Last year, on December 6, scores of Indians celebrated the news that the Telangana police had gunned down the four men accused of gangraping and murdering a young veterinarian on the outskirts of Hyderabad on November 27 while they were allegedly trying to flee. What in legal parlance can be described as custodial death brought kudos for the police on social media. For many, the blood lust was understandable-it was the response of a nation frustrated with a slow and inefficient criminal justice system and desperate for ‘quick-fix justice’, even if it meant a questionable police encounter.
It has been seven years since another young woman was gangraped and fatally brutalised on our streets. Nirbhaya, as the 23-year-old physiotherapy graduate came to be known, was assaulted by a gang of six — one of them a juvenile — inside a moving bus on the night of December 16, 2012, in Delhi. The savagery of the assault, which led to her death 13 days later, sparked a nationwide outpouring of rage and spontaneous street protests, forcing the government of the day to amend, within three months, India’s laws related to sexual offences. A fast-track court convicted the accused in less than nine months and sentenced the four surviving adult convicts to death — a fifth one was found dead in his jail cell under mysterious circumstances. However, lengthy procedures in the higher courts have delayed the executions.
Now, finally, the executions, as scheduled on February 1, give the country another opportunity to celebrate the system of retributive justice. Many, who in principle oppose the death penalty, concede that the unimaginable brutality perpetrated against Nirbhaya justifies nothing less than capital punishment. “Awarding the death penalty as a result of a public outcry is not in the spirit of the law. In most cases, life imprison-ment without parole is good enough,” says criminal psychologist and advocate Anuja Trehan Kapur, who founded the not-for-profit, Nirbhiya Ek Shakti, which assists sexual assault survivors. “In the Delhi gangrape case, though, the behaviour of the rapists post the crime showed no signs of reform. Yet, after seven years, I am not sure what purpose the death penalty will serve the [family of the] victim and the criminals.”
THE POST-NIRBHAYA ERA
An immediate consequence of the Nirbhaya case was the passing of the Criminal Law (Amendment) Act, 2013. The new law, among other things, widened the definition of rape, made it a non-bailable offence, increased jail terms for most types of sexual assault and provided for the death penalty in cases where the rape caused the death of the victim or left her in a vegetative state. Under the Act, a police officer who refuses to file an FIR (first information report) faces imprisonment of up to one year or a fine or both.
Two more significant laws have come into force since then. The outrage over the abduction, rape and murder of an eight-year-old girl in Kathua, Jammu and Kashmir, in January 2018 was followed by the passing of the Criminal Law (Amendment) Act, 2018. The Act provisioned for the death penalty in rape cases where the girl is under 12 years and mandated completion of the investigation and trials within two months each. Last August, the Protection of Children from Sexual Offences (POCSO) Act, 2012, was amended to introduce the death penalty for the non-homicide offence of penetrative sexual assault on children.
NCRB data shows the number of ra pes report ed shot up by 34 per cent between 2012 and 2018-from 24,923 to 33,356
Despite these legal changes, there has been no decline in rape cases in the country. According to the National Crime Records Bureau (NCRB), the number of rapes reported shot up from 24,923 in 2012 to 33,356 in 2018 — a jump of 34 per cent. While several experts attribute the spike to more women being willing to report rape, what is worrying is the increase in the rate of rape crime — 52 instances of rape in a population of 1 million in 2018 as against 43 in 2012. In 2016, the number was 63.
“We have a stringent criminal law to tackle sexual crimes against women. However, there have been no systematic studies on how the Criminal Law (Amendment) Act of 2013 has been implemented on the ground,” says Prabha Kotiswaran, professor of law and social justice at King’s College, London. The poor implementation of laws is a grave concern. For instance, the 2013 law mandates that police officers file FIRs even if the offences being reported have occurred in areas beyond their jurisdiction. The provision is called ‘Zero FIR’. However, this is often not adhered to. In the Hyderabad gangrape and murder case, when the veterinarian was initially missing on the night of November 27, 2019, her family had approached the Cyberabad police. The police, the family alleges, refused to file an FIR.
A day after the incident, a woman from Sindupur village in Uttar Pradesh’s Unnao district went to report an attempted rape, but police officials allegedly told her they would take cognisance only if a rape actually happens. The indifference is shocking in a district that reported 86 cases of rape and 185 cases of sexual harassment between January and November 2019. It was in Unnao that a rape survivor was trashed, stabbed and set ablaze by five men, including her alleged rapists, on December 5, 2019. The woman, who suffered 90 per cent burns, died at New Delhi’s Safdarjung Hospital the next day.
Unnao also gained notoriety when a minor girl accused former BJP MLA Kuldeep Singh Sengar of raping her in 2017. A Delhi court convicted Sengar under the POCSO Act and sentenced him to life imprisonment on December 20 last year. Despite the conviction, the court slammed the Central Bureau of Investigation (CBI), which had conducted the probe, on procedural grounds. The agency did not assign a woman officer to the case, as is mandatory under POCSO. Although a rape survivor is entitled to record her statement at a place of her convenience, the Unnao girl was called to the CBI office on successive occasions to record her statements. The charge-sheet was filed almost a year late.
The CBI similarly drew flak in a case from Badaun, UP. The agency had concluded that two minor girls, who were found hanging from a tree in May 2014, had not been sexually assaulted and that they had committed suicide. In 2015, a POCSO court rejected the CBI’s closure report and initiated a trial.
THE TRAUMA OF TRIAL
In India, trials in sexual assault cases are invariably protracted and often a demeaning experience for the survivor and her family. While the law says the trial must be completed in two months, the apex court noted last July that trial had been completed in only 4 per cent of the 24,000 sexual offence cases filed between January and June 2019. The Union government has initiated a scheme to set up 1,023 fast-track special courts (FTSCs) across the country for expeditious disposal of rape cases under the Indian Penal Code and crimes under the POCSO Act. But the record of the existing fast-track courts is far from encouraging. As of September 30, 2019, 701,478 cases were pending in the 704 fast-track courts operational across India. “The judiciary itself cannot be expected to wave a magic wand and deal with half-botched and tampered investigations that arrive at their table,” says former Supreme Court judge A.K. Sikri.
A senior public prosecutor, who did not wish to be named, claims that more than 70 per cent of the cases in fast-track courts relate to consensual sex going awry. In 2013, a study commissioned by a newspaper examined 460 cases in Delhi that went to trial and found over 40 per cent of them to be dealing with consensual sex; another 25 per cent related to sex after promise of marriage.
Often, sexual offence survivors give up the legal fight due to factors such as insensitive behaviour by the police and judiciary, lack of resources and shoddy investigation. “We need to make our criminal justice system efficient and corruption-free. Victims get frustrated with procedural delays,” says Seema Misra, a Delhi-based advocate and women’s rights activist. “In a case in UP, a victim went to court several times to record her testimony, but it was deferred each time. Finally, she got fed up and became vulnerable to pressure.”
In high-profile cases, poor investigation is often due to lack of will on the part of the probe agencies — the Unnao case involving Sengar is a case in point. But, in a majority of cases, the probe suffers from shortage of police strength, poor training of investigating officers and gender insensitivity. Even as sexual offence incidents are on the rise, the police’s performance is slipping. According to the NCRB, charge-sheets were filed in only 85 per cent of sexual offence cases probed in 2018, as against 96 per cent in 2012. “A police officer’s skill in taking rape complaints is important, because it may affect the willingness of a survivor to cooperate with the criminal justice authorities,” says Sikri.
Successive governments have recognised that women subjected to sexual harassment or violence do not find it easy to approach the police or other authorities for help. One of the best ways to remedy this problem is to recruit more women in the police. In a letter to the states in 2013, then home secretary R.K. Singh, now a Union minister, suggested that each police station have at least three woman sub-inspectors and 10 woman police constables. Between 2013 and 2019, on at least six occasions, the Union government sent advisories to the states to increase the representation of women to 33 per cent of the total strength of the force.
But little has changed on the ground. In 2013, women made up 5.3 per cent of the total police strength in the country. In 2017, it was 7 per cent. The advisories aside, the Centre has not led by example even in a state where it controls the police force. At 8 per cent, the representation of women in the Delhi police is only marginally higher than the national average.
HOW SAFE ARE WOMEN?
To provide a credible support alternative to victims, the Narendra Modi government last year proposed the appointment of mahila police volunteers (MPVs) in all states. MPVs are supposed to act as a link between the police and women in distress. The scheme is financed through the Nirbhaya Fund set up by the UPA government in 2013 for countrywide implementation of initiatives to enhance the safety of women. According to government reports, only 12 states have come forward with proposals for setting up MPVs. Of these, seven — Jharkhand, Karnataka, Madhya Pradesh, Mizoram, Nagaland, Tripura and Uttarakhand — have not spent a penny on the project.
Under the Nirbhaya Fund, the Union government also started the One Stop Centre (OSC) scheme on April 1, 2015, to provide integrated services to women subjected to sexual violence. These include medical aid, police assistance, legal counselling, court case management, psycho-social counselling and temporary shelter. According to the government, 595 OSCs are operational in the country. But four states — Bihar, Delhi, Karnataka and West Bengal — have not used the funds released to set up OSCs.
The Nirbhaya Fund also covers projects under the ‘Safe City’ scheme, to be implemented in eight cities. The projects include street-lighting of crime-prone spots and placing them under CCTV and drone surveillance, deployment of automated vehicle registration plate-reading equipment through an integrated control room, starting all-women outposts and police patrols, making public transport safer for women and running dedicated public toilets for women. The progress, though, has been very slow.
Till November 2019, the Centre had allocated Rs 2,050 crore — about 63 per cent of the total corpus of Rs 3,600 crore — to various states from the Nirbhaya Fund. Of this, only 20 per cent has been utilised. Five states-Maharashtra, Manipur, Meghalaya, Sikkim and Tripura-and the Union territory of Daman and Diu have not spent a single rupee from the fund. As advocate Kapur says: “While seeking retributive justice, we have ignored the basics. Do we care about the rights of victims [of sexual offences]? Do we ensure their rehabilitation? Unfortunately, we don’t.”
The Centre has taken up several initiatives in the past seven years to fight rape and other sexual offences. In May 2018, the home ministry set up a ‘Women Safety Division’ to draft policies and implement projects to help states protect women. This includes greater use of IT in the criminal justice system, forensics and crime statistics.
In September 2018, the home ministry launched the National Database on Sexual Offenders (NDSO) to keep tabs on listed sexual offenders, though the move was contested. In February 2019, the government launched the pan-India emergency helpline number 112 to provide assistance in distress. The same month, the home ministry launched an analytics tool, Investigation Tracking System for Sexual Offences (ITSSO), to track time-bound investigation of cases. It’s part of the Crime and Criminal Tracking Network and Systems that connects over 15,000 police stations across the country.
To improve investigations, the ministry has set up a modern DNA Analysis Unit at the Central Forensic Science Laboratory, Chandigarh. It has also sanctioned the setting up/ upgrading of DNA analysis units in forensic labs in 13 states. Guidelines have been notified for the collection of forensic evidence in sexual assault cases and a standardised Sexual Assault Evidence Collection Kit (SAECK). The Bureau of Police Research and Development in Delhi has distributed 3,120 such kits to the states. Over 6,023 personnel have been trained in the collection, handling and transportation of forensic evidence. The Hyderabad-based Sardar Vallabhbhai Patel National Police Academy and the North Eastern Police Academy in Meghalaya regularly conduct gender sensitisation courses for the police.
There is a serious gap, though, between the government’s efforts on paper and implementation on the ground. For instance, several states have continued to practise the two-finger test despite availability of the SAECK. In 2013, the Supreme Court had declared the two-finger test, in which doctors examine rape survivors’ claim of rape by inserting fingers into the vagina, as violative of their privacy. In MP, which has the highest number of rape cases registered (2018 NCRB data), media reports as recent as November 2019 found the practice continuing.
“We have heard about specialised kits, but I don’t think the police stations in villages and towns will have access to them, when big towns are yet to have them in police stations,” says a police officer from West Bengal’s Burdwan district. Some states claim slow but steady progress on making rape investigation more scientific, sensitive and fast-paced. Bihar ADG (headquarters) Jitendra Kumar told India Today the state police have the standardised SAECK and policemen have been trained to be gender-sensitive. The state is showing some results, too-the number of rape cases has come down from 1,475 in 2018 to 1,165 in 2019.
“We don’t need new laws. The existing laws can work perfectly if the system allows them to. The Delhi gangrape case was tried under the older (pre-2013) laws and convictions were secured,” says Kotiswaran. Creating a robust and efficient criminal justice system is what the Centre and the states need to focus on. At a time of economic distress, the government should also heed the 2018 World Bank report, which estimated that violence against women cost countries up to 3.7 per cent of their GDP — almost the same as what India spends on education.
(- with Amitabh Srivastava and Romita Datta)