sexual assault in India.

The movement for change. The problem of sexual assault and rape in India.

The incident of the gang rape in India and murder of the 23-year-old girl in a bus by six men in New Delhi on 16 December 2012 seemed to act as a trigger to release the pent-up anger and frustration of women in India who have suffered various forms of sexual assault and sexual harassment on the streets, in the neighbourhood, or in their homes.

Every time they stepped out of their homes, walked on the streets, or boarded public transport, they risked, and continue to risk, being harassed, groped and subjected to unwelcome sexual touching. However, instead of their harassers being targeted, their freedom of movement, their right to dress as they please, and their right to associate with persons of their choice is discussed, curbed and restricted. While raising the slogan of justice for the gang rape victim and other victims of rape in India and sexual assault, and of severe punishment of the perpetrators of the rape in India, the protestors highlighted the dismal state of law enforcement in our country. The demand for accountability of the police underscored the fact that the police had not implemented the law and had been guilty of dereliction of duty in cases of sexual assault, and the government had taken very few steps to ensure the safety and security of women in our cities and across the country. By asking for speedy justice and fast-track courts, the protestors highlighted the delay and denial of justice by the courts. Some also raised the demand for more stringent laws against rape in India and sexual assault. Although these protests were started by the constituents of women’s organisations and groups, particularly of the Left, they were widely held to have been led by the youth of the country who had supposedly shown the way forward.

The law relating to rape in India and sexual assault

The government, which had ignored such demands for decades suddenly swung into action when it realised the extent of public anger and outrage. ‘Nirbhaya’, whose gang rape in India had acted as a catalyst for the protest, was given the best medical treatment. A speedy investigation of the case was carried out in about two weeks, the charge sheet filed, and the case is being heard on a presumably day-to-day basis in the courts. In another quick reaction, a high-level Committee comprising the former Chief Justice of India, Justice Verma, was constituted to suggest laws to provide for quicker trials and enhanced punishment for criminals accused of committing sexual assault of extreme nature against women [sic]’. Though the Verma Committee had been set up with these limited terms of reference, the Committee interpreted these terms ‘expansively’ and, within an extremely short period, suggested several significant recommendations on a wide range of issues. Apart from proposing legal reforms on substantive and procedural laws related to rape in India and sexual assault, the Committee made various suggestions to strengthen women’s rights and the implementation of the laws by the police and the judiciary. The Committee recommended the introduction of a Bill of Rights for women, which detailed the equality and other rights to which women were entitled in different areas. It recommended changes in the Representation of People’s Act so that persons against whom a charge sheet had been filed in court for rape in India would not be allowed to contest elections for Parliament and State Assemblies. The Verma Committee also exhorted the government to implement the laws and pointed out that, The most perfect laws also would remain ineffective without the efficiency and ‘individual virtuosity’ of the human agency for implementing the laws, namely, the law enforcement agencies. However, although some recommendations of the Verma Committee were new, many of them were recommendations that had already been made to the government over the past several years The Verma Committee has itself noted that the government had ignored the existence of various Law Commission Reports and Court Judgements by pointing out that:

The Law Commission’s 84th Report in 1980 and its 172nd Report of 2000 relating to this subject, the National Police Commission Reports recommending autonomy and seminal improvement in the quality of the police force, which is the principal machinery for the maintenance of law and order, continue to gather dust for decades due to the apathy of all the political dispensations. The Supreme Court’s judgment of 2006 in Prakash Singh’s case giving certain directions for the autonomy and improving the quality of the police force remains to be implemented by all the governments.

In the meanwhile, it became obvious that instances of rape in India and sexual assaults continued to accelerate. Successive reports of the National Crime Records Bureau had also shown that while, on the one hand, the registered cases of sexual assaults, including rapes, continued to rise, on the other hand, the conviction rate was dismal. Even before most of these reports, and as far back as 1993, a Sub-Committee was formed by the National Commission for Women (NCW) after a seminar on Child Sexual Abuse, to examine the laws related to child sexual abuse. This Sub-Committee was constituted of members from women’s organisations and groups as well as individual feminists. The Sub-Committee met extensively over six months and submitted a report to the National Commission for Women. The report suggested a complete overhaul of the provisions relating to Sexual Assault in the Indian Penal Code. It noted that the law had become outdated in language and intent as it failed to acknowledge the true nature of the crime of sexual assault. Also highlighted were the definitions of rape in India and molestation that did not adequately address the various types of sexual assault in terms of women’s experience, nor did it recognise the gender-specific nature of such crimes. In addition, the definitions of sexual assault, rules of evidence and procedure did not adequately take into account the serious nature of sexual assault against women and children.

The recommendations of the Sub-Committee were to form the basis for a redrafting of the substantive and procedural rape in India and sexual assault laws in the coming years. Of the recommendations made, some stated that all the laws relating to sexual violence should be consolidated in one Section as they were all assaults of a sexual nature. It redefined and expanded the definition of rape in India included within it penetration into any orifice (vagina, anus and mouth) by the penis and penetration by an object or a part of the body to the vagina or anus. The Sub-Committee renamed rape as sexual assault to emphasise the violent aspect of the crime and the act that all these forms of sexual activity constitute a violation of a woman’s bodily integrity. The Sub-Committee also recommended changing the definition of molestation which, till recently, was defined as an assault or criminal force with intent to ‘outrage the modesty of a woman. The Sub-Committee pointed out that the words ‘outraging the modesty’ were outdated and reminiscent of Victorian morality with notions of chastity. The Sub-Committee recommended that molestation should be defined as touching for a sexual purpose. Similarly, the Sub-Committee recommended an amendment of Section 509 of the IPC which deals with ‘eve teasing’/sexual harassment and punishes words, sounds and gestures ‘intending to insult the modesty of any woman’. Past cases had shown how courts had misinterpreted consent to the sexual act if a woman remained passive during a rape in India and did not raise an alarm.

The Sub-Committee, therefore, suggested that consent should be defined to mean an unequivocal voluntary agreement to engage in the sexual activity in question and suggested other instances in which consent can be vitiated. It also suggested that marital rape in India should be included in the definition of rape in India. However, the Sub-Committee suggested a gender-neutral provision for penetrative sexual assault as it recommended the deletion of Section 377 of the Indian Penal Code which targets consensual sex and homosexuality. The gender-neutral provision was meant to apply to same-sex penetrative sexual assault.

Movements to change the laws relating to rape in India and sexual assault

As is well known, the first movement to change the laws relating to rape in India was initiated in the early 1980s after the Mathura rape case was decided by the Supreme Court. The case came into public view when four professors of Delhi University wrote a letter to the Chief Justice pointing out that it was shocking that the Supreme Court refused to believe that a poor village girl had been raped in the police station just because she did not have visible signs of injury and had not screamed and shouted. The women’s movement launched a massive protest and demanded changes in the law so that rape in India in custodial situations was recognised as a more aggravated form of the crime. Finally, in 1983, certain kinds of rape in India were recognised  as aggravated forms of rape. These were rape by a policeman in a police station, rape by a person on the management or staff of a jail or remand home or hospital in these places, rape by a public servant of a woman in his custody, gang rape, and the rape of a girl under 12 years of age. While the minimum punishment prescribed for rape was seven years of imprisonment, these aggravated forms prescribed a minimum of 10 years of imprisonment and a maximum of life. The Evidence Act was also changed to provide that if the fact of sexual intercourse had been proved in a case falling under this Section, and the woman stated that she had not consented to the act, it would be presumed that she did not consent. The 84th Law Commission had also suggested these and other changes in the law of procedure which were also demanded by the women’s movement at that time, including the recognition of marital rape. In 1993, the Sub-Committee suggested a further expansion of the categories of aggravated sexual assault to include sexual assault by a person in the armed forces, and sexual assault on a woman suffering from a mental or physical disability. It further suggested that if any person causes grievous bodily harm, maims or disfigures or endangers the life of a woman or child while committing a sexual assault, or if a person commits protracted or repeated sexual assaults on a woman or child, this should also be considered as an aggravated a form of the offence. It also recommended that if any person who was in a position of trust, authority, guardianship, or of economic or social dominance, committed a sexual assault on a person under such trust, authority or dominance, this should be considered as an aggravated form of the offence. Amongst the procedural changes that it recommended were some changes that the 84th Law Commission Report had already suggested. The Committee suggested that the statements made by victims of sexual assaults should only be recorded by a woman police officer or by a woman a social worker under the directions of the Station House Officer and, further, that a relative or friend of the victim should be present. It also reiterated the recommendation of the 84th Law Commission Report that Section 166A should be added to the IPC to punish a public servant who disobeys any direction of the law with one year of imprisonment. It suggested that, during the investigation, a minor and a woman should be allowed to be accompanied by a relative or friend, and that a police officer who refused to register an FIR should be punished with up to one year of imprisonment. A similar punishment was suggested by the Sub-Committee for a registered medical practitioner who refused to conduct a medical examination of a victim of sexual assault. The Committee recommended a change in the Indian Evidence Act that would put a stop to questions being posed to the victim about her previous sexual history, character and conduct, as this was a normal practice in rape trials; and if a woman had a past sexual history she was seen as someone who would, in all probability, have agreed to the sexual act. Another important recommendation was that a victim of sexual assault who was a minor should not be made to give evidence in the presence of the accused as this would certainly be traumatic for the victim. The Committee suggested that the manner in which such a victim’s cross-examination is carried out should not be hostile. It also suggested that the investigation and trial of a sexual offence should be time-bound and not take more than six months. This Report was submitted to the National Commission for Women. However, their expert committee on laws rejected the Report as they considered many of the suggested provisions inappropriate and unnecessary. The Report was also sent to various women’s groups for comment and discussion.

In the years that followed, changes and further additions were suggested to the 1993 Sub-Committee draft by national women’s organisations, women’s groups, feminist lawyers and other individuals working on the issue. One of the members of the Sub-Committee, who was a member of the Centre for Feminist Legal Research, suggested certain changes to delink the clause on sexual harassment from the Section on Sexual Assault, in addition to other amendments. Another member, who was associated with the NGO Sakshi, and had actively pursued a child-abuse case, filed a writ in the Supreme Court for a declaration that all forms of penetration would be included in the term ‘sexual intercourse’, as contained in the rape section of the Penal Code. However, the Supreme Court directed the Law Commission of India to consider the rape section in a manner that could be interpreted to plug existing loopholes, or otherwise to suggest an amendment to the law. The Law Commission decided to suggest amendments to the law concerning rape in India and members of Sakshi, IFSHA and the All India Democratic Women’s Association (AIDWA), which had also been members of the Sub-Committee, appeared before the Law Commission as representative organisations. Prior to this, they had submitted the draft of the Sub-Committee to the Law Commission. The Law Commission discussed the proposed amendments with these representative organisations and accepted many of the suggestions made by them, including the conceptual shift from rape in India to sexual assault. However, the recognition of marital rape in India and changes in the definition of molestation and sexual harassment were not agreed to by the Law Commission.

Subsequently, AIDWA redrafted some of the proposals in 2002, suggesting the separation of the clause on penetrative sexual assault from the clause on molestation and sexual harassment. It suggested the addition of stalking as a separate crime in the Indian Penal Code and included specific sections to deal with penetrative and non-penetrative sexual assaults on children. After several rounds of discussions with members of various women’s groups, AIDWA suggested that the definition of penetrative sexual assault should be gender-specific as far as adults were concerned and should be gender-neutral for children. Thus, it suggested that only a man could be a perpetrator while the complainant would be a woman. This was because there was a real apprehension expressed by all women’s groups that, under the earlier draft, men would file cases of sexual assault against women. The AIDWA draft was once more revised in 2005 and later in 2008. An important suggestion made to protect young persons involved in a consensual relationship was that consent should be a valid defence if the girl was between 16 and 18 years of age and the accused was not more than five years older. AIDWA’s work with cases of crime and killing in the name of honour had highlighted the fact that many cases of rape in India are routinely registered by members of the girl’s family if she was in a consensual relationship with a boy and, in many of these cases, the family claimed that the girl was a minor.

In 2005, the NCW adopted a draft similar to the one made by AIDWA and, after a series of consultations with several stake-holders, held a national convention in which it invited the minister of home, members of women’s groups and government representatives. Although, initially, the home minister agreed with the draft, the government did not change the law or procedure. AIDWA also continued to campaign for changes in the laws and procedures related to sexual assault and made several representations to successive law or home ministers along with other women’s organisations. It made representations to Ram Jethmalam, Arun Jaitely  H.R. Bharadwaj, Shivraj Patil, Veerapa Moily and Salman Khurshid. The letter to Veerapa Moily was written by national women’s organisations, including AIDWA, AIWC, CWDS, JWP, NFIW and YMCA, after the Ruchika molestation case in which the accused, a high-ranking police official, had only been awarded a sentence of one-and-a-half years as the law on molestation only prescribed a maximum sentence of two years. The letter written by AIDWA pointed out how Ruchika’s case had once again highlighted the need to amend the law relating to child sexual abuse. The letter, written in January 2010, also pointed out that both the law relating to child sexual abuse and sexual assault on women needed to be urgently modified. Finally, in 2010, the government first drafted a bill to address sexual offences against children. This was made into a separate comprehensive law in 2012 and contained many of the suggestions made to the government by women’s and child rights’ groups. The law, however, defined the child as a person under 18 years of age and kept the age of consent at 18, ignoring the fact that adolescent sexual activity is a reality and should not be criminalised, whether an adult agreed with this or not. This law thus lays down the age of statutory rape as 18 and allows for punishment of young boys or men even in consensual relationships with 10 years or more of imprisonment.

Another bill was also finally proposed in 2010 by the government to deal with adult rape in the Penal Code. The autonomous women’s groups and independent scholars and others discussed the provisions of this Bill in April and May 2010 and suggested certain amendments meant to recognise ‘the structural and graded nature of sexual violence’. They suggested that all forms of sexual violence against women should be in a comprehensive section, and that sexual violence on persons excepting women should be in a separate Section, 375B. Further, that no woman should be liable under these sections. An important suggestion made by the groups and individuals related to the sexual assault of women as part of sectarian violence. Other suggestions related to the command responsibility of a public servant and doing away with the prior sanction of the government in the case of sexual assault by a public servant. These groups also asked for certain procedures to be followed by the police during the investigation of a sexual assault of a minor, as also for doctors while conducting the medical examination of a child victim of sexual assault. National women’s groups also reiterated their demand for the recognition of sexual assault during communal and sectarian conflicts, and sexual assault by members of the armed and paramilitary forces as aggravated forms of sexual assault.

A number of measures to improve the safety and security of women in Delhi had also been suggested to the police by women’s organisations following cases of rape in India, murder and sexual assault in the past. The police was to map the city of Delhi and identify areas where women are most vulnerable to assault. Following this, an increased deployment of police patrolling in these areas was proposed, in addition to the improvement of lighting in streets and in public toilets. It was also decided that buses, taxis and other modes of transport with tinted glasses would not be allowed to ply and the police was supposed to enforce this rule. However, neither had police patrolling substantially improved, even in vulnerable areas nor had the police enforced the rule against using tinted glasses. The bus in which the gang rape took place had tinted glasses and had passed through several police check points even as the assault was taking place. In their Memorandum to the Police Commissioner after the gang rape, AIDWA and other national women’s organisations had demanded that the police should follow Standard Operating Procedures (SOPs) in all cases of sexual assault. These procedures would mandate the police to immediately register a case and send the complainant for medical examination, collect the evidence, including clothes at the spot, and carry out the investigation in a time-bound manner. The Memorandum also demands that the police should be punished for failure to follow this procedure. The Delhi High Court had in 2007 directed the police to put in place certain SOPs in all cases of sexual assault. In another case in 2007, the Delhi High Court had once more detailed the procedures that the police should follow in cases of sexual assault of minors to ensure that minors are medically examined within 24 hours; that they are treated with compassion and dignity and not called to, or detained in, a police station. Although the Delhi Police had issued certain Standing Orders, including Standing Order No. 303/2010 which lays down guidelines to be followed by the police in cases of rape, they had obviously not followed these.

Apart from this, in 2006, the Supreme Court in Prakash Singh’s case had directed the central government to carry out extensive police reforms to prevent political/executive interference in police work and to ensure their independence. The judgement had directed the constitution of a state security commission in every state to ensure that the state government does not exercise influence or apply pressure on the state police. This judgement had laid down rules for the selection of the Director General of Police and the Inspector General of Police and other officers, and a minimum tenure for all of them. It had directed that there should be a separation between the investigating police and the police force which would look after law and order as this would ensure speedier investigation and better expertise. It had also stated that a police complaint authority, headed by a District Judge, should be set up in every district to look into complaints against police officials up to the rank of DSP, while grievances against police officers of higher rank would be examined by a State-level Complaint Authority, headed by a retired judge of the High Court or the Supreme Court. Both these heads had to be chosen from a panel of names proposed by the Chief Justice of the State or Chief Justice of India, respectively. However, even these directions of the Supreme Court have not been followed by the various states.

The government, meanwhile, introduced the Criminal Law Amendment Bill, 2012, in Parliament which was again both limited and flawed. The Bill broadened the definition of rape to include within it all forms of penetrative sexual assault. It also replaced the word ‘rape’ with ‘sexual assault’ on demand by several women’s organisations and groups to emphasise that rape is a form of violence against women. The Bill, however, made the offence gender-neutral. As pointed out by AIDWA and others, this seemed to imply that women can commit sexual assaults against men for which there is no empirical evidence at all. It was pointed out that the section would, in fact, allow men to file false cases of penetrative sexual assault against women. Further, the Bill exempted marital rape in India from being recognised as an offence and merely increased the period of punishment in Section 354 (Molestation) from two to five years, with a minimum of one year, without changing the language. Women’s organisations and groups had also demanded that aggravated forms of non-penetrative sexual assault should be recognised in the law. The Guwahati molestation case, in which a 19-year-old girl was manhandled and groped by a gang of men outside a bar, again highlighted the fact that molestation by a gang is not seen as an aggravated form of the crime in our Penal Code.

After the Verma Committee Recommendations, the government once more brought in the 2013 Ordinance and followed it with an Act to amend the criminal laws relating to sexual assault. This Act, which incorporates many of the suggestions that have been made over the years, however, still does not recognise marital rape or extend the categories of aggravated sexual assault to molestation. It also defines the age of consent as 18 years.

The movement for the change of laws relating to rape in India and sexual assault involved several actors over a long period of time, acting together and separately. Some initiated the movement and did the work on the ground while others led a relentless campaign to change the laws. Finally, a gruesome incident ignited the passions of the masses which forced a reluctant government to hastily bring about change. However, the one constant actor was the women’s movement that still has to struggle to implement the laws.

The movement for change. The problem of sexual assault and rape in India.
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