The Weak Link
All countries in South Asia, including India, need to seriously revisit their social, political, economic and administrative setups and work towards removing the embedded bias against women.
The most important outcome of the tragic 2012 Delhi rape case was a string of measures by the Indian government, both central and the state, to address the loopholes in the laws and the justice system as they brutally discriminated against women. That it took the government an extremely atrocious case followed by tremendous public pressure, especially from the middle class, is a testimony to the Indian state’s reactive approach towards citizens’ rights.
At the national level, the central government of India passed the Criminal Law (Amendment) Bill 2013. It also amended various sections of the Indian Penal Code, the Code of Criminal Procedure, the Indian Evidence Act and the Protection of Children from Sexual Offences Act.
The new law seeks to widen the scope of sexual assault as an offence and spells longer, stricter sentences for an offender, going up to 20 years, to life imprisonment to even a death penalty for those who may have been convicted earlier for such crimes. For the first time, the law defines stalking and voyeurism as non-bailable offences, if repeated. Perpetrators of acid attacks could face a 10-year-long jail term. In terms of procedures, the recording of a statement by the victim has been made “more friendly” in an attempt to change the traditional
Indian (and even sub-continental) culture of the police’s targeting of the victims of sexual assault by way of character assassination. It has been made an offence for the police not to record a crime when reported.
On the state level, the Delhi police has launched a round-the-clock allwomen police mobile team. It has also taken measures such as increased patrolling, especially at nights, along with a 24-hour police cover around shopping malls and cinema halls. The reporting procedure has also been upgraded, ensuring immediate registration of FIRs in cases of crimes against women in addition to filing of charge sheet against the accused within three months.
The Delhi police has also broadened the scope of its 'Parivartan' scheme which engages schools, localities and police stations on the issue of safety of women. Under the scheme, woman constables are directed to conduct doorstep policing for the identification and redress of grievances of women within the community.
India also set up a "fast-track" court to try the men accused of the gang rape and murder of the 23-yearold girl in New Delhi. These courts that cover sexual assault and other crimes against women are mandated to bypass India's overwhelmed regular court system, where cases often take years to be resolved. The fast-track system is a replication of a similar effort launched in 2007 to deal with the problem of arrears. The initiative did not quite succeed because of a number of structural gaps.
While it is difficult to argue against the measures undertaken by the government, the Indian civil society feels that the government’s response to the growing range of crimes against women is simply inadequate. There has been a 125 percent rise in the number of rape cases in Delhi since December 16, 2012. Molestation cases are up by a massive 417 percent. Till November 2013, the Delhi Police (Delhi is tragically called the rape capital of India) had registered 1,493 cases of rape against 661 in the corresponding period last year, 3,237 cases of molestation against 625, and 852 cases of harassment against 165.
Despite the Indian government’s justification that the sharp rise in the cases is a result of increased reporting, it is also an indication that the severity of punishments under the new measures has hardly had a deterring effect. “The major challenge is not the absence of laws but the lack of effective implementation and accountability,” says Anand Kumar, Christian Aid’s Country Manager for India.. Even if the reporting of the cases has increased, the rate of conviction remains the same. The severity of punishment has not been accompanied by certainty of punishment, which explains why life goes on as usual, both for women and the offenders.
Experts also argue that unless the discrepancies in the criminal justice administrative system are addressed – covering the functioning of the judiciary as well as ensuring speedy justice – the recently announced measures may remain cosmetic at best.
There are two major issues with the judiciary: the enormous delay in the delivery of justice and the judiciary’s failure in dealing with the cases of crimes against women with the required degree of sensitivity. "India has roughly 12 judges per million. It is generally estimated that for large, developing countries, the need is roughly 60 judges per million,” says Colin Gonsalves, a senior advocate of the Supreme Court of India and the director of the New Delhi-based Human Rights Law Network. He also feels that the approach of fast-track courts does not offer a solution. Such courts just cover rape cases, but what about the cases of domestic violence, matrimonial issues – where women are in divorce or maintenance and custody proceedings for as long as 10 years in some cases – tribal displacement, slum demolition and labor issues? When you fast-track one type of case, you take away the resources of the system generally. What, then, will happen to all the other cases of the poor people in society?
Activists also cite the low conviction rate for crimes registered under the Prevention of Atrocities against Scheduled Castes and Scheduled Tribes Act as a clear evidence of “poor implementation of the strong law” that is aimed at protecting dalits and tribals. The lack of sensitivity in the judiciary towards socially excluded communities, including women, is the major weakest link.
“Patriarchal values are deeply rooted within the infrastructure of Indian social, religious and political spheres. From common people to high-profile bureaucrats, politicians and authorities, the concept of gender equality is not perceptible anywhere,” says Neelam Chaturvedi of the organization Sakhi Kendra. Chaturvedi has been running a national campaign to address the state’s women policy for five years. Civil society, therefore, feels that the measures may remain inadequate unless there is a change in the power and the patriarchal mindset that exists in society.
Taking the argument of social gaps forward, in an interesting and controversial article following the Delhi rape case, Abhijit Banerjee, a Ford Foundation International Professor of Economics and Director of the Abdul Latif Jameel Poverty Action Lab, MIT, suggests that inequality towards access to sex cannot be ruled out as a factor contributing to the rise in sexual crimes against women. “There are few forces more powerful than sexual desire and few forms of inequality more palpable than inequality of access to sex…if you are poor in urban India or even middle class and 25, you have to be very lucky to have a room of your own in the family home, let alone a separate apartment that you can call your own… What are we doing as a society to reduce inequality of access to sex? I don’t mean publicly provided brothels…but just the right to a normal conjugal life.”
India, along with its South Asian neighbors, needs a serious revisit of its social, political, economic and administrative setups that have an embedded bias against women. There is a need to address the patriarchal mindset and rectify under-representation of women in public life, including the legislative and local bodies structure as several researches have demonstrated that the political voice is an important determinant of access to justice for socially disadvantaged groups. It requires a positive social environment for women with enhanced space for economic participation along with a more gender-sensitive state setup. This calls for a pro-active rather than a reactive approach from the Indian state as well as society.