Understanding
and overcoming sexual violence in India
Anjuman Ara Begum
Sexual violence remains
unabated in India. The December 2012 gang rape and subsequent death of a 23-year-old
female led to a phenomenal consciousness and increased momentum in the country’s
discourse on sexual violence. For the first time, the discourse shifted the
blame from victim to perpetrator, fostering phenomenal changes in the colonial
era criminal laws. In Indian society due to the prevalence of wide gender
discrimination, victims of rapes are likely to be held responsible than the
victims of theft. The momentum, however, failed to provide crucial protection
and redress for the survivors. News headlines depicting brutalized sexual
violence have barely changed since then. The reason for this is that crucial
recommendations and changes in legal system suggested at that time, such as
recommendations on police reforms, reduction of the age of consent, amendments
to the Armed Forces (Special Powers) Act 1958, reforms in the country’s education
system as forwarded by the three-member
committee[1] formed after the incident, were all ignored. Similarly,
recommendations related to the management of crimes against women through an
online complaint system, bringing all police stations under CCTV surveillance,
non-harassment of public for helping rape victims, increase in the number of
police and special training of police to deal with cases of sexual violence
were also ignored. Without these basic changes in the country’s criminal
justice system, crimes of sexual violence are bound to continue unabated.
Since December 2012, there have been media reports of the hanging of
brutally raped victims, the sexual assault of a female judge in her official
residence, the pumping of bullets into her private parts after the assault,
burning dead bodies after gang rape; all of these conclude that India’s
criminal justice ‘system’ has failed systematically. While the gruesome assault
and violence subjected to thousands of women may shake the human conscience, it
continues to leave the criminal justice system cold and unaffected. It is a
fact that every 20 minutes a rape is committed in India, with only four out of
10 cases proceeding to the country’s justice system for redressel. The possibility
of justice for even these cases is uncertain due to legal complexities and social
notions such as ‘honour’.
Legal aspects
The question that arises in this scenario is why is the state unable
to curb sexual crimes? The answer to this is not merely about the inefficient
criminal justice system; it must also include India’s prevalent cultural norms.
Author Dr. Vandana[2],
believes that violence is not a natural or biological phenomenon and therefore
she said ‘the existence of sexual violence is, therefore, a political question,
which requires an analysis of the institutions of the state and the society,
the conditioning and socialisation of individuals and the nature of economic
and social exploitations’. Catherine MacKinnon, eminent feminist writer, too
explained that ‘patriarchal values and sexual mores guarantee reproductive
ownership, sexual access and control over women, to men as a dominating group.
The state incorporates these facts of social power in and as law’[3]. All law
must be seen in two parts—the substance of the law and its implementation. The
amendments to India’s laws dealing with sexual assault after December 2012 made
legal literature more favourable to women. The definition of sexual assault was
expanded to go beyond vaginal penetration for instance, punishment for acid
attacks was introduced and clarification was provided to section 197 of the Criminal
Procedure Code concerning ‘prior sanction’ for initiating legal proceeding
against armed forces[4]. No
changes were made to the implementation of these laws however. Victims of
sexual assault face enormous challenges in accessing the justice system, from
legal to cultural. While filing a First Information Report (FIR), the first
step in seeking justice, is hard in any instance in India, it becomes a
Herculean task when a woman wants to complain of sexual assault. India’s culture
of law enforcement is such that legal text alone does not determine her rights
and entitlements, or the space available to her to claim justice. Common
practice before the police register an FIR, is for officers to satisfy
themselves that the victim wears the ‘right’ clothing, eats the ‘right’ food,
keeps the ‘right’ male friends, and also her use of ‘questionable’ modern
electronic addictions like mobile phones. This kind of negative stereotyping as
well as attacking complainants’ self-esteem is one of the prime reasons for not
reporting sexual crimes and accessing the criminal justice system. It is
unfortunate that the 2013 legal amendments retained discriminatory concepts
like ‘insult’ and ‘outrages to women’s modesty’, which project emphasis on
women as a symbol of honour, undermining the criminal liability of the offence.
Burgess and Holmstrom has rightly
pointed out that ‘going to the Court, for the victim, is a much of a crisis as
the actual rape itself’[5].
The culture of impunity for sexual violence is widespread and has
contributed much to propagate the crime. This impunity is both de-jure and de-facto. De-jure
impunity is propagated through several legal instruments that validate
immunity for state actors. The provision of ‘prior sanction’ was incorporated
in several security legislations for this purpose. Sections 45, 132, 197 of the
Code of Criminal Procedure, sections 125, 126 of the Army Act 1950, section 45
of the Unlawful Activities (Prevention) Act 1967 and section 6 of the Armed
Forces Special Powers Act (AFSPA) 1958, hold that no court shall take
cognizance of any offence committed by certain state actors unless previous
sanction thereof is granted by the appropriate government. It has been observed
that procuring ‘sanction’ for prosecution occurs in the rarest of cases, with
most applications rejected by the authorities at their discretion. This is one
of the reasons that the perpetrators of Manorama’s rape and murder have yet to be
brought to justice. Arrested by the Assam Rifles in July 2004, Manorama was
found dead with bullet injuries in her private parts within hours. Public
outcry led to an inquiry commission into the case, whose reports were
challenged by the armed forces for violating the immunity section under AFSPA. The
matter is yet to be disposed of by the judiciary even after ten years of
litigation. A legal proceeding against the accused armed forces can be filed
only after that.
De-facto impunity is equally prevalent
in the criminal justice mechanisms and its enforcement institutions. Police
authorities often deny or block access to justice by refusing to register
complaints. The investigation and trial process remains extremely slow and
unscientific. Moreover, routine practices of torture by security enforcement
agencies create a fear psychosis and discourage formal complaints against them,
propagating a culture of impunity
at all levels of justice administration. This culture is tolerated through
various legal provisions and practices with the state’s full knowledge and
acquiescence.
The principle of due diligence is too narrowly adopted in the
legal system to hold private actors accountable for violence against women. For
example, culture of impunity is well established in cases of domestic violence.
Under the due diligence obligation, states have a duty to prevent and protect
women from violence, punish perpetrators of violent acts and compensate victims
of violence through affirmative action. However, its application, to date, is
limited to responding violence when it occurs and neglecting the prevention,
compensation and the responsibility of the non-state actors[6].
Women
face enormous legal hurdles to access justice, as reflected in a study on
sexual violence by state agencies in Assam conducted by the author earlier,
entitled “Sexual Violence and Impunity in the Conflict Zones of Assam’:
·
Filing of FIR by
victims/survivors against armed forces is very difficult due to the culture of
impunity enjoyed under the Armed Forces (Special Powers) Act, 1958. In several
cases, despite rape being a cognizable offence, police refused to register an
FIR, or only did so after protests by the local community. This resulted in
delayed investigation and medical examination.
·
In one case, legal
proceedings into rape allegations were blocked by a politician with promises of
employment and compensation to the survivor. When these were not fulfilled, the
survivor had to pay the price; her husband would release his frustration through
physical violence upon her.
·
Intentional delays
in investigations by the authorities
·
In another case the
trial was stopped as the accused could not be identified
·
Inadequate
compensation was awarded in cases where the crime was proved.
Sociologically speaking, a patriarchal society prescribes male
dominance and promotes authoritarian personalities. Law enforcement agencies
are traditionally based on masculine ideologies, and the police and military
institutions provide ample space for exhibiting dominating and authoritarian
personalities. Additionally, women comprise little more than six percent of the
Indian police and armed forces, which are dominated by a disproportionate male
presence. The tendency to impose power and control over women and their bodily
autonomy is thus commonly manifested within these institutions. It is under
these circumstances that police often deny registering cases of sexual assault.
And the few that are registered have minimal chances of success.
The country’s judicial system is also victim to dominance ideologies
over women’s bodily autonomy, and administers law accordingly. Judicial
pronouncements have deep rooted gender bias. The judiciary has been observed to
be less than congenial to women victims of sexual assault.[7] In October
2013, a Delhi High Court judge said in his court order that ‘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 for which he was trained and undermined
the principle of rule of law as per the Indian Constitution. The pronouncement
is judicially biased, derogatory and against the interest of the victim. In the
case of Bhawri Devi, who was gang raped in 1992 by five men while working in a
field, the District and Session court delivered an order stating that dominant
caste men would not rape a women belonging to the oppressed caste.[8]
Examples of such evil judicial pronouncements are not new and have been
persistent in India from ‘Mathura[9]
to Manorama[10]’ and
beyond.
Furthermore, the inadequate number of judges, prolonged period of
litigation, manipulation of medical reports, intimidation of victims and witnesses
are barriers in the road to justice in all types of violations; cases of sexual
assault are no different. Corruption and political influence are equally to
blame for the country’s dysfunctional justice system.
Few case studies will further illustrate these aspects.
- Jonali (name changed), narrated that the army men used to come to her village to carry out ‘operations’. On April 22, 1997, night she was sleeping along with her husband and daughters. She said, ‘Four men in camouflage uniform entered our house and took me behind the house. I thought they will kill me. But they raped me one by one. They were masked and were muttering ‘ghumo, ghumo.. hum karega, hum karega..[turn around, turn around, my turn, my turn]’. A case was filed with the police and a medical test was also conducted, however, both remained inconclusive. Jonali’s life after the incident became a haunting saga. ‘Local women said that it would have never happened if I were a woman of good character,’ she narrates. The incident increased domestic violence at home and Jonali was forced to compromise with that: ‘My husband too believed that I am a bad woman and that’s why it happened to me. I did not ask for this to happened, so why is my character being blamed?’
- 38 years old Monika (name changed) protested against the arbitrary detention of her husband by the armed forces in April 2011 in Kokrajhar district of Assam. She moved from pillar to post in order free her husband from the custody of the armed forces, an act treated as something against the national security. Arbitrary detention in the region has often led to disappearance or extrajudicial killings. Subsequently Monika was sexually assaulted by six armed personnel in order to teach her a lesson and to revenge for her activities. Monika could recognise them as members belonging to 15th Dogra Regiment as they were known to the family due to the facts mentioned above. Monika with the help of her husband could manage to file an FIR to Kokrajhar police station on 21st April, 2011. Investigation into the case is still not completed. In 2012, Chief Judicial Magistrate, Kokrajhar issued an order asking the investigating officer to complete the investigation as soon as possible and submit the report. As per section 167 of Cr.P.C, the investigating officer is to complete the investigation within three months and submit the report but in this instant case, it has been about nine months and still investigation is not completed. Since the incident, Monika’s husband refused physical relationship with her on the ground of her chastity. Monika believes that if she receives compensation her husband may accept her and love her again.
Political
and cultural will
India’s political leaders, who exert
significant influence over common citizens, also play a role in pronouncing and
promoting misogynistic ideologies regarding sexual
assault, and reinforcing impunity. Madhya Pradesh’s Home Minister Babulai Gaur
for instance, went so far as to say ‘rape is sometimes right, sometimes wrong’.[11]
Ramsevak Paikara, Home Minister of Chhattisgarh, was reported to say ‘no one
commits rape intentionally, it happens by mistake’.[12] Prominent
politician Mulayam Singh Yadav meanwhile, outrageously noted that, ‘Boys make
mistakes, why hang them?’.[13] He was
supported by fellow politician Abu Azmi, who opined that ‘women who were raped
should also be hanged’.[14] The
latest in line is Arun Jatley, who termed the December 2012 gang rape and
subsequent death of the young woman in Delhi as ‘one small incident of rape’
costing billions of dollars in terms of global tourism.[15] While these
statements and views are unfortunately only the tip of the iceberg, they are
significant in understanding how the country’s institutions and public
officials are mired in authoritarian, misogynistic and gender biased norms.
These views and norms are then filtered down to ordinary people.
Socially, India provides little space to be a sexual being,
particularly for women. Talking of sex or sexuality is taboo and unwelcome in the
public domain. Young children largely grow up in a gender segregated
environment, and often suppress their willingness to play or mingle with children
of the opposite sex due to parental or social disapproval. Repressive sexuality
is often quoted by Indian authors like Sudhir Kakar as a reason for sexualized
and gender based violence. Society prescribes women to be chaste and celibate
before ‘marriage’, thus suppressing her sensuality and sexuality. At the same
time, women are advised to take ‘precautions’ against sexual violence, ranging
from wearing certain clothes, travelling at certain times, in certain areas, to
keeping ‘good company’. Men meanwhile, are free to express their sexuality,
even in violent ways, and these are blithely justified with the explanation
that ‘boys will be boys’. Homosexual sex is still criminalized as “unnatural”
under section 377 of the Indian Penal Code. This encroachment in the private
space of citizens exhibits a narrow construction of people’s freedom over their
bodily autonomy and their choice of life.
Social,
political and legal change
Violence against women in India will remain unabated due to the
pervasive prevalence of discrimination against women and girls, which starts at
birth and continues till death. Law if enforced properly is undoubtedly an
instrument to control and modify human behaviour. Not only does India need to
reform its laws to make them gender equal, but it also needs to enforce these
laws effectively. The entire criminal justice system—the police, prosecution
and judiciary—needs to be retrained so as to be cognizant of gender issues. As
has been clearly demonstrated above, the views and attitudes of police
officers, judges and other public officials at present are severely detrimental
to enforcing laws that protect women’s rights.
Only when public officials, politicians and society alike hold these
laws and their corresponding legal norms as valuable and worthy, can effective
enforcement occur. And this can only happen when there is social and political
change in the views towards women. It is thus crucial that the state and
society work towards seeding this change. Social and cultural patterns of
conduct towards gender need to be modified. Not only should the state focus on
improving the lot of women, but it must also work on changing the attitudes of
men, and garner the support of men. Gender discrimination and violence against
women is not to be treated as women’s issue. Men have as much to lose and as
much to gain.
[1] The Committee has recommended certain steps to reform
the police. These include establishment of State Security Commissions to
ensure that state governments do not exercise influence on the state
police. Such Commissions should be headed by the Chief Minister or the
Home Minister of the state. The Commission would lay down broad policy
guidelines so that the Police Acts according to the law. A Police
Establishment Board should be established to decide all transfers, postings and
promotions of officers. Director General of Police and Inspector General
of Police should have a minimum tenure of 2 years. For details visit, Justice Verma Report Summary,
available at http://www.prsindia.org/parliamenttrack/report-summaries/justice-verma-committee-report-summary-2628/
as on August 14, 2014
[2]
‘Sexual Violence –Concept and Determinants: Feminist and Human Rights
Perspective’, Lexis Nexis publication, 2009, page 15
[5] Ann Wolbert Burgess and Lynda Lytle Holmstorm, Rape:
Victims of Crisis, as quoted in ‘Sexual Violence –Concept and
Determinants: Feminist and Human Rights Perspective’, Lexis Nexis publication,
2009, page 145
[7] As reflected in, ‘Law on
Violence: Against Women’, by Charu Walikhanna,
Serials Publication, New Delhi, 2009
[9] Mathura Rape case was an incident of custodial rape in
India on 26 March, 1972 which later prompted legal reform making custodial rape
punishable and shifting the burden of proof to the accused in 1983.
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