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When the victim is put on trial

By Anita Joshua

On November 12 this year, the Union Cabinet decided to amend the Indian Evidence Act, 1872, "so that the previous character of a rape victim in her cross-examination is no longer relevant". A fortnight later, it was introduced in Parliament, and the collective sense of outrage over the rape of a young medical student in broad daylight outside her college on one of the Capital's busiest thoroughfares should push the amendment into the law books soon.

A long pending recommendation of two Law Commissions, the National Commission for Women (NCW), and women's organisations, the Cabinet decision was probably taken in anticipation of Parliament's ire over the various incidents of sexual assault on women over the past couple of months. But, it sure gave the ruling dispensation a face-saver when the rape of the fourth year student of the Maulana Azad Medical College in the heart of the Capital was raised in both Houses of Parliament in the ongoing winter session.

The Indian Evidence (Amendment) Bill, 2002 — introduced in the Lok Sabha on November 28 — seeks to delete Section 155(4) of the "archaic" Indian Evidence Act, 1872, which permits the person accused of rape or "attempt to ravish" to prove that "the victim was of generally immoral character". As an additional safeguard, the Amendment also provides for insertion of a proviso to Section 146 of the same Act disallowing the defence to adduce evidence or put questions during cross-examination to the victim vis-a-vis previous sexual history, character or conduct.

In fact, way back in 1980, the Law Commission of India had in its report on `Rape and Allied Offences - Some Questions of Substantive Law, Procedure and Evidence' recommended an amendment to Section 155(4) of the Indian Evidence Act; allowing questions on the past sexual history of the victim only vis-a-vis the accused. Exactly two decades later, in 2000, the Law Commission report on `Review of Rape Laws' went the whole hog and recommended its deletion besides insertion of the proviso to Section 146.

Then and now, the Law Commission's contention was that unrestrained questioning of the victim could amount to the destruction of her reputation and self-respect. This apart, the Commission saw no reasonable connection between the offence of sexual assault and the character of the victim.

Before and in between, several women's organisations made representations galore to successive Governments for the same and a series of other changes in the rape laws of the country. While in 1983, in the wake of the Mathura case judgment — which, according to a legal study on rape by the NCW in 1999, reflected "the insensitivity of even the judiciary to the heinous crimes against women" — a few measures including more stringent laws were introduced, they were nowhere near the demands. "Only the tip of the iceberg was sliced but the underlying rock remained intact, making the claims of Constitutional guarantee of gender equality a myth," the study further noted.

Piece-meal and too little too late, yet such has been the lot of the women's struggle for a complete overhaul of the rape laws — both substantive and procedural — that they find hope in whatever little headway they make. While the proposed amendment to the Evidence Act has brought some relief, few women activists find any solace in the Deputy Prime Minister, L. K. Advani's suggestion that rapists be awarded capital punishment with the general secretary of the All-India Democratic Women's Association (AIDWA), Brinda Karat, dismissing it as nothing more than a "political grandstand play and an attempt to win political applause".

For, experience and judicial records show that courts are extremely wary of awarding maximum punishment; let alone sentencing a person to death. In a crime where the rate of conviction is less than four per cent, lawyers fear a death sentence could make convictions even more difficult as the "general trend of the judiciary is that the greater the punishment, the lesser the convictions".

If the threat of death is such a deterrent, why has it not brought down the murder rate is the argument of those who challenge Mr. Advani's proposal. "It is the certainty rather than the severity of punishment that works as a deterrent," argues the activist-actor-cum-parliamentarian, Shabana Azmi. Add to this the risk of further endangering the life of the victim as the rapist could well "kill his prey" to "obliterate all evidence" since rape and murder fetch equal punishment.

And, if the NCW study conducted in 1999 is any indication, the national consensus is against death penalty for rape because eight of the 16 States where workshops were conducted by their respective State Women's Commissions and attended by politicians and Government officials besides NGOs rejected it outright. One State was non-committal, and even in the remaining seven States where capital punishment for rape found some currency, it was to be applicable only in the "rarest of rare" cases.

Based on this, the NCW Chairperson, Poornima Advani, argues that it is not the quantum of punishment but the certainty of punishment which is important. "Death penalty would further reduce the conviction rate and delay judgment. A time-frame should be worked out for rape cases to end because it is not just important that justice is done, but is seen to be done."

On a more emotional keel is the advocacy of a `Zakhmi Aurat' kind of reaction where the protagonist castrates the rapists. Privately, many women feel this is the best counter to rape. "If the victim has to live with the fact of having been violated in this most brutal manner all her life, then the man ought to be castrated so that he too lives with his crime till death. Death is an easy option; instead the law should provide for castration along with imprisonment."

While both options are bound to be challenged by human rights activists, the studied response of legal minds is that the need of the hour is speedy trial and assured conviction as this will encourage victims to report cases and instil fear in the minds of rapists.

As things stand, the system is such that the victim — "already low on self-esteem" — ends up doubting herself by being made to feel guilty of having somehow invited the rape upon herself. And, this is not just the view of women activists who are often dismissed as being too shrill on such issues. This has been acknowledged in the 84th Report of the Law Commission, which stated that "a woman who is raped undergoes two crisis — the rape and the subsequent trial". Similarly, the Supreme Court — in the 1995 Delhi Domestic Working Women's Forum vs Union of India case — described the courtroom experience for a rape victim as "negative and destructive" and the "ordeal to be even worse than the rape itself".

Needless to say, the amendment to the Evidence Act will bring some relief to those victims who muster the courage to report rape. But, rue lawyers and women activists alike, this alone will not suffice. According to the AIDWA — which submitted a fresh draft bill to the Law Ministry as recently as early this year — there is a need to amend the laws relating to sexual assault in Sections 375, 376, 354 and 509 of the Indian Penal Code, besides the relevant sections of the Code of Criminal Procedure, 1973, also.

This draft, says AIDWA lawyer, Kirti Singh, echoes views articulated by various national women's organisations including the National Federation of Indian Women, the Centre for Women's Development Studies, the All-India Women's Conference, the Young Women's Christian Association and the Joint Women's Programme. Though more comprehensive, some of the amendments suggested in the draft Bill are also in line with the Law Commission review of rape laws and NCW recommendations.

Women's organisations may differ on certain points, but there is a consensus on the need for broadening the definition of rape to cover a wide range of acts of sexual violence and marital rape; increasing the age of consent to 18; a minimum of seven years imprisonment for rapists with the term extended to at least ten or life in the case of custodial rape; and gender-sensitising the procedures and reducing procedural delays.

Though much of the spadework has been done by women's organisations and the Law Commission, the Government refused to budge till recently. The women's delegations were apparently told by Law Ministry bigwigs that they were asking for too many changes and that such an overhaul would take time.

Up against the monolithic structure that is the Government, women's organisations have simultaneously been mounting pressure on the police to create a conducive environment that would facilitate a victim to report a case. Despite the social taboo attached to rape, an insensitive police mechanism, and a hostile courtroom — all of which heap further humiliation on the victim — as many as 15,264 cases of rape were reported countrywide last year. And, 7,483 cases of rape were reported from across the country in the first six months of this year itself.But while victims are increasingly steeling their nerves and reporting rape — knowing only too well how high the odds are stacked against them — it has taken two decades for the system to yield; that, too, in part. Worse still, society — despite all the post-liberalisation Western influences — has been equally reluctant to shed its age-old social mores which do not allow the victim to forget even as sensational cases like this one will fade from the collective memory of the nation.