Rape laws - A comparative look at different countries laws

Adv Bhuneshwari Devi

Rape is a kind of sexual assault initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, or where the person is under threat or influence, or with a person who is incapable of valid consent. It is the name of a statutory crime in jurisdictions such as England and Wales, Northern Ireland, Scotland, California, and New York.

Definitions of rape vary, and though rape is usually dependent upon whether or not consent was present during the act, the term "consent" varies as well. Minors, for example, are often considered too young to consent to sexual relations with older persons. Consent is also considered invalid if obtained under duress, or from a person who does not have the ability to understand the nature of the act, due to factors such as young age, mental disability, or substance intoxication.

Many jurisdictions, such as Canada, and several US and Australian states, have abandoned the term 'rape' in favour of other terms such as 'sexual assault', 'sexual intercourse without consent', 'criminal sexual conduct' etc.

Two different changes have been made in recent decades in many jurisdictions in regard to the criminal offense of rape as it relates to marital status.The removal of the stipulation that, if after the act of rape the victim and the perpetrator get married to each other, the prosecution ends and the criminalization of rape between spouses. Throughout much of the history, rape in marriage was not a crime. Most cultures subscribed to the idea of the existence of 'conjugal rights' to sexual intercourse with one's spouse, and, until well into the 20th century, most legal systems generally accepted, overtly or tacitly, that such 'rights' could be taken by force, against the will of the wife. Traditional understanding and views of marriage, rape, sexuality, gender roles and self-determination have started to be challenged in most Western countries during the 1960s and 1970s, which has led to the subsequent criminalization of marital rape during the following decades.In countries like BhutanPenal Code of Bhutan outlaws rape and other sexual offenses.Under the criminal code, there are several categories of rape, which are punished differently, depending on factors such as the age of the victim, the relationship between the victim and the perpetrator, the number of participants (gang rape), whether the victim was pregnant, whether injury occurred. Marital rape is also recognized as an offense under the 2004 laws, being classified as a petty misdemeanour. The most serious form of rape is Gang rape of a child below twelve years of age, classified as a felony of the first degree. Marital rape is illegal in Bhutan. In Canadathe word rape is not used in the Canadian Criminal Code. Instead the law criminalizes "sexual assault". Sexual assault is defined as sexual contact with another person without that other person's consent. Consent is defined as "the voluntary agreement of the complainant to engage in the sexual activity in question".

The mere fact that a person allows sexual connection to be performed on them, does not automatically mean that they are legally consenting. If that person allows sexual connection due to coercion, then he/she is not legally consenting.

In addition, many states define sexual crimes other than male-on-female penetration as sexual assault rather than rape. There are no national standards for defining and reporting male-on-male, female-on-female or female-on-male offenses, so such crimes are generally not included in rape statistics unless these statistics are compiled using information from states which count them as rape.

Writer is a Human Right Activist and founder of Human Rights Foundation, Babu Lane, Port Blair,ANI

Police Reforms in India

- BhuneshwariDevi, Adv.

The first ever attempt to find out what was wrong with the policing system in India took place in 1977. However nothing much has happened since then.  In the year 2006, in Prakash Singh case, the Supreme Court commented that considering the far reaching changes that had taken place in the country after the enactment of the Indian Police Act, 1861 and absence of any comprehensive review at the national level of the police system after independence despite radical changes in the political, social and economic situation in the country, the government of India, on 15th November, 1977, appointed a National Police Commission. The commission was appointed for fresh examination of the role and performance of the police both as a law enforcing agency and as an institution to protect the rights of the citizens enshrined in the Constitution. The terms and reference of the Commission were wide ranging. The terms of reference, inter alia, required the Commission to redefine the role, duties, powers and responsibilities of the police with special reference to prevention and control of crime and maintenance of public order, evaluate the performance of the system, identify the basic weaknesses or inadequacies, examine if any changes necessary in the method of administration, disciplinary control and accountability, inquire into the system of investigation and prosecution, the reasons for delay and failure and suggest how the system may be modified or changed and made efficient, scientific and consistent with human dignity, examine the nature and extent of the special responsibilities of the police towards the weaker sections of the community and suggest steps and to ensure prompt action on their complaints for the safeguard of their rights and interests. Supreme Court issued the following directions to the Central Government, State Governments and Union Territories for compliance till framing of the appropriate legislations:

State Security Commission

(1) The State Governments were directed to constitute a State Security Commission in every State to ensure that the State Government do not exercise unwarranted influence or pressure on the State police. The Commission was also required for laying down the broad policy guidelines so that the State police always act according to the laws of the land and the Constitution of the country. This watchdog body, the Court directed,should be headed by the Chief Minister or Home Minister as Chairman and have the DGP of the State as its ex-officioSecretary. The other members of the Commission should be chosen in such a manner that it is able to function independent of Government control. For this purpose, the State may choose any of the models recommended by the National Human Rights Commission, the Ribeiro Committee or the Sorabjee Committee. Such recommendations of this Commission should be binding on the State Government. The functions of the State Security Commission would include laying down the broad policies and giving directions for the performance of the preventive tasks and service oriented functions of the police, evaluation of the performance of the State police and preparing a report thereon for being placed before the State legislature.

Selection and Minimum Tenure of DGP:

(2) The Court also directed that the Director General of Police of the State should be selected by the State Government from amongst the three senior-most officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force. Once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation. The DGP may, however, be relieved of his responsibilities by theState Government acting in consultation with the State Security Commission consequent upon any action taken against him under the All India Services (Discipline and Appeal) Rules or following his conviction in a court of law in a criminaloffence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties.

Minimum Tenure of I.G. of Police & other officers:

(3) Similarly, the Court also directed that Police Officers on operational duties in the field like the Inspector General of Police in-charge Zone, Deputy Inspector General of Police in-charge Range, Superintendent of Police in-charge district and Station House Officer in-charge of a Police Station should also have a prescribed minimum tenure of two years unless it is found necessary to remove them prematurely following disciplinary proceedings against them or their conviction in a criminal offence or in a case of corruption or if the incumbent is otherwise incapacitated from discharging his responsibilities. This would be subject to promotion and retirement of the officer.

Separation of Investigation:

(4) The Supreme Court suggested that the investigating police should be separated from the law and order police toensure speedier investigation, better expertise and improved rapport with the people.It must, however, be ensured that there is full coordination between the two wings.The separation, to start with, may be effected in towns/urban areas which have a population of ten lakhs or more, and gradually extended to smaller towns/urban areas also.

Police Establishment Board:

(5) For decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police, the Court also suggested to have a Police Establishment Board in each State. The Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department. The State Government may interfere with decision of the Board in exceptional cases only after recording its reasons for doing so. The Board should also be authorized to make appropriate recommendations to the State Government regarding the posting and transfers of officers of and above the rank of Superintendent of Police, and the Government is expected to give due weight to these recommendations and shall normally accept it. It shall also function as a forum of appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding their promotion/transfer/disciplinaryproceedings or their being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State.

Police Complaints Authority:

(6) In order to address the complaints against the Police Officers of and up to the rank of Deputy Superintendent of Police, there must be a Police Complaints Authority at the district level, the Court suggested. Similarly, there should be another Police Complaints Authority at the State level to look into complaints against officers of the rank of Superintendent of Police and above. The district level Authority may be headed by a retired District Judge while the State level Authority may be headed by a retired Judge of the High Court/Supreme Court. The head of the State level Complaints Authority should be chosen by the State Government out of a panel of names proposed by the Chief Justice.The head of the district level Complaints Authority may also be chosen out of a panel of names proposed by the Chief Justice or a Judge of the High Court nominated by him. These Authorities may be assisted by three to five members depending upon the volume of complaints in different States/districts, and they shall be selected by the State Government from a panel prepared by the State HumanRights Commission/LokAyukta/State Public Service Commission. The panel may include members from amongst retired civil servants, police officers or officers from any other department, or from the civil society. They would work whole time for the Authority and would have to be suitably remunerated for the services rendered by them. The Authority may also need the services of regular staff to conduct field inquiries. For this purpose, they may utilize the services of retired investigators from the CID, Intelligence, Vigilance or any other organization. The State level ComplaintsAuthority would take cognizance of only allegations of serious misconduct by the police personnel, which would include incidents involving death, grievous hurt or rape in police custody. The district level Complaints Authority would, apart from above cases, may also inquire into allegations of extortion, land/house grabbing or any incident involving serious abuse of authority. The recommendations of the Complaints Authority, both at the district and State levels, for any action, departmental or criminal, against a delinquent police officer shall be binding on the concerned authority.

National Security Commission:

(7) The Court directed the Central Government also to set up a National Security Commission at theUnion level to prepare a panel for being placed before the appropriate Appointing Authority, for selection and placement of Chiefs of the Central Police Organisations (CPO), who/should also be given a minimum tenure of two years. The Commission would also review from time to time measures to upgrade the effectiveness of these forces, improve the service conditions of its personnel, ensure that there is proper coordination between them and that the forces are generally utilized for the purposes they were raised and make recommendations in that behalf.

Implementation of the these orders of supreme court orders is yet to be seen though these suggestion were made in the year 2006 but till today most of the recommendation has to see the light of the day.

The author is an Advocate based in Port Blair and is also the founder of the Human Rights Foundation, a unit of Wooden House Society, which works for the benefit of women, tribal and unprivileged class of the Society.

By Dr S Chakraborty

We are given two ears and one mouth for a reason. God knew listening is twice as hard as speaking.

Right from birth to death, the first and most used skill is listening but we always take it for granted. We take coaching for speaking, stage mannerism, to be grammatically correct and all, with just one assumption that our audience is absolutely attentive and truly listening us. Is it so? With only 2% of people being taught listening as a skill, it’s too much of an ask with a mobile in hand.

So what exactly is true/emphatic listening?

So as the Chinese symbol suggests, listening not only needs ears but also undivided attention along with connecting with the heart of speaker while making eye contact.

For most people listening means waiting for your turn to speak or preparing for your next question. Due to this 70% of all communication are misunderstood, misinterpreted, distorted or not heard at all.

True listening depends on three skills; attention, attitude and adjustment. It is a active process and one needs to train oneself. Our brain inherently thinks four times faster than we can speak. We speak at 200- 300 words per minute but can think at 1000–1200 words per minute. So it gives us enough free time as a listener, for the mind to wander and go away from the topic.  By default our attention will be hard to focus because of this extra time. We need  to use this time to listen emphatically by analysing the content of talk, feelings of the speaker, looking for non verbal cues to know whether he means what he is saying, refrain ourself from completing the sentence of speaker and finally to summarize or reflect back what he said.

Why listening is important?

It is our primary communication activity. Our listening habits are not the result of training but rather due to the lack of it.  It is the most important skill that an employer searches before hiring and a patient desperately seeks before consulting a doctor.

Why listening is hard?

We are always pre occupied with the past or future, may not like the speaker or his mannerism, our own anxiety\stress before coming to listen  or often having a idea in mind what the person ‘ should do’, makes it hard to listen to that persons point of view.

Finally a good listener tries to understand thoroughly what the speaker is trying to say. In the end he may disagree sharply but before he disagrees, he wants to know exactly what it is, that he is disagreeing with.

History of Right to Information Act in India

By Divya Jyoti Jaipuriar, Adv.

The Right to Information movement has begun in India when the activists in in Rajasthan to get accountability in the functioning of the state government in early 1990s. People started to question the expenditure by the government and also sought explanation for their non-functioning. This movement, then spread over to other parts of the country and became a massive movement whereby demand from all quarters started to emerge for transparency in Governance.

The movement of Right to information also got impetus from various Supreme Court judgments.  The Hon’ble Supreme Court of India has also interpreted fundamental rights incorporated in articles 19 (1) (a) and 21 of the Constitution of India and said that the Right to Information is the fundamental right of the citizens of India. Supreme Court also took a view that in a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor, which should make one wary when secrecy is claimed for transactions, which can at any rate have no repercussion on public security. But the legislative wing of the State did not respond to it by enacting suitable legislation for protecting the right of the people for long.

It was only in 1996, Justice P B Sawant, Chairman of the Press Council of India at that time, drafted a bill in this regard. This bill took all governmental and non-governmental entities, which perform public functions, into the purview of the Right to information. On 2nd January 1997, Government of India set up a working group on Right to Information and Promotion of Open and Transparent Government’ under the chairmanship of Mr. H D Shouri. The committee came up with detailed report and Draft Freedom of Information Bill on 24th May 1997. This draft provided that not only the Central and the State Ministries, but also public sector undertakings, municipal bodies and panchayats and other bodies substantially funded by Government, would come within the purview of the Act. Later the Consumer Education Research Council (CERC) draft also came up. It was by far the most detailed proposed freedom of information legislation in India. In 1997, a conference of chief ministers resolved that the central and state governments would work together on transparency and the right to information. Following this, the Centre agreed to take immediate steps, in consultation with the states, to introduce freedom of information legislation, along with amendments to the Official Secrets Act and the Indian Evidence Act, before the end of 1997. The central and state governments also agreed to a number of other measures to promote openness. These included establishing accessible computerised information centres to provide information to the public on essential services, and speeding up on-going efforts to computerise government operations. In this process, particular attention would be placed on computerisation of records of particular importance to the people, such as land records, passports, investigation of offences, administration of justice, tax collection, and the issue of permits and licences.

For the first time in 2000, the Freedom of Information Act was passed by the parliament of India. This enactment never came into force as the appointment the officers to execute the act and the modalities to enforce the act were never notified. This act was a weak legislation and was not at all operational. This enactment was replaced by Right to Information Act, 2005 which came into force from 12th October 2005. Prior to this date modalities like appointment of Public Information Officers (PIOs) and other modalities were completed. Now this act is in force and can be used in every state of India.

Now Right to Information Act is completing a decade next year. In last ten years, various people have achieved a lot by using Right to Information Act and in future also, it will be helping many in getting desired information from government functionaries and in making them transparent.

The author is a Supreme Court Advocate and has also authored a book on Right to Information titled Leading Cases on Right to Information.

Leave Entitlements Of Women Employees

By Divya Jyoti Jaipuriar, Adv.

Women employee in any establishment- private or government- has to play dual role. In the office, she has to function as an employee and compete with her male counterpart and at home, she has to look after her family and also to take care of her children. In these two roles, the life of a woman employee becomes very difficult. Keeping in view of the dual role of women employee, the Sixth Pay Commission decided to recommend, inter alia, flexible office timing for women employee, introduction of 730 days of child care leave in her entire service period, extension of maternity leave from 135 days to 180 days, extension of period of leave which can be availed of in continuation of maternity leave from existing one year to two years etc.

While accepting the recommendations of Sixth Pay Commission, Government of India, with effect from 1st September 2008, extended the maternity leave to 180 days and also permitted to avail two years of leave of any other kind in continuation with maternity leave. Government also accepted the recommendation of introduction of Child Care Leave for a period of 730 days in the entire service period for women employees for upto two minor children.

In addition to these leaves available to the women employees, the male employees are also entitled for 15 days paternity leave in case of his wife is pregnant. It is also important to understand that the leave available to the employees of government may not be sought as a matter of right and in cases of public exigencies, the leave may be denied or curtailed. However in cases of Child Care Leave or Maternity Leave, adequate care and requirement of the woman employee at her home front is also required to be taken care of. As a matter of fact, it is also provided in the Central Civil Services (Leave) Rules that efforts should be made to encourage the employees to take leave on annual basis. It is also warranted from the leave sanctioning authority to draw up phased programme for the grant of leave to the applicants by turn. In a recent Supreme Court Judgment in Kakali Ghosh versus Union of India, Supreme Court also held that a woman employee is entitled for uninterrupted 730 days of Child Care Leave. Supreme Court also held that CCL even beyond 730 days can be granted by combining other leave if due.

For a woman employee in private sector, similar facilities are available under Maternity Benefits Act, 1961. Under this legislation, every woman employed either directly or through an agency, is entitled to 12 weeks of maternity leave- 6 weeks prior to her delivery and 6 weeks after delivery. She is also entitled for 6 weeks of leave in case of miscarriage. For illness arising out of pregnancy, delivery, premature birth or miscarriage, a woman employee can take extra leave up to a maximum period of one month. It is also provided that the employer is required to pay a medical bonus of at least Rs. 1,000/- extending to Rs. 20,000/- if the employer is unable to provide free medical care to the women employee. In addition, during the maternity leave, the woman employee is entitled to get average pay.

The Maternity Benefit Act also provides that a pregnant women is entitled for rest during her working hours. The employer is required to give light work for 10 weeks before the date of expected delivery if pregnant woman asks for it. After the delivery, the woman employee is also entitled for two nursing breaks in the course of her daily work until the child attains age of 15 months. In case of tubectomy, operation leave with wages for 2 weeks is also granted to the employee. It is also provided that during the period of maternity leave, there should not be any discharge or dismissal of the woman employee. There should also not be any change to her disadvantage in any of the conditions of her employment while on maternity leave. Pregnant woman discharged or dismissed may still claim maternity benefit from the employer under the Maternity Benefits Act, 1861.

The author is an Advocate practising in Supreme Court of India. He also represented Kakali Ghosh in the aforementioned judgment. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..