Reluctant state

Inside a DTC bus in New Delhi, a file photograph. The police have been blamed for not ensuring safety in public spaces.

THE recent incident of gang rape of a 23-year-old girl by six men in a moving bus in Delhi triggered a nationwide response from citizens, including women and young girls who have been subjected to various forms of sexual harassment and assault for as long as they can remember. Every time they stepped out of their homes, walked on the streets or boarded a bus or train, they risked and continue to risk being harassed and groped and subjected to unwelcome sexual touching. However, instead of their harassers being targeted, their freedom of movement and their right to choose what they will wear and to associate with whomever they want are restricted. These women and others who marched with them demanded justice and severe punishment for those who had raped the young girl and beaten and assaulted her and her friend. Some people also demanded that the police be held accountable and punished for failing to prevent this and other rapes or sexual assaults from taking place. They demanded more stringent laws against rape and other forms of sexual assault.

A government that had ignored such demands for decades suddenly swung into action when it realised the extent and uncontrollability of the public anger. It claimed the girl was given the best medical treatment. A speedy investigation of the case was carried out in about two weeks and a charge sheet filed.

In another knee-jerk reaction, a high-level committee comprising former Chief Justice of India Justice J.S. Verma was constituted to suggest “laws to provide for quicker trials and enhanced punishment for criminals accused of committing sexual assault of extreme nature against women” [sic]. The Home Minister asked all political parties to send this committee their suggestions for changes in the law. However, the limited terms of reference of this committee, which is only supposed to suggest harsher punishment and measures for speedier justice, show that the government is not serious about bringing comprehensive and holistic changes to the laws and procedures relating to sexual assaults.

A commission headed by Justice Usha Mehra, former judge of the Delhi High Court, has also been set up to inquire into the various aspects of the incident and to “identify the lapses, if any, on the part of the police or other authority or person that contributed to the occurrence and fix responsibility for the lapses and/or negligence on the part of the police or any other authority or person”. The commission has to suggest “measures to improve the safety and security of women, particularly in NCT [National Capital Territory] of Delhi and NCR [National Capital Region].” This commission has obviously been constituted to deflect the demand by various women’s organisations for the removal of the Delhi Police Commissioner and other high officials for not putting in place and enforcing safety of women and other preventive measures which had been agreed upon.

Guidelines ignored

A number of measures to improve the safety and security of women in Delhi had been suggested to the police following cases of rape, murder and sexual assaults in the past. The police were to map Delhi and identify areas where women are most vulnerable to assault. Following this, there were to be increased patrolling in these areas and improved lighting on the streets and in places like public toilets in the city.

It was also decided that buses, taxis and other modes of transport would not be allowed to ply with tinted windows; the police were to enforce this rule. However, neither did patrolling substantially improve even in vulnerable areas nor did the police enforce the rule against using tinted windows. The bus in which the gang rape took place had tinted windows and had passed through several police check points when the assault was on. VIP and VVIP security continues to be prioritised over and above the security of citizens, including women, in Delhi and more than 30 per cent of the police force is deployed for this.

In their memorandum to the Police Commissioner after the gang rape, the All India Democratic Women’s Association (AIDWA) and other national women’s organisations demanded that the police should follow Standard Operating Procedures (SOP) in all cases of sexual assault. These procedures should mandate the police to register a case immediately, send the complainant for medical examination, collect the evidence, including clothes, at the spot, and carry out the investigation in a time-bound manner, the memorandum said. It demanded punishment for the police personnel concerned if they do not follow this procedure.

From time to time the Delhi Police have issued certain standing orders, including Standing Order No. 303/2010, which lay down certain guidelines for the police in cases of rape. Though further changes can be suggested to them, these guidelines were a step in the right direction. They stipulate that a woman police officer shall be present in each police station, that “the victim” and her “family” shall be made “comfortable” and that the investigating officer along with the woman police officer shall escort the “victim” for medical examination. The order also stipulates that no “victim” of sexual assault shall be called or made to stay in the police station during the night and that the statement of the “victim” shall be recorded in private in the presence of family members unless it is a case of “incest”. Further, it says that the investigation shall be supervised by an Assistant Commissioner of Police and that the information on the case be immediately given to the rape crisis cell.

In the case of children, it is mandated that the statement of the “victim” shall be recorded at her residence and that the child shall be medically examined within 24 hours and her clothing promptly sent for forensic examination. It has also been stated that private hospitals shall give immediate medical attention to the complainant and that the medical examination shall be carried out after psychiatric help is made available to the child. These mandates shall also apply to women who need immediate medical help and counselling after they are sexually assaulted, the guidelines say. These orders were issued following the directions of the Delhi High Court in judgments in 2003, 2007 and 2008. However, these standing orders are rarely followed in letter or spirit.

It is obvious that model SOPs need to be framed for the entire country and circulated to all the States for adoption. These SOPs should be made applicable to all cases of sexual assault and not be restricted to rape.

Police reforms

Apart from this, the Supreme Court in Prakash Singh’s case had directed the Central government to carry out extensive police reforms to stop political/executive interference in police work and to ensure independence of the police. This judgment directed the constitution of a security commission in every State to ensure that the State government did not exercise influence or pressure on the police. This judgment laid down rules for the selection of the Director General of Police (DGP), the Inspector General of Police and other officers and emphasised a minimum tenure for all of them. It also directed that there should be a separation of law and order duties of the police and investigation work as this would ensure speedier investigation and better expertise.

The judgment also said that a police complaint authority headed by a district judge shall be set up in every district to look into the complaints against police officials up to the rank of Deputy Superintendent of Police and grievances against police officers of higher ranks shall be examined by a State-level complaint authority headed by a retired judge of the High Court or the Supreme Court. Both these heads had to be chosen from a panel of names proposed by the Chief Justice of the State or the Chief Justice of India respectively. However, various States have not followed even these directions of the Supreme Court.

Successive governments have been steadfast in their resolve not to change the patriarchal and archaic laws relating to sexual assault in the Indian Penal Code though several cases have shown the inadequacy and ineffectiveness of current laws and procedures. The Ruchika Girhotra molestation case not only highlighted the lapses by the police in investigating cases, particularly against those in positions of power, but also showed how inadequate the law was when it came to punishing the offender. S.P.S. Rathore, the former DGP of Haryana, who had molested the young girl, was only given a punishment of one and a half years.

Various forms of sexual assaults in which the accused may also hurt and injure the “victim” are not recognised as more aggravated forms of sexual assaults and are only punishable with up to two years of imprisonment. The Guwahati molestation case in July last year, in which a 19-year-old was manhandled and groped by a gang of men outside a bar, again highlighted the fact that molestation by a gang is not seen as an aggravated form of the crime in our penal code.

Demand to change laws

For more than 20 years, since 1993, AIDWA and other women’s organisations and groups have been demanding comprehensive changes in the substantive and procedural laws relating to sexual assault and violence against women and children. They have presented memorandums and concrete proposals to successive Law Ministers, including Ram Jethmalani, Arun Jaitley, Shivraj Patil, M. Veerappa Moily and Salman Khurshid, to overhaul the 1861 Indian Penal Code (IPC). They have demanded changes in Sections 375 and 376 relating to rape, Section 354 relating to molestation, and Section 509 relating to sexual harassment (popularly known as eve-teasing).

It has been demanded that the definition of rape be widened to include forced oral and anal sexual intercourse and to include insertion of objects and parts of the body into the vagina and anus as penetrative sexual intercourse. Molestation has been described as assault which “outrages the modesty of a woman”. In Section 509, words, gestures and acts which “outrage the modesty of a woman” have been made punishable. Women’s groups have repeatedly pointed out that the words “outrage the modesty of a woman” are moralistic, insulting and humiliating to women and should be deleted.

The suggestions include the introduction and recognition of stalking and stripping as new offences in the IPC as these are still not reflected as crimes in it. In 1983, certain kinds of rapes were recognised as aggravated forms of sexual assault. These were rape by a policeman or a public servant, gang rape, and so on. While the minimum punishment prescribed for rapes is seven years’ imprisonment, for these aggravated forms the prescribed punishment is a minimum of ten years’ imprisonment and a maximum of life. Women’s organisations since then have asked for the introduction of new categories of aggravated forms of rape to include persistent sexual assault, and sexual assault by members of the armed and paramilitary forces, sexual assault on a differently abled person and for making a public official punishable under this clause if the sexual assault was carried out with his instigation or acquiescence. These suggestions were totally ignored though some ad hoc procedural changes were introduced in the law of evidence, prohibiting “cross examination of the prosecutrix of her general and moral character”, and in the Criminal Procedure Code (CrPC), relating to speedy trials and recording of statements.

Last year, the Protection of Children from Sexual Offences Act, 2012, was introduced. However, the laws relating to sexual assault on adult women remain unchanged. Recently, the government introduced the Criminal Law (Amendment) Bill, 2012, in Parliament, which has been criticised as being both limited and flawed. The Bill broadens the definition of rape to include within it all forms of penetrative sexual assault. It also replaces the word rape with sexual assault as had been demanded by several women’s organisations and groups to emphasise that rape is a form of violence against women.

The Bill however, makes the offence gender neutral. As pointed out by AIDWA and others, this seems to imply that women can commit sexual assaults against men, leaving no empirical evidence at all. The section will, in fact, allow men to file false cases of penetrative sexual assault against women.

An earlier government Bill on the subject in 2010 had rightly made the law gender-specific as far as adults were concerned, and the accused persons could only be men while the complainants/“victims” were women. Further, the Bill exempts marital rape from being recognised as an offence. It merely increases the period of punishment in Section 354 (molestation) from a term which may extend up to two years to a term of one year which may extend up to five years without changing the language or recognising the aggravated forms of sexual assault that can occur with molestation. The government Bill is thus deficient and cannot be passed in its present form.

The issue of justice for complainants of sexual assault cannot be resolved by a single- or dual-point agenda. Multiple strategies at multiple levels will have to be employed. These will include better policing and better implementation of the laws, changes in the substantive and procedural laws, speedier trials, and an in-depth and extensive agenda for gender sensitisation of key actors such as the police and the judiciary.

Kirti Singh is a Senior Advocate of the Supreme Court and a former member of the Law Commission of India.