The concept of 'Rape' as an offence was first introduced in the Indian Penal Code of 1860 drafted by Lord Macaulay. With the evolving time, there has been seen some shifts in the definition of "Rape" and the penal laws for it due to shift in the cultural beliefs and norms and society evolution. Sir Matthew Hale's comment on rape as "an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent"[1], shows the prejudiced attitude of colonial courts towards the victims.

The assumption that the women may be lying became the reason because of which the trial courts were directed more towards proving the credit of the victim rather than proving the guilt of the accused.[2]It was focus on her past sexual relations or her virginity which determined the outcome of the case.

The anti-rape is evolving through various Criminal Law Amendment Acts which has modified the concept to meet the changing needs of society, but is that change sufficient enough to effectively deal with the persistent problem of rise in the number of sexual offences? Whether the current provisions relating to rape under Indian criminal law adequate?

Introduction
Rape is an unlawful sexual activity and usually sexual intercourse carried out forcibly or under the threat of injury against a person's will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception[3].

In India rape is defined under section 375 and punishment for rape has been provided under section 376 of Indian Penal code, 1860, it was first introduced as a penal law under the code presented by Lord Macaulay since then it has gone through various amendments, when it comes to amendment of laws relating to rape two major criminal amendment act comes to mind, first being criminal law amendment act of 1983 which was passes by the legislature after the massive public outrage against Mathura Rape Case[4] which brought the concept of custodian rape by insertion of Sections 376 A, B, C, D. Second, Criminal Law Amendment act of 2013 based on the recommendations of Justice J.S. Verma Committee, the objective of which is to make rape laws harsher and make proceedings speedy and expedient.

This amendment was the consequence of Nirbhaya Rape Case[5] (Acid Attack Case) which shook the soul of our nation, after which provisions related to acid attack were inserted in Section 100(7) IPC [Private defence in acid attack cases], Section 326A IPC[Voluntary causing grevious hurt by use of acid etc.], Section 326 B, IPC [Voluntary throwing or attempt to throw acid].

Despite that prior to 2018, the legal landscape governing rape in India were often criticized for their inadequacy in safeguarding the rights of victims and ensuring justice. In response to growing societal concerns and mounting pressure from advocacy groups and aftermath of Kathua rape case, Criminal Law (Amendment) Act, 2018 was passed.

Shortcomings Of Present Rape Laws

Toward Gender-Neutral Rape Laws: Overcoming Gender Bias

The prevailing perception of rape laws predominantly revolves around male perpetrators and female victims, reflecting traditional gender norms and stereotypes. The justice verma committee in its report suggested that instead of using gender specific terms like "Woman" for a victim, a gender-neutral term like "person" and the perpetrator shall continue to be regarded as "man", but this suggestion was ignored by the legislature. Even during the recommendation for the new criminal law, the major demand was bringing gender neutral rape laws.

Marital Rape Laws in India: Bridging the Gap between Gender Equality and Criminal Justice

Though sweeping changes have been introduced in the rape laws still few points

remain untouched and are open to debate. Marriage is a sacred union built on trust and consent. It cannot, under any circumstances, be interpreted as implicit consent to non-consensual sexual activity. The most disappointing aspect of legal definition of rape in India is the exception carved out in Section 375 which exempts marital rape of minors. Even though statutory rape is considered unlawful in India irrespective of consent of minors, but Exception in Section 375 still persists. Denying marital rape as a crime not only violates a woman's bodily autonomy but also reinforces outdated notions of marital property. This legal gap leaves countless women trapped in a cycle of violence with little recourse, fostering a climate of impunity for perpetrators and perpetuating the trauma inflicted on survivors.

Inconsistency and Vulnerability: Why the Age of Consent in Rape Laws Must Be Raised to 18

Further there is a critical inconsistency between the age of majority for all other legal purposes, which is 18 years, and the age of consent for sexual intercourse, currently at 16 years. This has led to a paradoxical situation where a girl is presumed to be incapable of taking independent decisions in other matters, such as entering into contracts or voting, but is deemed to be capable enough to consent to the most intimate act of sexual intercourse if she is above the age of 16 years. This difference creates a legal absurdity and highlights the need to raise the age of consent to 18 years.

Steps to overcome the shortcomings of rape laws

According to NCRB report, India registered 31,677 cases of rape in 2021 — an average 86 daily — while nearly 49 cases of crime against women were lodged every single hour, according to the latest government report on crimes in the country.[6]

To overcome the growing problem of rape in India a multidimensional approach has to be adopted which would not only include making appropriate amendments to present anti-rape laws but would also include making changes on a social as well as cultural level. The first change that should be made to the substantive law is that the terminology which defines a victim as a "woman" should be gender neutral and the victim should be defined as "person".

Secondly Marital Rape should be criminalized, and the exception provided under section 375 which provides that "if a man has sexual intercourse with his wife, the wife not being under 15yrs of age is not rape". This exception is a blatant violation of Fundamental rights like Article 21 and article 14 of the Indian constitution.

Another dimension from which this problem can be approached is fixing the low conviction rate i.e. 27.2% as of 2018 and an astronomical amount of pending rape cases[7] which shows that there is a dire need for fast track courts to adjudicate in the matters related to sexual offences, however this feat cannot be accomplished with current strength of our judiciary which is 20 judges per 10 lakh people25 as of 2019 which if not fixed will lead to people losing faith in Judiciary followed by absolute anarchy in form of extra-judicial killings of rape accused like in Hyderabad Veterinarian case in which the police shot dead four suspected of raping and killing the 27 year old victim which was celebrated by people as well as certain politicians[8].

Only after adopting a multifaceted approach like the one discussed above and ensuring that the three wings of the government work in synergy striving towards the goal of ensuring a safe and healthy environment for its citizens, only then we can hope to see a positive effect in the NCRB statistics in the foreseeable future.

Dr. B.R Ambedkar once said "I measure the progress of a community by the degree of progress which women have achieved".

End Notes:

1. Elizabeth Kolsky, "The Body Evidencing the Crime": Rape on Trial in Colonial India, 1860-1947, 22 GENDER & HISTORY, 111 (2010)
2. Narrain, A. (2013) Violation of Bodily Integrity The Delhi Rape Case among Others, Economic and Political weekly. https://www.epw.in/journal/2013/11/commentary/violation-bodily-integrity.html
3. Merriam-Webster Dictionary www.merriam-webster.com/dictionary/rape (last visited 22/04/2020)
4. Tuka Ram and Anr v. State of Maharashtra 1979, AIR 185
5. Mukesh & Anr vs State For Nct Of Delhi & Ors 2017, 6 SCC 1
6. India Today, NCRB Data 2018: 1 rape reported every 15 minutes January 11 2020 available at https://www.indiatoday.in/india/story/ncrb-2018-woman-reports-rape-every-15-minutes-in-india-1635924-2020-01-11
7. Over 2.4 Lakh cases pending available at https://www.indiatoday.in/india/story/over-2-4-lakh-cases-relating-to-rape-and-pocso-pending-in-courts-across-country-says-government-1652567-2020-03-05
8. Scroll.in, Murdered Vet's Father Praises Police, Others warn of Extra Judicial Killings Available at https://scroll.in/latest/945983/hyderabad-murdered-vets-father-praises-police-others-warn-of-dangers-of-extra-judicial-killings (last visited 10/05/2020)