In a knee-jerk response to the horrific rape cases, several state legislatures – such as West Bengal, Maharashtra and Andhra Pradesh – have tabled or passed laws prescribing the death penalty for child rape or rape and murder. Section 66 of the Bharatiya Nyaya Samhita (BNS) also allows the death penalty for rape and murder. Will these measures work any better than previous legislation has?
As past experience shows, legislation cannot act as a deterrent to rape or provide justice for rape survivors unless it is implemented. Over the years, a disturbing nexus of police and institutional apathy have provided immunity for crimes against women. In the R.G. Kar hospital rape and murder, there were prior complaints of abuse and harassment against the man accused, Sanjoy Roy, by his pregnant wife and by a patient at the hospital. But he was accepted by the Bengal police as a civic volunteer, apparently without a background check. The CCTV in the rest room at the hospital where the young doctor was raped and murdered was not functioning. Instead of seeking speedy police action, the hospital tried to cover up.
In the Thane rape of two girl children by a male cleaner in the school bathroom, the same pattern of apathy was noted. The school had no female attendants and there was no functioning CCTV in the bathroom. The cleaner was employed at the recommendation of a BJP-affiliated trustee, though in systems of integrity, trustees are barred from recommending staff as a preventive measure for nepotism. The judge hearing the case castigated the police for lapses in their investigation. It was the court, not the police, that reminded private medical practitioners that they could not refuse to conduct tests on child survivors of rape.
The Ujjain case was worse still. Bystanders watched and filmed while the woman was raped. How low can our social apathy fall?
Official as well as activist commissions of enquiry, both on police reform and communal violence, have repeatedly suggested training on how to investigate and prosecute cases of sexual abuse, along with quarterly or bi-annual directives reminding local police of the laws against gender violence and the standard operational procedures to be followed. In the bulk of cases, shoddy police investigation has led to failed prosecution. Massive vacancies in the police – 22% in 2022, according to the India Justice Report – compound the problem. So do vacancies in the courts, which have almost doubled between 2014 and 2022, from 2,916 to 5,722. Worst of all, politicians intervene with the police to let off proteges accused of crimes against women and/or children.
According to the National Crime Records Bureau, the rate of registered crimes against women rose from 56.3 per 100,000 in 2014 to 66.4 in 2022; crimes against children rose by over 40%. The highest rates were in Delhi, Haryana, Telangana, Rajasthan and Odisha. The total number of cases under investigation in 2022 was well over half a million (6,50,033); charges were filed in just over 50% of them. The total number of cases pending in court was a whopping 5 million plus. While 28.6% of complaints were pending investigation nationally, in Lakshadweep the pendency was 66.7%, in Delhi 61.6% and in Chandigarh 53%. The rate of conviction was just over a quarter of cases in which trials were completed, which were themselves under a quarter of total crimes. In other words, only around 6% of registered crimes against women went through the process of investigation to prosecution to conviction.
It is not only the police or judiciary that have failed Indian women. Whether deliberately or inadvertently, an enabling political environment for crimes against women has grown over the past ten years. Rapists have been feted in Bihar, Gujarat and Jammu by members of the ruling party; in the latter two regions, rape has been valorised as an instrument of communal and caste domination.
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Despite this sorry record, MPs proclaim that women should not be out alone after dark. Innumerable colleges have re-instituted a female dress code. The government has opposed legalisation of gay or transgender marriages in court. New medical textbooks have been issued stating that lesbianism is a crime (they have been withdrawn after public outcry). The Uttarakhand administration has enacted a uniform civil code that requires permission for interfaith marriage and mandates that ‘live-in’ couples register with the police; the Assam government promises to follow suit, and the Prime Minister’s ‘secular civil code’ might likely replicate much of it. Taken together, these measures constitute a formidable set of obstacles to women’s rights and an increasing clampdown on the freedom to choose.
Women’s groups have repeatedly pointed to the culture of tolerance for crimes against women that prevails in India. The first all-India campaign by women’s groups against the normalisation of rape began in 1980. Apart from legislation that was no more than paper, the only thing that’s new today is the way rape is being used by the ruling party to attack leaders of opposition-headed states. While the BJP has been strident on the RG Kar rape and murder, they have downplayed the Thane and Ujjain rapes. For their part, opposition parties have not said much on the Thane child rapes either, nor on the Ujjain rape that bystanders filmed. They have failed to counter the BJP by rising above party politics to spearhead institutional and attitudinal change towards crimes against women.
A growing number of legislators are implicated in cases of sexual abuse. According to the Association for Democratic Rights, as many as 151 out of 4,693 sitting MPs and MLAs have declared cases of gender violence against them. Last week, Brij Bhushan Sharan Singh, the former wrestling federation head and BJP member charged with sexual harassment, claimed that there was evidence that the charges against him were politically motivated. His proof of an opposition conspiracy was that two who had accused him, Vinesh Phogat and Bajrang Punia, are contesting the Haryana assembly elections on Congress tickets. Former minister Anil Vij echoed the contention.
Singh has now been told by the BJP to refrain from commenting on wrestlers. But neither he nor Vij have been told that accusing Phogat of lying about sexual harassment for political gain is outrageous, especially since many other women wrestlers complained too. They had to wage a painful struggle for over a year before Singh was forced to step down, during which a shocked country saw Olympic medalists being beaten by the Delhi police. The international wrestling federation suspended the India chapter before the Indian administration acted.
Reform starts at the top. As long as political leaders downplay gender violence and denigrate women, including women political leaders (remember our prime minister’s sneering comments about Sonia Gandhi and Mamata Banerjee?), the media gives them airtime and loyal trolls amplify their statements, sexual abusers will be emboldened and the police and judiciary will remain sluggish.
Isn’t it time that political parties expel errant members and impose stiff fines that could be put into a women’s legal aid fund? Why don’t political parties empower their women’s wings to conduct internal enquiries into allegations of sexual harassment or abuse? Have they told their members not to protect anyone accused of gender violence? When in power, do they issue strict instructions to the police to prioritise action on crimes against women and seek accountability if their orders are not implemented?
The most important lesson from Kolkata and Thane is that if each authority – the hospital and school administrations, the police and government – had performed their legally-ordained duties, the crimes might not have occurred. No amount of legislation will ensure that. But determined administrations could.
Radha Kumar’s latest book is The Republic Relearnt: Renewing Indian Democracy, 1947-2024 (Penguin Vintage)
