By Kush Kalra:
Again a rape in the capital of India in a moving bus has put a lot of questions on our legal system as well as police force. We are unable to protect women of our country from such sick minded people who treat women as objects. The punishment which is always considered insufficient in rape cases may be the cause of such increasing incidents.
Rape is a crime, which has a devastating effect on the survivors; it has been described as the “beginning of a nightmare”. The aftershocks include depression, fear, guilt-complex, suicidal-action, diminished sexual interest. etc., “one becomes afraid of”, writes a victim, “half the human race”. Referring to the pitiable condition of women in society Mr. Justice S. Ahmad observed that unfortunately, a woman in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution “enjoy, equal status”. “Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life”. Rape is a crime against basic human rights and violates the victim’s most cherished of the fundamental rights, normally, the right to life contained in Article 21 .
Police statistics show more than 50000 rapes are reported every year . In 1987 and 1991 number of cases reported were 7767 and 9793 respectively. About 26% increase in number in the year 1992 – (NCRB). There is one rape in every 54 minutes. As observed by Justice Arjit Pasayat: “While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.” Justice Krishna Iyer has observed in a very famous case of Rafiq v. State : “A murderer kills the body but a rapist kills the soul.”
Rape means an unlawful intercourse done by a man with a woman without her valid consent. (Section 375 of the Indian Penal Code, 1860) A man is said to commit “rape” if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-
1. against her will.
2. without her consent.
3. with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
4. with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5. with her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
6. with or without her consent, when she is under sixteen years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
In almost all cases, it is the rapist who makes plans and executes the onslaught. Victims seldom receive any counselling or psychological support during or after the event to tide over the trauma and the physical injuries inflicted by the incident. Though the police respond positively to cases reported to them, prepare FIRs and send victims for medical examination fairly promptly, under political influence or pressure from the defence lawyers they often tend to twist and turn the cases against the victims. Public prosecutors who take up the case of victims are found to be indifferent and lukewarm to the victims. The rapists, often at large on bail, continue to harass and threaten their victims and families. Though the conviction rate in rape cases is rather high at the Lower Courts, some of them get acquittals at higher courts, on appeal. Rape is a product of the patriarchal system in vogue that views women an object of pleasure. The gender-biased values are internalized by women too. The print and audio-visual media are playing an ever-increasing role in promoting violence in society. They play a dual role in the sense that crime and criminals are brought to public gaze quite promptly and extensively. But there is also the danger of overplay of crimes, causing irreparable damage to the honour of victims.
Systematic efforts should be made to organize large-scale awareness programmes and campaigns in order to disseminate gender-just values that should counter the ideology of patriarchy and conservative thinking about sex and sexuality. In order to achieve these, the following measures may be considered:
(a) Statutory bodies such as State Commission for Women with the help of NGOs should organise awareness classes in schools and colleges;
(b) Necessary budgetary provisions may be provided by the local bodies and People’s Planning Programmes for gender-just awareness programmes at the grassroots levels;
(c) Gender-sensitization programmes may be organized for law-enforcing agencies, judiciary, and media personnel;
(d) Departments such as Social Welfare Board and Women and Children Committees may take up rehabilitation of rape victims and their dependents.
(e) Even if the sexual exploitation is with the ‘consent’ of illiterate women, it should be considered under rape. This is needed because the innocence and vulnerability of those women is being misused.
In order to streamline and consolidate various laws related to rape and its effective implementation, the following suggestions are made:
(a) Special courts may be set up for speedy trial of rape cases. Such courts should be constituted of judges, lawyers, doctors, psychologists, and representatives of NGOs. The majority of the members should be women. This Special Court should have provisions for legal counselling and aid. Such cases may be disposed of in three months and the accused should not be given bail if the magistrate is convinced that he is likely to influence court proceedings.