Hard Light : Time to Dirty Our Hands with the Indian Penal Code

Dhrubaa Ghosh

The rape, torture and murder of a 23 year old woman in New Delhi is not the reason for the current public outcry. It was that final weight tipping of the scale; it came at a point when the nation just couldn’t take any more. Rape has become so frequent that its presence is like the repeat telecast of the same episode running forgotten in a television while the family dines. The other compelling reason was the terribly familiar circumstances in which something grotesquely unfamiliar happened. The girl next door boarded a bus from a crowded place supposedly safe for students at 9:30 pm, and was skewered with an iron rod by six men. This can happen to just about any woman, anywhere, at any time. Thus the identification.

Since it’s so close to us, and has made us finally, finally uncomfortable enough, let’s get closer to the remedy as well. Yes, we need to stop rape and we need justice. But how to do that without researching on the Indian psyche for the next 20 years or waiting till a suitable avatar is reborn?

If the situation doesn’t change, each woman (that’s every female from fetuses to eighty plus) in the country would be unsafe. And every man would be either an accomplice or a victim, even if it’s in the most far-fetched way possible. No economic class or geographical region has been left insulated, as the rate of crime against women is rising in every state, in all communities and across all religions. We have to look upon justice as something necessary, like drinking water or a roof over our head. Not that everyone has roti-kapda-makan in India, but everyone agrees that these are necessities.

Assuming that everyone needs justice as urgently and as regularly as water out of a municipality tap, here are the steps to getting what we require:

  • Realize that molestation and rape are crime, i.e. legally punishable offenses
  • Identify existing laws that address these crimes and demand their implementation
  • If the laws are inadequate, demand for their amendment
  • Where there are no laws, demand their creation and implementation
  • Keep demanding these laws till we get them from whichever government

If you think you need to first change society and then resurrect/amend/create laws, forget it. Believe me, a man committing rape out of depravity or ignorance or class-based anger can sit in jail and think about it as efficiently as he can at home. In fact, he would be better at thinking if he is in jail. Firstly, it would be an example to others – yeah – bad things happen to you when you rape. Secondly, society becomes automatically more peaceful if criminals are convicted and locked up. And finally, laws are meant to be applicable to everyone, from the prime minister to a beggar. Include politicians, government servants, police and military personnel.

But why would those horrid people in power listen to us? Haven’t they already expressed their massive disinterest by drowning us with water cannons and breaking iron tipped sticks on our backs? Well, to stay in power in our country, politicians need votes. So each protestor = one vote lost. If thousands of voters want justice and keep insisting on it, most politicians would be tempted to grant these demands. Yes, it’s our job to keep on at it till we get the law working for us. Infinite vigilance is the price of democracy.

To do all this, we have to know what laws exist and what don’t. So let’s destroy a few myths.

  • We all know the jubilant ‘breaking news’ – Delhi will set up five fast track courts and 25 more are coming up in Maharashtra. What these satisfying reports don’t tell us is fast track courts have been around since 2000!

On 31 March, 2000, the 11th Finance Commission (people managing finance for the 11th Five Year Plan) granted the Ministry of Law and Justice Rs. 502.9 crores to set up 1,734 fast track courts. On 31 March 2005, when this five year term ended, the Supreme Court ordered the Ministry to continue with these courts. At that time 1562 fast track courts were operational. Rs. 509 crores was set up as their budget till 31 March 2010 @ Rs. 4.8 lakhs per court per annum (recurring cost) and Rs.8.6 lakhs as fixed cost. Last heard, Rs.73.16 crores had been granted for fast track courts for 2010-11. All pending cases were to be rounded up and central funding for courts to have stopped by 31 March 2011 …

  • Things get better 2011 onwards. We are to have e-courts under the Department of Justice, as set up by the National Informatics Center. 12,000 of these were to be created between 2007 to 31 March 2012 and some 2249 more courts would come up by 31 March 2014. Rs. 935 crores was granted for this scheme.

Fast track courts existed and an estimated 32.34 lakh cases were resolved by them. It’s a government estimate of course, and we don’t know whether anyone was happy with the rulings, but this was at all possible. We didn’t know much about them, we allowed them to function in whichever way, we didn’t know where the money disappeared. Now that we are familiar with the term ‘fast track court’, it’s our responsibility to demand for them, see they get set up, and keep up the pressure to make them work.

If you don’t like it, sit back, crib, and watch your taxes disappear every year.

  • There are NO clear rules on what qualifies a case for a fast track court. General statements such as ‘cases related to crimes against women’ won’t do. The criteria for a case to move to the fast track court needs to be spelt out and incorporated within the Indian Penal Code, along with deadlines for judgment, and methods of tracking the case on the corresponding e-court.

This is our job. We have to bring up the demand and hammer it in, or keep expressing rage, hopelessness, anguish while holding candles over each Nirbhaya/Amanat/Damini.

  • The Department of Justice has a collaboration with UNDP (United Nations Development Pragramme). Under this, a legal awareness cum support initiative called Access to Justice for Marginalized People have been running since 2008, and is supposed to end this year. The next phase would last from 2013 – 17. Under its umbrella are several tribal areas of Bihar, Chattisgarh, Jharkhand, Madhya Pradesh, Odisha, Rajasthan and Uttar Pradesh.

So what happens when villagers/higher caste men/police beat, rape and torture tribal women under the pretext of them being ‘Maoist’ or just to teach them a lesson? So far, NGOs and a part of the media have made the right noises while we have remained safely distanced. UNDP’s pious efforts wouldn’t protect women unless there is a clear law linking RTI, criminal and civil offences and constitutional provisions for SC/ST/OBC (especially in the area of land rights).

While the reservation issue has shaken the country time and again, we have mentally categorized and blocked tribal women as strangers in the jungle. Unfortunately, if we don’t realize they are human, women and Indians too, our peaceful urban legal system would get affected. Once again, we don’t have to wait till everyone wakes up to massive social truths. We first need the laws, change would follow perforce. When a police officer shoves stones up a tribal woman’s vagina, he becomes a criminal, not a candidate for the national award for “gallantry”. Once a man like Ankit Garg is made to face justice on the Soni Sori case, any aspiring civilian rapist would think twice before tempting the law that doesn’t spare policemen.

  • Section 376 of the Indian Penal Code delineates the punishment for rape. A rapist gets a minimum of seven years in jail and a maximum of life term. Rape, under the current laws, is a bail-able offence. Marital rape, if proved, can be compensated with a fine or two years in jail. If the raped woman is less than 12 years old or pregnant, or if she is raped by a police officer/hospital staff/jailer/rehab home staff/public servant or gang raped, the sentence starts with ten years in jail. Once again, this is bail-able. There is no punishment for attempt to rape. Rape is defined as penetration without consent. Nothing else qualifies for even a fine.

The Indian Penal Code, in so many words, is telling us that rape is no big deal. So a criminal can just say that the woman agreed to it and walk home happily. He can pay his way out, it’s easy and economical. And if the victim can be proved ‘a woman of easy virtue’ who is ‘habituated’ to intercourse, the punishment reduces even in proved cases of rape! A 16 year old tribal girl, Mathura, was raped by policemen in 1974. In 1983, an amendment to the Evidence Act provided that if the victim says she did not consent, the act would be rape and not consensual sex. And in 1989, when another tribal girl, Suman Rani was raped by policemen, the court reduced the jail term from 10 years to 5 years as it seemed that she was ‘a woman of easy virtue’.

  • The Juvenile Justice Act of 2000, in tune with the UN’s Convention on the Rights of the Child (CRC) states clearly that no child below 18 years of age can be given a life term or death sentence, irrespective of the nature of the crime.

Our penal code is a hand-down from the British era, with outdated terms such as ‘outrage the modesty of a woman’ or ‘act of innocence’ (to describe crimes by children). One of the accused in the Delhi case will be 18 in four months. Unless the laws are amended, he will spend two to three years in a state funded rehabilitation center or ‘children’s home’, and then be free to roam the earth again.

The only way we can discourage rape is by insisting that laws, once set, be applied to everyone found guilty. This sounds simple, and is incredibly tough. Explains why we are still governed by stuff penned in the mid 1800’s by the British government with only synthetic changes and amendments made from time to time.

If we don’t want to create our laws, we have no right to demand justice. To have justice, we have to propose the laws and force them into place. No other way out.

Disclaimer : Yes, like everyone else, I had loads of data for a piece on rapes in India bristling with overwhelming statistics and gruesome details. And I could’ve written, like so many women in media, about my personal experiences within a dented, painted, at times tainted public life. I have read the usual reams of theory at university, written unbelievably wise papers, and can write a careful analysis on the Indian male/female/juvenile psyche. Like all outraged folk on social media and web forums, I could eloquently voice my massive shame and indignation about being an Indian ruled by villainous politicians. As an activist, I would have regaled you with real-life tales of narrow escapes, lecherous police and brave-heart rescuers ready to face any odd for a just cause.

But you were reading all that already, weren’t you?

The more we read and write and like and tweet, the wider grows the gulf between us and the actual incident. For that matter, the whole series of rapes grow increasingly distant, like thunder on mountain top miles away, as we talk loudly about these heinous crimes. So let’s get down to the brass tacks, figure out what we want, and want them so hard that we get them.