The collective grief and sorrow across the country over the tragic death of the brave young woman deepens when one considers that the horrific incident could have been avoided had the government and the police done their duty in implementing earlier decisions. Security measures are made up of what may seem small steps, such as implementing the prohibition on tinted windows in buses, but the absence of such measures permits the kind of brutality the young woman was subjected to in a moving bus in the heart of the capital. The traumatic procedures for a rape victim are supposed to have been made more sensitive. But she had to record her statement not once, twice, but three times, first to the police, then to the sub-divisional magistrate and finally to the magistrate, because of the mess-up between the Delhi government and the police. That this could happen in a case that was the focus of national attention also highlights the deep flaws and infirmities in procedures and legal frameworks to bring justice to victims of rape and the utter lack of accountability. These aspects become even more critical when the perpetrators of sexual violence are men with power, whether economic social or political, who can manipulate the system, and their victims are women of the so-called lower castes, Dalits or tribals, or belong to the working classes who have little or no access to justice.
The terrible tragedy should, at least now, spur the Central and state governments to take action on the long-pending requirement for reform in laws and procedures concerning sexual assault. A special session of Parliament to discuss changes required in the laws regarding women would have meaning if lawmakers were sensitive to such issues. In a previous session of Parliament, the bill for prevention of sexual harassment at the workplace, a flawed piece of legislation, was pushed through the Lok Sabha without even a discussion and has not yet come up in the Rajya Sabha. Amendments to the clauses in the IPC and the CrPc concerning rape and sexual harassment of women were introduced in Parliament earlier this month and referred to a standing committee. Women’s organisations, along with the National Commission for Women, had worked on a draft to reform major weaknesses in the present law. The government draft has accepted some of the recommendations, including a better definition in the clause on rape and other forms of sexual assault. It also has an additional clause to punish officials not implementing the law, including directions for investigation. However, it has subverted the basic thrust of the draft by making it gender neutral. Thus, the terms “female”, for the victim, or “male”, for the perpetrator of the crime, have been replaced by the gender-neutral term “person”. This trivialises the experience of women victims. If the government’s case is to include in the law’s ambit the prevention of coercive same-sex violence, it should first end its utter hypocrisy on the rights of people in same-sex consensual relations and decriminalise laws concerning homosexuality. It can then draft a separate clause on this aspect. But to dilute a law intended to prevent sexual violence against women by making it gender neutral is highly objectionable.
The draft law does not include marital rape. This would be an important protection against drunken and violent husbands who think it is their marital right to force themselves on their wives without her consent. A marriage certificate cannot be a licence for forced unwanted sex. The proposed amendments retain highly patriarchal definitions of sexual harassment, calling it, for instance, an act that “outrages the modesty of a woman”. This wording only adds substance to blaming the victim for wearing “immodest” clothes or behaving in an “immodest” way in the company of a male not related to her and so on. The young women protestors on Delhi’s streets, holding up placards asserting their right to dress, speak, behave the way they want to, are challenging such definitions. The whole point is that sexual harassment has nothing to do with female modesty and everything to do with impermissible male sexual behaviour and assertion of power. This must be recognised in the language of the law.
In the case of punishment for rapists, the most disturbing aspect is the low rate of conviction, which is the single most important reason for the present impunity that rapists seem to enjoy in India. In fact, the conviction rate has actually come down from 46 per cent 40 years ago to just 26 per cent. Courts routinely give punishments well below the maximum and often reduce the minimum permissible in the name of extenuating circumstances. In a recent judgment, the Supreme Court reduced the sentence of a man convicted of rape and murder on the ground that he was “inebriated” and therefore did not understand the consequences of his act. Thus, in India, you can get away with a reduced sentence for rape if you are drunk. Since the rapists in the present case were also reportedly drunk, could this be cited as defence to repeat a travesty of justice?
The draft does not include a time-bound framework, which is critical for strengthening the processes of justice. In 2011, there were 80,000 pending cases of rape before the courts. Fast-track courts are essential for all cases of sexual assault on women. As far as sentencing is concerned, the bill includes the maximum term of life imprisonment for rape and aggravated rape. However, it does not specifically state that for aggravated rape it must be life imprisonment till death.
But as is well known and recognised, the law alone and its implementation will not suffice. In changing the present dominant approaches that blame the victim for the sexual assault against her, Parliament and elected representatives should play a leading role. There should be a gender-sensitive code of conduct set for all elected representatives to prevent them from making demeaning and derogatory statements against women, which has become common. Women are claiming the public space as equal citizens and this is what has to be supported by the law, security and social attitudes. Rape survivors are not living corpses. It is regressive social mores, which promote chaste female bodies as the essence of womanhood, that seek to equate rape with death. This is not to minimise, in any way, the heinous nature of a crime that invades and violates the integrity of a woman’s body, an act of violence that is more invasive than anything else. But honest homage to the young woman who was denied the right to life lies in reforming the laws, the polity and ourselves, and making those who refuse to do so accountable.
The writer is a member of the CPM politburo