This article has been written by Sumanta Talukdar, from University law College, Gauhati University.
In November 2019, the Gang Rape and murder of a female veterinary doctor in Hyderabad sparked outrage across India and there was a consensus in complaints about lack of legal provisions for the protection of women from Rape which resulted in the public’s demand for instant Justice. There was a common frustration among the public on the existing Legal system when it came to the protection of women from Rape.
The Hon’ble Supreme Court in a judgment setting aside the death penalty of a man in a rape and murder case said that “Speedy disposal of a Case should not be at the cost of Justice”. It was held that “Expeditious disposal is undoubtedly required. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates the entire criminal administration of justice is founded. What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and ideal, the process may be expedited, but fast-tracking of process must never ever result in burying the cause of justice.”
The Criminal Law Amendment Act of 2013 was introduced to amend the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act of 1872 based on the recommendations of the Justice Verma Committee on the aftermaths of the Nirbhaya Rape case in Delhi which exposed the lack of adequate legal measures for the protection of women from Rape in the country. Though it didn’t implement all of the changes suggested by the Justice Verma Committee, it still brought the requisite balanced changes needed for efficient prosecution in the heinous crime, leaving less scope of bias. According to data of expenditure presented in the Parliament by the Women and Child Development Minister in November 2019, the utilization of the Nirbhaya Fund has been only 20% of the total funds released. In this paper, we study the provisions of rape as it was introduced by the Criminal Law Amendment Act of 2013, the data on rape post-2013 and the Lapse of the institutions in the society in order to understand the requirements of the society to deal with Rape, and lastly suggest measures to curb the occurrence of rape.
Changes brought forth by the Act to provisions related to rape
Provisions related to the Indian Penal Code
- Punishment of public servants who knowingly refuses to record an FIR in cases of Rape (Section 166A).
- Punishment of those in charge of a public or private hospital for refusal to provide free medical treatment for victims of Rape (Section 166 B).
- The prosecution of Acid attackers or those who cause or attempts (Section 326A and Section 326B).
- Provisions for Sexual Harassment (Section 354A).
- The provisions for Assault or use of criminal force to a woman (Section 354B).
- Voyeurism (Section 354C).
- Stalking (Section 354D).
- Modifications to the definition of Rape (Section 375).
- Rape Committed by the Armed Forces (Section 376).
- Rape Committed by other persons for various causes (Section 376).
- Rape which causes Death or Persistent Vegetative State (Section 376 A).
- Rape Caused by leveraging power (section 376B, substituting section 376A).
- Gang Rape (Section 376D).
Provisions related to the Code of Criminal Procedure
- The FIR has to be recorded by a woman police officer or any woman officer (Section 154, 1).
- Recording of information by a police officer at a residence of her choice, in presence of an interpreter or a special educator in case of a woman who is temporarily, permanently, mentally or physically disabled and alleges commission or attempt of an offence under various sections of the Indian Penal Code, 1860 (Section 154, 1).
- Information to be video-graphed and statement before the Magistrate under section 164 to be recorded as soon as possible by the police officer (Section 154, 1).
- Mandatory provision for the recording of statement of the victim/survivor by the Judicial Magistrate, soon after the commission of the offence is brought to the notice of the police (Section 164, 5A).
- Provision diluting the compulsoriness that it would not be necessary to seek prior sanction from the appropriate Government for the prosecution of a public servant for any of the offences of sexual abuse (Section 197, 1).
- Mandatory provision for all public and private hospitals to immediately provide free first aid or medical treatment to victims of acid attack and rape, and to immediately inform the police of such incident. (197, 1).
- Mandatory Provision for all public and private hospitals to immediately provide free first aid or medical treatment to victims of acid attack and rape, and to immediately inform the police of such incident. (Section 375C).
Provisions related to the Indian Evidence Act, 1872 (IEA)
- Provision making the evidence of the character of the victim or of a person’s previous sexual experience with any person irrelevant on the interpretation of consent. (Section 54A).
- Provision mandating the assumption of no consent by the court where if the sexual intercourse by the accused is proved and the question is of whether it was without the consent of the woman alleged to have been raped. (Section 114A).Provision mandating that, in case of a prosecution for rape, it shall not be permissible to adduce evidence or to put questions in the cross examination of the victim as to the general immoral character or previous sexual experience of such person with any person for proving such consent or quality of consent.
Increase in rape cases post 2013
The number of crimes committed against women increased in 2017 by 6%. 3,59,849 cases of crime against women were reported in India were, 7% were of rape which is similar to that of 2013 and significantly higher than in 2012. The conviction rate remained almost the same with a slight increase in 2015 followed by a sharp dip.
Lapse in the law enforcement
According to the National Justice Report of 2019, 8 out of 36 states and union territories have women account for more than 10% of the Police force. 2 out of 31 states and union Territories have met at least 80% of their declared quotas and 21out of 34 States and Union Territories have reduced the constable vacancies over 5 years. India has 1511 police persons for a 100,000 population which is one of the lowest police to population ratios in the world. When it comes to the protection of VIPs, 47,557 police personnel are protecting 14,842 VIPs.
There is no denial to the fact that the security ratio of VIPs need to be higher than that of Common Citizens. However, such a stark difference is unfeasible. Comparatively, India’s partners Russia and South Africa with lesser populations have two to three times India’s ratio. The national average of policemen on the ground is 42 persons short of the sanctioned strength which averages 193 for a 100,000 population.
The constabulary make up 85 per cent of the police and officers 15 per cent. In several states the sanctioned strength falls below the national average i.e. 151 for 100,000 population. Women make up 7% of the police. Over 5 years, 31 states and Union Territories have improved women’s representation in the force, it is much too slow to be feasible. The state of Punjab was found to be the highest spender on Police person from the year 2015-2016 at Rs. 1666.
Lapse in the judiciary
The High Court of Sikkim out of the 25 High courts in India have a judge vacancy below 20%. 16 out of 36 Court halls have a Judge vacancy below 20%. 11 out of 30 States and Union Territories have shortage in court halls against sanctioned judges which is below 10%. Ideally, for every judge there must be one courtroom. The average duration that a case is found to be pending in Subordinate Courts is found to be 2.7 years to 9.5 years.
The capacity of the judiciary to deliver is significantly influenced by the infrastructure, budgets and human resources available. Judicial vacancies naturally affect both qualitative and quantitative outcomes i.e. Lesser the judges allotted to a greater number of cases will lead to ineffective justice as allotment of equal amount of time to each case will not be possible which will result in disruption in the process of Natural Justice. It is also important that there is a requirement of the increase in the number of women judges in the Courts for a better assessment in gender related crimes and enable in bringing a diverse perspective in delivering judgements for better effectiveness.
An efficient Indian Justice System will ensure the implementation of Equality before law, Protection against arrest and detention in certain cases, Free legal aid for poor and Right to protection of life and personal liberty.
Lapse in legal aid
In India, there is a huge gap in income rate among the citizens and a rising unemployment. There is 1 Legal Aid Lawyer per 18,609 population and per Capita spending on Legal aid in India is Rs. 0.75. 0 out of 36 states and Union Territories have used up their entire NALSA budget allocation. 20 of 36 States and Union Territories have the share of women among panel lawyers above 20%. The importance of inclusion of women lawyers is such that female Lawyers can arguably provide more sensitive assistance in the matters of sexual crimes including rape.
There are 6 out of 36 states and Union Territories where the average number of villages covered by a legal services clinic is less than 6. Such a lack of legal arrangement leaves a void in the legal establishments. In Uttar Pradesh, where the Horrific incident of Unnao took place, 1,603 is the average number of villages that were serviced by a legal services clinic.
The expanse of the Legal-aid system’s mandate is such that almost 80% of India’s over 1.25 billion population is eligible for free legal aid including women, children, disabled people, scheduled castes and scheduled tribes, those with mental illnesses, victims of mass disaster or ethnic violence, persons in custody, etc. Yet, since 1995, barely 15 million people have been provided legal services and advice by legal services institutions (LSI) established all across the country under the Legal Services Authorities Act, 1987 (the Act). Legal aid services are not only restricted to representation in court cases, but also include spreading legal literacy, facilitating actualization of the entitlements of people under various laws and provisions. They are also equipped to facilitate counselling.
Lapse in the general mindset
One of the accused in the Nirbhaya Rape Case was quoted saying that “a girl is far more responsible for rape than a boy because a decent girl won’t roam around at 9 o’clock at night. Housework and housekeeping are for girls, he claimed, not roaming in discos and bars at night doing wrong things, wearing wrong clothes. About 20 percent of girls are good. If women are not good, men have a right to teach them a lesson by raping them. And if that happens, the woman being raped has a responsibility to silently accept the assault. When being raped, she shouldn’t fight back. She should just be silent and allow the rape.” This statement hints towards a problem in the general mindset of the population. Some of India’s traditionalists tend to view Rape as a matter of collective honour and morality.
To them, decisions about women’s sexual relationships are to be made by parents, when they select their daughters’ husbands, and then by husbands after marriage. A woman’s only legitimate sexual decision is to obey her family. A Khap Panchayat Leader was quoted saying in an interview that “The mobile plays a main role, you will be surprised how this happens. A girl sits on a bus, she calls a male friend, asks him to put money on her mobile. Is he going to put money on her mobile for free? No. He will meet her at a certain place, with five of his friends, and they will call it rape.”
Adolescents find themselves at a vulnerable stage of their lives where influences of peer pressure can be conducive to socially unacceptable and perhaps even criminal group behaviour. The rapidly emerging rape culture among youth needs to be addressed and stopped at the earliest possible instance. This requires concentrated efforts not only from institutions and organizations, but also from individuals as members of that society, as sexual offenders often have mental health and psychosocial risk factors that incite, maintain, and perpetuate the offence. This can be achieved through education about sex and drugs and teaching the use of ethical and moral principles to govern their actions, in order to discourage ambiguity and the development of careless, unhealthy, and potentially dangerous attitudes.
Lapse in sexual education
A study on child abuse in India, conducted by the Ministry of Women and Child Development, reports that 53% of boys and 47% of girls surveyed faced some form of sexual abuse. Adolescents find themselves at a vulnerable stage of their lives where influences of peer pressure can be conducive to socially unacceptable and perhaps even criminal group behaviours. India being one of the signatories to the 1994 United Nations International Conference on Population and Development (ICPD), it is obliged to provide free and compulsory comprehensive sexuality education for adolescents and young people as part of commitments made under the ICPD agenda.
According to the United Nations Human Rights Council Report by not providing sex education, violates the human rights of Indian adolescents and young people as recognized under international law. When the central government in 2007 announced the launch of the Adolescence Education Programme in schools along with the NACO, NCERT and UN agencies, thirteen states called for an immediate ban as they felt that comprehensive sexuality education was against the Indian culture. Little has changed in the last 10 years.
There is still a ban on Adolescence Education Programme in at least five states across India, and there is no uniformity in the way the subject is approached. Sexuality education, as UNESCO defines it, “provides opportunities to… build decision-making, communication and risk reduction skills about many aspects of sexuality…. encompasses the full range of information, skills and values to enable young people to exercise their sexual and reproductive rights and to make decisions about their health and sexuality”. Talking about reproductive and sexual health issues (TARSHI), an NGO in New Delhi argues after review of the material covered in this new curriculum, that it is lacking components that are essential to comprehensive sexuality education.
Despite the introduction of stringent Laws on rape, the number of reported cases in India went up significantly and the states with the highest number of reported rape cases stayed the same. This proves that Strict laws on rape aren’t the answer despite an increase in the conviction rates as they remain proportional to the growth which is not enough. Hence, we must start implementing other methods to eradicate this culture. Some of us are suggested as follows:
- Appointment of adequate number of Officers (especially female officers) in the Law enforcement Agencies.
- Appointment of adequate number of Judges (especially female judges) in the Judiciary.
- Sensitivity training for all the officers associated in the matters of rape.
- Better implementation of Legal Aid Services throughout the territories of India.
- Uniform and effective propagation of Sex-Education to break the taboo of sex and the misconceptions related to it.
- Adequate gender-oriented counselling and training of teenagers and young adults in expression, communication of feelings and dealing with rejections.
- Gender neutral rape Laws and effective perseverance to bridge the gender divide.
- Allocation of specialized psychiatrists to the offenders for rehabilitation.
- Strict Laws for false rape allegations.
- No Compromise of due process of Law and right to equal representation in case of Speedy trials or fast track courts.
- Legalization of Prostitution.
- The Indian Penal Code by Ratanlal Dhirajlal, 35th Edition
- The Code of Criminal Procedure by Ratanlal Dhirajlal, 21st Edition
- The Code of Civil Procedure by C.K. Takwani, 8th Edition
- The Indian Justice Report by Tata Trusts
- The Indian Evidence Act 1872, Universal Publications (Bare Act)
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