Opinion | Nirbhaya Case: A Stir For Legal Reforms and Cry for Women’s Rights and Autonomy
An agitated country took to the streets to protest against Nirbhaya gangrape incident and although it shook every individual who heard or read about it, several necessary policy and legal reforms were triggered by the crime and the anger it generated.
Five years have gone by since the horrific gang-rape of a female physiotherapy student on December 16, 2012, inside a private bus in New Delhi shook the nation. The resulting anger was not only directed to the rapists, but also to the society, the police, and the justice system in India.
An agitated country took to the streets to protest and although it shook every individual who heard or read about it, several necessary policy and legal reforms were triggered by the crime and the anger it generated.
On the political front, two inquiry Commissions, one presided by Justice Verma, and the other by Justice Usha Mehra were set-up right after the incident, to scrutinise safety of women and the existing legislation, and to suggest changes to keep in check crimes against women in the country.
The much-needed landmark reforms, including the Criminal Law (Amendment) Act, 2013, and the “Guidelines and protocols: Medico-legal care for survivors/victims of sexual violence” were introduced as a direct result of the Committees’ reports. Changes were also brought about in the laws dealing with juvenile offenders with 'The Juvenile Justice Act 2015', as the Nirbhaya rape case resulted in skepticism about the trial of juveniles in such heinous crimes.
Justice Verma Committee
The three-member committee headed by Justice JS Verma was constituted on December 23, 2012, with immediate effect to amend criminal laws relating to rape, provide for quicker trials in rape cases and enhance punishment for the criminals committing crimes of sexual assault against women. The Committee submitted its 644-page report within a month in January 2013.
The most pertinent recommendations were:
* Definition of Rape: Rape should be retained as a separate offence and should not be limited to penetration in the vagina, mouth or anus. Any non-consensual penetration of sexual nature must be included within the definition of rape. It was of the view that sexual offences were not merely crimes of passions, but an expression of power.
* Marital Rape: The committee opined that the exception to marital rape should be removed, thus bringing un-consented sexual intercourse by a husband upon wife, within the ambit of rape.
* Sexual Assault: It was recommended that non-penetrative kinds of sexual contact must also be regarded as sexual assault. It also recommended including verbal sexual assault as an unwelcome threat of sexual nature, the punishment for which should be one year of imprisonment or fine.
* The Two-Finger Test: The committee recommended the discontinuation of the two-finger test which was conducted to determine the laxity of vaginal muscles.
* Punishment for rape: The committee was of the opinion that the proposal for chemical castration should be rejected since the death penalty did not serve as a deterrent to serious crimes.
* Educational Reforms: It was recommended to provide sex education to children, along with literacy programmes for adults which would lead to gender empowerment.
The hefty report submitted by the Committee formed the basis for the Criminal Law (Amendment) Act, passed in 2013. However, not all recommendations made by Committee were accepted.
Criminal Law (Amendment) Act, 2013
The Criminal Law (Amendment) Act,
2013 came into force with effect from February 2013. Through these amendments, the Indian legislators introduced new provisions in the Indian Penal Code, Code of Criminal Procedure, Indian Evidence Act, and Protection of Children from Sexual Offences Act, on laws related to sexual offences. The biggest change being the expansion of the definition of rape.
The definition of rape was expanded to include not just penetrative sex, but also oral sex as well as insertion of an object or any other body part, into a woman’s vagina, anus or urethra.
Stricter punishments for rape were also included in the Act, abolishing the discretion of the court to award a rapist a sentence lesser than the minimum of seven years. Separate harsher punishments for repeat offenders were introduced, and this also included the possibility of a death sentence.
Consent for sexual intercourse under the 2013 law has to be unequivocal and unambiguous and should have been clearly communicated to the person. Another change in the arena of consent is that the lack of physical resistance would not be considered or assumed as consent given to the man.
The two-finger test was also officially abolished, and rightly so, since this test did not reveal anything related to the heinous crime, and was only regressive and resulted in victim-shaming. The practice of questioning the woman’s previous sexual history was also repealed since this only contributed to further embarrassment of the victim.
The amendments also paved way for the establishment of Fast-Track Courts to decide rape cases at a fast pace. To speed up the process, which generally took years, these courts are to conduct the trials on a day to day basis and are to complete the process within two months of the filing of chargesheet.
Sexual assault offences, apart from rape, were previously dealt with by Section 354 of the Indian Penal Code, all under the garb of “Outraging the Modesty of Woman”. A much needed new provision i.e. Section 354 A-D was enacted to include specific offences of stalking, voyeurism, unwanted sexual advances, and touches. This helped in ensuring that such acts were not trivialised or disregarded.
Acid Attack was also introduced as a separate offence under Section 326 A of Indian Penal Code, thus recognising and giving it more importance. The minimum punishment for an acid attack is 10 years, which may be extended to life imprisonment.
The involvement of a juvenile contributing to Nirbhaya’s death raised a much-ignored question - Why should someone be treated as a juvenile when they have committed a heinous crime?
The public outrage because of the involvement of a juvenile, only a few months short of 18 years of age, led to the passing of The Juvenile Justice (Care and Protection of Children) Amendment Act 2015.
One of the main aims to pass the amendment was to try minors of age 16-18 years committing heinous crimes such as rape, robbery, murder, etc, as adults. Another reform was to keep open doors to either try a minor accused of any crime above the age of 16 years as an adult or send the accused minor to the rehabilitation centre based on the findings and the judgment of the Justice Juvenile Board.
Though the juvenile, engaged in the most horrific crime scene our country has ever seen, walked free after spending three years in a correction home, the reforms introduced by way of an amendment in the Juvenile Justice Act has paved way for better justice to the victims or survivors of heinous offences where a minor is involved.
There have been various positive outcomes of the anger that waged a war against such crimes after the Delhi gang-rape case ranging from the media’s increasingly detailed reporting of rape cases to the government’s swift passage of overhauling legislative reforms and the public’s recognition of violence against women as a major concern in society.
It would not be fair to contemplate whether the socio-political and legal reforms have reduced the crime rate as they were only brought in so recently.
A better method would be to see whether women are still hesitant to report a crime? The statistics show that there are more crimes being reported, in turn relating to the fact that more women have been able to come forward, some of which should be owed to the amendments brought in after the horrific incident.
Another thing is the fact that women are not being re-victimised anymore especially when they approach the legal system after a crime is committed against them.
Not only this, it has also fuelled debates over women’s rights and autonomy, which has, in turn, led to the need for criminalising marital rape and the same is being challenged in the courts.
It took a horribly tragic gang-rape on a normal evening in December 2012 to awaken the largest democracy in the world to break the silence about one of the greatest human rights issues of our time.
The prevalence of violence against women in India is not an isolated phenomenon in the country but the way the Nirbhaya’s incident inspired various socio-political and legal reforms is unique.
While the journey to a society where no crime takes place against women is far ahead, the reforms introduced politically and legally post Nirbhaya’s gang-rape have definitely improved how the society addresses such issues and how crimes against women are now fought in the country.
(Rohan Mahajan, Founder, LawRato.com, India’s leading legal advice platform. LawRato is providing lawyers to fight the Nirbhaya case pro bono. The views expressed are personal.)
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