Will legislation alone solve India’s rape problem?

How many more Nirbhayas before this savagery stops? Have our men dehumanized? Where have we as a society gone wrong? India’s rape problem gained international attention in 2012 when a woman was violently gang-raped and murdered on a bus in Delhi. The brutal rape of Jyoti Singh, a 23-year old physiotherapy intern in a bus […]

How many more Nirbhayas before this savagery stops? Have our men dehumanized? Where have we as a society gone wrong?

India’s rape problem gained international attention in 2012 when a woman was violently gang-raped and murdered on a bus in Delhi. The brutal rape of Jyoti Singh, a 23-year old physiotherapy intern in a bus on her way back home from a movie with a male friend, shocked many across the world. The six perpetrators, brutally raped her, going as far as inserting an iron rod and left her to die. She eventually succumbed to her wounds in a hospital in Singapore. Little has changed since then, In Unnao on the 4th day of June, 2017, a minor girl, merely 17 years in age then, was kidnapped from her village of residence in Uttar Pradesh, and allegedly raped by a MLA and his brother and others. She was found 17 days later, on 21st June, 2017- in a village named Auraiya- 116.8 kms away from her village Mankhi.  As a desperate attempt to make herself heard in the dark, on 3rd April, 2018, the victim tried to immolate herself in front of the Chief Minister’s residence and alleged the crimes against her and her immediate and extended family. She also accused the police force of having turned a blind eye to the entire situation, thereby facilitating more offences. Finally, on the fateful day of 20th December, 2019 MLA Sengar was convicted of his charges and the court awarded him a sentence of incarceration for life, under Section 376(2) Indian Penal Code, 1860. Even though this sentence was welcomed, this delayed- and often denied- justice by the police and the law enforcement showed us the plight of women in this country. In the Kathua Rape Case, The eight-year-old girl was kidnapped on and raped inside a village temple in Kathua district. She was from the Bakharwal nomadic community. The investigation showed that she was kept sedated while kidnapped, raped then bludgeoned to death. The court sentenced the accused for murder and gang rape with life imprisonment. Dr Priyanka Reddy, a veterinary doctor from Shamshabad in Hyderabad was found dead with her body partially burnt. She was raped, smothered and then burnt by four men. Coming down to the very recent case in Hathras which shook us to the core and makes us put our head down in shame where on a 19 year-old woman died of injuries after she was allegedly gang raped by a group of men in a field in Hathras district, in the north Indian state of Uttar Pradesh, The girl had multiple fractures and was in intensive care unit for two weeks. Just before she died she was moved to Delhi but unfortunately succumbed to her injuries. Throughout this period, actions of the Uttar Pradesh police and administration have come under question. These incidents once again brought the discussion on the plight of women’s safety in India to the front pages of all major newspapers and news websites. That’s not to say that such news is absent on other days, except it is tucked away on the inside pages unless something truly heinous comes to light.

The biggest question: Why, despite the outcry over Jyoti Singh’s murder and government promises of change, does sexual violence remain endemic in the country?

Amid the public pressure that followed the Nirbhaya case, the government, then led by the Congress Party enacted significant reforms. It developed guidelines for the health care system to provide better treatment to survivors of sexual violence, and it created the Nirbhaya Fund in 2013, which provides state money to help pay for initiatives focused on women’s safety and on assisting female victims of violence.

That same year, new laws expanded the definition of sexual offences to include sexual harassment, voyeurism, and stalking, and mandated stricter punishments for offenders.

Can we not safely conclude that we do not need more laws to curb rape? A glance at the laws will tell you that we have enough and more. The basic problem is implementation. At the core of the breakdown of implementation is an overworked police force that neither has the time, nor the training to handle violence against women. What we’re actually in need of are effective, long-term solutions like prevention and protection mechanisms to reduce gender-based violence, improving investigations, prosecutions and support for victims’ families. Also in curbing and understanding the problem of rapes in India, it is important to recognise that there is not one isolated factor.  There are a confluence of issues and reasons, each reinforcing the other. Ranging from a lack of sexual education to societal norms that entrench gender inequality to inadequate legal deterrence, the problems run deep. Addressing the problem requires a multi-faceted approach. Perhaps the first step forward is education, fast-track trials that are supposed to be fast-track, more openness to talk about sex. We need to be aware that in India, although sex education is not banned de jure, it is definitely banned de facto, because it is kept out of school curriculum. This results in a situation where women do not realise the sexual rights they have. Hence, they do not report instances when their sexual rights are violated.

One critical issue related to the problem of rape in India is also that all too often lawmakers in India hold up the death penalty as a symbol of their resolve to tackle crime.

Awarding death penalty is subject to the ‘rarest of rare cases’ doctrine according to which a death sentence is to be pronounced only in those cases where the crime has been committed in an extremely cruel, barbaric or gruesome manner so as to be covered in the category of rarest of rare cases. The compulsory death penalty is against Constitutional rights of equality and right to life and personal liberty guaranteed under articles 14 and 21. Further, it would also go against Section 235(2) of the CrPC, which guarantees a convict a right to be heard while deciding the question of a sentence; and Section 354(3) of CrPC, under which, the court is bound to provide special reasons for imposing a death sentence. In cases where the death penalty is granted, the execution takes ages. 

In one of the most important cases that shook this country the death penalty was delayed for 7 years. On January 14, 2020, a five-judge bench of the Supreme Court rejected the curative petitions filed of Mukesh Singh and Vinay Sharma, the accused. Mukesh, however, then filed a mercy petition before the President which was also rejected. Then, he challenged the rejection of the mercy petition before the Supreme Court. Further, after a huge delay, on January 28, 2020, the convict Akshay filed his curative petition before the Supreme Court, which was rejected.

The trial court in Delhi, in lieu of the pendency of the mercy petitions of Vinay Sharma and Akshay Kumar, suspended the death warrants. Subsequently, the President rejected the mercy petitions of the two convicts consecutively.

The Delhi High Court, on February 5, affirmed the stay on the execution of the death sentence of the convicts, while directing them to exhaust all legal remedies within a week. On the same day, the Centre and Delhi government challenged the order of the Delhi High Court before the Supreme Court that all the convicts should be hanged together.

The Supreme Court allowed the Centre to approach the trial court, seeking the issuance of a fresh date for the execution of the death sentence of the convicts. Additionally, the appeal against the rejection of mercy petition was rejected by the Supreme Court. The Delhi High Court on Wednesday dismissed Mukesh’s plea that challenged a trial court order which rejected his claim that he was not in the national capital when the crime was committed.

The SC further rejected Pawan’s curative petition, in which he claimed that he was a juvenile at the time of the crime in 2012 and that the lower courts had ignored this fact. He had previously filed a review petition on he same matter but that had been rejected by the top court. In this case, incongruously, there had been postponement of the execution of these convicts constantly. Four days before the scheduled hanging, three of the convicts wrote a letter to the judges of the International Court of Justice, seeking a stay of their executions. In the letter, the death penalty has been termed as ‘barbaric and inhuane’. They had alleged that the trial was faulty and the conviction was based on insufficient evidence like many of the facts of the investigation that pertain to recording of dying declaration, recording of statements of witnesses under Section 161 of the CrPC, the medical examination, holding of the test identification parade, the manner and method of search and seizure and the procedure of arrest. However, it was important to note that the International Court of Justice hasno power to adjudicate individual disputes within the sovereign states.

Poignantly, there had been a huge delay in granting justice to the victim of the 2012 Gang Rape yet 20th March, 2020 ensured closure for the tragic event and provided justice to the family.

Nevertheless even if the death penalty is granted the question remains – Will provision for death penalty set a deterrence? If so then why haven’t murders stopped? Why are women still being gang raped? Minor girls being sexually assaulted?

Centuries of patriarchal mindset have conditioned men to believe in their superiority and to look down on women as inferior beings. The Entertainment Industry has often produced songs which loud and clear talk about objectification of women, the caste system already is a slur on our culture. What more do we need? Pornography is one of the leading industries, you can find toy shops with sexually objectified toys. I just ask one question, what impression does it leave on the Young minds of our country? There are video games which explicitly encourage violence, all of it needs to stop.

Nevertheless we also should strictly consider legalizing prostitution. Suppressed sexuality has greater chances of erupting into violent behavior. The concept of “consent” has to be made clear to the men and probably after seeing the ratio of marital rapes in our country we can conclude that consent is completely incomprehensible to them.

We need a system which makes sure that no accused whether rich or poor whether a middle class or an influential personality manages to manipulate the administration and get out of the clutches of law. A system that deals with rape cases expeditiously and spares no one who commits such a crime right from arrest to execution.

More than PUNISHMENT we need to focus on PREVENTION of the crime and that requires collective efforts from all the pillars of this country including the citizens.