Your vulnerability of being poor makes you prone to violence and even after that you are victimized and looked down by the society but this becomes worse when your ability to fight the oppressive structure of the society only comes with privileges.
A 19-year-old Dalit woman from Hathras, Uttar Pradesh has died after she was allegedly gang raped and assaulted by a group of four upper caste men. Police was accused of being tardy in registering complaint, slow investigation where samples were taken 11 days after the woman was attacked, rape charges were doubted and authorities appeared to be complicit in turning with the upper caste perpetrators. Police hastily cremated the victim in the middle of night, refusing to hand the body over to her family. Media and opposition were denied the permission of meeting the victim’s family members by authorities.
Authorities said that the forensic report had found no semen or semen excretion in the viscera sample of the victim, and the cause of death was due to trauma caused by the assault. The incident took place on 14 September.after eight days, Victim gave a statement (in the presence of magistrate) to the police saying she had been gang raped. This per se as a dying declaration is admissible evidence in India.
The forensic sample was sent to the forensic laboratory on 25 September. These samples were taken after 11 days. The likelihood of finding evidence is limited to only three days – or 72 hours – after that it is greatly reduced. As the samples were not taken in time, these reports should not be considered a substantive evidence in the case. It is necessary to understand all the laws and evolution of those laws that revolve around this situation for better understanding of the main problem.
First Law commission and Indian Penal Code
There were many diverse and conflicting laws prevailing across India regarding sexual violence. The codification of laws began with the Charter Act, 1833 which established the first Law Commission under the chairmanship of Lord Macaulay. ‘Rape’ as an offence was first introduced in the Indian Penal Code in 1860. Section 375 of the IPC made punishable the act of sex by a man with a woman if it was done against her will, without her consent or by obtaining forced consent. Section 376 of IPC provided seven years of jail term to life imprisonment to whoever commits the offence of rape.
Tuka Ram case and Criminal Law (Amendment) Act of 1983
In 1972 a young girl was allegedly raped by two policemen in the Desai Gunj Police Station of Maharashtra. The sessions court conclued that she had sexual intercourse while at the police station but rape had not been proved. Even though sessions court acquitted both the policemen, the High Court reversed that order of acquittal. When the case (Tuka Ram And Anr vs State Of Maharashtra) reached the Supreme Court, it overturned the High Court verdict and said that “the intercourse in question is not proved to amount rape”. The Apex court, in its September 15, 1978 verdict, said no marks of injury were found on the girl after the incident and “their absence goes a long way to indicate that the alleged intercourse was a peaceful affair”.
This verdict instigated many protests across the country seeking a change in rape laws, Thus Criminal Law (Amendment) was passed now known as Criminal Law (Amendment) Act of 1983.
- In the Indian Penal Code, Section 228A was added which makes it punishable to disclose the identity of the victim of offences under section 376, 376A, 376B, 376C and 376D.
- Heading of Section 375 and 376 was changed from “of rape” to “sexual violance” and certain section under that were substituted.
- In code of criminal procedure, section 327(2) and 327(3) were added which made the inquiry and trial of rape or an offence under 376, 376A, 376B, 376C and 376D of IPC to be conducted under camera.
- In the Indian Evidence Act of 1872, a new Section 114A was inserted which stated that where sexual intercourse by accused is proven and the question is whether it was without the consent of the woman alleged to have been raped states in her evidence before the court that she did not consent, then court shall presume that she did not consent.
172 th Law commission report and 2002 amendment
A public interest litigation (PIL) to widen the definition of sexual intercourse in Section 375 of the IPC was initiated by Siksha, a non-governmental organisation. Following the direction of the Supreme Court, the Law Commission in its 172th report recommended widening the scope of rape law to make it gender neutral.
Rape law in india is still gender specific (perpetrator of the offence can only be a ‘man’) but 172nd report by law commission led to some specific amendments in the Indian Evidence Act in 2002. A new provision which prohibited asking questions in the cross-examination of the victim as to her general ‘immoral character’ in attempt to rape or rape cases was inserted by this amendment.
Delhi case, J.S. Verma Committee and Criminal Law (Amendment) Act of 2013
December 2012, a 23-year-old student died after being brutally raped by six men on a moving bus. Audacity of these perpetrators in this horrific incident shook people from inside and led to an outrage in the country. Country asked for death penalty for these perpetrators. This public outcry led to enactment of the Criminal Law (Amendment) Act in 2013. These amendments were made according to the recommendation of the Justice J.S. Verma Committee, which was constituted to retrospectively look into the criminal laws in the country and recommend changes.
Criminal Law (Amendment) Act in 2013 extended the definition of rape, It also created new offences, such as use of criminal force on a woman with intent to disrobe, voyeurism and stalking. it also provided for the death penalty in rape cases that cause death of the victim or leaves her in a vegetative state. Punishment for gang rape was increased from ‘10 years to life imprisonment’ to ‘20 years to life imprisonment’. This amendment clearly defined offences such as use of unwelcome physical contact, words or gestures, demand or request for sexual favours, showing pornography against the will of a woman or making sexual remarks.
- In section 100 of Indian Penal Code another subsection concerning the offence of throwing acid was added.
- In Indian Penal Code, section 166A and 166B concerning public servants disobeying directions under the law and punishment for non-treatment of a victim was added
- In Indian Penel Code section 326A (voluntarily causing grievous hurt by acid), 326B (voluntarily throwing or attempting to throw acid), 354A, B, C and D (sexual harassment, assault or use of criminal force to woman with intent to disrobe, voyeurism, stalking) were added.
- In Indian Penal Code section 370 and 370A concerning trafficking in persons and exploitation of a trafficked persons were added
- Sections 375 (rape), 376 (punishment for rape), 376 A (punishment for causing death or resulting in persistent vegetative state of victim), 376 B (sexual intercourse by husband with wife during separation), 376 C (sexual intercourse by a person in authority), 376 D (gang rape) and 376 E (punishment for repeat offenders) were amended.
- In section 509 the penalty for making words, gestures or acts intended to insult the modesty of a woman was increased from a maximum of one year to a maximum of three years with a fine.
Kathua case and Criminal Law (Amendment) Act, 2018
In January 2018, a group of men abducted, raped and murdered an eight-year-old girl in Kathua, Jammu and Kashmir. This shocking incident instigated nationwide protests and calls for much harsher punishment. Due to this Parliament enacted the Criminal Law (Amendment) Act, 2018 which for the first time put capital punishment as a possible punishment for rape of a girl under 12 years. Specific section concerning rape on a girl below 16 years was inserted in Indian penal code. Minimum imprisonment of 20 year which may extend to imprisonment for life was provided for the same. The minimum jail term for rape was increased from seven to 10 years.
A comparison between 2018 and 2019
Explanation of the Data
According to the latest National Crime Records Bureau (NCRB) report, there were 32033 reported cases of rape in India in 2019. In 30165 cases the perpetrator was known to the victim. 1931 gang rapes tookpace in 2019. In 2373 cases the same woman was repeatedly raped in 2019. At the same point of time several thousand cases were pending investigation from the previous years. Top 5 states (Rajasthan, UP, MP, Maharashtra and Kerla) had 15869 cases which is nearly 50% of total cases.
In 2018, there were 33356 reported cases of rape, out of which in 31320 cases the perpetrator was known to the victim. 1826 gang rapes tookpace in 2019. In 2472 cases the same woman was repeatedly raped.
Issues with current Data
The current data is already horrific and can shook individuals still this data can not be seen exhaustively. India is a patriarchal society which is further divided in classes and many castes. This divide created a power hierarchy in the society itself, where poor sufferers financially and woman suffers because of dominant male society but a poor Dalit woman at the same point of time suffers of
- Narrative of cast, where she is looked down just because she is dalit,
- Male dominance, where she had to let go many opportunities and
- Financially, where she can not even sustain her livings without dependence.
All of this and lack of hope for these women in the society forces these women to be suppressed and not to speak against oppressors. Many of these cases don’t even get reported because of the stigma that is attached to rapes, where a woman is looked down upon by society, where she is questioned on moral grounds but even when some of these get the courage to break that stigma, family, society and authorities stops them to do so.
Why laws are still not affecting the numbers-
Even though there has been a time to time amendment of laws yet the situation is the same where almost 100 rapes take place daily. Social mindset of people has been similar, there are inadequate streetlights and lack of other infrastructure, police has been working very slow that includes a slow investigation, sample labs have been in bad condition and the justice system has been rigid. Following issues shed some light on the same:
- Evidence stores- these stores in various police stations were found to be in a bad situation where evidence is contaminated before the time they even reach forensic labs. DNA evidence, clothing and blood samples are not taken care of in the best way which end up in these evidence losing their values. Lastly, the red tape system in the police department has always stopped the development of proper infrastructure.
- Dark Spots and Helpline- even though we live in a developing country but a lot of places in the country are still out of reach for help. These places are so isolated that they are out of the taxi, lack of other important services and lack of speedy replacement of faulty lights in these areas makes them prone to such violence.
- Fast track Courts- Supreme Court and High Court have directed multiple times to set up fast track courts for Cases of Rape. These fast track courts still look like a far way dream as the structure of the courts has not been changed much and the process to attain justice has always been very slow.
The National Judicial Data Grid has confirmed that more than 48% of all criminal cases get delayed because accused or witnesses do not show up for hearings, which leads to repeated adjournments. Trials then remain stalled at the stage of examination of various evidences. This is used as a weapon to delay the trials a lot of time. Often because of which, courts are forced to acquit accused due to lack of evidence or witnesses, since viscera, blood, DNA samples and other evidence get contaminated due to improper handling and lack of storage. With a lot of assault cases having known persons to victim as perpetrators, many end up in acquittals due to social or family pressure on victims or witnesses.
There is a need to make this problem visible because only that can make the fight against the problem more stronger and more assertive. Poor people only have this assertive voice as a means of privilege to fight against perpetrators and oppressive structure of the society and it’s a duty of all of us to hear that voice of the poor.
By Tushar Pancholi