Why does the Indian Justice System fail to prevent sexual violence against women?

The present predicament impels us to address the chronic issues concerning women’s safety and rights in India. Yet again, a brutal incident in Kolkata served as an impetus to ponder upon our fallibilities to prevent sexual violence against women.

Unfortunately, several countries have suffered this apathy and have tried to address these issues. However, it has been observed that women’s safety standards in the majority of the countries have been consistently failing at an appalling rate.  

To start off, the chronicles of Brazil can be looked upon to exemplify the state of affairs for women there. It has a history of women’s rights that is entrenched in legislative reactions to shocking and upsetting incidents of violence against women.

In May 1983, Maria da Penha Fernandes was fast asleep when her husband shot her, leaving her a paraplegic for the rest of her life. Later, the husband tried to electrocute her after her return from the hospital. In the aftermath of such an incident, a prolonged legal battle ensued in Brazil which took nearly two decades to bring her to justice.

In a landmark ruling, the Court of Human Rights criticized the Brazilian government for not taking effective measures to prosecute and convict perpetrators of domestic violence. The Brazilian government, in response, enacted the “Maria da Penha Law on Domestic and Family Violence” (“Maria da Penha Law”) in 2006.

Notably, Article 8 of Maria da Penha Law enacted a public policy comprising a group of strategic actions against any violence. This includes training, humanization, and promotion of the integration of various public services (available for service women). In addendum, Articles 7, 226, 227, and 243 of the Constitution of the Federative Republic of Brazil were amended in 2014 to curb violence against women and girls.

At this juncture, we must understand that while enactment of a law is one step, but its effective implementation and impact proffers a different set of challenges.

Recently, Brazil ranked 94^th on the Gender Inequality Index in the UN’s Global Database on Violence against Women. The same is based on the United Nations Development Programme and Human Development Report. The Annual Socio-economic Report on Women further suggests that a woman is raped every 10 minutes in Brazil as of 2022.

Talking about India, it ranks 108^th on the Gender Inequality Index (GII) Rank. The Ministry of Women and Child Development said in a press statement that India has climbed 14 places on the GII in comparison to 2022. However, the question remains – is this good enough? Certainly, much needs to be done.

Much like Brazil – India also has a history of reactionary legislative changes followed by a large-scale public reaction to upsetting cases of sexual violence against women. In December 2012, the Government of India, in the aftermath of a brutal gang rape incident, formed the Justice J.S. Verma Committee. The said committee was formed to recommend amendments to criminal laws relating to the safety and security of women. In January 2013, the Committee published its report and made some notable recommendations to broaden the ambit of what is considered sexual assault to include unwelcome verbal sexual threats, disrobing, non-penetrative forms of sexual contact along with completely banning the 2-finger test.

The Committee also recommended making the offence of rape gender-neutral, setting up an employment tribunal to adjudicate complaints of sexual harassment in the workplace and criminalization of marital rape along with Amending the Armed Forces (Special Powers) Act (“AFSPA”) to remove the requirement of sanction from the central government to prosecute armed forces personnel for allegations of sexual abuses. Furthermore, the committee recommended an amendment to the Representation of People Act, 1951 (RPA) to include committing sexual offences as criteria for disqualification of candidates. Presently, Section 8 of the Act provides for the disqualification of candidates for crimes related to terrorism, untouchability, fairness of elections, sati, and dowry.

Notably, the committee also made recommendations for police reforms which inter-alia includes the formation of a rape crisis cell, installation of CCTV cameras at the entrance and in the questioning room of all police stations, and registration of “Zero FIRs”.

Following this report, the Parliament passed the Criminal Law (Amendment) Act, 2013 (also known as the Nirbhaya Act) – and significant legislative changes were made. Section 326A and 326B along with Section 354A, 354B, 354C, and 354D were introduced into the Indian Penal Code (“IPC”) thereby criminalising acid attacks and incorporating the recommendations regarding widening the scope of what may be considered sexual assault.

Unfortunately, the legislature did not find force in the enforcement of the recommended amendments to the AFSPA. Furthermore, the sincere efforts to incorporate the other recommendations of the Justice Verma Committee before the Parliament were not able to see the light of the day.  The above position gets fortified in light of the fact that the promulgation of the Bhartiya Nyaya Sanhita, 2023 does not entail any recommendations as such either.

In 2013, the Government of India set up the Nirbhaya Fund. As of 2024, the Central Government further expanded the budget of the Nirbhaya Fund by 100% (In comparison to the previous year). This fund goes to setting up and strengthening Emergency Response Support Systems (“ERSS”) etc. For ease of our understanding, ERSS is a Pan-India single number (112) based emergency response system for the citizens in case of emergencies. Each State/ UT is obligated to designate a dedicated Emergency Response Centre (“ERC”) to handle emergency requests.

However, in 2016, the Supreme Court took cognizance of the fact that the ‘Nirbhaya fund’ was not enough and amounted to “just a lip service”. It expressed its disappointment over the non-uniformity of compensation schemes in different states thereby emphasising the need for a national plan in order to ensure that adequate relief is being provided to the victims of sexual offences.

Furthermore, the Rape Crisis Cells, proposed in the Report by the committee, have been established as “Sakhi – One Stop Centres(“OSC”)”.  As per a press release dated 06.04.2022 by the Ministry of Women and Child Development, 733 OSCs known as Sakhi Centres have been approved for 729 districts across the country, out of which 704 OSCs have been operationalized in 35 States/ UTs. India Justice Report (IJR) further reveals that 3 in 10 Police Stations still do not have women help desks.

In 2021, the Hon’ble Supreme Court in Paramveer Singh Saini V. Baljit Singh and Ors. had ordered all Police Stations to have CCTV cameras. Unfortunately, the directions passed by the Hon’ble Supreme Court were not strictly adhered to. India Justice Report, 2022 fortifies the above fact showing that one out of four police stations in the country still don’t have CCTV Cameras. The above position gets supplemented by the “Crime in India – 2022” report published by the National Criminal Records Bureau (“NCRB”) wherein it alluded that the conviction rate in Rape Cases is 27.4%.

While the Zero FIRs have been introduced after the J. Verma Committee’s Report – the Supreme Court while taking Suo Moto Cognizance of the Manipur incident discovers that there is discouraging anecdotal evidence to show the delay in registering a Zero FIR.

If we juxtapose the above with the Periodic Labour Force Survey conducted by the Ministry of Statistics and Programme Implementation, the Worker Population Ratio (“WPR”) of Indian women for 2019-20 is 28.7% on an All-India basis. It simpliciter implies that less than 1/3^rd of Indian women are participating in the workforce. It is unlikely that the myriad failures of the justice system interacting with social evils that seem to persist in our society have no bearing on this statistic.

Conclusively, it is the obvious to say that India needs to pursue all possible measures including the ones discussed above with vigour and urgency. Perhaps what India needs is a systematic change in its social fabric which inculcates gender equality at the root level in each household where a girl child is treated equally. To invest in our children with gender sensitivity towards the opposite sex. Supreme Court’s cognizance on the plea of Sr. Adv. Ponda, inter alia seeking directions from the Court to incorporate in the syllabus – subjects of the penal laws of the country relating to rape and other offences against women and children if implemented by the Government can have significant effect.

About the authors: Shryeshth Ramesh Sharma and Kanika Chugh are Partners and Mohit Gupta is an Associate at SKV Law Offices.

If you would like your Deals, Columns, Press Releases to be published on Bar & Bench, please fill in the form available here.