NIRBHAYA RAPE CASE: A FEMINIST JURISPRUDENTIAL

ANALYSIS

Submitted by

Aishwarya R Geddada

Reg. No. BA0150004

Under the Guidance of

Ms. Pranusha Kulkarni

Assistant Professor

TAMIL NADU NATIONAL LAW SCHOOL

(A State University established by Act No. 9 of 2012)
Tiruchirappalli
Tamil Nadu 620 009

MARCH 2017
Ms. Pranusha Kulkarni
Assistant Professor in Jurisprudence
Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu 620 009

CERTIFICATE

This is to certify that the project work entitled Nirbhaya Rape Case: A
Feminist Jurisprudential Analysisis a bona fide record of the research work
done by Aishwarya R Geddada, under my supervision and guidance. It has not
been submitted by any other University for the award of any degree, diploma,
associate ship, fellowship or for any other similar recognition.

Place: Tiruchirappalli

Date:

Signature of the Guide

Aishwarya R Geddada
Reg. No. BA0150004
II B.A., LLB., (Hons.)
Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu 620 009

DECLARATION

I, Aishwarya R Geddada, do hereby declare that the project entitled Nirbhaya

Rape Case: A Feminist Jurisprudential Analysis submitted to Tamil Nadu

National Law School in partial fulfillment of requirement for award of degree in

Under Graduate in Law to Tamil Nadu National Law School, Tiruchirappalli, is my

original research work. It and has not been formed basis for award of any degree or

diploma or fellowship or any other title to any other candidate of any university.

Counter Signed Signature of the Candidate

Project Guide
 ACKNOWLEDGEMENT
At the outset, I take this opportunity to thank my Professor Ms. Pranusha Kulkarni,

Assistant Professor from the bottom of my heart who has been of immense help

during moments of anxiety and torpidity while the project was taking its crucial

shape.

Secondly, I convey my deepest regards to the Vice Chancellor Kamala Shankar and

the administrative staff of TNNLS who held the project in high esteem by providing

reliable information in the form of library infrastructure and database connections in

times of need.

Thirdly, the contribution made by my parents and friends by foregoing their precious

time is unforgettable and highly solicited. Their valuable advice and timely

supervision paved the way for the successful completion of this project.

Finally, I thank the Almighty who gave me the courage and stamina to confront all

hurdles during the making of this project. Words arent sufficient to acknowledge the

tremendous contributions of various people involved in this project, as I know

Words are Poor Comforters. I once again wholeheartedly and earnestly thank all

the people who were involved directly or indirectly during this project making which

helped me to come out with flying colors.

AISHWARYA R GEDDADA

4
 CONTENTS

Introduction.......06

CHAPTER I: NIRBHAYA RAPE CASE

I(1): Facts of the Case ................07

I(2) Aftermath.09

I(3): Criminal Law Amendment Act, 2013 ....09

I(4): Nirbhaya Fund......12

I(5): BBC- Indias Daughter.....13

I(6): Judgement Analysis..15

Chapter II: FEMINIST JURISPRUDENCE ON RAPE

III(1): Introduction ....16

III(2): Traditional definition of Rape..18

III(3): Liberal Feminism on Rape...18

III(4): Radical Feminism on Rape ..........................19

Chapter IV: CONCLUDING REMARKS

IV (1): Critical Analysis..........22
IV (2): Conclusion.......23

Bibliography..........24.

5
 JURISPRUDENCE

NIRBHAYA RAPE CASE: A FEMINSIT JURISPRUDENTIAL

ANALYSIS
I have never been free of the fear of rape. From a very early age I, like most women, have
thought of rape as part of my natural environmentsomething to be feared and prayed
against like fire or lightning. I never asked why men raped; I simply thought it one of the
many mysteries of human nature.1

INTRODUCTION:

In December 2012, a twenty-three year old paramedic student, who was given the pseudonym
Nirbhaya (fearless), was fatally gang-raped on a private bus in Delhi2, India, pushing the
country to swiftly adopt new legislative measures and catapulting the issue of violence
against women in India into the international spotlight. Although assault and rape cases have
made India infamous for its high volume of crimes against women, the reaction to this
particular incident was very different from before.
Rape and the issue of violence against women in general have been endemic to Indian
society, with high profile cases capturing national and international attention for brief bouts
of time before dying down and becoming part of commonplace history. This is an ironic
phenomenon, considering the majority of the population religiously worships female
goddesses who represent courage, prosperity, and power.
It is not that the rape of girls and women is a new phenomenon in India. According to the
National Crime Records Bureaus 2011 report3, a woman is raped every 22 minutes in India
and more saddening is the fact that there were 572 cases of rape reported in Delhi alone in
20114. The national figure goes into tens of thousands. But, the display of anger and

1
Susan Griffin, Rape- The All American Crime, Ramparts Magazine, 1971 Sept.
2
Reetinder Kaur, Representation of Crime against Women in Print Media: A Case Study of Delhi Gang Rape,
Punjab University, Chandigarh, 2015.
3
Ministry Of Home Affairs, National Crime Records Bureau, Crime in India 2012, Chapter 5,
http://ncrb.gov.in/
4
Amarnath Tewary, Analysis of the many shades of the Delhi Gang rape case, Published on 10.01.2013.
https://asiancorrespondent.com/2013/01/analysis-the-many-shades-of-the-delhi-gang-rape-
case/#BWbb519XOiikrMD4.99, Accessed on 27.03.2017.

6
frustration over the infamous December gang rape was unprecedented and for the very first
time, India woke to the violence being committed against women.

Feminist Jurisprudence seeks to analyse the contribution of law in constructing, maintaining,

reinforcing and perpetuating patriarchy and it looks at ways in which this patriarchy can be
undermined and ultimately eliminated.5
Feminist views of rape can be understood as arrayed on a continuum from liberal to
radical. Liberal views tend to regard rape as a gender-neutral assault on individual
autonomy, likening it to other forms of assault and/or illegitimate appropriation, and
focusing primarily on the harm that rape does to individual victims. More radical views,
in contrast, contend that rape must be recognized and understood as an important pillar of
patriarchy.

CHAPTER(I): NIRBHAYA RAPE CASE:

I(1): FACTS OF THE CASE
On the night of December 16, 2012 the brutal gang rape of a 23 year old paramedical student,
Jyoti Singh, by six men on a moving bus in the national capital shook the nation for the sheer
brutality and torture inflicted on the helpless girl.
Popularly referred to as Nirbhaya or Brave heart, she and her male friend, Awindra
Pandey, boarded a private bus with tinted windows, assuming that the accused were in fact
their co-passengers. The perpetrators were Ram Singh, the main accused bus driver (age 35);
his brother, Mukesh Singh (age 29); Vinay Sharma, an assistant gym instructor (age 18);
Pawan Gupta, a fruit seller (age 19); Akshay Thakur, unemployed (age 28), and Mohammed
Afroz, a juvenile at the time of the crime who was called Raju for anonymity (age 17)6.
They started harassing her, which soon led to an altercation and over powered them, took all
their valuables, beat the male friend to pulp and then proceeded to take turns to rape Nirbhaya
at the back of the bus. What happened in those 86 minutes was so horrific- they raped her,
mutilated her, damaged her internal organs using a rusted iron road and even took out her
intestines. After 86 minutes, they stripped them both naked and threw them out of the bus-
some reports even say that the bus driver tried to run them over. They were in such an

5
ME John, Discrepant Dislocations: Feminism, Theory, and Postcolonial
Histories (Berkeley: University of California Press, 1996)
6
Lapsia, Tina P., "Impact of the Nirbhaya Rape Case: Isolated Phenomenon or Social Change?" (2015).
Honors Scholar Theses.

7
inebriated state that, while taking turns to rape her, they kept circumventing the same area,
which resulted in them getting caught on tape. Throwing both of them out of the bus, the five
accused went about to clean the bus to get rid of the evidence. She fought bravely but she
suffered fatal injuries and was admitted to Delhi's Safdarjung Hospital. Despite the best
efforts by the doctors, her condition kept on deteriorating and she had to move to a Singapore
hospital even as thousands of youngsters protested on the streets of Delhi demanding justice
for her. She finally succumbed to her injuries on December 29, 2012.
One of the perpetrators of the crime was a juvenile who was sent to a juvenile home for just 3
years while another accused died mysteriously in the jail during the trial.

In the 33-page charge sheet Delhi police have accused five of them of murder, gang rape,
attempt to murder, kidnapping, unnatural offences, dacoity, hurting in committing robbery,
destruction of evidence, criminal conspiracy and common intention under the Indian Penal
Code7.

The main accused, Ram Singh, died in police custody from possible suicide on 11th March
2013 in the Tihar Jail8. According to some published reports, the police say Ram Singh
hanged himself, but defense lawyers and his family suspect he was murdered.9 The rest of the
accused went on trial in a fast-track court; the prosecution finished presenting its evidence on
8th July 2013. The juvenile was convicted of rape and murder and given the maximum
sentence of three years' imprisonment in a reform facility. On 10th September 2013, the four
remaining adult defendants were found guilty of rape and murder and three days later were
sentenced to death by hanging. On 13 March 2014, Delhi High Court in the death reference
case and hearing appeals against the conviction by the Lower Court, upheld the guilty verdict
and the death sentences.10 On 27th of March 2017, the Supreme Court reserved its verdict in
the brutal 2012 Delhi gang rape case. The Bench, comprising Justice Dipak Misra, Justice R.

7
The Indian Penal Code, 1860.
8
Pandey, Devesh K.; Sikdar, Shubhomoy, Delhi gang-rape case accused commits 'suicide. Published on (11
March 2013)., The Hindu. Chennai. Accessed on 21 March 2017.
9
"Delhi rape accused found dead in prison". BBC. 11 March 2013. http://www.bbc.com/news/world-asia-
india-24078339 . Accessed on 21 March 2017.
10
Ramalingam.Va , "Fast Track court awards death sentences to convicts of Delhi Rape case ", Le Journal
International, 14 September 2013. http://www.lejournalinternational.fr/Fast-Track-court-awards-death-
sentences-to-convicts-of-Delhi-Rape-case_a1252.html. Accessed on 21.03.2017

8
Banumathi and Justice Ashok Bhushan, reserved the judgment in the appeal filed against the
death sentence handed down to four convicts by the Trial Court and the Delhi High Court11.

I(2): AFTERMATH

The very next day in an unprecedented show of collective empathy and solidarity, people
protested and the raw emotion of anger and pain was evident. Overnight, thanks to Indias
youth who dragged it onto the front pages of newspapers, social media, public talks, protests
and into our very homes, rape became a centre piece of mainstream life in India. Change
was evident in the droves of men who protested alongside the women-a presence unheard of
20 years ago.12 Students from all over the Country organized massive protests and in
particular JNU students also organized a protest where scores of students were soon joined by
people from throughout the capital city just a day after the incident at the same place where
Nirbhaya and her friend had boarded the bus. The media was extremely responsive in
highlighting the protests that was sparked not only at the capital in Delhi, but throughout the
country where young people and people from every walk of life participated in questioning
the government and in supporting Nirbhaya. Seeing the massive anger against the heinous
crime, the government was forced to set up a three-member committee to suggest changes in
the anti-rape laws. This led to the Criminal Law Amendment Act, 2013.

I(3): CRIMINAL LAW AMENDMENT ACT, 20131314

An outpouring of protest on the streets of Delhi in December 2012, forced the Indian federal
Government to institute the Committee on Amendments to the Criminal Law (headed by the
retired Justice Verma) to make recommendations on reforms to the criminal law on sexual
assault and violence.

11
Live Law, Nirbhaya case: SC reserves Judgement, Published on 27.03. 2017,
https://kanoontoday.com/nirbhaya-case-sc-reserves-judgment/. Accessed on 29.03.2017.
12
Kapur, Naina. Practicing on the Margins of Mainstream Law A Personal Perspective On Sexual Violence
Against Women in India. 2013. India Law News of ABA Section of International Law in its Volume 4, Issue 2,
Summer Issue 2013.
13
The Criminal Law (Amendment) Act, 2013 is an Indian legislation passed by the Lok Sabha on 19 March
2013, and by the Rajya Sabha on 21 March 2013, which provides for amendment of Indian Penal Code, Indian
Evidence Act, and Code of Criminal Procedure, 1973 on laws related to sexual offences. The Bill received
Presidential assent on 2 April 2013 and came into force from 3 April 2013.
14
"Anti-rape Bill passed". The Hindu. Chennai, India. Published on 24.03.2013. Accessed on 27. 03.2017.

9
On December 23, 2012 a three member Committee headed by Justice J.S. Verma, former
Chief Justice of the Supreme Court, was constituted to recommend amendments to the
Criminal Law so as to provide for quicker trial and enhanced punishment for criminals
15
accused of committing sexual assault against women. The other members on the
Committee were Justice Leila Seth, former judge of the High Court and Gopal Subramanium,
former Solicitor General of India16.
The Committee submitted its report on January 23, 2013. Apart from widening the definition
of rape as defined under section 375 of the IPC17, the Committee also made suggestions
about including sexual assault, make the grotesque acid attack an offence, offences against
women in conflict areas, child sexual abuse, doing away with two finger test etc. A summary
of the Committees report on rape is explained below.

Rape: The Committee recommended that the gradation of sexual offences should be retained
in the Indian Penal Code, 1860 (IPC). The Committee was of the view that rape and sexual
assault are not merely crimes of passion but an expression of power. Rape should be retained
as a separate offence and it should not be limited to penetration of the vagina, mouth or
anus. Any non-consensual penetration of a sexual nature should be included in the definition
of rape.
ANTI- RAPE LEGISLATION IN INDIA: History has proven that reforms in anti-rape laws
have not come through proactive measures by the Parliament; a discussion on violence
against women has not occupied much weight in parliamentary discussions. There have been
several committees recommendations like the Law Commissions 84th Report in 198018, the
172nd Report of 200019 relating to this subject, the National Police Commission Reports20
apart from numerous decisions and orders by the judiciary that have been gathering the dusts
due to the apathy of politicians and government officials.

15
Justice J. S. Verma et al, Report of the Committee on Amendments to Criminal Law, 23 January
2013. http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20r
eport.pdf. Accessed on 28.03.2017.
16
Justice J. S. Verma et al, Report of the Committee on Amendments to Criminal Law, 23 January
2013. http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20r
eport.pdf. Accessed on 28.03.2017
17
Indian Penal Code, 1860.
18 nd
2 Law Commission of India, 84th Report- 1984 Rape and Allied Offences- Some Questions of Substantive
Law, Procedure and Evidence.
19 rd
3 Law Commission of India, 172nd Report- 2000- Review of Rape Laws
20
http://rostrumlegal.com/a-critique-on-anti-rape-laws-in-india/#_ednref3. Accessed on 28.03. 2017.

10
A similar instance occurred in the case that brought the Criminal (Amendment) Act of 1983
into force which was triggered by a nationwide protest caused due to the Supreme Courts
infamous decision in Tukaram v. State of Maharashtra21 where it held that consent obtained
under Section 375 could only be applicable in cases of fear of death or injury and that
Mathura, the victim had consented to the intercourse since there was no indication for
resistance.

Until 2012, the definition of rape was restricted just to sexual intercourse. The Criminal Law
(Amendment) Act, 2013 gave a broader meaning to the term rape. It amended the definition
under Section 375 of the IPC. Section 375 of the IPC, after the amendment, defines rape
as any involuntary and forceful penetration without the womans consent into the womans
body parts like the vagina, urethra, mouth or anus.22

There were significant changes made to the statutory law post the Verma Committee report,
first through an ordinance, and then ratified by the parliament as the Criminal Law
(Amendment) Bill of 2013. This new Act expressly recognized certain acts as new offences
like acid attack, sexual harassment, voyeurism, stalking which have been incorporated into
the Indian Penal Code. In terms of punishment for rape, the term has been increased to
imprisonment for seven years up to life and in aggravated situations punishment will be
rigorous imprisonment for a term not less than ten years which may extend to life.

Additionally, a new section was added 376A23 wherein it is stated that if the accused,
inflicts an injury which causes the death of the person or causes the person to be in a
persistent vegetative state, shall be punished with rigorous imprisonment which may not be
less than twenty years and may extend to life imprisonment, or with death. Thus, the new Act
provides for death penalty in cases where the victim suffers death or a permanent vegetative
state due to the assault.

The Justice Verma Committee has categorically said, Failure of good governance is the
obvious root cause for the current unsafe environment eroding the rule of law, and not the

21
(1979) 2 SCC 143.
22
Usha Tandon and Sidharth Luthra, Rape: Violation of the Chastity or Dignity of Woman? A Feminist
Critique of Indian Law, FICHL Policy Brief Series No. 51 (2016)
http://www.fichl.org/fileadmin/user_upload/160615_PBS_No._51__2016___Tandon__ Luthra_.pdf>
Accessed on 25.03.2017
23
Sec. 376 A, Indian Penal Code, 1860

11
want of needed legislation.24 It has been acknowledged in India, even now that with laws for
women generally, what has been noticed is that even though there are legislations that have
been enforced to protect women, there is a lack in appropriately enforcing such legislations.
Even though a need for change in the substantive law which covers the definition of rape is
felt even today, there is a much greater need for proper and efficient implementation of the
laws that are already in place. This indicates the procedural aspect of the law and its everyday
working.

There were many things that the Bill did not incorporate, like changing the term rape to
sexual assault. While still the law can get more progressive, the changes that need to be
sought are not in the statutory law but in their implementation. All these changes should be
brought about in the hope of achieving a society where victims of rape receive humane
treatment, and gender violence is brought down by an effective and fair legal system.

The Indian Government has stalled social change in terms of preventing additional crimes
and due to the maintenance of traditional misogynistic views in the upper echelons of its
political parties. It has not fully responded to the needs of the electorate, as seen by its
inability to fully incorporate all suggestions into the amended anti-rape laws and its failure to
hand down justice to perpetrators due to the backlogged judicial system. Therefore, even
though individual attitudes can change, to achieve collective attitudinal change, it is more
important to transform community customs through a top-down policy that enforces the idea
that violence against women cannot be tolerated in society.

I(4): NIRBHAYA FUND

The Ministry of Finance, Government of India had set up a dedicated fund called Nirbhaya
Fund in 2013, for implementation of initiatives aimed at enhancing the safety and security for
women in the country. It is a non-lapsable corpus fund.25 The Nirbhaya Fund was announced
by the government in its 2013 union budget with a corpus of Rs 1,000 crore. According to
then finance minister, P. Chidambaram, this fund was expected to support initiatives by the

24
Justice J. S. Verma et al, Report of the Committee on Amendments to Criminal Law, 23 January
2013. http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20r
eport.pdf. Accessed on 28.03.2017.
25
Press Information Bureau: Government of India Ministry of Women and Child Development Published,
Utilization of Nirbhaya Fund, on 27-January-2017, http://pib.nic.in/newsite/PrintRelease.aspx?relid=157727 .
Accessed on 28.03.2017

12
government and NGOs working towards protecting the dignity and ensuring safety of women
in India26.

CRITICISM: However, in the last two Budgets, while continuing with UPA's tradition of
allocating Rs 1,000 crore towards this fund, the NDA government failed to come up with any
scheme entailing expenditure. The scope of the fund included supporting non-governmental
organisations working for the safety of women, but none could be shortlisted in the last three
years to utilise the money27.

Recently also, a parliamentary Panel rapped the Women and Child Development Ministry
for letting the funds lie idle. The panel has pointed out that since the inception of the fund in
2013, 1000 crores have been allotted to the fund every year, meaning, 3000 Crore Rupees
fund has been allocated, but it has been underutilised till date.

Thus although the Government has taken progressive steps to make the country a safer place
of women, it still remains only on paper. There is a need for the practical implementation of
the fund so that women across the Country are benefitted and our society as a whole
progresses.

I(5): BBCS- INDIAS DAUGHTER.

In March 2015, BBC as a part of its Ongoing Storyville series released a documentary titled
Indias Daughter. This one-hour film, which was directed, produced, and written by Leslee
Udwin, is entirely about the 2012 Delhi gang rape case28; more specifically, it largely
comprises of eye-opening, and sometimes shocking, interviews with the perpetrators, their
families, Nirbhayas family and friends, government officials, and NGO leaders.
Unsurprisingly, the film and its content have caused a massive controversy in India and
around the world. Indias Daughter was scheduled to be broadcasted on TV on March 8,

26
Ashish Asthana, All You Need To Know About theNirbhaya Fund, Published on 27. 05. 2016.
http://www.governancenow.com/news/regular-story/all-you-need-know-the-nirbhaya-
fund#sthash.DeLfE0hQ.dpuf. Accessed on 23.03.2017.
27
Pradeep Kaur, Nirbhaya Fund Allocation of Rs. 1000 crore remains unspent, Published on 26.01. 2017,
http://timesofindia.indiatimes.com/india/nirbhaya-fund-allocation-of-rs-1000-crore-remains-unspent-for-third-
year-in-a-row/articleshow/56788060.cms. Accessed on 25.03.2017.
28
Lapsia, Tina P., "Impact of the Nirbhaya Rape Case: Isolated Phenomenon or Social Change?" (2015).
Honors Scholar Theses. 453. http://digitalcommons.uconn.edu/srhonors_theses/453

13
International Womens Day, but news leaked earlier in the month that the documentary
contained disturbing footage of an interview with Mukesh Singh, one of the rapists. This
prompted the Indian government to block the broadcast, but it was still shown in the UK on
March 4 and uploaded to YouTube on the same day.29 Once again, the Indian government
directed YouTube to block the video in India, and since then, BBC has completely taken the
video off of this website. However, the film has found its way through various social media
outlets and its message continues to be debated by activists, politicians, and sexual abuse
survivors around the world.
The primary reason for banning the documentary in India lies in the fact that central to
Indias Daughter is an interview in Tihar jail, Delhi with Mukesh Singh, the driver of the bus
in the Delhi gang rape. His comments regarding the case and the act of rape itself explicitly
reflect the traditional misogynistic views inherent in Indian society along with the practice of
victim blaming. At one point he stated, You cant clap with one hand it takes
two hands. A decent girl wont roam around at night. A girl is more responsible for rape than
a boyabout 20% of girls are good. In an explanation of why he and his fellow rapists
caused so much other physical harm to Nirbhaya, Singh said, She should just be silent and
allow the rape. Then they would have dropped her off after doing her and only hit the
boy.30This is appalling considering he and three of his accomplices are on death row, and
yet, he has not exhibited remorse for what he did.
Shockingly, other men featured in the film, including lawyers, mirror these views or
exemplify how there is a stigma around rape culture. We have the best culture. In our
culture, there is no place for a woman, affirmed ML Sharma, defense lawyer for the men
convicted of Jyoti Singhs rape and murder. A second defense lawyer, AP Singh, admitted
that if his daughter or sister Engaged in pre-marital activitiesin front of my entire family, I
would put petrol on her and set her alight. Raj Kumar, the patrolman who found the victim
and her male friend lying naked on the side of the road after the incident, said that despite his
repeated pleas for help, no one stopped to help him get the couple to the hospital even though
around thirty-five people passed by the area31. Such harrowing statements, especially by
individuals who are supposed to promote justice, and lack of action by bystanders reaffirm

29
Lapsia, Tina P., "Impact of the Nirbhaya Rape Case: Isolated Phenomenon or Social Change?" (2015).
Honors Scholar Theses. 453. http://digitalcommons.uconn.edu/srhonors_theses/453
30
Reetinder Kaur, Representation of Crime against Women in Print Media: A Case Study of Delhi Gang Rape,
Punjab University, Chandigarh.
31
Ibid

14
the notion that collective attitudinal change regarding violence against women has not
occurred across all levels in society.
The Indian government has almost seemed to accept this backward thinking by hindering
individuals from learning about the facts of the case and about the rape crisis in India. A
statement from the Home Ministers office cited, among other reasons that clips from the film
appear to encourage and incite violence against women. Other politicians claimed Indias
Daughter is "an attempt to defame India" and an "international conspiracy.32 Not only is this
troubling because it violates the very basic freedom of free speech in the worlds largest
democracy, but also because it reiterates the unfortunate fact that the government is not doing
enough to address the matter.

I(6): JUDGEMENT ANALYSIS

Meting out justice in less than nine months for a cold-blooded crime that shook the nation,
the Court convicted the four accused, saying it was a premeditated offence against a
defenceless victim. In a hearing that lasted just five minutes, additional sessions Judge
Yogesh Khanna held the four accused Mukesh Singh, Vinay Sharma, Pawan Gupta and
Akshay Thakur guilty of murder, gang rape, dacoity and attempt to murder Nirbhayas
friend on December 16, 2012. In its 237-page judgment, the court meticulously dealt with
all the evidence to conclude that all accused are liable for the cold-blooded murder of the
defenceless prosecutrix. It also said that all accused had raped the victim33. The Trial Court
awarded death sentence to all the 4 accused and it referred the matter to the Delhi High Court
for confirmation of their death sentence. The Delhi High Court upheld the death sentences
awarded to the four convicts.

POINTS LAID DOWN IN THE JUDGEMENT:

The Court in its judgement laid down a few points in support of Feminist Jurisprudence:

Gruesome crimes against women have become too obvious to ignore and Courts
cannot turn a blind eye to the need to send a strong deterrent message to the
perpetrators of such crimes.

32
Supra, Note 28
33
Reetinder Kaur, Representation of Crime against Women in Print Media: A Case Study of Delhi Gang Rape,
Punjab University, Chandigarh, 2015

15
 The increasing trend of crimes against women can be arrested only once the society
realises that there will be no tolerance for any form of deviance against women.

In extreme cases of brutality such as the present one the criminal justice system must
instil confidence in the minds of people, especially women.

The crime of such nature against a helpless woman, per se, requires exemplary
punishment.

The gravity of the incident depicts the gross mentality and behaviour.

The subjecting of the woman to inhuman acts of torture before her death had not only
shocked the collective conscience but calls for the withdrawal of the protective arm of
the community around the convicts.

This ghastly act of the convicts definitely fits this case in the bracket of rarest of rare
cases.

The Court has to look into the factors like the society's abhorrence, extreme
indignation and antipathy to certain types of cases, like the case in hand - of gang rape
with brutal murder of a helpless woman.

Convicts' unprovoked crime demonstrated exceptional depravity of mind. Various

bite marks were observed on her body parts, (these) show their beastly behaviour.

CHAPTER(II): FEMINIST JURISPRUDENCE ON RAPE:

II(I): INTRODUCTION
Feminist Jurisprudence, a term coined as recently as 1978, has completely disrupted the
conventional model of Jurisprudence. Informed by the reformist and experiential grounding
of feminism, Feminist Jurisprudence has eschewed the rarefied abstractions of analytical
Jurisprudence34. (Analytical jurisprudence is a method of legal study that
concentrates on the logical structure of law, the meanings and uses of its concepts,
and the formal terms and the modes of its operation. It draws on the resources of

34
LC McClain, Atomistic Man Revisited: Liberalism, Connection, and Feminist Jurisprudence (1992) 65
Southern California Law Review 1171, p. 1173.

16
modern analytical philosophy to try to understand the nature of law) Feminist
Jurisprudence can be loosely understood as encompassing the entire body of feminist writing
about law35. Feminist Jurisprudence is the feminist perspective on the methodology of law.
According to Clare Delton (1987), Feminism is a savage of committed inequity and activity
dedicated first to described womens subordination exploring its nature and extent; dedicated
record, to asking both how thoroughly was mechanism and why for what complex and
interwoven reasons women continue to occupy that position and dedicated third to
change.36
Rape is a crime not only against a person, but against the whole society and entirely destroys
the psychology of the person and pushes them into deep emotional crisis. It has been derived
from the word, rapio, which is Latin for snatch.37 Narrowly defined, it is the ravishment
of a woman without her consent by force, fear or fraud.38

Susan Brownmiller, in her book, defines rape in a broader sense and says that rape is the
sexual invasion of the body by force, an incursion into the private, personal inner sense
without the consent, in short an assault from one of the several avenues and by one of the
several methods.39

Rape is a form of sexual violence. Sexual violence describes the deliberate use of sex as a
weapon to demonstrate power over and to inflict pain and humiliation upon another human
being.40 It may be defined as any violence- whether physical or psychological, carried out
through sexual means or by targeting sexuality.

Lord Chief Justice Matthew Hale, the famous seventeenth century English jurist, assured
himself of immortality when he wrote the words, "Rape is an accusation easily to be made
and hard to be proved, and harder to be defended by the party accused, though never so
innocent."41
It is not correct to conclude that rape represents the powerless women in the society or the p

35
LC McClain, Atomistic Man Revisited: Liberalism, Connection, and Feminist Jurisprudence (1992) 65
Southern California Law Review 1171, p. 1173.
36
Clare Dalton, Where We Stand: Observations on the Situation of Feminist Legal Thought, 3 Berkeley
Women's L.J. 1 (1987). http://scholarship.law.berkeley.edu/bglj/vol3/iss1/1.
37
Vandana, Sexual Violence Against women, Lexis Nexis, Nagpur. Pp.68-69
38
Ibid p. 68
39
Susan Brownmiller, Against Our Will- Men, Women and Rape, 1990, p. 442.
40
Peter Goedon, Kate Crehan, Dying of Sadness: Gender, sexual violence and the HIV Epidemic, SEPED
Conference Paper series.
41
Susan Brownmiller, Against Our Wi

l- Men, Women and Rape, 1990, p.369.

17
atriarchal system or a means of control over women, for not every man is a rapist. Rape is
also not because of womens dependence on men but it is the social and cultural conditions
that intensify or perpetuate rape. The causes and reasons for rape are deeply entrenched in our
social structure. Rape is a community problem therefore needs community policing along
with the effort to restore the womens dignity.

As for figures, Delhi has turned the crime capital. As per NCRB-200942, 68% of Delhis
rapists were illiterate or school dropouts 24% studied up to class 10th. And 21.9% were
graduates43. Rape is one of the major issues where the contribution of feminist philosophical,
social, and legal thought has been particularly prominent.

II(2): TRADITIONAL DEFINITION OF RAPE

Until several decades ago, both the interpretation of rape and the laws pertaining to it were,
by and large, informed by the traditional sexist view of the relations between men and
women. In this view, the social and legal status of woman was essentially determined by her
relations to her husband or, if she is unmarried, to her father or brother: her interests and
rights are taken to be included in those of the man. The corresponding account of rape,
seldom spelled out but operative none the less, finds the wrongness of rape not so much in the
violation of the raped woman's rights as in the infringement of the man's rights. If the woman
is unmarried, the father or brother is assumed to have an interest in her virginity, which is a
condition of marrying her off. If she is married, the husband is held to have the right of
exclusive sexual access to her.44
The traditional rape law defines rape as something only a man can do, and only a woman can
suffer, and as something a man does to a woman but not his wife. It also provides no room
for prostitutes to sue for rape. A very archaic and redundant definition, this definition of law
doesnt recognize many valid stakeholders like wives, prostitutes and more importantly men.

II(3): LIBERAL FEMINISM ON RAPE

Although some remnants of the traditional approach to rape are still to be found in rape law,
contemporary Western societies tend to see rape rather differently.

42
Ministry Of Home Affairs, National Crime Records Bureau, Crime in India 2012, Chapter 5,
http://ncrb.gov.in/
43
Vandana, Sexual Violence Against women, Lexis Nexis, 2014.
44
MacKinnon, C. A. (1989), Toward a Feminist Theory of the State. Cambridge, MA, Harvard University Press.

18
Liberal Feminism defines rape with respect to consent. It takes consent as the criterion of
demarcation between sexual intercourse that does and does not count as rape. Rape is defined
as non-consensual sexual intercourse45.
In the most extreme case of rape a person is compelled into intercourse by the use of sheer
physical force. When that is not the case, a person may be given a choice and may choose not
to resist, or even "go along with it". This is what happened in the infamous Mathura rape
case46. Whether that choice amounts to consent, and thus rules out rape, will depend on just
how it was brought about. It may not amount to consent, and even if the person concerned
said "I consent" or something to that effect, that may not count as valid consent, if she was
coerced and did not act voluntarily. But then again, it may. Whether it is valid or not will
depend on just how involuntary it was, just how coerced she was into giving it. For while
consent is an allornothing concept, the concepts of voluntariness and coercion admit of
degrees.
In this definition of rape, it is no longer understood as a crime where the immediate victim is
the woman raped, while the indirect, but principal victim is a man. The woman raped is
recognized as the victim of rape. She has a right to bodily integrity; accordingly, she is the
one who decides whether another may or may not touch her and engage her sexually. When
another person does so without her consent, he violates her right to bodily integrity, and
thereby also her personal autonomy, the ground of this and other basic rights. In legal
parlance, he commits the crime of battery. Rape is thus understood as a type of battery.
Morally speaking, it is a serious wrong because it is a serious violation of personhood.

II(4): RADICAL FEMINISM ON RAPE

Radical feminism rejects the methodological individualism of the liberal approach to rape
where in the tendency to see rape as but a discrete act of one individual upon another that
offends against the moral and legal norms concerning sexual behaviour.
Rape, under this school of thought, can be truly understood only when interpreted in its social
context, as a distinct social practice. When approached in this way, and when the fact that
almost all perpetrators are men and almost all victims are women is given its proper weight,
rape can be recognized as the extreme expression of the basic characteristics of all gender
relations in our society.

45
Vandana, Sexual Violence Against women, Lexis Nexis, 2014, p. 257.
46
Tukaram v. State of Maharashtra, (1979) 2 SCC 143.

19
The main tenets of the radical feminist view of rape is that rape is not a deviation, but
rather a deeply entrenched social practice that both expresses and reinforces far-reaching
inequality and oppression of women in our society47; that under these conditions a woman is
not in a position to give valid consent to sex with a man and that, accordingly, the crime of
rape should no longer be defined in terms of lack of consent; that we need a new definition of
rape, which will help us recognize that rape is much more wide spread than we tend to
assume and that all men in our society are collectively responsible for the practice of rape. 48
As Foa, an early radical feminist analysis of rape puts it, "the special wrongness of rape is
due to, and is only an exaggeration of, the wrongness of our sexual interactions in general". 49
Rape is considered to be the most drastic example of the inequality of men and women, and
of the degradation and oppression of women by men. It is not a sporadic deviation, but a
deeply entrenched social practice that both expresses and reinforces the inequality,
degradation, and oppression of women.50
A radical feminist analysis says that women under patriarchy are not only mothers, they are
also sexual slaves, and patriarchal ideology typically opposes women as sexual beings to
women as mothers. With the partial exception of mothers, the male culture defines women as
sexual objects for male pleasure. According to it, rape may not have existed in every society
but it is a defining feature of patriarchy. It sees rape as an effective political device, a political
act of oppression exercised by members of a powerful class on members of a powerless class.
Radical feminists also focus their attention on institutionalised prostitution, pornography and
forced heterosexuality as other examples of control over women's sexuality under
patriarchy51.

Susan Brownmiller52 says women have been subordinate because of men's ability to rape
them. She says man uses his ability to rape, to intimidate and control women. This she says
has led to male dominance over women and to male supremacy. And Gerda Lerner,
"Elizabeth Fischer ingeniously argued that the domestication of animals taught men their role
in procreation and the practice of the forced mating of animals led men to the idea of raping
47
Margaret Thorton, The Development of Feminist Jurisprudence, (1992).
48
Susan Brownmiller, Against Our Will- Men, Women and Rape, Fawcett Columbine, 1st Edition, 1990.
49
Foa, P. Whats Wrong with Rape: Feminism and Philosophy. Totowa, NJ: Littlefield, Adams & Co., 1977, p.
347.
50
Ibid
51
http://lawfaculty.du.ac.in/files/course_material/Content%20LB-4031%20-
%20GENDER%20JUSTICE%20AND%20Feminist%20Jurisprudence%20Full%20Material%20January%2020
17.pdf
52
R Kapur and B Cossman, Subversive Sites: Feminist Engagements with Law in India (New Delhi: Sage,
1996).

20
women. She claimed that the brutalisation and violence connected with animal domestication
led to men's sexual dominance and institutionalised aggression."

As Susan Griffin puts it in her influential article Rape: The AllAmerican Crime53, "rape is a
kind of terrorism which severely limits the freedom of women and makes women dependent
on men. [...] The threat of rape is used to deny women employment. [...] The fear of rape
keeps women off the streets at night. Keeps women at home. Keeps women passive and
modest for fear that they be thought provocative.
A good example of radical feminist analysis of rape can be found in the writings of Catherine
A. MacKinnon54. She argues that in the type of society we live in, sexuality is "a social
construct of male power: defined by men, forced on women, and constitutive of the meaning
of gender. [...] Male and female are created through the erotization of dominance and
submission. The man/woman difference and the dominance/ submission dynamic define each
55
other" The liberal takes the presence or absence of consent as the difference between
legitimate sexual intercourse and rape. That would be quite appropriate, if the social
conditions in which a woman gives or refuses consent were those of equality of power
and freedom of choice.

53
Susan Griffin, Rape- The All American Crime, Ramparts Magazine, 1971 Sept.
54
MacKinnon, C.A. Feminism Unmodified. Cambridge, MA, Harvard
University Press. (1987).
55
MacKinnon, C. A., Toward a Feminist Theory of the State. Cambridge,
MA, Harvard University (1989, 113.)

21
CHAPTER(III): CONCLUDING REMARKS

III(1): CRITICAL ANALYSIS

Primarily Feminist Jurisprudence concerns itself with the patriarchy, or the system of male
authority which structures the institution and organizational rationality which constitute the
oppressive and exploitative relations which affect women: This is highlighted in the BBC
documentary, Indias Daughter, where in the accused and their lawyers make such sexist,
derogatory comments about the victim and women in general. However, seeing that these
men were the ones who committed the crime and defending the ones committing it, it comes
as no surprise that this would be their mentality.
But the so- called educated persons, who in fact hold important positions in our Country,
passed very similar, if not further demeaning remarks against women. Former Prime Minister
Manmohan Singhs theek hai (it is okay) comment in response to the Nirbhaya rape elicited
deep criticism from the public for trivializing the issue. Andhra Pradesh Congress president
Botsa Satyanarayana evoked fury in the people after describing the Delhi gang rape as a
small incident, and saying that women should not go out during late hours. Meanwhile,
Congress MP (Member of Parliament) Abhijit Mukherjee also caused outrage with his
derogatory reference to female protestors in Delhi. They are dented and painted women
chasing two minutes on fame, giving interviews on TV.56 These examples just happen to be
one of the many, many comments that were made about and with relation to the Nirbhaya
rape case. The worst part is most of these comments were made by people who hold
influence on the citizens, whos comments have the capability to pull weight and be taken
seriously. Such comments may have a huge impact and may even lead to the creation
opinions among the masses. Such a negative connotation of the victim of rape is hardly
necessary, given our current scenario.
Although the task of curbing the crimes against women may seem daunting, it is not all
together impossible. The Country is in urgent need for addressing poverty, social
exclusion, illiteracy, delinquency and homelessness; A stringent rape legislation, which
provides no room for escape; speedy resolution of cases; Handling of rape cases by
female Police officers; Starting out young and educating young children etc.

56
Reetinder Kaur, Representation of Crime against Women in Print Media: A Case Study of Delhi Gang Rape,
Punjab University, Chandigarh, 2015

22
III(2): CONCLUSION

The existing view of rape regarded women as the property of men, and unfortunately, even
today, any act of sexual violence committed against her was considered to be the defilement
of the property of another man. This is the root cause of the thousands of incidents of sexual
violence that go unreported. Such a perspective to rape carries with it countless social
stigmas, mainly because the worth of a woman is measured by her sexual purity. Feminist
thought and activism over the decades have worked towards changing and widening the
definition of rape in all spheres and have challenged the stereotypical conceptions of the
crime that have origins in the traditional patriarchal definition of rape. It is important to
identify rape as an assault on individual autonomy and pave the way for gender-neutral laws
and legal procedures. It is absolutely necessary for the legal system to identify and abolish the
discriminatory rules and procedures in a rape trial, those which associate societal standards of
character with the integrity of a witness, so that rape in this country, is only looked at as a
crime and not an issue of shame.

23
 BIBLIOGRAPHY
STATUTES:

1. The Indian Penal Code, 1860.

BOOKS:

1. Vandana, Sexual Violence Against women, Lexis Nexis, Nagpur, 2014.

2. Susan Brownmiller, Against Our Will- Men, Women and Rape, Fawcett Columbine,
1st Edition, 1990.
3. Michael Freeman FBA, Lloyds Introduction to Jurisprudence, 9th Edition, London,
2014.
JOURNALS/ ARTICLES:

1. Kapur, Naina. India Law News of ABA Section of International Law in its Volume 4,
Issue 2, Summer Issue 2013. Practicing on the Margins of Mainstream Law A
Personal Perspective On Sexual Violence Against Women in India. 2013.
2. Peter Goedon, Kate Crehan, Dying of Sadness: Gender, sexual violence and the HIV
Epidemic, SEPED Conference Paper series.
http://www.childtrafficking.com/Docs/gordon_crehan__gender_sexua.pdf
3. Usha Tandon and Sidharth Luthra, Rape: Violation of the Chastity or Dignity of
Woman? A Feminist Critique of Indian Law, FICHL Policy Brief Series No. 51
(2016)
http://www.fichl.org/fileadmin/user_upload/160615_PBS_No._51__2016___Tandon_
_ Luthra_.pdf>
4. Lapsia, Tina P., "Impact of the Nirbhaya Rape Case: Isolated Phenomenon or
Social Change?" (2015). Honors Scholar Theses.
http://digitalcommons.uconn.edu/srhonors_theses/453
5. Reetinder Kaur, Representation of Crime against Women in Print Media: A Case
Study of Delhi Gang Rape, Punjab University, Chandigarh, 2015
6. ME John, Discrepant Dislocations: Feminism, Theory, and Postcolonial
Histories (Berkeley: University of California Press, 1996)
7. R Kapur and B Cossman, Subversive Sites: Feminist Engagements with Law in India
(New Delhi: Sage, 1996).

24
 8. Clare Dalton, Where We Stand: Observations on the Situation of Feminist Legal
Thought, 3 Berkeley Women's L.J. 1 (1987).
http://scholarship.law.berkeley.edu/bglj/vol3/iss1/1
9. Margaret Thorton, The Development of Feminist Jurisprudence, (1992).

COMMISSION REPORTS:

1. 2nd Law Commission of India, 84th Report- Rape and Allied Offences- Some
Questions of Substantive Law, Procedure and Evidence 1984.
2. 3rd Law Commission of India, 172nd Report- Review of Rape Laws.2000.

WEB SOURCES:

1. http://www.lejournalinternational.fr/Fast-Track-court-awards-death-sentences-to-
convicts-of-Delhi-Rape-case_a1252.html
2. http://www.bbc.com/news/world-asia-india-24078339
3. https://asiancorrespondent.com/2013/01/analysis-the-many-shades-of-the-delhi-gang-
rape-case/#BWbb519XOiikrMD4.99
4. http://www.news18.com/news/india/delhi-gangrape-what-happened-on-december-16-
2012-and-status-of-the-case-730141.html
5. http://www.southasiaanalysis.org/node/1130
6. http://edition.cnn.com/2015/12/21/asia/india-teen-rapist-analysis-agrawal/
7. http://www.firstpost.com/india/2012-delhi-gangrape-has-womens-safety-improved-
since-jyoti-singh-incident-3158548.html
8. http://www.news18.com/news/india/delhi-gangrape-what-happened-on-december-16-
2012-and-status-of-the-case-730141.html
9. https://kanoontoday.com/nirbhaya-case-sc-reserves-judgment/
10. http://www.firstpost.com/india/nirbhaya-fund-parliamentary-panel-raps-wcd-
ministry-for-unspent-money-2679132.html
11. http://rostrumlegal.com/a-critique-on-anti-rape-laws-in-india/#_ednref3.

25