In December 2012, 23-year-old medical student Jyoti Singh — Nirbhaya (The Fearless One) as she became known, was gang-raped aboard a bus in India’s capital New Delhi.
The horrific crime galvanized the country into fervent protest. Thousands of women took to the streets of New Delhi and in states across the country, demanding justice for Nirbhaya. Less than two weeks later, Singh succumbed to her injuries. Candlelight vigils were held in remembarance and protests resonated with slogans of “Hang The Rapists” and “We Want Justice”.
Despite the unprecedented support across the country, Nirbhaya’s family was tied up in court proceedings for almost eight years before 4 of the 6 convicted rapists were hanged. One defendant, a minor, was released after serving the maximum three-year sentence for a juvenile. The other, Ram Singh, allegedly took his own
life in prison only a few months after the incident.
The Criminal Law Amendment Act of 2013 widened the definition of rape. It introduced more stringent punishments for gang rape and repeat offenders. In 2018, after the abduction, gang rape, and murder of an 8-year-old girl, laws punishing the rape of minors were introduced, and fast-track courts were set up to deal with sexual offenses against children.
But in 2022, Singh’s mother and prominent women’s rights activist Asha Devi sees no improvement in security and justice.
If we talk about women’s safety since 2012, not much has changed, it feels like we are standing at exactly the same spot. Because of the incidents which continue to happen, it seems like things are getting worse.
India has had several high-profile rape cases, and the violence against women is more brutal each time. From a 90-year-old woman to a six-month-old infant, anyone can be a victim. Yet public outrage has fizzled out.
According to India’s National Crime Records Bureau (NCRB), a woman was raped roughly every 17 minutes in 2021. The conviction rate was only 28.6%.
Between 2019 and 2021, only 14% of women who had experienced physical or sexual violence sought help to stop the violence, according to the National Family Health Survey. So the 31,677 rapes recorded by the NCRB in 2021 are only a fraction of the cases.
Laws were made but they’re not being implemented or executed properly. You can see even just in this last month the number of brutal incidents that have taken place, but our law and order establishment doesn’t seem to care.
Experts have noted a deep-rooted patriarchal culture that fosters misogyny. They cite the disbelief or interrogation that women encounter when they go to the police or sometimes even to their own lawyers. The problem is compounded by religious, class, and caste dynamics.
For many attorneys and activists, the problem begins with the judiciary.
Law and Disorder
“What kinds of laws are these, where at every level there are provisions to save criminals from justice, there are loopholes everywhere, for example if a court case runs on for 8 or 10 years, after ten years the court may say that they have already been in prison for that long so they should now be forgiven?” Devi asks.
In February 2012, only a few months before Indian society was mobilized by Nirbhaya, a 17-year-old girl, referred to as Anamika in court judgements, was gang-raped and killed.
Last month India’s Supreme Court acquitted the three men who had been convicted and sentenced to death by a lower court as well as a high court. The three justices ruled:
It may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular.
However, the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. The Court has noticed many glaring lapses having occurred during the course of the trial.
The Court pointed to inadequate cross-examination of material witnesses. It accused the trial court judge of acting as a “passive umpire”.
However, many in the legal community see this as a miscarriage of justice. Senior Supreme Court lawyer Shobha Gupta told EA Worldview that the Supreme Court laid an excess emphasis on “lapses” or “minute lacuna” and did not focus enough on hard evidence such as DNA of the accused, the car jack, or the semen of the perpetrators found in the car.
Each criminal would go scot free if this is taken as a precedent on how evidence should be looked at….Once you doubt the prosecution via the theory of planted evidence, then each and every single prosecution case can be kicked out.
The inefficiency of the legal system is thus blamed for the low rate of convictions. Gupta says, “I would assign a major, major, major role to the judiciary…especially at the Supreme Court level. The higher the position, the greater the responsibility.”
Yogita Bhayana, the founder of PARI (People Against Rape in India), told EA WorldView, “Not every case can make a headline but this does not mean that justice shouldn’t be given to them. In this case I was banking on the fact that the judiciary should be free from media pressure or social pressure.”
Devi says the government and courts blame the police but fail to to punish the police when they fail: “This judgement has broken my confidence in the legal system. Where will we go now if the Supreme Court also is freeing criminals?”
Bhayana adds, “The conviction rate in relation to the actual occurrence rate would be about 1% if you look at the unreported cases.”
The Government sanctioned the establishment of 1,023 fast track courts in 2018 to accelerate justice for victims of sexual offences, but in 2022 only 838 are functional. There are 1,419,994 pending cases, according to India’s Department of Justice. While the law requires disposition of rape cases within 60 days, the 2021 NCRB report found 72% of all cases in fast-track courts took between 1 to 10 years for completion.
“When you can have special benches for environment cases, you can have special benches for tax matters, you can have special benches for other things, why not have special benches in each court of each hierarchy for women’s matters?” Gupta asks.
Bhayana finds that families of victims often lack the resources to afford suitable attorneys, “Even if they get a good lawyer, they can’t afford to keep them for the many years it takes for the case to conclude.” She attended the court hearings for Anamika at her parents’ behest as her father works as a watchman and cannot afford to lose his daily wages.
She adds that victims need to be treated with respect with consideration for their mental well-being and comfort, from the police officials who take their complaints to the judges that deliberate on them.
You show me a single rape case where the woman or the victim lodges a complaint and the police or the establishment says, “Now please go relax in your home, the rest we will handle.”
Why is it left as a fight for that person who has already suffered something so nightmarish?
India’s rape laws exclude transgender and male victims. While there is a law that punishes physical and sexual assault of transgender victims, the punishment is significantly disproportionate to that of female victims. When the victim is transgender, the maximum punishment is two years imprisonment and a fine. When a man rapes a woman, he can be given a sentence of 10 years to life. The death penalty can also be given in exceptional cases or when the victim is a girl under the age of 12. India’s rape laws also exclude marital rape, an exemption currntly being challenged in the Supreme Court.
Indian women protest in 2014 after the rape of two teenage girls
The Multiple Dimensions of a Rape Crisis
In 2002, 11 men gang-raped 21-year-old Bilkis Bano, who was pregnant at the time, and killed 14 members of her family, including her three-year-old daughter. The rape and murders were committed amid attacks, rapes, and burning of the houses of Muslims by Hindu mobs in Gujarat in western India.
In 2022, the rapists, having served 14 years of their life sentences, were released and given garlands.
Swati Maliwal, the chairperson of the Delhi Commission for Women, tweeted in August:
Bilkis Bano’s case is so horrifying -more I think about it, more traumatised I feel. She was gang-raped & her family members were killed. Now convicts are free & being welcomed and celebrated for the rape! If this is not emboldening, what is? Guj Govt must roll back it’s decision!
— Swati Maliwal (@SwatiJaiHind) August 18, 2022
Within India’s patriarchal culture, women seldom have the privilege of safety. Women from marginalized sections of society often fight a battle on dual fronts.
The release of Bano’s rapists earlier this year was sanctioned by the Hindu nationalist Bharatiya Janata Party (BJP) government in Gujarat, which was also in power when communal violence broke out in 2002. In an affidavit filed in the Supreme Court, in response to a petition challenging the release, the state government said the men were released because their “behavior was found to be good” while in prison. The affidavit also said that the Indian national government, led by the BJP and Prime Minister Narendra Modi, had conveyed its “concurrence/approval”.
On December 13 Bano’s petition, seeking a review of the judgement giving the Gujarat Government the jurisdiction to release the rapists, was dismissed by the Supreme Court. The judges said in their order that “there appears no error apparent” and therefore no grounds for review. Bano’s separate petition, challenging the Gujarat Government’s decision to release the rapists, has yet to be decided by the Court.
The Government and the Police
Gupta, Bhayana and Devi agree that governments throughout the years have failed to take decisive action to protect women. Gupta asks:
Just for one year why not have a police officer at every kilometer, and celebrate one year of women’s safety, not only [but putting it on] posters?…
Why is this country not troubled with the fact that 75 years down the line [of Indian independence], women are living in a very unsafe environment, feeling very unsafe?
Bhayana said that after the Bano case, she believes the Government “is totally anti-women….If they are failing to protect women they are failing as a government. It is as simple as that.”
India’s Ministry of Women and Child Development and the
Ministry of Law and Justice did not respond to requests for comment.
Recommending changes to rape laws in 2013, the Justice Verma Committee noted that the police did not take complaints of rape seriously and imposed a moral judgement based on patriarchal values. As the shame that women experience and their perceived loss of honor are often the cause of unreported rapes, the Committee recommended that police be sensitized to these dynamics.
But activists find that little has been done to inculcate and enforce good practices over respect for victims. In 2020, women constituted a little more than 10% of the police force, according to data from the Bureau of Police Research and Development.
Bhayana says, “Though the Justice Verma Committee recommended changes, I would say the improvement has been marginal, maybe 20-30% and mainly in metropolitan cities. In rural areas there hasn’t been much of a change.”
The Sardar Vallabhai Patel National Police Academy, which trains officers of the Indian police service, did not reply to EA WorldView’s questions.
Confronting “Rape Culture”
Under Indian law, the identity of rape victims must not be disclosed. But for Asha Devi, the mother of Jyoti Singh, the provision over reinforced the stigma of shame and loss of honour for rape victims.
So Devi disclosed her daughter’s identity:
We aren’t at fault, my daughter isn’t at fault, so why should we hide our faces. The perpetrators should have to hide their faces — they are the ones who committed a crime….
We don’t have shame. The criminals should have shame, society should have shame, the executive and legal system should have shame for not taking action, but not us.
Activists like Bhayana are seeking discussion in schools. She summarizes:
We hear about a rape and we feel bad about it momentarily, but how many women talk to their sons and how much do we talk to men about it?
We’ve been telling women to protect themselves, but nobody has reached out to young boys and men.
She adds, “We need to reach out to girls as well to motivate them to speak up so these things have to start from the nascent stage when they’re in school…. We need gender sensitization in schools at every level and we also need to reach out to dropouts.”
Bhayana is also travelling to villages, speaking to the governing panchayats and to women, to urge mothers and mothers-in-law not to silence girls from coming forward about sexual assault.
The effort also has to confront caste discrimination, particularly against Dalits, an umbrella term for India’s most oppressed castes. Bhayana explains, “Rapes in the Dalit community are very high. They are more vulnerable to rape but less likely to report it and less likely to receive justice, whether that’s from the police or the courts.”
In 2020, two separate incidents within a few days shed a light on the rapes of women and girls from oppressed castes. A 22-year-old woman and a 19-year-old woman, both of whom belonged to the Dalit community, were raped in cities in the northern Indian state of Uttar Pradesh.
Gupta says rape is a tool of power that is “unfortunately” used in India as an expression of caste hierarchies: “That power they use to demean the other person, or to tell them they don’t matter, you are small, you are not even a carpet, not even a doormat.”
International and national human rights organisations have condemned and highlighted the violence against women belonging to oppressed castes; however, efforts to curb the problem have
“I Will Stand And Fight Again”
So the onus of women’s safety falls on women, including the victims and their families.
Devi explains, “I feel that I should keep trying because I didn’t get justice alone. I had the support of society, of media, so I also want to put in all my effort…if it means that it will get justice for someone else or save someone else. That will be the biggest tribute to my daughter.”
Gupta points to the case of Bilkis Bano, who was raped and saw 14 family members killed:
At that time she was devastated. She is still perturbed, heartbroken, disappointed….
But now she’s made a promise to herself that she has to fight it out, not only for herself but for each woman to ensure that [the convicts] go back to prsion.
If you have to see living courage just look at her face. She’s a live example of living courage.
In the words of Bano, in a statement on December 1:
The decision to once again stand up and knock on the doors of justice was not easy for me. For a long time, after the men who destroyed my entire family and my life were released, I was simply numb. I was paralyzed with shock and with fear for my children, my daughters, and above all, paralyzed by loss of hope.
But the spaces of my silence were filled with other voices; voices of support from different parts of the country that have given me hope in the face of unimaginable despair, and made me feel less alone in my pain. I cannot express in words what this support has meant to me. And how much it has helped rekindle my faith in humanity, renewed my courage and allowed me to believe yet again in the idea of justice.
So I will stand and fight again, against what is wrong and for what is right. I do this today for myself, for my children, and for women everywhere.