Justice for rape : how rape can be curbed
यत्र नार्यस्तु पूज्यन्ते, रमन्ते तत्र देवता:
Atharveda holds this hymn for 1000 years now which
means “where women are respected & worshiped; god resides at that
place”. This hymn holds in depth that if women will be respected, the God will
shower his blessings to people. But the position of women is today is worst,
they are exploited, forced to face brutality in the hands of men. They are
victims of tyranny at the hands of the men. As Hon’ble Supreme Court puts the
status of women:
“Women also have the right to life and liberty; they
also have the right to be respected and treated as equal citizens. Their honour
and dignity cannot be touched or violated. They also have the right to lead an
honourable and peaceful life. Women, in them, have many personalities combined.
They are Mother, Daughter, Sister and Wife and not play things for centre
spreads in various magazines, periodicals or newspapers nor can they be
exploited for obscene purposes. They must have the liberty, the freedom and, of
course, independence to live the roles assigned to them by Nature so that the
society may flourish as they alone have the talents and capacity to shape the
destiny and character of men anywhere and in every part of the world”.[1]
We are discussing about position of women in
society; itself shows what the condition of our women is today in this country.
Women are becoming victims of most heinous, hate
crime i.e. “Rape”. Their physical, mental body is invaded by others and we are
not able protect it either from invasion or from giving proper relief after
invasion. Sexual Harassment of woman is not only a forceful, against the
consent of woman ‘sexual intercourse.’ It has a broader connotation; as the
Honourable Supreme Court defines:
Sexual harassment includes such
unwelcome sexually determined behaviour (whether directly
or by implication) as:
1.
Physical
contact and advances;
2.
A
demand or request for sexual favors;
3. Sexually coloured remarks;
4. Showing pornography;
It is very unfortunate that the above definition of
Sexual harassment does not find place in the section 375 of Indian Penal Code
rather it has another section i.e. Section 354A which has very less punishment
i.e. rigorous imprisonment for three years or fine. Moreover, It has very vague
and ambiguous. It does not define as to what will be the degree where any
remark or any act will become criminalizing[3].
In Indian Criminal Justice system victims are the
most vulnerable section, their rights needs to be protected but the irony is
that the whole focus of criminal justice system is on the protection and
reformation of accused and convicted. The victim is lost somewhere in the
process and procedure of the system. On one hand the Constitution says that it
is the duty of the state to protect life, limb and property of persons but when
we look at the criminal justice system, the sufferer, the victim is left
behind, is lost, and is thrown away. Committee on reformation of criminal
justice system noted as:
“People by and large have
lost confidence in criminal justice system. Victims feel ignored and crying for
attention and justice, there is need to develop a cohesive system, in which,
all parts work in co-ordination to achieve a common goal”[4]
Above statement of the committee is completely
right, there are cases where people have killed the accused by themselves
because either they are frustrated by judicial system or have no confidence in
the judicial system, In one of the case the victim of rape tried to kill
herself in the court of Law[5]
because she was frustrated with delay in the judgment. Hence, the focus should
be on victims rather on accused and criminals. We need to formulate a system
which is favorable to the victim; we shall understand the pain of the victim;
in which we have failed drastically.
Hence, in this paper the authors would be studying
as how the victims of rape can get justice; what could be justice for the rape
victim and which areas we need to work so that we can make a Rape-Free
Society.
Indian
Constitution and Rape:
State is machinery to which people surrender their
rights in pre-supposition that from that with the surrender of rights the state
will protect their rights[6].
Under Fundamental rights[7]
Indian Constitution guarantees Right to Life and Liberty. It has been
settled principle that right to life and liberty means it is the state which
will take care of LIFE, LIMB and PROPERTY of its each and every person residing
in this country. But the present
scenario is very threatening. State has failed to protect life and liberty and
the irony is that we come across statements of different politicians who just
make mockery of people and instead of taking responsibility on themselves they
blame people rather. Time is ripe when government should think that why we have
failed to protect women from this heinous exploitation i.e. Rape.
Right to privacy and Rape:
Second view point
regarding this is that Rape is a crime which violates person’s right to
privacy. Right to privacy is also a part of Article 21[8].
Andhra Pradesh High Court in T. Sareetha v. T. Venkata Subbaiah[9]
discussed in detail about the concept of Privacy and right of the person to
choose his/ her sex partner. Court Observed:
“It cannot be denied
that among few points that distinguish human existence from that of animals,
Sexual autonomy i.e. an individual enjoys to choose his or her partner to a
sexual act is of primary importance. Sexual expression is so integral to one’s
personality that it is impossible to conceive of sexuality on any basis except
on basis of consensual participation of the opposite sexes”[10]
In the world scenario
today we have debate of recognizing the Sexual Right of a person but in India
it has still not taken a physical form. It is implied under Article 21 of
Indian Constitution but until it is not expressed it will always be rebutted,
hence according to the authors belief it should be expressed provision in Part IIIrd
of Indian Constitution. It will work as big relief for victims as well as
an absolute responsibility of the Government of the day.
Broken
Window Syndrome:
If we will analyze the data
released by NCRB; we will come to the
conclusion that the police and Legal System in our Country is very inefficient
in controlling the Crime against women, where in the age of science and
technology the conviction rate is only twenty four (24) percent in the cases of
rape, poses a serious question as to where we are lacking. Kelling and
Willingson in their Article “Broken Windows: the Police and neighborhood
Safety” argued that rampant crime is result of disorder. If a window in a
building is broken and left unrepaired, people walking by will conclude that no
one cares and that no one is in charge. One unrepaired window is an invitation
to break more windows, and lawlessness spreads outward from buildings to
streets to entire communities[11].
In the subways low-level crimes
like breaking traffic signal similarly as small but unmistakable signals that
left unchecked invite further chaos.
The same situation is in our
society. As the conviction rate is so low that the offenders have concluded
that somehow they are going to saved or they are not going to be convicted
hence they do such type of heinous acts regularly. Therefore conviction of
accused must be ensured.
Some policy issues to
which government should look:
Community Policing:
Community Policing has been
defined as:
“Community Policing is an area specific proactive process of working
with the community for prevention and detection of crime, maintenance of public
order and resolving local conflicts and with the objective of providing a
better quality of life and sense of security”[12]
According to David H Bayley[13]
community policing has four elements:
1.
Community-based
crime prevention
2.
Patrol
deployment for non-emergency interaction with the public
3.
Active
solicitation of requests for service not involving criminal matters
4.
Creation
of mechanism for grassroots feedback from the community.
The
basic philosophy of Community policing is that ‘a policeman is a citizen with
uniform and a citizen is a policeman without uniform’. The situation in our
country is so worst that people don’t love police rather they fear from police.
Zero Tolerance Strategy
Zero tolerance Strategy is
something which is highly recommended for counter attacking terrorism but in
authors view and also as Second Administrative Reforms Commission recommends
that for each and every crime there should be adoption of Zero tolerance strategy.
Zero tolerance strategy involved robust and proactive approach by the police
towards petty criminals and those guilty of degrading the urban development. In
UK this policy was adopted where this was combined with making local commanders
directly accountable for their performance. Those who were not performing well
were either demoted or resigned. The sole objective of this was to reduce
crime. The result of this was stunning:
1.
Overall
crime falls by 54 percent between 1992 to 2000.
2.
The
manslaughter and Murder rate also decreased by 72 percent in the same period.[14]
This shows that this policy is
much needed in our country as there lots of crime cases which are pending in
our courts.
Pregnancy
resulted from Rape and there should be grave punishment:
Medical termination of pregnancy
Act 1971 gives relief to women and allow for termination of pregnancy if it has
been resulted out of Rape. But it is very unfortunate that he accused offender
does not get any grave punishment for such act. He should be allowed to argue
that he doesn’t know that pregnancy can occur because of his forced sex with
the girl. As Kahira M. Bridges observes:
“The victim’s pregnancy is treated the same as
a broken bone, a concussion, or a gunshot wound.” Moreover, in truth, pregnancy
is a multifaceted event that affects a woman mentally, emotionally, and
physically. Accordingly, a pregnancy
resulting from rape that is, a pregnancy that may be profoundly unwanted may be
both a mental/emotional injury and a
physical injury[15].
The
pregnancy resulted of rape should be regarded as “great bodily harm” because if it will be considered as great
bodily harm it would attract even more graver punishment to the offender. US
Courts and Legislation have recognized it. This will also help in reducing the
rate of Rape because if the offender will know that if he rapes a girl and she
become pregnant he will be awarded greater punishment, hence it is better not
to do such type of heinous act. Basically it will have deterrent effect.
Pornography
should be banned completely:
This
Suggestion might seem very awkward to the reader but authors have experienced Porn materials does have
psychological effect on the person and it leads to the sexual arousal to the
person which finally takes form of sexual violence against women. It has been
noted that when there is a sexual arousal a man will be ultimately want to have
sexual intercourse and also it’s been proved fact that if a male will get
chance to rape women and he will not be caught he will surely rape a women.[16]
Legalize
the Prostitution:
This is one another suggestion
may seem very repulsive to the reader but many people do rape because of Sexual
gratification. In India according to
SITA Act Prostitution is legal but it can be done only in private places. But
it the provisions are violated and we need to regulate it. In authors view
legalizing prostitution will help the government in two fold; firstly it will
give scope to regulate prostitution and secondly those who want sexual gratification
will get it easily. Researches in United State Shows that a 149% increase in the rate of rape when legal
brothels were closed in 1959, while other offenses against the person by males
increased only 49%."[17]
Khuswant singh
in his article "How A Rapist Should Be
Punished" in The Tribune of 28 Sept. 2002 Noted:
"A necessary step [to prevent rape] is
to legalise prostitution — carried out in brothels or by call-girls — provided
the sex workers are adults and have not been forced into the trade. The more
you try to put down prostitution, the higher will be the incidence of crime
against innocent women. You may find the idea repulsive but ponder over it and
you will realise there is substance in the argument."[18]
The
authors too hold a firm view that legalizing prostitution will help in reducing
rape in the country.
Alcohol consumption and Sell should be
regulated:
It
is an undoubted fact that most of crimes are done when the offender was in the
influence of Alcohol. In the recent
Delhi Gang Rape case the all the offenders were under the influence of Alcohol.
It is unfortunate that NCRB do not publish report about the statistics in which
the rape offenders were under the influence of Alcohol.
Therefore
it is my suggestion that selling and Purchasing of alcohol should be regulated
and the place should be made where only people will be allowed to drink and
that too the person will be served Alcohol within prescribed limit.
To
Conclude, I would say that Rape as crime can only curtailed if we join our
hands and come out together to fight against it, to make a society where “यत्र नार्यस्तु पूज्यन्ते रमन्ते तत्र देवता:” evident from a remote foresight.
[1] Shri BodhiSattwa gautam v. Miss
Subhra CHakravarty AIR 1996 SC 922
[2] Vishaka & Ors vs State Of
Rajasthan AIR 1997 SC 3011
[3] For more Clarification See: http://www.indianexpress.com/news/Crimnalzing-romance/1072725/0 Criminalizing Romance by Mrinal
Satish. Febuary 2013
[4] Malimath Committee Report on
Criminal Justice System, Para 6.1 (2003)
[6] Social Contract theory
[7] Fundamental Rights: These are
basic human rights to which each and every person is entitled. The canons of
Jurisprudence are based on the concept of fundamental rights.
[8] Govind v. State of Madhya
Pradesh AIR 1975 SC 1378
[9] AIR 1983 AP 356
[11] http://www.dmreview.com/article_sub.cfm?articleId=1003792, See also: Fifth Report, Second
Administrative Reforms commission, chapter 3 Box 3.1 (2007)
[12]
Community Policing: Ashish Gupta & PM Mohan; Journal of Police
Academy (Jan-June 2004) ; see also, Fifth Report , second Administrative
Reforms Commission Chapter 5, Para 5.15 (2007)
[13]
Fifth Report , second
Administrative Reforms Commission Chapter 5, Para 5.15 (2007)
[14]
Fifth Report, second Administrative Reforms Commission Report; Chapter 6
Box 6.1.
[15]
When Pregnancy is an Injury: Rape Law and Culture; Kahira m. Bridges,
Stanford Law Review (Vol 65, P. 457-516) 2000
[16] Pornography and Rape: A Causal Model; Diana
E.H. Russell, Political psychology , vol 9 (march 1988)
[18] ibid
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