REVISITING 2012: 9 YEARS OF NO CHANGE

This article has been authored by Sarthak Chaudhary, a first year law student at Dr Ram Manohar Lohiya National Law University , Lucknow.

The Nirbhaya case in 2012, revealed to us the face of insanity and horror. The abhorrent act defined and justified the misogyny, patriarchy and systematic prejudice that exist in our society. Since 2012 there have been several rape cases that have shocked the conscience of the nation. From a 8-year-old being raped in Kathua to dreaded rape cases in Unnao and Hyderabad, the numbers are rising. These cases are a chilling reminder of the abysmal conditions of law and order, lackadaisical judiciary, callous politicians and miserable policing in the world’s largest democracy.

‘Appeasing’ changes in Laws and Numbers.

According to National Crime Records Bureau , “Crime in India report-2019” 4,05,861 crimes against women were reported out of which 32,033 were rape cases. Reflecting a tremendous increase of 7.8% taking the statistics as high as 88 rape cases daily, which is more than 24 rapes since 2012. The conviction rate remains as low as 27.8%.

Constituted in 2013, the Justice Verma committee suggested some major changes, which came in form of an amendment in the criminal act, 2013. The changes include restructuring the definition of “rape” and amendments in Indian Penal Code, including Section 166A, 376(2), 376D. Other changes include section 154(1), section 164(5A), 197(1) of the Code of Criminal Procedure, and Section 53A, Section 144A and Section 146 of the Indian Evidence Act, 1872. Apart from this there were some other recommendations such as criminalizing marital rapes and police reforms which were not taken into consideration.

The Supreme Court also launched fast track courts to deal with rape cases in a speedy manner. Unfortunately, they too have proved futile in providing justice to rape victims. This has been justified through extremely low rate of conviction, delay in hearings and increasing cases.

Flouted Police Investigations.

With major lacunas in police investigation in rape cases, no significant police reforms have taken place. Even after landmark judgements such as Paramvir Singh vs. Balijit Singh & Ors and Prakash Singh v. Union of India in which Supreme Court directed a series of guidelines such as establishment of transfer boards to protect police from political influence (much can be said about Unnao and Hathras case ). No notable reforms have been implemented. Experienceshave reflected the fact that police investigation is often directed by the ‘character’ and the virginity of the victim. In most of the rape cases FIRs are not registered and upper castes are protected and provided a justification for the act, which is explicit through Hathras case where the girl was a Dalit and Kathua case of a tribal girl. It is pertinent and prudent to remind our public authorities of their duty and not to resort to some ‘extra-constitutional’ power.

In the case of Yick Wo v. Hopkins the US Supreme Court stated that “the law itself be fair on its face, and impartial in appearance, yet if it is applied and administered by a public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution”. Today, these words resonate and reflect with the investigation mechanisms of our public authorities.

Issues with Medical Examination.

Another problem confronting in seeking justice and proper investigation in rape cases is the medical examination of the victims. In 2014, the Ministry of Health and Family Welfare provided protocol and guidelines regarding medical examination of sexual assault victims. These guidelines included the prohibition of ‘two-finger test’ , limited vaginal examination and extrapolating the sexual history of the victim. In the case of, Rajesh & another v. State of Haryana the Supreme Court held that the ‘two-finger or virginity test’ is unconstitutional as it violates the rights of rape victims breaching their right to privacy and moral integrity. Disappointingly, unscientific methods are used and scandalous comments are made on victims during medical examinations.

Human rights watch in its report called ‘Dignity on trial’ noted that “the inhuman and degrading practice of two-finger test” is still in use and only in nine states these guidelines are followed, though their implementation is dubious and can be questioned. It is disconcerting and petrifying to note that medical practitioners are still using such methods.

The Bare Money of ‘Nirbhaya fund’.

The Nirbhaya fund was constituted in 2013 to fuel the initiatives for women security and rape victims. As of 2019, Rs 1,649 crore has been issued by central government out of which only Rs 147 crore has been used which only constitutes 9% of the total money. What is restricting state government to utilise this fund remains an enigma.

At a time when every 16 minute a girl was being raped , only 3,120 Sexual assault evidence collection kits were available throughout the nation. There cannot be any possible explanation for justifying the numbness and indolent behaviour of these governments. This fund could have been utlised in building infrastructure, funding policies, providing allowances and monetary benefits to rape vicitims but the fund remains ‘under-utilised’.

Witnessing the Judicial Misogyny.

The appalling condition of women rights in India has not restrained Indian courts from giving chauvinistic, stereotypical and misogynistic judgments, the same can be reflected through Tarun tejpal judgment where the judge questioned the ‘post-rape behaviour’ of the victim. In the case of Rakesh B vs. State of Karnataka, Justice KS Dixit gave some trite remarks and called the victim “Unbecoming of an Indian Women”.

In several other cases such as The State of Punjab v Gurmit Singh & Ors , Mahmood Farooqi v. State (NCT of Delhi)(In this case court said ‘A feeble no means yes’) and Musauddin Ahmed vs State of Assam, courts have reflected extremely chauvinistic and perplexing remarks about victims . These judgements say much about Indian society and justify the statistics regarding crime against women in India.

Concluding the ‘Inconclusive’.

What would be the number that is finally going to be a wakeup call for us to make the country safer for women or have we made peace with the half-baked stories of fake encounters of the very few cases that are given their due attention on primetime news programmes.

It is extremely disheartening to witness the current ambiance of nation regarding women safety. Nirbhaya in 2012 was a reminder, but it fell to the deaf ears of our country. No change in the outlook of our society has proved that India is unconscious today just like it was on night of 16th December, 2012. It is important for our nation to not wane the memories of 2012, Unnao and Hyderabad.