When will anti-rape laws instill fear in perpetrators, shield victims?

The phrase ‘nirbhaya (fearless) women’ has become an empty rhetoric, as it has failed to make women fearless. With around two-thirds of judicial officers not presiding in courts, both in Telangana and Andhra Pradesh and because of pending vacancies, around 60 per cent of criminal cases are unable to go on with the routine trial.

In such a situation, how can speedy trials for rape victims become a reality? And whom is it making nirbhay (fearless)? – the victim or the accused?

The overwhelming public support for the encounter deaths of the four suspects in the Telangana gangrape and murder case, reflects the frustration of the general public towards the inordinate delay in deliverance of justice. It is also a strong dissent against the weak system and a deep grief for the hapless victims of such crimes.

Accused-centric justice

It looks as if our law is for criminals as the state often tends to frustrate the victims with its routine lethargy. The criminal justice system in India focuses on the fair trial of the accused with a strong suspicion against the abuse of power by police and the presumption that the accused is innocent. In the process, it totally ignores the victim. This is a major defect.

Presumption of innocence is the baseline of the fair trial mechanism universally, which cannot be negotiated. Presuming that the police would use third degree methods to extract a confession from the suspect, the evidence law (since 1872) prohibits admission of confession to police. Legal luminary and wizard of the Indian Evidence Act, the late Vepa Partha Saradhy, used to say that the purpose of this prohibition is to encourage the accused to give complete information to the police during interrogation without fear and to stop the police from resorting to third degree.  Such information could be more useful for police to investigate.

On the other hand, victimology (study of victims of crime and their psychology) is not a part of criminal law or criminology. State governments need to take several measures to protect victims and secure their rights.

Failure of Nirbhaya policy

When the ghastly crime against Nirbhaya was committed in December 2012, there was a huge hue and cry against a weak police and judicial system which could not punish the assaulters within a reasonable frame of time.

In response to the public outcry, the Justice JS Varma Commission studied the system and recommended several reforms, addressed delays in trial and steps to care for survivors in the aftermath of such crimes. The result of these studies was the creation of the Nirbhaya Fund to help victims and the passing of the Nirbhaya Act to speed up investigation and trial in rape cases. These measures were meant to make women fearless. But the ills of the system are so strong that they failed.

Under the Nirbhaya Fund scheme, for which the Centre had earmarked ₹10,000 crore, the central government allots money to the states, which must be spent in ensuring safety for women. The Union Women and Child Development Ministry is the nodal agency for this fund, which approves proposals by states and recommends the department of economic affairs to allocate funds. The ministry releases money under four heads including the Mahila Police Volunteer Scheme.

Also read: Hyderabad encounter isn’t justice, it replaces one monster with another

An amount of ₹ 2,050 crore was allotted to at least 12 states under this scheme. But, while ₹1,656 crore was released in the past five years to states and union territories, only 20 per cent of the funds have been spent by them. The beneficiary states managed to submit utilization certificates of just 9 per cent of the money that they received under the fund – ₹146.98 crore of ₹1,656.71 crore, in the past five years.  Data tabled before Parliament on November 29, 2019, shows that six states and UTs – Maharashtra, Manipur, Meghalaya, Sikkim, Tripura and Daman & Diu – have not spent a single rupee from the Nirbhaya Fund.

Maharashtra, one of the big states which was under the BJP rule for five years -from 2014 to 2019 – has recorded 4,306 incidents of assault on women in 2017, the fourth highest in the country. The state comes second in registering the maximum number of cases of kidnapping of women and the sixth in rape cases. But, ironically, the state has spent nothing for the safety of women.

Non-BJP ruled states like Telangana too, failed to utilize their quota of the Nirbhaya funds, resulting in gangrapes and murders like Disha’s. The state has spent only ₹4 crore of the ₹103 crore allocated to it, for 13 programmes including the Emergency Response Scheme.

Police should have been trained to behave like human beings first and friends next. There is no positive and proper response to complaints of missing women or children. In the Disha gangrape and murder case, police abused the victim’s parents when they begged them to register a complaint. Shamelessly a police officer said “she might have eloped with someone”. Is it not verbal sexual assault on women? If somebody writes it now on Facebook, he will be jailed. Then, why not prosecute the police officer for such behaviour? Their inaction, refusal to register the FIR on the excuse of jurisdiction, though Zero FIR was possible, and delay has complicated the issue.

It is also apprehended that police, after eliciting stern criticism for their callousness in the case, resorted to the ‘heroic’ act of gunning down the unarmed suspects in their own custody. And their trick worked, as a sheepish mob, which a few days ago had criticised them, showered flowers of appreciation on them. On social media, trolls abused human rights activists and critics for decrying the encounter of the four accused in the gangrape and murder case.

Nirbhaya Act unimplemented

Aiming at speedy investigation and fast trial, the Nirbhaya Act, 2013 mandated two-year imprisonment for non-registration of FIR in sexual assault case. The Telangana Police has suspended the officers who didn’t filed the FIR in the Disha case, but were they booked under Nirbhaya Act? The act also laid down a deadline of two months for the investigation and prosecution of the guilty officers. But, there is barely a state which can assure its victims of sexual assault to wrap up the trial within four months.

Also read: MPs bay for blood, but aren’t cops too guilty for Hyderabad rape?

The Nirbhaya Act was not implemented and Nirbhaya fund was not utilised by the state governments. Instead of making women fearless, misgovernance has made the accused fearless. The Disha gangrape and murder and similar incidents in Uttar Pradesh, Bihar, Rajasthan and Karnataka indicate that women are as unsafe and fearful today as they were during the gangrape and murder of Nirbhaya in 2012. Disha is the daughter of the same system that killed Nirbhaya.

How feasible is Andhra’s Disha Act?  

Andhra Pradesh, which has not completed any case in four months, has now come up with the Disha Act 2019, which promises to pronounce judgement in rape cases within 21 days (of the crime) and with substantial conclusive evidence. It says the investigation shall be completed in seven working days and trial shall be completed in 14 working days. For this, amendments have been made to Section 173 and Section 309 of the Code of Criminal Procedure Act, 1973 and via the introduction of additional clauses in the Act.  The question is with 58 per cent vacancies in subordinate judiciary and 25 per cent vacancies in police officers, how will the Andhra Pradesh government complete any trial in 21 days?

The Andhra Pradesh government has carved out special courts in each district, without allocating a single rupee or creating a single new post. Similarly, it has constituted special police teams by taking personnel from its existing strength, without making a single recruitment. The fact is that the police cannot perform any skilful or speedy investigation when one-fourth of the department’s posts are vacant. The CrPC mandates filing of charge-sheet within 90 days, which rarely happens. Under law, an accused or a suspect gets bail after 90 days of arrest. If the real perpetrator, he gets to roam the streets to commit more crimes. In Uttar Pradesh, the accused in a rape case burned the victim.

The point is it should be the accused who should be afraid, not women. But are the Nirbhaya police, laws and programmes instilling that fear in criminals?

Also read: When will we go beyond drama to end rapes?

(The author is a former Central Information Commissioner and dean, School of Law, Bennett University)

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal)