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From Nirbhaya to Disha Act: A Preventive Action or a mere Corrective Approach?

Sarah Moore Grimke, an American abolitionist, rightly said,  All history attests that man has suggested women to his will, used her as a means to promote his gratification, to minister to his sexual pleasures, to be instrumental in promoting his comfort; but never has he desired to elevate her to that rank she was created to fill. He has done all he could to debase and enslave her mind; and now he looks triumphantly on the ruin he has thus deeply injured in his inferior. But I ask no favour for my sex. All I ask our brethren is that they will take their feet off from our necks and permit us to stand upright on that ground which God designed us to occupy [1].

Since the inception of our freedom from the British Rule, we have raptured the taste of almost all spheres of development whether in terms of economic liberalization, industrialization, research and development, GDP growth and so on[2]. In regards to the law and order, around 1248 laws are being noted to have been in operation as on January, 2017[3]but on the other hand, crime count increased to around 30,62,579 across the country in 2017, up from 29,75,711 in 2016 and 29,49,400 in 2015, according to the annual data released by the National Crime Records Bureau (NCRB) in the year 2019[4].

From among the number of overall crimes committed, if we talk about crimes against women, then the figures are more disappointing. There was reportedly 3,39,457 crimes found to have been committed against women as per the crime statistics 2016 issued by NCRB from which dreadful crime of rape figured around 38,947[5]. These are those crimes which are found to be registered. Imagine those cases which aren’t even registered? If we think of those cases to be included in the overall count, the exceeding count would be yet another disappointment.

In a recent report by Ms. Priyanka Dubey, an award winning journalist, observed that the country was found to be known as one of the world’s most dangerous places for women – with estimates that a woman is raped in the country every fifteen minutes, out of which 99% of the rapes go unreported. Her new book on  No Nation For Women – Reportage on Rape From India, the World’s Largest Democracy, threw light on the heinous rapes occurring across the country which also included rape of minor girls[6]. This shows that though we are on the verge of achieving milestones in terms of other developments, there is still a niche in between where the gaps in law and order are visibly seen.

No one can erase the painful memory of Nirbhaya case in which a 23 year old female, Ms. Jyoti Singh, a physiotherapy intern was brutally assaulted and gang raped by a group of 6 men, in a moving bus in South Delhi. A never forgotten day of December 16, 2012 in the history of India raised a question on the safety of women in a country where Goddess like Laxmi, Durga, Saraswati are worshipped with immense respect. This incident caused outburst amongst the people all across nation who gathered on the streets asking for justice to the victim and her family. As the victim courageously struggled for her survival until December 29, 2012, post her death, she was named as  Nirbhaya  (fearless) by various media publications.

With this incident, the system of law came into motion and various amendments were carried out in Criminal law in the year 2013. The Criminal Law (Amendment) Act, 2013 came into picture which was popularly called the  Nirbhaya Act . This Act made changes in the definition of rape under the Indian Penal Code and other changes in Criminal Code of Procedure and Evidence Act.

The definition of  rape  in Indian Penal Code, included acts like penetration of penis into the vagina, urethra, anus or mouth; or any object or any part of body to any extent, into the vagina, urethra or anus of another woman or making another person do so; to apply mouth or touching private parts constitutes the offence of sexual assault. The section clarified that  penetration to any extent , and lack of physical resistance is immaterial for constituting an offence. Except in certain aggravated situations the punishment came to have been defined with penalty of imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment is kept with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine[7].

Apart from these provisions, the Chief Justice of India also inaugurated fast track court to deal with the case speedily. Unfortunately, though the law came with more stringent penalties for rape, after the Nirbhaya incident the statistics of the NCRB showed that there was growth in the rape crimes even after making of such laws. The increased figures of crime rate in rape offenses made the government think what is going wrong in society!

When the memories of this case was fading from the minds of the people, the nation mourned over yet another incident that came into light from Hyderabad wherein a 26 year old veterinary doctor was brutally gang raped on 27th November, 2019 and thereafter burnt alive. The four accused were arrested on the evidence of CCTV footage procured near the place of accident along with victim’s mobile phone which confirmed their clear involvement in the said crime.

The incident elicited outrage amongst the people demanding speedy justice unlike Nirbhaya where the case was being held up in court procedures for 7 years. Public demonstration demanding justice and stricter laws against rapes were organized just to wake up the government and to point out the loopholes in the laws. In the meantime, after 10 days of the incident, another news busted out regarding the encounter of the four suspects by Hyderabad police during police custody which came as a shocker to the nation. However, this act of police machinery was celebrated by people of India claiming that a speedy justice was delivered to the victim and her family and similar thing should have been done by the Delhi Police in Nirbhaya case.

Surprisingly, when the law protectors tried to deliver justice in just 10 days, this raised doubt on the fact that their pro-active step could have been taken before the commission of the incident to prevent its occurrence.

Though the speedy justice by way of such encounter was welcomed all over the nation including the victim’s family, the family still claimed that police could have been more vigilant when the father of the victim approached them on same day at around 11 p.m. but they allegedly wasted time on the applicability of jurisdiction of police station and for delaying investigation on irrational process[8].

If we check the timing of the incident then we can note that it started to commence after around 9:44 p.m. when the victim’s phone got switched off. The police still had time to act immediately when father of the victim reported them about their missing daughter at 11 p.m. who briefed the police regarding switching off the phone of the victim after 9:44 hrs. The time duration between the switching off the phone and intimation to police was approximately 1 hour 15 minutes. At least, the victim could have been saved from being burnt alive if immediate step could have been taken by police on that day and time itself. There was still hope for her life to have been saved.
  • The major questions comes into mind as to why such vigilant pro-active action was taken only after the incident was already over?
  • Why there was and why there is no provisions made to prevent occurring of the said crimes?

While these questions still remained unanswered by police machinery, the State government passed the new law called, the Andhra Pradesh Criminal Law (Amendment) Act, 2019 famously called the  Disha Act , making exclusive punishment of death sentence for rape offenses if adequate conclusive evidence are available and for providing an expedite trial of 21 days in such cases. The Act is silent on what adequate conclusive evidence will be to determine the real offenders who allegedly committed rape. Another highlighting feature is concluding investigation in 7 days while trial will be concluded in 14 days, which goes for a total of 21 days’ time period. A special team of police is also provisioned to be established to investigate these crimes.

It is no doubt that the government is taking corrective steps to reduce the rape offenses however, no stringent preventive actions are taken to stop occurrence of such offenses. The roots of the laws needs to be made strong before jumping over the branches.

Corrective actions may eliminate the non-conformities in laws by deterring the accused from committing such crimes however to those hard criminals or psychopaths who find no guilt in ignoring the laws, taking preventive actions would eliminate the cause of a potential crime itself. It is just like we have directive principles of State policy and fundamental rights together covered in the Indian Constitution, we should have both the Act and the preventive procedures of acting vigilantly to stop the commission of such crimes.

The point of true justice is only when both preventive and correction actions of the government go hand in hand which means only after making provisions to stop the crime, if then it still occurs due to unavoidable circumstances, then the corrective (in other words, punitive measures) measure should come into picture.

For example, if we talk about the approach of the police in both major cases of Nirbhaya and Disha then a dark angle also goes to show that these cases could have been avoided if police was more vigilant and precautious at the spur of moment, and that if there could have been strong patrolling across the silent streets, private buses or any vehicle could have been under check after 10 p.m. (unlike in Nirbhaya case), investigation could have commenced right at the time when father of Disha told them about her missing daughter at Toll naka and so on. The government should have strongly mandated the installing of GPS in all the vehicles much earlier than the Nirbhaya or Disha incident itself. Similarly ban in the use of tinted glasses on the vehicles should have been prevented way earlier before Nirbhaya rape case occurred.

There are incidences wherein offenses of sexual assaults and harassments were complained off by the victim and her family to police but no action was taken up on time resulting into occurrence of such crimes which had the chance of being avoided and saving life of these women. India thus, is still struggling to control the increasing number of such crimes, the procedure and machinery is not that vigilant to act upon the incident immediately.

The mechanism from which incident can be reported and police can initiate action has to be strong to prevent occurring of such crimes. Just like we watch in Hollywood movies, that their police arrives on time and saves the protagonist from danger, we should strengthen our preventive action to an extent that the occurrence of potential crimes itself will be avoided. Infact, the government should make provisions on vigilant patrolling done to check the failure of machinery in taking preventive actions in such heinous crimes. Hence, only amending laws and making new provisions after the incident already occurred will not yield any fruitful results and achieve no goals of creating a disciplined society unless the root work is done.

Talking about the encounter of four confirmed suspects in Hyderabad case, it is pertinent to note that taking law and order in hands without a fair trial is truly no solution at all. Though to a limited frame of time, we may enjoy the celebration of speedy justice, but on the other hand we would not be able to ignore the question of - what if the suspects are mere suspects while real accused are still to be caught? The pressure by the public for such kind of speedy justice may lead to unfair way of killing the suspects by way of such encounters without even checking if they are the real culprits or not. Justice cannot be given just to please the public at large. It has to go with the touchstone of fair trial.

Coming to the light of Disha Act passed by the Andhra Pradesh Government, it also looks more like a corrective action justifying the act of the police and simultaneously putting pressure on them to complete investigation within the stipulated period of 7 days and on the judiciary to complete the trial in 14 days. This would lead to final reports prepared in stipulated time frame which may raise doubt on the arrest & trial of alleged accused persons accused of offenses only on the basis of suspicion.

Further since the time frame of concluding case is limited and public pressure is high, this grey area may become the discretion area of the police to create an erroneous case against the innocents. This grey area should be cured by providing a preventive remedies giving proper definitions and explanations where the police can be guided with what cogent evidence could be to confirm if the suspect/s is/are real culprit/s.

Another grey area of the Disha Act and Nirbhaya Act is that none of the Act prescribes steps or procedure to be followed by police in order to prevent the occurrence of the crimes against the women. The preventive actions includes vigilant actions to be done by the police in reaching out the victim on time and saving her from becoming a scapegoat in the hands of wild animals. The government should also conduct an audit on the number of Zero FIRs lodged and actions taken on them. There should also be a turn around time (TAT) for specifying time taken by police to reach out the victims.

Hence, both the Acts are proven to be only a corrective measures and lacks preventive actions which is the need of the hour. Though these Acts are made to make the laws more stringent and to create a deterrence in the minds of the criminals but without having a backup of preventive steps which acts as a practical approach towards reducing the crimes in society, any law will be a mere theoretical subject remaining unfolded in the books only.

Further both Acts are silent on the aspect on saving victim’s dignity of rape survival which though envisaged in the Constitution of India is not followed at all. The Act should make provisions to highlight the aspect that the dignity of the rape survival should be protected to every extent without hyping it too much on social media or any other source of media publication.

I still remember a rape case story broadcasted on the news channel wherein the journalist asked the victim about how the victims feels after the incident was done to her. This insensitivity should be completely abolished. With the hype of media coverage everywhere, people are becoming oblivious towards the rape survivals and their stories have become a topic of gossip amongst the people which should be completely avoided. Article 21 of the Constitution of India guarantees life and personal liberty to all persons.

The article is wide enough to include guaranteeing the right of persons to live with human dignity. Rape is thus, a crime in violation of this fundamental right as the victim is deprived of her right to live with dignity.

In one of the cases, Bodhisattwa Gautam v. Subhra Chakraborty[9], the Supreme Court of India said that rape is a crime not only against a woman but against the entire society. Further, it also stated that:
Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is only by her sheer will-power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime.

It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects.

With the cumulative reading of the above, it is clear that the Indian laws lack preventive measures but are majorly a subject of corrective actions only. The Human right research report shows persistent gaps in enforcing the laws, relevant policies, and guidelines aimed at justice for victims of sexual offenses[10].

The crime of rape has not been confined to national interest but has become an international concern as well. If our nation is not been able to reduce it, there will always be a blot on us which will be seen by the international states, thus, harming our goodwill as a whole and we will be looked as a country which has failed to save their own women.

The increasing number of sexual crimes against women including crimes against the minor girls even after several stringent laws made as a corrective step, shows huge lacunas against the laws that are made and these lacunas does become an advantage for the offenders to break the system, laws and shatter the order in the society. Unless stringent preventive actions are not backed with corrective measures, the situations will regrettably be the same and the percentage of such crimes will keep disappointing us.

End-Notes:
  1. https://shodhganga.inflibnet.ac.in/bitstream/10603/140422/6/06_chapter1.pdf, Sarah Grimke; Letter on the equality of sexes and the condition of women, Boston; Isaac Kanapp 1833, reprinted by Source Book Press, Newyok P 10.
  2. See current growth of India in https://en.wikipedia.org/wiki/Economic_development_in_India
  3. See more details in https://en.wikipedia.org/wiki/Law_of_India
  4. See https://www.firstpost.com/india/ncrb-data-2017-highest-number-of-firs-lodged-in-uttar-pradesh-increase-in-crimes-against-women-across-country-7538341.html
  5. Director, National Crime Records Bureau (Ministry of Home Affairs), Crime in India 2016 Statistics, 2017.
  6. Priyanka Dubey, No Nation for Women : Reportage on Rape from India, the World’s Largest Democracy, December 2018.
  7. Notification for Amendment, Gazette of India, The Criminal Law (Amendment) Act, 2013 & https://en.wikipedia.org/wiki/Criminal_Law_(Amendment)_Act,_2013
  8. See https://en.wikipedia.org/wiki/2019_Hyderabad_gang_rape
  9. (1996) 1SCC 490
  10. https://www.hrw.org/report/2017/11/08/everyone-blames-me/barriers-justice-and-support-services-sexual-assault-survivors
Written By Shefali Kumar

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