Anti-rape litigation, implementation and the need for revision

A reflection on the state of rape laws in India in the backdrop of the R.G. Kar murder and rape incident.

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QUITE some time has passed since the rape and murder of a lady doctor at Kolkata's R.G. Kar Hospital. The incident has evoked nationwide protests. Slogans of #WeWantJustice have marked the streets, followed by attempts of evidence erasure, incidents of brutality and incompetence of the police, and back-and-forth of a blame game between the Union and state governments.

A day before India celebrated its 78th Independence Day, the case was handed over to the Central Bureau of Investigation (CBI). The Supreme Court took suo moto cognisance of it soon after.

The brutality of the incident that shook the nation in renewed anger was largely reminiscent of the Delhi gang rape and murder that occurred a decade ago. The said case was tried in a fast-track court, 'expediting' the trial to seven years before finally awarding the rapists the death penalty and hanging them to death.

In a statement to the media, Asha Devi, the mother of the victim of the Delhi case, had lamented, "Whenever an incident happens, a fast track court is set up. Strict laws are made. But what purpose does that serve? When in that court a case drags on for seven long years. A law is of no use if it fails to deliver justice to its women."

Commenting on the heinous rape and murder case in Kolkata, Asha Devi opines that nothing has changed at a systemic level since 2012 and that we are still where we were as a country, failing half its population, the women.

Little has changed

As always happens when such a case enters the news cycle, in the week that followed the crime in Kolkata and after the nationwide protests had broken out, many such cases started to appear in the news.

Also read: Aparajita Bill: Unveiling a new shield for the innocent

Of the cases that were reported, here are a few of the many headlines that surfaced: "Nurse in Uttarakhand raped, killed while returning from work; accused held" (The Hindu); "Six booked as 'rape and murder' of Dalit teen in Bihar's Muzaffarpur kicks up storm" (Indian Express); "3-Year-Old Student Raped By School Van Driver, 30, In Jharkhand: Police" (NDTV); "Man rapes 13-year-old daughter in Amethi" (Deccan Herald) and "Man arrested for raping 11-year-old in Uttar Pradesh's Ballia" (The Hindu).

An old report by the National Crime Records Bureau (NCRB) states that 85 percent of the rape cases filed between 2012 to 2016 remained pending. Additionally, the backlog of cases pending trial by the end of 2016 stood at 133,000.

A new research conducted by the Indian Child Protection Fund states that over 2.43 lakh cases under the Protection of Children from Sexual Offences (POCSO) Act, 2012 are still pending with 48,600 rape and POCSO Act cases in West Bengal alone.

There were more than 31,000 reported rapes in India as of 2022 as per official data. And the reported cases are only the tip of the iceberg.

According to a National Family Health Survey Report, one in three women in India has faced sexual or physical violence, of which 86 percent never sought any help and 77 percent never disclosed what happened to anyone. About 80 percent of these crimes were committed by someone known to the victim.

Even with the revisions brought about by the Bharatiya Nagarik Suraksha Sanhita (BNSS), that replaced the Code of Criminal Procedure in July of this year— where criminal trial verdicts need to be given within a maximum of 45 days, these pending cases would take years to see an end.

As per NCRB data of 2022, out of the 198,285 rape cases on trial, only 5,067 cases resulted in convictions. The conviction rate for rape in countries such as Britain and Canada is higher than India's 2.55 percent.

The low conviction rate could be due to several factors— lapses in police investigation, evidence erasure in police custody and victims turning hostile during trials.

In a recent case in Bhojpur, Bihar, a man who was on bail for kidnapping a teenager, kidnapped her again and repeatedly raped her for over a month.

Also read: Trading freedom for security: Aftermaths of the Kolkata rape and murder case

In a 2012 rape and murder case that occurred in the Chengalpattu district of Tamil Nadu, four of the accused in the case were acquitted because of lapses in police investigation where the police misidentified evidence. This led to the prosecution arguing the accused be given the benefit of the doubt, which led to their acquittal.

Pointing out police corruption with regards to handling the evidence in a case while appearing for the victim of the R.G. Kar case at the Calcutta High Court, Phiroze Edulji, who once argued as a defendant for the accused in the Kamduni case, shared: "Because this very commissioner of police, Vineet Goyal, was the inspector general of the Central Investigation Department when Kamduni murder took place. It is due to his blotching up of the entire case that today Kamduni has failed.

"I was the defence counsel; I defended them. But today when I appear for the victim, this person has now been rewarded by being made the commissioner of police. This person should be put on compulsory waiting."

A well known and old example of victims turning hostile is Priyadarshini Mattoo case, where the judge expressed regret when forced to acquit the accused. The ruling was fortunately overturned owing to a public outcry.

Another more recent example would be the Kathua case where the special investigative team (SIT) members coerced witnesses into giving false statements.

Some headway was made in terms of holding perpetrators of sexual violence against women accountable with the formation of the Verma Committee in 2013, which was monumental in broadening the definition of rape to include forms of offences other than simply peno-vaginal penetration through the Criminal Law Amendment Act (2013).

The Criminal Law Amendment Act (2018) came into force post the uproar caused by the Unnao and Kathua rape cases which increased the sentence for such crimes up to 10 years from seven years, or life imprisonment or the death penalty in cases where the victim was less than 16 and 12 years of age respectively.

Death penalty for rape

The punishment provided for rape in India is graded and not standard, granting different punishments for rape simpliciter and aggravated rape.

Making its stance on the death penalty clear, the Verma Committee stated, "There are instances where the victim/survivor is still in a position from which she can, with some support from society, overcome the trauma and lead a normal life.

"In other words, we do not say that such a situation is less morally depraved, but the degree of injury to the person may be much less and does not warrant punishment with death."

Also read: Pornography, populism and the rape culture

The committee further clarified, "The seeking of the death penalty would be a regressive step in the field of sentencing and reformation."

While some protestors for the R.G. Kar case argue for the death penalty for the rapist, some others hold that a reduction in incidences of rape cannot be achieved by the death penalty.

For example, in a paper published in the Harvard Law Review Association, the author Ernest van den Haag, a Professor of Jurisprudence and Public Policy of Fordham University argued, "I would favor retention of the death penalty as retribution even if it were shown that the threat of execution could not deter prospective murderers not already deterred by the threat of imprisonment.

"Still, I believe the death penalty, because of its finality, is more feared than imprisonment, and deters some prospective murderers not deterred by the thought of imprisonment."

Those who are opposed to the death penalty for rape might echo the words of senior advocate Rebecca John, "Practically speaking, the higher the punishment, the less certain a conviction becomes. The death penalty is awarded in the rarest of rare cases. If the death penalty or imprisonment for life are the only options before a judge, they will demand an excessively high standard of proof.

"When the death penalty is sought, one cannot expect shortcut justice. In such cases, much greater judicial scrutiny comes into play. Judges might hesitate to convict, resulting in lower conviction rates. In such cases, much greater judicial scrutiny comes into play. Judges might hesitate to convict, resulting in lower conviction rates."

Implementation of laws and policy

Despite the legal measures in place, India has repeatedly failed its women. Take for instance the Nirbhaya Fund. The Nirbhaya Fund was set up in the wake of the Delhi gangrape and murder case of 2012 to provide security and safety to the women in the country.

Approximately 30 percent of the funds remain unutilised today, with only ₹2,521 crore of the ₹8,920 crore approved having been utilised so far. Even though the Safe City Project, a Nirbhaya Fund initiative, that promises to provide a secure infrastructure for women, was approved by eight city administrations, including Kolkata, much of it is yet to see implementation.

This was evident when the female colleagues of the deceased in the Kolkata rape case pointed out infrastructural safety issues in their statement to the media.

Also read: Gender-neutral laws for sexual offences: A gap that has not been bridged

Rape cases are under-reported in the country because victims are unable to share their story owing to the stigma attached to it. This could be because rape is still widely perceived to bring shame to the family of the victim.

It is important for rape to be perceived as an attack on an individual's bodily autonomy instead of a woman's 'chastity' or 'dignity'. Only when rape is destigmatised will more women feel encouraged in coming forward to report such crimes.

Amending laws to be more stringent is of little use if the interpretation of it fails to offer protection when cases are tried in court rooms. Here are a few instances.

In Vikas Garg & Others versus State of Haryana, more popularly known as the Jindal University rape case (2017), the Punjab and Haryana High Court lead with the above notion of a woman's chastity being linked to the crime.

The court's remarks on the case engaged in victim shaming and misogyny, questioning the victim's sexual proclivity and granting bail to the accused. "The entire crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world," observed the court.

There seems to be a certain notion around how women ought to behave when subjected to rape. This expectancy seeps its way into court rulings, medical evidence supporting such crimes and largely distorts the idea of consent, despite Section 375 of the Bharatiya Nyaya Sanhita (BNS) defining consent clearly.

In the case of Rakesh B versus State of Karnataka (2020), the Karnataka High Court stated, "[The fact] that after the perpetration of the act she was tired and fell asleep is unbecoming of an Indian woman; that is not the way our women react when they are ravished."

The court's interpretation of a skewed image of consent can be observed in Farooqui versus State (Govt. of NCT of Delhi) in 2017, where the state communicated that a feeble 'no' may mean a 'yes'.

Role played by medical evidence in rape trials

Rape trials are heavily reliant on the medical evidence collected to support a case. The medical tests conducted to determine rape largely employ methods to check for signs of force being exerted on the victim.

Also read: Outraging the modesty of a woman under Indian criminal law

Such a practice shows utter disregard for the possibility that 80 percent of the time, the perpetrators are known to the victim and therefore there may not be signs of force or resistance, as they may be incapacitated by being drugged or may submit out of fear.

Ironically enough, none of the medical tests prescribed since the colonial era can prove that rape had occurred merely due to the absence of consent, which is quintessential in proving the crime. That is a matter that is entirely expected for the courts to deliberate on.

Medical testing for physical evidence of rape involves but is not limited to checking for signs of force in the state of victim's clothing, injuries on the body including the vagina, signs of resistance in fingernail scrapings, and in a lot of cases, the two finger test is conducted. A lot of these tests appear invasive and may end up retraumatising the victim.

The Supreme Court finally banned the two-finger test in 2013 that checked the status of the vaginal muscles to measure the sexual activity of victims. Although banned, the virginity test still continues to be conducted in parts of the country.

Action being taken

Responding to cries for firmer laws in the wake of the rape and murder case, the Bengal government passed an anti rape bill known as the Aparajita Women and Child (West Bengal Criminal Laws Amendment) Bill, 2024 on September 3, 2024. This Bill amends provisions already in place under the BNS, the BNSS and the POCSO Act to take a more stringent approach to sexual assault and rape.

Whereas Section 66 of the BNS offers a 20 years sentence, life imprisonment or death penalty, the Bill has tweaked it to offer death penalty to the convict in cases of rape that led to the murder of the victim or left them in a vegetative state.

Whereas Section 64 of the BNS offers a minimum 10 years of sentence to rape convicts, a fine or life imprisonment, the Aparajita Bill tweaks it to life imprisonment for the convict.

The Bill tweaks the punishment under Section 70 to life imprisonment or death penalty and a hefty fine for gangrape cases, whereas the same Section under the BNS only offers a 20-year sentence or a fine.

The Bill will award life imprisonment or death penalty, in case a victim is below 18 years of age. In case the victim's identity is disclosed, the crime would lead to three to five years of imprisonment under the Bill, whereas, under the BNS, the sentence time is two years.

Also read: POCSO and judicial scrutiny of victim's evidence: Is the burden of absolute consistency too high?

In cases of child sexual abuse, the Bill awards stricter penalties that go beyond the POCSO Act. The Aparajita Bill has a stricter deadline of 21 days for rape investigations to be completed, where only a 15 day extension would be given. The current deadline for such investigations is two months. Fifty-two special courts and a task force is to be provided for under the Bill for the investigation of sexual offences.

Scope for amelioration

What remains to be seen is if this 'historic' Bill gets converted to state law, how it gets executed if it does and if the same gets adopted at a Union level. However, adopting this Bill might not prove beneficial and reforms may be needed.

Section 375 of the BNS does not take a gender-neutral approach, thereby excluding transgender persons and men from seeking protection under it. It also does not criminalise marital rape.

Much reform is still sought after under medical testing for rape trials, red tapism that gets in the way, concerning acquittal rates of accused, destigmatisation of rape, sensitive approach toward rape victims, secure infrastructure and steady amelioration of laws unperturbed by media's sensationalisation of certain rape cases.