Rape: A Malady without Alleviation

What is needed to enforce laws is the sensitivity on the part of those who implement it ... The state's role is not just punishing criminals but also to prevent crimes against women'

This article attempts to define Rape as a crime against humanity and then describes how the laws can as act as an instrument of social change and thus alleviate the crime. It further delineates the Rights of a rape victim and reiterates the suggestions of the Hon'ble Supreme Court of India in this regard.

Introduction/Primer

No other crime in the world can be considered worse than a crime against humanity. Centuries of exploitation of the female of the species and a gender imbalance have rendered the augmentation of the worst form of exploitation of women; Rape.

It is common knowledge that law is an instrument of social change. The big task that then lies before society is to adapt the law so as to curb horrific crimes such as Rape. Rape just like other crimes such as Genocide is a crime against humanity and not solely against an individual being. Its commission is the major violation of human rights. This sentiment has been echoed worldwide in recent times.

An uprising has been created the world over in reaction to the recent brutal gangrape of a 23 year old medical intern in Delhi. While it is heartening to know, the laws have a more important role to play.

Rape laws as they exist in India

2.1 In the Indian context there exist a slew of legislations, judgments, guiding principles to prevent sexual harassment especially rape. These are supplemented by very many brilliant suggestions of the Law Commissions and Committees that have been constituted to overhaul rape laws in India. A critical examination of these is warranted for.

2.2 Important Landmarks

Post the Mathura case; there were some important amendments in Criminal Law.

The law, which dates from 1860, has been amended only twice since then, in 1983 and 2003.

The Criminal Law (Amendment) Act, 1983 brought about major changes in the laws on Rape. Hitherto, rape of a woman was treated as an 'ultimate violation of the self'. The Act of 1983 attempted to look upon Rape as a heinous crime which is traumatic for a woman and results in violation of her rights along with humiliation and degradation. The important changes brought about by the Act to strengthen both substantive and procedural law provisions can be summed up as below:
  • Burden of proof of innocence on the accused:
  • In camera Proceedings/ Trial : S 327 of the Criminal Procedure Code was amended.
  • Prohibition of disclosure of identity of the victim: under S 228 A of the IPC.
  • Custodial Rape :( S376B-D)
  • Prohibition of Character assassination of the Prosecutrix: A proviso was added to Section 146 of the Indian Evidence Act wherein Prosecutrix's character cannot be assassinated in cross examination.
  • Minimum punishments for rape have been enhanced: To 7 years and 10 years under S376 (1) and (2) of the Indian Penal Code respectively.

Overhauls of the Rape Laws in India

3.1 Consent ' For the purpose of law, the facts of force, the resistance and the absence of consent are legally essential to constitute the offence of rape This has caused a lot of ambiguity often leading to acquittals. The term 'Consent' needs to be defined in the Act as the very definition of the word has been debated in many cases before the Courts. An explanation should be added to the definition to differentiate between consent and mere passive submission. This distinction laid down in the Rao Harnarain Singh Sheoji Singh vs The State by the Punjab Haryana High Court has been followed by the Supreme Court in many subsequent cases and would be the most appropriate and comprehensive definition to incorporate.
 
3.2 Penetration -It must be noted that through a catena of judicial decisions it has been pronounced that even attempt to penetrate is sufficient. The rupture of the hymen is not necessary evidence.

3.3 Need of Corroboration by Prosecutrix- In Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat, the Supreme Court held that 'Corroboration is not a sine-qua-non for conviction in a rape case. In the India setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration is adding insult to injury. Further, viewing the evidence of the victim of rape with the aid of doubt-tinged glasses is to justify the charge of male chauvinism in a male dominated society. Thus there is great weight attached to the evidence of a victim of a sexual offence since a woman, especially in our tradition bound society will rarely make a false allegation for fear of being stigmatized or losing her reputation and ruining her prospects of marriage and being considered promiscuous. Thus the Corroboration Rule was followed by the Courts in a slew of cases but is yet to find its place in the statute books.

3.4 Medical Examination of Prosecutrix: There need to be made changes in the     pattern of medical examinations conducted by the practitioners which feature:
  • Over emphasis on injuries
  • Comment on types of hymen and whether present or absent
  • Comments on nutritional status/ built of the survivor to determine whether or not she could have offered resistance.
  • Definition of sexual assault continues to be convoluted and unscientific.
  • Past sexual, contraceptive practices are documented, which are not relevant.
3.5 Refusal of the Police to register F.I.R- As recently announced a rape victim can ask for an FIR to be lodged in any police station. The Supreme Court has held that the Police are duty bound to lodge an FIR.  The aggrieved person could move the area Chief Judicial Magistrate with a complaint against the concerned officer in event the police refuses. The Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be, shall take action in a case of inaction upon filing of a complaint petition and give direction to institute the case within a specified time-frame." If the police fails to act even thereafter, "the CJM or CMM shall not only initiate action against the delinquent police officer but punish them suitably by sending them to jail, in case the cause shown is found to be unsatisfactory".

3.6 Delay in lodging of FIR's in rape cases-It is important to note that a Delay in filing a First Information Report (FIR) in rape cases is not material and fatal to the Prosecution case if properly explained. The Court should be sensitive to the fact that in such cases the delay may be due to the stigma often associated with the crime and the hesitation in the mind of the victim to report the case for fear of her and her family name being tarnished as a result.

3.7 Improvement of Sentencing Mechanisms - Sentencing mechanisms and stringent punishments for rape are already in vogue. This becomes evident as because capital punishment can be granted in the rarest of rare cases .However the onus finally rests on the judiciary to decide as to what constitutes 'Rarest of Rare cases'. For instance rape followed by murder would and should constitute the 'Rarest of Rare cases'.

'However the law allows the judge discretion to award a lesser punishment in special cases such as an aged person or a person of unsound mind,' says Ujjwal Nikam, a Special Public Prosecutor for the Government of Maharashtra.

Having said thus, sentencing guidelines for judges in India are nonexistent, which could lead to lenient sentences in rape cases.  It is important that the evidence be properly built up. Numerous rounds of investigation of the victim should be kept at bay. Clearly the victim should be compensated out of the perpetrator's pocket which would have a deterrent effect.  

RIGHTS OF THE VICTIM

Per Delhi Domestic Working Forum vs Union of India and Ors:  SC 1995
  • Right to seek legal assistance at the Police Station while she is in the police station till the culmination of the case, preferably by the same person.
  • The police should be duty bound to inform the victim of the aforesaid right before any questions are asked of her.
  • A list of advocates should be put up at the Police Station as a Ready Referencer for the victim in case she does not have any advocate in mind.
  • The Advocates can be authorized to act suo-moto at the police station for the above purposed without obtaining the leave of the concerned Court.
  • The victim in a rape trial has a right to anonymity of her identity.
  • Right of the victim to obtain compensation while the trial is pending and get compulsory compensation by the Criminal Injuries Compensation Board irrespective of conviction of the offender.
  • Further the Supreme Court has declared that principal compensation can be claimed from the employer in event of rape committed by the employee.
  • No hospital can deny conducting medical legal checkup (M.L.C) of victim who has come to the hospital without police referral. The victim has a right to obtain free copy of the F.I.R and M.L.C Report.
  • Committing of rape trials to Fast-Track Courts- The recent mandate of the Supreme Court is that rape trials will be conducted in the Sessions Courts of the concerned region on a regular basis.

Practical Impediments in implementation of rape laws

Our judges are to be restricted to the contents of the file and the testimonies of witnesses. These increases manifold the scope for manipulation by lawyers who are to be equally blamed. With due respect to the judiciary, it cannot afford to be swayed by public sentiments alone in these cases.

India records the highest impunity in rape cases i.e. conviction rates are minimal and acquittals are maximum. Further a skewed sex ratio has further spurred on the occurrence of rape crimes.

Conclusion

India can ill afford any further deterioration of the situation than it exists today. Pressure is high to bring about a formidable change. The laws are still haphazard and the vital recommendations of the Law Commissions need to be crystallized with the Government garnering political will to implement those recommendations. A heartening fact is that the Justice Verma Committee constituted to revamp the rape laws in light of Nirbhaya's incident has been flooded with a gamut of suggestions and has already begun deliberations. Though the final stance taken by it is to grant life imprisonment to the perpetrators, crystallization of these amendments is the need of the hour.  Amendments in the law to provide for replacement of term 'Rape' by Sexual Assault, stringent punishments and a host of other suggestions have been mooted, paving for a more robust adjudication of such crimes. The need for immediate health care response systems, especially trauma care for the victim, which should be independent of the investigative and judicial rigmarole, yet be mandated by law as a non negotiable.

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