Could you trace the legal regime as it altered post the Delhi gang-rape?
I would go one step back. (The) Criminal Law (Amendment) Bill had been introduced in the Parliament in the first week of December 2012. It recognized the long-standing need for change in Sections 375 (rape) and 376 (punishment for rape), especially, and issues of enlarging definition of rape, of increasing category of aggravated rape, evidentiary rules, etc. Once the incident happened, the Verma committee was set up and reviewed the Bill. There was a wide-ranging call for change in the law; a lot of it was informed as people who had been working on issues of rape law, including lawyers and social activists, pushed for it as the incident clearly demonstrated a need for change. The public outcry strengthened it.
Which critical issues do you find unaddressed by the current laws?
The Verma committee had recommended several things to address loopholes, which were left untouched. Most importantly, the committee had strongly recommended that the perpetrator be male but the victim be gender-neutral, considering the fact of sexual violence against men and transgenders as well. The committee had recommended criminalization of marital rape, which did not happen. If you frame the narrative in a sexual autonomy context, then marital rape cannot continue to be accepted. But in Parliament, we saw a trivialization of the issue including statement like “it does not happen" and that there are other statutes to deal with it, which is inaccurate. Also recommended was a change in the language of law—“outraging the modesty" be changed to “sexual assault", which did not happen. Even age of consent continues to be problematic as sexual activity between those below 18 has been criminalized by the POCSO’s (Protection of Children from Sexual Offences Act) definition of “child". However, based on statistics and those who work on such issues, the committee found a lot of sexual activity in the age group of 16-18.
After the gang-rape, there was a clamour for severe punishment and death penalty for rape. What had been the committee’s stand?
The committee had not recommended the death penalty for rape. Parliament had been talking about reacting to the incident and they had indicated that the death sentence would be introduced for gang-rape, which leads to death, but if we look at the law, it does not provide capital punishment. The Criminal Law (Amendment) Act, 2013, enhanced punishment for rape, it did not introduce the death penalty for rape. As per the new law, capital punishment has been restricted to cases where either the victim dies or is left in “persistent vegetative state".) So, that is the irony of the manner in which the law was brought in. The urgency meant that Parliament while debating it perhaps did not see that there was no death penalty. In fact, when the accused were sentenced to death, the home ministry even made a statement that the new law has capital punishment, but the law does not reflect that.
The government initiative continued with introduction of the Sexual Harassment of Women in Workplace (Prevention, Prohibition and Redressal) Act, but that is also not free of problems. Your thoughts.
The Act is problematic because its procedure is laborious. The Vishaka judgement laid down a simple procedure. The Act provides for “conciliation" between the complaint and the accused. When there is a power differential, where there is already a compulsion that the woman withdraw the complaint; conciliation is counterproductive. There is also the problem of “false complaints". It is open to a wide range of interpretation of the committee which decides what amounts to false complaint.
How do you place women in the criminal legal system? What is the role that the “woman" has been assigned in our criminal legal system?
It is a problematic positioning. For instance, the Sexual Harassment Act talks about false complaints by the woman as well as false evidence by the respondents, whereas the rules talk about false complaints by women only. Such provisions reek of disbelief in women, which goes back to colonial ideology. Based on stereotypical notions, women’s evidence was considered doubtful as they were thought to lie and exaggerate. That led to the requirement of corroboration, which is visible in rape laws, where corroboration is sought from medical examination, which is again ridden with unscientific and stereotypical practices. This assumption has also found its way in our statutes where we are saying there should be prosecution for false complaints when there is already a provision under the Indian Penal Code (IPC). Why would you bring such a provision only in gender-related legislation? Why not in other legislation where there are equal number of false complaints? As has been pointed out, state regularly files false complaints in terror cases. This makes the problem obvious.
How accessible do you think is the legal system for rape survivors or survivors of other crimes now?
I don’t think it’s very easy if you look at experiences of those who report such crimes. In terms of access, change will be a long-drawn process. Thankfully, the law has changed, and now filing an FIR (first information report) is compulsory for the police. However, even compulsory filing will take some time before it becomes a part of the structure.
In rape, especially, there have been no reforms in medical examination. Narratives of rape survivors’ experiences of medical examination operate as a big deterrent—an exploitative exercise passes off as scientific evidence. Even the idea of in-camera trial (i.e. a trial closed to public) is suspect as we don’t know what is happening in the court as it might be violative of all the rules in the book.
We need to ensure that a person is not deterred from reporting a crime on account of the manner in which she will be treated once she reports the crime.
What do you think is the biggest positive development in the aftermath of the Delhi incident?
The expansion of rape to include penetration other than peno-vaginal. It now captures a range of sexual violence that was happening but could not be penalized. Specific inclusion of rape by armed forces and other such crimes. Also important is the addition of crimes of voyeurism (watching or capturing image of a woman indulging in a private act) and stalking, which were never criminalized. Acid attacks have also found a new place. Keeping caste-related violence in mind, disrobing a woman in public has been included as crime.
Most importantly, the change in criminal procedure, which does not get much attention, is very helpful. For instance, procedure for taking a woman’s statement, victim compensation, has been improved. Even evidentiary rules have been broadened and now no past sexual history of the woman can be brought in the trial.
In the long term, we need to make changes individually and take responsibility. There has to be inculcation of responsible sexual behaviour. Legislation alone cannot achieve everything. Narrative around rape will change only when mindsets change.