Anjuman Ara
Begum
Sexual violence continues in
India unabated.
The December 2012 gang rape
and subsequent death of a 23 year old woman led to a shift
in discourse on sexual violence in India. For the first
time, the blame shifted from victims to perpetrators,
fostering changes in certain colonial era criminal laws.
However, the changes have
failed to provide crucial protection and redress. Important
recommendations, forwarded by the three-member committee
following the incident, were ignored, and sexual crimes
rage, as uncontrolled as before. News headlines depicting
sexual violence have not changed since December 2012.
Gruesome abuse and killings
of victims have shaken the human conscience but not the
criminal justice system in a country, which continues to
prove itself a 'systemic failure'- even after state promises
of ensuring its effectiveness. Every 20 minutes, a rape is
committed in India; but only 4 out of 10 incidents make it
to the country's justice system. Such low reporting of
sexual assault, due to legal complexities and ideas of
‘honour’ and ‘shame’, make the
possibilities of justice remote, and create an insufficient
deterrent in society.
Recent gory reports, such as
the hanging of raped girls, the sexual assault of a female
judge in her official residence, the pumping of bullets into
the private parts of a woman after an assault, and the
burning of a dead body following a gang rape, are sufficient
evidence to conclude that the 'system' has systematically
failed. An insensitive, poorly funded, inefficient, and
unnecessarily hierarchic structure called the criminal
justice system has proven nothing but a demon to women
seeking justice.
Why does the state fail to curb sexual crimes?
Cultural aspects cannot be
ignored. The substance of the law and its implementation,
are two different aspects. The 2013 amendments of laws
dealing with sexual assault improved the legal literature,
making it more favourable to women, but not the culture of
implementation. The redress system faced by a sexual assault
victim has enormous challenges, ranging from legal to
cultural. Filing a First Information Report (FIR), the first
step in seeking justice, is hard in India. But, it is
nothing less than a Herculean task when a woman complains of
sexual assault. Due to the culture of enforcement of laws in
the country, legal texts alone don’t determine her
rights and entitlements. Negative stereotyping and attacking
the self-esteem of the rape survivor is one of the prime
reasons for not reporting the crime and accessing the
criminal justice system. Moreover violence against women in
India is an institutionalised phenomenon. Before noting the
FIR, policemen often satisfy themselves with knowledge of
whether the victim wore the 'right' clothing', ate the
'right' food, kept the 'right' male friends, or uses
'questionable' modern electronics like a mobile phone. The
2013 amendments, though they expand the definition of sexual
assault and promise to be more sensitive to women, also
carry forward negative elements. They retain discriminatory
and stereotype concepts like 'insult' or 'outrages to
women's modesty' in order to define a criminal act.
The culture of impunity for
sexual violence is widespread and has contributed much to
propagate the crime. Both de-jure and de-facto culture of
impunity for crimes, including sexual crimes, is one of the
prime contributory factors for such crimes. In India,
de-jure impunity is propagated through several legal
instruments that validate immunity for state actors. A
provision called 'prior sanction' was incorporated in
several security legislations for this purpose. Section 45,
132, 197 of the Code of Criminal Procedure, section 125 and
126 of the Army Act, 1950, section 45 of Unlawful Activities
(Prevention) Act, 1967, and section 6 of the Armed Forces
Special Powers Act (AFSPA), 1958, state that no court shall
take cognizance of any offence committed by certain state
actors unless prior sanction is granted by the appropriate
government authority. It has been observed that the
'sanction' for prosecution is granted only in the rarest of
rare cases; invariably, authorities, at their discretion,
reject an application for ‘prior sanction’. This
is one of the reasons for the perpetrators of Manorama's
rape and murder is yet to be brought to justice. Manorama
was found dead within hours of her detention by armed forces
in Manipur in 2004 leading a massive public outrage.
De-facto impunity is equally
prevalent in the criminal justice system and its enforcement
institutions. Police authorities often deny or block access
to justice, by refusing the registration of allegations. The
process of investigation and trial remains extremely slow
and unscientific. Routine practices of torture by security
enforcement agencies create a fear psychosis. It discourages
formal complaint, propagating a culture of impunity at all
levels of the administration of justice. Such a culture is
tolerated under different laws and practices with state
'acquiescence'. The principle of due diligence is too
narrowly adopted in the legal system to hold private actors
accountable for violence against women.
Sociologically speaking, a
society based on a patriarchal structure, prescribes male
dominance and promotes authoritarian personalities. Law
enforcement agencies are based on masculine ideologies.
Institutions like the police and the military provide space
for such personalities. They foster the tendency to impose
power and control over women and their autonomy. This is why
police often refuse to register cases of sexual assault, and
even if they register them, there is little to no guarantee
of justice. Additionally, males disproportionately dominate
the police and the armed forces, whereas women comprise
little more that 6% of such forces.
The judicial system cannot be spared either. It, too,
inherits perceived dominating ideologies over women's bodily
autonomy, and administers the law accordingly, encouraging
impunity for sexual violence. The country's judicial system,
hailed, as one of the most powerful institutions for
protection and promotion of human rights, is still not
congenial to female victims of sexual assault. An inadequate
number of judges, prolonged periods of litigation,
manipulation of medical reports, intimidation of victims,
and non-protection of witnesses are barriers to justice in
all types of violations. Cases of sexual assault are not
immune to this trend. Corruption and political influence are
two blameworthy factors.
India’s judiciary has
adopted and exhibited prejudiced attitudes against women
from time to time and justified impunity for sexual assault.
In October 2013, a Delhi High Court judge was found
sermonizing in an order when he prescribed '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 to cry
later on that it was rape.' The judge ignored the law of the
country to uphold things in which he had been trained, and
undermined the principle of the rule of law.
It is unforgivable that,
Bhawri Devi – who was gang raped in 1992 by five men
when she was working in a field – had to listen to a
judgement three years later delivered by a District and
Session court judge, that dominant caste men would not rape
a women belonging to an oppressed caste. Examples of such
misguided judicial pronouncements abound in India, from
'Mathura to Manorama' and beyond.
The country's political
leaders, who have immense influence over ordinary citizens,
do not lag behind in pronouncing and promoting misogynistic
ideologies regarding sexual assault, reinforcing impunity.
The media also reflects their perceptions.
Politician Babulal Gaur,
Home Minister in Madhya Pradesh, has justified rape, saying
'Rape is sometimes right'. According to Ramsevak Paikara,
Home Minister of Chhattisgarh, 'No one commits rape
intentionally, it happens by mistake'. And, then there is
Mulayam Singh Yadav, a prominent senior politician who has
said, 'Boys make mistakes, why hang them?' And, then there
is Abu Azmi, a senior politician, who supported Yadav by
stating that 'women who were raped should also be
hanged'.
These statements and
perceptions expose the tip of the iceberg; and can help one
understand how India’s institutions, and the
individuals representing the institutions, are certainly not
free from authoritarian and misogynistic ideas that further
propagate the repression of victims of sexual assault.
In India, social space to be a sexual being is virtually
non-existent. Repression rules mainstream society. Talking
about sex or sexuality is taboo; it is unwelcome in the
public domain. An inclusive culture for sharing space is
discouraged especially when it comes to space where opposite
sexes can meet. Young children grow up in a
gender-segregated environment; the urge to play or mingle
with the opposite sex is suppressed simply due to the pain
of parental or social disapproval. In Indian society,
repressed sexuality is often quoted, for instance by authors
like Sudhir Kakar, as a reason for sexual and gender-based
violence. Society prescribes that women be pure, chaste, and
celibate before 'marriage', suffocating her sensuality and
sexuality. Men are free from control in expressing their
sexuality; their attacks are tolerated with an explanation
of a double standard, that 'boys will be boys'. Women are
advised to have some sort of self-protection as a defence
mechanism against getting raped. Prevalence of such a
culture prohibits women from reporting crimes that are
sexual in nature.
In addition, society has its own calculated notion of sexual
behaviour. For example, section 377 of the Indian Penal Code
enters into the private space of citizens and criminalizes
consensual same sex, tagging it 'unnatural sex'. It is still
a valid law despite widespread public opinion calling for
its repeal. Legal institutions upholding such measures
disallow freedom of citizens over their bodily autonomy and
their choice of life.
Violence against women in
India continues and will continue, due to a pervasive
prevalence of discrimination based on gender, which starts
at birth and continues until death. Laws, if enforced
properly, are undoubtedly instruments to control and modify
human behaviour. Change will be accomplished when the state
takes certain appropriate legal and non-legal measures.
Measures to modify and improve the social and cultural
patterns of conduct of both men and women in order to
achieve equality and to negate the culture of impunity. Such
an environment, if achieved, will impact the country's
criminal justice and law enforcement mechanisms profoundly.
Sexual and gender based violence will be minimized but not
eliminated.
It is important that law
enforcement begin with legal education in the law. Citizens
should believe in and respect the law. The ordinary person
has no idea what the law prescribes. They hardly care, as
the criminal justice mechanism is a failed system in India
and they are aware of the possibility of immunity from this
system. It is only when men and women from all walks of life
subscribe to the principles of the rule of law and
non-discrimination and believe in the equality and dignity
of each individual that law enforcement can begin to do its
job effectively.
This article was distributed by Asian Human Rights Commission, Hong Kong
About the author: Anjuman Ara Begum is
Program Officer - India Desk at Asian Human Rights
Commission and can be contacted at e-mail
india@ahrc.asia
