With rising cases and low conviction rates, it is imperative to have societal change beyond legal reforms to address the deeply ingrained gender biases
Two recent episodes of sexual violence against women at the workplace, one, the brutal rape and murder of a resident doctor inside a Kolkata government hospital, and the other about the systematic sexual abuse of women in the Malayalam film industry, as revealed in the Justice Hema committee report, have once again confirmed that women are still unsafe, prone to violence, and suffer from an existential crisis. Amid a huge political uproar, a few years ago a global survey dubbed India ‘as the most dangerous place for women’, which, perhaps, had hurt the nation’s collective ego that fostered a sentiment that ‘India is a land where women are worshipped’.Following the prolonged public outrage in the state and across the country, the West Bengal government adopted an anti-rape bill, titled ‘Aparajita Woman and Child Bill (West Bengal Criminal Laws and Amendment) Bill 2024’, seeking capital punishment for rape convicts. Earlier, in 2013, the gruesome Nirbhaya episode, brought in the Criminal Law (Amendment) Act, with the introduction of a new clause (376 A) for the offences of rape that caused death or persistent vegetative state of the victim and the death penalty to the perpetrator.
While the Criminal Law (Amendment) Act 2018, which came in after the horrific incidents of Kathua and Unnao, specifically provided for capital punishment for offenders convicted of raping minors. States like Madhya Pradesh, Rajasthan, Haryana, Andhra Pradesh, Maharashtra and Arunachal Pradesh also enacted amendments for enhanced punishment for sexual assaults. So far this has been an ‘established political playbook’, as the public demand for justice is high pitched. Studies also indicated that ‘whenever society faces a problem with a bourgeoning number of crimes, the public response is almost invariably to increase the criminal penalties’. A 2021 research study noted that a significant number of people believe that the death penalty has the potential to discourage others from committing crimes. However, a recent study (Michael Radelet & Traci Lacock, University of Colorado) revealed that ‘88% of the leading criminologists do not subscribe to the view that the death penalty is an effective crime deterrent’.
In India, Justice J.S. Verma Committee was not ‘inclined to recommend the death penalty for rape even for the rarest of rare cases’ and observed that it would be a ‘regressive step in the field of sentencing and reformation’. Earlier, the Justice Malimath Committee also rejected the idea of the death penalty for rape cases and called for procedural amendments which result in certainty of punishment rather than a quantum of punishment as a real deterrent. The Constitutional Bench of the SC ( Mithu v. State of Punjab, 1983), proclaimed that Section 303, IPC, is violative of Constitutional rights, and deprives judges of their discretion in sentencing. In 2015, the Law Commission recommended that the ‘legal system should move towards a restorative system of justice, based on human rights and criminal psychology’.
While, a feminist criminologist (Bibha Tripathi, Professor, Faculty of Law, BHU) remarked that a series of ‘reactionary’ amendments in India, might have temporarily responded to the ‘collective conscience’ of people, but, failed to prevent crimes against women, and for that, the law and society should evolve hand-in-hand’.
A prominent lawyer activist, also opined that ‘public anger has done little to improve the lives of Indian women, the outside world still belongs firmly to men, and the government has failed to enforce its laws, with only about a quarter of cases that go to trial result in a conviction’. Despite having several statutory laws and subsequent amendments to make them more stringent, the latest NCRB data, showed a rise of 20 % in the reported cases of rape, an average of nearly 90 rapes a day, while, the conviction rates for rape ranged between 27-28% (2018-2022). A 2020 study on rape adjudication in the aftermath of the Criminal Law Amendment Act, of 2013, found that in Delhi trial courts, the rate of conviction( 2013-2018), dwindled to 5.72% from 16.11% under the old law. ‘Some judges are reluctant to convict since the tougher sentences came in, and if there is some doubt on evidence, which doesn't stand up to judicial scrutiny, then they are compelled to acquit, …..if there was some discretion, they could have lowered the sentence, and ensured that he's convicted’, a senior criminal lawyer commented.
As incidents of rape and sexual assault pour in day in and day out, reaffirming the reality that ‘mere legal reforms, unaccompanied by governance and societal change, do not yield far-reaching results’. It is now high time to go beyond ‘the belief that increasing penalties increases deterrence’. I
n a society that nurtures patriarchal social norms the deeply ingrained gender biases and prejudices can only be removed through a change in the mindset.
The education and grooming of boys and girls need a thorough overhaul to inculcate and respect the values of human rights and the rights of each other. The intervention and action should be at state, community, family and individual levels for mitigating risk factors.
(The author is former Director General, Doordarshan & All India Radio, views are personal)
