File picture of a protest against rape, in India. | Photo Credit: PTI

New Delhi: The Supreme Court (SC) has recently ruled that a consensual physical relationship between live-in partners does not constitute rape if a man does not marry the woman owing to circumstances “that are not in his control”.

An SC bench comprising Justices AK Sikri and S Abdul Nazeer made the remarks while quashing a case lodged by a nurse against a doctor in Maharashtra. The duo was reportedly in a live-in relationship. The court, however, clarified that if the man has any “mala fide intention or clandestine motives”, then it would be termed as rape.

This judgment adds to a series of verdicts and observations by various courts in India that have shaped laws governing rape and other sexual crimes.

The Mathura rape case

The word ‘rape’ entered Indian legal jurisprudence for the first time via the 1860 Indian Penal Code (IPC). Sections 375 to 376E of the IPC deal with ‘sexual offenses’. Rape was defined as sex without consent; with consent under the fear of death; or with consent under false pretences.

Punishment for rape ranged from a two-year jail term to life sentence. Remarkably, rape laws continued with very little changes to them for another century, well after India attained independence.

The 1970s Mathura rape case (formally known as Tukaram v. State of Maharashtra)– and the uproar it triggered – not only put the laws governing rape and judges’ biases under public scrutiny but also gave much-needed momentum to the first wave of the Indian feminist movement.

Mathura, an Adivasi girl from Maharashtra’s Chandrapur district, was maybe 14 or 16 years old when she was raped by two policemen in the toilet of the local police station where she had gone to register a complaint. What made her stand out from other victims is that she dared to approach the courts.

The sessions court found the accused policemen not guilty as, according to the judge, the victim was “habituated to sexual intercourse”. While the Bombay High Court overturned this retrograde judgment, the Supreme Court reversed the high court verdict.

More than the SC ruling itself, it was the wording of the judgment that outraged feminists and gender right activists. The apex court judge, in his infamous judgment, stated: "Because she was used to sex, she might have incited the cops (they were drunk on duty) to have intercourse with her". By this time, more than seven years had passed since the crime -- and it was only then that the case got media attention.

Post Mathura

The protests generated by the Mathura judgment eventually led to amendments in the rape law through the Criminal Law (Second Amendment) Act, 1983, a milestone for the women’s rights movement.

Now, ‘custodial rape’ was introduced to cover rape in custody of public servants. Also, the amendment called upon courts to presume a victim was speaking the truth when she said that she did not consent. Henceforth, the idea of ‘consent’ became a crucial ingredient in scrutinising rape cases. The amendment also prohibited the publication of the victim’s identity in court.

While there remained a huge gap between the letter and spirit of the 1983 amendment and how things actually worked on the ground, it was a step forward for gender justice.

The next major change in law came in 2003 through an Amendment To Indian Evidence Act. Section 155(4) of the Act, which allowed the defence to dig in evidence about the “general immoral character” of the victim, was repealed.

The past decade

The alarming rise in cases of child sex abuse led to the 2012 Protection of Children From Sexual Offences (POSCO) Act. Besides covering offences such as abuse, pornography and harassment, the gender-neutral legislation sought to promote a child-friendly criminal justice system. In the last week of 2018, the Narendra Modi government has approved amendments to POCSO Act, and included the death penalty for aggravated sexual assault on minors below the age of 18.

In 1992, Bhanwari Devi, a Dalit woman employed with the Rajasthan government’s Women’s Development Programme, was allegedly gang-raped by upper caste men. It was her quest for justice and refusal to be silenced that eventually led to the formation of the Vishaka workplace guidelines.

After several feminist interventions and workshops, the Protection of Women against Sexual Harassment (POSH) at Workplace Bill came into force in December 2013. In a way, the illiterate, low-caste Bhanwari Devi lay the groundwork for the MeToo movement that took urban India by storm in 2018.

The Nirbhaya fallout

The brutal gangrape of a 23-year-old physiotherapy student in a moving bus in South Delhi in December 2012 outraged the nation. The victim, who struggled for her life for several days before succumbing to her gruesome injuries, was nicknamed Nirbhaya. The government constituted a three-member committee headed by Retired Supreme Court Chief Justice JS Verma to bring changes to laws regarding rape. This led to the Criminal Law (Amendment) Act, 2013, which expanded the definition of rape and the meaning of consent. It also included newer crimes such as stalking, acid attacks, disrobing and voyeurism.

India has covered a long distance from the 1970s, legally speaking, thanks to the unrelenting efforts of gender activists, feminists and sensitive lawyers and judges. But the laws of the land are only one part of the problem. Making the criminal-justice system gender-friendly and responsive to women continues to be a major challenge.

The views expressed by the author are personal and may not in any way represent those of Times Network.