In this blog post, Suprateek Neogi from Rajiv Gandhi National University of Law, Punjab discusses the Nirbhaya gang rape incident. This post is updated by Richa Singh of Faculty of Law, Aligarh Muslim University. In this article, she has updated and included a detailed case study of the Nirbhaya rape case of 2012.

Introduction

Rape accounts for about 12% of all crimes against women in our country. India’s average rate of reported rape cases is about 6.3 per 100,000 of the population. But the problem about rape cases is that about 99% of the cases of sexual violence go unreported which makes it difficult to estimate the actual number of rape cases in our country. These stats make it horrible for a woman to live in such an environment where she can’t even breathe by her choice. 

Nirbhaya Case Study

The number of reported cases in India has seen a massive jump in the last few years, mainly owing to the outrage created by the Nirbhaya case. 

Let’s see what made it a shock for the country and how it helped in developing progressive laws for women and the important role played by our judiciary in administering justice to ‘Nirbhaya’.

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Facts of The Case

“Nirbhaya” is the pseudonym used for the rape victim of the infamous 16 December 2012 Delhi gang rape incident. On just another chilly December night in Delhi, Nirbhaya and her friend were returning from a movie theatre, they were waiting for a bus. One of the would-be culprits convinced them to get on an empty bus with tinted windows. They were assaulted by six males, one of whom was a minor, aged 17.

The friend, when he tried to protect Nirbhaya, was beaten up by the perpetrators. Nirbhaya was not just sexually violated, her body was mutilated beyond human imagination. Her intestines were pulled out, and private parts mutilated. She later died of multiple organ failure, internal bleeding and cardiac arrest on the 29th of December.

Rape

The word rape springs from the Latin term “rapio”, which means ‘to seize’. “Rape” is defined in Section 375 of the Indian Penal Code, 1860.

A man is alleged to commit “rape” in the following circumstances:

• If he penetrates his penis into the vagina, mouth, urethra or anus of any woman or he makes her do so with him or with any other person.
• If he inserts anything or any body part other than the penis, into the vagina, urethra or anus of a woman or if he makes her do so with him or with any other person.
• If he manipulates any body part of a woman so as to do such penetration into the vagina, urethra, anus or any part of the body of the woman or he makes her do so with him or some other person.
• If he applies his mouth to the vagina, anus, urethra of a woman or he makes her do so with him or some other person, under the given seven descriptions:
  • When it is against her will.
  • It is done without her consent. 
  • It is done with her consent, but such consent has been obtained by putting her or any person in whom she is interested or whom she is concerned about, in fear of death or of hurt or anything else.
  • 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 her husband to whom she is lawfully married.
  • With her consent when she wasn’t of sound mind or in an intoxicated state or the administration of any harmful substance by the person who commits rape or through another due to which she is unable to understand the character or consequences of the act to which she provides her consent.
  • With or without her consent, when she has not attained majority or is under eighteen years of age. 
  • When she is not in a condition to communicate her consent for the act.

“Vagina” includes labia majora (the labia majora are a pair of rounded folds of skin that are part of the external female genitalia). Consent suggests a voluntary agreement. Once the woman by words, gestures or the other kind of verbal or anything apart from verbal communication, communicates her willingness to participate in the specific sexual act, provided that a woman who does not resist the act of penetration shall not by reason only of that fact, be regarded as consenting to the sexual activity. 

It must be noted that a medical procedure shall not constitute rape. Sexual intercourse by a man with his own wife, she being under fifteen years of age, is rape even if it is done with her consent.

The Victim

Rape is when one person wants and tries to pursue a sexual act on, to, or inside another person who does not want to participate in the activity and who does not fully and freely give her consent to take part in that sexual act. And the person who suffers from the same is the victim. Partnered sex is about two people equally doing something sexually, but rape involves and affects both the people and is really about what one person, the rapist, desires and does to that other person against their will. That other person is a ‘victim’ here. 

Rape is a sexual violation, all at once. But the pain of rape doesn’t stop even when the rape is over. The victim gets traumatized after the event; it is very difficult for a woman to come out of this trauma. 

Effects of Rape

The effects of rape can include both, the physical trauma as well as psychological stress. Women often suffer from health issues and reproductive problems after the rape and the mental instability continues even after the rape is over. It is really a curse for a woman if she gets raped.

Women don’t even complain about it because they think it is shameful for them and their family also. They fear that if they get blamed for what has happened with them what will be the consequences of it. It ruins their life and makes them restless for the rest of their lives.

It makes them lose their interest in working of the system of our country and they don’t even think about justice as it becomes just a word for them.

Rape is one of the social problems and the victims suffer from physical, mental, and emotional consequences and various other traumas which ruins their life.

Social Reaction

There was a lot of social outrage due to the gruesome incident. There were a lot of candle light marches, solidarity movements and protests. India has always been notorious for being unsafe for women, and this was the spark which ignited the fire of public outrage. The outrage was not restricted to India, the whole world had formed an opinion about India. A British documentary called “India’s Daughter” was banned by the central government because it portrayed India in a very derogatory and poor light.

A majority of the outrage poured out on social media. In the contemporary times, with easy access to technology, the reactions on social media often reflect the mood and situation in the country. The hashtags #GangRape, #JyotiSingh #Nirbhaya and so on became “trending” on various websites. Organisations like All India Progressive Women’s Association (AIPWA) also made its mark. Its secretary became one of the lead voices for women’s rights on Twitter.

Feminist and women’s movements gained momentum and incentive. The culprits were made an example of and condemned. Not just social, there were legal repercussions of the incident too. The UPA government was being pressurised to make stricter laws regarding rape and dealing with juveniles committing heinous crimes.

Results of protests in different states

• The governments at the centre and various states announced several progressive steps to ensure the safety of women in the country.
• The Government of Karnataka announced the launch of a 24/7 dedicated helpline (1091) to help women in registering any complaint against any form of sexual abuse.
• The setting up of fast-track courts to dispose of pending cases and provide immediate legal aid to the victims.
• The government of Tamil Nadu also announced a 13-point action plan to ensure the safety of women in Tamil Nadu.
• The Jammu and Kashmir government announced plans to amend the state’s laws against sexual offences as the level of crime against women has been upgraded these days.
• The government of Himachal Pradesh decided to set up state and district-level committees to check the assaults committed against women in the state.

Did the Nirbhaya Outrage Start a Long Term Evolution

The Nirbhaya gang rape was definitely the spark that ignited the fire for women’s rights and women’s safety. But sadly, the fire was short lived. The public outrage died in a few months, and with it, women’s issues took their usual place in the daily agenda.

In early 2016, a dalit girl was brutally gangraped in the Ernakulam district of Kerala. The rape was as brutal as the Nirbhaya gang rape case. But the social outrage about the incident was disproportionate to that of the Nirbhaya case, and as some argue, disproportionate to the crime.

This raises the question, whether the fact that Nirbhaya was a Delhi based upper caste girl as opposed to a poor law student from Ernakulam, Kerala, had some role to play in the difference in the social reaction. It could probably just be luck and insufficient media presence in that district, but the contrast is uncanny. The idea that a difference in location can make so much difference in media coverage for such issues is disturbing. This raises the question whether there are other unreported incidents.

The Legal Perspective

Law About Rape and Sexual Harassment in India

Rape

In the case of Parhlad and Ors v State of Haryana, the court called an offence of rape as basically an assault on the human rights of the victim. It was seen as an attack on the individuality and physical sovereignty of a woman. It is important to note that according to Section 375 of the Indian Penal Code, only a man can commit rape, and only on a woman.

Until 2012, the definition of rape was restricted just to sexual intercourse. The Criminal Law (Amendment) Act, 2013 gave a broader meaning to the term rape. It amended the definition under Section 375 of the IPC. Section 375 of the IPC, after the amendment, defines rape as any involuntary and forceful penetration without the woman’s consent into the woman’s body parts like the vagina, urethra, mouth or anus.

Two developments had a major impact on the amendment. These were the Nirbhaya incident and the Justice Verma Committee report.

Suggested Reading: Human Castration as Rape Punishment in India

Justice Verma Committee report

The committee was made after the Nirbhaya case to provide for quicker trial and enhance punishment and criminal provisions in the law for people who are accused of committing sexual offences against women. Some of the progressive changes which the committee suggested are:

• According to the committee rape and sexual assault don’t seem to be simply crimes of passion however it is an expression of power. Rape should be treated as a separate offence and it should not be limited only to the penetration of the vagina, mouth or anus and its scope should be widened. Any other non-consensual penetration whose nature is sexual should be included in the definition of rape given under various laws.  
• It recommended that marriage should not be considered as a licence to perform sexual offences.
• It counseled that non-penetrative forms of sexual contact should be regarded as sexual assault. The offence of sexual assault to be outlined so as to include all forms of non-consensual or non-penetrative touching of sexual nature.  
• The use of words or any act or any form of gesture that creates a threat of sexual nature should be termed as sexual assault and be punishable for the same.
• There are some key recommendations made by the Committee on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 which were:
  • Domestic workers must be included within the purview of the Bill. 
  • The complainant and the respondent should first attempt to conciliation that makes it easy for both of them to settle the issue.
  • The employer should pay compensation to the woman who has suffered from sexual harassment at the workplace in any form.
  • The employer should institute an internal complaints committee to which complaints should be filed and heard.
• It opined that Acid attack should not be clubbed with the provisions of grievous hurt and recommended that the central and state government should take some steps to compensate victims of sexual assault.  
• It recommended that the requirement of sanction for prosecution of armed forces personnel should be specifically excluded when a sexual offence is alleged. Special commissioners should be appointed in the conflict areas to monitor and prosecute for sexual offences against women.
• The provisions of the IPC on slavery should be amended to criminalise trafficking. 
• The terms ‘harm’ and ‘health’ should be defined under the Juvenile Justice Act, 2000 to include mental and physical harm and health of juveniles.
• It was of the view that the death penalty should not be awarded for the offence of rape. It recommended life imprisonment for rape instead.
• The Committee has recommended the discontinuation of the two-finger test as it doesn’t make any sense because the offence of rape can be committed against her even if she is habitual to sex. 
• The Committee has recommended certain steps for the reformation of the police. This includes the establishment of Security Commissions in states to ensure that the government doesn’t exercise any kind of influence on the police.
• Some suggestions for reforms in the management of cases:
  • A Rape Crisis Cell should be set up for providing immediate notification of the case when an FIR in relation to sexual offences is made. The Cell should also provide legal assistance to the victims. 
  • All police stations should have CCTVs at the entrance and in the questioning room so that their activities can be monitored.
  • A system of online F.I.R. filing should be there. 
  • It should be the duty of the police officers to assist victims of sexual offences irrespective of the crime’s jurisdiction and anything else. 
  • The police must be trained on how to deal with sexual offences appropriately and effectively.
  • The number of police personnel should be increased for better assistance of the victims. 
• The Committee was of the opinion that filing of charge sheet and cognizance by the Court was sufficient for disqualification of a candidate under The Representation of the People Act, 1951. It further recommended that candidates should be disqualified if he has committed any sexual offence.  
• It has recommended that sex education should be imparted to children so that they get to know if anything wrong happens to them.

Review petition

• Article 137 of the Constitution provides that subject to the provisions of any law and rule made under Article 145 the Supreme Court of India has the power to review any judgement pronounced or order made by it.
• In India, a binding decision of the Supreme Court/High Court can be reviewed by filing a Review Petition. 
• The parties aggrieved on any order of the Supreme Court due to some apparent error regarding the case can file a review petition. 
• Considering the principle of stare decisis, courts generally do not unsettle a decision, if it is not a strong case. 
• Chances of success in filing this petition are very low as it goes to the same panel which has heard the case previously and has given the judgement on it.
• In the review petition, the petitioner had tried to raise the plea that he was not in the bus and was somewhere else and that he has nothing to do with the incident. But the presence of necessary evidence made the court to reject this plea.

Curative Petition

• The concept of ‘Curative petition’ was evolved by the Supreme Court of India and it was to answer whether an aggrieved person is entitled to any relief against the final judgement of the Supreme Court, after the dismissal of a review petition.
• The Supreme Court, within the aforesaid case, command that so as to stop the abuse of its methods used in administering justice and to reduce the miscarriage of justice, it may reconsider its judgements in the exercise of its inherent powers.
• In the Nirbhaya case, the Supreme Court of India rejected their pleas. 

Mercy Petition

• After facing rejection from all sides, Mercy Petition is the last step which one can take in the context of Indian Judicial System.
• When a person lost all the remedies available to him/her under all the laws then he files a Mercy Petition before the President of India or the Governor of the State in the state where that person resides. 
• By virtue of Article 72 of the Indian Constitution, the President has the power to reprieve, respite, or remit a punishment pronounced even by the apex court of law.
• He is also entitled to grant pardon but the power is not discretionary as it requires the consultancy of the Council of Ministers.
• The President upheld the death sentence given by the Supreme Court to the remaining four culprits in the Nirbhaya case.

Nirbhaya Fund

As a reaction to the public outrage and reaction, the then Finance Minister, P. Chidambaram, allocated a lot of money for tackling women’s issues. He announced the “Nirbhaya Fund” in Parliament on his Budget Speech 2013-14. This showed an acceptance, either willing or forced, about the dire situation of women’s safety in India. The initial amount allocated for the same was a whopping amount of INR 1000 Crore. Further, every year the same amount is reallocated in the budget.

Implementation of the Nirbhaya Fund

• In 2013, the government set aside about INR 321 crores for a project for sending distress calls through daily use gadgets like phones, which has not been implemented due to fund not being allotted for the project.

• Further, there had been proposals to put GPS trackers in trains, buses and such public transport, train stations etc. About Rs.1000 Crore was allotted to this, but even this has not been implemented on a large scale.

• A women’s helpline has been started, but it is not accessible to most rural areas.

• One Stop Centres for rape victims exist just one paper.

• Central Victim’s Compensation Fund has been set with a budget of Rs.200 Crores. Karnataka and Tamil Nadu have never withdrawn from the same.

The broad points about the implementation of the scheme again highlights how the Nirbhaya movement was a fad, and although the public and the government is still aware of the state of women in India, not much is being done for the same.

Name of a Rape Victim and Why Is It a Controversy

Section 228A of the Indian Penal Code prohibits anyone (especially the media) to “print or publish” the identity of the victim in cases of rape. The guilty may be imprisoned for two years, along with being liable for a fine.

Crimes of the nature of rape are usually associated with a lot of social stigma. The section aims at preventing the social victimization of the victim.

Nirbhaya’s Name

Section 228A(c) provides for an exception to the rule when the name can be made public when, in case of the death of the victim, the next of kin of the victim can permit the same. This happened in the case of Nirbhaya. The victim’s mother, Asha Devi, herself made Nirbhaya’s name known to the public saying the world should know what happened to her daughter. She felt that no rape victim should be ashamed of being raped, as it is the perpetrator of the crime who is at fault, not her.

But a contradiction arose when her father prohibited naming the victim in the documentary “India’s Daughter”, and even threatened of legal action. But they still have permitted the usage of their daughter’s name in media reports. Most media houses do not mention Nirbhaya’s name as a force of habit, and also as a way of respect.

Nirbhaya case verdict supreme court

A  three-judge bench agreed that the act done by the accused did not deserve any sympathy. 

In a strong message, that the diabolic crime had shocked the collective conscience of the society, and that the court can treat it as a rarest of rare cases where death sentences can be awarded. DNA identification, fingerprints, witness testimonies and odontology proved the presence of the accused in the bus and their involvement in the crime, as said by the Supreme Court.

The casual manner with which she was treated and the devilish manner in which they played with her body, her identity and her dignity is humanly unthinkable, said the bench.

The Supreme Court administered justice to the family of the victim and all the women in the country by confirming the punishment of death sentence to the four convicts in the Nirbhaya gangrape and murder case, terming it as the ‘rarest of rare’, most brutal and barbaric attack on the 23-year-old paramedic student, Jyoti Singh.The convicts treated the victim as an object of enjoyment and exploited her sexually to the worst level.

A three-judge bench, through a unanimous verdict, upheld the Delhi High Court judgement that had concurred with the trial court decision of the case.Mukesh (29), Pawan (22), Vinay Sharma (23) and Akshay Kumar Singh (31) were hanged till death for the brutality they had shown against a woman of the country.The bench awarded them the death sentence because their crime met ‘rarest-of-rare’ threshold. After the incident, the fifth accused was not tried and he was sent to a correction home for three years because he was a minor at that time. 

Criminal Law Amendment Act, 2013

Some important highlights of this amendment are:

• The Criminal Amendment Act, 2013 is also popularly referred to as the “Anti-rape Act”.
• Under this change, new offences such as stalking, acid attacks, and voyeurism were added into the definition of rape and provisions mentioned in the Indian Penal Code, 1860.
• Even the threat of rape is now a crime and the person will be punished for the same.
• The minimum sentence was changed from seven years to ten years considering the increase in the number of rape cases.
• In cases that led to the death of the victim or the victim being in a vegetative state, the minimum sentence was increased to 20 years. 
• The ‘character of the victim’ was totally irrelevant to rape cases and it doesn’t make any difference in granting punishment for the crime. 
• Since one of the accused in this case was a juvenile, another flaw in the system was identified after this case. So, the age for being tried as an adult for violent crimes like rape was changed from 18 to 16 years, that to the Juvenile Justice Act, 2015.

Changes in the Indian Penal Code, 1860

• Insertion of Section 166A which covers the offence of Disobedience of law by a public servant. After the amendment Act, it is made punishable with rigorous imprisonment for 6 months to 2 years and liable to fine.
• Insertion of Section 326A and B which cover the issue of Acid attack. The amendment Act has made it a Specific Offence under the act, punishable with 10 years Imprisonment extendable to life imprisonment or fine or both.
• Insertion of Section 354A which deals with Sexual harassment and punishment for the same. 
• Insertion of Section 354B which covers the offence of compelling a woman to remove her clothes.
• Insertion of Section 354C which covers the offence of Voyeurism i.e. watching a woman when she is engaged in some private act including sexual acts or when her private parts are exposed.
• Insertion of Section 354D which covers the offence of stalking.
• The Age of consent has been enhanced from sixteen years to eighteen years. 
• The definition of rape has been widened after the Nirbhaya Case.
• The Amendment Act has included more actions under the purview of what constitutes rape such as unconsented penetration of mouth, urethra, vagina, anus with the penis or other objects by anyone and unconsented application of mouth to vagina, urethra and anus. 
• Insertion of Section 376 (2)(c) which covers the offence of Rape by personnel of armed forces.
• Insertion of Section 376A which deals with the Rape resulting in death or vegetative state.
• Insertion of Section 376D which deals with the crime of Gang rape.
• Repetition of offences is punishable with life imprisonment or death.
• Employment of a trafficked person can also attract penal provision as well.
• It has also been clarified that penetration means “penetration to any extent”, and lack of physical resistance or any sort of other resistances is immaterial for constituting the offence of rape. 

Legislative reforms post Nirbhaya case

• The CLA 2013 and MoHFW Guidelines are two landmark responses of the Government of India to the public protests across the country after the Nirbhaya case.
• The third response taken by the government was “One Stop Centres” to provide immediate to long-term care for survivors of GBV. 
• The protesters had several demands such as insufficient and incompetent security of women, unreliable public transport, improper functioning of the police force that often blamed rape victims and denied to write an F.I.R. for the crime inflicted upon them and forms of bureaucratic procedure surrounding sexual assault. 
• Justice Verma Committee was assigned the task of the reformation of the anti-rape laws of the country. 
• More female officers were added to Delhi’s police force so that women can share everything with them.
• Security was tightened and patrolling was increased and the police now had to undergo gender sensitization courses which help in understanding the issue of women rights and their safety.
• Six fast track courts were set up to specifically deal with rape cases with the aim of providing immediate aid to rape victims.
• Laws against sexual assault were made even stricter.
• Since one of the accused was a minor (17 years old) at the time of the crime, a need for changing juvenile laws had opened up. 
• A space for public discussion of sexual violence against women that had not existed before was created. 
• Failure to provide medico-legal care is now an offence under Section 166B of the IPC as per the CLA 2013.

Conclusion

India is known for a lot of things. The positive ones are its culture, diversity of religion, cricket prowess, beautiful scenic beauty. But often, a few incidents take place which make these positive factors take a backseat in foreign, and even domestic public opinion. The Nirbhaya incident was the spark which ignited the fire of negative public opinion about India.

It was recently printed in Sex Roles, a journal analysing women’s issues, gave academic backing to something we all Indians are aware of. It highlighted how “beliefs that blame women for their victimization, in turn, provide legitimacy to violence against women”.

Almost non-existent implementation of government schemes for betterment of women’s situation is one of the main reasons for the dire situation of women in India. Although the same callous attitude is visible in a lot of places, it affects the problem of women more. This is because the callous attitude is not just administrative or political, it is rooted in society and morality.

After the Nirbhaya rape case, where a woman was brutally raped solely because she was out late at night, and was enjoying her freedom and her life with her male friend, our government has although taken steps to improve the condition, it has not helped the women much.

At some point the protests by women were at its peak. But in the due course of time, it lost its spark and ultimately faded away. But still, the Nirbhaya rape case, known to be the most horrific case of a crime against women in the history of India, has a lasting impact on the Indian populace.

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