The system is as tilted against women as it was before December 2012.
The protests following the December 16 Delhi gangrape drew attention to the long-standing failure of law enforcement agencies,including the police,prosecution and judiciary,to successfully tackle crimes against women. The conviction rate was less than 24 per cent and judicial attrition accounted for 76 per cent of the cases that resulted in acquittal. Institutional lapses were reflected in,among other things,the failure to record FIRs,botched investigations,unconscionable delays in the delivery of justice and the gross bias against women among all law enforcement agencies,including the judiciary. The question 10 months later is: has anything changed?
The need for change is acutely reflected in the process of the trial. Trials are about fact finding; fact finding is about ascertaining the truth through testimony; testimony is about the recall of events. Hence,recalling the incident of sexual abuse seems inevitable in a rape trial. But,there is a vital difference between recall and re-enactment. When the Mumbai gangrape survivor was made to view the pornographic clips that her alleged rapists are said to have shown her,she was being made to reenact the rape,that too in the presence of respectable law enforcement officers. Its no wonder that she fainted. One must ask whether it was really necessary to show her the clips in order to prove the rape. Surely not. This is quite apart from the issue that she could have given evidence on video. The law seems to take a perverse pleasure in re-enactment and voyeurism.
Bias is embedded in the practice and procedure of trials. It is difficult to understand why the survivor of sexual abuse is confronted by the accused during the trial. In the case of child sexual abuse,it is now accepted that the child should not have to face the accused. The Delhi High Court has framed rules that enable deposition by video link. The objective is to ensure that the survivor does not have to face the accused,while at the same time enabling the accused to see the witness by means of a one-way screen. The law also provides that survivors of sexual harassment at the workplace need not give evidence in the presence of the perpetrator. This principle needs to be extended to all survivors of sexual abuse,whether they are children or adults.
The patronising attitudes of law enforcement agencies are truly dangerous. Consider the following statements. The commissioners of Mumbai Police advised women not to step out at night. High court judges have suggested that women invite rape by going out at night. It is a different matter that we were told by the commissioner of Delhi Police that 92 per cent of all rapes occur in the family. A senior lawyer representing a powerful person charged with abuse has argued that a 16-year-old survivor was fatally attracted to the 80-year-old accused. Last week,the additional sessions judge,Virender Bhatt,who presides over a fast-track court in Dwarka,which was established to speed up cases of sexual violence against women,held,Girls are morally and socially bound not to indulge in sexual intercourse before a proper marriage,and if they do so,it would be to their peril and they cannot be heard crying later that it was rape.
Women have the right to freedom of movement at any time of the day or night and the right to sexual autonomy and self-determination,not one or the other.
Endless sermonising on the need to change mindsets will not resolve the issue. What is needed is for law enforcement institutions to be held accountable. The law addresses the act of sexual violence and not the attitude. Centuries of living with misogyny have made the act and attitude indistinguishable. It will be enough if we can make the act culpable,the attitude will simultaneously become so.
The problem is that we have fostered an environment of impunity for the act and that is why we have not succeeded in changing the attitude. Impunity must be addressed through the process of law. Only then will we see accountability. Independent grievance and complaint mechanisms to deal with the failures of the police,prosecution and judiciary must be put in place. Transparent protocol that is free from bias must also be put in place in order to set standards to monitor the performance of these institutions. Rules of procedures and evidence need to change. The home ministry has made no move in this direction,leaving women as vulnerable as they were prior to December 2012.
The writer is additional solicitor general of India. Views are personal