 years has resulted in blurring the definition between simple rape and aggravated rape which goes on to complicate the issue related to punishment of the accused. Therefore, this section further analyses the various disparities across statutes while assessing cases of aggravated rape. Further, this section analyses how the ‘test of penetration’ is flawed and harmful in deciding cases of aggravated rape. In such circumstance, the vulnerability of various groups are further widened when the courts go on to ignore the existence of power dynamics in the society. Therefore, this section tries to make a case for the inclusion of socio-economic realities and the power dynamics as important factors in assessing cases of aggravated rape.
A. Inconsistency and ambiguity in punishment across various statutes
Justice Verma Committee report puts across a uniform definition related to aggravated rape for the first time by defining aggravated rape as “inclusive of all stages of affront to human dignity which is the quintessence of human rights, beginning with any act with a sexual overtone.” The committee recognized the disparity and inconsistency of laws related to aggravated rape and recommended the creation of a separate section related to aggravated rape but the Criminal Law Amendment Act 2018 adopted the term 'sexual assault' instead of 'rape,' and rejected the Verma Committee report's recommendations.
The lack of a uniform provision has led to different definitions across different statutes. While the Indian Penal Code defines circumstances of aggravated rape in Section 376(2), the framing of the section makes it sex-specific. The lowest punishment for aggravated rape in this section is 10 years and it can extend upto life imprisonment in certain categories. On the other hand, Section 9 of POCSO lays down a minimum punishment of 5 years for cases concerning aggravated sexual assault and makes the offence of aggravated sexual assault gender neutral unlike the penal code. Further, the Transgender Persons (Protection of Rights) Act 2019 punishes sexual abuse against trans genders with six-month to two-year prison sentence and fine. However, assault against a trans person is not considered an aggravating circumstance by the IPC which excludes the provisions of aggravated rape defined in the code to be applied in case of transsexual and intersex individuals.
Furthering the argument, the disparity across statues related to provisions of aggravated rape not only trivializes and excludes people on the basis of gender identities but also undermines the power dynamics based on the victim-perpetrator relationship which is a major criterion to decide any case based on aggravated rape. Inflicting different standards of punishment across statutes gives free hand to the judges to broaden the biases and vulnerability existing in the Indian society making the offence of aggravated rape gender specific and exclusionary when, in fact, it’s not. Further, the word "person in a position of authority" used in the provision related to aggravated rape is undefined, which might lead to a paternalist legal condemnation of women's sexual choices. The terms 'control' and 'dominance' aren't defined either. The Sexual Violence Bill of 2010, formulated by feminists, describes them as "situations of religious, ethnic, linguistic, caste, and class dominance, including both formal and informal employment situations such as landlord-agricultural laborer, contractor-laborer, and employer-domestic worker." Therefore, the narrow framing and definitional ambiguities of the provision related to aggravated rape makes it exclusionary and prone to misuse.
B. The dilemma of differentiation between simpliciter rape and aggravated rape in IPC
A thorough reading of sections 375 and 376 reveals a distinction between rape simpliciter, which is penalized under section 376 (1) of the IPC, and aggravated forms of rape, which is prosecuted under section 376 (2) of the IPC. The first type of rape establishes the fundamental offence of rape and recommends a lesser sentence. The latter kind of rape, as defined by section 376 (2), includes 14 scenarios in which the nature of the rape is deemed more serious due to the inclusion of an aggravating feature, and so carries a harsher penalty. Prior to the amendment, the minimum sentence for rape simpliciter was seven years in jail. The amendment, on the other hand, has increased the minimum punishment from seven to ten years.
The new law's most concerning feature is that it eliminates the demarcation around rape simpliciter and aggravated rape. Logically speaking, any aggravating element, as listed in 376 (2) should have deserved a harsher punishment. However, after the amendment, both types of rape will face the same minimum penalties. There appears to be no reasonable reason why rape simpliciter should be punished the same way that aggravated rape is. Furthermore, if the IPC system recognises categorization based on the aggravated character of the offence, then the punishment should be proportionate to that classification. Even though the amendment stipulates a higher penalty of ten years in prison for aggravated forms of rape, this does not negate the fact that the incorporation of mandatory minimum punishments lumps all forms of rape together, whether simple or aggravated. Many problems remain unaddressed and unanswered as a result of the failure to engage with the topic of graded punishment for rape which has blurred the distinction between various kinds of rape and its subsequent punishment.
C. ‘Test of penetration’ - implicit harms and consequences of the method of determination used by courts
Although the recent amendments to aggravated sexual assault has expanded the ambit to include non- penetrative assault under IPC and POCSO, the courts continue determining cases based on narrow tests of ‘penetration’ and ‘touch’. Recently, the Bombay High Court in a case concerning the groping of a minor held that “The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside the top and pressed her breast, would not fall in the definition of aggravated ‘sexual assault’” when in reality the proximity of the relationship shared by the accused and the victim fell under the category of aggravated sexual assault. This trivial approach of the court not only limits the criterion of aggravated rape to narrow categories of ‘penetration’ and ‘touch’ but also undervalues the power dynamics that form a crucial part of aggravated rape.
Another case which shows the narrow interpretation of the section is a case in which after allegedly leading an underage boy into a temple, the boy was forced to have oral sex. The attack was exacerbated under POCSO Act since the victim was a youngster under the age of 12 but the court refused to categorize it under aggravated sexual assault, even though there was a clear power dynamics involved between the victim- perpetrator relationship since the victim was a minor boy. These cases go on to show that the courts fail to realize the power dynamics involved in cases of aggravated rape by reducing the provision to narrow categories of ‘penetration’ and ‘touch’.
IV. A case for inclusion of socio-economic realities and power dynamics in the framework of aggravated rape
The section analyses the Verma Committee’s recommendation to include ‘marital rape’ as an offence under aggravated rape. Marriages result in creation of power dynamics and marital rape is an abuse of the same which has been analyzed in this section. The Verma Committee recommendations correctly identified that “rape is an expression of power rather than a crime of passion”. Although, the statute on aggravated rape takes into account the exploitation of power by people in positions of ‘control’ and ‘authority’, it does not account for various social considerations. Therefore, the argument furthered in this section is that the framework related to aggravated rape should be inclusive of socio-economic realities and power hierarchies that exist in the society.
The section also expands upon the need for separate provisions of aggravated rape for socio-economically vulnerable groups. Sexual assault against women from marginalized socioeconomic groups is not classified as an aggravated offence by the IPC or the POCSO. Recognizing that women from Dalit, Adivasi, and Muslim families encounter countless forms of oppression based on gender, caste, and faith, Oxford Pro Bono Publico recommended that the Indian state should provide for a separate offence of "aggravated rape or sexual assault" for socially vulnerable groups.The current legislation for sexual assault does not take into account the different levels of vulnerability of different groups. The penal code, for example, considers sexual assault and rape as sex-specific offences, with only adult (cis)women being recognized as rape victims. Its scope does not include men or people from LGBTQ community which is in stark disregard to the social realities of the country. In a country like India where there is vast disparity in power dynamics and social standing, the framework of aggravated rape should be inclusive of the current realities of the Indian society in order to be expansive and broad enough for a multicultural social milieu.
D. Importance of gender inclusivity in the provisions related to aggaravated rape
Section 376(2) has been drafted in a way that the ambit of aggravated rape treats women as the sole victim and men as the sole perpetrators of aggravated rape. It excludes men and other members of LGBTQ community from the ambit of aggravated rape. In a report published by Ministry of Women and Child Development in 2007, it was shown that 53.22 percent of children in India had experienced one or more types of sexual abuse, with males accounting for 52.94 percent of those assaulted. Moreover, the laws dealing with the aggravated rape of transsexuals and intersex individuals is not even defined under the ambit of aggravated rape.
In the context of aggravated rape, POSCO is a statute that is gender-neutral, but the IPC's legal foundation for aggravated rape is gender-specific. To put it in context, POCSO refers to the victim and offender as "persons," whereas section 376 and subsequent sections refer to the victim and perpetrator as "woman" and "men," respectively. The proposals of the Verma Committee to render the survivor category to be gender neutral were rejected in favor of gender specificity in both survivors and perpetrators". This means that the offence of aggravated rape against adult men and sexual minorities is not addressed in law, which is a violation of the constitution's Article 14. Furthermore, it is critical to underline that it is in the public interest to begin a public discussion on implementing gender-neutral rules on aggravated rape, as well as to take adequate measures to prevent its misuse which would help in making the provision inclusive of the socio-economic realities of the society.
E. Marital rape as aggravated rape- a question of power/institutional hierarchy?
Despite Verma Committee's recommendation that non-consensual sex between married couples be included in the definition of aggravated rape, the Criminal Law (Amendment) Act made no such amendments. In Netherlands, on the other hand, depending on the facts of the case, marital rape might constitute an aggravating factor. The logic is that rape in the victim's house or bedroom by an emotional partner or spouse is an aggravated kind of offence because that's where the victim is meant to be safe the most. The breach of space, physical autonomy, and consent of one by the other in an union like that of a marriage, where there is a personal and intimate connection between two individuals, is a far more serious offence than the same criminal offence by a stranger.
Furthermore, given the patriarchal nature of the Indian society that usually places the husband on a 'higher pedestal', the varied nature of power dynamics, in principle, establishes why marital rape should be categorized as aggravated rape. Marital rape is discriminatory and in violation of Articles 14, 15, and 21 of the Indian Constitution, as well as POCSO requirements. Therefore, it should be included in the provisions of aggravated rape as per the Verma Committee suggestions.
F. Need for separate provisions of aggravated rape for socio-economically vulnerable groups
Dalits are at the bottom of caste and class ladders in India, and are formally recognized as Scheduled Castes under the Indian Constitution. Dalit women, in particular, experience prejudice based on their gender, caste, and social class. The use of sexual violence by dominant castes to subjugate Dalit women and girls and enforce systemic gender and caste hierarchies has been widespread. The latest Hathras gangrape incident culminating in the murder of a Dalit, has sparked enormous public indignation across India and brought caste-based sexual violence into the forefront. Survivors of sexual violence, particularly Dalit women and girls, have been known to be methodically suppressed culminating in a culture of "violence, silence, and impunity." Several examples are well-known instances of aggravated rape involving systemic sexual oppression of vulnerable groups, including that of Mathura Rape Case, a tribal minor girl in Tuka Ram v State of Maharashtra and Bhanwari Devi, a Dalit Anganwadi-worker in Vishaka v State of Rajasthan which go on to show how power dynamics come into play in the instances of aggravated rape. Sexual assault against women from marginalized socioeconomic groups is not classified as an aggravated offence by the IPC or the POCSO. Recognizing that women from vulnerable groups face multiple forms of oppression, Oxford Pro Bono Publico recommended that the Indian state provide a distinct offence of "aggravated rape or sexual assault" in its definition of rape and sexual assault. As a result, the legislation should acknowledge that aggravated rape is a form of discrimination that is in violation of Article 15 of the Constitution. The description of aggravated rape should contain a provision for situations in which the offender is also protected on the basis of religion, ethnicity, caste, birthplace, age, impairment, sexual orientation, or any combination of these grounds and this should be treated as a separate offence of "aggravated rape or sexual assault."
This paper began by analyzing various provisions related to aggravated rape and aggravated sexual assault in light of numerous judicial pronouncements and legislations. It was observed that courts have adopted varying interpretations of aggravated rape as it is not uniformly defined across statutes. Further, the paper argued that that the lack of a uniform broad definition of aggravated rape opens floodgates of misinterpretation by courts resulting in faulty precedents. The problems relating to the interpretations of the provisions are exacerbated due to the faulty application of the test of ‘penetration’ that has been applied by the courts resulting in undermining the aspects of power dynamics that play an important role in the offence of aggravated rape. Further, the paper argues that the framework related to aggravated rape should be inclusive of socio-economic realities and power hierarchies that exist in the society. Therefore, a case has been made to make the laws related to aggravated rape to be gender neutral and inclusive of socio-economic realities in order to mitigate the current flaw in narrowness and ambiguity of definition concerning aggravated rape. These aspects need to be kept in mind while laying down the provision relating to aggravated rape so that it is consistent with the social needs and existing power structures
[The author is a 2nd year BA LLB student in NLU, Delhi.]  Oindrilla Sinha, Aishwarya Singh, Vjay Paul, 'Rethinking Aggravated Sexual Assault' (The Citizen, 17 April 2021) <https://www.thecitizen.in/index.php/en/NewsDetail/index/7/20221/Rethinking-Aggravated-Sexual-Assault> accessed 15 April 2022.  Council of Europe, Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (CETS No. 210).  Ibid.  The Protection of Children from Sexual Offences Act 2012.  The Indian Penal Code 1860.  The Protection of Children from Sexual Offences Act 2012, s 5.  The Indian Penal Code 1860, s 376(2): “(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which 1[shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine]. (2) Whoever,— (a) being a police officer, commits rape— (i) within the limits of the police station to which such police officer is appointed; or (ii) in the premises of any station house; or (iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or (b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or (c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or (d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or (e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or (g) commits rape during communal or sectarian violence; or (h) commits rape on a woman knowing her to be pregnant; or (j) commits rape, on a woman incapable of giving consent; or (k) being in a position of control or dominance over a woman, commits rape on such woman; or (l) commits rape on a woman suffering from mental or physical disability; or (m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or (n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.”  Ibid.  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