Three Unfortunate Women; Three Landmark Legislations

Three Unfortunate Women; Three Landmark Legislations

In hearing a victim’s testimony, each of us feels and understands the intensity of tragedy. Because we understand, we care. After Nirbhaya incident, more victims than ever before are actively engaged in advocacy by blogging and speaking to the media about the abuse they have endured. The mind-set, “Shhh, sexual assault is a private matter, she should keep that story to herself” has changed. The outlook of Indian women is varying and they understand that secrecy is where the perpetrators of sexual crime draw their strength from.

Aggression and abuse affect women from all kinds of background every day. Occasionally, women are attacked by strangers, but most often they are hurt by people who are close to them. Of all the sexual offences, rape is the most heinous crime for not simply causing physical wounds but it leaves the victim with severe irrevocable emotional stabs. Reported cases continue to increase, and unreported cases are estimated to be many times greater than reported ones. A comprehensive poll by Thomson Reuters Foundation in June 2013 found that India was the worst place in the world to be a woman with high rates of female infanticide, child marriage, rape and slavery. The question as to why violence against women is so rampant in India leads to several answers; as also, the question on how to deal with the violence.

Many social workers have argued that the problem is caused by society’s underlying attitude towards women. The truth is, when most women report sexual harassment in India, they are blamed for not taking adequate precautions and being passive to avoid the danger. The general attitude of society is such that women invite trouble on themselves. Women are told not to dress provocatively so as not to arouse the presumed uncontrollable sexual urges in men. The culprits are often justified on the notion that they exceeded the level of controllable sexual stimulation and could no longer be held accountable for their actions. Thus the onus shifts to women, instead of being shared by society and law-keepers. These thought processes are fostered by a patriarchal society - where men dominate women, where women are viewed as objects rather than as equals. Why blame society, when even educated people have passed dreadful comments about rape, victims, and women who come to their aid. The present CBI Director recently remarked:  “If you cannot stop rape, then you enjoy it.” Former Kerala chief minister EK Nayanar dismissed the fuss over the 1996 Suryanelli mass-rape case saying “rape happens all the time”!

The suffering of the rape victim is made worse by the traumatic justice system. Lawyers dealing with rape cases frequently narrate how the court proceedings turn to be a harrowing experience for the victim. In some states, there is still the practice of the “two-finger test” to determine whether the woman is sexually active, and if she is, then it becomes harder for her to prove rape. Apart from that, some of the provisions under the Indian Evidence Act, especially the one to verify the antecedents and history of complainants are also manipulated generally to the detriment of rape victims. For example- Section 155 (4) of the Indian Evidence Act — impeaching the Credit of Witness — states: “When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.” Fortunately the above Section and the Two-Finger test has no relevance after the enactment of Criminal law (Amendment) Act 2013. [S.155(4)  is omitted by Act.4 of 2013][  This becomes a fertile ground for ‘secondary-victimisation’ wherein the victim of a crime faces further persecution and embarrassment in the course of investigation and trial. It is high time the law also realises that no one deserves to be physically, emotionally, mentally, and sexually assaulted – despite however grave that person’s faults may be. Very few people in their right mind will formulate fake allegations about having been raped but it is a travesty of justice that all rape victims have to face scrutiny of their character. The constant depiction of the woman as an object show piece to play to men's desires or a property owned by men of the household, steadily devalues their status within society.

Today, the situation is such that countrywide protests are required for lawmakers to draft appropriate laws. The protests and the change in public discourse following the December 16 gang-rape incident is proof that a collective hue and cry, coupled with intense public discussions about sexual assault on women can arouse the latent conscience of our male-dominated Parliament and nudge them into action.

Today, if India has a rigorous and harsh criminal law, it is the result of the traumatic experiences underwent by three unfortunate women. The then-celebrated Criminal Law Amendment Act, 1983, was enacted in the aftermath of the Mathura Rape Case; the Sexual Harassment of Women at Workplaces Act, 2013, was the outcome of the Vishakha Case (after Bhanwari Devi's protest against the acquittal of the men who gang-raped her) and the recent Criminal Law Amendment Act, 2013, was a ramification of the Nirbhaya Case.

On March 26, 1972, Mathura, a young tribal girl, was gang-raped by the policemen of Desai Ganj Police Station in Chandrapur district of Maharashtra. Though the policemen were accused of custodial rape of a poor tribal woman, the highest court of the land did not believe that she was telling the truth. The learned Justices overturned the convictions of her attackers and set them free. It was held that Mathura had raised no alarm; there were no visible marks of injury on her person; thereby suggesting no struggle and therefore no rape. Her only fault was that she was unable to establish in court that she was raped and she did not have consensual sex with the policemen. The strong protests after the Mathura Rape case, led to recognition of custodial rape of women in society as well as in law. Her landmark case led to the introduction of a separate category of aggravated rape including custodial and gang-rape in the Indian Penal Code by way of the Criminal Law Amendment Act 1983. By this amendment, the government made amendments stipulating that the penalty for custodial rape should not be less than seven years' imprisonment; and it provided for in camera proceedings and made the disclosure of the victim's identity a punishable offence. How can one forget the statement made by one of the judges during the hearing - “Because she was used to sex, she might have incited the cops who were drunk, to have intercourse with her”! A brief history of this case is a clear example of male chauvinism being rampant in society, among investigators, lawyers, judges, etc. The case ended a taboo on public discussion of sexual violence.

The second was the Vishakha case, a landmark case that officially recognised the need for laws to help women deal with sexual harassment and laying down guidelines for institutions to address complaints of sexual harassment raised by women working woman. The judgment was an outcome of a gang-rape of a social worker in Rajasthan, Bhanwari Devi, that happened on September 22, 1992. In the trial court, the judge held that the accused were not guilty, stating inter alia that Bhanwari's husband couldn't have submissively watched his wife being gang-raped.  Regrettably, even the Supreme Court of India was not able to respond adequately to Bhanwari’s appeal. Thereby, Vishakha, an NGO, and other women groups filed a Public Interest Litigation in the Supreme Court to enforce the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India. Eventually, the Supreme Court judgment of August 1997 provided the basic definitions of sexual harassment at the workplace and laid down the requirements for employers dealing with complaints of sexual assault. It further stipulated the formation of committees to dispose of complaints from victims of harassment, now popularly known as Vishakha guidelines.  Though it was seen as a significant legal victory for women's groups in India, the guidelines were not incorporated until 2013 by way of the Sexual Harassment of Women at Workplaces Act.

The recent 2013 criminal law amendments was the outcome of Nirbhaya incident that happened on the miserable night of December 16, 2012. There was raw anger over the failure of the nation to check this sort of extreme violence.  The chilling nature of the crime haunted people and thus led to huge protests. Succumbing to the terrific public pressure for deterrent laws against rape, the government constituted a committee under Justice J S Verma which submitted its report within 30 days.  It thus paved the way for speedier justice and enhanced punishment in cases of aggravated sexual assault. The recommendations of the Verma Committee led to amendment of the Indian Penal Code, Indian Evidence Act and Code of Criminal Procedure on laws related to sexual offences. It brought in major amendments in definition of rape, gang rape, voyeurism, stalking, etc. Further it also brought in new sections to deal with sexual harassment, harassment at work place, acid attacks and so on. The Justice Verma Committee Report categorically emphasised that rape should be de-linked by both society and state from the ideas of honour and shame. Rape needs to be treated as an assault on the body and on women’s right to bodily autonomy.

Nothing can justify the act of rape, be it by a civilian or a person under the government. It is important to raise our collective voice against rape. An act of rape or molestation can have enduring consequences such as mental distress, social stigma and frustration of prospects for marriage and employment. It is to be made aware that rape is not something that occurs by itself, but is a part of the entrenched brutality in society that targets women on a daily basis. The ongoing assault against women indicates that bringing an end to this plague of sexual violence will require far more than legislation. Change cannot happen in a vacuum, what requires to be done is an entire societal shift driven by alertness, exchange of ideas, support and education. We certainly need reformation - it is the attitude of men in authority like the Supreme Court judge of Mathura case, which needs to change. Only with enlightened minds at the helm can institutions be reformed: be it the judiciary, the police, the government or the media. Earlier the perception was that rape or molestation is committed by illiterate or uncivilized men. However, the series of recent reported sexual offences show that women are not safe anywhere. The fact that many workplaces still do not have Complaints Committees to probe sexual harassment complaints and police stations do not register rape cases despite cognisance of the matter betray the conduct of those entrusted to uphold the laws. Along with changes to existing laws to address their shortcomings, India also needs to ensure that the laws work for the victims who need them.

Meera MathewMeera Mathew is a lawyer in Supreme Court of India.