When a country fails to protect its women

Aditi Tandon in New Delhi

The gruesome Hyderabad gangrape and murder case ended most unexpectedly this Friday with the Telangana police killing all four suspects in an encounter. A wave of celebrations swept the nation as people rejoiced in what they saw as instant justice in a case that would have dragged for years in normal course. Within days of the crime, the same Telangana police that had refused to register an FIR went on to become heroes as the locals showered them with petals and distributed sweets to rejoice the act of retribution. Some politicians were quick to endorse the cops.

“I advise Uttar Pradesh police to take lessons from their Telangana counterparts,” said Mayawati, former Chief Minister of UP, where a 23-year-old rape victim was set ablaze by her perpetrators this week, leading to her tragic death. Even the few vocal critics of the Telangana template concede there are reasons why national patience is running out. They warn the criminal justice system against displaying any further laxity.

Seven years since the horrific 2012 Nirbhaya gang rape, convicts are yet to hang despite the apex court rejecting their appeals. One has sought mercy of the President, the last available recourse under Indian law. This week President Ram Nath Kovind asked the government to reconsider the need for mercy petitions in cases of sexual crimes against children. Experts could not agree more.

“When competent courts have adjudicated the matter, why should we need mercy petitions? Too often these petitions have taken years to be disposed of, delaying the already slow cycle of justice. Dilatory procedures of the law are taking their toll. It is time the government categorised high priority crimes and mandated justice within a year by providing the systems needed to dispense such justice,” says former UP DGP Prakash Singh, whose landmark report on police reforms continues to gather dust.

Wither policing

Everyone dealing with crime against women acknowledges lack of efficient policing as the main reason behind the breakdown of public trust in the system. Shoddy investigation, weak justice system with inadequate judges, near absent victim-friendly procedures and negative stereotypes against women continue to exacerbate the situation. Activists ask if stringent sentences under the law can guarantee FIRs? Despite the concept of zero FIRs being introduced after the 2012 case, the police continue to refuse booking cases citing jurisdiction issues. In the Telangana case, the victim’s father was tossed around police stations on jurisdiction matter and cops refused to even trace the victim’s phone’s last location. “They kept saying she must have eloped with someone and will return. That is the standard police response when a girl goes missing. Crucial moments are lost,” says the victim’s father.

Madhu Mehra, who has researched sexual crimes extensively, says cops routinely exhibit zero desire to investigate a crime unless there’s national hysteria. “We have seen this since the Nithari days. If the victim is someone we can relate to — like in the 2012 Delhi case or Telangana case — we will outrage and get some response. If the victim is poor, nothing will move. Police will exhaust her, and she will mostly give up and leave. Today we can fete the Telangana police for killing the suspects but tomorrow we will have to ask why this same force refused to lodge an FIR in the first place? We need to ask ourselves if encounters be the norm in a rule of law?” she says.

Multiple challenges of system failure explain the trend of rising crimes against women. A little discussed aspect of the Telangana case is that the government hospital on Hyderabad outskirts had not provided safe transport to the veterinarian, who had a flat tire and got killed.

“Why can’t managements ensure safety of women workers?” says Kuljit Kaur of the All-India Women’s Conference, which had two years ago recommended to the government that bail in cases of heinous crimes should never be allowed.

Series of unfortunate events

The Unnao victim may have been alive had her perpetrators not been out on bail. The 2013 criminal law amendment not only raised punishments to death penalty but also made the crime cognizable and non-bailable. Yet the rape accused continue to secure bail. “How were the Unnao accused out on bail? This means the police did not contest the bail plea nor did they tell the court the damage the accused were capable of doing to the victim and the case. Every acquittal report must come with a price for the cop. The IPC was amended in 2013 and a new Section 166 A added, which provides for six months to two years jail for a cop who declines to register an FIR. Have any punishments been handed down under this provision? No,” says former UP top cop Vikram Singh.

Attributing brutal crimes to the cult of masculinity, Singh says the law gives enough teeth to cops but no one helps a cop who has decided to put his fangs away. As someone who has interrogated several rapists in his career, Singh advocates chemical castration as a deterrent. He says, “Rapists fear castration more than death. Sixteen countries have chemical castration on their statutes. We should consider it.”

Since patience is running out

On calls for vigilante justice in matters of rape — such as public flogging and lynching as some MPs have advocated and now encounter killings of suspects — senior legal experts sound a word of caution though.

“The extra-judicial killing of the four men in Hyderabad is unacceptable. Public outrage is legitimate but the state cannot respond by carrying out such killings. The logic behind giving the state and the police more power under the law is that they have what they need to translate emotion into justice through fair trial. Encounters have always been used to manipulate public discourse. The state first creates panic, and then uses encounters to claim it is keeping people safe. In Telangana, too, it appears that an encounter has been staged to distract the public from holding the state accountable for failing to prevent violence against women. The state can’t mislead people into believing that this is going to make women safer or act as deterrence,” says SC lawyer Vrinda Grover.

Behavioural scientists also warn against taking the law into one’s hands but note that calls for vigilante justice in times of unabated violence against women are scientifically understandable.

“Obviously sexual assaults are rising and brutality is becoming worse. At the same time, justice delivery system is causing all round frustration. When you see the two trends together, you conclude that for people to watch vigilante justice with glee is only natural when the issue at hand is as sensitive as women’s safety. From the behavioural science perspective, calls for mob lynching are understandable. But one hopes better sense will ultimately prevail to not get swayed by collective national emotion and to have the rationality to examine whether this is the right direction for society to take. Right now the voices of rationality seem feeble,” says leading psychiatrist Nimesh Desai, Director, Institute of Behavioural Health and Sciences, Delhi.

Desai attributes rising trends of sexual depravity to the combined influence of mass media and the cult of masculinity.

“The perpetrators present a mix of overall sexual frustration, influence of mass media and pornography. Underlying all this is the gender stereotype issue. The Carl Jung theory of collective cultural unconscious comes into play. Jung spoke of how most cultures have a collective unconscious driven by notions of masculinity and subjugation of women. These two elements sit at the heart of all violence against women,” explains Desai.

Bottom line: A change of mindset is critical to halt this culture of rape, and it must start from every home.

CRIME AGAINST WOMEN

• Total number of crimes against women remained almost stagnant at 3.39 lakh in 2014, 3.29 lakh in 2015 and 3.38 lakh in 2016.
• Proportion of rapes in total crimes against women hovered between 10 and 11.5 per cent of all crimes against women through 2014 to 2016.
• Registered rape cases rose after the Nirbhaya case: 23,459 in 2012; 33,707 in 2013; 38,947 in 2016 and 32,559 in 2017.
• Experts attribute the rising number of cases to better reporting and awareness.
• In more than 90 per cent of all rape cases, the perpetrators were known to the victims.
• The highest number of registered rape cases are reported from Uttar Pradesh, Madhya Pradesh, and Maharashtra.

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AGE OF SEXUAL CONSENT

Age of sexual consent in India was 10 years at the time of enactment of the IPC in 1860. It moved up to 12 years in 1891, 14 years in 1925, 16 years in 1940 and 18 years with the enactment of the Protection of Children from Sexual Offences Act 2012. The IPC adopted this increase in 2013. The age of sexual consent in India is now on a par with the minimum age of marriage for girls — 18 years.

CURRENT PUNISHMENTS

Rape: Section 376 (1) IPC: Defined as non-consensual penetration of a woman’s vagina, mouth, urethra or anus with a penis or other body parts or objects. Rigorous imprisonment for seven years up to life plus fine on first offence and RI for life, plus fine or death on subsequent offence.

Aggravated rape  (Section 376 (2) IPC): Custodial rape or rape by people in positions of power and authority over a victim such as by a teacher, a prison warden, a cop or a guardian is punishable with RI for 10 years up to life without parole plus fine on first offence and RI for life plus fine or death on second offence.

Gang rape (Section 376D IPC): Punishable with RI for 20 years without parole on first offence and rigorous imprisonment for life or death for subsequent offence; fine amount to be given to victim.

Rape resulting in death  of victim of her vegetative state: First offence punishable with RI for 20 years without parole and fine or death and later offence with RI for life plus fine or death.

Exception to rape: Marital rape is not recognised under the Indian law. Exception to rape definition states that consent is irrelevant for sexual intercourse by a husband with his wife if the wife is above 15 years of age.