President of India Draupadi Murmu recently wrote an article in the aftermath of the rape and murder of a doctor in Kolkata’s RG Kar Medical College & Hospital. Among other things, the President lamented the “collective amnesia” and exhorted that the issue be dealt “in a comprehensive manner so as to curb it right at the beginning.”
Indeed, outrages over such incidents are not new in our country. In 1983, post the outcry of an acquittal in the case of custodial rape of a minor, the Penal Code and Evidence Act were amended. Custodial rape was specifically added as an offence by way of Sections 376-B and 376-C. If intercourse was established, the burden of proof shifted on the accused to prove that he is not guilty.
The nation was again outraged in December 2012, when Nirbhaya was assaulted and gang-raped in a moving bus in Delhi. As a result, the Justice Verma Committee was set up. In 2013, law was further amended to include new offences of acid attack, sexual harassment, voyeurism and stalking. The definition of rape was amended to include non-consensual penetration of sexual nature. The punishment for gang-rape was increased to life imprisonment and minimum 20 years. The process of recording evidence was also made “victim-friendly.”
Unconnected to the agitation, Parliament had already enacted the Protection of Children Against Sexual Offences (POCSO) Act, 2012 for protection of children from sexual assault and harassment.
Such legislative changes have, however, failed to achieve desired results. As per the 2022 data from the National Crime Records Bureau (NCRB), there have been an average of 30,000 reported sexual offence cases a year since 2013, dipping only during the lockdown period in 2020. It is estimated that about 99% of sexual assaults are unreported. Even amongst those reported, the conviction rate was roughly between 27-28 per cent between 2018 and 2022. Despite the current outrage, it was reported on September 6, 2024 that a woman was raped in Ujjain with a passerby filming the sexual assault on his phone.
Yet, as a result of recent protests, the West Bengal State Assembly has passed the Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024. It proposes mandatory death penalty for rape that results in death or permanent vegetative state of the victim, and introduces death as the maximum punishment in all cases of rape. The Bill envisions changes in investigation and trial of rape cases — by a Special Task Force and special courts in every district, respectively.
If increasing punishment was the solution, it would have already reduced the number of gruesome incidents. The more pressing need is to ensure that an offender is punished expeditiously without compromising his rights, as well as that of the victim. This is only possible by improving the executive and judicial machinery.
At the executive level, the overall investigative machinery itself has to be improved. The number of actual cases are underreported, which are in part due to the fear of approaching the police. Sensitisation amongst the executive at all levels is an utmost necessity.
However, the West Bengal Bill does the opposite. It creates a Special Task Force at the district level for investigation of sexual offences. Thus, the nearest point of contact for any victim - the local police station - can easily shirk its responsibility on the ground that it is not mandated to investigate such an offence.
Another important step is to have faster justice dispensation. In the current scheme of things, a potential offender exploits the fact that a trial prolongs for years. As a consequence, the fear of being punished takes a back seat. Creation of special fast track courts for hearing matters relating to sexual offences is crucial. In 2019, Union of India finalised a scheme for setting Fast Track Special Courts (FTSCs) for expeditious trial and disposal of cases related to rape and the POCSO Act. The objective was to set up 1,023 fast track courts.
The West Bengal Bill also proposes special courts for expeditious completion of inquiry or trial. Ironically, as per the Central government, despite being allocated 123 Fast Track Special Courts, none had been operationalised in West Bengal till mid-June 2023. A revised target was set for 17 FTSCs, out of which only 6 exclusive POCSO courts have been operationalised as of June 30, 2024.
At the judicial level, judges have to ensure that court dockets do not get piled up due to frivolous cases. It is unfashionable to state and not many would admit it in public, but it is a fact that harsher laws against sexual offences are also misused. If a court comes to conclusion that an allegation was motivated or for oblique purposes, the complainant needs to be penalised. Section 217 of the Bhartiya Nyaya Sanhita, 2023 (equivalent to Section 182 of the IPC) allows for action if false information was made to a public servant to use his lawful power adverse to another. At the same time, Section 379 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (equivalent to Section 340 of the CrPC) provides for action against what is commonly called “perjury”. However, these provisions are hardly used against those who intentionally and wrongly put the investigative and judicial machinery in motion.
The West Bengal Bill seems to be an attempt to exploit “collective amnesia” and divert criticism over the recent incident. However, the reasons for the problem and resultantly the solution are complex. Simply amending the law is not the answer. The governments need to re-align their approach so that a potential offender is deterred from committing a crime. In this context, the President is absolutely correct in seeking a comprehensive approach to curb the menace.
Amit Gupta is an advocate based in Delhi, and was a former Additional Public Prosecutor in the Delhi High Court.