Volume 2 Issue 4 2021 2582-5534
Challenges Faced by Rape Victims in India
Name: Aryan Tulsyan
College: Jindal Global Law School
Class: B.A. LL.B II Year
On the 13th of August 2017, an interim bail was granted to Vikas Garg, Karan Chhabra and
Hardik Sikri, the three accused in what is commonly known as the ‘Jindal rape case’1, where
it was alleged that the three, on multiple occasions, committed rape, gang rape and
blackmailing of a fellow student of O.P. Jindal Global University. This order granted by the
Punjab and Haryana High Court has backtracked all developments made in the Indian legal
framework to break the patriarchal shackles to transform into a slightly more inclusive space.
Rape victims face a plethora of challenges if they wish to get justice, ranging from the biases
of the judiciary and the executive to the character shaming of the victims. And one of the
primary challenges they face as a result is to prove that a rape occurred in the first place, and
the fundamentally patriarchal nature of the justice system is to blame. The Mathura rape case2
of 1972 and the Jindal rape case of 2015 will prove this claim.
The primary reason for my claim is that there is a massive disparity between the different
definitions of rape. The definition of rape under Section 375 of the Indian Penal Code3 is
different from the definitions offered by feminist scholars like Catherine MacKinnon.
MacKinnon’s feminist theories define rape not as an isolated event or a moral transgression,
but as an act of torture and terrorism, within a systematic context of group subjection 4. When
looked within the context of riots, wars and prisons, Susan Brownmiller5 explains that
women are raped by guns, by supremacist tendencies, by the state, and only derivatively by
the penis. This helps us understand that since coercion has become such an integral part of
1
Vikas Garg & Others v. State of Haryana, Cr. M 23962 & 26930 Of 2017 (High Court Of Punjab And Haryana
2017).
2
Tukaram And Anr vs State Of Maharashtra, 810 SCR 1 (Supreme Court of India 1978).
3
“The Indian Penal Code,” ACT NO. 45 OF 1860 § 375 (1860).
4
Catharine Mackinnon, “Rape: On Coercion and Consent,” Writing on the Body: Female Embodiment and
Feminist Theory, 1989, 42–58.
5
Susan Brownmiller, “Against Our Will: Men, Women and Rape (1975).,” 2005.
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Volume 2 Issue 4 2021 2582-5534
male sexuality, rape is seen as a sexual act instead of a violent act because it is coercive6. The
Criminal Law Amendment Act of 20137 defines rape as having sex with a woman without
her will or consent. However, many exceptions and explanations are associated with this
definition, the crime centers around the penetration. The statutory interpretations of rape
appear more to be a crime against female monogamy than against the sexual integrity and
dignity of a woman8. Due to this, women aren’t able to prove that they were raped since what
is rape for them is not rape before the law.
Since the courts do not abide the feminist definitions of rape, there is no consensus between
the victims and the court. Due to this, rape victims play a secondary role in the Indian judicial
system. According to India's criminal justice delivery system, rape is not a crime against an
individual but an offence against the state9. A state-appointed prosecutor argues on behalf of
the state, and the victim is merely the prosecution’s witness. The victim lies entirely at the
mercy of the state during the investigation and the trial, and the victim is thus rendered
powerless. In the Mathura case, the victim was a young tribal girl who was socially and
economically disadvantaged. The courts held her to be a ‘shocking liar’, and just because she
had a consensual sexual history before the rape, the court deemed the intercourse between her
and the accused to be consensual as well10. In the Jindal case, the court went ahead to
question the victims’ habit of consuming alcohol and cigarettes and deemed that her sexual
conduct was not ‘gut-wrenching’ enough to hold the accused persons liable for rape11. The
court did not consider the testimony that “under the influence of alcohol, forceful sex
becomes a little more bearable.”12 Therefore, according to the court, it is not the man’s failure
to respect a ‘NO!’ but the woman's character that decides the rape conviction. “A woman,
victim of rape, is raped twice-first by the culprit and then by the criminal justice system.”
Another obstacle women face is the reluctance and ignorance of the police to report rape
cases. Many times, the police are not just indifferent but hostile towards the victims. Police
officers are obsessed with the criminal records in their areas. They do not want these limits to
6
Supra note 4 at 173.
7
“The Criminal Law (Amendment) Act, 2013,” NO. 13 OF 2013 § 375 (2013).
8
Supra note 4 at 172.
9
Vibhuti Patel, “Campaign against Rape by Women’s Movement in India,” Deportate, Esuli, Profughe:
RivistaTelematica Di Studi Sulla MemoriaFemminile 24 (2014): 36–47.
10
Geetanjali Gangoli, “Controlling Women’s Sexuality: Rape Law in India,” International Approaches to Rape,
2011, 101–20.
11
Shalu Nigam, “From Mathura to Farooqui Rape Case: The Regressive Patriarchy Found Its Way Back,”
Available at SSRN 3049756, 2017.
12
Supra note 1.
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exceed as this will jeopardize their chances of promotion, and thus are reluctant to record the
statements of rape victims13. Furthermore, the police tend to incorporate their own values and
morals into the proceedings. They try to facilitate and negotiate a compromise between the
14
parties and try to settle disputes themselves without the registry of complaints . Nigam
shows how the court and the police have more than often acted in a regressive manner by
curtailing the rights of the victims, the women, and favouring the accused15. Research has
shown that although the 2002 amendment to the Indian Evidence Act 16makes evidence on the
character of the victim inadmissible, it has found its way into the sentencing of the accused 17.
The rate of conviction has been extremely low for rape cases, and this is indicative of the
impunity for sexual offences18, as seen in the suspension of the sentence of the accused in the
Jindal case and the acquittal of the accused in the Mathura case. According to the 2019
reports of the National Crime Records Bureau(NCRB) of India, the conviction rate for
rape cases in India lied as low as 28% 19. Studies on jury nullification have shown that
juries often lean to acquit defendants, driven solely by their sense of justice or fairness.
They believe that the defendant does not deserve the prescribed punishment 20.
Requirements of mandatory minimum punishments, which take away the judges' discretion
to impose a lesser sentence, have also contributed to the drop in the conviction rates.
Judges who believed that the accused deserved less than seven years’ imprisonment would
rather refrain from convicting the accused than impose a higher punishment 21. Introducing
a severe minimum sentence has had two negative impacts: a fall in the convictions and
stagnation of complaints, thereby not fulfilling its intended purpose 22. Therefore, it is
13
Supra note 9.
14
Ann Stewart, “Debating Gender Justice in India,” Social & Legal Studies 4, no. 2 (1995): 253–74.
15
Shalu Nigam, “Fighting for the Justice in the Patriarchal Courts,” Available at SSRN 3028829, 2017.
16
“The Indian Evidence Act 1872,” ACT NO. 1 OF 1872 § (1872).
17
Mrinal Satish, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India
(Cambridge University Press, 2016).
18
Pratiksha Baxi, “Carceral Feminism’as Judicial Bias: The Discontents around State v Mahmood Farooqui.,”
Hyderabad: Council for Social Development, 2016.
19
Kanu Sarda, “Under 30 per Cent Conviction Rate in Rape Cases in India, Says NCRB Data,” The New Indian
Express, October 3, 2020, https://www.newindianexpress.com/nation/2020/oct/03/under-30-per-centconviction-
rate-in-rape-cases-in-india-says-ncrb-data-2205090.html.
20
Andrew D Leipold, “Rethinking Jury Nullification,” Virginia Law Review, 1996, 253–324.
21
Preeti Pratishruti Dash, “Rape Adjudication in India in the Aftermath of Criminal Law Amendment Act, 2013:
Findings from Trial Courts of Delhi,” Indian Law Review 4, no. 2 (May 3, 2020): 244–66,
https://doi.org/10.1080/24730580.2020.1768774.
22
Laxmi Murthy, “Comments by Laxmi Murthy to Criminal Law Amendment Bill 2000,” Partners for Law in
Development, April 2013, https://pldindia.org/law-reform/law-reform-advocacy/comments-by-laxmi-murthy-to-
criminal-law-amendment-bill-2000/.
3 burnishedlawjournal.in
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extremely difficult in the Indian justice system to prove to the judges that a rape took
place.
The Supreme Court’s decision on the Mathura case was followed by a nationwide
movement against custodial rape23, and an open letter by four legal scholars24,
namely, Upendra Baxi, Lotika Sarkar, Raghunath Kelkar, and Vasudha Dhagamwar to the
then Chief Justice of India, condemning the decision in Tukaram v. State of Maharashtra in
1979. The letter describes the judgement in Mathura as one which is sacrificing the human
rights of women under the Indian Constitution. The national anti-rape campaign not only
demanded reopening of the Mathura case and amendments to the laws related to rape in the
country25but also called for compulsory courses on gender sensitisation for state and judicial
employees. Demands to amendments in the laws revolve around numerous issues centred
around the social construction of sexuality, like the past sexual history of the victims of rape,
procedures of the criminal justice system-First Investigation Report (FIR), medical
examination, inquest, rights of women in custody in India26. In light of these movements,
another challenge staring at women was the unrepresentative nature of the demands put
forward by the feminist organisations. They face a dichotomy between traditions and
modernity. The movement was associated with the urban middle class due to its legal
engagement with rights, and it was seen to be tied to a modern, secular, and occidental desire
to create a pan-Indian identity27. The proposals and demands put forward by the movement
were irrelevant to the plight of the traditional, poor, tribal, and rural women, who form the
majority. The movement could be seen to be created under the Western eye, and the
discussion on rape must recognize the fact that the issue emerges not from an analysis of the
politics of heterosexuality, but from an understanding of brutality that focuses on the
28
exploitation of the poor by the powerful groups . Thus, not much progress was made to
deliver justice to women not a part of the mainstream feminist movements.
23
Geetanjali Gangoli, Indian Feminisms: Campaigns against Violence and Multiple Patriarchies (Aldershot:
Ashgate, 2007).
24
Upendra Baxi et al., “An Open Letter to the Chief Justice of India,” September 16, 1979,
https://aud.ac.in/uploads/1/admission/admissions2014/open%20letter.pdf.
25
Neera Desai and Vibhuti Patel, Indian Women Change & Challenge in the International Decade 1975-1985
(Popular Prakashan, 1985).
26
Supra note 9 at 38.
27
Supra note 15at 254.
28
Rajeswari Sunder Rajan, Real and Imagined Women: Gender, Culture and Postcolonialism (London:
Routledge, 2003).
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It is also important to look into the debate around the age of consent and the pre-marital
sexual activity of women, as it was common in both the Jindal as well as the Mathura case.
According to the 2015 National Family Health Survey 4 29, 11% of girls had their first sexual
experience before the age of 15, and 39% before 18, and according to a 2015 study by The
Hindu30, cases of consensual sex registered as rape amounted to 23% of the total rape cases.
The cases are usually filed by the parents of the girl, and the victims are not supportive of the
prosecution of a case of sexual assault since there was no complaint of rape from their end 31.
These cases, where a case of rape is filed just because of the parents’ opposition to the
consensual sexual relationship, might amalgamate with genuine cases of rape, which causes
the court to inspect the sexual history of the victims and give a biased judgement. The age of
consent, which is set at eighteen years, provides an automated script of non-consent, and this
provision is misused by guardians, which makes it difficult for the court to differentiate cases
of rape alleged by the parents and by the victims. The legal avenues enable sex to act as
property allowing women to claim material privileges of heteronormative conjugality and
often the prosecutrix receives the benefit of doubt if the victim is seen to be ‘innocent and
virginal’32. The lack of ‘chastity’ would not warrant the same protection to the victims,
evident from the chosen cases. Therefore, since women’s sexual activities are exposed before
the law, they are not too keen to appear before the court and this further acts as a roadblock in
proving rape cases.
The Jindal rape case, along with the Mohd. Farooqui case33, contains within itself the
flashbacks of the Mathura case, and overlooks all reforms brought by Criminal Law
Amendments, and from the Nirbhaya case34, and reopens the debate on what actually
constitutes rape. The courts refuse to accept that it is the cultural constructions of gender
29
The Ministry of Health and Family Welfare, Government of India, “The National Family Health Survey 2015-
16 (NFHS-4)” (International Institute of Population Sciences, 2015),
http://rchiips.org/nfhs/pdf/NFHS4/India.pdf.
30
Rukmini S, “Why the FIR Doesn’t Tell You the Whole Story,” The Hindu, December 22, 2015,
https://www.thehindu.com/opinion/op-ed/rukmini-s-writes-about-the-mumbai-sessions-court-rulings-on-sexual-
assault-during-2015-why-the-fir-doesnt-tell-you-the-whole-story/article8014815.ece.
31
Amita Pitre and Lakshmi Lingam, “Age of Consent: Challenges and Contradictions of Sexual Violence Laws
in India,” Sexual and Reproductive Health Matters 29, no. 2 (January 10, 2022): 1878656,
https://doi.org/10.1080/26410397.2021.1878656.
32
Srimati Basu, “Sexual Property: Staging Rape and Marriage in Indian Law and Feminist Theory,” Feminist
Studies 37, no. 1 (2011): 185–211.
33
Mahmood Farooqui vs State (Govt Of Nct Of Delhi), Criminal Appeal No. 944 of 2016 (Delhi High Court
2017).
34
Mukesh & Anr vs State (Nct Of Delhi & Ors), Criminal Appeal No. 607-608 OF 2017 (Supreme Court of
India 2017).
5 burnishedlawjournal.in
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difference that constitute rape, and not mere biological determination35. The court had set
high standards for vitiating consent, and only the ‘fear of death or hurt’ could be used by the
victims36. Women are sexually violated by men every day, but men do not know the meaning
of their acts. To them, the allegations of rape are fallacious, because the facts describe sex.
They fail to acknowledge the existence of a reality outside their own, and thus the women’s
reality is assumed to be maliciously invented. Since to the men, the rape is not rape, but sex;
to the law as well, the rape is sex. It is important to be cognizant of the role of caste in rape
cases, and women are married off at an early age so that they do not become sexually active
before marriage. Virginity becomes one of the most prized possession of an unwed girl and
she would not willingly part with it37. Rape laws do not exist to enforce women’s right over
their sexuality, because if it did, the Delhi HC would not say that “a feeble no may mean a
yes”38.It is also true that the existing laws on rape do not acknowledge the unequal power
relations and the unfair power dynamic between the rapist and the victim, and it is rightly
said that rape is not prohibited, but regulated. Thus, due to the reasons put forward which
discuss the inherently patriarchal nature of the justice system, it isextremely onerous for
victims of rape to prove that they were raped.
35
Christine Helliwell, “‘ It’s Only a Penis’: Rape, Feminism, and Difference,” Signs: Journal of Women in
Culture and Society 25, no. 3 (2000): 789–816.
36
Vasudha Dhagamwar, Law, Power and Justice: Protection of Personal Rights under the Indian Penal Code
(New Delhi: Sage Publications, 1992).n
37
Flavia Agnes, “Protecting Women against Violence? Review of a Decade of Legislation, 1980-89,” Economic
and Political Weekly, 1992, 19–33.
38
Supra note 34.
6 burnishedlawjournal.in
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v.Mahmood Farooqui.” Hyderabad: Council for Social Development, 2016.
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Desai, Neera, and Vibhuti Patel. Indian Women Change & Challenge in the
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Dhagamwar, Vasudha. Law, Power and Justice: Protection of Personal Rights under
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Gangoli, Geetanjali. “Controlling Women’s Sexuality: Rape Law in India.”
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Kanu Sarda. “Under 30 per Cent Conviction Rate in Rape Cases in India, Says NCRB
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centconvictionrate-in-rape-cases-in-india-says-ncrb-data-2205090.html.
Laxmi Murthy. “Comments by Laxmi Murthy to Criminal Law Amendment Bill
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Mukesh & Anr vs State For Nct Of Delhi & Ors, CRIMINAL APPEAL NOS. 607-608
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“From Mathura to Farooqui Rape Case: The Regressive Patriarchy Found Its Way Back.”
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Satish, Mrinal. Discretion, Discrimination and the Rule of Law: Reforming Rape
Sentencingin India. Cambridge University Press, 2016.
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Letterto the Chief Justice of India,” September 16,
1979.https://aud.ac.in/uploads/1/admission/admissions2014/open%20letter.pdf.
8 burnishedlawjournal.in
Volume 2 Issue 4 2021 2582-5534
Vikas Garg & Others v. State of Haryana, Cr. M 23962 & 26930 Of 2017 (High Court
OfPunjab And Haryana 2017).
9 burnishedlawjournal.in
