The aforementioned amendments have made it easy to register a rape complaint,

without the requirement of objective substantiation of the charge. As soon as an

accusation is made, there is an arrest, and aside from the deprivation of liberty, the
filing of such a case, leads to the irrevocable loss of reputation not just for the targeted
individual but also for his entire family who are devastated by the ignominy of the
heinous charge and the trauma of being treated as social outcastes. The media trial
that accompanies rape complaints, especially in cases of high profile public figures,
often influences the judicial process whereby even getting bail becomes a herculean
challenge.

Statistics compiled by government agencies indicate that immediately

following the amendments, there has been a disturbing spur in the filing of rape
complaints which have ultimately been found by courts to be false. The Delhi
Commission of Women (hereinafter 'the DCW') has come out with startling statistics
showing that 53.2% of the rape cases filed between April 2013 and July 2014 in
the capital were found to be .'false'.' The report says that between April 2013 and
July 2014, of the 2,753 complaints of rape, only 1,287 cases were found to be true
and the remaining 1,464 cases were found to be false. The report further reveals that
between June 2013 and December 2013, the number of cases found to be untrue
were 525. Between, January 2014 and July 2014, the number of false rape cases
filed was 900. In many cases, the complainant turned hostile, and investigation
revealed that revenge was the most common reason for filing a false
complaint. In all, in 2013 there were a total of 1,559 cases of rape registered in Delhi,
where the acquittal rate was 78%. This was a 22% jump from the earlier 46% of
acquittal in 2012, when there were a total of 680 cases filed.

In Delhi, The Hindu newspaper conducted a detailed survey, which indicated that
the nature of reported sexual assault in Delhi is far more complex than earlier
imagined. The Hindu analysed all the reported cases and found that one-fifth of these
were ultimately wound up because the complainant either did not appear or turned
hostile, while another 25% had to do with the "breach of promise to marry". The
study revealed further that a total of 583 cases were decided in Delhi in 2013. Out
of the 460 cases which were fully argued before the Sessions Courts,_ nearly 30%
involved elopement of the boy and girl, followed commonly by a complaint of
abduction and rape by the girl's family. In nearly two-thirds of the 174 cases of
elopement, the woman insisted in her deposition before the police, doctors and
magistrates that she was in love with the accused and, in most cases, even got
married. The women also complained that they had been subjected to repeated
beatings and threats by their parents who even, at times, forced them to undergo
abortion. It was further observed in 67 of 174 cases of alleged eldpement that the girl,
though first admitting (either in the FIR, medical examination or to the magistrate)
that she eloped of her own volition, subsequently turned against the accused. In 10
of the cases of alleged elopement, the intercourse though consensual, resulted in 'rape'
since the girl was found to be a minor.

Compiled Statistics for the year 2013 are given below:

Total rape cases decided in Delhi in 2013 – 583

Complainant did riot appear or turned hostile -123

 Cases involving eloped couples or allegedly eloped couples — 174

Breach of promise to marry – 109

alleged rape by neighbour or acquaintance – 111

Alleged rape by immediate family member- 30

Alleged rape by stranger- 12

Others 24

The combination of inadequate professional training poor infrastructure and

endemic corruption in the police force resulting in lax investigations has lead to the

denial of justice to genuine victims of sexual violence on the one hand and on the other

hand, has made it easy to destroy the lives of men falsely accused of rape.

The Petitioner No.1 submits that all of these circumstances have led to a

widespread- backlash of public opinion against feminist movements, and have in

fact, destroyed the legitimacy of women's rights activism. But the irresponsibility

with which a section of women's rights activists have made use of these laws, has

lent almost fascist connotations to feminism, with terms like `Feminazi'

coming into currency. Therefore it is respectfully submitted that this Hon'ble Court

must assess the wisdom of these "women-protection measures" that have proved

ruinous for countless families.

In the background of the horrific gang rape of Nirbhaya and the nationwide outrage over

it, the Central Government appointed a committee headed by Justice J.S. Verma to look

into possible amendments in the criminal law, on the well-intentioned but unfounded

assumption that the existing laws were inadequate to deal with the growing cases of

sexual atrocities on women. In the emotionally charged atmosphere prevailing in

December 2012 - January 2013, particularly in the capital, the Verma Committee

rushed through its deliberations within one month. The haste and lack of adequate
deliberation is evident from the fact that the public hearing organized by the

Committee was held just 48 hours before they were to submit the voluminous report.

The Verrna Committee recommended some draconian provisions even

while it rejected some patently absurd and u n r e a l i s t i c s u g g e s t i o n s m a d e

a t t h e h e a r i n g . T h e recommendations were worrisome since various high courts

in the country as well as the }-Ion'ble Supreme Court have passed several orders 'and

judgements decrying the ease with which laws against dowry, domestic violence and

even rape are being misused. for the purpose of blackmail, extortion and revengeful

retaliation causing havoc in the lives of countless innocent families. However,

without giving enough thought to their likely impact when implemented on the

ground, the Verma Committee recommended certain amendments.

The Criminal Law Amendment Act, 2013 was based primarily enacted in haste. In

the emotionally charged atmosphere that prevailed at the time, Parliament did

not undertake due deliberation of the amendments or debate each clause, anxious

to app6ase public sentiment and enact more stringent rape laws.

The Department - Related Parliamentary Standing Committee 9n Home Affairs

tabled its 167th Report on the Criminal Law Amendment Bill, 2012 before both

houses of Parliament. The Committee considered the various amendments proposed by

the Bill, but made no reference to any discussion as to the reasons as to why the

provisos to Section 376 permitting the award of a sub-minimum sentence were

deleted. In fact, the during the debates in the Rajya Sabha on the promulgation of

the 2013 Amendment Bill, several members of Parliament expressed serious

doubts about the extreme haste with which the Bill was moved, without

appropriate consultation or adequate consideration of the pros and cons that

would result from the passing of the amendment. The One Hundred and Sixty Seventh

Report by the Department-related Parliamentary Standing C om mi tt e e o n

H o me A f fa ir s , o n th e Cr im in al La w (Amendment) Bill, 2012 and the

synopsis of debate in the Rajya Sabha dated 21.03,2013

The 'PC, post the Criminal Law Amendment Act 2013, has categorised sex .al

misdemeanour into two broad categories:- Offences of Sexual Harassment under

S.354A, B, C and 0 IPC and more serious Sexual Offences under the 5.376 series.

$.375 defines rape. 5.376 (1) penalises one category and 376(2) penalises the aggravated

category. S.376A to S.375D penalise rape and sexual intercourse in certain specific

situations, not listed under 5.376 (1) and (2). Notwithstanding such an elaborate

categorisation, in the definition under 5.375, a whole range of acts not hitherto within

the definition of rape have been added, without intelligible differentia even qua

the penalties.

16. In this connection, the statutory history of the provisions and

the discussion surrounding the same through the decades is useful to see,

From the inception of the Indian Penal Code, 1860 the offence of rape was

considered serious enough to be punishable with imprisonment for life or a

term extendable up to 10 :years. However, in recognition of the fact

that circumstances may dictate a wide range of punishments from which

the courts must choose, no statutory minimum. was provided.

17. In- 1983, by the Criminal Law Amendment Act, for the first
 WWW.LIVELAW.IN

was graded in two categories. 5.376 (1) penalises one category and 376(2)

penalises the aggravated category A statutory minimum of seven years

was prescribed for the first category under 376(1) IPC and that of 10 years

was prescribed for the aggray.ted category under 376 (2) IPC. Nevertheless,

it was considered advisable to give the court the discretion to award less

than the minimum sentence "for good and adequate reasons" in respect

of both categories. Sections 375 and 376 IFC, as they read prior to 1983,

post 1983 and post 2013 are extracted in AN EX P-6. A short table

showing the differences in the penal clauses is annexed hereto

as ANNEXURE P-7.

19. In 1971, the Law Commission published its 42 nd Report, where it was observed

at paragraph 16A18 on page 278 of the Report as folto. ws:

"16.118 Section 376 to he amended - In view of the proposed changes in the

definition of rape, the latter part of Section 376 has to be omitted. Further,

in place of the punishment now provided in the section, viz.,

imprisonment for life or imprisonment of either description for ten years,

we propose to : substitute rigorous imprisonment for fourteen years. We

considered the question whether a minimum sentence of savi three pears

nment, should be orovided for this offence,

but decided against Adec nate punishments' are it used by

 WWW.LIVELAW.IN

Sessions Courts by which this offence is ordinarily triable. The section

will accordingly read as follows:

"376. Punishment for rape.---Whoever commits rape shall be punished with

rigorous imprisonment for a term which may extend to fourteen years, and

shall also be liable to fine.''

A true and typed copy of the relevant extracts of the 42'd Law • Commission

Report. is annexed hereto as Al ]N P4

20. In 1980, by its 84th Report, the Law Commission examined the issue as to whether

there should be a minimum penalty for rape. Zxpressing the view that there

should not be a mandatory minimum punishment, the Law Commission

observed at paragraph 2.27 on page 11 of the Report as follows:

"2.27 Minimum punishment nog fievoured.-...it should be noted that a

rule prescribing a certain minimum punishment would not be in consonance

with the "modern penology" which ,'has been of late expounded in many

cases by the Supreme Court. The circumstances in which the offence of

rape is committed diffey from case to case. Section 376, Indian Penal Code

permits the Court to award life imprisonment or imprisonment iipto ten

years. The discretion of the Court in the matter of punishment should not be

fettered by prescribing a certain minimum sentence. If the sentence awarded

is heavy or
 WWW.LIVELAW.IN

light, it can always be corrected by the appellate or revisional court.

A true and typed copy of the relevant extracts of the 84 th Report of the Law

Commission of India is annexed hereto as ANNEXURE P-9,

91. In 1997, while preparing its 156th Report, the Law Commission considered the.

question of mandatory minimum sentencing generally. Its views were as

under (at paragraph 2.17 on page 39 of the Report):

"2.17. ..........by virtue of criminal Lavy Amendment Act of 1983, minimum

sentence in respect of offence of rape has been prescribed under sections

376(1) & (2). A question whether there should be such minimum sentence in

respect of some more offences was debated and ultimately consensus

is that restrictions on judicial pronouncements in the matter of award of

sentence on principle is not a healthy practice. There may be instances

occasionally where judges have failed to award proportionate sentences,

but that cannot, however, be a factor to assume that the judges as a whole

have failed to award adequate sentences. In the 14th Report as well as in the

42nd Report, The Law Commission examined this question and took the view

that except in exceptional cases there should not be any provision for a

minimum sentence. We agree with this view."

 WWW.LIVELAW.IN

A true and typed copy of the relevant extracts of the 156th Law Commission

Report is annexed hereto as AN RE P-10.

22. In the year 2000, the Law Commission again examined the law with respect to

rape. By then, a mandatory minimum of 7 years had already come into the

law by virtue of the amendments of the year 1983. The question was,

whether the provisos to S.376(1) and (2) allowing the court a discretion to

award less than the minimum terms of seven and • ten years prescribed

therein, "for adequate and special reasons" should be retained. The Law

Commission, in its 172nd Report came to the view that a non-negotiable

minimum was unjust and such a proviso was proper, and observed as under :

3,2.2. Views of Sakshi considered.- Though the

representatives of Sakshi have suggested that we should the second

proviso to section 376 (1) and the proviso to section 376 (2)

(which confer a discretion upon the court to award a

sentence lesser than the m i n i m u m p u n i s h m e n t p r e s c r i b e d

b y t h e s u b sections), we are not satisfied that there are any

good reasons for doing so. 411V number 0

situations may arise„ which it is r not possible to

oresee, and which map necessitate the awarding of l e s s e r

punishment than the tiiinchment

prescribed. Safeguarditgyjpst abuse is provided by

 WWW.LIVELAWIN
ti

•requiring that
■•••■•••■•mm;Mi

reasons he mentioned in the hiclament, for aware ina

such lesser punishPnent. Nor

is th er e j rstificat ion in s tie criticism that

such discretion once conferred is liable to be

abused or that it will always be misused t.pA , te

accused. (emphasis -s4pplied)

A true and typed copy of the relevant extracts of the 179' d

report of the Law Commission of India is annexed hereto

as ANNE RE 1-11.

23. This shows that there was an abiding wisdom in providing for

discretion in sentencing and even to award a sub

minimum sentence, in the case of rape. After giving the

matter thought, the Law Commission recommended

retaining the provisos to Section 376 (1) and (2)

categorically dispelling the argument that such a proviso

was prone to abuse. it recognized the truth that in istakes

cannot be avoided by limiting discretion. Mistakes are

corrected by building jurisprudence.

24. In 2003, the ivialimath Committee Report disagreed with the

suggestion that the definition of "rape" under 5,375 1PC

should

include non-penile penetration. The Malimath Committee

felt

that although it did constitute, a serious violation, such acts

must
be categorised and penalised separately. A true and typed

copy
 WWW.LIVELAW.IN

of the relevant extracts of the Malimath Committee Report, 2003 are

annexed hereto as ANNEXURE P-12.

25. A draft bill of 2012 removed the provisos to Sections 376(1) and. 376(2) with

no particular reason assigned for this removal. It was this Bill that the

Verma Committee considered. The Criminal Law Amendment Bill

2012 was introduced in Parliament on 3rd December 2012 and was

referred to the Department-Related Parliamentary Standing Committee on

Home Affairs. After the Nirbhaya incident of the 16 th of December

2012, the Verma, Committee was formed. The Committee largely agreed

with Criminal Law Amendment Bill 2012 and in addition recommended some

more amendments. Pursuant to this, the Criminal Law Amendment Bill 2012

was withdrawn and the Criminal Law Amendment Bill 2013 was

in tr od uc ed in p ar li am e nt , th e D e pa rt me nt - Re la te d

Parliamentary Standing Committee on Home Affairs examined Criminal Law

Amendment Bill 2012 and tabled its report on 1.3.2013 before the Raja

Sabha, and on 4.03.2013 before the Lolc Sabha.

26. The Report contains no discussion of the reasons for which the provisos were

removed, save for Para 2.2.5 at Page 16, Chapter II which merely

contains a bare statement by way of a "Response of the Home

Secretary" that the proviso is being

 WWW.LIVELAW.IN

removed, without any further discussion on the why's and the wherefores of

this course. Para 3.2.29 at Page 33, Chapter III, Para 5.10 at Page. 48, Chapter

V and Para 5.18 at Page 59-60, Chapter V of the 167`11 Report of the

Department-Related Parliamentary Standing Committee on Home Affairs

where this response is recorded is already annexed hereto as part of

Annexure P- 5.

27. The Verma Committee Report of 2013 did not discuss the aforesaid

ratiocinations or the pros and cons of a proviso allowing for a sub-

minimum punishment at all, although it had existed ever since 1983 when a

minimum mandatory penalty was first prescribed for rape. However,

even without any reference or discussion, the resultant law removed the

proviso enabling the court to award a lesser punishment for good and proper

reason. In fact, the during the debates in the Rajya Sabha on the

promulgation of the 2013 Amendment Bill, several members of

Parliament expressed serious doubts about the extreme haste with

which the Bill was moved, without appropriate consultation or adequate

consideration of the pros and cons that would result from the passing of

the amendment. A true and typed copy of Bill No,130 of 2012, being

the Criminal Law Amendment Bill, 2012, is annexed hereto as

-ANNEXURE•P-13.
 '
WWW.LIVELAW.IN 4

28, The widened definition of "rape" and the expanded nature of associated

circumstances have effectively reduced the evidentiary requirements

to establish the offence. With the facture of consent resting entirely on the

prosecutrix, acquittal beconies almost impossible in law if the prosecutrix

sticks to her story even though it may he false. This is not to suggest that

the acts described in the newly constituted Section 375 are not offensive, if

forced upon a woman. However, the fact that many of these acts are incapable

of being verified by medical corroboration would make it easy for false

complaints to be filed, and also, to succeed.. In short, if a woman is so

minded, she can 'repeatedly assert that a rape occurred, even if it is false and

subject the accused to the agony of a prosecution and even incarceration.

Therefore, even though the acts listed in the amended 5.375 IPC are

offensive, there should nevertheless be a gradation inter-se, at least with

regard to the penalty. Otherwise, the provisions are seriously liable to

misuse.

29. It is submitted that even without going into the constitutionality of mandatory

minimum sentences generally, it may be pertinent

• to note the views of several legal scholars of other democratic jurisdictions,

who have 'consistently , held that mandatory minimum penalty laws do not

achieve any of the purposes of punishment necessitated by criminal

philosophy, namely: deterrence, retribution, incapacitation or

rehabilitation. For
 WWW.LIVELAW.IN

example, scholar Michael Toney, who is widely regarded as an expert in

sentencing theory has long been of the view that such penalties

" a c c o m l i s h f v o f t h e i r s t a t e d o b j e c t i v e s and J l • e r a n t e d

c o y s e r e r c e 4 . ' e ar d e t e r r e n t e ' a c t s ranue rom nonexistent

to short4ived... They sometimes result in imposition ofpenalties more severe

than anyone immediately

involved believes appropriate." It is perhaps for this reason that US Supreme

Court Justice•Anthony Kennedy was compelled to state that he "... can

neither accept the necessity nor the wisdom of federal mandatory

minimum sentences In too many cases, mandatory minimum sentences are

unwise or unjust." Sonic of the leading studies which bring to light the

profound shortcomings of mandatory minimum sentences globally are:

1. Declan Roche, "MANDATORY SENTENCING", Trends and

Issues in Crime and criminal Justice, Australian Institutue of

Criminology (December 1999)

ii. Barbara S. Vincent & Paul J. Hofer, "MB

CONSEQUENCES OF MANDATORY MINIMUM SENTENCINQ

TERMS: A SUMMARY OF RECENT TRENDS", F e d e r a l

Judicial Centre (1994)

i i i . Attorney-General Robert Clark "MANDATORY MINIMUM SENTENCING",

Law Institute of Victoria (June 2011)

 WWW.LIVELAW.IN

True extracts of the relevant portions of the above cited research

material is annexed hereto as ANNEXURE P44 {GOLLY).

30. Additionally, legal philosophers of great renown have consistently

been of the view that the fundamental requirements Of just sentencing namely

that there be 'proportionality between the gravity of the offence and the degree

of responsibility of the offender to the crime is grossly affected by the

imposition of mandatory minimum sentences, The removal of judicial

discretion has been regarded as extremely problematic. On

proportionality, the position is summed up best by the Constitutional Court

of South Africa in S v Dodo 2001 (5) BCLR 423 (CC)] which observed

that: "To attempt to justify any period of penal incarceration, let alone

impris,onment for life.., without inquiring into the proportionality between

the offense and the period of imprisonment, is to ignore, if not to deny, that

which lies at the very heart of human dignity. Human beings are not

commodities to which a price can be attached ... they ought to be treated as

ends in themselves, never merely as means to an end. Where the length of a

sentence, which has been imposed because of its general deterrent effect on

others, bears no relation to the gravity of the offence the offender is being

used essentially as a means to another end and the offender's dignity

assailed."
 WWW.LIVELAW.IN

31. On the removal of judicial discretion, Prof. Mary Manikis was compelled to

observe that, "the removal of judicial discretion to the judge can be extremely

harmful since it does not provide judges with s2,11fiCient latitude to

assess the moral blameworthiness of the offender or specific

circumstances of the offence and offender. Mitigating factors that are

hugely important in sentencing might therefore not be given adequate weight

which creates disproportionate and unduly harsh sentences". Some

further material on these aspects is found within the following bodies of

work:

1. Nadim Khan, "THE ABSURDITY OF MANDATORY MINIMUM SENTENCES",

The McGill Daily (February 2015)

ii,Raji Mangat, "The Costs of Mandatory Minimum Sentencing:

More Than We Can Afford:", British Columbia Law Association

Publication (2014).

32, The Petitioners submit further that though mandatory minimum sentences are

found in several COMM011 law countries throughout the world, they

are very often accompanied by the power.. to award sub-minimum

sentences in exceptional circumstances. This is clearly evidenced by a

2005 report commissioned by the Canadian Government, which undertook a

detailed study of the laws in Canada, England and Wales, Scotland,

Republic of Ireland, South Africa, Australia and New

 WWW.LIVELAW.IN

ur

Zealand, and concluded that: "This report has demonstrated that while

mandatory sentences of imprisonment proved popular in the 1990s

across a number of common law jurisdictions, closer examination of the laws

reveals that many countries allow courts the discretion to sentence below

the minimum when exceptional circumstances exist." A true and typed

copy of the relevant extracts of the report titled "Mandatory

Sentences of Imprisonment in Common Law Jurisdictions: Some

Representative Models" is annexed hereto as ANN -XU P-15. Indeed, the

Petitioners submit that as demonstrated by the reports of multiple Law

Commissions of India, adverted to earlier, this was the mode of

sentencing preferred by top Indian legal scholars as well.

33. The Petitioners would like to point out that even in the context of sexual

assault, certain feminist scholars have not favoured the imposition of

mandatory minimum sentences. A sample of some of this material for the

convenience of the Court is as follows:

i.Meghan R.acklin, "WHY MANDATORY MINIMUM SENTECINGFOR

SEXUALASSAULTISNTTHEANSWER", The Establishment (July 2016)

ii.Nora Caplan Bricker, "MANDATORY MINIMUM SENTENCE LAWS ARE THE

WRONGRESPONSETOTHEBROOKTURNER CASE", Slate

 WWW.LIVELAW.IN

True and typed copies of the relevant extracts from the above . report are

annexed hereto as ANNEXURE P-16(Colly).

,3 4. Global experience has confirmed that it is not that severity of punishment but

the certainty of punishment which brings down crime in any society.

Unfortunately, in India it is often seen that shoddy investigation damages

cases or the victims are intimidated into withdrawing cases. Similarly, the

delays in the legal processes and the enormous expense of time; energy and

resources involved in litigation prevent a vast number of genuine:

victims, from seeking justice. This enables many offenders to get away

with even heinous crimes. Instead of removing these infirmities in our

police and criminal justice system, the tendency is to add draconian

provisions to each such law whose ineffective implementation agitates the

public, leading to disenchantment with the law and order machinery. Instead

of strengthening and orofessionalizing the institutions responsible for

providing safety to citizens and delivering justice, the resort is often to

knee jerk alteration of legal provisions that trample on the sacredness

associated with due process -requirement. This is turn provides more

arbitrary to powers to an already, unaccountable and inefficient police so

that laws becomes more and more amenable to abuse and misuse, In

short, the failure of the criminal justice system in using existing laws with

integrity cannot be compensated

 WWW.LIVELAW.IN

enacting amendments that trample on the constitutional rights of citizens to

fair trial through non-partisan laws.

3 5 . The stated aim of feminism is to assert the principle of equality. No doubt, the

Indian Constitution recognizes that women suffer

a great deal of disadvantages in our society and hence need

special measures for their protection. With that in view, several

special laws have been enacted to strengthen the rights of

women in areas where they get treated unfairly. However, such

special measures should not end up being so heavily weighted

against men that they defeat the very purpose of delivering justice and

instead trample on the rights of men and their families, especially those

that are wrongly implicated. Gender equality should mean equality before law.

This principle cannot be done away with even if special protection

measures are necessary in favour of women.

36. Women do not constitute a homogenous category in India or anywhere else in

the world. On the one hand, India has women

without education in living in grinding poverty and lacking support systems.

On the other hand, there are a growing class of women from elite educated

families who have been given all the opportunities to compete with men

and even come out

winners. In between these two extremes are a whole range of :women with

varying degrees of advantages and disadvantages.

 WWW.LIVELAW.IN

To assume the same level of victimhood for all categories of women and to

place the same lethal weapon by way of draconian laws. in the hands

of all women without regard to their circumstances while assuming all men

are always wrong doers and exploitative of women under all

circumstances amounts reverse discrimination which can have lethal

consequences.

37. As a consequence of the Criminal Law Amendment Act 2013, even those acts

that are completely incapable of medical corroboration are included within

the definition of rape. Furthermore, a crucial aspect of sexual intimacy, i.e.

consent, now rests effectively on the sole word of the prosecutrix as it is very

difficult to establish by circumstantial evidence. Even cases arising from

prevalent social contexts of consensual intimacy involving women

approaching 18, will now constitute statutory rape. The social context is

also no longer one in which women hesitate to come forth with rape

complaints. On the contrary, disappointed women in many failed relationships

resort to a complaint under Section 376 IPC. In view of the settled principle

that the sole uncorroborated testimony of the prosecutrix is sufficient for a

conviction, a large number of cases of consensual sex now fall within the zone

of criminality. "Crying rape" is commoner than it used to be. This

phenomenon has been noted by criminal courts. A man unjustly

 WWW.LIVELAW.IN

accused of rape is as much a victim and the family of a rape accused is

devastated by the process of prosecution. Therefore, an effective law can

only be one that enables the sifting of genuine cases,• rather than one that

makes prosecution easy. This Hon'ble Court, must, therefore review the

Criminal Law Amendment Act 2013, both in terms of its actual working

and in terms of its fidelity to due process norms.

38. The petitioners have not filed any other petition in any other court and

Supreme Court seeking the same reliefs. They are moving this Hon'ble

Court on the following amongst other grounds which are in the alternate and

without prejudice to one another:

GROUNDS

I. Rape is indeed one of the most heinous offences and its

widespread occurrence in society is a matter of collective shame for any

society. Hence combating the culture which gives rise to rape requires

not just effective laWs but also collective resolve of the entire society,

especially the moral torch bearers of that society. However, when laws

are not judiciously crafted, when draconian provisions are added as

compensation for failure of the law and order machinery to ensure security

of life leading to easy abuse of law, it leads to mistrust and disrespect

towards all institutions meant for enforcing law and order 8.7.,

dispense justice. The resultant

 WWW.LIVELAW.IN

cynicism 8z,- nihilism among citizens destroys the collective resolve and

ability of society to combat crimes. When women, who are traditionally seen

as the moral conscience of society and hence worthy of reverence and special

protectibn measures, are found to be misusing and abusing laws enacted for

their protection, it delegitimizes the very idea of special measures for protection

of women. The misuse of the above mentioned provisions for the purpose

of blackmail, extortion, revenge and other malaficle purposes goes to

confirm that whichever individual or group in society, irrespective of

gender, caste or class, is bestowed with legal power to tyrannize others for

its own benefit, will invariably end up doing so. That is why the princip16

of constitutional equality--which becomes meaningless without

equality before law courts—cannot be compromised under any

circumstances.

IL Ttie widening of the definition of "rape" to encompass even

non-penetrative acts is not only irrational, unreasonable and unfair but is

also grossly violative of due process, not only because such acts incapable

of medical corroboration, but also in light of the fact that the sole testimony

of a Prosecutrix is sufficient for a conviction, It is submitted that the result

of these alterations in the law has been that a man may be subjected to

the full brunt of the criminal law and the obvious, concomitant loss of

reputation merely on account of the circumstance of his having been alone

in the company of a
 WWW.LIVELAWIN
117

woman. Both the unfairness as well as the very real threat to due process

are imminently evidenced by detailed material collected and published by

organisations of unimpeachable credibility such as the Delhi Commission for

Women, showing the disproportionately large number of false prosecutions,

the largest percentage of which have been actuated by revenge. The Petitioners

subhiit therefore, that the prevalent circumstances mandate review of the

existing legal framework.

III. There can be no cavil with the fact that certain acts other than

peno-vaginal intercourse, if forced upon women deserve strict censure from the

criminal law. However, the classification of a range of disparate acts as rape

and equation of punishment for these various acts is patently violative of the

principle of proportionality in sentencing. It is submitted that it is well

known that one of the fundamental principles of even a purely retributive

criminal law, is that punishment must bear a clear relationship with the

nature of the offence committed. The failure to thus appropriately grade

acts according to their severity, is arbitrary, and violates Article 14 of the

Constitution of India. The clubbing together of persons who are accused of

the commission of widely differing acts is patently irrational, and can have

no nexus to any rational objective of a valid criminal law.

I. In the case of penal law, it is not sufficient only to construct an offence. It is also

necessary to factor in the process by which a

 WWW.LIVELAW.IN
t6;
court can objectively assess its occurrence or otherwise. The current

provisions are such that even to acts of consensual sexual intimacy, the

colour of rape can be given at will. Therefore, even if these acts are

retained as criminal offences, the principles of justice require that there

should a gradation in the criminality accorded to them, otherwise two ends of

a very wide spectrum, i.e. a misunderstanding of signs within a

friendly relationship and a Nirbhaya like situation end up getting treated

as equal offences. This was also the view of the Malimath Committee. The

reasons for not providing for a statutory minimum and a total discretion

in sentencing was . clearly that, although rape is a heinous offence, there

exists a clear possibility of intimate consensual relationships acquiring the

colollr of rape.

V. At any rate, since non-consensual sex is necessarily punishable,

in order to avoid injustice there must be a gradation of penalties for acts that

are statutorily defined as rape and discretion must be vested with the judge in

the matter of awarding punishment. Th-is is particularly important because

while a sexual act of ambiguous import. may technically constitute rape if the

woman denies consent, the circumstances may nevertheless dictate the

imposition of a lesser penalty. However, courts have been left incapable of

delivering such justice because of the statutory minimum of seven years, (in

the case of S.376(1) IPC) coupled

 WWW.LIVELAW.IN

with the absence of discretion of awarding a lesser sentence. It is also

precisely for this reason that a mandatory minimum of seven years, particularly

without the discretion to award less for good and adequate reasons becomes

dangerous.

I. The removal of the discretion to award a sub-minimum sentence in

exceptional circumstances, particularly for the offence of rape, wherein

the absence of direct evidence is equally likely to prejudice the accused,

and the sufficiency of the word of the prosecutrix would in any event

place the accused at a severe disadvantage patently offends the rights of

accused persons under Article 21 of the Constitution of India. It is well

settled that penal provisions must necessarily stand in a just and

proportionate relationship to the gravity of the offence and to the

blameworthiness of the offender. This principle can be derived from

the basic structure of the :constitution itself and is quite justifiably

deduced from Article 21. For an excessively heavy or gruesome

punishment or minimum punishment, without giving the discretion to a

judge to award a lesser sentence in appropriate cases, amounts to a disregard

of the human personality and therefore infringes upon Article 21 as well as the

internationally well-known principle of proportionality. The principle of

equity too dictates that punishment must be oriented to the degree of

blameworthiness,
 WWW.LIVELAW.IN

2°

and the removal of judicial freedom to do so offends Article 14 as well.

VII. Successive Law Commissions have advised both against a mandatory

minimum and against removing the proviso, giving the judge discretion to

award a term less than 7 years. This is also in consonance with the practices

in many other common law democracies, wherein mandatory minimum

sentences are most often accompanied by the discretion to award a sub-

minimum sentence.In this regard, the Verma Committee deliberations, do

not contain any discussion at all on whether and why the proviso to Section

376(1) should be dropped.

Indeed, a mandatory minimum sentence is regarded with severe disquiet. by

legal scholars. The scheme of the IPC itself would show that except for full-

fledged murder under Section 302 1PC and the actual act of waging war

against the State, few other offences are punishable with a statutory minimum.

Even in the case of culpable homicide under Section 304 IPC, only an

upper limit is prescribed. So too for offences against the state such as

Sections 121A and 124A PC. Out of around 300 offences only about 25

have mandatory minimums sentences. A mandatory minimum extending to

seven or more years is a recent (mainly post-2013) phenomenon, except for

robbery with preparation or 'attempt to cause death or "dowry death' under

 WWW.LIVELAW.IN

S.304 B 'PC. It is mainly after 2013, that a host of penalties carrying as high

a minimum as seven years has been prescribed, even when there is no attendant

violence or preparation to cause death. In such cases as `robbery' and

"dowry death" the ambiguities that often surround the circumstances of

'rape' are absent. The provision of a mandatory minimum of 7 years for "rape"

is not informed by a similar logic as S.304 B IPC or robbery and is hence

arbitrary, particularly because it has been widely recognized by scholars that

there is a wide spectrum of such cases and many may dictate the awarding of

much lower sentences than 7 years. Therefore, the removal of the proviso

i.e. the removal of judicial discretion to award less than seven years in 5.376

(1) is not only dangerous but also arbitrary.

IX. A perusal of the cases in which resort has been had to the proviso to

reduce the punishment, to less than the mandatory minimum even by

appellate courts would argue for its abiding utility. The High Courts and the

Supreme Court of India have, on several occasions, upheld such a discretion

if exercised by the trial court, or corrected it if considered improper.

X. The number of rape complaints that turn out to be frivolous or motivated by

spite as has been noted by many judges should indicate the dangers of

widened definitions and abridged judicial discretion. It is submitted

that there is compelling

 WWW.LIVELAW.IN

evidence as found in newspaper reports and reported judgments,

that the law on rape, instead of advancing the rights and protections of Indian

women has had several unintended consequences, and has in some instances

proven to be grossly counter-productive in its operation. Not only has the law

been shown to be open to serious abuse, causing the ruin of innocent lives and

causing families to be ripped asunder by false allegations, it has also

had a deeply harmful effect on the professional advancement of women

in Indian society. It is submitted that, there is a prevalent public

perception that women employees are 'more trouble than they are worth,'

with some employers specifically choosing not to employ women for fear of

the risks of being implicated in false or exaggerated prosecutions. These

circumstances have also brought disrepute to and eroded the legitimacy of

those activists who have bravely championed the cause of women's rights for

the entire duration of their careers. The result of this is that the very notion

of feminism, which should be an unquestioned part of any modern democracy,

stands forever tainted in the minds of the Indian

Noted categories of frivolous complaints are as under:

a) Punishing a lover or live-in partner for refusing to get married: Sadly,

the police have not hesitated in registering rape cases on the basis of

bizarre complaints whereby the

 WWW.LIVELAW.IN

concerned woman has termed the entire period of a live-in- relationship or

years of voluntary intimacy as a case of repeated rapes. This when most such

women don't deny that the sexual/ live-in i-elationship was voluntary and not

a forced affair. The very premise of a live-in-relationship is that either of the

two partners can walk out of the relationship if they feel it is no

more viable To say that a man is legally obliged to many a woman he has .had

sex with and failure to do so will mean a long prison term is to play with fire.

b) Punishing a man for refusing to give a fob or promotion or refusal to

enter into a relationship. Such cases have unfortunately become very

common. One of the most striking examples of such abuse of rape law was the

case filed against famous film director, Madhur Bhandarkar by an

aspiring actress, who alleged that Bhandarkar had "raped her 16 times

between 1999 and 2004 on the pretext of casting her in his films." The

case was quashed by the Supreme Court nine years .later on 5th November 2012

noting that the lady did not want to pursue the case against Bhandarkar and the

Mumbai police had earlier given a clean chit to the film director. This is

not to comment on the merits of the claim of the man concerned that he was

an innocent victim of blackmail. The lady's open admission that she

repeatedly agreed to have sex with him as a quid-pro-quo for a film role is,

however, illuminating. The

 WWW.LIVELAW.IN

projection of such a person as a rape victim causing enormous harm to

reputations all around. and is simply not what is contemplated by the

objectives of equality, women's security or justice. This is not to deny the

prevalence of sexual exploitation of women with the lure of attractive job

offers, job promotions or modelling and acting assignments. But such

unsavoury deals should not come under the purview of anti-rape law.

c) Voluntary elopement by teenagers being registered as rape and

abduction charges: As pointed in the data provided by Delhi Commission

for Women, a large number of rape cases pertain to young women eloping

with their lovers or get married to young men disapproved of by their

parents on account of difference in caste, religion or social status. Even

though the act of elopement is voluntary, the parents of young girls invariably

file abduction and rape cases against the young man. If the girl happens to be

even a few weeks below 18, the charge will be "made out". Countless young

lives have been ruined on this account. In the recent past, the courts had

taken note of the prevailing realities and have acquitted such accused or

resorted to the discretion to award a sub-minimum sentence, but the power

to do so has now been curtailed. Eventual release notwithstanding the

ease with which young men can be incarcerated for engaging in

consensual sexual relations with women of like age is cause for worry.
 WWW.LIVELAW.IN

et
n

d) The easy sustainability of a nape charge under the new law has turned the

threat of a rape complaint into a pressure tactic. The Petitioner No.1

is aware that unscrupulous policenen are running well-organized extortion

rackets using male and female sex workers for blackmailing respectable

citizens with the threat of trumped up cases of rape or sexual assault. In cases

where sex workers either trap an unwitting person or voluntarily engage in

commercial sex with him, the charge can even be medically corroborated

through DNA examination of the semen. This is not to condone engaging in

prostitution by men but merely to point out the unfairness of taking ,the word of

the prosecutrix as gospel truth added to the provision that the last sexual history of

a woman including the fact of her being a sex worker cannot be used as

evidence against her. While there is no denying that even commercial sex

providers have a right to say 'No' when they so desire, and have their 'No'

taken seriously, it is nevertheless relevant to show the many dangers of

rendering rape prosecutions easy in an atmosphere prone to abuse.

I. The result of these alterations in the law has been that a man may be

subjected to the full brunt of the criminal law and the obvious,

concomitant loss of reputation merely on account of

 WWW.LIVELAW.IN

allegations of rape or sexual assault, all because the "due process"

requirement has been seriously undermined through the 2013 amendments in

the rape law. its harmful consequences became so widely apparent thai. the

Delhi Commission for Women, whose official mandate is to offer support

and help female victims of atrocities, was compelled to carry out a

comprehensive review of rape cases in Delhi to assess the validity of the

charge that the law was being widely misused. The data collected by the

DCW establishes that there is increasing trend of prosecutions based on

false charges, with a large percentage actuated by revenge.

XII. The abuse of anti-rape law becomes much easier because of the strict provision

that the identity of the prosecutrix is to be kept anonymous while the identity

and even photographs of the accused are freely broadcast on television and

publicized on print media. This in effect means that getting a man arrested

and defamed on false charge of rape involves zero risk for unscrupulous

women especially considering that in our legal system, even after falsity

and malafide nature of charge is proen in court. A false and malafide rape

case ends up ruining , not just the life of the concerned individual but also the

entire family, especially if the person concerned has old parents or young

children of impressionable age. It can also ruin the

 WWW.LIVELAW.IN

marital life of the targeted man as well as his professional career,

XIII. Indeed,' all manner of sexual misconduct even those other than peno-vaginal

intercourse, deserve due punishment through a due process trial under

the criminal law. However, the classification of a range of disparate

acts as 'rape' and the provision of identical. punishments for widely varying

acts is patently violative of the principle of proportionality in

sentencing. One of the well known fundamental principles of even a purely

retributive criminal jurisprudence is that punishment must bear a fair

relationship with the nature of the offence committed. The failure to

appropriately grade offences according to their severity, is arbitrary, and

violates Article 14 of the Constitution of India. The clubbing together of

accused persons who are accused of committing widely differing acts in terms of

severity of consequences is patently irrational, counterproductive Sr, lends itself

to miscarriage of justice while undermining the integrity of our judicial

system.

XIV. Draconian provisions have failed to act as deterrent in criminal law generally

and in rape law in particular. It has also been proven beyond doubt that the

2013 amendments have failed to act as a deterrent to sexual atrocities. There

is no decline in
 WWW.LIVELAW.1N

either the number of rapes being committed every year nor in the brutality

accompanying rapes. It is worthwhile to recall that far reaching amendments

in rape law were enacted in1983 following the rape of young woman named

Mathura who was raped in a police station in Maharashtra. It led to a

furore similar to Nirbhaya rape case. The 1983 amendments fixed a minimum

jail term for rape to 7 years with 10 years for custodial rape, In case of

death due to brutal rape, they provided for life imprisonment as well as death

sentence. But none of these provisions proved effective in curbing sexual

crimes against women which appear to have actually become more

rampant and more gruesome. Leave alone curbing incidents of rape in

secluded places or in privacy of homes, the law and order machinery has

failed to curb even custodial rapes in thanas and hospitals. Similarly, after

the 2013 amendments, cases of gruesome forms of rape, including more

and more child rapes, no less brutal than the Nirbhaya case are being

reported on a daily basis. Gang rapes have also become alarmingly

frequent. What is worse, rape is being treated as a youthful sport by

lumpenized youth, many of who proudly post video recordings of the acts of

gang or individual rape on social media. This clearly shows that instead of

growing fear of the existing stringent anti rape law, people are cocking a

snook at the law enforcement agencies.

 WWW.LIVELAW.IN

V. In recent years, it has become common practice for rapists to disfigure the

women and tear her body into shreds or burn her to death so that the victim

does not survive to tell the gruesome tale. Newspaper reports indicate

that cases of rape & disfigurement followed by murder have become more

common after 2013. This is because of the common perception that one can

get away with rape, murder and heinous crimes if one can l3uy the complicity

of the police, The recently released movie Kaaba is latest in the long list of

films to provide a nightmarish but true to life account of how police are

routinely complicit in covering up genuine cases of rape, while those raising

their voice against such violence and seeking justice end up

brutalized. The popular imagination has correctly identified the system as

failing justice, and this cannot be corrected by makingdraconian laws,

which will only serve to aid injustice, by concentrating power in the hands of

an unaccountable police force.

XVI, The Petitioner No. 1 has net with and made recommendations to three

successive Law Ministers as well as the Law Commission seeking a

review of the law. There is a hesitation to confront the issue becalise it

will be projected as anti-women. There has been no response to her

requests