Updated: Jul 21
AUTHOR- PRIYANSHI BHARDWAJ, TRINITY INSTITUTE OF PROFESSIONAL STUDIES.
The word rape is derived from the Latin term “rapio”, which in literally means ‘to seize’. Rape is that demon what once happen loses its mark and impact not only on body but on the mind of the girl and her family. That mark and pain on the body can be healed but its impact can’t be removed from the heart and mind. It is because the girl doesn’t want that any person her prior permission touches her. Also, society not let this mark of rape victim to be removed so she carries this mark with her character. In Indian society the rape victim is the one who are made believed that it is their mistake that “Why she gets out too late? Why are clothes being too short and the list goes on, but the man or boy who commits that rape is never been told that Why you can’t control your feelings? This thinking will never let a girl to live a better life.
Around 45 custodial rape cases have been registered between 2002 to 2010 according to National Human Right Commission. The so far registered cases are two (2009-2010), four (2008-2009), 18 (2007-2008), 10 (2006-2007), five (2005-2006), four (2004-05), and two (2002-2003). No case was registered in 2003-04.[i]
What is the meaning of custodian?
A person is in “custody” when his/her responsibility, care and supervision is under any person or some institution is called as custodian. This responsibility includes the person’s living i.e. from water to his/her liberty means the control over the body. There is direct control of custodian over the person who is in custody. Custody is mainly common where there is detention by the state like police, army officer, etc. not only this it also applies to government or private hospitals, juvenile home or the shelter home, etc. wherever the person’s body is under custodian’s control.
When it is said to be called as custodian rape?
The word custodian rape simply signifies that when a man or men rapes a woman (including an infant girl) in the custody i.e. at that time when she is under any custodian. Rape which is defined under section 375 of Indian Penal Code, 1860 includes rape at any place. There is no such separate section in Indian Penal Code, 1860 that defines custodial rape. The term custodial rape is sometimes used broadly to include rape by anyone in a position of authority such as an employer, money-lender, contractor or landlord, but under Indian law it refers only to government employees. It includes the rape of children in institutional care such as orphanages.[ii]
How the concept of custodial rape comes into play?
At the time of national emergency in 1975-77, the state assumed arbitrary and unfettered powers, dispensed with public accountability for its actions, and clamped down heavily on the citizen’s civil liberties.[iii] This experience awakened an acute consciousness in the the judiciary and civil society, of the dangers of state power and how it could be used to violate and trample personal liberties.
· Tukaram v. State of Maharashtra
Also known as Mathura Bai rape case, it is the case of 16-year-old Tribal girl when went to the police station with her brother and fiancé was raped by one of the two police officers as another policeman was too drunk to do so but he does molest that girl, when they were doing so she did not oppose them in the fear and even shouted for help. When she and her brother Gama walked to the trial court to demand justice they said that as she did not shout and not even opposed them also she was expected to have an intimate relationship with her lover Ashok so this is a case of consensual sex and not rape also there was no injury on her body. He called Mathura a “shocking liar” also stated that her statements “is riddled with falsehood and improbabilities”. The District Judge even went on to say that even though she had sexual intercourse, she was not subjected to rape. The Judge even went on to say that she would be the one who voluntarily surrendered her body to the constable. But the High Court explains the difference between passive submission and consent. He said that in this particular case the girl gives the passive submission i.e. under the threat but not the consent. Also, HC held both the police officers guilty.[iv]
The main point of the uproar has been the fact that this was custodial rape. The fact was conveniently ignored by the court that a woman may be subjected to custodial rape due to the fear for the safety of her family members or might be due to the fear of being beaten up. Another point of the uproar has been the fact as per the medical evidence, there was no penetration, and thus the court concluded that she was not raped. The SC in Mathura’s case didn’t convict the accused because there was no actual penetration and there were no visible injuries on the body of the girl.
· Rameeza Bee in Andhra Pradesh (1978)
She was also a victim of rape by the policeman when was her husband returned home to bring money to pay their fine, Rameeza Bee was raped by three policemen. He protested the assault upon his wife on his return, but he was mercilessly beaten to death by the policemen. The policemen were found guilty by the commission but being acquitted by session court on the ground the evidence recorded by the commission during the inquiry are found to be inadmissible. [v]
These cases lead the paradigm to shift and brought out too many changes in context of custodial laws of India and they are as follows:
· The concept of custodial rape arose by:
1. Police officer or subordinate of police within the within the limits of police station.
2. Rape by public servant in the public servant custody or in public servant subordinate’s custody.
3. Rape by any member of armed force where the force have been deployed
4. Rape by any member of hospital, remand home, jail etc. will also come under custodial rape.
· Shift in burden of proof on the accused and have to prove the women’s consent.
· A minimum of 10 years rigorous imprisonment or up to life imprisonment (that is, imprisonment for the remainder of that person’s natural life) or with fine or with both, has been prescribed in law.
· Changes made after 2013 amendment in laws:
1. Failure of government official to assist a victim of rape came to be recognized as a punishable offence.
2. Punishment of 6 months – 2 years imprisonment is prescribed for a public servant disobeying the law, under S. 166A IPC.
Rape is worse mark on woman it is worse even more than murder. But when it is done by such from whom we believe could help us or would help us in providing justice then it became even more worse. Law provide these girls to be protected under the government and so made the laws even harder with harder punishments, so that the people doesn’t lose their trust in justice and laws. But despite of all these changes there is no cut down in the rape cases in fact the crime against women is on rise. The rape cases are like ice berg whereas custodial rape is that ice which is deep under the water and cannot be seen until we ride into it.
[i] Dhar Arti “45 custodial rapes in nine years, says rights forum” The Hindu 27 December 2012, https://www.thehindu.com/news/national/45-custodial-rapes-in-nine-years-says-rights-forum/article4242301.ece [ii] Thukral, Enakshi Ganguly (2008). Still Out of Focus: Status of India's Children, 2008. HAQ Centre for Child Rights. [iii] Bhog Sahar “What Is Custodial Rape And Why We Need To Be Discussing It” Feminism India 5 July 2020, https://feminisminindia.com/2019/04/16/custodial-rape-india/. [iv] Pandey Anubhav “Case Analysis – Tukaram and Another v. State of Maharashtra (Mathura Rape Case)” ipleader https://blog.ipleaders.in/case-analysis-tukaram-and-another-v-state-of-maharashtra-mathura-rape-case/. [v] Louis Arul “Baghpat police kill three men, parade woman naked on street” India Today 17 January 2014 https://www.indiatoday.in/magazine/special-report/story/19800731-baghpat-police-kill-three-men-parade-woman-naked-on-street-821301-2014-01-17.