The aftermath of Delhi gangrape saw the country rally for stringent laws and reforms. ROHAN DESHPANDE writes on how these reforms have failed and the challenges that need to be plugged in to ensure justice for rape survivors.
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The horrifying Delhi gang-rape of December 2012 led to the state promising a host of reforms, including changing criminal laws and creating a "Nirbhaya Fund" for women's safety.
Less than a decade later and after countless atrocities more against Indian women, many of these promises have proved to be empty. A grim reminder of this was served up on September 29, with the death of a 19-year-old woman from Uttar Pradesh's Hathras district after being gang-raped and subjected to brutal physical assault on September 14 by upper-caste Thakur men.
The "Nirbhaya Fund" is under-utilised: as of December 2019, states had used just 9% of the funds allotted to them. That year, the conviction rate for rape cases was mere 27.8% – even as crimes against women increased by 7% in 2019 from 2018, as per official data released on September 29.
Nearly 15% of all reported cases of sexual violence in 2018 did not even lead to charges being filed against the accused.
The police, doctors and even the judiciary continue to be insensitive towards victims. The fast-track courts that were mooted after the Delhi rape to ensure speedy justice are a secondary consideration in a country where the first respondents – the police – refuse to register complaints or delay doing so.
The weaknesses of the system were tragically apparent in December 2019 in Unnao, Uttar Pradesh, when a woman who had been raped the previous year was set ablaze by five men. Two of them were out on bail after being charged with sexually assaulting her. The victim sustained 90% burns and died in a Delhi hospital a day later.
The tragedy betrays the gross failure of the Uttar Pradesh government in implementing the Witness Protection Scheme, 2018, endorsed by the Supreme Court and binding across India. Incidents of this sort make victims afraid of the consequences of reporting sexual assault.
In order to ensure that the wide-reaching reforms implemented after 2012 are more effective, the authorities must set out the following priorities.
Forensic evidence collected during a survivor's medical examination, particularly DNA evidence, could lead to clinching convictions in cases of rape. Standardised sexual assault evidence kits allow medical examiners to collect a variety of samples and swabs from the victim's person and belongings in a form that is usable in a court of law. These samples are preserved in the kit, which is sealed and sent to a forensic laboratory to be tested.
In India, the Union Ministry of Health & Family Welfare issued comprehensive guidelines on medical examinations of sexual violence victims only in March 2014, another fallout from the Nirbhaya case. The guidelines list sexual assault forensic evidence or SAFE kits as required equipment for undertaking medical examination.
However, data available as of November 2017 shows that only nine states had even adopted these guidelines.
“In 2019, in a nation where a rape is reported every 16 minutes as per 2019 government crime data, the Bureau of Police Research and Development procured only 3,120 kits for nationwide distribution.
Contrast this with the United States, where these kits became standard issue nationwide in the 1980s. In 1979 alone, as Pulitzer-winning reporters Miller and Armstrong noted in their book Unbelievable, 2,777 kits were analysed by the crime laboratory in Chicago.
Using these kits, and the DNA evidence so collected, could give a much-needed impetus to the prosecution's efforts and enable speedy decision-making by courts. This was also noted by public affairs consultancy Gordon Thomas Honeywell-GA in May, after analysing data from the Indian judiciary across six months. It found that four different courts across Rajasthan, Maharashtra, Kerala and Tamil Nadu convicted accused found guilty of raping minors primarily on the basis of forensic DNA evidence.
Section 357C of the Code of Criminal Procedure, 1973, introduced after the Delhi gang-rape case, mandates that both government and private hospitals must provide free treatment to rape victims. Denying treatment could lead to the person in charge of the hospital being punished with imprisonment up to one year.
The 2014 Ministry of Health guidelines on medical examination do not make a distinction between how healthcare professionals in public or private facilities are to act: the protocols on comprehensive response to sexual-assault survivors are applicable to both. These include evidence collection using SAFE kits, providing first-contact psychological support and maintaining a fool-proof chain of custody of medical evidence.
It is therefore imperative that doctors and medical staff are adequately trained on all these aspects.
However, Human Rights Watch noted that the 2014 guidelines were being flouted in some of the states where they have been implemented. Medical staff still fix blame on victims while doctors continue to adopt the humiliating, inconclusive "two-finger test".
Awareness about proper collection of evidence is particularly important.
“As Miller and Armstrong note, sample collection in a sexual assault evidence kit is a long-drawn process which can take three to six hours. These challenges can be addressed only by proper sensitisation and training.
Even the police need to be trained in ensuring that the chain of custody of kits is protected: after samples have been properly collected, the sealed kit must be taken from the medical facility to the nearest forensic laboratory without being tampered with.
In addition, the testing capacity at laboratories must also be enhanced.
In India, exhumation – the re-examination of buried remains after a court order – is impossible in most cases because many religious groups cremate their dead. As a consequence, if the victim of a sexual assault dies soon after the attack, the authorities must ensure that hasty funerals are avoided.
Whatever be the sentiments of the family, these cadavers are evidence of a crime against the society at large. It is in the interests of the government (which prosecutes for the crime) that the body is preserved in a morgue or a forensic facility. It is even more appalling that in the Hathras case, the police hastily cremated the body in an open plot in the middle of the night, keeping away the victim's protesting family.
“After that, a senior Uttar Pradesh cop denied that the Hathras victim had been raped. In the absence of the cadaver, a second forensic examination cannot be undertaken.
Sending the report of the first postmortem and other medical examination reports to be reviewed by another team has inherent limitations.
There should be a written protocol by which bodies are approved for release by a magistrate after the inquest (the legal enquiry into circumstances of death) has been conducted. The magistrate must specifically record that in his opinion, no forensic re-examination is warranted. If such a declaration is found to be mala fide, responsibility must be fastened on the magistrate.
This should not apply only to sexual assault cases. Even the investigation into the allegedly mysterious death of the Bollywood actor Sushant Singh Rajput in June would have benefited if the doctors at the All India Institute of Medical Sciences, New Delhi, who were called in to advise the Central Bureau of Investigation on the case, had been able to conduct a second autopsy. In this instance, they could only scrutinise the report of the previous autopsy.
Section 176 of the Code of Criminal Procedure, 1973 must also be amended to provide for a magistrate to conduct a compulsory inquest when the case pertains to death after allegations of sexual assault. The existing provision is optional, and either a magistrate or a police officer can conduct such inquest.
These reforms will enhance access to justice and are material for preserving the rule of law.
Merely setting up fast-track courts for rape cases without plugging these challenges will ensure that the reforms merely stay on paper.
Worse still, this could, even in genuine cases, lead to fast-track acquittals.
(Rohan Deshpande is a practicing advocate based in Mumbai. The piece was first published in Scroll.in. Views are personal.)