The Delhi ‘Nirbhaya’ gang rape in 2012 sparked off a debate and waves of protests against the brutal sexual assault, while the demand for a need to amend the rape law with a survivor-centric approach reverberated in newspapers, TV debates and discussions.
The stringent law
The Criminal Law (Amendment) Act(CLA) 2013, was formed after reviewing 80,000 recommendations that were received after wide consultations and research by the Justice Verma Committee. The committee in its report emphasised on the duty of the State to ensure gender justice which arose from sources of international law. Emphasising the need for gender justice, it discussed at length the Universal declaration of Human Rights Convention Against Elimination of All Forms of Discrimination Against Women (CEDAW), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Beijing Principles of the Independence of Judiciary to which India is a party. The report acknowledged violence against women as not only an offence under the principles of penology, but also a direct constitutional violation. The Justice Verma Committee report used a feminist language wherein lies the importance of this document in the feminist legal jurisprudence.
The report starts off with enunciating how rape is associated with shame and honour of the society, and emphasises on the duty of the state to deconstruct this paradigm of shame and honour. It also emphasises on the need to view rape as any other crime against an individual. The report goes on to say that rape should not be viewed as an offence against the society, but one which is against the individual woman. The report looks at sex as something cultural and not biological, which also comes from a very feminist understanding of sex. Several crimes like stalking, voyeurism were clearly specified and included in the list of new crimes in this legislation. Acid violence and disrobing were further elaborated on, with respect to the punishment that should be given to the convict. Under Protection of Children from Sexual Offences Act, the age of consent was increased from 16 to 18. In order to ensure that victims are not hesitant in filing a complaint, the security blanket that protected public servants and police officers has been removed. Stalking, voyeurism and sexual harassment, which were once considered gender neutral, were changed to offence committed on women.The law also states that in case of repeated offence of rape or in case where victim has been led to a comatose stage, death penalty can be pronounced on the convict. The 2013 Act also brought about changes in the evidentiary framework relating to sexual offences. Section 53A and an additional proviso to Section 146 of the Indian Evidence Act were introduced specifying that a victim’s previous sexual experience with any person is irrelevant for the issue of consent or the quality of consent.
Under-utilisation of Nirbhaya Fund
The government also launched the Rs. 2,000-crore Nirbhaya Fund to support sexual assault victims. Money was spent on CCTV cameras, helplines, mobile apps and more. Four hundred fast-track courts were set up to handle rape cases. Sadly, more than 90 percent of the Rs. 3,100-crore ‘Nirbhaya Fund’, has remained unutilised since 2015. ‘According to an affidavit filed on the utilisation of the funds on 23 August, the Centre has sanctioned Rs. 264 crore – just 8.5 per cent of total funds – till August 2017.
Only 1 in 4 rape cases ended in conviction in India in 2016, which is the lowest since 2012, as per the National Crime Data. India’s conviction rate for rape, at 25.5%, remains low compared to all cognisable crimes.The reason for the declining conviction rate in rape cases could be due to the fact that lesser number of registered cases could be proved in court or that the police was not able to investigate properly or that survivors did not have a good legal defense lawyer.Inthe last five years, the number of rapes reported each year in Delhi has more than tripled, registering an increase of 277% from 572 in 2011 to 2,155 in 2016, according data released by the Delhi Police. Cases pertaining to “assault on a woman with intent to outrage her modesty” (under Section 354 of the Indian Penal Code) have increased by 473% from 727 in 2012 to 4,165 in 2016.
The rise in the number of reported rapes could be due to advisories issued by the government and the Supreme Court of India that action would be taken against police personnel who fail to register a First Information Report (FIR) for rape and other cognisable offences.
Only 50% of all crimes are reported, and only half of these are registered as FIRs, a 2015 public survey entitled ‘Crime victimisation and safey perception’ conducted by the Commonwealth Human Rights Initiative (CHRI) among households in Delhi and Mumbai, found.
Tracing the womens’ movements
The Indian women’s movements’ focus on rape as a legal reform issue emerged primarily through cases of custodial rape in the late 1970s. Two prominent cases galvanised the movement towards national campaigns demanding legal reform; the custodial rape of Rameeza Bee, a young Muslim woman in 1978, and that of Mathura, a young tribal woman in 1980.In both these landmark cases, the emphasis in the trials was not on evidence of rape, but rather the survivor’s sexual history and their characterisation as promiscuous, leading to the acquittal of the police officers charged. Feminists gradually grew disillusioned by the role of law reform in combating violence against women, for they saw a disconnection between enactment of new laws and their implementation. This disillusionment did cause a shift in how women’s organisations chose to engage with law. Instead of focusing on demanding law reforms, some organisations focused on taking up individual women’s cases in courts, while others focused on the lack of institutional support for women, and created women’s centres to provide women with legal assistance, health services and counseling.
While feminists have continued to look at the state with scrutiny for their role in perpetuating women’s oppression, they nevertheless maintain their engagement with the state for legislative reforms. Such was the case after the December 2012 Nirbhaya gangrape case; womens’organisations knew they had to set the path for others to follow, and petition the government for overhauling legal procedures.
Dissecting the protest
Protesting the incident, for the first time, a mass upsurge spilled over onto the roads of Delhi and in other parts of the country as well; debate, discussion and dialogue defined rape in new perspectives; political masters and legal luminaries lent their voices; social scientists and psychoanalysts explained the issue; self-proclaimed godmen preached on it, and the media provided a platform to all of them like never before .
The men did come for protests, but the presence of these men further created a hostile atmosphere for women during the protests where they were subjected to groping and ogling by the men; though there were instances of genuine solidarity as demonstrated by the “Skirt the Issue” campaign in Bangalore in January 2013, which saw 25 men wearing skirts with more than 200 supporters present to raise awareness that the choice of clothing could not be a justification for rape.
The discourse on women’s bodily integrity and dignity continued to be propagated in public spaces as well as in private homes. The emerging voices from the general public reflected changing ideologies that violence against women is as much of a men’s issue as it is a woman’s, as evident from a demonstrative poster which said, “Don’t tell your daughter not to go out, tell your son to behave properly.” The shifting ideologies were also reflected in the motto “Don’t get raped,” which was revolutionised to “Do not rape”, to place the emphasis on men’s actions instead of women’s. The slogans raised during the protests were, “Mahilaein mange azadi, sadak pe chalne ki, raat mein nikalne ki, kuch bhi pehenne ki” (Women demand freedom, to walk on the streets, to go out at night, to wear anything they like.).
Many slogans were based on the principle that a woman’s dress, mobility, or her disposition had nothing to do with getting raped. There were posters and placards that carried the slogans, “Don’t teach us how to dress, teach men not to rape,” “My voice is higher than my skirt,” and “Your gaze is the problem so why should I cover myself up?”
The protests therefore raised larger questions relating to sexual violence and discrimination against women. Although, the CLA 2013 has deleted the proviso that allowed the judiciary to exercise discretion to reduce the sentence for rape, but the judicial responses to rape are still overwhelmed by concerns of chastity and marriageability of the survivor, rather than focused on punishing a violent exercise of power.Let us also not forget that even as Delhi witnessed unprecedented protests against the December 16, 2012 gang rape, the high rate of sexual assaults on Dalit women in neighbouring Haryana or the gross failure of the state to even probe grave allegations of mass rape in 1991 by the Indian army in Kunan and Poshpara villages of Kashmir, did not spark off any public outrage. It is this silenceand this lack of scrutiny from the public and the media that encourages the impunity with which sexual assaults are committed, and leads to acquittals of the accused.
To counter such biases, the legal system needs to provide enabling mechanisms. By having a cadre of para-legal workers who would help the survivor navigate the criminal justice system; public prosecutors trained in understanding sexual violence and gender justice; and judges oriented to comprehending sexual violence as rooted in patriarchy and structural inequality. Survivors need to be provided with reparative justice, which would include compensation and other restitutional measures.By only making amendments in criminal law, the state has abdicated its constitutional obligation. Women’s enjoyment of the right to life remains constrained by violence and the fear of violence.
A transformation can only happen through campaigns holding politicians accountable for assertively tackling the issue of violence against women. In a government whose officials are elected to be representatives of the people, these leaders need to set the tone and path for their constituents. Violence against women will continue to be justified by victim-blaming, and communal fascist and casteist politics will keep breeding, as long as there is patriarchal control over women. It is all the more urgent to recognise that freedom for women from the patriarchal structures of the household, caste, and community alongwith financial, social and sexual autonomy needs to be prioritised in the political agenda for all democratic and progressive movements.