The recent case of actor Karan Oberoi, who was accused of rape for falsely promising marriage to a woman, has led to a clamour for gender neutral laws. The woman has now been arrested for staging an assault on herself with the help of her lawyer, to further defame Oberoi. The case appears to indicate misuse of the current rape law, which is increasingly becoming common in instances where relationships end on a bitter note. In fact, according to the National Crime Records Bureau, a total of 38,947 rape cases were reported in India in 2016 and in 10,068 cases – about a quarter – the women claimed it was rape on the false promise of marriage.
This is problematic as it suggests that the rape law, as it stands, is being commonly used as a tool for blackmail, harassment or to settle scores in failed relationships. Following the heinous Nirbhaya rape case in 2012, responding to the huge public outcry against the horrific rape and murder, Parliament enacted several amendments to the Indian Penal Code, Indian Evidence Act, and the Code of Criminal Procedure. These changes included widening the definition of rape to include some forms of molestation and introducing the concept of presumption of no consent in judging rape cases.
This meant that consent had to be explicitly given to escape punishment for rape, which leaves room open for wide interpretation. And this in turn has seen judges interpret no consent to include reneging on the promise of marriage. In a case that came up before it, the Supreme Court has clarified that rape cannot be invoked in cases of consensual sex after a relationship ends. However, as the Oberoi case shows, the wording of the rape law and policing practice on the ground can overturn a basic principle of Indian jurisprudence – that one is innocent until proven guilty. Instead, the burden of proof shifts to the accused to prove his innocence.
This not only goes against the principle of natural justice but also trivialises rape – often enabling the real rapists to get away. Laws need to be differentiated rather than draconian, making room for a vast spectrum of possible sexual behaviours, misdemeanours and crimes. The Nirbhaya amendments were a knee-jerk reaction to cover up deficiencies in the policing system, and some of them may need review. Administrative deficiencies cannot be made up for by over-legislating, however well meant such legislation might be. Gender neutral laws will help by reducing incentives to game the system.