The primary reasons for rape range from anger, power assertion, extremist patriarchal culture, extra publicity of sexually implicit content in our society, deviant sexual practices, poor parenting, cognitive and attitudinal bias, and sadism.
By Pradeep Bhandari & Ayush Anand
The act of rape followed by murder of a woman in Hyderabad has shaken the conscience of the nation. In fact, there has been a stark increase in the number of rape cases since 2011—from 24,206 to 38,947 a year, and outraging of modesty of women has reached a level of 84,746 incidents in a year. There are no signs of abatement even after the 2012 Nirbhaya case, which spurred amendments in law and initiatives for women’s safety. There have been persistent gaps in enforcing the relevant laws, policies and guidelines.
Certain groups are more prone to becoming a predator. A group of men may have no hesitation in valuing a woman as a commodity. The primary reasons for rape range from anger, power assertion, extremist patriarchal culture, extra publicity of sexually implicit content in our society, deviant sexual practices, poor parenting, cognitive and attitudinal bias, and sadism. Further, the level of literacy or geographical location cannot be the sole factors influencing the rapist’s behaviour—it is the environmental influence on the accused that plays a major role. There should be a presumption of guilt of the accused with regard to such heinous crimes. While a step has been taken in furtherance of this by introducing Section 114(a) of the Indian Evidence Act, 1872, and Section 376 of the IPC in light of the Tukaram judgment, further steps need to be taken.
There was supposed to be a one-stop facility for rape survivors, to be created from the Nirbhaya Fund—but funds for only 151 out of 660 such centres have been allocated, and a shocking amount of Rs 3,409 crore remains unused. Another problem that discourages victims from pressing charges is the long duration of proceedings, which only result in further trauma and mental agony for the victim. The provision of anticipatory bail should be removed, and regular bail provisions should be made applicable after filing charge sheet in these offences. The necessity for speedy justice is long felt. The Criminal Law (Amendment) Ordinance 2018 mandated some changes in the investigation, trail and appeal cases in matters of rape and sexual assault. The recent step of the central government to open up new fast-track courts in offences related to the Protection of Children from Sexual Offences (POCSO) Act is a welcome step; it may also extend to the IPC offences against women.
There are a few other aspects that are left out in this matter—there is no capital punishment in matters of rape of women above 12 years, and the accused is just given a time period of 10 years in prison and not even imprisonment for life. It is urged that capital punishment be served to the guilty in matters of rape if it has been committed with extreme brutality. It needs to be noted that the last rapist was hanged in 2004, and the accused in the Nirbhaya gang rape are still asking for mercy. The next stage is the pardoning power of the President under Article 72 of the Constitution. Currently, there is no specific time limit with regard to pardon of the accused. Although the firm contention is that there must be no pardon at all, there should still be a time limit that is to be set to decide pardons.
These laws have to serve not only as a deterrent, but also act as a retributive form of punishment. The Justice Verma Committee discussed retributive form of punishment widely in its report. The accused must feel the pain that was felt by the victim and her family, and only then the rates of such offences will reduce and the law will start acting as a deterrent. The idea that we are a utopian society, we should have a compassion towards all kinds of criminals, and we all will abide by any law once made should be reconsidered.
Giving advantage of human rights conventions to such criminals is in antithesis to the doctrine of human rights itself. The protection of human rights should be given to the persecuted and vulnerable mass. Keeping their cases pending only strengthens the will of such individuals. Excessive focus on the reformation argument is harming our society. At the same time, our society has to keep a check on all those factors that aggravate the criminality in an individual and that results in such offences. We all have to introspect how can we collectively make our society safe for women.