By Flavia Agnes
December 16, 2012 was a turning point in the history of the anti-rape campaign in India. Following the brutal gangrape of a young woman in a moving bus in Delhi, the country erupted into protests that had a common refrain — death penalty for rapists. The underlying presumption was that stringent punishment will act as a deterrent and reduce the incidence of rape.
A demand for stringent punishment was also raised during the first phase of the anti-rape campaign in the early Eighties, following the adverse Supreme Court ruling that acquitted two policemen who had raped a poor, 16-year-old tribal girl in a police station. The acquittal was based on the grounds that since there were no marks of injury on her body, she must have consented. The girl was dubbed a liar and her character was called into question. The public protests, though much smaller in scale, also resulted in reforming the antiquated rape laws in the country.
The 1983 amendments for the first time prescribed a mandatory minimum punishment — seven years for general rapes and 10 years for aggravated cases such as custodial rape, gangrape, rape of pregnant women and of children under 12 years of age. The maximum for both was life imprisonment, which meant 14 years. However, National Crime Records Bureau (NCRB) data belied the assumption that higher punishment acts as a deterrent, as the graph of reported cases showed an upward trend, year after year. Even worse, while there was an increase in the number of reported cases, a corresponding increase in conviction rates was lacking. In 2013, the NCRB reported a conviction rate of 26 per cent for rape cases, but our own research for Mumbai places this at a much lower level — a mere 10-12 per cent.
In addition to shoddy investigations and indifferent prosecutions, the victim’s past sexual history was advanced as a mitigating factor to plead for less than the prescribed minimum punishment, even in the rare cases where conviction was secured.
The 2013 amendments not only broadened the definition of rape to include sexual acts such as oral and anal sex and insertion of objects, but also prescribed even more stringent punishment, such as life imprisonment for the remainder of one’s life, a minimum of 20 years for gangrape and death penalty for repeat offenders.
How do these provisions play out in trial courts? It is too early to comment. However, as against the usual arguments advanced by the defence regarding the victim’s character and conduct to plead for acquittal, the prosecution has started advancing a new type of argument to secure conviction, “public sentiment”, “national honour” or “the prestige of a city”. The media hype created around certain cases adds to this. Disturbingly, cases in this category in recent times have a class attribute to them, where the accused belong to poverty-stricken backgrounds. In the Shakti Mills case, which was the first high-profile case after the amendment, the death penalty was awarded using the provisions of the amended law for repeat offenders.
Similarly, in a case popularly referred to as the “Spanish rape case” involving a foreign national, the accused, a petty thief living in abysmal conditions, was awarded life imprisonment, the highest punishment that could be awarded in a rape case during the pre-amendment period. This too was a case where the pride of the city was at stake. In such cases, the state takes due care to conduct a thorough investigation, appoints a high-profile special public prosecutor to conduct the trial and secures a conviction. On the other hand, the accused lacks the means to engage a reputed lawyer. The scales of justice are unevenly balanced, with the media often doing its bit to keep the “public sentiment” alive. In this scenario, if the age of a juvenile offender is reduced to 16 years from the current 18, children from economically disadvantaged sections will be denied a fair chance not only to justice but to life itself.
At the same time, other, “routine” cases continue in the same manner, where the complainant is always a suspect. If the accused belongs to the affluent sections or is in a position of power, the chances of the complainant being projected as a liar increase. Investigations continue to be shoddy and the evidence before the courts is scant, making convictions difficult. Even cases of gangrape of minors result in acquittals. Since the reasons for acquittals are many, it would be dangerous to equate acquittals with “false” cases.
Within this complex scenario, a more nuanced analysis is needed to understand emerging trends in rape judgments.
The writer is a women’s rights lawyer and consultant to Rahat, the survivor support programme of Majlis Legal Centre, Mumbai