ORIENTAL UNIVERSITY, INDORE

FACULTY OF LAW

An Assignment Report
On
“COMPARITIVE PUBLIC LAW”

By
Riza Ali Semester-
1st
Enrollment No.: S255LWG040

Submitted to
Prof. (Dr.) Rajendra K. Meena
Q1. COMPARATIVE ANALYSIS OF RAPE LAWS BETWEEN
INDIA AND THE USA

Ans.1 Introduction to the Legal Concept of Rape

The concept of rape is universally recognized as a serious criminal offence that violates
bodily autonomy, dignity, and the fundamental rights of a person. While the definition of
rape across jurisdictions may have the same underlying principle—non-consensual sexual
intercourse—the legal interpretation, scope, punishments, and procedural aspects vary
widely. Both India and the United States recognize rape as a violent, non-consensual act, but
they approach the offence differently based on their legal traditions, societal structures, and
constitutional frameworks. India follows a codified criminal justice system, while the USA
follows a federal system where states have the authority to design their own criminal laws.
This leads to substantial variation in definitions and penalties across jurisdictions.
India’s rape law is majorly governed by the Bharatiya Nyaya Sanhita (2023), replacing the
former IPC. In contrast, the United States does not have a singular national definition;
instead, each state defines rape (termed as sexual assault in many states) under its own
criminal code. This difference creates a diversity of approaches within the U.S. legal system.
Despite such variations, both countries have undergone substantial reforms to strengthen their
rape laws, especially in the context of consent, marital rape, evidentiary requirements, victim
protection, and punishment.

1.2 Definition of Rape in India

In India, the legal definition of rape is codified and uniform throughout the country. The
Bharatiya Nyaya Sanhita (BNS) provides a comprehensive definition focusing on lack of
consent and penetration, along with a wide range of acts considered as rape. It includes
vaginal, oral, and anal penetration, insertion of objects, as well as manipulation of any body
part to cause penetration. The definition also explicitly addresses situations involving
coercion, intoxication, unsoundness of mind, and abuse of authority.
A key feature of the Indian definition is its focus on the woman as a victim, meaning that
legally, only a woman can be raped, and only a man can be a perpetrator. Although criticized
for being gender-specific, the law incorporates various aggravated categories such as gang
rape, custodial rape, and rape of minors. The law also adopts the principle that consent must
be unequivocal and voluntary.

1.3 Definition of Rape in the United States

The United States does not have a single definition applicable nationwide. Each state defines
rape or sexual assault differently. However, most states describe rape as non-consensual
sexual intercourse accomplished by force, coercion, threat, manipulation, or when the victim
is incapacitated. The U.S. also recognizes penetration, no matter how slight, as sufficient to
constitute the offence.
Unlike India, many states follow gender-neutral definitions of rape, recognizing that men,
women, and transgender persons can be victims or perpetrators. This broader formulation is
considered modern and inclusive. Furthermore, many states categorize rape under broad
terms such as sexual assault, with varying degrees (first-degree, second-degree, etc.)
depending on severity, force used, or age of the victim.

1.4 Consent: A Key Distinction

Consent plays a central role in both systems, but the interpretation differs in nuances.
Consent in India
Under Indian law, consent must be:
 Voluntary
 Free from fear, coercion, fraud, or intoxication
 An unequivocal agreement
The “freely given consent” standard is applied. Importantly, absence of physical resistance
does not imply consent, and the law explicitly recognizes that submission due to fear does
not constitute consent.
Consent in the U.S.
In the USA, the interpretation of consent varies by state. Many states have adopted the
affirmative consent standard, which requires clear, conscious, and voluntary permission.
Some states define consent as “words or overt actions indicating a freely given agreement.”
Others recognize lack of resistance as irrelevant. The U.S. framework also emphasizes
consent in contexts such as university sexual assault policies, which further define affirmative
consent for campus-related cases.
1.5 Marital Rape: Key Difference Between Both Countries
India
Marital rape as a crime is not recognized for adult wives. The law provides an exception
that sexual intercourse by a man with his own wife, if the wife is above 18 years, is not rape.
However, marital rape of minors is explicitly criminalized. This remains a major area of
debate in Indian criminal law, with ongoing judicial and legislative discussions.
USA
In the United States, marital rape is fully criminalized in all 50 states. Although
historically exempt, major reforms during the 1970s–1990s eliminated marital immunity.
Today, marriage does not provide a defense to rape, and in some states, marital rape carries
equal or harsher penalties.
This constitutes one of the most significant differences between the two legal systems.

1.6 Punishments for Rape: India vs. USA

Punishments in India
India imposes strict punishments:
 Minimum 10 years imprisonment for standard rape
 Life imprisonment in aggravated cases
 Death penalty for certain categories (like gang rape of minors)
The sentencing framework emphasizes deterrence, public safety, and retribution. Post-2012
reforms significantly increased penalties.
Punishments in the U.S.
Punishments vary by state:
 Ranging from a few years to life imprisonment
 Many states impose registration as a sex offender, often for life
 Enhanced penalties for use of weapons, repeated offenders, or child victims
The U.S. sentencing system focuses on rehabilitation, public safety, and proportionality.

1.7 Evidentiary Standards and Burden of Proof

India
The prosecution must prove guilt beyond reasonable doubt. However, in certain situations
(e.g., rape by a person in authority), a reverse burden of proof applies, where the court may
presume lack of consent unless rebutted. Medical evidence, forensic reports, and victim
testimony play crucial roles.
USA
In the U.S., the “beyond a reasonable doubt” standard also applies. However, because courts
are jury-driven, victim testimony, corroborative evidence, DNA analysis, and forensic
interviews become crucial. The U.S. also has rape shield laws that prevent the defense from
introducing the victim’s sexual history.

1.8 Treatment of Minors and Statutory Rape

India
Sex with a minor (below 18) is considered statutory rape regardless of consent, under
POCSO.
USA
Each state sets its own age of consent (ranging from 16 to 18). Statutory rape laws vary but
generally criminalize any sexual act with someone below the age of consent.

1.9 Procedural Safeguards and Victim Support

India
Indian law mandates:
 In-camera trials
 Fast-track courts
 Free medical treatment
 Compensation schemes
 Use of female police officers
USA
The U.S. offers:
 Victim advocacy programs
 Rape crisis centers
 Sexual Assault Response Teams (SARTs)
 Victim impact statements
  Protective orders
Both systems emphasize victim-centered approaches but differ institutionally.

1.11 Historical Evolution of Rape Laws in India and USA

India’s Evolution
The definition of rape in India has developed through colonial laws, judicial interpretations,
and public pressure. The 2012 Nirbhaya case acted as a catalyst for major reforms, leading to
expanded definitions, harsher punishments, and victim-centric processes. Over the decades,
Indian courts gradually moved away from outdated notions such as the “two-finger test,”
“character evidence,” and “stereotypical expectations of resistance.”
USA’s Evolution
In the USA, the law evolved differently across states. Earlier laws required proof of force and
resistance, but modern reforms emphasize absence of consent, not physical resistance. The
feminist movement, campus activism, and federal legislation such as the Violence Against
Women Act (VAWA) played key roles. The U.S. system also gradually abolished marital
rape exemptions and established comprehensive sex-offender registration systems.

1.12 Gender Neutrality and Inclusivity

India
Indian law treats rape as a gender-specific offence: only women can be victims. Critics argue
that this excludes:
 Male victims
 Transgender victims
 Non-binary identities
The Transgender Persons Act recognizes gender identity but rape laws have not been updated
accordingly.
USA
Most U.S. states follow gender-neutral rape laws. They recognize:
 Any person can be a victim
 Any person can be a perpetrator
 Consent applies universally
This reflects a more inclusive approach aligned with modern gender understandings.
1.13 Role of Federal and State Laws in USA
A unique feature of the U.S. system is the division of criminal law authority:
 Federal law (for offences involving interstate crimes, trafficking, federal property)
 State law (majority of rape cases)
Every state has its own definitions, degrees of offences, and sentencing guidelines. This
creates diversity in punishment and procedure, unlike India where a single code applies
nationwide.

1.14 Evidentiary Reforms and Rape Shield Laws

India
Evidentiary reforms include:
 Prohibiting questions on the victim’s past sexual history (Section 148 & 155 Evidence
Act amendments)
 Disallowing character-based impeachment
 Scientific evidence like DNA testing encouraged
USA
The U.S. has strong Rape Shield Laws, preventing the defense from using:
 Victim’s past sexual behavior
 Clothing
 Dating history
 Sexual preferences
These protections aim to prevent victim-blaming and secondary victimization.

1.15 Medical Protocols and Forensic Approaches

India
Medical examination guidelines include:
 No “two-finger test”
 Consent-based medical examination
 Mandatory collection of forensic evidence (when possible)
 Use of specialized kits
USA
USA uses Sexual Assault Forensic Examination (SAFE) protocols and SANE nurses
(Sexual Assault Nurse Examiners), ensuring:
 Standardized forensic processes
 Better chain of custody
 Trauma-informed medical care

1.16 Judicial Attitudes and Courtroom Practices

India
Courts must avoid:
 Patriarchal presumptions
 Demanding proof of resistance
 Misinterpreting victim behavior
Judicial sensitivity training has been mandated but challenges remain.
USA
The presence of jury trials influences:
 Presentation of evidence
 Emotional narratives
 Public opinion
While the U.S. system is more victim-sensitive, jury biases sometimes influence outcomes.

1.17 Restorative Justice vs Retributive Models

Many U.S. states encourage restorative justice programs for certain categories, while India
strongly discourages compromises in rape cases. Indian courts have repeatedly held that rape
is an offence against society, not an individual, hence compromise is not acceptable.

1.18 Contemporary Challenges

India
 Low conviction rates
 Delays in trials
 Police insensitivity
 Underreporting due to social stigma
USA
 Campus sexual assault complexities
 Role of alcohol and incapacitation cases
 Racial bias in sentencing

1.19 Conclusion
While both India and the USA recognize rape as a serious crime, there are important
differences in definitions, consent standards, marital rape, punishments, and procedural
mechanisms. The U.S. adopts a more gender-neutral and decentralized legal framework,
while India relies on a codified, uniform approach with stricter punishments. Both
jurisdictions continue to evolve in addressing sexual violence. India follows a centralized,
codified, punishment-heavy approach, while the USA follows a decentralized, victim-
focused, consent-centered structure. Both systems continue evolving under constitutional
principles, societal expectations, and international human rights standards.
Q2. Compare the concept of Plea Bargaining between India and USA.

Ans.2 Introduction to Plea Bargaining

Plea bargaining is a mechanism that allows an accused person to plead guilty to a lesser
charge or seek a reduced sentence in exchange for avoiding a full trial. While it is a well-
established practice in the United States, it was introduced relatively recently in India under
the Criminal Procedure Code (CrPC) reforms.
The purpose of plea bargaining is to reduce backlog, promote efficiency, and encourage early
disposition of cases. However, the concept raises debates about fairness, voluntariness,
prosecutorial power, and the rights of the accused.

2.2 Plea Bargaining in India: Statutory Origin

Plea bargaining was introduced in India through the CrPC (Amendment) Act, 2005,
inserting Sections 265A–265L. This reform aimed to address the serious issue of judicial
delay and heavy pendency of criminal cases. It is only applicable to offences punishable with
imprisonment up to 7 years and not applicable to offences:
 Against women
 Against children
 Affecting socio-economic conditions
The Indian version is therefore restricted, cautious, and controlled.

2.3 Procedure of Plea Bargaining in India

The accused must file an application voluntarily. The court then examines the voluntariness
and ensures the accused understands consequences. A mutually satisfactory disposition is
reached among the accused, victim, and prosecution. The court then passes the sentence,
often awarding a reduced punishment.
The entire process is conducted in-camera to protect confidentiality. The judge ensures
fairness and absence of coercion.
2.4 Types of Plea Bargaining in India
Indian law recognizes:
 Charge bargaining
 Sentence bargaining
 Fact bargaining (limited)
However, Indian courts do not allow bargaining in serious offences, limiting its scope
compared to the USA.

2.5 Plea Bargaining in the USA: Historical and Legal Basis

The USA developed plea bargaining as a natural extension of prosecutorial discretion and
constitutional guarantees. It is not explicitly defined in the Constitution, but the Supreme
Court recognizes it as an essential part of the criminal justice system.
Over 90–95% of criminal cases in the U.S. are resolved through plea bargaining, making
it the backbone of American criminal administration.

2.6 Types of Plea Bargains in the USA

The U.S. recognizes several forms:
 Charge bargaining: pleading to a lesser charge
 Sentence bargaining: agreeing to a recommended sentence
 Count bargaining: dismissal of some charges
 Fact bargaining: admitting certain facts for leniency
This flexibility makes American plea bargaining highly expansive.

2.7 Procedure in the USA

The process involves negotiation between the defense attorney and prosecutor. The judge
ensures that:
 The plea is voluntary
 The accused understands the consequences
 There is a factual basis for the plea
Unlike India, the victim’s consent is not mandatory, though victim impact laws allow victims
to be heard.
2.8 Criticisms of Plea Bargaining: Comparative Perspective
India
 Limited scope
 Risk of coerced pleas due to delays
 Excludes many offences
 Requires victim involvement
USA
 Prosecutors may hold excessive power
 Innocent persons may plead guilty to avoid harsher sentences
 High reliance undermines right to fair trial

2.9 Key Differences Between India and USA

Aspect India USA

Scope Limited to minor offences Applies to almost all criminal offences

Victim’s role Mandatory participation Optional in some states

Judicial role Active participation Supervisory role

Prevalence Rare Very common

Flexibility Restricted Highly flexible

2.10 Philosophical Basis of Plea Bargaining

USA
Plea bargaining is grounded in:
 Efficiency
 Prosecutorial discretion
 Quick administration of justice
 Reduction of state costs
Legal scholars argue it is a practical necessity due to overwhelming caseloads.
India
India’s cautious approach is rooted in:
  Fear of coercion
 Protection of vulnerable accused
 Ensuring fairness
 Restricting negotiation in serious crimes
The Indian model is moral and protective, not efficiency-driven.

2.11 Constitutional Dimensions

USA
The U.S. Supreme Court (Brady v. United States, Santobello v. New York) held that plea
bargaining is constitutional if the plea is:
 Voluntary
 Intelligent
 Knowing
Right to counsel is central.
India
The Indian Supreme Court earlier disapproved of plea bargaining (Kasambhai case, 1977) but
after statutory introduction, the court now views it as a controlled option, not a constitutional
right.

2.12 Role of Prosecutors

USA
Prosecutors have immense negotiation power. They can:
 Threaten harsher charges
 Offer reduced charges
 Influence the sentence
Their discretion shapes outcomes, sometimes raising fairness concerns.
India
Prosecutors have limited negotiating power:
 No sentence threats
 No coercive bargaining
 The court supervises everything
 This protects the accused but limits flexibility.

2.13 Impact on Judicial Backlogs

USA
Plea bargaining is the reason U.S. criminal courts avoid collapse. Without it, the system
would be overwhelmed.
India
Even after introduction, adoption is extremely low due to:
 Low awareness
 Cultural reluctance
 Fear of stigma
 Lawyer hesitation
Its impact on pendency reduction is minimal.

2.14 Victim-Centric Approach

India
Victim participation is compulsory in mutually satisfactory disposition. This gives victims:
 A voice in sentencing
 Opportunity for compensation
 Emotional closure
USA
Victim’s views may be considered but are not mandatory for bargain approval.

2.15 Criticism and Misuse Concerns

India
 Fear that police may pressure poor accused
 Risk of innocent persons pleading guilty
 Low acceptance due to social stigma
USA
 Prosecutorial coercion through “trial penalty”
 Racial disparities
  Innocent accused frequently plead guilty
 Overburdened public defenders influence decisions

2.16 Comparative Table (Extended)

Parameter India USA

Voluntariness Check Strict Moderate

Victim’s Role Essential Limited

Scope Narrow Expansive

Judicial Supervision High Moderate

Plea Prevalence Rare Dominant

Social Acceptance Low High

Coercion Concerns Police coercion Prosecutor coercion

2.17 Economic Impact

Plea bargaining reduces:
 Courtroom expenses
 Prosecutorial burden
 Jail overcrowding
In India, economic benefits exist but are not the primary consideration.

2.18 Conclusion
The concept of plea bargaining has vastly different significance in India and the USA. While
the U.S. system relies heavily on it as an essential mechanism, India adopts a cautious,
controlled, and limited approach. Both systems aim for efficiency, but societal values and
criminal justice philosophies shape their respective adaptations. India views plea bargaining
as a carefully controlled alternative, while the USA sees it as the heart of criminal justice.
The Indian model is protective; the American model is pragmatic. Both systems continue to
evolve under scrutiny, judicial oversight, and public opinion.
Q3. CONCEPT OF PUBLIC LAW.

Ans.3 Introduction to Public Law

Public law refers to the branch of law that governs the relationship between the state and
individuals. It deals with the organization, powers, and functions of government institutions
and establishes legal principles that control the exercise of public authority. Public law
ensures accountability, transparency, and constitutional governance. Its central aim is to
safeguard public interest and protect fundamental rights.

3.2 Nature and Scope of Public Law

Public law is concerned with matters affecting the community at large. It regulates the
conduct of government agencies, public officials, and administrative bodies. It includes
constitutional law, administrative law, criminal law, and taxation law. These branches
collectively maintain the structure of governance, define rights and duties of citizens, and
ensure that power is not exercised arbitrarily.
The scope of public law is vast because it deals with the foundational legal framework within
which society operates. It ensures that public institutions adhere to fairness, reasonableness,
and legality.

3.3 Characteristics of Public Law

Public law has the following characteristics:
1. State Involvement – It governs the actions of government bodies.
2. Public Interest Orientation – Its purpose is to protect collective welfare.
3. Unequal Relationship – Unlike private law, parties are not on equal footing; the state
has special authority.
4. Regulatory Nature – It imposes duties and restrictions on public authorities.
5. Remedies – Includes judicial review, writs, and constitutional remedies.
These features distinguish public law from private law.

3.4 Major Branches of Public Law

Constitutional Law
It forms the supreme law of the land, regulating the structure of government, separation of
powers, fundamental rights, and federalism. It lays down the framework for law-making and
governance.

Administrative Law
It governs the functioning of administrative agencies and ensures they act legally and fairly.
It provides remedies such as judicial review to prevent abuse of power.

Criminal Law
It protects society by prohibiting harmful conduct and prescribing punishment. Criminal law
serves public order and security.

Taxation Law
It regulates how the state collects revenue and ensures compliance with tax laws.

3.5 Public Law vs. Private Law

Public law focuses on matters affecting society and the state, whereas private law governs
relationships between individuals. Public law is oriented towards public welfare, while
private law aims at protecting individual interests.

3.6 Importance of Public Law

Public law is essential because it:
 Ensures that government power is exercised legally
 Protects rights and freedoms
 Prevents abuse of authority
 Maintains constitutional order
 Provides remedies against illegal state action
In modern democracies, public law acts as a shield against arbitrary power and promotes
good governance.

3.7 Historical Development of Public Law

Public law originated in Roman law under the idea of jus publicum—laws that relate to the
state. It grew through:
 Classical constitutional frameworks
 The Magna Carta
  The evolution of parliamentary democracy
 American and French revolutions
 Modern administrative state
The rise of welfare states further expanded the domain of public law.

3.8 Relationship Between Public Law and Rule of Law

Public law is the guardian of the Rule of Law, ensuring:
 No one is above the law
 Government decisions are reasonable
 Arbitrary power is restricted
 Judicial review is available
Without rule of law, public law cannot function effectively.

3.9 Public Law and Separation of Powers

Public law enforces separation of powers by:
 Ensuring legislative accountability
 Limiting executive authority
 Allowing judicial oversight
This prevents concentration of power.

3.10 Judicial Review as the Heart of Public Law

Judicial review allows courts to examine:
 Legislative actions
 Executive actions
 Administrative orders
This ensures constitutional supremacy. It acts as a powerful remedy against abuse of
authority.

3.11 Public Law and Fundamental Rights

Public law protects:
 Right to equality
  Right to life and liberty
 Freedom of speech
 Religious freedom
 Cultural rights
These rights limit state power and ensure human dignity.

3.12 Public Law in Welfare States

Modern states perform:
 Social security
 Education
 Healthcare
 Economic regulation
Public law enables these activities while ensuring accountability.

3.13 Emerging Trends in Public Law

1. Digital governance and data protection
2. AI regulation
3. Environmental constitutionalism
4. Human rights expansion
5. Anti-corruption oversight
These new areas broaden public law’s relevance.

3.14 Difference Between Public Law, Constitutional Law, and

Administrative Law
 Public Law: Broad umbrella governing state-citizen relations
 Constitutional Law: Deals with structure, rights, powers
 Administrative Law: Deals with functioning of government agencies
Public law integrates the other two.

3.15 Public Law in India

Indian public law includes:
 Writ jurisdiction
 Fundamental rights
 Directive Principles
 Judicial activism
 Public Interest Litigation (PIL)
India is known for its expansive and progressive public law framework.

3.15 Conclusion
Public law plays a vital role in maintaining legality, accountability, and constitutionalism in a
state. By regulating government actions and protecting citizens’ rights, it serves as the
backbone of democratic governance. It ensures that power is not misused and that public
authorities operate within the limits prescribed by law. Public law acts as the foundation of
modern governance, ensuring that power is exercised responsibly. It protects fundamental
rights, enforces constitutional values, and maintains democratic order. As societies evolve,
public law adapts to new technological and social realities, ensuring continual relevance.