The patriarchal set of laws, male dominated profession and closed outlook of majority of judges add to the woes of the Indian ‘Rape Survivors’ (read as ‘rape victims’). The archaic procedure practiced by our courts in a bid to ensure justice to ‘rape survivors’ and also to do justice to the accused, in practice turns out to be an ordeal for the ‘rape survivors’.
Prominent lawyers, professors, women's advocates and even some judges share the view that one of the biggest hurdles to justice in a rape case is India's judicial system, is the inherent penchant to do justice to the accused. It is no doubt a constitutional obligation of the State which flows straight from the dictates of Article 21 of the Constitution. But the anxiety of the courts to oversee that no one should be unfairly punished, no matter how many go unpunished, is often abused by the accused. It is true that in the case of ‘rape accusation’ the degree of scrutiny should be more. In sexual assault cases, the ‘accusation’ itself becomes a sort of punishment. Thus, the rigor of test which a ‘survivor’ is bound to pass through ends up as a public trial of the ‘survivor’. The procedural safeguards conferred on the accused often tend to be procedural persecution of survivors.
It is heartening to know that there is a greater gender sensitivity and new awakening in the recent years while appreciating evidence in rape cases. It is a matter of concern that the shameful ‘Two Finger Test’ (TFT), a primitive clinical procedure where the Doctor tests the laxity of vaginal muscles with his two fingers, was earlier permitted. The Doctor, for reasons unwanted, declares the virtues and gives a character certificate to ‘the wronged’, testifying that she is habituated to sex or not. As late as in 2011 the Director General of Health Services issued an order to discontinue this practice. In fact this practice has been banned in many countries. Pages and pages of judgments have been written over long years without condemning this medieval procedural practice, rampantly followed by the Investigators. Barring few, judicial minds never sulked about the absurdity of the test, or the procedural persecution of the wronged. Thankfully, the new judgments condemn this practice showing the right direction to the investigators.
In her entire history India would not have witnessed the kind of upsurge we witnessed in the aftermath of December 16 gang-rape in a moving bus and killing of a 23-year-old woman in New Delhi. The unfortunate incident gave a platform for an inclusive debate for better laws and greater gender sensitivity. Rape as an offence has grown beyond mere ‘law and order’ situation. It can no longer be just another offending act in Indian Penal Code and lookout of law makers and judiciary.
Post the Delhi gang-rape, rape penalties have been toughened and promises have been made to police better. But, the trend of assault continues unabated, with brutal attacks on women everywhere in the country. Despite the hue and cry and the government amending the Criminal Law (Amendment) Act, 2013, which amended Indian Penal Code, Indian Evidence Act and Code of Criminal Procedure, there is no decline in sexual assaults.
Contrary to popular perception of delayed trials, we have proved that quicker justice is possible within our system. A special fast-track court took just seven months to pronounce the verdict in the Delhi gang rape case. According to human rights lawyers’, the reason for this exception to the rule of a protracted criminal justice system that fails thousands of rape victims in India, is the public outrage. Legal system should not be the one which get charged only on public demand. As Rebecca Mammen John, a Supreme Court lawyer, points out “There are so many survivors out there who are neither getting any kind of media attention, nor getting any kind of judicial attention, which results in languishment of their cases in courts with no signs of justice being done”.
So, what is the reason for this delayed justice and denial of it? According to legal experts, one of the biggest hurdles in achieving justice for rape survivors is the protracted trials. For a population of 1.2 billion, India does not have the sufficient number of courts, judges and prosecutors which leads to a backlog of millions of cases. As per the report of the Law Ministry, more than 23,000 rape cases are pending before the High Courts. Since the conviction, in many cases, depends on testimony of victims, the accused make of use lengthy trial period to win over the prosecutrix. Apart from coercive methods there are many instances where the witness is forced to accept illegal "out-of-court" settlements on consideration. There exist ingenious methods to earn judicial sympathy or to ‘resolve’ the ‘dispute’ in the community by pressurising the victim's family into marrying their daughter to the accused. A compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence, an offence against the society and is not a matter to be left for the parties to compromise and settle. The accused may use all his influence to pressurize the victim for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe to consider the compromise arrived at between the parties in rape cases as a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) of IPC. The power under the proviso to Section 376(1) and 376(2) of the Indian Penal Code, which give the power to the court to award a sentence lesser than the minimum for adequate and special reasons, is not to be used indiscriminately or routinely. The proviso to Section 376(2) IPC, lays down that the Court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. It is laudable that this proviso stands removed pursuant to the Criminal Law Amendment Act 2013.
Another disappointing aspect is the absence of an effective and practical witness protection regime. The welcome change is the newly introduced section 154 (5A) by Criminal Law Amendment 2013, which has made it a statutory obligation to facilitate the recording of statement of the victim before a Magistrate as soon as the offence is brought to the notice of the police.
Lawyers and Human Rights Groups point out that rape victims in India have always witnessed insensitive criminal justice system, a system which has never taken care of them medically and failed to deliver justice. The guidelines issued by World Health Organization for medico-legal care for sexual assault victim is rarely practiced in India.
Due to the conservative attitude of the Indian society in general, many victims are scared to come forward to report their cases. Those who go to the police come across serious challenges like reporting the rape to police, who can be at times hostile; unsympathetic forensic examinations; lack of counseling; investigations by police which can be humiliating for the already shattered victim of rape; the weak prosecutions in the courts; if rape is within family, then the social fall out associated to it. The cumulative effect of all these factors prompts the rape victim to think twice before reporting the offence to the police. Timely reporting of rape is crucial in successful prosecution of rape offenders, but our unique system fails the victims on many occasions.
Medical evidence holds crucial importance in rape trials. The lack of physical injury due to delayed reporting supported by Doctor's comments most often make dent in prosecution case. Insensitive questions are posed to the rape victim like what was the position when she was raped, the length of time for which she was raped and other humiliating questions to give a pictorial narration of the incident traumatises the victim further. Till 2002, Section 155(4) of the Indian Evidence Act of 1872 held that "when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character". Though this section was repealed, the psyche associated with this provision and the outdated style of cross examination is very much in place. Old habits die hard.
In view of International Covenant on Economic, Social, and Cultural Rights, 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985; rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. The State is under an obligation to make such services available to survivors of sexual violence.
Another factor while dealing with rape victims is the collection, transport and storage of forensic evidence by police which serves as a key component in rape cases. Despite being a critical factor, it is often poorly conducted, resulting in weak prosecutions, few convictions, and lenient jail terms for convicted offenders. According to a study conducted in August 2012, out of 40 rape cases tried by district courts in Delhi that resulted in acquittals, more than half the acquittals were due to police failure to perform adequate investigations. Although guidelines have been set by the Supreme Court for trial courts to deal with rape cases in a sensitive manner, experts say these guidelines are often violated or ignored.
Despite all these sensitization programmes, there are disappointing instances which reveal gender insensitivity of trial court Judges. In a recent rape trial in the Dwarka Courts of Delhi, the Additional Session’s Judge is reported to have commented on the morality of rape victims by saying that before a proper marriage girls are morally and socially bound not to indulge in sexual intercourse, and if they do so, it would be a question against their character. The Supreme Court has time and again, while hearing rape cases, observed that cases of rapes should be handled with utmost sensitivity and the court must ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. If the victim of rape was previously accustomed to sexual intercourse, it cannot be the deciding question. The previous sexual life or promiscuous character are irrelevant issues in a case of rape. Even a sex worker has a right to refuse to submit herself to sexual intercourse to anyone and everyone. In Narender Kumar v. State (NCT of Delhi), the Supreme Court dealt with a case where the allegation was that the victim of rape herself was an unchaste woman, and a woman of easy virtue. The Court held that so far as the prosecutrix is concerned, mere statement of prosecutrix herself is enough to record a conviction, when her evidence is read in its totality and found to be worth reliance.
The offence of rape causes great distress and humiliation to the victim though undoubtedly a false allegation of rape can cause equal distress, humiliation and damage to the accused. Rape cases should be tried in camera as a rule and an open trial should be an exception. Indian laws were amended in the 1980s to state that trials for rape and child abuse should be conducted “in camera” which means access to these hearings is restricted to those involved in the case and the media cannot be present, in particular when evidence is given relating to “indecent” details. However, if either party requests, the judge can allow others to be present in the court.
Law reforms also need to start from the stage of rape reporting itself. At the moment, there are no guidelines about the manner in which the police records the ‘First Information’ given by rape survivors and there is enough room for manipulation of records.
The Supreme Court has consistently held that conviction can be based solely on the testimony of the woman, and there is no need for any other corroborating evidence. However, the court has to be satisfied that the woman’s testimony is reliable, and she is in fact stating the truth.
It can be safely be said that a rape victim in India is brutalized twice, first by the rapist, and then by the State. From the stage of registering an FIR to the time of the trial, the victim is judged through various preconceptions and prejudices. The way our criminal justice system handles a sexual assault case is crucial to the way India can resolve its spiraling sexual assaults and crimes against women.
Rituparna Duttaa is Associate Editor at Live Law.
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