High Time for Some 'Nirbhaya' Steps!

Justice Arijit Pasayat, retired Supreme Court judge, had in the case of State of Karnataka v. Raju (2007) observed that “While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.” How true! Although the victim lives, her life is destroyed and she may be unable to lead a normal life due to the physical injuries, mental trauma and social stigma.

Unfortunately the 23 year old New Delhi girl succumbed to brutal injuries a few days ago after battling for her life for over 12 days. The media had showered adjectives like ‘fighter’, ‘spirited’, ‘brave’, ‘courageous’, etc. on her and christened her ‘Nirbhaya’ (i.e. fearless) to keep her identity a secret, but she went down fighting, completely unaware of all this. The praise did precious little to offer any solace or help to her or her grieving family. Plain and simple, she is a victim of a gruesome crime and died for no reason whatsoever.

LEGAL PROVISIONS AND SYSTEM:

As per the Indian Penal Code, 1860 (IPC), maximum punishment for rape is seven years (ten years for gang rape). But the level of conviction is very low and the cases drag for a long time during which the victim and her family are slowly but surely driven to frustration and they lose interest to fight the case as it constantly reminds them of something they are trying hard to forget. In many cases rape is either not reported at all or not reported in time and hence, no medical evidence is available to establish the rape and the culprits get away scot free or with lighter punishment. The cross examination by lawyers keeps opening the mental scars and at times, makes the girl and her family think whether they made a mistake in reporting the rape? So historical facts and experience suggest the punishment has ceased to be a deterrent for such a serious crime.

In 2006, the Supreme Court had directed that the definition of ‘rape’ under the IPC be widened by including other offences against women e.g. eve teasing, molestation, physical, sexual or mental harassment, etc. and make the punishment more strict. Despite this, for over six years the ambit of the term ‘rape’ was never reviewed to include other comparatively less serious – but more rampant – offences against women, even in the light of changes in social behaviour over the last few decades. Finally, on December 23, 2012 the Government constituted a Committee headed by Justice J. S. Verma, former Chief Justice of India, to review and examine the laws to protect the safety and dignity of women. Yet another instance of the Government doing too little, too late.

SOCIAL SYSTEM:

Shockingly, in India the social stigma associated with being raped is so deeply entrenched that many instances of rapes are never reported. This stigma manifests itself in many forms like complete neglect / boycott of the victim and her family by neighbours/ relatives and even blaming the victim for the incident. There are instances of the victim’s family disowning her due to social pressure or because they too held her responsible for the rape!

Of late, there are many regressive views expressed suggesting that the victims are also partly responsible for it. Sample this... “Such dresses are a provocation to men and an invitation to trouble.” OR “She shouldn’t be staying out late alone / with friends.” Utter rubbish! Why are all questions asked to the females and none to the males? It is shocking that some of these statements were recently made by senior IPS officers, when asked how crimes against women can be curbed! No female deserves or asks to be raped or sexually assaulted. Rape or sexual assault is a pre-meditated act of abuse of power and can have no excuse whatsoever and doesn’t deserve any mercy. If a good looking man walks on the street wearing only half the clothes he usually wears, what is the probability that a woman or a group of women would take him to a remote location and rape him?

WHY?: PSYCHOLOGY OF A RAPIST:

One wonders what goes on in a man’s mind that makes him commit such a ghastly crime, because no man of sound mind would ever think of that. Does he not know that his pleasure is against the woman’s will, at the cost of her dignity, is short lived and that if caught, he faces a trial and punishment? Is there no fear of the law or he thinks he won’t be caught? Doesn’t he realise his life and career can be finished? Is there absolutely no element of guilt? Is there no fear of the disgrace his family will face when it all surfaces?

So it follows that there is something seriously wrong in the rapist’s mind – either deep rooted or momentary – for him to ignore all possible consequences of his actions. Either he has a disturbed mindset or he is under influence of alcohol, drugs or even unbridled power. Another mindset is of dominance or misplaced aggression which manifests in the use of brute force, violence, coercion or deceit over another person to get what he wants. Some unhappy past history involving wife, girl friend, mother or a close female relative may also lead to a man to resort to rape as an outlet for his anger, with or without provocation. Whatever the reason, unless a man is a certified lunatic, he possesses the ability to differentiate between the right and the wrong and by committing a rape or sexual assault, he willingly makes the choice of the wrong and does not deserve any mercy.

PUBLIC SENTIMENTS AND OUTCRY:

Over the last fortnight, the nation witnessed unprecedented outrage and protests following the gruesome gang rape. Many news channels had women’s rights activists, intellectuals, former cops, eminent citizens and of course, politicians debating on causes of such crimes and measures to curb them. While the politicians indulged in the usual mudslinging on opponents, rhetoric and promises, the other participants were forthright and vocal in expressing their views. There are loud and clear calls for amendment to laws to cover other crimes against women, quicker trials, fair processes, stringent punishment, etc.

The public is equally critical of the Government for waking up only after the massive public outrage following the New Delhi gang rape. People seem to ask why does the Government always drag its feet on critical social issues and act only after the damage is done? Where do the Government’s priorities lie? Why can’t it show the same speed in amendment of laws relating to crimes against women like what they showed in matters of increasing salaries of MPs, FDI in retail, insurance, etc? Is it only a women's problem? Are male MPs not man enough to pass such laws?

WAY FORWARD:

Experts and intellectuals feel that while laws must be amended, social reforms and transformation is the only long lasting solution for the malaise of crimes against women. True, but being a perfect solution, it will take a long time and more lives could be lost or destroyed while in its pursuit. So the need of the hour is two-fold (i) to instill a fear of breaking the law in people’s minds by convincing them that the punishment will be INEVITABLE and SEVERE; and (ii) offering comfort and solace to victims and their families by making the legal process more humane. Some suggestions: 

(i)      Make such serious offences non-bailable, whether during the investigation stage, during the trial or in the course of an appeal by the accused challenging a lower court’s order.

(ii)     Rather than making the victim visit the police station to lodge an FIR, a female police officer should record her statement at her house in the presence of her parents and a female social worker. Don’t we call a doctor for a home visit when the patient is unable to visit the clinic?

(iii)    Have day-to-day hearings in fast track courts, complete the trials within 60 days and hold judges responsible for failure to ensure that. The hearings should be held ‘in-camera’ i.e. no one but the victim and her family, the accused, lawyers, witnesses, judge and court staff should be present.

(iv)     Judges should rein in lawyers who ask uncomfortable questions to the victim. It should be enough to prove whether the crime was committed by the accused or not, minute details should be redundant.

(v)      The punishment should be made certain and severe. The law should provide for castration of the rapist and his accomplices without any exception, in addition to rigorous imprisonment. We can adopt the sophisticated option of ‘chemical castration’ which is equally effective. Capital punishment should be imposed in case of death of the victim. For once, human rights activists can be completely ignored.

(vi)     If the victim is alive, the castrated rapist should live to tell his sorry tale. The ‘name and shame’ approach suggested by some will ensure that people known to the rapist and his family will know about the crime committed by him, the punishment meted out and his consequent lifelong ‘inabilities’.

CONCLUSION:

Any point is best conveyed with the help of an example. So the best way of driving home the point is to ensure a quick trial and a quicker punishment in the case of Nirbhaya and clearance of backlog of other long pending cases. The task is daunting, but so is the menace of crime against women. Desperate situations need desperate measures to be taken without fear or favour. If the Government manages to accomplish this within a couple of months, there cannot be a better gift on Women's Day on March 8, 2013.