Whenever a rape case triggers widespread outrage among Indians, political leaders respond in one of two predictable ways: some find a way to blame the raped woman for her fate, while others demand stricter laws and harsher punishments for rapists.
On Monday, this played out in the Rajya Sabha as parliamentarians across party lines responded to the murder and alleged gangrape of a 27-year-old veterinary surgeon in Hyderabad. Samajwadi Party MP Jaya Bachchan wanted rapists to be publicly lynched, while a Telangana MP demanded public capital punishment. DMK leader P Wilson asked for a legal provision to allow the chemical castration of rapists before they are released from jails. Several other MPs emphasised the need to hear such cases in special fast track courts.
While castration, lynching or public hangings of rapists would obviously be against the law, calls for more stringent punishments for rape are just as baffling for lawyers and activists who work on rape cases in India.
In February 2013, India did get a stricter rape law in response to the public outrage after the 2012 gangrape of a paramedical student in Delhi. Officially known as the Criminal Law (Amendment) Act, 2013, this law expanded the definition of rape to go beyond penile-vaginal penetration and include all kinds of forced penetration with any body part or object. While the punishment for rape remains seven years of imprisonment extendable to life term, the new law provides for 20 years to life imprisonment for gangrape and allows death penalty for repeat offenders.
Other laws, too, have been amended to introduce harsher punishments for rape. In 2015, the Juvenile Justice Act was amended to allow minors between age 16 and 18 to be tried as adults in cases of murder and rape. In 2018, the central government introduced the death penalty for those who rape children under the age of 12.
The laws, according to several lawyers, are now stringent enough. But do stricter punishments effectively work to reduce rape? Do they help make women safer? Since 2013, how much has justice delivery improved in cases of rape?
A surge in reporting
Research has often shown that harsh punishments like the death penalty do not necessarily reduce violent crimes. In India, the amended rape law has served another purpose: according to official data from the National Crime Records Bureau, the biggest change since 2013 has been a significant rise in the number of rape cases reported to the police. Up to 2012, less than 25,000 rape cases were registered with the police across India. In 2013, this figure jumped to 33,707 and reached 38,947 in 2016.
This spike in reporting is particularly visible in rape data from cities like Delhi and Mumbai. In Delhi, reported rapes shot up from 585 in 2012 to 1,441 in 2013. The number peaked at 1,996 in 2016 and then reduced to 1,168 in 2017. (NCRB data for 2017 was released in October after a two-year delay, and data for 2018 has not yet been released).
According to lawyer and activist Audrey D’Mello, the police began to register more cases of rape in 2013 because of the public criticism that they received in the aftermath of the 2012 Delhi gangrape. “There was some fear and shame within the system around not registering rape cases,” said D’Mello, a lawyer from Majlis, a feminist legal aid organisation in Mumbai.
“Reporting of child sexual abuse has also increased drastically since 2013,” D’Mello said, attributing this to the amended rape law as well as the implementation of the Protection of Children from Sexual Offences Act, 2012, which makes it mandatory for anyone to report all cases of child sexual abuse that they come to know of.
In 2014, there was also a spike in the number of rape cases in which chargesheets were filed, indicating that the police had begun to take rape investigations more seriously. However, the chargesheeting rate fell from 87% to just 61% in 2017. The reasons for this change are unclear.
Low conviction, high pendency
While rape reporting has risen, judicial systems seem ill-equipped to handle this surge of cases. Indian courts have always been burdened with enormous backlogs of pending cases, and since 2013, the number of pending rape cases has gradually increased.
Meanwhile, conviction rates in rape cases remain low, fluctuating between 25% and 30% during most years. The only exception was in 2014 – a year after the rape law was amended – when the conviction rate suddenly jumped from 27% to 38%.
According to Bombay High Court lawyer Mahrukh Adenwala, there has been little systemic change to enable better justice delivery in rape trials.
In the past five years, the central government has repeatedly announced plans to set up special fast-track courts across the country to hear cases of rape and child sexual abuse. In mid-2019, there were 664 fast-track courts in the country, and the government announced that it would set up 1,023 more.
“But how many courts have they actually started since then? How many vacancies have been filled up in courts, to deal with the pending cases?” said Adenwala. “The 2013 amendment of the rape law may have raised awareness and increased reporting, but then what? People start expecting justice, but what have the results been after they were pushed into the criminal justice system?”
The main missing ingredients, say lawyers, are sensitivity and attitudinal change towards women right from the time a rape complaint is reported to the end of the trial.
“The police and courts have not changed their ideas about an ‘ideal’ rape victim – someone who is young, brutally raped by a stranger, and someone who is severely injured or dead,” said D’Mello. “Those who don’t fall into those categories are viewed as ‘bad victims’, which is why the conviction rate has not changed much.”
Manisha Tulpule, a lawyer who works in Mumbai, claims that at every stage of investigation into rape complaints, the lack of sensitivity towards women and children remains strong. “Most Indian states have not yet drawn up standard operating procedures to spell out how investigations and trials must take place,” said Tulpule. “Often, no action is taken against rape accused even when they threaten victims or witnesses in court. All of this makes it difficult for victims to speak the truth on record.”
According to Karuna Nundy, a lawyer in Delhi, introducing stricter punishments for crimes like rape is the easier thing for the government to do. “What they are not doing is directing resources towards behaviour change,” said Nundy.
