(a) From 'Mathura' to 'Nirbhaya' and beyond, discuss the development of Rape laws in India. 20 (b) Explain the liability of…

(a) The Mathura case and the 1983 reforms

• ***Tukaram v State of Maharashtra* (1979), the Mathura case:**
• a young tribal girl was raped by two policemen inside a police station;
• the Supreme Court acquitted them, reasoning that there were no injuries and no alarm, so the girl had submitted and consent was inferred from passive submission.
• The response: an open letter by four law professors (Upendra Baxi, Lotika Sarkar, Raghunath Kelkar and Vasudha Dhagamwar) triggered a national movement and the Law Commission's 84th Report (1980).
• The Criminal Law (Amendment) Act, 1983:
• custodial rape offences: ss.376B–376D, covering public servants, jail and remand home superintendents, and hospital staff, together with aggravated forms under s.376(2);
• s.376A, covering intercourse with a separated wife;
• a presumption of absence of consent in custodial rape (Evidence Act s.114A, now BSA s.120);
• in-camera trials (CrPC s.327(2), now BNSS s.366(2));
• a bar on disclosing the identity of the victim (IPC s.228A, now BNS s.72).

Judicial developments before Nirbhaya

• ***State of Punjab v Gurmit Singh* (1996):** the testimony of a prosecutrix needs no corroboration, and courts must be sensitive to her.
• ***Delhi Domestic Working Women's Forum v Union of India* (1995):** legal assistance and compensation for victims.
• ***Sakshi v Union of India* (2004):** screens and video-conferencing for child victims' testimony.
• Law Commission's 172nd Report (2000): recommended a gender-neutral "sexual assault".
• The 2002 amendment: deleted Evidence Act s.155(4), which had allowed the victim's "immoral character" to be used to impeach her.

The Nirbhaya case (2012) and the 2013 Amendment

• The Justice J.S. Verma Committee (2013) led to the Criminal Law (Amendment) Act, 2013, which:
• expanded "rape" in s.375 to penetration of any orifice by the penis, objects or body parts, and oral acts;
• defined consent as an "unequivocal voluntary agreement" (Explanation 2), and provided that lack of physical resistance is not consent;
• raised the age of consent to 18;
• introduced minimum sentences, and punishment for rape causing death or a persistent vegetative state (s.376A), gang rape (s.376D) and repeat offenders, including death (s.376E);
• created new offences: acid attack (ss.326A–326B), sexual harassment (s.354A), disrobing, voyeurism and stalking (ss.354B–354D);
• added Evidence Act s.53A, making the victim's character and past sexual experience irrelevant, and s.146 proviso, barring questions on her general immoral character.
• ***Mukesh v State (NCT of Delhi)* (2017):** the death sentences in the Nirbhaya case were confirmed and carried out in 2020.

Beyond Nirbhaya

• The POCSO Act, 2012 (amended in 2019 to allow the death penalty for aggravated penetrative sexual assault) provides a child-specific framework.
• The Criminal Law (Amendment) Act, 2018 (after Kathua and Unnao):
• rape of a girl under 12 attracts a minimum of 20 years, extending to death (s.376AB);
• rape of a girl under 16 attracts a minimum of 20 years (s.376(3));
• investigation within two months and trial within two months.
• Judicial safeguards:
• Lillu v State of Haryana (2013) held that the two-finger test violates privacy and dignity;
• State of Jharkhand v Shailendra Kumar Rai (2022) treated its use as misconduct;
• Nipun Saxena v Union of India (2018) protected the identity of victims.
• The marital rape exception:
• Independent Thought v Union of India (2017) read down Exception 2 for wives aged 15–18;
• the Delhi High Court gave a split verdict in RIT Foundation v Union of India (2022), and the challenge to the exception for adult wives is pending before the Supreme Court.
• The Bharatiya Nyaya Sanhita, 2023 (in force from 1 July 2024):
• rape (s.63) and punishment (s.64);
• gang rape of a woman under 18 is punishable with life imprisonment or death (s.70(2));
• a new offence of sexual intercourse by deceitful means or a false promise to marry (s.69);
• it retains the marital exception for wives of 18 and above.
• The BNSS: requires the victim's statement to be recorded by audio-video means and a medical report within 7 days.

Assessment

• The trajectory: the law has moved from a focus on physical resistance and the victim's character to autonomy, consent and dignity, with procedural sensitivity to victims.
• Remaining challenges:
• low conviction rates;
• delay;
• the unresolved marital rape exception;
• the gender-specific definition;
• implementation gaps such as forensic capacity and victim protection.

(b) Joint tortfeasors

• Who they are: persons who commit the same wrongful act together, or whose acts combine by concert to produce one injury. This includes:
• persons acting with a common design (Brooke v Bool (1928), where two men searched for a gas leak with a naked flame);
• a principal and agent, and a master and servant (vicarious liability);
• a person who instigates or authorises a tort, together with the doer.
• Their liability:
• joint and several: the plaintiff may sue all or any one of them, and recover the whole damage from any one;
• there is one cause of action, and the plaintiff cannot recover more than the total loss.
• Contribution:
• at common law there was no contribution between joint wrongdoers (Merryweather v Nixan (1799));
• in England this was changed by statute (the 1935 Act, and now the Civil Liability (Contribution) Act, 1978);
• Indian courts, applying justice, equity and good conscience, allow contribution in appropriate cases, except where the tortfeasor knew the act was wrongful.
• Release and judgment: at common law, releasing one joint tortfeasor released all, and a judgment against one barred an action against the others (Brinsmead v Harrison (1872)). This rigid rule has been abandoned in England.

Independent tortfeasors

• Who they are: persons who act independently, without common design. Their separate wrongful acts cause damage to the same plaintiff.
• Two situations:
• Separate damage: each is liable only for the damage he caused;
• Single indivisible damage (concurrent or composite tortfeasors): each is liable for the whole damage (The Koursk (1924), a collision caused by two ships acting independently).
• Indian motor-accident law:
• in cases of composite negligence, the claimant may recover the whole compensation from any one of the wrongdoers, who may then seek apportionment inter se (Khenyei v New India Assurance (2015));
• this must be distinguished from contributory negligence of the claimant, which reduces damages (T.O. Anthony v Karvarnan (2008)).

Differences

• Nature of the act:
• Joint tortfeasors: one act done in concert or with common design, or vicarious liability.
• Independent tortfeasors: separate acts, with no common design.
• Causes of action:
• Joint tortfeasors: one cause of action.
• Independent tortfeasors: separate causes of action.
• Extent of liability:
• Joint tortfeasors: always jointly and severally liable for the whole damage.
• Independent tortfeasors: each is liable for his own damage, but jointly and severally liable only where the damage is indivisible.
• Release and judgment (at common law):
• Joint tortfeasors: releasing or obtaining judgment against one affected the others.
• Independent tortfeasors: releasing one did not affect the others.
• Examples:
• Joint tortfeasors: a master and servant; conspirators; an employer who authorises a trespass.
• Independent tortfeasors: two negligent drivers colliding and injuring a pedestrian.

(c) What the plaintiff must establish

• Negligence as a tort: "the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do" (Blyth v Birmingham Waterworks (1856)).
• 1. Duty of care:
• owed to persons reasonably foreseeable as likely to be affected, that is, the neighbour principle (Donoghue v Stevenson (1932));
• for novel situations, there must be foreseeability, proximity, and it must be fair, just and reasonable to impose a duty (Caparo Industries v Dickman (1990)).
• 2. Breach of duty:
• failure to meet the standard of the reasonable person, judged by the probability and gravity of harm, the cost of precautions, and the social utility of the act;
• professionals are judged by the standard of a reasonably competent member of the profession (the Bolam test, adopted in Jacob Mathew v State of Punjab (2005)).
• 3. Causation:
• the breach must have caused the harm, on the "but for" test (Barnett v Chelsea & Kensington Hospital (1969));
• no novus actus interveniens must have broken the chain.
• 4. Damage that is not too remote: the damage must be of a kind that was reasonably foreseeable (The Wagon Mound (No 1) (1961), which displaced Re Polemis (1921)).
• Defences: contributory negligence, volenti non fit injuria, inevitable accident and act of God.

Res ipsa loquitur ("the thing speaks for itself")

• Nature: it is a rule of evidence. It allows negligence to be inferred from the very nature of the accident where the plaintiff cannot know the precise cause.
• **Conditions (Scott v London & St Katherine Docks Co (1865)):**
• the thing causing the damage was under the management or control of the defendant or his servants;
• the accident is such as does not ordinarily happen if those in control use proper care;
• there is no explanation: the cause is unknown, and the facts do not suggest a cause other than negligence.
• Examples:
• Byrne v Boadle (1863): a barrel of flour fell from a warehouse window;
• ***Municipal Corporation of Delhi v Subhagwanti* (1966): the Chandni Chowk clock tower** collapsed, and the owner was liable;
• ***Shyam Sunder v State of Rajasthan* (1974):** a truck caught fire. The Court held that the maxim shifts the burden, and applied it;
• ***V. Kishan Rao v Nikhil Super Speciality Hospital* (2010):** the maxim was applied in medical negligence where negligence was obvious.
• Effect and limits:
• it raises a prima facie inference and shifts the evidential burden. The defendant can rebut it by showing that he took reasonable care or that another cause was operating;
• it does not apply where the cause is known and proved, or where control was shared;
• in criminal cases, it is used only with great caution (Syad Akbar v State of Karnataka (1980)).