Aparajita Bill: The inadequacy of rape law reform

Many so-called women-centric criminal law reforms in India focus heavily on punishment rather than addressing systemic and structural issues, writes Jhuma Sen.

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THE newly passed Aparajita (Woman and Child) Criminal Law Amendment Bill 2024 (Aparajita Bill), despite its allegedly 'progressive' aspirations of securing justice for victims, exemplifies the enduring pitfalls of legal reform that prioritises retribution over addressing the structural violence that underpins sexual violence in India.

It is a familiar spectacle, where the State cloaks itself in the rhetoric of justice by instituting harsher penalties and fast-tracking procedures, yet does little to confront the deep-rooted patriarchal, caste and class biases that inform the everyday functioning of the legal system.

The Bill's focus on punitive justice may satisfy the immediate public demand for accountability, but it overlooks the entrenched institutional failures that deny meaningful access to justice for survivors— particularly those from marginalised communities.

The law, however, cannot merely be a 'quick fix' to social crises; rather, it must interrogate the very epistemic foundations upon which it rests. By failing to engage with the broader socio-cultural conditions in which sexual violence is embedded, the Aparajita Bill risks reinforcing the very structures of power it purports to dismantle, turning reform into a spectacle of punishment devoid of substantive justice.

Law as a site of violence

The law in India has long been a site of violence, and rape law offers a potent illustration of this phenomenon. Far from merely criminalising sexual violence, rape law operates within an entrenched framework of caste, gender and patriarchy, sustaining the very structures of power it claims to challenge.

Much like the proverbial 'double-edged sword', the law's veneer of reform often hides the deep contradictions that allow violence to persist. Reforms in rape law, while celebrated in public discourse, often perpetuate these contradictions, failing to address the fundamental issues of structural inequality.

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Consider, for instance, the historical underpinnings of Indian rape law, established during the colonial period under the Indian Penal Code (IPC) of 1860.

The colonial rulers designed Section 375 of the IPC not with the intent of protecting women from sexual violence, but rather to safeguard the honour of the caste, community and family.

The law, in effect, tethered women's sexuality to the protection of upper-caste women's chastity. As we peer through the lens of legal history, one sees how sexual violence was always about power— about the ability to regulate the female body in service of larger social structures. This colonial logic, unfortunately, remains intact even today.

Enter the Bharatiya Nyaya Sanhita (BNS), the newly enacted code to replace the IPC. Though celebrated as a symbol of post-colonial reform, the BNS retains much of the colonial scaffolding on which the IPC was built.

Its cosmetic changes do little to dismantle the underlying framework that continues to prioritise the regulation of women's bodies rather than ensuring their autonomy.

The Mathura rape case judgment of 1979 provides an infamous illustration of the law's violence. Mathura, a young Adivasi woman, was raped by two policemen while in their custody.

The Supreme Court ultimately acquitted the accused on the grounds that Mathura had 'consented', relying on the grotesque reasoning that, being a tribal woman, she was "habituated to sex".

The judgment reflected not only gendered but casteist biases, revealing how the law reproduces violence through its interpretation of consent. This was not an isolated case but rather a reflection of how Indian rape law historically— and continuously— disciplines and regulates the female body, especially when the woman belongs to a marginalised community.

Despite feminist protests following the Mathura case, which led to the Criminal Law (Amendment) Act, 1983, the reforms introduced were limited in scope.

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While Section 114A of the Indian Evidence Act shifted the burden of proof in custodial rape cases by presuming the absence of consent, it failed to address the larger problem of how consent is produced and interpreted within Indian courtrooms.

Feminist scholars have long pointed out that consent continues to be constructed through a patriarchal lens, casting women as unreliable narrators of their own experiences. The introduction of the concept of consent in the Criminal Law (Amendment) Act, 2013 did little to disrupt this deeply embedded logic.

The Nirbhaya case of 2012 stands as a moment of profound public reckoning with the issue of sexual violence. The brutal gang rape and murder of a young woman in Delhi triggered widespread protests and led to the formation of the Justice Verma Committee, which recommended sweeping reforms to India's rape laws, including the criminalisation of marital rape.

While the Criminal Law (Amendment) Act, 2013 expanded the definition of rape to include non-penovaginal penetrative acts and introduced new offences such as stalking and voyeurism, it failed to adopt the committee's recommendation on marital rape.

Marital law exception

The retention of Exception 2 to Section 375, which exempts marital rape from the definition of rape, is a stark reminder that the State continues to protect patriarchal entitlements. This represents not just a failure of reform but a continuity of colonial governance over women's bodies, unaltered by post-colonial aspirations.

Marriage, as a legal and social institution, remains a site where women's autonomy is routinely subordinated to male entitlement. By maintaining the exception for marital rape, the law reinforces the public–private divide— a division that shields male entitlement to women's bodies from scrutiny under the law.

This exclusion is not an oversight; it is a deliberate choice to preserve patriarchal authority over the female body in the private sphere, an authority that the State remains unwilling to relinquish.

Also read: Pornography, populism and the rape culture

Efforts to challenge this impunity, as seen in Independent Thought versus Union of India, where the Supreme Court criminalised sexual intercourse with a minor wife, have been resisted by conservative social groups and political actors alike. But the broader issue of marital rape for adult women remains unaddressed, leaving a glaring gap in the legal framework for gender justice.

Courts continue to be a site of gendered violence

The consequences of these contradictions are laid bare in Indian courtrooms. Rape trials often become spaces where gendered violence is not just adjudicated but also performed and reinforced.

Take, for instance, Mahmood Farooqui versus State, where the Delhi High Court acquitted the accused on the grounds that the victim's "feeble no" could be interpreted as consent.

The judgment demonstrates how consent continues to be interpreted through a patriarchal and masculinist logic that prioritises the male interpretation of events.

The courtroom becomes a site of re-traumatisation, where the survivor is subjected to invasive cross-examinations about her sexual history, behavior and even dress. Such practices mirror the very violence that the law claims to prosecute, leading to what has been described as rape by procedure.

Legislative reforms are insufficient to address the systemic nature of sexual violence in India. The structural violence that survivors face— whether from the police, judiciary, or medical professionals—often reproduces the hierarchies of power that the law is ostensibly meant to dismantle.

Legal reforms, even when progressive on the surface, do not fundamentally alter the cultural and institutional practices that sustain patriarchal power.

Ultimately, rape law reforms in India remain mired in deep contradictions. The law's violence is not simply a matter of legal interpretation but a reflection of the deeply entrenched patriarchal structures that undergird the Indian legal system.

Also read: Outraging the modesty of a woman under Indian criminal law

The failure to criminalise marital rape, the continued problems with the interpretation of consent, and the re-traumatisation of rape survivors in courtrooms all point to the limits of legal reform.

Any meaningful change must go beyond mere legislative amendments; it must address the broader social, cultural and institutional practices that perpetuate violence against women. Until then, rape law in India will continue to serve as both a mirror and a shield for the structures of power that allow violence to persist.

Viewing rape law reforms solely through the prism of retribution presents inherent limitations. A focus on punitive measures, such as harsher penalties and fast-tracking trials, often fails to address the underlying systemic issues that perpetuate sexual violence.

While retributive approaches may provide symbolic victories, they frequently overlook the broader structural inequalities within the legal system, especially those related to gender, caste and class. Such reforms tend to neglect the institutional biases faced by survivors, particularly those from marginalised communities, and do little to challenge the patriarchal foundations of the judiciary.

The Aparajita Bill, like many similar reforms, focuses heavily on punishment without addressing the socio-cultural contexts in which sexual violence occurs. This narrow approach risks reinforcing the status quo, where the law remains an instrument of power rather than a mechanism for delivering justice.

Without a more holistic, victim-centered perspective that acknowledges the complexity of sexual violence and the structures that sustain it, legal reforms will continue to fall short in bringing about meaningful change.