Amendments in the Criminal Law Amendment Act, 2013 and in the IPC , made in 2013, caused the crime of rape to be treated as a non-bailable offence, and raised the age of consent from 16 to 18. It also shifted the burden of proof in rape cases onto the accused. Currently, there is also a minimum mandatory sentence in the crime of rape, which is seven years.
Social activist Madhu Kishwar believes that a minimum mandatory sentence of seven years is “dangerous and arbitrary” and these amendments lead to misuse of laws and the filing of false cases. The author of a 2013 article with the infuriating title Amendments to rape law: A magic wand for women also says that the inclusion of non-penetrative acts under the crime of rape is “irrational and unfair” because such acts were incapable of medical corroboration. She had approached the Delhi High Court on these issues, and the court has asked for the Centre’s response to this PIL.
This unique treatment of the crime of rape is meant to address concerns on how easy it is for rapists to get away on a lack of “proof”, and to address the numerous hurdles women face in providing testimony and having their cases heard successfully. The fact that non-penetrative acts are difficult to ascertain medically make it doubly difficult for victims to receive justice in these cases. The amendments that Kishwar aims to remove were put in place in the aftermath of the public outcry over the December 2012 gang-rape, and despite claims of false cases and misuse of the law, it’s clear even these stricter laws haven’t been working, if these statistics on the rate of successful conviction in sexual assault cases are anything to go by.
Depending on the Centre’s response, this case could set Indian feminist jurisprudence several steps back if it aims to dilute the provisions these amendments provided. It’s also good to keep in mind that if a law is being misused, it doesn’t mean that the act that the law criminalises is not grave, it merely means that there’s a problem in execution that needs to rectified separately.