By Mahitha Lingala
In the wake of rapes and murder emanating from various parts of our country, the debate surrounding rape laws and its prevention in India has once again come to the forefront.
Multiple stakeholders have voiced a variety of opinions – some giving it a communal tone, some blaming patriarchal attitudes towards women, some calling for “strict” punishment and making an example of these accused rapists so that all future potential rapists are scared of the punishment and shy away from the crime.
According to NCRB data, reporting of rape has increased steadily since 2013 from less than 25,000 to 39,000 in 2016 and 1.3% from 2017 to 2018. However, the rate of conviction has been somewhat worrisome.
The current rate, according to the 2019 data, is 27.8%, lower than 2017 when it was at 32% pan-India with just 27.2% in metropolitan areas. Of the 1,56,327 trials, 17,313 cases completed trial and only 4,708 cases resulted in conviction. But what is more worrisome is the fact that the rate of charge sheeting has also been going down, meaning that a lot of cases are not reaching court.
Activists have been saying for a while now, a voice which reached its crescendo during the Nirbhaya incident, that laws are enough but implementation is lacking.
The Verma report categorically specified the “need to establish a more effective response care system for rape and sexual assaults”. The report led to the eventual amendment, popularly known as the Nirbhaya Law.
This law increased the punishment to 20 years in the case of gang rape and death penalty for repeat offenders. Even though the law got stricter, the justice delivery for women and children has not really improved.
Post the Nirbhaya incident, there was not just a spike in reporting but also an increase in the number of charge sheets filed in that year. This indicated the seriousness showed by the police in investigation. But after the immediate outrage reduced so did the efficiency of the police. The charge sheeting rate fell from 87% in 2014 to just 61% in 2017.
Whenever a case caught the fancy of the media, there would be outrage and calls from all parts of society and the political spectrum for harsh punishment and death penalty. When death penalty as a punishment was introduced for cases of rape wherein the victim is a child through the POCSO Amendment Bill, 2019, many lawyers actively spoke against it. Karuna Nundy, a senior advocate of the Supreme Court, said “By instituting the death penalty, the reporting of such crimes may decline”.
According to NCRB data, in more than 93% of rape cases, the perpetrator was not a stranger. In this scenario, social conditioning compels the victim and her family to not pursue legal recourse in a majority of the cases.
Bharti Ali, co-director of HAQ: Centre for Child Rights, also says that “When they do report it, the [prospect of the] death penalty shouldn’t cause them to reconsider. The death penalty can also induce a rapist to kill his victim, because he would not want his victim to testify against him in court” .
Non-functional fast track courts
The problem has more to do with the lack of efficacious implementation than the availability of strict punishment. So introducing death penalty and fast-track courts will only serve as an eyewash if the implementation of these laws isn’t simultaneously improved.
That the judiciary in India is overburdened is no alien fact. Introducing fast track courts and using the judges from the same general pool will serve no good given the conviction rate. It will only end up overburdening the local criminal courts, which are already understaffed.
The fast track courts which were announced in mid-2019 are not functional yet, and many which were set up earlier still have vacancies.
Fast track courts are a welcome step to ensure speedy disposal, but such order should be accompanied by new judicial recruitment for such courts to reduce the burden as well as to have specialised judges who are sensitive towards such issues as the judge’s perception reflects in the judgment. A patriarchal bias is often reflected in the many judgements.
The crux of the problem begins with the filing of FIR. In sexual violence cases not limited to rape, the police refuse to file FIR or callously frame it. This happens due to a variety of complex reasons.
Firstly, most of the police force isn’t sensitive towards such crimes and often blame the victim and even believe that the ‘real’ victims never come forward and the ones coming forward are just extortionists in disguise. Secondly, the police try to artificially fudge the crime rate by not reporting the crime. They do this for a number of reasons like avoiding political opposition and backlash for a high crime rate or even for performance rating.
The police force in India is seriously understaffed. India has a police force of 138 for every 1,00,000 citizens making us the fifth lowest on a list with 71 countries. This is directly connected to the fall in the charge sheeting rate. Since the force is understaffed, investigations are often botched and many aspects delayed and compromised. Due to improper evidence collection, the accused is often acquitted, which again, in turn, reinforces the victim-blaming attitude.
Filling vacancies coupled with more fresh recruitment can ease the situation. At present, there is no national policy on collecting forensic evidence in such cases. Such evidence is extremely crucial for establishing guilt in these cases, but what happens often is that this isn’t carried out in time leaving the court to just adjudicate based on the victim’s statement, which leads to disposal in favour of the perpetrator due to lack of sufficient evidence. There needs to be an overhaul not only in terms of an increase in police personnel but also in terms of better physical infrastructure.
Significant relevance is given to forensic evidence and it can influence a conviction or it can undermine the victim if framed poorly. That is why a uniform medical data collection template, along with an increased number of forensic labs, is required to aid the process of fair justice.
The need of the hour is not stricter laws but an efficient implementation system. This is possible only with the support of institutions like the police force and judiciary. It’s not possible to pin the blame on any one department, all the departments need to work in sync to tackle the loopholes and deliver speedy justice.
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