COMPARISION OF RAPE LAWS OF INDIA AND IRAQ
THE DEVELOPING SOVEREIGNS AND
THEIR ENFORCEMENT OF HUMAN RIGHTS.
COMPARISON OF
RAPE LAWS IN INDIA AND IRAQ
WRITTEN BY: URISHITA GADHOK
5TH YEAR BBA.LLB (HONS)
MAHARISHI MARKANDESHWAR DEEMED TO BE UNIVERSITY MULLANA, AMBALA
EDITED BY: YASH JAIN
5TH YEAR BBA LLB(H)
AMITY LAW SCHOOL, NOIDA
INTRODUCTION
Human rights around the globe have never and cannot ever be given to a specific
class of persons and denied to others as they are the birthrights of all humans
from the time they are born. These rights are the forming stones of all other
rights guaranteed to humans by their states around the globe. They hold so much
importance that they can never be taken away by any authority. All that can be
done is ensure that these rights are being enjoyed by the people without any
discrimination based on diverse aspects of the persons like their
ethnicity, gender, sexual preferences, domicile, race, and so on.
The
United Nations has proved to be a perfect watchdog of such human rights. There
have been instances globally wherein the UN has taken measures to protect human rights.
Historically
women have been the most suppressed group of humans globally due to various
prevailing conditions around the world. Therefore, the UN has many feathers in
its cap regarding the upliftment of women’s status around the world. Some of
them are as follows:
1.
Establishment of
the commission on the status of women in 1946 to promote their political,
economic, and social rights.
2.
Adoption of UDHR
in 1948 (Universal Declaration Of Huma Rights)
3.
Adoption of CEDAW
in 1979
4.
Declaration of the
international year for the empowerment of women in 2001.
As per the UDHR, both men and women are entitled to all the rights the
declaration confers. This was one of the first steps wherein women are placed EQUALLY
as men. Some of the rights which we enjoy daily and are a result of so many
laws in the country are as follows:
1.
Right to work.
Clean and humane working conditions.
2.
Right to social
security
3.
Right to vote
4.
Right not to be
subjected to any form of torture and so on.
The globe thrives on its human resource and it is of utmost importance to have certain freedoms to enjoy this gift of life.
Many countries are working tirelessly to enhance the standard of living and to
combat various incidents of heinous human rights violations against women.
According to usnews.com, the safest country for
women in 2022 is Sweden. As far as India is concerned it has been constantly
achieving milestones and many are yet to be achieved out of which the most
important is the safety and respect of women in the subcontinent.
INDIA AND IRAQ
A SHORT ANALYSIS
Both countries belong to the Asian continent having very similar terrains and
climatic conditions.
India
is more populous than Iraq having 1,393,409,000 and 41,179,000 counts respectively.
The former’s native language is Hindi and the latter’s Arabic. Both follow the
federal parliamentary republic form of government.
These
countries are in the developing stage as economies having a GDP of 2.62 lakh USD and
16,722 crore USD. The cost of living is much higher in Iraq than in India. Both of
them gained independence between the 1930s-1950s from the common power- Britain.
Iraq is dominated by the Islamic religion and India being a secular nation has
widespread Hindu followers. Both religions have their disparities due to
which women have faced so many hardships in their motherlands. For instance,
unfair Hindu practices like Sati, and honor killings have taken a toll on women
drastically and unfair Islamic practices like monogamy and triple talaq have
degraded women to a great extent thereby violating human rights.
THE SEXUAL OFFENCE
The
wrongdoings by men against women involving sexual acts against their will, in layman’s language, be termed a sexual offense. The heinous crime that collapses
souls beyond repair, jolts down one’s integrity, well-being, and self-respect, and
sends chills down the spine is termed rape.
It is the act of inserting, showing, and mishandling
his private into a woman’s body without her consent or when she was
unable to express her consent. The same can be done via words, and actions comprising of
unwelcomed sexual remarks. some deranged section of society feels that the urge
to rape is triggered in men by the way a woman carries herself, her occupation,
her dressing sense, her conduct, and so on. This being not the case, various
studies claim that factors like rejection, past traumas, troubled childhood, a sense of supremacy, and ego trigger this insane urge. India shamefully termed the rape capital of the world has witnessed the brutality to another level and
continues to do so despite such stringent laws. After the Nirbhaya Incident, many amendments were made in this regard. Due to instability in the Iraqi lands, ISIS extremists have committed the crime and it has still not stopped.
RAPE
LAWS DECODED
INDIA
VS IRAQ
The laws relating to crimes including sexual offenses are listed with their punishment in the Indian Penal Code, of 1835. It saw a recent amendment – the criminal amendment act 2018.
Section
375 deals with “rape” following are the extract from the bare act:
Rape.—A
man is said to commit “rape” who, except in the case hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under any of the
six following descriptions:—
(First)
— Against her will.
(Secondly)
—Without her consent.
(Thirdly)
— With her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt.
(Fourthly)
—With her consent, when the man knows that he is not her husband and that her
consent is given because she believes that he is another man to whom she is or
believes herself to be lawfully married.
(Fifthly)
— With her consent, when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or
through another of any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she gives consent.
(Sixthly)
— With or without her consent, when she is under sixteen years of age.
Explanation.—Penetration is sufficient to constitute the sexual intercourse
necessary to the offense of rape.
(Exception)
—Sexual intercourse by a man with his own wife, the wife not being under
fifteen years of age, is not rape.] (credits- Indian kanoon)
The laws relating to sexual crimes are governed by the Iraqi Penal Code, 1980 in chapter 9, section 1 of the code. Following is an extract from their law.
Article
393 - (1) Any person who has sexual intercourse with a female without her
consent or
commits
buggery with any person without their consent is punishable by a term of
imprisonment not
exceeding
15 years.
(2)
The following are considered to be aggravating circumstances for this offense:
(a)
If the victim at the time of the act was under 18 years old
(b)
If the offender was a relative of the victim to the third generation, or if the
offender
is
the guardian, protector, or custodian of the victim or has authority over the
victim, or if the victim is the
offender’s
servant.
(c)
If the offender was a public official, religious leader, or doctor and used the
power
of
his position or the trust in him.
(d)
If the offense is committed by two or more people to prevail over the
resistance
of the victim or if they commit the offense multiple times.
(e)
If the victim loses her virginity or loses her virginity as a result of the
offense.
(3)
If the offense leads to the death of the victim, the penalty will be life
imprisonment.
(4)
If the victim was a virgin, the court must order that she receive appropriate
compensation. (credits – ilo.org.in)
THE
SIMILARITIES.
1. Both nations condemn the act of rape and do not limit its punishment based on religion.
2. They
consider such wrong committed with a minor a very serious offense and award a penalty of life imprisonment until the natural death of the convict.
3. They
recognize gang rape- involving two or more offenders to perform the act and
adds to the seriousness of the crime
4. Both
do not recognize marital rape.
5. Have
similar punishment if the victim dies or catches a serious disease or results
in a vegetative state which is imprisonment of 20 years which can be extended up
to life imprisonment.
6. Do
not exempt officers, leaders, and persons having authority over the victim from
the ambit of accusing them.
7. Exhibits
equality in treating crimes of such grave nature.
8. Upholds
the woman’s right to consent to a sexual act.
THE
DIFFERENCES
1.
The
Indian law clarifies the situations which can be termed as rape much more
briefly yet precisely which widens the area of interpretation for the Judiciary
of the democratic republic whereas the Iraqi laws have not gone into that much
depth which may lessen the arenas of crime and might hinder the justice.
2.
The
Indian law recognizes rape with a pregnant woman and it increases the seriousness
of the crime whereas Iraqi law does not contain any such provision.
3.
The
term consent has been defined in section 90 of the Indian Penal code and also in section
375 it has been very briefly stated when it can be inferred that there was no
consent involved in the sexual act in question the other hand Iraqi law
recognizes consent but does not define it a manner that might help the courts
in better interpretation.
4.
The
Iraqi law takes into consideration a very debatable topic “virginity” of the
victim, losing which adds to the seriousness of the crime but India does not
recognize its importance in the law and never talks about it.
5. Article
398 of the Iraqi penal code If the offender
mentioned in this section, then lawfully marries the victim, any
action becomes void and any
investigation or other procedure is discontinued and, if a sentence has
already been passed in respect of
such action, then the sentence will be quashed. Legal proceedings will
resume or the sentence will be
reinstated, according to the circumstances of the such marriage ends in
divorce brought about by the husband
without legal justification or in a divorce ordered by the court for
wrongs committed by the husband or
for his bad behavior within 3 years following the cessation of the
proceedings.
Tends
to bind a woman with a monster which is violative and Indian laws have no such
provision.
6.
The Iraqi laws use the words ‘any person making it an ungendered law, unlike Indian laws which punish only men for such acts.
7. The Indian laws completely
penalize the unnatural methods of sexual intercourse whereas the Iraqi laws
only penalize unnatural sexual acts if consent is absent and this too is an
ungendered provision.
THE WAY FORWARD
Both the sovereigns are in their developing stage which makes
their societies very dynamic. The only constant from per legal perspective is
the enforcement of human rights for the
betterment of the citizens. As far as women are concerned both countries
have come a long way and the executive body, the police should also be
constantly checked if the complaints are being lodged timely, procedures are being
followed, and the victim is not harassed by the prevailing procedures, is given proper
treatment, the utmost care, and the other
women are given a safe habitat to thrive in. So much more to be achieved in the human rights aspect on a world stage. Humans shall bestow care upon fellow
humans to make human rights more accessible.
REFERENCES
https://www.worlddata.info/countrycomparison.php?country1=IND&country2=IRQ
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