Thanks to the documentary > India’s Daughter by British film-maker Leslee Udwin, the subject of sexual violence and attitudes towards women in India is back in the national headlines. Over two years ago, when the rape of a 23-year-old paramedical student in Delhi on December 16, 2012, shook the nation’s conscience, the Union government set up a committee to amend criminal laws pertaining to sexual violence in India.
Some of the recommendations made by the committee led by Justice J.S. Verma were incorporated and stricter laws were put in place, expanding the scope of what constitutes sexual violence in India and the punishment for it. The national discourse since has largely been appreciative of the institutional response to the 2012 rape and welcomed the process of legal reform that it set in motion. But have empowering laws changed the ground reality for women, who remain vulnerable to abuse?
One of the several reasons for the outrage against the perpetrators in the 2012 case is because she was violated by strangers. However, if statistics are anything to go by, women in India are vulnerable to violence at the hands of their own family members. According to the National Crime Records Bureau (NCRB), for example, incest rape cases have increased by 36.7 per cent from 392 cases in 2012 to 536 cases in 2013. Of these, 20.1 per cent were registered in Maharashtra (108 of 536 cases), wherein 117 cases of rape by blood relatives were reported.
Flavia Agnes, women’s rights lawyer based in Mumbai, said that in several cases of incest, the complainant withdrew the case under pressure from family members or witnesses would turn hostile under pressure. She cited the rare case of an 18-year-old Mumbai girl had deposed in court against her father for sexually abusing her and her elder sister. But the man was not punished, as the case had been registered under the POCSO Act and the girl was deemed not minor at the time of the incident. Relying on the school certificate, the police had recorded her age at the time of the incident as 17 years and nine months.
But her mother had produced a birth certificate from Bihar according to which she was a major on the date of the incident, as her age was 18 years and two months. The prosecution could not prove that this was a concocted document, with the result that her father got only two years’ imprisonment for molesting the elder daughter, and after he appealed in the higher court, the sentence against him was stayed. “Now the father who abused his daughters is at home, while the girl who dared to depose in court is in a college hostel paid for by the court,” Ms. Agnes said.
Marital rape
Another area that remains unaddressed is that of marital rape. The colonial-era Indian law still permits marital rape, by providing an exception to spouses from being charged of committing rape under Sections 375 and 376 of the Indian Penal Code. Though the Verma committee report recommended that this provision be repealed, no action has been initiated. In February 2015, a marital rape victim in Delhi approached the Supreme Court challenging the constitutional validity of the exception clause. Her petition, filed by Human Rights Law Network, was rejected and withdrawn. The victim, who had medical records to prove the abuse, said both the police and lawyers were encouraging her to file for a divorce, but she wanted him to be punished. “What is the guarantee that he won’t marry again and abuse that woman too?” the victim asked.
> Read: Marital rape: the numbers don’t lie
Law is merely an instrumentality of justice, to deliver it remains in the hands of those vested with the responsibility of implementing them — the police, the courts and the lawyers.
An activist, associated with Vimochana in Bangalore, who has worked with battered women for nearly 35 years now, said (requesting anonymity) that most women hesitated to share details of sexual violence at home. This resulted in many women not coming forward to complain despite there being a provision in the Domestic Violence Act, 2005, to report sexual abuse. Most of the time they had to be persuaded by the NGO to share their stories so that help could be offered to them, she said.
An important question then arises whether the police are approachable enough for women to access justice. Jasmeen Patheja, who runs the Blank Noise project based in Bangalore, said in the past 12 years of her work, she had noticed that there was a lack of trust between the police and the public, which resulted in several incidents of violence against women going unreported.
Neha Dixit, an independent journalist, who won the Kurt Schork Awards in International Journalism for researching and writing on the subject of gender-based violence, said that in most of the cases she had researched, she found the police and the judiciary being insensitive towards victims of violence. In the case of Gudiya, a five-year-old girl who was raped in Delhi, the Station House Officer of Gandhi Nagar police station had refused to file an FIR when her father reported her as missing, she said.
Ms. Dixit narrated the story of a Dalit gang-rape victim in Sonepat, who was charged with perjury after influential upper-caste persons in her town moved the court for filing a police complaint against her perpetrators in April 2013. “The victim in this case has not been able to fight the rape case under pressure from the khap panchayat. This shows us how demanding justice alone is not enough, nor are enabling laws. The lack of focus on rehabilitative measures to help victims fight cases is a lacuna that needs to be addressed,” she said.
As Preetika Mathur, one of the members of the team of legal researchers that assisted the Justice Verma Committee with the preparation of its report, says: “Despite the outrage over rape in India, several legislative aspects of the Verma committee recommendations such as criminalising marital rape have been ignored. Support services for survivors of sexual violence are lacking and the issue of police reforms has also been ignored though it is crucial for delivering justice for women. The lack of political will in initiating action on this is deeply worrying.”
