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Above: A protest related to the Nirbhaya rape case in 2012, in New Delhi

A recent office order by the Delhi High Court in the matter of bail for rape accused is a significant step in the justice delivery system

By Neeraj Mishra

The shocking rape-cum-murder of a vet in Hyderabad and the gang rape of a law student in Ranchi on successive days have again put the spotlight on  India’s poor record in protecting women and punishing the guilty.

The conviction rate for rape cases in India was 44.3 percent in 1973, and has since then been on the decline, falling to 24.2 percent in 2012, before showing a marginal rise in the last five years.

This has happened despite changes in the legal system, despte passing of stricter sexual assault laws, and the creation of fast-track courts for prosecution of rapes. Most often, evidence is so inadequate, the defence so shameless in probing and the trial so painfully long that the victims and their families get drained.

Bail to the accused in rape cases is an issue with victims and their families, as it leads to further shaming of the victim in society. Which, perhaps, is the aim of the defence. One of these was finally busted by Chief Justice of India SA Bobde last week, when he cancelled the bail of an accused, which had been granted by the Bombay High Court on the grounds that the victim was “habituated to having sex”.

It is bizarre that the courts still continue to look out for “character” and “background” of the victim rather than the crime committed against her. In a case against a serving policeman of Mumbai, who was accused of raping a sex worker, the High Court reinstated him on the grounds of the profession of the victim. It was later cancelled by the apex court, but it’s reflective of our misogynistic attitude towards victims. Nowhere does the IPC or CrPC or the Evidence Act say anything about diluting the crime if the “character” of the victim is not spotless, or even taking it into consideration while deciding a case or bail.

In another astonishing case, bail was granted to an accused by the trial court on the defence team’s assertion that the victim had “enjoyed the incident”. How was this conclusion arrived at? By the victim’s admission that her hands were on the rapist’s back, indicating her acquiescence and consent! This is indicative of the kind of probing the defence undertakes to harass the victim in court.

An average of about 30,000 rapes are reported in the country each year and only about 7,000-odd get convicted after several years of trial. Only some cases like Nirbhaya or the present Hyderabad case get fast-tracked because of the media attention.

In September this year, Chief Justice DN Patel of the Delhi High Court did yeoman service to the cause of rape victims by taking out an order for all trial court and HC judges in Delhi to ensure that the victim’s view is recorded each time a rape accused moves for bail. Furthermore, he has instructed that it is the duty of the investigating officer to inform the victim of the bail intentions of the accused. He has also ordered that a form be signed by both the parties and attached to the case file every time a bail application is moved. This method will help in ensuring that the victim has identified her tormentor and is consistent in her stand through the trial.

Justice Patel’s order does more for the victims than all the false drum beating in Parliament. Jaya Bachchan has adv­ocated lynching and almost everyone wants the death sentence for the accused. They forget that 75 victims out of every 100 will never get justice, and the other 25 will be left with the feeling that they have been raped several times during the trial. Nirbhaya’s mother has voiced her opinion on the trial that has already taken seven years, and even a change in government has done little.

The continued incarceration of perpetrators perhaps does more to deter rapists than any threat of enhanced punishment. Media trial is decried in almost all matters, but never in rape cases, so even that is not a deterrent for the accused. The misogynistic attitude of some lawyers and part of the judiciary has been an impediment in understanding and development of rape laws.

There has been a side show in some circles around “false allegations and revenge cases” by women, mostly cases arising out of live-in relationships going wrong and promises of marriage not being kept.

In a rather debatable judgment, the High Court recently pronounced that “consensual sex on promise of marriage” cannot be considered a crime under Section 375. This flies in the face of “consent obtained through fraud” as understood in the section.

In April 2013, Judge Virender Bhat had suggested that the legal proposition of relying upon the sole attestation of the victim became an easy weapon to incriminate anyone in a rape case.

Justice Kailash Gambhir of the Delhi High Court indicated that penal provisions for rape are often being misused by women, as a “weapon for vengeance and vendetta” to harass and blackmail their male friends, by filing false cases to extort money and to force them to get married.

Delhi Commission for Women (DCW) chairperson Swati Maliwal has been on a hunger strike in New Delhi, demanding justice in the Hyderabad rape case. A fact-finding report on pending rape cases by the DCW has found out that of the cases which go to full trial, only two percent are committed by strangers. A fourth of the cases in Delhi are now filed under “breach of promise to marry”. This may be the result of increased urbanisation and exigencies of modern fast track life, where live-in relationships have become common. These stats may not be reflective of the rest of the country.

These issues have been left festering for too long. Parliament has been seized of the matter for long but no significant improvement has been made in key areas of investigation, bail applications and conviction.

“Now, there is considerable public and parliamentary attention to the violent frequency of the rape cases. It is time that the court reminds the nation that deterrence becomes more effective from quick investigation, prompt prosecution and urgent finality, including special rules of evidence and specialised agencies for trial,” Justice VR Krishna Iyer, one of India’s leading luminaries, said in 1980. If the time is not ripe now, it never will be.

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