The dual mindset of Indians toward women is the most hypocritical thing ever. On the one hand, we have given women, the status of devi, the symbol of power and courage. And, on the other we blame a woman for instigating men if they rape her. A gruesome and horrific term like "rape" is so common in India, that their incidences no longer surprise us.

According to NCRB India data, in 2021, India has witnessed, on average, 86 rape cases every day, and 46 offences against women every hour[1]. And these are the incidents that got registered, one could only imagine the plethora of incidents that could not even make their way on record, due to either the so-called pride of the family or maybe the influence of the perpetrator.

Our law categorizes rape into different types. Although each incident in itself is a shame against humanity, one of the most heinous is custodial rape. It's unimaginable that when the protectors of society who are supposed to be approached for justice, turn into the culprits, whom are we expected to seek help from?

A person is said to be in custody when he/she is under the strict supervision and control of another person or an institution who is said to be the custodian[2]. Custody is often defined as guardianship[3]. When the custodian intends to take benefit of this control, and commits the offense of rape on the woman under custody, it is called custodial rape.

So, one can envision why our law has created this differentiation between the ordinary rape and custodial rape. Rape under custody along with harming the bodily integrity of the victim also breaches the duty to protect and take care of the person under custody, which has been provided by the law.

History Of Origin
To explore more on the legal developments we must delve into its history, whether it was there since the inception of India's criminal law, or was it a need of the time which led to its addition afterward. The history behind the development of laws on custodial rape dates back to the emergency era. During the period between 1975-77, when the then Prime Minister of India, Indira Gandhi declared a state of emergency across the nation.

This period of 21 months is often cited as the darkest period in modern India. In this state of emergency, the state officials were equipped with remarkably higher and unchallenged powers. Misuse of this power led to many catastrophes. Three cases during this period have played a major role in the codification of custodial rapes and various related amendments in the criminal law. These were cases of

three females being the trap of the police's lust. The cases are of Mathura[4] (1974), Rameeza Bee[5] (1978), and Maya Tyagi[6](1980).

In all three cases, the common thing was a barbarous sexual assault by the police officers and huge public agitation and protests for justice. They became the foundation of current legislation on custodial rapes.

Now that we have some idea about the origin of the Custodial rapes, we must see what changes these scenarios brought into the criminal justice system.

Legal Provisions
The major provision which categorizes custodial rape as a distinct form is section 376C[7] of IPC. It was introduced via the Criminal Amendment Act of 2013[8], and it defines custodial rape as "sexual intercourse by a person under authority". The provision subsequently identifies the categories of individuals encompassed by this classification: law enforcement officers, government officials, military personnel, individuals in administrative or custodial roles within correctional facilities, juvenile detention centers, women's or children's shelters, or hospitals. Consequently, it encompasses instances of rape perpetrated by individuals in positions of trust or authority over the victim.

The law prescribes an enhanced punishment for custodial rape as compared to rape by an ordinary person. For custodial rape, the minimum punishment prescribed is of 10 years which is extendable up to life imprisonment.

Along with this, another remarkable change brought in the criminal justice system is the shift of the onus of proof. So, the general rule of criminal law is that the burden of proof of a crime lies with the prosecution. However, the Criminal Amendment Act of 2013 has reversed this by the addition of section 114E[9] in the Indian Evidence Act, of 1872. This has created an exception to the general rule. By virtue of this section, if the prosecution manages to establish the offense of sexual activity, and the victim woman states that there was no consent, the law will presume the absence of consent. And the onus shifts to the respondent to prove the existence of consent. This necessary change must have been brought considering the superior position of the offender. Being on the authoritative side, it is easier in these cases to tamper with the evidence than in ordinary cases.

Through the same amendment act of 2013, one more provision was brought to help in those cases where the police itself denies to take FIR or any action for whatsoever reasons by the virtue of section 166A[10] of IPC, 1860. This section makes it a punishable offence if a police officer fails to register an FIR in the cases pertaining to rapes. The provision is there to ensure that officials must not try to manipulate and hide the denying the registration of FIR on the very first place.

An amendment was also carried out under section 197 of CrPC, which modified the stance of taking prior sanction of the government before initiating any proceeding against a public servant in the discharge of official duties. An exception has been made, and now no such permission or sanction is required in cases where the official is charged with the offense of section 375[11] of IPC.

Many more preventive measures have been adopted by the government to avoid such cases, such as mandating the installation of CCTV in all police stations and appointment of female constables across the police stations.

Challenges
Although a remarkable change has been brought in the criminal justice system in cases of custodial rape. One of the biggest challenges still sustains, which is the fear of such officials. The victims are most of the time scared of the consequences of going against the system. And, even if they did somehow collect that courage to fight against those public authorities, the chances of getting justice remain low, as the control and access to evidence lies with that of the offenders. These laws are there in implementation, but most of the civilians are not aware of the same.

Although precise data on custodial rape cases is lacking, according to statistics from the National Crime Records Bureau (NCRB), only 26 individuals were convicted of custodial violence between 2001 and 2018[12]. These statistics around, very well show the situation of going unreported.

Thus, to fight against such a heinous crime, somewhere it is evident that the current legislations are not doing enough. We need more stringent provisions to deal with the issue. And along with than that we need public awareness. All the provisions of the law will go in vain if are known to the concerned people.

End Notes:

• Financial Express, "NCRB Data: India witnessed 86 rapes every day, 46 offences against women every hour in 2021," (last updated May 1, 2022), available at: https://www.financialexpress.com/india-news/ncrb-data-india-witnessed-86-rapes-every-day-46-offences-against-women-every-hour-in-2021/2650292/
• Lawcian, "Custodial Rape in India" (accessed May 7, 2024), available at: https://www.lawcian.com/post/custodial-rape-in-india
• Omkar Prasad Verma v. State of Madhya Pradesh 2007 (4) SCC 323
• Tuka Ram And Anr vs State Of Maharashtra 1979 SCR (1) 810
• India Today, "Legal battle awaits to prove charges against Rameeza Bee" (last updated March 20, 2014), available at: https://www.indiatoday.in/magazine/indiascope/story/19780831-legal-battle-awaits-to-prove-charges-against-rameeza-bee-822980-2014-03-20
• Indian Express, "Baghpat judicial inquiry" (last updated December 31, 2020), available at: https://indianexpress.com/article/opinion/editorials/baghpat-judicial-inquiry-maya-tyagi-cid-probe-forty-years-ago-7134244/
• Indian Penal Code 1860, s 376C
• Criminal Law (Amendment) Act, 2013, Act No. 13 of 2013 (India)
• Indian Evidence Act 1872, s 114E
• Indian Penal Code 1860, s 166A
• Indian Penal Code 1860, s 375
• iPleaders, "Custodial Rape" (accessed on May 7, 2024), available at: https://blog.ipleaders.in/custodial-rape/