Author: Abhay Saxena, Student at Rizvi Law College, Mumbai.
Co-Author: Rucha Joshi, Student at Rizvi Law College, Mumbai.
ABSTRACT
Women, be it occupational and of course biologically right from ancient times have been regarded as a weaker gender[1] that needed protection, the need of protection of course came from the male superiority that existed and through this show of masculinity, violence against women seems to be existed from the start of civilization, in different acts, be in sexual, physical, forceful impregnation, killing of a girl child, woman sacrifices etc. one of the heinous crime among them all is sexual violence, Rape. In many cultures and one might dare to say in every, a woman’s purity[2] is concluded by her virtue and anything that takes it away is a crime against her character and her very self. Every ancient writing has some mention of sexual assault which now has become an unfortunate part of our reality. Even today also rapes are so prevalent in our society that on every newspaper headline news of a woman/girl being raped is common now a days. In this article we will focus on rape laws, rape culture, historical background and will try to give solutions to stop/reduce rapes drastically.
INDIAN HISTORY THAT SHINES LIGHT ON THE RAPE CULTURE
many mythologies mention stories of women been taken as punishments and pleasure, therefore neglecting the theory of consent altogether, sex slaves (Dev Dasi’s)[3] was also a thing very prominent in ancient times and it still is. Stories such as that of Danda,[4] son of Ikshavaku who raped Araja, or that of Jalandhar who used its power to trick women into having sexual relations with him are all too well documented in Indian Mythology so the concept of rape[5] has always been very known.
CURRENT SITUATION
Our newspapers and news channel have a daily mention of brutal rape, although we have made progress compared to the old times, with legal solutions or laws or active journalism and documentation, we are still far off from being a country that’s safe for women and free from such heinous assault. One can see headlines or as like to call it dead-lines such as “, Rape in Unnao[6], Rape in Hathras[7], Rape in Alwar, Rape in Balrampur. Rape in Delhi, Rape in Mumbai”. Rape here, Rape there, Rape everywhere, it’s a cry for help, one that needs to awaken the nation” One might not help to wonder where we as a country are going wrong or failing? What can we collectively do to have reduced sexual violence, what steps are necessary and where are we facing?
WITH REGARDS TO LEGALITY
Rape laws in India-According to section 375 of the Indian Penal Code 1860 a man is said to commit “rape” who, except in the case hereinafter excepted, 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 who 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 16 years of age.
According to section 376(1) of the Indian Penal Code,1860 whoever commits rape shall be punished with imprisonment of either description for a term which shall not be less than 7 years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under 12 years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both; provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than 7 years .
RAPE LAWS IN OTHER COUNTRIES
In some countries severe punishment of death or genital mutilation is given. The only difference lies in the way of giving death. While in other countries rapist is imprisoned with tenure ranging from several years upto life imprisonment depending on the severity of rape.
In China, Rape being a heinous crime is given death penalty or genital mutilation.
In countries like Saudi Arabia public beheading of rapist is done with a sedative.
In North Korea death is given to the rapist by firing squad.
In Afghanistan rapist is hanged to death or shot dead in head within 4 days of conviction.
In Iran rapist is hanged till death or given death by stoning.
In France rapist punishment ranges from minimum 15 years to life imprisonment.
In Israel the jail term is upto 16 years. In USA the punishment for rapist ranges from few years to life imprisonment. In Russia rape punishment ranges from imprisonment of 3 to 20 years.
SHAMEFUL REPORTS
According to Thomsan Reuters survey[8] India was reported as the World’s most dangerous country for Women in 2018. According to recently released reports of National Crime Record Bureau(NCRB)India reported average of 88 rape cases per day with each rape happening on an average in every 16 minutes in 2019. According to this report conviction rape cases in India was reported as under 30%.According to this report no state in India can be termed as safe for women security. In 2019 India reported 32,033 rape cases. The crime rate was highest in Rajasthan (5,997 cases) followed by Uttar Pradesh (3,065 cases), Maharashtra (2,299), Kerala (2,023), etc. These were the reported rape cases. In India due to fear of insult, many of the rape cases are not being reported.1 these cases would have been reported, the figures would have been worsened extremely.
LEGAL STEPS TAKEN AND CHANGES THAT WERE MADE
Recommendations of Justice JS Verma Committee report[9] Criminal Law(Amendment) Act– After the nationwide public outrage due to Nirbhaya gang rape and murder(2012) in Delhi, parliament constituted Justice JS Verma Committee to analyze the existing criminal laws in the country. Criminal Law (Amendment) Act was passed in 2013 broadening the definition of rape and also making the punishment more stricter than earlier. This act increased the tenure of jail punishment in most of the sexual assault cases. Death penalty was also introduced in rape cases in which victim’s death is caused or the victim is left in a vegetative state.
Death penalty– In 2018 after the public outrage due to rape of 8 month old baby girl, the criminal law amendment bill was passed imposing death penalty for those raping girl below 12 years of age. And also death penalty is being given in rarest of the rarest cases on the discretion of court.
STEPS TO HELP COUNTER SEXUAL VIOLENCE
A) Legal point of view-
a) Need for Severe Punishment– Should the death penalty be given is still a question that’s long standing, whether the punishment for such a gruesome crime be reformative or retributive again is an argument that needs closure. If taken my personal viewpoint then of course a heinous crime such as this one needs an equally gruesome punishment if not more. Without our every going investigations and slow process and lenient penalty, Rapist often find it easier to escape the law and hence have become fearless of it, an instillation of fear is thus very much needed. It is well said that “Every being fears for his life.” As mentioned above in this article that In India death penalty is given to the rapist of a victim below the age of 12 years and in rest other cases death penalty is given if the victim dies or is left in vegetative state. And also till now death penalty is being given in the rarest of rarest cases depending on the discretion of court. Some rapists have become habitual offenders. If punishment like genital mutilation will be introduced for rapist. This can serve as a barrier/limitation for rape convict for repeating such offences in future while instilling fear of castration will serve as a deterrent to potential rapist.
b) Fast track courts and thus speedy justice– The Union law ministry collected data from different high courts on pending rape cases across the country including rape of children. A comparative analysis showed that from March 2018 to December 2019 pending rape cases including those registered under Protection of Children against Sexual Offences (POSCO)Act have increased by over 77,000 from 1,66,882 to 2,44,001.Delhi saw the highest 353% rise in pending rape cases .After this report union government is planning to setup 1023 fast track special courts for expeditious disposal of cases of rape and POSCO act. Due to slow process, investigation is easily hampered with, either evidences are distorted or victim dies or is coerced by the rape accused to change their statement, etc. There is a well said statement that just “Justice delayed is justice denied. ”Long pendency of rape cases also give fearlessness to Rapist.
B) Surveillance-
a) CCTV surveillance: an offender always has a fear of being watched and with such cyber improvements, one can help reduce such an action if he knows that there are eyes around him and on him, developed countries such as the US, Denmark, Norway etc have installed and taken this step for security. This always helps making the investigation quicker and thereby helping with the speedy justice.
b) Availability of policeman and policewoman: at such desperate times, one only wishes for their cry for help to be heard, also if a woman finds herself in a compromised position, she should have an easy accessibility of a policewoman to help her in her close proximity. This would be a promising step with regards to late night travel safety
Jails and lockups: judicial rape isn’t a thing of the past, it is still very much seen and sadly there hasn’t been any improvement with regards to this. A strong surveillance would certainly helop the situation better.
C) Societal point of view–
a) Awareness of laws-due to the lack of awareness, lot of women often are helpless and do not know their legal rights. Awareness of rape laws, remedies available to rape victim should also be introduced in the education curriculum from the very beginning to make girls aware of their rights and remedies.
b) Sex education– In India talking about sex is still being considered as taboo in families. Due to which some youths get misguided due to anti-social elements who converts them into rapists. Sex education is often confused with talking about Sexual Intimacy. But in reality it also includes reproductive health, sexually transmitted diseases, contraception, consent, menstrual changes, etc. These all things must be included in the sex educational curriculum to prevent the youth from being getting misguided.
c) Moral education– India as a country needs to be reminded about its roots, where women where kept a position so pure that no men would have the eye to disrespect it. Simple teachings of respect and equality can go a long way.
d) Need for fearlessly reporting rape cases-As in India complaining about rape cases is still considered as matter of insult which empowers the rapist.Families in India should not remain silent on rape cases but instead fearlessly report such instances in police stations as soon as possible which may act as a deterrent to potential/future rapists.
e) Self Defence classes-It is said that “A weak tree will fall easily to the winds. But a strong tree will resist.” In 2017,Israel according to New World Research Group Israel was ranked as the World’s 8th Safest country for women. Israel have mandatory self-defence classes in their educational curriculum.
f) Need for urbanization and changing mentality of people in rural areas-According to report of National Sexual Violence Resource Center(NSVRC).Rapes are more prevalent in rural areas as compared to urban areas. One reason is because of mentality of Rural People of considering women as culprit and the other one is that since villages are less populated and also have open and empty areas. These conditions are favourable for any crime to be committed, such places after every x km must have a safe spot, where an officer or a policeman be available at all times if need be.
D) Altering Gender roles-
a) Fair representation of women in parliament and cabinet– Parliaments should provide fair representation to women, fair representation should be given for women in the cabinet ensuring women empowerment as well as involving women in the legislation process of rape laws.
b) Focussing on gender equality– Working on gender equality, similar gender ratio- As we have seen in the list of safest reported country for women(US World and News report 2019) most of the countries like Sweden, Denmark, Canada, Norway, etc have worked immensely for gender equality, women empowerment, etc Government should try to provide equal opportunity and rights for women and also try to make gender ratio(Man to women).
E) Education and literacy : Need for educated and liberal mindset politicians in the parliament as well as state legislature- In 2014 Samajvadi Party Member of Parliament Mulayam Singh Yadav commented that “Boys should not be punished for rape. Sometimes they do mistakes.” After the Hathras Rape of 2020 Bhartiya Janta Party Member of Legislative Assembly Surendra Singh Rajput said that parents should teach their daughters “sanskar”.If such will be mindset of our politicians what can we expect from them for making laws to reduce rapes. At present there is no minimum educational qualification to be MLA or MP in India. As mentioned in the article earlier Canada the third most safest reported country according to US News and World Report 2019 in terms of women security according to has most qualified member of parliament and cabinet. Therefore there is a need for having minimum qualification for contesting elections in the country so that more and more educated MLA and MP’s will be elected in the parliament ensuring better framing of rape laws.
COMPARISON WITH CONDITIONS IN SOME OF THE SAFEST CONSIDERED COUNTRIES IN THE WORLD FOR WOMEN
US News and World Report 2019 presented a list of 21 most safest country to live in if someone is a women. Denmark has been ranked no.1 followed by Sweden, Canada, Norway, Netherlands, Finland, Switzerland, Australia, New-Zealand, Germany, Luxembourg, Belgium, United Kingdom ,France, Ireland, United States, Italy, Japan, Spain, Portugal, Singapore in their respective serial order. Sweden has done commendable work in gender equality, human rights and also has 46% and 50% of women representation in parliament and cabinet respectively according to New York times report. Denmark worked remarkably for daycare system earnings and parental leave policies. Canada had more focus on educated politicians in the cabinet. Norway was reported as one of the most gender equal nations with generous maternity relief policies. Besides these things there are many things common in these 21 safest reported countries for women to leave in. CCTV surveillance in most of there are 24 hour shop opening in most of the public places, most of their areas are urbanized, their education system has proper sex education in the curriculum from the very beginning. Besides these things almost all the countries in this list have immensely worked for achieving gender equality, giving fair representation of women in parliament and cabinet.
CONCLUSION
Security of women is not dependent on a single factor. Instead many factors need to combined to produce the desired result. Every citizen at their own level have to take steps forward. Combined effort of both government and citizens are required to stop such heinous crime. Some of the above steps can be done by guardians/parents along with the government. Fear of societal stigma should not deter families to vocalise. We hope to a change and hope to see India a country of flourishing equality and women.
REFERENCES
[1] https://www.oldbaileyonline.org/static/Gender.jsp
[2] https://digitalcollections.sit.edu/cgi/viewcontent.cgi?article=3538&context=isp_collection
[3] https://www.destinyrescue.org/us/blog/indias-forgotten-sex-slaves-jogini/
[4] https://www.boloji.com/articles/50342/araja-the-story-of-a-raped-child-from-ramayana
[5] https://www.balendu.net/english/religion/swami-balendu-tells-the-mythological-story-behind-todays-holiday-and-shows-how-hindu-mythology-teaches-rape-victims-to-marry-their-rapists/
[6] https://www.indiatoday.in/india/story/unnao-rape-victim-set-on-fire-a-year-after-being-brutalised-dies-1626035-2019-12-07
[7] https://www.hindustantimes.com/india-news/hathras-gang-rape-victim-s-kin-say-couldn-t-even-see-her-face-before-cremation/story-j0zfkBFiGzLxOzsGarYN7M.html
[8] https://in.reuters.com/article/women-dangerous-poll/india-most-dangerous-country-for-women-with-sexual-violence-rife-global-poll-idINKBN1JM076
[9] https://www.prsindia.org/report-summaries/justice-verma-committee-report-summary#:~:text=Justice%20Verma%20Committee%20was%20constituted,report%20on%20January%2023%2C%202013.&text=The%20Committee%20submitted%20its%20report%20on%20January%2023%2C%202013.,-It%20made%20recommendations