NIRBHAYA CASE HISTORY VS PRESENT

1. What  Constitutes” Rape”? 

One of the religious book “The Rigveda” states “Gods and Goddesses reside where a woman is worshipped”. Though the great old civilization of India says so much about the need to respect the dignity of women, the real scenario is exactly the opposite.

•    In a landmark judgement of the Nirbhaya Case  Madhu Krishnan vs  State of Bihar AIR( 1956) 5 SCC 148  the Supreme court stated “ Women constitute half of the Indian population but have always discriminated in silence. Self-sacrifice and self-denial are their nobility yet they have been subjected to all kinds of inequities, indignities, incongruities and discriminations. Consequently, women in   India are prone to violence and exploitation as much as crimes like eve-teasing, rape, outraging the modesty of women, domestic abuse, bigamy, dowry, unequal payments &promotion opportunities, exploitation by employer etc. If we talk about Rape which is defined by the Indian Penal Code as follows

•    Under section 375 of the Indian Penal Code 1860 “ A man is said to commit an offence of “ Rape” on the Women who have sexual intercourse with the woman in circumstances falling under any of the six categories below:

•    Firstly- Against her will

•    Secondly –Without her consent

•    Thirdly- with her consent but her consent was obtained because she believes that he is a man to whom she is or believes herself to be lawfully married

•    Fifthly, with her consent  when at the time of giving consent, by reason of unsoundness of mind or intoxication or the administration of him personally or through another of any stupefying or any unwholesome substance, she is unable to understand the nature and consequences of that to which she gives her consent

•    Sixthly –with or without her consent, when she is under sixteen years of age.

•    Seventhly-  When she is unable to communicate her consent.

    EXCEPTIONS:

     The following shall not be considered to constitute “Rape”-:

    A medical procedure or intervention;

    Sexual intercourse or acts by a husband with his own wife, but the age of the wife shall not be less than fifteen years.

2. What constitutes “consent” for sexual intercourse?

The definition of Rape has also included the definition of consent under  IPC as “unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication communicates a willingness to participate in the specific sexual activity.

    Thus, the offence of Rape is not rare in India. In fact, according to a report published by National Crime Records Bureau “Rape” is the fourth most common crime in India. And after the tragedy that happened in Dec 2012, the willingness to report the crime has been increased through the data is very disturbing as according to a census in 2017,  every day about 90 women undergo sexual violence in this country.

3.Nirbhaya Case: Brief Facts

    On the fateful day, the female victim and her male friend “referred in the media as “Pandey” was returning from a  movie show in  Munirka, Delhi on 16th of December 2012 when they boarded an off-duty charter bus for returning home. On the bus, there were six people including the driver. The male victim “Pandey” found it suspicious when the bus started moving into an off-route direction. 

    The offenders were recognized as Ram Singh, Mukesh Singh, Vinay  Gupta, Pawan Gupta, Akshay Thakur and a juvenile who all were in a drunken state,  gang-raped the girl and beaten the male victim with an iron rod. In the morning they were thrown and left in a half-dead state on the road. 

    Both the victims were admitted to the Safdarjung Hospital, where the male victim survived and the female victim succumbed to her injuries on 29th of December 2012.

    The girl was described as” Nirbhaya” because of immense strength and braveness, as in such a situation she gave her statement to the police that she wanted justice against the six offenders.

    This incident led to widespread demonstration and public protest throughout the country, it opened the eyes of public authorities and the century-old legal machinery demanding change in society and it also led to amendment in criminal laws.

    As a result, the offenders were arrested within 24 hours of the offence. One of the offenders namely, Ram Singh committed suicide during the trial and the juvenile who was about 17 years and six months of age during the happening, was tried under the relevant  Juvenile Act and was given the maximum sentence of three years in the reform place.

    The Nirbhaya case was tried in a fast track court and the court agreed to the view that the case was “Rarest of the rare” and in such cases “capital punishment” could be awarded in such a case. On 10 Sept 2013, the remaining four offenders were found guilty and faced the death penalty. And on Sept 2013 the Delhi High court confirmed the Death Sentence.

4. What are the Possible reasons for “Rape “ in India?

i)Low Status of Women in Society: Women in India have suffered discrimination since time immemorial. They do not have any personality of their own, as they remain in the protection of father before marriage and in the protection of husband after marriage. They are considered to be incapable of taking their life, career and financial decisions. In the professional field too, they suffered discrimination in getting equal wages as well as denial in the promotion. In C.B.  Mathumma vs Union of India AIR 1979 SC1868, the petitioner was denied promotion to Grade I of Indian Foreign Services on the ground of sex. Therefore, it is one of the primary reasons why women are considered weak and subjected to exploitation.

ii)Blaming the “Provoking “ clothing of women:  After the Nirbhaya Case here is a tendency in the typical Indian society that the victim of rape is herself the cause of the tragedy happened to her. It is the narrow mindset of the society who think that “Rape” generally happens to such  girls who wear jeans, short clothes, high heels or wear makeup, however, there is no proof regarding such. In fact, there have been instances where saree clad ladies or female wearing burqa have been becoming a victim of encroachers.

iii)The problem of Character: If you are an Indian citizen, you can’t be unknown to this fact that a sincere and amoral female is neither expected to take part in the decisions of her family nor to raise voice against it, if Nirbhaya does so she is considered mean or has lack of” character”.  Men in India also associate such girls to easy enough to give consent for sexual activities, which is not correct. “Where a boy sees his father abusing or assaulting his mother accepts this behavior as a norm of society” .

iv)    Stigmatizing the Victim of Assault: Where a female undergoes crimes like eve-teasing, molestation or verbal Abuse in public areas, people avoid helping her and think the opposite way so put a blame on her. Not only this, the politicians who are responsible for the well- being of society make such statements that vilify rape victim supporters.

v)    Lack of Public Machinery: Lack of proper and effective public machinery is one of the most important reasons for the sexual assault crimes in India. Currently, there is a lack of responsible police authorities, lack of female police officers and most important Judges in courts. Lack of proper toilet facilities, transportation system &cctv cameras in public places makes it dangerous for the females to go outside their houses.

vi)Encouraging Rape victims to compromise: It is a  sad fact that in spite “Rape” being a non-compoundable offence and the guidelines given by Supreme Courts regarding such, the public authorities like Police & courts encourage the rape victim to compromise with the offender or marry the offender. What’s more, is a girl’s marriage or eventual prospects rather than bringing rapists to justice.

vii)Lack of Sex Education: There is still a lot of uneasiness in the society regarding interaction about sex education within public places and within the family. On hitting puberty, youngsters are going through a lot of changes and lack of proper guidance may make them taking the wrong track. The second reason is the Bollywood influence which is nowadays full of contents regarding nudity and inappropriate scenes which again has a negative impact upon the mindsets of youngsters.

 viii) Sluggish Law Machinery: The law process in India is painfully slow, which already reduces the chances of proper justice to the victim. In re.Nirbhaya case even where all evidences were present and a fast track court procedure was adopted, still since 7 years of the happening of the incident there is still no clear indication of full justice.

5.CHANGES IN LAWS PRIOR 2012 VS AFTER 2012

The “Dec 2012 Rape Nirbhaya Case ” opened the eyes of the society regarding the required changes in the society, as the consequence of which a committee was constituted to suggest the changes in laws and procedures in the legal system on 22 Dec 2012. The committee submitted its report on 23 Jan 2013 which was headed by former Supreme Court judge J.S. Verma. The report indicated failure on the part of Govt and police authorities behind the happening.

Accordingly, the following remarkable changes have been made in the legal system:

I.    Criminal Amendment Act 2013  Regarding Rape:

•    It expressly recognizes certain acts as offences like acid, sexual harassment, voyeurism, stalking etc have been made punishable under the Act.

•    New sections 370&370A have been introduced under the Induan Penal Code which especially deals with the offence of sex trafficking in human beings.

•    Accordingly, it provides for such a person who-

a)    Recruits

b)    Transports

c)    Harbours

d)    Transfers

e)    Receives

A person by using threat as or force or coercion or abduction or fraud or deception by abuse of power or inducement for exploitation including prostitution, slavery, forced organ removal etc will be punished.

II.    Extended Scope of the definition of “RAPE” :

With the Criminal Amendment act 2013, the scope of the “definition “ of “RAPE” like the extent of penetration doesn’t matter for constituting the offence, or lack of physical resistance is immaterial etc. Also, in aggravated situations, the punishment shall not be less than ten years but may extend to imprisonment for life and fine.

III.    New Section 376A:

 Nirbhaya Case a new section 376-A has been added which states that if a person who has committed the offence of sexual offence ”inflicts an injury which causes the death of a person or causes the person to be in” vegetative state” shall be punished with rigorous imprisonment for a term which shall not be lesser than twenty years, which may extend to life imprisonment or it may mean death too.

•    In case of “Gang-rape” persons involved regardless of gender shall be punished with rigorous imprisonment for a term which shall not be less than twenty years but which may extend to life and shall pay compensation to the victim reasonable to meet medical expenses and rehabilitation.

IV.    Provision of Fast Track Courts:

To speed up the procedure of legal system in such cases the provision for Fast track courts have been set up which provide for speedy remedial of cases.

V.    The Prevention of children from sexual offences Act 2012:

The act was specially designed to provide legal machinery against the sexual offences against minor children. It is a gender-neutral act, which means a sexual offence against a minor of any gender is a punishable act. The punishment again has been made more stringent in case of crimes against a female child.

VI.    TABLE SHOWING CHANGES THROUGH CRIMINAL AMENDMENT (ORDINANCE) ACT 2018

Source: The Criminal amendment (ordinance) Act 2018 and the POCSO Act 2012 Indian Penal Code 1860.

•    HERE LI-LIFE IMPRISONMENT

6.  PRESENT SITUATION NIRBHAYA CASE:

    After the Nirbhaya Case happening of the Tragedy in DEC,  2012   nothing has much changed since the last 8  years. Initially, the police filed charges against all five adults for the offence of rape, murder, kidnapping, destruction of evidence and attempted murder.  On 10 Sept 2013, the case was Disposed in a fast track court and were found guilty. On 13 March 2014, the Delhi High Court found each of the defendants guilty of rape, murder, unnatural offences and destruction of evidence and confirmed the death sentence. The court noted that the crime, which stirred widespread protests over sexual crimes against women in the country, fell into the judicial system's "rarest of rare category" that allows capital punishment.

    Nirbhaya Case on 15 March 2014,  an appeal was filed with the Supreme court of India for the stay of execution of death sentence of the convicts and it was granted and the time limit was given to make their appeal. On Nov 2019, the review petition of all the convicts was dismissed and the court retained Death sentence of all four convicts.

    The curative petition of remaining three convicts was also filed subsequently and was rejected. On 7th Jan 2020 was issued for rapists by a Delhi court set an execution date 22 Jan 2020.

    Mercy Plea to the President of India: The convict Mukesh filed a mercy plea to the president of India who rejected it on the recommendation of Delhi Home Ministry. Consequently, a new execution petition date was set up on 1st Feb 2020.

    On 17th Jan 2020, the convict Pawan Gupta appealed against the Delhi High court’s Decision. And on 17 Feb 2020, a third death warrant has been issued by the court with the execution date on 3rd March 2020 on 6 a.m.

     Nirbhaya Case as of now, there are still legal options available with the convicts against the death sentence and they can use such options anytime before their death because as per the relevant prison rule no.865 when the convicts are being jointly tried for an offence, all shall be hanged together otherwise they cannot be hanged.

7.CONCLUSION: WHAT WE HAVE LEARNT SO FAR?

Therefore, India is centuries behind in creating a civilized and safe society for its citizens. According to the World Human Development index published in 2019, India ranks 129th position out of 160 people. However, it could be said that the reporting of the crimes has increased as people are more aware now. So, it could be said that in recent years the govt has made attempts to improve its overall procedure regarding the offence of” rape”. However, the effective application of the available provisions and getting justice out of it still remains a challenge.

•    Firstly, we need to develop a responsible society, to respect the dignity of women, to help them rather than avoiding and to create awareness about Sex- education and its implications in society.

•    Secondly, we need a more sensitive system so that even wherever any assault happens, a sensitive police authority could be there to assist the victim and a harsh punishment could be provided. 

•    Thirdly, most people don’t know this, but there is a concept of “Zero –FIR, accordingly, when a victim goes to a  police station, a police officer cannot deny registering FIR stating that the crime did not happen in his area. Thus, when you will register your complaint the police officer shall register it as a Zero-FIR.

Author:

eStartIndia Team