India: Calls for Zero Tolerance to all crime, as Criminal Law Amendment Act 2013 fails to stem VAW Print E-mail

Tuesday August 27, 2013

Needed, a zero-tolerance approach

With the rising graph of crimes against women, it is imperative to lay more focus on prevention strategies

By Aruti Nayar

A s one watches the news about the rape of a young 22-year-old photo journalist in Mumbai, and the television debates that follow, one feels a sense of having heard it and seen it before. With a sickening feeling in the pit of the stomach you feel nothing, it seems nothing at all, has changed and nothing ever will. The same pious platitudes, the same rhetoric, the same banal arguments and blamegame. It seems an action replay of the way events had unfolded post-Nirbhaya rape case that, it appeared then, had jolted the middle class out of its cocoon. This time it has occurred in Mumbai, a metropolis which is generally considered safe for women where they could walk around with a taken-for-granted freedom and without fear. Women did not feel threatened because Mumbai treated them as equals. Not any more.

Protesters raise slogans during a demonstration against the rape of a photojournalist by five men inside an abandoned textile mill, in Mumbai on August 23. The attack triggered protests and an outcry on social media, with many people shocked that it took place in Mumbai, widely considered as a safe city for women. (Reuters)

What is worrisome is that we might become so immune to the news of ghastly gang rapes, each more revolting than the other, and our responses become so atrophied that even the most gruesome crimes will not make a dent into our conscience (and consciousness). TV debates and long-winded analyses generate more heat than solutions. After venting out our anger, fears and frustrations we feel satisfied that we, the complacent middle class, have salvaged our conscience.

What about effective policing?
More stringent laws need not translate into more convictions and act as a deterrent. Even eight months after the gruesome Delhi rape case, there has been no conviction, despite it being a fast-track court. The onus on safety is on the women themselves as proved by many studies (see box). What needs to be put in place is effective policing and neighbourhood safety measures, manning police kiosks at night and most important of all, preparing a data base of criminals to track hardened criminals and keep tabs on their migration and anti-social activities. The government has failed abysmally to put in place a prevention mechanism. Petty thefts flourish with the tacit approval of the police and the “subculture” of a metropolis often perceived as safe bustles with crimes that go undetected. No punishment for petty crimes allows bigger, more heinous crimes to flourish with impunity. A big city is bound to afford greater anonymity to its inhabitants and it is this that offers a ‘hideout’ to criminals. The area where the Mumbai incident occurred was frequented by drug peddlers and addicts. It is difficult to believe that the police, just a short distance away, was oblivious to the den. One of the most effective ideas about crime prevention to come out in recent years is the “broken window theory.” According to this theory, small acts of deviance: littering, graffiti, broken windows, will, if ignored, escalate into more serious crime. So today’s petty thief, if allowed a free run, can become a hardened rapist tomorrow.

Notions of masculinity
The notion that law does not catch up with the deviant, who is often glorified, is also reinforced by Bollywood. Similarly, if one were to go by rules of Bollywood, that occupies so much of mental and psychological space in our collective consciousness, a woman is an object to be wooed and ‘acquired,’ often aggressively. Our film industry, despite a host of fresh ideas and out-of-the-box storylines, reinforces the macho hero who can use force to woo the heroine and never takes a no for a no. Objectification of women in urban spaces where kinship markers have already dissolved and a state of anomie prevails, makes them objects of fantasy as well as passive and powerless recepients on whom it is perfectly acceptable to vent out aggression and frustration. Add to that our flawed notions of masculinity. We need to confront our construction of masculinity. Our society constructs masculinity in a way that valorises aggression and violence in men. We need to teach our boys differently and this must begin at the level of schools. Sensitivity and respect for girls and women should be taught and demonstrated at home. We do not need to worship our women, let’s just treat them like human beings who deserve a humane treatment.

Reinforcing confidence

As young women come out in large numbers and join the work force as professionals, we cannot afford to instil fear into their hearts and for this the state cannot abdicate its responsibility. The onus is on the state to afford safe public spaces to its citizens. For this even the youth needs to move beyond Facebook activism and become more proactive. After all they have more stakes in the future of the country, unlike the fossilised and defunct political class that only works for its own survival as well as perpetuation. Demonstrating a zero-tolerance for rape and crimes against women, even if the offender is a highly placed politician or an influential official would go a long way in ensuring compliance with law and serve the cause of justice more than a host of legislative measures. Once the message goes out that even the rich, the powerful and the politically well-connected are not a class apart and cannot escape the noose of the law if they commit a crime against women, it will be an effective deterrent. The reason is notions of caste, hierarchy and entitlement due to being a part of the power structure are deeply embedded in the psyche and the collective consciousness of the average Indian.

We need much more than mere statistics that tell us how much crime against women has risen or oft-repeated theories of what leads to such horrendous crimes being bandied about. All most of us ask for is a safe space for all citizens, which includes children, women and girls. The din of empty talk and even more empty promises should not drown the silent screams of suffering women.

Safe City
The 2010 study, ‘Safe City Free of Violence Against Women and Girls’ – brought out by Jagori, a women’s resource group, revealed that women of all classes had to contend with harassment as part of their daily lives, with young girls and women being particularly vulnerable. It also showed that the burden of ensuring safety remained on the women themselves. They had to somehow try and ensure their own security by not visiting certain places, staying indoors after dark, and so on. While the study focused on Delhi, it could have been speaking for any Indian city anywhere

Hope this is a one-off incident
?The Mumbai gang rape incident made my heart sink. Apart from the horror of the crime on its own, the next worse thing was that it happened in Mumbai. You just don't associate such a horrid crime with the cultural fabric that Mumbai possesses. What has been absolutely welcoming about Mumbai's culture is the agnosticism it has towards its people's eccentricities. The autorickshaw driver who would cite the Bhagavadgita in his conversation, our awesome internet service provider who'd operate out of a thatched shanty, the police constable who would sit me down and educate me about insurance policies, the LGBTI filmmakers ­ you had to be good at what you did and that was it. Gender, unlike in the North of the country, was the least of the issues you would have to deal with. Why, if you stared at women, they stared back at you! The police have done their job well it seems. There has been the requisite amount of outrage in the media. The court trials would probably and hopefully be swift. But is Mumbai now safe for women? I hope this turns out to be a one-off incident. - Mohit Sharma, Demand Forecasting Analyst for the Pharmaceutical sector, Aspect Ratio, Pune

Urban milieu not gender equal
What does the gang rape of a young woman photographer in an Indian metropolis, considered the country's most progressive and modern, tell us about ourselves? It points, first of all, to an urban milieu that does not recognise the principle of gender equality; a society that still has not internalised the principle of every person's right to free movement and bodily integrity. Secondly, it reflects that the more our urban centres grow ­ bursting as they are with malls, markets and traffic-clogged streets ­ the less secure they are becoming for those who inhabit them.

Responding to the social crisis demands rational solutions, not an ostrich-like retreat into medievalism. Circumscribing the lives of women by laying down restrictions in terms of dress, location or activity cannot be the answer. Instead we need to make our public spaces more safe ­ in the way they are designed, in the way city infrastructure and public transport function, and in the way everybody in the city has a sense of ownership of that urban space.

What is at stake, after all, is not just women's safety, but the safety of everyone living in it. As one Delhi-based architect and town planner put it, "We have to stop seeing the world as an environment for the adult male. The time has come in urban India to retrofit our urban spaces to conform to the principles of equity." - Pamela Philipose, Director, Women's Feature Service, New Delhi

After all, Mumbai is in India
  "So Mumbai's not safe any more either," is what everyone in the country seems to be saying. I wonder if I sense some schadenfreude (pleasure derived from others' misery) there. I've lived in Delhi and endured its haunting and unrelenting male gaze. Mumbai's has perhaps been more discreet. Women here too avoid travelling in lonely train coaches but they are able to stroll on Marine Drive at midnight. Mumbai's not perfect and neither are its people. It's a city, at the moment, grieving for the tragedy that's happened and, hopefully, a city that will stand up and not let this happen again. Having lived here for over six years I have encountered my set of creeps but it's not a daily struggle like most of India is. I will not be leaving the city in a hurry. It's made me feel safer than others. But that doesn't mean I'm totally safe. After all, Mumbai is as much a part of the India that thinks the woman always deserves it.- Sonal Jhujj, Strategy Planner, Mudra Communications, Mumbai

Community must pitch in
The Criminal Law Amendment Act 2013 has brought in a stronger, a more deterrent law for dealing with incidents /crimes of sexual assault on women, primarily in response to the Delhi rape case. Deterrence is just one way of dealing with crime and harsher punishments are not the only solution. The damage to the victims also has to be healed on priority. Sadly, all these responses come after an incident takes place. It is easier to blame the police after such an incident takes place. The focus should be on crime-prevention strategies to deal with crimes against women at the primary and secondary levels. Sole reliance on the criminal justice system is no solution to crime. Campaigns for a safe city need community involvement. Causes of crime are complex and cumulative and may be embedded in personal and social histories of offenders.We have to engage men in violence prevention and broaden and diversify our responses to violence against women. Crime is best controlled with community as the primary controller and active participant, with no silent bystanders.- Upneet Lalli, Deputy Director, Institution of Correctional Administration, Chandigarh

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 Wednesday August 28 2013

A task only half finished

By Aparna Viswanathan

The fact that there is still no verdict in the Delhi rape trial is a sobering reminder that the Criminal Law Amendment Act 2013 is insufficient reform

Over eight months have passed since the horrific events of December 16, 2012, yet the wave of rapes still rage across the nation. The spring and summer of 2013 were marred by barbaric events such as the rape of five-year-old girls in Delhi and Gurgaon, the acid attack on a young woman getting off a train in Mumbai, the gruesome rape and murder of a 20-year-old college girl in Kolkata, and, most recently, the gang rape of a photo journalist in Mumbai as well as countless other incidents. Despite the recurring frequency of these crimes, the public discourse on law reform has come to a halt following the passage of the Criminal Law (Amendment) Act 2013 in April. While the Act certainly introduced long, overdue changes in the law, it is but a first step in the long journey to ending violence against women in India through criminal law, police reforms and curricular reforms intended to change the mentality of future generations. The necessity of further reforms to criminal procedure is glaringly evident from the fact that, although six fast track courts were set up, the verdict in the Delhi rape trial still has not been passed even after eight months of litigation.

Overdue changes
The Criminal Law (Amendment) Act 2013 (“Act”) took the historic step of amending the Indian Penal Code (IPC) to provide for the new offences of rape causing death or a vegetative state, sexual intercourse by a person in authority, gang rape and repeat offences. Importantly, the Act also introduced several other new offences such as causing grievous hurt through acid attacks, sexual harassment, use of criminal force on a woman with intent to disrobe, voyeurism and stalking. Importantly, the Act further amended the IPC to criminalise the failure of a public servant to obey directions under law. It has also made the non-treatment of a rape victim by any public or private hospital an offence. While these amendments to the IPC constitute a major legislative stride forward, corresponding steps forward have not been taken in the amendment of criminal procedure.

The Act amended the Code of Criminal Procedure (CrPC) to provide for a woman officer to record evidence from a woman against whom certain offences have been committed. If the victim of such offences has been mentally or physically disabled, temporarily or permanently, then the woman officer must record the evidence at the victim’s residence or the victim’s place of choice. These requirements apply to offences such as causing voluntarily, grievous hurt by the use of acid, sexual harassment, assault or use of criminal force against a woman with intent to disrobe, voyeurism, stalking, rape, gang rape, sexual intercourse by a person in authority, and a word, gesture or act intended to insult the modesty of a woman. The CrPC was further amended to provide for a court to ensure that when the evidence of a victim of rape below 18 years has to be recorded, the accused does not confront the victim. However, many procedural issues critical to making the criminal justice system functional in the case of rape and serving as a deterrent against further crime have not been addressed by the Act.

Areas to be looked into
The starting point is of course the registration of the FIR itself. The courts are divided over whether the police have an obligation or not by law to investigate allegations of rape before registering an FIR. If a police investigation has to take place before the registration of an FIR, delays will inevitably occur and the failure to register FIRs in rape cases will continue. Moreover, the Crime and Criminal Tracking Network and Systems (CCTNS), an ambitious Rs.2,000 crore project of the Home Ministry, which would enable at least the e-filing of FIRs, is expected to be implemented only in 2015.

The second procedural issue is fast track courts. Section 309 of the Criminal Procedure Code (CrPC), as amended by the Act, provides that the trial of offences under Section 376 (rape) and Sections 376A-D (covering punishment for causing death or resulting in persistent vegetative state of the victim, sexual intercourse by husband upon his wife during separation, sexual intercourse by a person in authority and gang rape) must be completed within two months from the date of filing the charge sheet. However, the Delhi rape case, prosecuted in a fast track court, has already taken over eight months. Therefore, procedural rules must be examined including the grounds for an order of in camera proceedings. They are usually ordered only where a matter of national security is involved or a party asserts that communications are privileged. In camera proceedings are not ordered on the grounds that the accused’s safety is at risk as in the Delhi case. Indeed, the court’s order of in camera proceedings in this case has resulted in it being secluded from media attention, thereby reducing public pressure for further reforms.

Samaritans & jurisdiction
A third issue is the protection of good Samaritans. The CrPC must be amended to provide that members of the public who act as good Samaritans should not be treated as wrongdoers and unnecessarily questioned or harassed by the police. The current situation in which bystanders do not help victims of crime reflects a sad state of societal affairs and must be addressed.

While the Act has made limited changes to criminal procedure, the police have been left out of legislative reforms altogether. The only reforms were those announced by the then Delhi Police Commissioner, Neeraj Kumar, on January 18, 2013, including that Zero First Information Reports (FIR) may be registered on the basis of a woman’s statement at any police station irrespective of jurisdiction. Jurisdiction is a very important issue as, in the Delhi case, the victim’s friend stated that the police wasted 30 minutes arguing over jurisdiction, although the victim and her friend were lying on the road for two hours. The police chief also announced a series of other measures such as the recruitment of 418 women sub-inspectors and 2,088 women constables, PCR vans to be deployed outside women’s colleges, provision for women to call ‘100’ to seek assistance to be given a lift home at night by a PCR van, and 24-hour police cover for areas around entertainment hubs with increased security between 8 p.m. and 1 a.m. Despite these reforms, in the succeeding months, police actions in subsequent rape cases have caused much alarm. In the case of the rape of a five-year-old child, the police were accused of offering a bribe of Rs. 2,000 to the victim’s family to refrain from filing a case. Police officers have also been filmed on video beating women of all ages because they had the audacity to protest a rape.

Model Police Act
Despite the clear need for reform of police handling of rape cases, the Model Police Act of 2006 drafted by the Police Act Drafting Committee (PADC) constituted by the Ministry of Home Affairs in September 2005, and chaired by Mr. Soli Sorabjee, is in cold storage. The Model Act, which was intended to replace the archaic Indian Police Act of 1861, was drafted with the purpose of not only meeting the challenges of policing but also fulfilling the democratic aspirations of a modern society. The PADC envisioned a modern police force which was responsive to the needs of the people while being accountable to the rule of law. A few of the key concepts underlying the police Act were: 1) functional autonomy; 2) encouraging professionalism; 3) accountability; and, presciently, 4) jurisdiction.

First, functional autonomy was viewed as a means of removing the nexus between police and politicians who treat the police as their personal security service. It proposed the establishment of a panel to receive complaints from police officers of pressure from higher officials to commit illegal or unconstitutional acts. The PADC felt that the law should be the master of the police, not politicians. A fixed tenure of two years was suggested to avoid transfers arbitrarily.

Second, the Model Act focussed on encouraging professionalism. The PADC recommended abolition of the rank of constable and replacing it with a primary rank of Grade II civil police officer. However, a recruit can attain this officer rank only after undergoing a three-year training course as a stipendiary cadet, culminating in a bachelor’s degree in police studies. As a result, even the lowest level of the police force will have a bachelor’s degree.

Third was the principle of accountability. The police Act proposed introducing criminal penalties for the most common defaults of the police such as non-registration of FIRs, unlawful arrest, detention, search or seizure.

Fourth, and most presciently, was the issue of jurisdiction. Underpinning the Model Police Act is the notion that police officers should be duty-bound to assist victims of sexual offences irrespective of the crime’s jurisdiction. As the Model Police Act was never implemented, it took the tragic Delhi case for reforms regarding jurisdiction to be announced. In short, while the passage of the Criminal Law (Amendment) Act 2013 is a milestone in criminal law reform in rape cases, the creation of offences is not sufficient. Instead, the punishment of those committing these offences through the police and the criminal justice system is critical in providing effective deterrence against future crimes.

(Aparna Viswanathan is a lawyer.)