INDIA: Understanding the Rape Republic

Author: Anjuman Ara Begum

Sexual violence continues in India unabated.

The December 2012 gang rape and subsequent death of a 23 year old woman led to a shift in discourse on sexual violence in India. For the first time, the blame shifted from victims to perpetrators, fostering changes in certain colonial era criminal laws.

However, the changes have failed to provide crucial protection and redress. Important recommendations, forwarded by the three-member committee following the incident, were ignored, and sexual crimes rage, as uncontrolled as before. News headlines depicting sexual violence have not changed since December 2012.

Gruesome abuse and killings of victims have shaken the human conscience but not the criminal justice system in a country, which continues to prove itself a 'systemic failure'- even after state promises of ensuring its effectiveness. Every 20 minutes, a rape is committed in India; but only 4 out of 10 incidents make it to the country's justice system. Such low reporting of sexual assault, due to legal complexities and ideas of ‘honour’ and ‘shame’, make the possibilities of justice remote, and create an insufficient deterrent in society.

Recent gory reports, such as the hanging of raped girls, the sexual assault of a female judge in her official residence, the pumping of bullets into the private parts of a woman after an assault, and the burning of a dead body following a gang rape, are sufficient evidence to conclude that the 'system' has systematically failed. An insensitive, poorly funded, inefficient, and unnecessarily hierarchic structure called the criminal justice system has proven nothing but a demon to women seeking justice.

Why does the state fail to curb sexual crimes? Cultural aspects cannot be ignored. The substance of the law and its implementation, are two different aspects. The 2013 amendments of laws dealing with sexual assault improved the legal literature, making it more favourable to women, but not the culture of implementation. The redress system faced by a sexual assault victim has enormous challenges, ranging from legal to cultural. Filing a First Information Report (FIR), the first step in seeking justice, is hard in India. But, it is nothing less than a Herculean task when a woman complains of sexual assault. Due to the culture of enforcement of laws in the country, legal texts alone don’t determine her rights and entitlements. Negative stereotyping and attacking the self-esteem of the rape survivor is one of the prime reasons for not reporting the crime and accessing the criminal justice system. Moreover violence against women in India is an institutionalised phenomenon. Before noting the FIR, policemen often satisfy themselves with knowledge of whether the victim wore the 'right' clothing', ate the 'right' food, kept the 'right' male friends, or uses 'questionable' modern electronics like a mobile phone. The 2013 amendments, though they expand the definition of sexual assault and promise to be more sensitive to women, also carry forward negative elements. They retain discriminatory and stereotype concepts like 'insult' or 'outrages to women's modesty' in order to define a criminal act.

The culture of impunity for sexual violence is widespread and has contributed much to propagate the crime. Both de-jure and de-facto culture of impunity for crimes, including sexual crimes, is one of the prime contributory factors for such crimes. In India, de-jure impunity is propagated through several legal instruments that validate immunity for state actors. A provision called 'prior sanction' was incorporated in several security legislations for this purpose. Section 45, 132, 197 of the Code of Criminal Procedure, section 125 and 126 of the Army Act, 1950, section 45 of Unlawful Activities (Prevention) Act, 1967, and section 6 of the Armed Forces Special Powers Act (AFSPA), 1958, state that no court shall take cognizance of any offence committed by certain state actors unless prior sanction is granted by the appropriate government authority. It has been observed that the 'sanction' for prosecution is granted only in the rarest of rare cases; invariably, authorities, at their discretion, reject an application for ‘prior sanction’. This is one of the reasons for the perpetrators of Manorama's rape and murderare yet to be brought to justice. Manorama was found dead within hours of her detention by armed forces in Manipur in 2004 leading to massive public outrage.

De-facto impunity is equally prevalent in the criminal justice system and its enforcement institutions. Police authorities often deny or block access to justice, by refusing the registration of allegations. The process of investigation and trial remains extremely slow and unscientific. Routine practices of torture by security enforcement agencies create a fear psychosis. It discourages formal complaint, propagating a culture of impunity at all levels of the administration of justice. Such a culture is tolerated under different laws and practices with state 'acquiescence'. The principle of due diligence is too narrowly adopted in the legal system to hold private actors accountable for violence against women.

Sociologically speaking, a society based on a patriarchal structure, prescribes male dominance and promotes authoritarian personalities. Law enforcement agencies are based on masculine ideologies. Institutions like the police and the military provide space for such personalities. They foster the tendency to impose power and control over women and their autonomy. This is why police often refuse to register cases of sexual assault, and even if they register them, there is little to no guarantee of justice. Additionally, males disproportionately dominate the police and the armed forces, whereas women comprise little more that 6% of such forces.

The judicial system cannot be spared either. It, too, inherits perceived dominating ideologies over women's bodily autonomy, and administers the law accordingly, encouraging impunity for sexual violence. The country's judicial system, hailed, as one of the most powerful institutions for protection and promotion of human rights, is still not congenial to female victims of sexual assault. An inadequate number of judges, prolonged periods of litigation, manipulation of medical reports, intimidation of victims, and non-protection of witnesses are barriers to justice in all types of violations. Cases of sexual assault are not immune to this trend. Corruption and political influence are two blameworthy factors.

India’s judiciary has adopted and exhibited prejudiced attitudes against women from time to time and justified impunity for sexual assault. In October 2013, a Delhi High Court judge was found sermonizing in an order when he prescribed 'girls are morally and socially bound not to indulge in sexual intercourse before a proper marriage, and if they do so, it would be to their peril and they cannot be heard to cry later on that it was rape.' The judge ignored the law of the country to uphold things in which he had been trained, and undermined the principle of the rule of law.

It is unforgivable that, Bhawri Devi – who was gang raped in 1992 by five men when she was working in a field – had to listen to a judgement three years later delivered by a District and Session court judge, that dominant caste men would not rape a women belonging to an oppressed caste. Examples of such misguided judicial pronouncements abound in India, from 'Mathura to Manorama' and beyond.

The country's political leaders, who have immense influence over ordinary citizens, do not lag behind in pronouncing and promoting misogynistic ideologies regarding sexual assault, reinforcing impunity. The media also reflects their perceptions.

Politician Babulal Gaur, Home Minister in Madhya Pradesh, has justified rape, saying 'Rape is sometimes right'. According to Ramsevak Paikara, Home Minister of Chhattisgarh, 'No one commits rape intentionally, it happens by mistake'. And, then there is Mulayam Singh Yadav, a prominent senior politician who has said, 'Boys make mistakes, why hang them?' And, then there is Abu Azmi, a senior politician, who supported Yadav by stating that 'women who were raped should also be hanged'.

These statements and perceptions expose the tip of the iceberg; and can help one understand how India’s institutions, and the individuals representing the institutions, are certainly not free from authoritarian and misogynistic ideas that further propagate the repression of victims of sexual assault.

In India, social space to be a sexual being is virtually non-existent. Repression rules mainstream society. Talking about sex or sexuality is taboo; it is unwelcome in the public domain. An inclusive culture for sharing space is discouraged especially when it comes to space where opposite sexes can meet. Young children grow up in a gender-segregated environment; the urge to play or mingle with the opposite sex is suppressed simply due to the pain of parental or social disapproval. In Indian society, repressed sexuality is often quoted, for instance by authors like Sudhir Kakar, as a reason for sexual and gender-based violence. Society prescribes that women be pure, chaste, and celibate before 'marriage', suffocating her sensuality and sexuality. Men are free from control in expressing their sexuality; their attacks are tolerated with an explanation of a double standard, that 'boys will be boys'. Women are advised to have some sort of self-protection as a defence mechanism against getting raped. Prevalence of such a culture prohibits women from reporting crimes that are sexual in nature.

In addition, society has its own calculated notion of sexual behaviour. For example, section 377 of the Indian Penal Code enters into the private space of citizens and criminalizes consensual same sex, tagging it 'unnatural sex'. It is still a valid law despite widespread public opinion calling for its repeal. Legal institutions upholding such measures disallow freedom of citizens over their bodily autonomy and their choice of life.

Violence against women in India continues and will continue, due to a pervasive prevalence of discrimination based on gender, which starts at birth and continues until death. Laws, if enforced properly, are undoubtedly instruments to control and modify human behaviour. Change will be accomplished when the state takes certain appropriate legal and non-legal measures. Measures to modify and improve the social and cultural patterns of conduct of both men and women in order to achieve equality and to negate the culture of impunity. Such an environment, if achieved, will impact the country's criminal justice and law enforcement mechanisms profoundly. Sexual and gender based violence will be minimized but not eliminated.

It is important that law enforcement begin with legal education in the law. Citizens should believe in and respect the law. The ordinary person has no idea what the law prescribes. They hardly care, as the criminal justice mechanism is a failed system in India and they are aware of the possibility of immunity from this system. It is only when men and women from all walks of life subscribe to the principles of the rule of law and non-discrimination and believe in the equality and dignity of each individual that law enforcement can begin to do its job effectively.