The fact that there is still no verdict in the Delhi rape trial is a sobering reminder that the Criminal Law Amendment Act 2013 is insufficient reform

Over eight months have passed since the horrific events of December 16, 2012, yet the wave of rapes still rage across the nation. The spring and summer of 2013 were marred by barbaric events such as the rape of five-year-old girls in Delhi and Gurgaon, the acid attack on a young woman getting off a train in Mumbai, the gruesome rape and murder of a 20-year-old college girl in Kolkata, and, most recently, the gang rape of a photo journalist in Mumbai as well as countless other incidents. Despite the recurring frequency of these crimes, the public discourse on law reform has come to a halt following the passage of the Criminal Law (Amendment) Act 2013 in April. While the Act certainly introduced long, overdue changes in the law, it is but a first step in the long journey to ending violence against women in India through criminal law, police reforms and curricular reforms intended to change the mentality of future generations. The necessity of further reforms to criminal procedure is glaringly evident from the fact that, although six fast track courts were set up, the verdict in the Delhi rape trial still has not been passed even after eight months of litigation.

Overdue changes

The Criminal Law (Amendment) Act 2013 (“Act”) took the historic step of amending the Indian Penal Code (IPC) to provide for the new offences of rape causing death or a vegetative state, sexual intercourse by a person in authority, gang rape and repeat offences. Importantly, the Act also introduced several other new offences such as causing grievous hurt through acid attacks, sexual harassment, use of criminal force on a woman with intent to disrobe, voyeurism and stalking. Importantly, the Act further amended the IPC to criminalise the failure of a public servant to obey directions under law. It has also made the non-treatment of a rape victim by any public or private hospital an offence. While these amendments to the IPC constitute a major legislative stride forward, corresponding steps forward have not been taken in the amendment of criminal procedure.

The Act amended the Code of Criminal Procedure (CrPC) to provide for a woman officer to record evidence from a woman against whom certain offences have been committed. If the victim of such offences has been mentally or physically disabled, temporarily or permanently, then the woman officer must record the evidence at the victim’s residence or the victim’s place of choice. These requirements apply to offences such as causing voluntarily, grievous hurt by the use of acid, sexual harassment, assault or use of criminal force against a woman with intent to disrobe, voyeurism, stalking, rape, gang rape, sexual intercourse by a person in authority, and a word, gesture or act intended to insult the modesty of a woman. The CrPC was further amended to provide for a court to ensure that when the evidence of a victim of rape below 18 years has to be recorded, the accused does not confront the victim. However, many procedural issues critical to making the criminal justice system functional in the case of rape and serving as a deterrent against further crime have not been addressed by the Act.

Areas to be looked into

The starting point is of course the registration of the FIR itself. The courts are divided over whether the police have an obligation or not by law to investigate allegations of rape before registering an FIR. If a police investigation has to take place before the registration of an FIR, delays will inevitably occur and the failure to register FIRs in rape cases will continue. Moreover, the Crime and Criminal Tracking Network and Systems (CCTNS), an ambitious Rs.2,000 crore project of the Home Ministry, which would enable at least the e-filing of FIRs, is expected to be implemented only in 2015.

The second procedural issue is fast track courts. Section 309 of the Criminal Procedure Code (CrPC), as amended by the Act, provides that the trial of offences under Section 376 (rape) and Sections 376A-D (covering punishment for causing death or resulting in persistent vegetative state of the victim, sexual intercourse by husband upon his wife during separation, sexual intercourse by a person in authority and gang rape) must be completed within two months from the date of filing the charge sheet. However, the Delhi rape case, prosecuted in a fast track court, has already taken over eight months. Therefore, procedural rules must be examined including the grounds for an order of in camera proceedings. They are usually ordered only where a matter of national security is involved or a party asserts that communications are privileged. In camera proceedings are not ordered on the grounds that the accused’s safety is at risk as in the Delhi case. Indeed, the court’s order of in camera proceedings in this case has resulted in it being secluded from media attention, thereby reducing public pressure for further reforms.

Samaritans & jurisdiction

A third issue is the protection of good Samaritans. The CrPC must be amended to provide that members of the public who act as good Samaritans should not be treated as wrongdoers and unnecessarily questioned or harassed by the police. The current situation in which bystanders do not help victims of crime reflects a sad state of societal affairs and must be addressed.

While the Act has made limited changes to criminal procedure, the police have been left out of legislative reforms altogether. The only reforms were those announced by the then Delhi Police Commissioner, Neeraj Kumar, on January 18, 2013, including that Zero First Information Reports (FIR) may be registered on the basis of a woman’s statement at any police station irrespective of jurisdiction. Jurisdiction is a very important issue as, in the Delhi case, the victim’s friend stated that the police wasted 30 minutes arguing over jurisdiction, although the victim and her friend were lying on the road for two hours. The police chief also announced a series of other measures such as the recruitment of 418 women sub-inspectors and 2,088 women constables, PCR vans to be deployed outside women’s colleges, provision for women to call ‘100’ to seek assistance to be given a lift home at night by a PCR van, and 24-hour police cover for areas around entertainment hubs with increased security between 8 p.m. and 1 a.m. Despite these reforms, in the succeeding months, police actions in subsequent rape cases have caused much alarm. In the case of the rape of a five-year-old child, the police were accused of offering a bribe of Rs. 2,000 to the victim’s family to refrain from filing a case. Police officers have also been filmed on video beating women of all ages because they had the audacity to protest a rape.

Model Police Act

Despite the clear need for reform of police handling of rape cases, the Model Police Act of 2006 drafted by the Police Act Drafting Committee (PADC) constituted by the Ministry of Home Affairs in September 2005, and chaired by Mr. Soli Sorabjee, is in cold storage. The Model Act, which was intended to replace the archaic Indian Police Act of 1861, was drafted with the purpose of not only meeting the challenges of policing but also fulfilling the democratic aspirations of a modern society. The PADC envisioned a modern police force which was responsive to the needs of the people while being accountable to the rule of law. A few of the key concepts underlying the police Act were: 1) functional autonomy; 2) encouraging professionalism; 3) accountability; and, presciently, 4) jurisdiction.

First, functional autonomy was viewed as a means of removing the nexus between police and politicians who treat the police as their personal security service. It proposed the establishment of a panel to receive complaints from police officers of pressure from higher officials to commit illegal or unconstitutional acts. The PADC felt that the law should be the master of the police, not politicians. A fixed tenure of two years was suggested to avoid transfers arbitrarily.

Second, the Model Act focussed on encouraging professionalism. The PADC recommended abolition of the rank of constable and replacing it with a primary rank of Grade II civil police officer. However, a recruit can attain this officer rank only after undergoing a three-year training course as a stipendiary cadet, culminating in a bachelor’s degree in police studies. As a result, even the lowest level of the police force will have a bachelor’s degree.

Third was the principle of accountability. The police Act proposed introducing criminal penalties for the most common defaults of the police such as non-registration of FIRs, unlawful arrest, detention, search or seizure.

Fourth, and most presciently, was the issue of jurisdiction. Underpinning the Model Police Act is the notion that police officers should be duty-bound to assist victims of sexual offences irrespective of the crime’s jurisdiction. As the Model Police Act was never implemented, it took the tragic Delhi case for reforms regarding jurisdiction to be announced. In short, while the passage of the Criminal Law (Amendment) Act 2013 is a milestone in criminal law reform in rape cases, the creation of offences is not sufficient. Instead, the punishment of those committing these offences through the police and the criminal justice system is critical in providing effective deterrence against future crimes.

(Aparna Viswanathan is a lawyer.)

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