Jan 28, 2023
Jan 28, 2023
Crime against the women and children is a worldwide serious malady, more demonic and barbaric ones being the rape and violence leading to murder of the innocent victims. Though statistically, India is listed towards bottom among the countries with percentage and incidents of such crimes per lakh people but this hardly offers any viable comfort or satisfaction for the simple reason that even one such crime against woman or child is unacceptable. Although such multiple crimes occur daily in various parts of the country, few such cases of extreme brutality and barbarism involving rape and murder such as the one of an eight years old girl at Kathua, Jammu in 2018 and, more recently, another of a young veterinary doctor in Shadnagar, Hyderabad on 27 November 2019 have invited global attention, and public outrage and protests in India. The subsequent public reactions and developments in both the cases have been of extraordinary nature.
Though the definition of rape varies from country to country, ordinarily, the rape is defined to force someone to have sex especially with a woman or girl when they are unwilling, using violence or threatening conduct. By this simple definition itself, the act is of the nature of a heinous crime particularly against the woman or girl. Section 375 of the Indian Penal Code defines rape as sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age. Every rape outrages woman's modesty and she often lives a disgraceful and pathetic life after the incident under constant fear, depression, guilt complex, suicidal thoughts and such other social stigma and stress. As the Indian law prohibits revelation of the identity of rape victims, real names have been avoided in a few cases mentioned in this article.
Two Barbaric Incidents
In January 2018, one eight years old minor girl of the nomad Bakarwal community in India’s northern state Jammu & Kashmir (now a Union Territory) was found missing and after six days her dead body was recovered from woods near her village. The postmortem revealed signs of possible rape and death by strangulation and crushed by a heavy stone. The initial investigation by the local police was mired with controversy; later investigation by a special investigation team (SIT) constituted under the direction of the then Chief Minister gave a communal color to the entire episode and the case invited wide national and international adverse publicity to the nation by the interested groups among politicians, media and civil society. The verdict of trial court revealed that the investigation by SIT too was not entirely fair and free from bias. Evidence revealed that they had falsely implicated the student son of the main convict. Currently, the appeals of six convicts against various punishments including life imprisonment are under consideration of the relevant High Court and another court has ordered FIR against the members of the SIT for the alleged torture and coercion of witnesses to force false statements.
The other case relates to gruesome abduction, rape and murder of the 26-years old young woman veterinary doctor nicknamed "Disha" (real identity not revealed) in Hyderabad whose partially burnt dead body was disposed of by the criminals under Chatanpalli bridge of Shadnagar locality. The horrifying incident occurred in the night on 27 November 2019 wherein she was gang-raped, smothered and then burnt by four men including a mastermind truck driver and three cleaners. All the four accused were identified and nabbed by the police in the next two days. The heinous crime incident invited nationwide protests and outrage expressing deep concern about the growing incidents and failure of the government and civil society in ensuring the safety and security of women. A few days later all the four accused were shot down by the police reportedly when some of them snatched the service weapons of police personnel and attacked the police party in a bid to escape while they were taken to the crime scene during the course of investigation. The episode raised serious moral and legal issues on the methodology of police to deal with crime.
Post-Nirbhaya case (2012) Developments
Although incidents of crimes in the society are of recurring nature but at times some episodes prove to be watershed in the crime history such as the Delhi gang rape and murder in December 2012, which is widely known as “Nirbhaya Case”. The case involved gang rape and fatal assault on a twenty-three years old physiotherapist intern (nicknamed Nirbhaya) in a private bus on 16th December 2012 by six men including a juvenile at late evening in South Delhi while she was accompanied with a male friend. These offenders included the bus driver and his accomplices. As a result of the life-threatening fatal assault and consequent damage to internal vital organs of the victim, her life could not be saved as she succumbed to her injuries after thirteen days despite best medical treatment in Delhi and later airlifted to Singapore for specialized treatment.
Immediately after assault-rape and following her death, protests were staged countrywide including major cities in India. At several places, the mourners took out candle march and wore black dress, black bands across their mouths and called for legal reforms as also an overhaul of attitudes towards women. Similar protest march and rallies were held in the neighbourly countries of South Asia, including Nepal, Sri Lanka, Pakistan and Bangladesh. Later one of the accused committed suicide in jail during the trial; the juvenile, reportedly most brutal among culprits, was separately tried in a juvenile court. In September 2013, the fast track trial court upheld the charges of rape, murder, unnatural offences and destruction of evidence against the remaining four culprits, and all of them were awarded death penalty. The Delhi High Court heard their appeal and retained their death sentence. Finally, the Supreme Court too rejected convicts’ appeal in May 2017 and confirmed their death sentence with observation that they had committed "a barbaric crime" that had "shaken society's conscience; then, finally, their review petition was also dismissed by the Supreme Court on 9 July 2018.
On the other hand, following the nationwide protests, a judicial committee under the former Chief Justice of India, JS Verma was set up by the government of India to study and take public opinion to recommend the best ways to amend criminal laws to ensure quicker investigation and prosecution of sex offenders. Consequently, the Criminal Law (Amendment) Ordinance, 2013 was promulgated in February 2013 by the then President on the advice of the federal government; it provides for amendment of the Indian Penal Code, Indian Evidence Act and Code of Criminal Procedure, 1973, on laws related to sexual offences; thus several new laws were passed including the provision of death penalty in rape cases in certain conditions and six new fast-track courts were created to handle rape cases. The Parliament also passed the Juvenile Justice Bill in December 2015, under which an accused above 16 years of age will now be tried as an adult in the court of law. The Government also set up the “Nirbhaya Fund” under aegis of the Finance Ministry to address women's safety against violent crimes. Now after Kathua case, the death sentence has been mandated for the rapists of girls under 12 years and minimum 20 years or life imprisonment in cases of rape victim below 16 years of age.
Notwithstanding these developments, both common man and critics equally agree and argue that the legal system remains slow to process and prosecute rape accused denying timely justice to the victim and her family. Yet another dimension has been added in this category of crime; after making rape punishable to death by law, the cases of killing of the victim after rape have increased, which the culprits resort to escape harsh punishment on getting identified. After the aforesaid rape and murder case of Hyderabad, another rape victim was burnt alive in the district Unnav, Uttar Pradesh on the following day by five men of rapist’s family, reportedly when she refused to take back her complaint. Thus Measures taken so far have neither been able to ensure greater safety and security to women and children nor prompt justice to victims through fast disposal of such cases. This is evident from the high profile Nirbhaya case itself where the legal battle in the courts took six long years and despite the final Supreme Court judgment in July 2018 upholding convicts’ death penalty, offenders are still awaiting their nemesis in December 2019.
Fake Encounter or Natural Justice
Following the news of the encounter death of four suspects of the rape and murder of the young doctor of Hyderabad came on the private media channels of the country on 7 December 2019, electronic and print media was flooded with different blogs and narratives. The reaction and response of common man, civil society and intellectuals/liberals could be categorized under two broad heads:
Quite obviously, either of the two narratives does not stand a judicious rational and logical scrutiny. The joy and celebration of the common man reflects their frustration and disillusionment with the existing system including judiciary that repeatedly fails to provide safely, security and justice in time to the victim and aggrieved families in time. The Nirbhaya Case was expected to be a paradigm shift in the approach of handling such cases with so many administrative and legal reforms made on the subject; a fast track court handled her case, police and prosecution were prompt and efficient yet the judicial process has not finally concluded even after six years of the initial verdict of the trial court.
The police version of the incident endorsed by the Telangana state government suggests that, in a desperate bid to escape, the accused persons snatched two firearms, fired and attacked on the police party with sticks and stones injuring two of them; thereby forcing the police to open fire in self-defence leading to their death. In such case, none should jump to any conclusion because the truth can be revealed only after an impartial enquiry. Being an ex-Supercop does not suo moto grants any privilege or right to be judgmental in case for the likes of Ribeiro, more so when the National Human Rights Commission (NHRC) and the Supreme Court of the country is already engaged with the case.
This rape and murder case is different from many other similar cases for the following two reasons:
Almost simultaneously, the NHRC took suo moto cognizance of the incident and apart from seeking an explanation from the Telangana government, the commission also sent a team to the site of the alleged encounter to probe into incident. Public interest litigations (PIL) were also filed in the High Court and Supreme Court to investigate into the truth of the alleged encounter. In such scenario, it seems grossly unfair on the part of Julio Ribeiro and such other liberals and human rights "torch bearers" to pre-empt it by being judgmental in floating an imagined narrative. Incidentally, it is often experienced that a section of media and civil society comprising of the self-proclaimed liberals and intellectuals traditionally react to such events only when the victim(s) belongs to particular minority community or when they find it convenient to question the present political dispensation in the country. While the brutal rape and murder of young veterinary doctor has shaken the conscience of the entire nation and sympathies of common people poured to the aggrieved family, similar condemnation of the barbaric incident or sympathies to the victim’s family from the aforesaid liberals and intellectuals is found conspicuously missing.
Both the incidents i.e. the barbaric act of rape and murder of the young doctor and encounter killing of four suspects is tragic and bad but if an analogy is derived or the two are taken together on merit, the former is indeed worse and deserves more serious consideration and attention, while evil-doers of the heinous crimes like rape and murder deserve no such sympathy or consideration in the civilized society. Notwithstanding the delay in delivery of justice in “Nirbhaya” and numerous other cases, and the death of accused men in the instant case in police encounter, such killings cannot be justified as “Natural Justice” in a civilized society and nation. Acting on two PILs, the Supreme Court has decided to constitute a three-member judicial commission headed by a former Supreme Court judge, which would be required to conduct an impartial inquiry into the alleged encounter of the four men accused in the gang-rape and murder of the veterinary doctor. The commission will have an office in Hyderabad with full establishment support of the Telangana state government and submit its report in six months, which will inter alia reveal if it was a fake encounter or otherwise.
Global Trend of Rape Crime against Women
Rape is a worldwide problem and an unlawful sexual activity typically involving sexual intercourse forcibly or under threat of injury to the victim. According to an approximate estimate, globally about 35% of women have experienced some form of sexual harassment in their lifetime. Trend in the majority countries suggest that less than 40% of women victims seek any help and less than 10% actually seek assistance from the law enforcement agencies. For these reasons, the precise data on sexual violence seldom come and data reported at best suggest a trend of the kind of sexual assault or violence in any country. While majority countries have laws against the act of sexual assault and violence, but in most cases these laws are insufficient, inconsistent and not systematically enforced or implemented. The ten countries with the highest rates of rape incidents per one lakh citizens in the same order are: South Africa (132.4), Botswana (92.9), Lesotho (82.7), Swaziland (77.5), Bermuda (67.3), Sweden (63.5), Suriname (45.2), Costa Rica (36.7), Nicaragua (31.6) and Grenada (30.6).
It has often been observed that any contentious or negative development in India is disproportionately highlighted and/or even a distorted version is publicized by the leading international media and press such as “The New York Times, Washington Post, BBC, Al Jazeera Media Network, and so on”, in the garb liberalism and freedom of expression. This case was not an exception as many of them were prompt to publish Hyderabad rape and murder and subsequent police encounter deaths in their own exaggerated way. This author made a fast check on data regarding crime against the women across the world as available in the public domain. However, for the sake of brevity, only the position of UK, USA and some Islamic countries vis-à-vis India is being considered here. During 2016, the estimated population of the UK, USA and India was 65.6, 323.4 and 1324.2 million and the corresponding official rape figures were approximately 35,798, 95,730 and 38,947, respectively. Even a cursory look at the data reveals that the incidence of rape crime against the women in USA (27.3) and UK (17.0) is many times high compared to India. By and large, similar position exists for the Western countries like France, Germany and scandinavian countries. In terms of the relative gravity of crime in the respective countries, the criteria of incidence per hundred thousand population appears reasonable and India ranks 94th country (1.8) in that hierarchy.
Due to the very socio-political set up of the Communist and Islamic countries, it is very difficult to get precise data or even a reliable sample from this bloc to arrive at a reasonable estimate or concrete conclusion. However, available data in respect of Russia and China suggest that the rate of such crimes is fairly high but lesser than many Western countries. As such women do not enjoy equal status and freedom in most Islamic countries with many social and religious restrictions and such crimes are not properly recorded and accounted for. For instance, in Libya the victims of rape are often deemed as having 'dishonoured' their families and communities, and may face serious violence including honour killing. Rape in Pakistan has been notable as a tool for suppressing women in the country; 30-year-old Mukhtaran Bibi was gang-raped on the orders of the village council as an "honor rape" after allegations that her 12-year-old brother had had sexual relations with a woman from a higher caste. A massive child molestation crime was reported in 2015 wherein about 280 underage children mostly below 14 years were raped and filmed. Sexual abuse of child workers in Northern Pakistan and children in orphanages is rampant. In Qatar, women who report rape or sexual violence risk being charged with "illicit relations". Child marriages and forced marriages remain widespread in Yemen with frequent domestic violence. Saudi Arabia has no penal code and written law criminalizing rape or its punishment. The rape victims are known to have been punished with a term in prison and flogging for speaking out against the crime. The sentences for rape cases are also extremely unbalanced from prison and flogging to beheading. Rape victims in Afghanistan face double risk of becoming victims of honour killings by their families and harassed by the laws of the country with the charge of adultery, punishable by death.
Several instances of rape crime against the women remain unreported in India due to social taboos. However, similar study of 2013 revealed that rape may be grossly under-reported in the United States too. Another study in 2014 suggested that police departments in the United States eliminate or undercount rapes from official records in part to create the illusion of success in fighting the violent crime. Almost similar position exists in the United Kingdom and most other countries. The condition of women in many Islamic countries is not even properly reported or accounted for. This position is highlighted here not to prove “I am better than thou”, instead, simply to put a mirror before the international media and press, as also UN organizations dominated by West representation, which unreasonably try to defame other nationalities and civilizations by erroneous and exaggerated reporting rather than focusing in their own region or country. As for the sexual assault and violence against women and children is concerned, even one such incidence is horrific and unacceptable in any part, enough to shake conscience of the entire mankind.
Measures for Efficient Delivery of Justice
A lot has been discussed and written on the motives of rapist and types of rape; emotional, psychological and physical attributes of potential rapists and its impact on the victims; reaction and response of family and society towards the rape victim in different civilizations and nationalities; secondary victimization, persecution and maltreatment of the victim; honour killing and forced marriage with the perpetrator in some communities; post-rape trauma and stress disorders; psychological and physical diagnostic and treatment of the rape victim, including genital and non-genital injuries and infections; emotional and psychiatric consequences in short and long terms; prevention, reporting , prosecution and conviction; rape definition and evolution of commensurate laws in different countries; and even false accusation, reporting and implication, and so on. Numerous books, reports, articles and blogs as well statistical data to this effect is readily available in public domain.
Incidents cited in the beginning have not only shaken the conscience of people but also have triggered debate on the role of law enforcing agencies, mainly police, in tackling such crimes. People in Delhi and elsewhere are angry and agitated that the convicts in Nirbhaya Case are yet to be punished after six years of the judgment by the fast track trial court. This anger and frustration is cumulative against the government, police and judiciary, whose slackness and indifference is largely responsible for this situation. It is this anger and frustration of the society that the common man is offbeat in celebrating death of four suspects in the Hyderabad rape and murder case at the hands of police. Many of them have called it a “instant natural justice” and have openly given a call upon the police to inflict similar treatment to the accused/convicts in other cases too in various parts of the country.
For the moment, emotionally charged public is welcoming the Telangana police as “heroes” in the aforesaid encounter; otherwise numerous instances can be quoted where police have actually mishandled crime incidents even falsely implicating innocent people. For instance, in the famous Kathua Rape Murder case of 2018, a case has now been registered against all members of SIT for intimidation and coercion of witnesses to give false evidence against accused, one innocent person has already been absolved of all charges. In yet another case of murder of a child in Ryan School of Delhi some time back, the Delhi police arrested the bus conductor and made him to confess as murderer; later, when the CBI investigated the crime, it was revealed that the police had tortured the conductor and forced him to confess while the real culprit was another student of eleventh standard from the same school.
Attempt of some people to address the fateful event of Hyderabad as a quick and correct trend setter for the natural justice is utterly erroneous and flawed. The very suggestion of allowing police to take law into own hands for the sake of ‘natural justice’ is not only flawed but also fraught with the risk of disastrous consequences including jeopardizing life of innocent people in some cases. Besides, we will come to know whether the action of the Telangana police in the aforesaid encounter was spontaneous or preconceived after investigation by the judicial commission appointed by the Supreme Court in due course but the impact of such action can be best illustrated with the infamous criminal, extortionist and alleged terrorist Sohrabuddin Shaikh encounter case of 2005 in Gujarat, in which several politicians, including present Home Minister of India, bureaucrats and police officers were implicated…and the case is still haunting many of them.
The only available option for the quick and correct delivery of justice to the victims could be sincere and systematic efforts to strengthen and streamline police, prosecution and judiciary of the country commensurate with the need of times. To look at the system in totality in respect of law enforcing agencies, particularly police, a lot of improvements has taken place in the recent years in their approach, education, training, professional expertise, equipment and weaponry, filing of FIR, follow up of registered cases, and overall efficiency. The relevant laws and rules have been modified with new provisions, where necessary. However, measures taken so for appear still inadequate and, clearly, the respective state and central governments have to go a long way to establish the requisite standards. At the same time, the elements of subjectivity in police and instances of mishandling of some high profile or much publicized cases should not constitute a basis for criticism and condemnation of police. Such improvements are part of ongoing reforms subject to available resources and constraints. This is an ongoing process but concerted efforts and investment would certainly accelerate the pace of reforms and improvement.
Of course, Judiciary in India continues to be main cause of concern in terms of accountability and reach of justice to the common man. Instances are not uncommon when influential people or groups have approached apex judiciary at mid-night to hear the pleas supporting condemned criminals or terrorists while cases like Nirbhaya are lingering on for years together for want of justice. In the past, even some retired judges have complained about the widespread innuendos of institutionalized groupism, favourism, nepotism and ego clashes in the judiciary. The Collegium system of judges’ selection and appointment has often been criticized even from within the judiciary for the lack of transparency and arbitrariness. The National Judicial Appointments Commission (NJAC) Act passed by the Parliament in 2005 to replace the Collegium System was struck down by the Supreme Court through a Constitutional bench citing that it violated judicial independence. The revised procedure does not leave much leverage on the part of government which means the initiatives for improvement in the judicial process to improve efficiency in delivery of justice has to come from within the Judiciary itself. A judicious manpower augmentation with minimum holidays/closure of courts might make some dent.
Looking objectively at the watershed Nirbhaya to Disha case in November 2019, if anything has really changed! Obvious answer that we get is that except for making laws more stringent and some cosmetic measures like few fast track courts and creating a corpus for the assistance of rape victims, nothing has really changed till date. Divine and satanic forces - Good and evil deeds - have always coexisted in the society since the inception of the civilization, and it is not likely that one of them will become a thing of past someday. So incidents of crimes against women and children cannot be completely eliminated in any society but a quick relief response and redressal delivery inclusive of legal remedy could bring some solace and satisfaction to the victims and their families. Clearly, laws are there but their implementation remains very slow and faulty; otherwise, there is absolutely no justification why the perpetrators of Nirbhaya are still alive when the law had already determined death penalty for them more than six years back. Quite clearly, the entire system is reactive under crisis rather being responsive normally due to sheer indifference and inefficiency why else justice should remain undelivered in seven years after the gruesome incident.
Available statistics and trends suggest that the majority of sexual assault and violence on women and children is committed by the relatives, neighbours, friends and other acquaintances indoors, and few horrendous crimes like that of Nirbhaya or Disha are committed on road in open and other places. Different situations need different approaches both in terms of prevention and punishment. The crimes of the first category need more attention of parents and elders in the family. Apart from appropriate moral and ethical grooming to their wards since beginning, they should also remain vigilant about their routine and activities besides being clear in respect of outsiders whom to trust and to what extent trust in respect of the Family's women and children of the vulnerable age. The same is true in respect of the nuclear families where the adult members must exercise same precaution for self and children. While relevant laws and their effective and efficient discharge is vital in all situations, Nirbhaya or Disha type crimes outside on road and other places could be prevented or minimized by creating a better safety and security environment through adequate and round-the-clock vigil and deployment of security personnel, vigorous night patrolling and such other commensurate measures by the government and society.
More by : Dr. Jaipal Singh