Events & Issues

New Delhi, 31 December 2012

Rape Cases in India

NO MORE CRUDE LAWS

By Dr S Saraswathi

(Former Director, ICSSR, New Delhi)

The young medical student whose ghastly gang-rape saga in the country’s capital, Delhi evoked a spontaneous protest across the nation has scarred the ruling elite. The Union Government today, is under fire from all quarters for stringent law and strict law enforcement to prevent this heinous crime. Opinion is divided on the quantum of punishment though there is nationwide anger and genuine fear among women and girls on the growing cases of atrocities against women. 

Unfortunately, official sympathy does not match with public anger uniting people of different sex, age-group, social and economic status, educational standard, and political persuasions. Delhi had never witnessed such huge spontaneous leaderless protests on a social issue. Thus, one witnessed a rattled Government taking unprecedented actions, be it fortifying the India Gate area for days together and closing many metro stations, or sending the girl for to Singapore for treatment, or for that matter both Prime Minister Manmohan Singh and Congress UPA chairperson Sonia Gandhi going to the airport to receive the body of the young girl and consoling her family. It has also promised stern action and changing the law to award extreme punishment in rape cases.   

Undeniably, increasing number of rape cases has become a serious social problem.  It was discussed in the Parliament way back in 1998 in a special debate on atrocities against women in the Lok Sabha.  The then Home Minister L.K Advani suggested that the prescribed maximum punishment of 10 years of imprisonment which could go up to life term for this crime should be raised as death penalty. His suggestion was also approved by the cabinet.

Rape was considered as serious a crime as murder deserving capital punishment as for murder.  Advani’s suggestion was made in the context of the shameful incident of gang-rape of four nuns in Jabua district of Madhya Pradesh – the state known for high incidence of rape. His argument is that rape is much more heinous crime than murder since it reduces a woman to a state of a living corpse. The debate in Parliament ended without passing any legislation enhancing the punishment.

Justice Krishna Ayyar has also said in the case of Rafiq versus the State that rape is worse than murder because “a murderer kills the body, but a rapist kills the soul”.  Such expressions are repeated by many women and men in the present instance of gang-rape in the heart of the capital.

Rape is dealt with under the Indian Penal Code in Sections 375, 376, 376-A to D.  The Criminal Law (Amendment) Act 1983 provides a minimum punishment of imprisonment for 7 years and maximum of 10 years for rape.

It is a common practice to estimate the incidence of rape per hour and per day to show its wide prevalence.  The National Crime Research Bureau, the only official agency providing crime statistics, shows enormous increase in this crime year by year despite the fact that over 70% of cases, according to some estimates, go unreported for fear of social stigma and irremediable nature of the injury caused to the victims which make them lose any faith in seeking justice.

Indeed, there can be no justice or compensation for rape victims. The law against rape and the law enforcement agency can only aim at preventing recurrence of the crime in future. This should be possible if we create such legal, judicial, policing, administrative and social conditions that directly go to insulate girls and women from being targeted for sexual assault of any kind and degree.

Public conscience had never been roused by official statistics or reports in newspapers like the anger of the young and the old witnessed in the centre of the nation’s capital since 16^th December not far away from the headquarters of this largest democracy in the world. The situation compels collective thinking and quick action.  It has rather forced political will to respond.

In most countries, the punishment for rape is imprisonment. In some States in the US, death penalty could be awarded even in the last century for cases of “aggrieved rape” meaning severity with which the crime was viewed.   In some cases, castration is the punishment awarded.  For sex criminals who voluntarily agree to chemical castration, the term of imprisonment could be shortened.

A common feature in the criminal law of a number of western countries is the length of imprisonment running to 15 years.  In France, it goes up to 30 years where rape results in the death of the victim.

From the ancient times, rape has been considered a most heinous crime deserving very harsh punishment.  The Hindu law giver, Manu, prescribes corporal punishment for a man who violates an unwilling maiden. Kautilya prescribes a punishment of cutting off the hand, and capital punishment if the girl dies. In the Babylonian law, punishment for the rape of another person’s wife was death. The Mosaic law, and ancient Greek and Roman law mention death penalty for certain types of rape.

True, we do not believe in crude laws and cruder form of punishments. We have progressive laws and jurisprudence that do not treat punishment as an end in itself.  Punishment must act as a deterrent for the criminal as well as for others to refrain from repeating similar crime.  It should also have a reformist effect on the culprit – no matter how grievous the injury he has caused to the victim.

Modern sociological concept does not support the theory that severe punishment acts as a deterrent.  Commonplace observation and official statistics also fail to link incidence of crimes and severity of punishment.  On the other hand, severity in handling the culprits often results in increase in crimes.

From this point of view, with the exception of hardened criminals whose presence is a continuing threat to others and of repeated offenders totally beyond reform, others need to be given a chance to realize, repent, and change. 

This is not to be construed as being lenient to rapists who are worse than murderers from top to bottom. They definitely deserve no sympathy at all. But, our aim is not just to punish the culprit, but to ensure security for women everywhere. 

The cry “We want justice” is not merely a demand to punish the rapists but to create a just society where women enjoy freedom without fear. To ensure a just society, our mindset has to change. Legal reforms without social will cannot succeed. Rape is a symptom of sense of superiority, physical power, and consequent arrogance on the part of the male. 

At the same time, preventive steps like better policing, strict adherence to motor vehicle rules, transport regulations, and traffic rules must be taken.  Unfortunately, we have earned a reputation for wonderful laws and regulations coupled with political outlook in implementation. Even elementary road rules are not equally applied to all. This is so in all parts of India.

In short, a shock treatment is needed to cleanse the society through drastic structural and systemic changes accompanied with value-based moral education and upbringing oriented to building a just social order. The young girl’s death and the people’s anguish and protest should not go in vain. ---INFA

(Copyright, India News and Feature Alliance)