I hear everybody expressing their anger and anguish over Delhi gangrape. We have been stridently voicing our rage and demanding death penalty for those brutes who raped the 23-year-old paramedical student. But many questions arise in my mind:
Should we end protests once the culprits in THIS CASE are punished? Is the death penalty justified? One moment of pain and then peaceful rest? Is that enough? Do we know the prevailing rape laws? How many us know?
What about the victim? What sort of help she needs? What is a Rape Conviction Rate? Why is it still very low? If we force the govt to award capital punishment to rapists, will our task be over? What if the case is not proved in the courts?
When I asked my friends about the present system and the current laws, the most common answer i received was: "I don't know." If professionals like us in a metropolitan/cosmopolitan city are unaware of the legal system, do you think a girl in a remote village would know more?
What can you do if you encounter a victim in such a place? Will you go with her to the nearest police station and file a complaint? Will you get protection from the police? What if the police reject your complaint? How can we suggest any change to the system when we have no idea about the existing law?
What if? What but? The queries started like this but have not yet ended. Anyway, first let us look at the existing laws and the procedure usually followed in a rape case:
1. Section 375 IPC (Indian Penal Code): Defines Rape
2. Section 376 (1) IPC: Defines punishment for rape by one person (where the female could have possibly have defended herself and prevented the rape) to be a minimum of 7 yrs rigorous imprisonment with fine.
3. Section 376 (2) a-g IPC: Defines punishment for rape where the female couldn't have defended herself:
a. Rape by a police officer in his station or jurisdiction.
b. Rape by a higher official on a subordinate.
c. Rape by staff of jails or govt offices.
d. Rape by staff of hospital or asylums.
e. Rape on a pregnant woman.
f. Rape on a child/minor girl < 12 yrs of age.
For custodial or heinous rape, the punishment is minimum of 10 yrs rigorous imprisonment with fine. Please note that the punishment is defined as minimum, i.e., if the judge feels it is not enough, he may extend it to life time also but it cannot be less than that. A friend of mine who is an advocate said the only other crime for which minimum punishment is described is Dowry harassment and Dowry death.
4. Section 228 A IPC: Anyone who reveals or does an act that may reveal the identity of a rape victim is liable for punishment upto 2 yrs with or without fine.
5. Section 114 A IEA (Indian Evidence Act): Presumption of no consent in cases of IPC Section 376 (2). Implying that the onus of proof is on the accused to prove that he hasn't raped.
6. Section 53 CrPC (Criminal Procedure Code): The accused in case of a rape can be examined by forensic expert even without his consent. Pinki Pramanik - The athlete who has been accused of rape was examined using force without her consent under this law.
7. Section 327 (2) CrPC: The Proceedings of trial in the court of law in case of rape is "in-camera trial", it means that there shall be very few people present inside the court room during the trial and shall be only those who are connected to the incident, like the accused, police, judge, lawyers of the case, experts like a forensic doctor, witnesses, if any.
Victim is required to come to the court of law only if necessary upon judge's instruction, not for each hearing. The victim may choose not to answer if she feels questions of the lawyer are too embarrassing, but has to answer if the judge instructs to answer the lawyer's question or if the judge himself asks a question. She can cover her face with a veil in the courtroom also but has to uncover her face if the judge asks for identification.
8. There was a fake message that Section 233 IPC says if a women kills a person if he attempts to rape her, she shall not be punished. Section 96-106 of IPC is pertaining to self defense and it does not deal with any such possibility.
However, the punishment if awarded by the judge shall be very minimal. In fact, the judge may acquit the woman in such cases. So never hesitate to hurt a rapist.
So by now, you may have understood that there are indeed stringent laws at present and the law tries to help the victim to a certain extent to prove her case.
But then, why is the conviction rate so abysmal? It is because of the lack of evidence and late reporting of the incident. Evidence in such cases are the victim's body and her clothes. With time, the evidence fades. Therefore, the accused is acquitted for the lack of evidence.
Therefore, the biggest loophole is delay in reporting the incident. Even if we force the govt to make a new law to give capital punishment to rapists, all our efforts go in vain if the case is not proved. And the victim is not helped by the present system for her future. She is not given any monetary or psychiatric help.
Hence, in my opinion, we need to change many things. Let us put aside our emotions and sentiments and think rationally and practically what can really be done to help the victim to prove the case and punish the culprits to instill fear among others.
The change that is necessary is from the present "VICTIM GOES TO SYSTEM" to "SYSTEM GOES TO VICTIM".
1. Establishment of of a national women's cell and helpline- A devastated victim may not even come out of her room, let alone filing complaint or fighting her case and by the time she decides to go to a police station, the evidence would have been destroyed.
The most important loophole due to which the rapist goes scot-free is that the incident is not reported or police refusing to file the report. Hence, police should be bypassed or should be kept as an accessory. Also, the police personnel who refuse to file the complaint should be treated on par with the rapists.
The cell should not merely be a call centre but should be a complaint registry that shall function as FIR (first information report) in case a complaint is not filed at the police station. The helpline has to be provided in the victim's language. At least one cell per district is needed.
The cell should collect minimal details of the victim, may be a phone number on which she can be reached, record the victim's narration and a person who would help her, if any, his/her version also, provide step by step directions, so that the victim preserves her clothes and other evidence.
If the victim is not in a state to narrate the events or is dead, the cell should record the version of the person who calls the cell.
Once the incident is recorded, a case number has to be given to the victim or her helper through which he/she can access the details from the cell's website or by going to the office where the cell is located, if required by her later.
Moreover, the record should be sent immediately to the hospital to which the victim is directed and given to the victim through the medical officer.
The cell should direct her to get medical attention and also undergo examination by a forensic expert, at the nearest hospital. The cell should then call the police station concerned and direct them to the hospital where the victim is directed.
If the police or hospital doesn't provide her the required help, the cell should notify it to the home minister and the minister for women and child welfare who should immediately take action against the police and hospital concerned.
2. At the hospital- Police shall complete as much legal procedures as possible and necessary at the hospital itself. The hospital has to provide all possible privacy to the victim, treat her wounds, provide psychiatric help and protect her identity. Any call to the victim to come to police station should be notified to the women's helpline cell.
The victim should be advised to go to the police station only if the cell directs her to go and victim should notify the cell whenever she has to go to the police station.
3. The trial must be over within a reasonable time limit and conducted in fast-track courts, with monetary assistance to the victim to fight her case. Once the case is proved, the victim has to be given a substantial amount by the govt as an apology that it could not protect her.
4. Now and only now comes the issue of punishment to the rapist. Hanging the rapist or death punishment by any method would give only a momentary pain to the culprit.
Why should he enjoy such a privilege while the victim is scarred for life? He has to be chemically castrated or imprisoned for life and the money that is given to the victim be recovered from his hard work. Why should someone else pay for his crime?
These practical and rational measures can be immediately implemented.
Besides, more policewomen must be inducted into service and at least a few of their male colleagues should assist them while dealing with crimes against women including eve-teasing, dowry harassment and deaths, workplace sexual harassment etc. This police force should work under women and child welfare ministry and the ministry should be reserved for a woman elected representative.
Eve-teasing has to be dealt seriously because at a young age itself boys develop a superiority complex over girls in terms of physical capability. They have to be made aware that the law will catch up with them up very fast if they commit any crime against the fairer sex.
All parents should ensure that whether they educate boys or not, girls have to be educated, whether they teach martial arts to their sons or not they have to teach it to their daughters.
Schools have to give education to girls about the existing laws about crimes against women and how to obtain assistance from the system and to use law, at least by 8th standard.
Notwithstanding all the above, I feel that bringing up children with moral values and teaching them to respect the feminine gender is the best way. But it cannot be done right now for the entire population. Fear of law should be instilled to prevent assaults upon women.
(Malathi A is a citizen journalist. The views expressed in this article are those of the author)