Rape law loopholes


Vinay Sitapati, Who’s afraid of an FIR? Indian Express, July 1, 2009.

The single-page version is available here: http://www.indianexpress.com/news/whos-afraid-of-an-fir/483499/0 and copied below in case the link is broken. It’s not very often gender violence is featured in mainstream op-ed pages! Bravo, Indian Express!

The rape of Mathura, a young tribal woman, by drunken policemen, marked the coming of age of feminist legal activism. The furore that followed the 1979 “not guilty” verdict led to Indian rape laws being eventually strengthened in four major ways: (1) coercion was to be presumed if sexual intercourse was proven in cases of gangrape and custodial rape (2) the raped woman would not be judged on the basis of her ‘character’ or past sexual history, (3) the victim’s identity was to be kept secret; proceedings were in camera and (4) improvements in medical methods can now conclusively identify the rapist. In the wee hours of Saturday in Shopian (Kashmir) 30 years later, these four changes came to nought. The body of Neelofar and her sister-in-law Asiya were found in a shallow stream next to a para-military camp. Their clothes were ripped off, the stream had earlier been searched, and the water-level was low. Yet the police put the death down to drowning and refused to register a first information report (FIR). In the post-mortem that followed, the doctors confirmed the police-version, and the forensic lab took forever to publish its findings. It was only when public anger that lit the entire Valley, that Chief Minister Omar Abdullah ordered an enquiry commission which has since confirmed sexual assault; several local officials have been suspended. Where the law failed, people pressure worked.

 Official callousness in Shopian is partly explained by the culture of impunity that prevails in conflict zones world over. The laws may be the same, but ‘war’ permits a certain license.


But the tragedy of Shopian is the tragedy of all of India. The failure to register FIRs is one of the biggest problems that raped women face. The number of rapes reported in India is large enough — 20,737 women reported that they were raped in 2007, about six a day. That’s an 800 per cent increase from 1971, when the National Crimes Records Bureau first began to compile rape statistics. But the real number is likely far higher. One widely quoted (though hard to verify) estimate is that for every one rape reported, 67 are not.


Botched medical tests are also deeply pervasive during investigations into rape in India. Outright fraud, like in Shopian, does happen: the post-mortem report of a Dalit woman gangraped in the Khairlanji massacre was famously tampered with. But more pervasive are the subtle humiliations that medical examinations inflict. Pratiksha Baxi, an assistant professor at JNU, has done extensive work on how the Indian legal system deals with rape cases. She points out “even when not fudged, the fact that the doctor does the ‘two-finger test’ to check whether the victim ‘is sexually habituated or not’ is using science to do what is directly banned — pass judgment on the sexual history of the raped woman.”


The publicity given to the victims in Shopian — with names and lurid descriptions of the injuries published — was perhaps necessary to establish the most basic of truths: that rape had taken place. But it points to something that Indian law ignores: the insensitivity of the process, making victim and family relive the nightmare of rape. In a Rajasthan trial last year, the cross-examination did this quite literally. As a shocked Rajasthan high court later described it, the raped woman “was made to lie on the bench available in the trial court to demonstrate her posture”!


The official response to allegations of rape against Shiney Ahuja offers a study in contrast. Unlike in Shopian, an FIR was swiftly registered and Ahuja taken in for questioning. The maid was medically examined; the report confirmed that sex had taken place. And unlike Shopian, three of the four post-Mathura changes in rape law did kick in. The identity of the maid has been kept secret. In sharp contrast to the appalling jokes on how came a lowly maid to refuse a film star’s advances, the police have made no such assumption — the character of the maid has (so far) not been a factor. Lastly, the advancements of science means that traces of Shiney’s DNA have been found on the maid’s body.


Action in the Shiney Ahuja case has perhaps been swift. The Chief Minister of Maharashtra has announced that the case will be tried in a fast-track court. But what about the other five women who reported rape that day in India? Is relentless public (and media) glare the only guarantee of speedy justice?


It is hard to form a sweeping indictment of our post-Mathura rape laws from just two cases. In fact, cold statistics indicate that while conviction for rape is low (in 26.4 per cent of cases), it is only slightly less than the conviction rate for violent crime (27 per cent). Besides, the charge sheet rate for rape is a super-high 94.6 per cent, meaning that virtually every complaint ends with the charges being framed by the police (the quality of investigation is quite another matter). Perhaps then, the solution is beyond the scope of any law. The lessons of Shopian — no FIR filing, fudged medical examinations and the public nature of the trial — require institutional sensitivity and honesty that no law can guarantee. The only guarantee of that, for raped women, hinges on one-off acts of paternal pity or the fury of the mob.

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