The crime of rape is a major problem in India and it is estimated that only one in 69 cases even gets reported . However, the concerted efforts of the courts, the legislature, the Law Commission of India, non-governmental organisations and women’s activists have led to important steps forward in the delivery of justice to victims of rape. Amendments in the law have been made in both factual and procedural details. The milestones discussed in this article are those achieved by amendments in criminal law.
The high rates of sexual violence are not reflected in the data for state and federal sexual assault prosecutions, the reasons for this are many and varied. Many sexual assaults are never reported. Of those, only a small percentage of sexual violence cases are ever charged. Still fewer are ever prosecuted to conviction. Even when a prosecution is successful, the criminal justice system may be limited in its ability to promote recovery, restitution, and restoration for survivors. Regardless of whether a criminal prosecution is pursued, a sexual violence survivor may have many outstanding legal needs that a criminal court cannot adequately address. Thus, a sexual violence survivor may turn to the civil justice system for the legal relief she seeks. The search for justice in the civil courts may commence immediately following a sexual assault, many decades later, or anytime in between. Some needs may be immediately apparent, while others will emerge only over time. As sexual crimes cannot be eliminated overnight, policies for victim care and rehabilitation should be the priority.
The Verma Recommendations rightly emphasized the need to establish a more effective response care system for rape and sexual assaults, and the United Nations urged the GOI to act upon these recommendations. Unfortunately, the Indian Home Ministry has abysmally failed to implement most of the Verma recommendations. The Criminal Law (Amendment) Ordinance 2013, passed by GOI on 23 February 2013, was criticized by the public and women’s groups for bypassing vital recommendations regarding ‘reforms in Constitution, governance, policing and education’ and for not recognizing rehabilitation of rape survivors as a state responsibility. Subsequently, an anti-rape bill tabled in the parliament sought detailed discussions on Verma Recommendations. Although the important bill (Criminal Law Amendment Act 2013) managed approval, the patriarchal parliamentary debate ignored rape victims care and focused on defining rape and punishing sex crimes.
India needs to constitute and mobilize task forces and crisis centres to support medical examination of victims, provide legal counsel during trials and thereby improve reporting of sexual offences which might increase conviction of perpetrators. The recent amendments regarding the same are as following:
THE CRIMINAL LAW (AMENDMENT) ACT OF 1983: The infamous Mathura case called for significant amendments in the Cr.P.C in 1983, particularly regarding what constituted custodial rape, provision for enhanced punishments for offences under section 376 IPC and presumption of the absence of consent in cases booked under section 376 IPC. This was done by bringing in an amendment in the Indian Evidence Act, section 114(A) IEA. Thus, in cases of custodial rape, rape of a pregnant woman, and gang rape, if it is proved that the accused had sexual intercourse with the woman who is alleged to have been raped, the question of consent arises and if the woman state she did not consent, the court shall presume that she did not consent.
THE INDIAN EVIDENCE AMENDMENT ACT OF 2002: Section 155 IEA earlier allowed the defence lawyer to discredit the victim’s testimony by arguing that she was of “immoral character”. This attack on her in the name of a legally allowed cross examination, questioning her past sexual acts, her personal life and other private matters, deterred many victims of rape from registering complaints. The Indian Evidence (Amendment) Act of 2002, which came into force on January 1, 2003, deleted section 155 IEA and added a provision, section 146 IEA. According to the new provision, it is not be permissible to put questions about her general moral character. This paved the way for an end to unwarranted attacks on the past sexual acts of the victim of rape.
CODE OF THE CRIMINAL PROCEDURE AMENDMENT ACT 2005: The Criminal Procedure Code (Amendment) Act of 2005 introduced specific sections for medical examination of victims of rape (section 164(A) CrPC), medical examination of those accused of rape (section 53 (A) CrPC) and investigation by judicial magistrates of custodial rape and deaths (section 176(1A)(a)(b)CrPC).
CRIMINAL PROCEDURAL CODE AMENDMENT OF 2008: The amendment to section 309 CrPC has the additional proviso that when the inquiry or trial relates to an offence under sections 376 to 376D IPC, the inquiry or trial shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witnesses. The amendment of the CrPC in 2008 has brought in progressive legislation by inserting a new section 357(A) CrPC, the victim compensation scheme. All state governments in consultation with the central government are to prepare a scheme for victim compensation.
When a sexual assault victim or an accused is brought to a doctor or hospital, only evidence is collected. It is not realised by the majority of doctors and hospitals that the treatment of hidden injuries, and treatment of sexually transmitted diseases, advice on pregnancy and contraception, and psychological assessment and counselling are part of their medical role apart from evidence collection. Perhaps we require an explicit law in this regard. The recent amendments in the CrPC to help speed up trials in sexual assault cases may not have an impact due to the existing backlog of cases in our courts. Though the union law minister has issued a public statement about the government’s commitment to establish separate courts to examine sexual assault/harassment cases, the time has come to ask when such separate courts will actually start functioning. The lack of a witness protection law in India makes rape survivors and witnesses vulnerable to pressure that undermines prosecutions. For instance, Khap Panchayats, unofficial village caste councils, often pressure Dalit and other so-called “low-caste” families not to pursue a criminal case or to change their testimony if the accused is from the dominant caste. There are instances where we still see the patriarchal lean of the laws and the dichotomy that lies within the system itself which needs to be tackled through a feminist approach
Pearl Sharma is a student pursuing Law from Vivekananda Institute of Professional Studies.
Edited by: Varda Ahmad
Disclaimer: The opinions expressed in this publication are those of the author. They do not purport to reflect the opinions or views of The Jamia Review or its members.