It’s become almost like clockwork — every few months, the nation wakes up to the news of another rape. Statistics show that a woman is raped in India every four hours — that is 90 women a day — from just the rapes that are reported. A simple Google search shows that one of the top suggestions related to rape in India is “rape without a medical”. It is a telling indication of how many women are struggling with the legality of the issue, that women who have been raped are trying to find a situation where they do not have to undergo a medical examination either because of societal pressure or due to their own perceived (and extremely misplaced) idea of shame.
At this point, we are all tired of chanting slogans like “matri devo bhava”. No woman is not treated as a god, she is treated worse than a pest. We are enablers in a society where women are seen as objects to satisfy the needs of a man, at home or outside. We are not seen as individuals. It is telling that rapes are one of the first war crimes committed when a political territory is occupied and is used as a means to induce terror.
The Indian juridical response to rape has been a long-drawn process, right from the case of Tukaram v State of Maharashtra in 1978 to Mukesh v State of GNCTD or the December 2012 gangrape case. Women have had to fight to be able to prove that they were raped, that the action was non-consensual and against the obstacles created in the name of the innocent-untilproven guilty doctrine.
Despite the various guidelines given from time to time by the Supreme Court about the counselling and medical treatment of rape victims, the harsh reality is that these are not readily available. Women who report rapes are statistically more prone to violence and the police do not handle the matter with sensitivity. What it creates is an environment favourable to the predator, giving him the audacity to look at women solely from a lens of subjugation or pleasure.
Rape is old news in India. Protests take place and then life goes on the way it always has. Trials commence, rapists take advantage of legal loopholes, like minor discrepancies in medical reports or names, and try to get away. In the December 2012 gangrape, a fast-track court was set up and the matter was concluded in eight months. However, it took seven years to hang them. The Government of India has now repealed the earlier laws and enacted the Bharatiya Nyaya Sanhita (BNS), 2023, the Bharatiya Sakshya Adhiniyam, 2023, and the Bharatiya Nagarik Suraksha Sanhita, 2023, to replace the Indian Penal Code, creating stricter laws and much needed streamlining in implementation. However, there are still core issues in rape laws that need to be tightened. Stricter laws create a mindset where a perpetrator is afraid of the consequences. This deterrence is extremely necessary in today’s India. World over, we see that where the punishment for rape is swift and harsh, incidence of rape is much lower.
There is an urgent need for deterrent laws. BNS, 2023 already encompasses stringent provisions for the punishment of rape and related offences. Sections 64, 66, 70(1), 71, 72(1), 73, 124(1), and 124(2) of the BNS provide a comprehensive legal framework addressing various aspects of sexual violence, including rape, rape and murder, gangrape, repeat offence and the disclosure of a victim’s identity. These sections emphasise the severity of these crimes and the necessity of strong deterrents. For instance, the BNS includes a new chapter on ‘Offences against Woman and Child’, introduces electronic First Information Reports (e-FIRs) to facilitate swift reporting, and mandates the application of all relevant sections of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) if the victim is a minor. The BNS outlines severe penalties: Section 64(1) prescribes imprisonment ranging from 10 years to life for rape, while Section 64(2) extends this to life imprisonment for the remainder of a person’s natural life in cases of aggravated rape. Section 66 of the BNS provides for a minimum of 20 years of rigorous imprisonment for certain offences.
Despite BNSS making laws stringent, the R G Kar rape case has still happened. This suggests that the current laws do not act as deterrent enough, that stricter laws are necessary.
The West Bengal government has passed the Aparajita Woman and Child Bill (West Bengal Criminal Laws and Amendment) Bill 2024, which is a laudable step towards creating an environment where there is true deterrence. The Bill proposes capital punishment for those convicted of rape if their actions result in the victim’s death or leave her in a vegetative state, as well as a fast-track mechanism of completing the investigation and trial within 21 days and 30 days respectively. I believe that right now India needs this.
The writer is a graduate of the Harvard Law School, former Additional Solicitor General of India in the Supreme Court and a recipient of the French order of Merit
