Acts of sexual violence happen every day in India. Yet, there was something about the tragic events of December 2012, where a young student was gang raped and subsequently died in the country’s capital, Delhi, that caught the attention of India and the rest of the world. The brutality of the attack was juxtaposed with the ‘normalcy’ of both the victim and the perpetrators. Of the six men accused, one was a juvenile aged 17 and two were brothers. But none had previous convictions for rape or violent offences. They, like the victim, came from backgrounds similar to millions of other young men in India.
The incident was an extreme example of the inescapable truth that women in India are not safe in public places, nor in many cases at home. It seemed to be a strong enough blow to the public conscience to prompt mass protests and turned the world spotlight onto India and the position of its female population.
This article considers the response of the Indian government and questions whether their legal reforms will be enough to improve the safety of the female population. As it is, India has been labelled one of the worst places to be a woman.
Events following December 2012
Although all six men were arrested, only four received the death sentence on 13th September. One of the accused and the alleged ring leader, Ram Singh, was found hanged in his prison cell in March, shortly after the fast track trial commenced. The juvenile, believed to have been the most brutal attacker, was given a sentence of three years in a reform facility having been found guilty of rape and murder. The remaining four men were found guilty of offences including gang rape, murder, conspiracy, kidnapping and abduction in order to murder and destruction of evidence on 10th September.
The female victim died of her injuries in a hospital in Singapore. But her ordeal and the courage shown by her both shocked and inspired the public to such a degree that it triggered thousands to take to the streets in protest over the prevalence of violence against women in India. ‘Nirbhaya’ (which means ‘fearless’) became a symbol of the public’s outrage over the extent of violence against women and the disdain for it shown by politicians and the police.
Government response – appointing the Verma Committee
Unable to ignore the marches and demonstrations, the Government was galvanised into action and appointed former Chief Justice of India, J.S. Verma, to head a committee. This committee was to investigate and make recommendations on how India’s criminal justice system should be reformed; to ensure better protection for India’s women and tackle the shamefully low conviction rates for sexual offences.
What was produced was a remarkably far-sighted and detailed report which looked beyond superficial amendments to legal provisions. Its driving force was to instil and entrench gender equality into all levels of the social strata. It challenged the traditional models that Indian society is built upon and proposed methods for their deconstruction with education and police reform playing a crucial role in eliminating prejudice.
Summary of the Verma Report
The committee submitted its report on 23 January 2013. Although lengthy at 631 pages, it is detailed, balanced and well worth a read. Reduced to its essentials it made the following key recommendations:
- Target the shame and stigma associated with rape and sexual assault; it is an assault against the woman, not an action which shames her community.
- Address the role of the police, they have become ‘arbiters of honour’, assuming the moral authority to pronounce upon the rights and wrongs of both the rapist and victim.
- Remove the exception of marital rape from the legal definition of rape.
- Create a direct route for complaints of sexual harassment in the workplace to get to an Employment Tribunal; remove the requirement of ‘conciliation’ between the complainant and the respondent as the first step.
- Create a specific criminal offence of the act of ‘eve teasing’ (public sexual harassment) and acid attacks.
- Bring acts of violence against women in conflict zones, by members of the armed forces or uniformed personnel, under the remit of mainstream criminal law.
- Align Indian legislation covering human trafficking with the international standards and synergize the provisions that, in their current state, give traffickers impunity and punish the victims.
- Reform and control institutions of Indian society such as the Khap Panchayat, which uphold and enforce cultural and moral norms at village level. These are well known for encouraging the use of honour killings to punish those who marry outside of their caste or religion.
- Reform sentencing and punishment, in particular remove the death penalty and chemical castration for rapists, even in the rarest of cases.
- Drastically increase the provision of safety measures by the State, such as providing street lighting, improving sanitation and increasing security on transport.
- Set higher standards for the medical examination of victims of sexual violence, in particular doing away with the ‘finger test’.
- A massive overhaul of the policing system.
The Criminal Law (Amendment) Act 2013
Following the submission of this report, the President passed an Ordinance, which after further amendment, became the Criminal Law (Amendment) Act 2013. This Act amends legislation including the Indian Penal Code 1860, the Code of Criminal Procedure 1973 and the Evidence Act 1972.
Some of the changes made by the Act have been welcomed as a step in the right direction. For example, it makes specific and punishable offences of stalking, voyeurism, making sexually coloured remarks, making demands for sexual favours, disrobing a woman and acid attacks.
The Act also established five new fast-track courts in Delhi to deal with crimes of sexual violence so as to avoid the delays in India’s overwhelmed regular court system.
Criticism and evaluation of the 2013 Act
There are three particular criticisms of the 2013 Act:
Firstly, the Act ignores many of the recommendations made by the Verma Report. Most notably, it did not remove the marital rape exception (see Section 9), nor did it address the legal immunity of members of the armed forces. Furthermore, the Act makes available the death penalty for cases of rape which inflict injury on the victim causing death or causing the victim to be put in a persistent vegetative state or repeat offenders (Section 24(e)). In India, the death penalty is reserved for ‘the rarest of rare’ cases of murder under Section 302 of the Indian Penal Code. The Verma Committee recommended a moratorium and described any extension of the availability of the death penalty as ‘regressive’, no doubt envisaging that widening this ‘rarest of rare’ category would be a slippery slope towards extending a method of punishment which is contrary to international law and unproven to have any deterrent effect.
Secondly, the legal amendments are isolated from the wider environment that the law is designed to function in. Examples of this are inherent in the very provisions themselves. One such instance is that while the Act criminalises acid attacks, there is no attempt to regulate the sale of corrosive substances, which can be picked up at minimal cost by anyone. Again, while the act makes ‘eve teasing’ and making sexually coloured remarks punishable offences, there has been a failure to address just how these offences would be proven in court. The law seeks to guarantee a female police officer will interview victims of sexual assault or violence, but there has been no effort to increase the number of female police officers and although fast-track courts have been created, India will need massive reform of the judiciary to facilitate them and ensure their efficiency, this has not been forthcoming.
Thirdly, the focus of the amending provisions has been on creating new offences and imposing harsher punishments. This has diverted attention from the need to tackle the root causes and begin a wide-scale deconstruction of the patriarchal structures in Indian society. The horrific events of December 2012 have made the public angry. The campaigns for the execution of the rapists sought justice, not only for the victim and her family but a wider sense of moral justice for society, to symbolise that violence against women will not be tolerated. By focussing the reforms on punishment, the government was trying to give the public that symbolism. But while this may temporarily soothe the public cries, it does little to address the safety of women, in public places or at home. In fact, since the Delhi case, there have been numerous other high profile incidents, including the gang rape of a photojournalist in Mumbai; the arrest of spiritual guru Asaram Bapu for rape and recently, the rape of a 5 year old in Delhi.
These shortfalls demonstrate a lack of commitment to tackling violence against women in a comprehensive and enduring way. Further evidence of this is the fund which the government announced would be dedicated to improving the safety of women back in February, but for which no proposal for the use of the money has been advanced.
The Indian government has succeeded in two things. They have made an example of the accused in the Delhi gang rape by ensuring an expeditious trial and imposing severe punishment. Additionally, they have made changes to the criminal law in an effort to reconcile legislation with modern ideals of the position of women in society.
What remains to be seen, is whether the government has left an impression on the Indian public that will endure or whether their efforts have provided little more than a plaster to cover a deep wound. Women face discrimination from conception through childhood and marriage. Selective abortion of female foetuses and female infanticide, honour and dowry killings, acid attacks and ‘eve teasing’ combine with factors such as the entrenched class system, extremely uneven distribution of wealth and westernisation of India’s cities to create a complex social environment for modern Indian women.
It seems to me to be an inevitable truth that executing rapists is not going to make women in India any safer. Neither will superficial amendments to the law. This is unless these measures are coupled with a concerted effort to address the root causes of violence against women, in particular, through changing public attitudes and tackling the patriarchy of Indian society.