Swamy Chinmayanand, spiritual leader, and former Member of Parliament from the BJP has been accused on charges of rape against a student at Shahjahanpur. With murkier details of the case emerging, the case has now faced a number of turns with the victim herself being kept in judicial custody on charges of extortion. The case was set in motion through a rape allegation made by a law student. The student went missing shortly after her accusation. After the victim re-emerged, she eventually filed a rape case against Swamy Chinmayanand on September 8, 2019.
She alleges that she was forced to have sex under blackmail and has even stated that men with guns escorted her out of the hostel to Swami Chinmayanand.
A case has been filed against him under Section 376C which deals with sexual intercourse not amounting to rape. Like statutory rape charges, 376C does not have consent as an ingredient to the offence. Rather, the section deals with misuse of authority or a position of power in order to establish a sexual relationship.
Such statutory offences are also prominent in the Protection of Children from Sexual Offences Act, 2012 where sexual acts against children are criminalized irrespective of consent on the part of the child. In these cases it is presumed that owing to the lower age and maturity of the child, they are unable to consent to a sexual act. Similarly, section 376C presumably considers the position of power and authority held by one party precludes the woman in exercising her consent freely. Thus, section 376C criminalises those who have used the position or the fiduciary relationship to induce or seduce a woman in his charge, custody or presence in the premises to have sexual intercourse with him.
Nevertheless, the offensive act of sexual intercourse in section 376C is defined to be through 'inducement or seducement' on account of the position of power or authority and not through a lack of consent. However, unlike statutory rape charges, section 376C clearly terms the offences as 'not amounting rape'.
The problem in the present matter is that the victim is not stating that she was merely induced or seduced by the accused into having sexual intercourse with him. She is categorically alleging that she was raped
The right section to charge under is Section 376(2) which deals with aggravated forms of rape which includes rape by a person who is in position of control or dominance over a women under section 376(2)(k), as well as section 376(2)(f) dealing with rape committed by a person 'being a relative, guardian or teacher of, or in a position of trust or authority towards the woman'. In addition section 376(2)(n) dealing with committing rape repeatedly upon the same woman.
Swamy Chinmayanand here is not only in position of dominance as a spiritual leader but is also a 'manager' at the college where the victim student was pursuing her law degree. The charge makes a world of difference considering the a charge under section 376(2) carries imprisonment for a minimum period of 20 years which can extend to imprisonment for the rest of the life of the convict. In comparison, a charge under section 376C is only punishable with a minimum of five years which may extend to 10 years.
Whether the element of lack of consent satisfies the criteria under the definition of rape under section 375 is required to be determined by a court of law. This in-turn will decide whether the accused may be convicted under section 376(2) or requires to be convicted under a lesser charge under section 376C. This process however cannot be circumvented by charging the accused under a different lesser charge.
The filing of a significantly lesser charge against the accused gains further significance in the light of the alleged withdrawal of a 2011 charge against Swamy Chinmayanand by the Yogi Adityanath government in Uttar Pradesh.
The charging of Swamy Chinmayanand under a much lower charge betrays the pervasive disbelief in victims that is no doubt visible in the ensuing criminal trials as well as the poor conviction rates in rape cases. Despite the objection voiced by the family of the victim in this respect, there seems to be no initiative taken by the police to reframe the charges on Swamy Chinamyanand.
Shruthi Ramakrishnan is an advocate & independent legal researcher. She may be contacted at [email protected].
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