"JUSTICE WILL NOT BE SERVED UNTIL THOSE WHO ARE UNAFFECTED ARE AS OUTRAGED AS THOSE WHO ARE" BENJAMIN FRANKLIN.
In a recent report by an award winning journalist, Ms. Priyanka Dubey1, observed that our country was known as one of the world's most dangerous for women where it is estimated that a woman is raped every fifteen minutes, out of which 99% of the rapes go unreported.2 We may be developing or achieving developmental landmarks, but much is desired in the spheres of law and order.
AMENDMENTS IN LAW
Pursuant to the horrific Nirbhaya3 incident, many issues came under the lens and various amendments were brought out in the Criminal laws of India in the year 20134. The Criminal Law Amendment Act of 2013 came into the picture which is popularly called Nirbhaya Act. This Act made substantive changes in the definition of 'rape' under the Indian Penal Code, 1860 ("IPC"), wherein section 375 was widened to include acts other than forcible peno-vaginal penetration or sexual intercourse. Further, several amendments were made in the IPC, including:
- Section 166A was added for punishing public servants who refuse to record an FIR in cases of specified crimes against women including rape;
- a new proviso was incorporated under section 166B punishing those in charge of a public or private hospital for refusal to provide free medical treatment for victims of rape;
- the scope of section 376(2) was expanded to include rape committed by a member of armed forces deployed in an area by the Central or a State Government in such area; and
- a separate section i.e. 376D for the offences of gang rape with higher punishment was added.
The other statutes including the Code of Criminal Procedure, 1973 ("CrPC") and the Evidence Act, 1872 ("Evidence Act") were also amended to bring them in consonance with the punishments.
In CrPC, section 154(1) that provided for recording of an FIR was amended to include that in certain offenses against women (including rape), the FIR has to be recorded by a police officer, at her residence or at place of her choice. Section 164 (5A) was added in the CrPC which made it mandatory for the Judicial Magistrate to record the statement of the victim, as soon as the commission of the offence was brought to the notice of the police. Further, an explanation was added to section 197(1) of the CrPC which provides the prosecution of judges and public servants.
MAJOR CHANGES WERE ALSO MADE IN THE EVIDENCE ACT WHEREIN
- Section 53 A was inserted which dealt with evidence of character of previous sexual experience;
- section 144A was substituted by a new one stating that in prosecution for rape under clause (a) to (n) of section 376(2) IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent;
- the proviso to section 146 was substituted with the existing one to state that in a prosecution for rape, it shall not be permissible to adduce evidence or to put questions in the cross examination of the victim as to the general immoral character or previous sexual experience of such person with any person for proving such consent or quality of consent.
Apart from the aforesaid, the Hon'ble Chief Justice of India also launched fast track courts to deal with such cases speedily. Unfortunately, though the law came with more stringent penalties for rape, after Nirbhaya incident, the statistics of National Crime Records Bureau ("NCRB")5 shows that there has been a significant growth in the rape crimes – which can be counted as a failure towards preventive approach, meaning thereby, that, there came no rape-deterrent effect in the law in our country, which resultantly frustrates the purpose of Criminal Law in this matter to a large extent.
EFFECT OF THE JUDICIAL SYSTEM
As the memories of Nirbhaya case waned from the minds of people, the nation mourned yet another rape victim when another horrific incident from Hyderabad came to light in 2019, where a 27-year old veterinary doctor was brutally gang raped and thereafter burnt alive. The incident elicited outrage amongst the people demanding speedy justice unlike Nirbhaya, where the case was being held up in court for 7 years. Many demonstrations were organized across the country demanding justice. In the meantime, in a follow-up incident in the Hyderabad case, news erupted that the four suspects in the case were killed by the Hyderabad Police in an encounter in the police custody. Expectedly, the said act of police was celebrated by the people of India. Though the speedy justice delivered to the victim by way of such encounter was hailed all over the nation including the victim's family, the family still claimed that police could have been more vigilant and responsive when the father of the victim had approached them on the same day around 11 p.m. but the police officials allegedly wasted time on the applicability of jurisdiction in ascertaining the concerned police station and in delaying the investigation on unfounded process.6
However, it is pertinent to note that taking law and order in our hands without a fair trial to the accused is truly no solution at all. Though for a limited frame of time, we may celebrate the so called speedy 'justice' to justify the act, but the question remains – how does the police differentiate between a suspect and a convict? It is important to understand and appreciate the primary principle of criminal law is that every man is presumed innocent until proven guilty. The pressure by the public for speedy justice may lead to unfair ways of punishing the suspects. Justice cannot be meted out just to please public at large, it has to go with the touchstone of fair trial.
While the inquiries on encounters by police machinery continue, the state government of Andhra Pradesh has passed a new act called, the Andhra Pradesh Criminal Law Amendment Act, 2019, also called the Disha7 Act7, prescribing punishment of death sentence for rape offenses, if adequate conclusive evidence is available and for providing an expedited trial of 21 days in such cases. The Act is however silent on what adequate conclusive evidence will be, to determine the real offenders. Another highlighting feature of the Act is concluding the investigation within 7 days while trials shall be determined in 14 days which goes to 21 days.
In one of the cases, Bodhisattwa Gautam vs. Subhra Chakraborty,8 the Supreme Court said that rape is a crime not only against a woman but against the entire society. Rape destroys the entire psychology of a woman and pushes her in a deep emotional crisis. It is only by her sheer will power that she rehabilitates herself in the society which on coming to know of the rape, looks down upon her in derision and contempt.
It is no doubt that government is taking steps to reduce rape offenses, however, no stringent preventative actions are taken to stop the occurrence of such offenses. The very roots of the law need to be made stronger before jumping over onto the branches. Remedial actions may eliminate the non-conformities in laws by deterring the accused from committing such crimes. However to those hardened criminals or psychopaths who find no guilt in ignoring the laws, taking preventive actions would eliminate the cause of potential crime itself. It is just like we have principles of State Policy and fundamental rights9 together, we should have both the Act and preventive procedures of acting vigilantly to stop the commission of such crimes. Major grey area in the Disha Act and Nirbhaya Act is that neither Act prescribes steps or procedure to be followed by police in order to prevent the occurrence of the crimes against the women. The preventive action includes vigilant actions by police in reaching out to the victim on time and saving her from becoming a scapegoat in the hands of wild animals. There should be a turnaround time for specifying time taken by police to reach out the victims.
An American abolitionist once said, "All history attests that man has subjected women to his will, used her as a means to promote his gratification, to minister his sexual pleasures, to be instrumental in promoting his comfort; but never has he desired to elevate her to that rank she was created to fill."
1 Economic Times
2 NCRB data, 2018
3 A 23 years old physiotherapy student was gang raped on a bus.
4 Bill No. 63 of 2013
5 National Crime Record Bureau, set up in 1986 to function as a repository of information on crime and criminals so as to assist the investigators in linking crime to the perpetrators.
6 Family of 4 Hyderabad rape Accused move Supreme Court for case against police encounters and the Supreme Court though an order, set up an inquiry commission led by former Apex Court judge (Justice Retd.) V.S. Sirpurkar, retired Bombay High Court judge Rekha Baldota and Retd. CBI Director D.R. Karthikeyan, to probe the circumstances of encounter and the investigation to be completed within 6 months
7 New section 354E shall be added in the IPC, 1860
8 1996 SCC (1) 490 by Justice Ahmad Sanghir S. and Justice Kuldip Singh
9 Constitution of India, 1950
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