The Law and Law Makers
The Criminal Law Amendment Act, 2013 was supposed to be the knight in shining armour for the women and children of this country. With more stringent punishment and diverse set of offences, we were supposed to have gotten the ultimate weapon to fight our most deplorable brand of criminals, i.e., rapists. Yet, these crimes occur with greater impunity and increased frequency. What is India doing wrong then?
Let us examine what the law has achieved first of all. In light of the Criminal Law Amendment Act, 2013; offences such as stalking, voyeurism, the non penetrative sexual assault was introduced into our Indian Penal Code for the first time and carried punishments ranging from 1 year to 7 years depending upon the nature and background of the offense.
Section 375 of the Indian Penal Code, was expanded to include anal and oral rape, in addition to vaginal rape and envisaged even digital penetration. Section 376 of the IPC, which prescribed punishment for the offense of rape, even went on to prescribe even the death penalty for repeat offenders and rapes of a particularly gruesome crime. Section 114 of the Indian Evidence presumes the absence of consent, based solely on the word of the rape victim, if intercourse is established.
The Protection of Children From Sexual Offences Act, 2012 (“POCSO” for short) set out offences, in addition to the Indian Penal Code, which were specific to children. While the punishment for the offences ranged between a few years to life, the most significant steps it provided was to make reporting of child sexual abuse mandatory and introduced a presumption of guilt against the offender accused of the crime.
Judiciary and the Rape Mechanism
For police personnel who are complicit in the cover up of crimes, Section 166A of the Indian Penal Code prescribed imprisonment ranging between 6 (six) months to 2 (two) years. A corresponding provision was introduced in the POCSO Act as well. In fact the Hon’ble Supreme Court of India, time and again, has ruled that if a policeman fails to register a First Information Report on receipt of information of a cognizable offence (rape is a cognizable offence), an FIR shall be registered against him and action shall be taken.
In addition, by virtue of the directives of the Hon’ble Apex Court in Sakshi v. Union of India and State of Punjab v. Gurmeet Singh, embarrassing questions cannot be put to rape victims in cross examination, their testimony cannot be taken in front of an audience and the accused shall not be visible to the victim by employing a screen. In fact, the burden of proof for the prosecution was greatly reduced by the Gurmeet Singh judgement, when the court ruled that a rape victim’s testimony, absent material inconsistencies can stand on its own.
The question therefore remains as to why, despite these wonderful developments in jurisprudence, no less in quality than their counterparts in the more developed countries, do we still have sexual offences occur with such frequency and impunity, last seen in the Uttar Pradesh double gangrape and murder case? In addition, how is it that despite Section 166A of the Indian Penal Code, certain policemen in U.P. felt it alright to aid the accused rather than aid the victim’s family?
Where exactly lies the problem?
India’s problem is not legislative deficiency. When Tulir organised a national level deliberation on the POCSO Act and similar points were raised, the policy makers shrugged it aside, lest it undermine their own effort to draw up, what was arguably, a strong yet imperfect legislation. But my experience fortifies the views expressed in the deliberation, which is that bureaucratic hurdles, attitude and approach remain our biggest problem in investigating and prosecuting cases of sexual violence. First of all, the distribution of police personnel needs to be rethought. At present, our police force is divided on the basis of law and order, crime and traffic; which is too broad and too simplistic. Sexual offences against women and children require specialised police personnel trained in behavioural sciences, gender sensitivity and crime scene management. Law enforcement veterans like Roy Hazelwood and John Douglas, who have done extraordinary work in the field of sex crimes, swear by the need for specialisation among our police forces. They opine that what the offender says or does during the rape, is critical to understanding who he is, what kind of person he is and therefore, where he is most likely to be found and apprehended.
To elicit this information, the victim holds the key because she is the person best suited to help the law enforcement authorities understand the person they are after. However, if she is not spoken to properly, accused of being a “slut” and disbelieved at the very outset by the very people put in to help her, she will retreat into a shell and won’t make a good witness in court. This is the reason why we need police personnel who are sensitized on the subject of gender roles and equity, psychology and behavioural sciences, because how they interview victims and elicit information is critical and the first step to making out a case against the accused. But between handling law and order, crime and traffic, our police personnel have never been given the latitude, resources and support to create specialised units for sex crimes. Our abysmal conviction rate is a reflection of this glaring deficiency.
Secondly, there is a misconception that DNA evidence is the be all and end all of a rape investigation. I wish it were that simple. Often times, the DNA of the Accused is not found in sufficient quantity for testing, which is why forensic labs employ a process called amplification to enhance the DNA signature. But for this amplification process to be successful, it is critical that the crime scene is sealed off and the samples are collected by persons who are equipped properly for the task. Otherwise, the DNA of the investigator or other persons will contaminate the DNA sample (which can happen if the investigator even touches the sample with his bare hands) making its results inconclusive.
This is often times, the most lucrative way to frustrate a rape investigation if the effort of the authorities concerned is to shelter the Accused (I remember in one of my other articles, someone calling me an imbecile because I refused to accept the DNA evidence exonerating the Accused; well I hope this section explains my scepticism). This is also the reason why the law of the land requires police and forensic science laboratories to adhere to and comply with chain of custody, non tampering and purity of the sample, requirements so strictly; failing which the DNA sample is not admissible as evidence against the Accused. If you are wondering what made forensic sciences so helpless in the Aarushi Talwar Murder case and so powerful in the Nirbhaya Gang Rape case, one of the answers lies in the way the crime scene was guarded and managed.
But I regret to inform that during my training with the Police and District Child Protection Officials, I am often told by my students that they are not given the right training or the right equipment to comply with the professional standards expected of them in cases involving sexual violence. One policeman even said that when he attempted to stop a certain babu from entering a crime scene to preserve the integrity of forensic evidence, if any, he was reprimanded and admonished for being insubordinate. Ladies and Gentlemen, our policemen may not be the best, but do not discount the challenges they have to encounter as well. When you hear their own frustrations, you realise we are all victims of our collective attitude and deficiencies. Even the best laws to aid the victim and ensure conviction, will remain helpless, if adequate capacities, specialisation and resources are not injected into our law enforcement mechanism.
In addition, Article 21 of the Constitution recognises the right of an Accused to question the evidence of the prosecution against him. In the context of DNA samples, one would assume that he has the right to have his own laboratory test the DNA samples to provide an independent assessment of whether his DNA was found on the victim or not. But India doesn’t have enough forensic science laboratories which can meaningfully and reliably undertake such independent assessments. In fact the existing Forensic Science Laboratories themselves leave a lot to be desired. The policy makers need to urgently give the attention this problem, because otherwise we are looking at difficult questions around due process of law and admissibility of DNA evidence.
Lastly, policemen being complicit with the rapists and their families are a big problem. We recognise, or at least ought to, that our police personnel are not above the caste, religion and culture based loyalties although efforts are made to sensitize them otherwise during their training, which I assure you all is quite rigorous and demanding. When there is an allegation that the policeman concerned has committed an offence set forth in Section 166A of the Indian Penal Code, for whatever reason and motivations, the question remains who should investigate and prosecute such officials?
Unfortunately, the answer to that question in India, is the police themselves. Ripan Malhotra’s tormentors in the Bangalore Police never answered for their role in his suicide, because their colleagues found them innocent. The Americans on the other hand have Department of Internal Affairs and Office of Professional Responsibility, tasked specifically to investigate transgressions of the police and the Federal Bureau of Investigation, respectively. Quite as to why similar brand of accountability is not found in the Indian law enforcement framework is best left for our police and law makers to answer for.
The above article is a sneak preview of the larger problems that constrain our abilities to fight sexual violence. Our education system has clearly failed to inculcate human rights as a way of life among our children and adults alike. Our own culture has somehow mutated to adopt a form of patriarchy which either seeks to damage women, sometimes as a strategy to advance caste and religious conflict or to control them under the mandate of protecting them. Couple this with a law enforcement framework which pretends to be healthy on paper, but is crippled on the ground, you find that India is the best hunting ground for rapists. For crying out loud, let’s stop accusing books of not containing enough laws, because while it is easy; it hasn’t and won’t change anything. But if we focus on what is more difficult, which is to increase capacity, training, motivation and resources for our police, prosecutors and courts; maybe, just maybe, we can hope to win this war against sexual violence.
By Ashok G.V.
Picture Source: IANS