WHY HAVE STRINGENT LAWS FAILED TO INSTILL FEAR IN RAPISTS?

Has Indian judiciary failed our daughters? Why do Indian daughters continue to face violence despite the government framing tough anti-rape legislation? The laws do not seem to have any deterrence for the rapists as the numbers suggest. A woman is raped every 16 minutes in India. According to the National Crime Records Bureau's (NCRB) 'Crime in India 2019' report, the country had recorded 88 rape cases every day and 32,033 in the year. Rajasthan and Uttar Pradesh top the shame list with 6,000 and 3,065 rape cases last year respectively.

But the situation is far more horrible as the figures are gross underestimates. These are just the cases that have been reported. Majority of the crimes against women are committed by people known to the victims such as close family members, neighbours, employers and friends. And in many cases, the victims either remain reluctant to report crimes or they are coerced by their families to keep mum due to stigma attached with it. India’s deep-seated patriarchy is largely to be blamed for this sorry state of affairs.

The government was forced to pass a tough anti-rape law in April 2013 following a massive outcry over the brutal rape of Nirbhaya, a 23-year-old physiotherapy student on a moving bus in New Delhi on the night of December 16, 2012. The law made stalking a crime and introduced death sentence for convicted rapists. But has it brought about any positive change in the society? Young girls and women continue to fall prey to the rapists. In several cases, the accused get away with minor punishments due to lack of evidence and they are also protected by police and politicians. The misuse of police in destroying evidence is not a hidden secret.

The shoddy police investigation in the latest Hathras rape case also raises several questions.  Why were samples of the 19-year-old Dalit girl taken on September 22 when she was admitted to the hospital on September 14? Why did it take three days to send the samples to a lab in Agra? The lab received the samples on September 25. The vaginal swabs in rape cases should be taken within 72 hours. In fact, according to the guidelines & protocols for medico-legal care for survivors/victims of sexual violence by the Ministry of Health and Family Welfare, “the likelihood of finding evidence after 72 hours (3 days) is greatly reduced; however it is better to collect evidence up to 96 hours in case the survivor may be unsure of the number of hours elapsed since the assault.”

Why did the hospital authorities delay in taking samples?  Was it an act of gross negligence or it was purportedly delayed? Now the UP police is claiming that the victim was not raped as the forensic report, which was received by the Agra lab 11 days after the crime, has found no evidence of rape. It is also banking on the post-mortem report issued by Safdarjung Hospital which does not mention rape. The post-mortem report says there were “multiple old healed tears” in the private parts of the deceased. Certainly, there will be very little chances of finding any evidence if the samples are collected beyond permissible time limit.

Why were samples of the 19-year-old Dalit girl taken on September 22 when she was admitted to the hospital on September 14? Why did it take three days to send the samples to a lab in Agra? Why did the hospital authorities delay in taking samples?  Was it an act of gross negligence or it was purportedly delayed?

The decision of the local authorities to cremate the victim in the dead of the night and that too in the absence of her family members also raises several doubts. Why was the family denied a last look at the body? Why did the district officials not permit the body to be taken home for last rites? What was the urgency? The UP police and the local administration need to answer these questions.

Now that all the four accused have been arrested, the case will be heard by the Fast Track Court (FTC) after the police file the charge sheet. The problem is that most of these FTCs in several states have the same drawbacks as the district courts. Improper infrastructure, inadequate staff, frequent adjournments continue to dog these FTCs. As of 2019, there were more than 1.66 lakh pending cases of crime against women and children in the FTCs across the country.

Even if the FTC completes all the legal formalities and passes its judgment, it will not be a final closure of the case. The accused have every right to challenge the FTC decision to higher courts and finally the Supreme Court.  The case in point is the Delhi medical student rape case, when a fast-track court was set up on January 17, 2013 a month after the crime.  The court wrapped up the proceedings within eight months and sentenced the four surviving convicts to death in the case. The Supreme Court upheld the death penalty on May 5, 2017, but the convicts were hanged on March 20 this year after they took time exhausting all their legal remedies.  It took more than seven years before the convicts could be sent to the gallows despite having been sentenced to death in a fast-track.

The unusual delay in closure is also traumatic for the rape survivor as she is haunted by the flashbacks, nightmares and upsetting memories. Moreover, as the case drags from one court to another, she is subjected to the same rigmarole of answering uncomfortable questions which may prove to be very disturbing for her. In some cases, it is observed that the survivors end their lives due to the stigma attached with the incident of rape.

There is an urgent need to fast track justice also. If  justice is prompt, it will certainly act as a deterrent and instill fear among the people who entertain any such wicked thoughts. The criminal justice system should be such that it is not seen as failing to deliver justice after rape. For, justice delayed is justice denied.

(The article first appeared on Wionnews.com)