Beyond politicisation of rape

President Ram Nath Kovind on April 22 promulgated a criminal law amendment ordinance, paving the way for providing stringent punishment, including the death penalty, for those convicted of raping girls below the age of 12 years. The President's nod to the ordinance came after the Union Cabinet's approval for tightening the law against people involved in rape, following the public outcry over the cases of sexual assault and murder of minors in Kathua and Surat, and the rape of a girl in Unnao. The minimum punishment in the case of rape of women has been increased from rigorous imprisonment of seven years to 10 years, extendable to life imprisonment. According to the ordinance, in case of the rape of a girl under 16 years, the minimum punishment has been increased from 10 years to 20 years, extendable to imprisonment for life, which means jail term till the convict's "natural life". The Indian Penal Code (IPC), the Evidence Act, the Code of Criminal Procedure (CrPC) and the Protection of Children from Sexual Offences (POCSO) Act stand amended with the promulgation of the ordinance after the approval of the President.

The Ordinance comes after nationwide protests against the Unnao and Kathua rapes, which also spread to London when the Prime Minister visited the city, and a 10-day hunger strike by the Chairperson of Delhi Commission for Women, Swati Maliwal.

Having said this, the eight-year old's rape and murder in Kathua, Jammu, was primarily to scare her community, the Bakerwals, out of that region. And, now, there is a movement spearheaded by local leaders with the blessings of two erstwhile ministers of the state to protect the rapists. Here, rape is a tool for control over resources, supported, unfortunately, by right-wing politics.

The 16-year old Unnao girl's rape by a BJP MLA is an act of sex and also gender violation and social power. That means, she is defiled to show the power of men on one hand, and of Rajputs over lower castes on the other, apart from the act of sex. And, then, the rapist was being protected by the Thakur lobby dominated state government until the Allahabad High Court forced action and, that too, through the CBI and not the state police.

In the last five years, several acts of violation of women have occurred at the hands of extremist forces. Either as a tool of sex, or of gender dominion and rights over women, or of caste-communal dominion.

One should first understand that women through their gender identity as well as sexual identity are marginalised. Gender is a social construct. Sex is a biological construct. Both are power dynamics of patriarchy. However, both these identities have multiple marginalisations when combined with caste, religion, nationality, race, or any marginalised culture. A Dalit woman can be raped not just for being a woman, but for being a Dalit as well. In Kandhamal and Gujarat, women were raped not just for being women, but for being Christians or Muslims. In fact, the rapists have even articulated this while raping. Women in Kashmir and the North-East were raped in large numbers not just for being women, but for being part of a marginalised national identity that inflicted upon their bodies.

Rape is among the most disregarded and heinous crimes committed against women in India. A total of 34,651 cases of rape were reported in India in 2015. Out of these, in 33,098 cases, the offenders were known to the victims – revealed the National Crime Records Bureau (NCRB) data. The victims were largely among the age group of below-six years to over 60 years. Madhya Pradesh reported 4,391 rape cases, the highest in comparison to other states, with Rajasthan being another major state. Delhi reported 2,199 such cases – highest among the union territories.

India launched fast-track courts and a tougher rape law that included the death penalty after a gruesome assault on a young woman shocked the country in 2012. But crime statistics indicate that the situation has worsened, not improved, since then.

The data collated by Reuters amid mounting public anger over crimes against women after the horrific cases in Jammu and Unnao, has, once again, cast a harsh light on the systemic problems plaguing the country's police and courts.

Statistics show that since 2012, reported rape cases climbed 60 per cent to around 40,000 in 2016, with child rape accounting for about 40 per cent. The conviction rate of people arrested for rape remains stuck at around 25 per cent. The backlog of rape cases pending trial stood at more than 133,000 by the end of 2016, up from about 100,000 in 2012, National Crime Records Bureau data showed. In each year during that period, about 85 per cent of the total rape cases being heard remained pending.

What ails the system

In general, conviction rates for crime against women – deaths following demands for dowry, assault, kidnapping as well as rape – are lower than for most other crimes. A study by the National Law University in Delhi found that 43 death sentences were handed down for murder involving sexual violence in 2017, almost double the previous year's number. A study by Kailash Satyarthi Children's Foundation, whose founder shared the 2014 Nobel Peace Prize, reckoned that as of the end of 2016, the backlog of child sex abuses cases in the courts would take two decades to clear. Under POCSO, which covers victims under 18 years, the police are advised to collect evidence within a month of the complaint being filed and the court should complete the trial within a year – this norm has been flouted in most cases. Crime statistics showed that police files remain open for about a third of all rapes that were investigated for each year between 2012 and 2016.

Understaffing is an issue. The government told the Parliament last month that the police had a sanctioned strength of nearly two million officers – but, almost a quarter of those positions were vacant. Some of the worst accusations against the police stem from cases, like the ones in Uttar Pradesh and Jammu & Kashmir, where they are alleged to have bowed down to pressure from people of influence to bury cases. So far, the only policy response to the latest cases has come from Maneka Gandhi, the minister for women and child development, who has advocated applying the death penalty for rape cases where the victim is under 12 years old. Currently, the Supreme Court reserves the death penalty for extreme cases, as in the 2012 Delhi case. In February 2017, the Ministry of Health and Family Welfare of India introduced resource material related to health issues to be used as a part of a pan-India adolescent peer-education plan called Saathiya. Among other subjects, the material discusses relationships and consent.

Hence, it is a question of sheer political will to check the rape epidemic in India. The government can make a hundred laws and, yet, it will fail because there is no enforcement. It needs to take this incidence as an epidemic and treat it accordingly, by overhauling the police machinery, prosecutors and the judicial system. This political will is missing at the Centre and in most of the states.