Sunday, April 29, 2012



By Dr. T. Padma
MA (Economics)., MA (Lit)., MA (J & MC)., MBA.,

Women in India, in spite of a prohibitive and severe punitive approach  of criminal law and untiring efforts of a host of Women Organisations and the National Commission for women (NCW) constituted under the National Commission for Women Act, 1990, to liberate them the hitherto unjust, social, political and economic subjugation and suppression, are being sexually exploited, abused and assaulted.
During the recent years, unfortunately, crimes against women are on increase. During 2007 for which latest data is available from the National Crime Records Bureau (NCRB) seven of the ten fastest rising crimes in India were those against women.  The incidence of dowry deaths registered an increase of 15%, Cruelty by husband and relatives 14%, kidnapping and abduction of females 13% importation of girls 12% and sexual harassment 11%.  Rape and molestation cases grew by around 7%.  Despite the rising cases of crimes against women, they would appear to be not in the priority list of the investigating agencies.  The NCRB data shows that investigation starts within the same year in only one out of 10 sexual harassment cases and only two out of 10 cases of molestation or cruelty by husbands and relatives. Delayed investigation, not only frustrates the victim but also provides an opportunity to the accused to use his clout in influencing the investigation, as evident in the Ruchika case.  As per A P State Crime Records Bureau a total of 6,918 cases dowry harassment were reported in the State during 2009. Amongst all the crimes against woman, rape is the most heinous and inhuman act of sexual aggression and violence against a hapless woman.  It riot only amounts to a brutal attack on integrity and dignity of a woman but also unjustifiably disregards her legitimate control over her body.  Invariably it shatters the foundations of the lives of the rape victims.  It also impairs their capacity for personal relationships and alters their behaviour and values.  “Raping a woman”, according to Mr. L. K. Advani, former Union Home Minister, “is a much more heinous crime than murder, (because) rape reduces a woman to a state of living corpse”.

However, in nineties, the Inadequacy of the criminal law to protect women who have been victims of rape or assaults on their modesty was highlighted and severely criticized.  The Government of India, ultimately, on March 27, 1980 had to approach the Law Commission of India with a request to suggest, on top most priority basis, substantive as well as procedural reforms in law.  In less than a month, on April 25, 1980, the Law commission submitted its comprehensive Report to the Union Law Minister.  Subsequently, in 1983 the Parliament passed the Criminal Law (Amendment) Act, 1983 to give effect to majority the proposals of the Law Commission”.

The Criminal Law (Amendment) Act of 1983, which came into effect in December 1983, inter alia, increased punishment for rape.  It provides for mandatory minimum sentence of seven years imprisonment.  It may be extended to a term of ten years or for life.  However, it is permissible for a Court, for “adequate and special reasons”, to impose on a rape convict a lighter sentence of imprisonment for a term lesser than seven years.

However, a comparative study, at the pre and post 1983 Criminal Law Amendment Act,  as to incident  of rape in India clearly demonstrates that the post  1983 criminal law has neither desisted rapists nor proved effective in combating rapes.

Mr. L. K. Advani and a few members of Parliament, probably, recalling the unsatisfactory performance of the post-1983 criminal law system and realizing the unimaginable trauma of degradation and humiliation of victims of rape and of their (rape victims) immeasurable agony over acquittal of de facto rapists-or allowing them to go with comparatively lighter punishments, have suggested that rapist be sentenced to death.

However, harsh punishments to perpetrators of rape (as revealed by the post-1983 statistical scenario) or sending them to gallows alone, though they to some extent, might console the victims of rape, their relatives and women’s groups, would hardly arrest the dangerously increasing incidence of rapes.  It is a matter of common experience that efficacy of deterrent punishment, inter alia, is based on full proof investigation, speedy disposal and certainty of punishment.  In India administration of criminal justice unfortunately is bridled with faulty, inadvertent or advertent investigation of rape cases, undue delay in disposal of rape cases, and poor conviction rates. Therefore, the suggested death penalty, like the prevailing mandatory seven years imprisonment and the permissible life imprisonment for rapists, in the present scenario, would have a minimal impact.

Surprisingly, criminal and penal policy in vogue exhibits its insensitivity to the plight of rape victims and to their social, emotional as well as psychological, rehabilitation.  It also overlooks the pressing need to restore their untold trauma and humiliation experienced during the coercive sexual encounter.  In Delhi Domestic Working Women's Forum v. Union of India, (1995) 1 SCC 14, The Supreme Court aptly commented:

It is rather unfortunate that in recent times, there has been an increase in violence against women causing serious concern. Rape does indeed pose a series of problems for the criminal justice system. There are cries for harshest penalties, but often times such crimes eclipse the real plight of the victim. Rape is an experience which shakes the foundations of the lives of the victims. For many, its effect is a long-term one, impairing their capacity for personal relationships, altering their behaviour values and generating and less fears. In addition to the trauma of the rape itselts, victims have had to suffer further agony during legal proceedings.”

Also the Apex Court, highlighting defects of the existing criminal law system vis-à-vis victims of rape and indicating a set of broad parameters in assisting victims of rape, inter alia, directed the NCW to devise, in consultation with the Union Government, a scheme for the payment of compensation to rape victims.

Against this backdrop, the present article endeavours to highlight, and evaluate the legislative scheme and judicial response to the right of victims, of rape to live with dignity and to be compensated by State or rapist or by both, for unlawful sexual attack and violence them. In India there was neither a comprehensive legislation nor a statutory scheme providing for compensation by State or offender to victims of crime prior to the Criminal Procedure Code (Amendment) Act, 2008 which came into effect from December 31, 2009.  The State generally makes to the innocent victims of violence and major accidents, ex-gratia payment, which is not only ad-hoc, and discretionary but also inadequate.

It is difficult to comprehend the judicial deliberations on, and the inconsistent judicial approaches to the right to live with dignity of a victim of rape and her right to be compensated for infringement of her fundamental right exhibited in the Delhi Domestic Working Women's Forum (DDWWF) and in the Vishaka and others V. State of Rajasthan (AIR 1997 SUPREME COURT 3011). In the DDWWF the Court, directed the NCW, against its will to frame an appropriate scheme, of course in consultation with the Central Government to compensate victims of rape.  While the same court in the BOGA, rejecting a Special Leave Petition, on its own, awarded interim compensation (along with arrears) to the rape victim, even though the petitioner at no stage of his trial was charged for rape.  And the Court in the Vishaka felt it unnecessary to deal with the alleged brutal gang rape and the rape victim’s right to be compensated for “the incident” was the select-matter of a separate criminal action,” even though the Incident of rape, as admitted by the court itself, was “the immediate cause for filing the writ petition” and the petitioners” prayed for an appropriate direction for the payment of compensation to the rape victim.

These judicial pronouncements have also failed to render any justice to the victims of rape who or on whose behalf the compensation was sought in the respective cases.  Hence, the right to live with dignity and to be compensated of a rape victim,” despite the judicial sensitivity to victims of rape and their plight and acclaimed judicial articulation of the right to live guaranteed in article 21, is governed by the pre-DDWWF legislative framework.

The Legislature, Judiciary, Government, and NGOs from their jurisdiction have been showing their immense sensitivity and concerted efforts to compensate victims of rape and to wipe out their tears.  The practice of requiring an offender (and/or the State) to pay his victim for the harm he caused has been at the heart of criminal jurisprudence of overseas nations.

However, administration of penal justice is vague in India, which makes every possible effort to “reform” and “treat” offenders for their effective and meaningful re-socialisation and re-assimilation in the social mainstream from which they deviated, does not display equal concern to victims of rape and their right to live with human dignity.  The fragmentary compensatory legislative scheme outlined in the Criminal Procedure Code, 1973 becomes more ineffective when courts in India, exercising their judicial discretion, show their unconvincing reluctance to invoke those legislative provisions to compensate victims of rape.

The Supreme Court in Vishaka and others V State of Rajasthan probably realizing the legislative and judicial apathy to victim of rape, not only laid down the guidelines for due observance and work places or other institutions until a legislation is enacted, in due reaffirmation of the rights of a rape victim to leave with human dignity and to seek compensation for the deprivation of her dignity provided under Article 21 of the Constitution of India  but also directed the NCW, in consultation with the Central Government, to formulate a compensatory scheme for victims of rape on the lines of British Criminal Injuries Compensation Scheme to enable victims of rape in India to seek compensation from the offender and the State.  But unfortunately both, the NCW and the Central government, have yet to inject the directive and noble sentiments of the Apex Court in our criminal justice system.

Besides enlarging the definition of “victim” the Criminal Procedure Code (Amendment) Act, 2008 has gives protection to rape victims and confers rights; and also provides for compensation.  It incorporates the recommendations of the Law Commission, the Justice Malimath Committee’s report and the guidelines issued by the Supreme Court to prevent overcrowding of jails with under trials.  With the permission of court, a rape victim can engage an advocate to help the prosecution.  Any victim’s statement will have to be recorded at the victim’s home or in a safe place or a place of her choice.  As far as practicable, the statement should be recorded by a woman police officer in the presence of the victim’s parents or guardian or near relatives or social worker of the locality.  Under the new law, statements can be recorded through audio/video or other electronic means.  Investigation of rape / child sex abuse must be completed in three months from the date when information was recorded by the officer in charge of the police station.  The law provides for ‘in camera’ trials and protection of the victim’s identity maintaining the confidentiality of the name and address of the parties and conduct of trials by a woman magistrate.  It will enable the victim to on appeal against any order passed by the court acquitting the accused or convicting him of a lesser offence, or awarding inadequate compensation.  Such an appeal shall be made in the court where an appeal is ordinarily made against the order of conviction. 

Undoubtedly, it is a high time on the part of the relevant Authorities to be sensitive to victims of rape and to act upon the directive of the Supreme Court of India.  Such a move is imperative not only to make our criminal justice system at par with that of other civilized states but also to make sure that rape victims in India are treated with respect and are allowed to live with human dignity in consonance with the constitutional guarantee and mandate. The victim compensation scheme as provided under sec. 357A of Amended Act is to be implemented in  letter and spirit to provide for compensation to the victims of rape defining primarily the criteria for eligibility for seeking compensation, mode of assessment of compensation and the composition, powers and responsibilities on the lines of Criminal Injuries Compensation Board (CICB).  

The emerging human rights jurisprudence at home and abroad requires all public authorities to act not merely compatible with the global perception of the right to live with human dignity but also resort to all the possible means and strategies to strengthen and ensure the fundamental right to life and liberty of a  rape victim.

        [Published in Supreme Court Journal  / Weekly
Jan-2010, Part – 4
        Published in ALT (Criminal)/Monthly
February 2010, Part –2 & March 2010, Part 3.]

Note: The Author is a member of A P State Higher Judiciary. The views expressed in this article are purely personal.

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