And Indian Law Changed

Published on 9th May 2020

'Three gruesome crimes against women that changed the course of Indian law'

About 90 rapes are reported every day in India. But still, there are many more cases that go unreported due to the fear and stigma surrounding sexual violence. Some of the cases come to national attention and have been able to change the course of law in India but others stay in the deep dark hole of pressure from the society.

Crime against women and the hesitation of public authorities in India to handle it have been longstanding public debates. The arguments initiated with the landmark rape case in 1972 of a teenage girl. Forty years later in 2012, India saw a gang rape and murder committed in New Delhi that generated mass protest. This soon made the issue the theme of debates on how India is tackling issues of violence and crime against women.

Many other cases of crime against women in India has captured national and international attention. There is no doubt that crimes against women summons grave threat to Indian society, law administration and judicial bodies. Some of the sensationalized incidents have focussed the attention on the widespread but poorly understood problem of crime against women.

According to the UN Department of Public Information, violence against women and rape, in particular, are globally the most underreported of all major crimes. India lacks systematic research and accurate statistics on rape. There used to be a lack of mass attention to the victimization of women in the past because of poor reporting. The government has been seen to be taking swifter actions, starting with the 2012 Delhi group rape and murder. Before that, the laws were amended but the victim still was allegedly not given full justice.

Crimes against women are a social menace. The crime can be of any form— threats, verbal abuse, murder, and rape. This pattern of coercive behaviour that includes physical, sexual, and psychological assaults is getting worse. This behavioural pattern can be experienced anywhere, anytime, and within any economic class.

Violence against women is not only a women's rights but it is a human right.

MATHURA RAPE CASE: Survivor, Not Victim

One of the national-level issues that brought momentum for feminist activism was the Mathura rape case. The day of 26 March 1972 is considered as the black day in the history of women empowerment. Mathura rape case was a custodial rape incident in India. Here, a young tribal girl Mathura was allegedly raped by two policemen. This happened on the compound of Desaiganj Police Station in Chandrapur district of Maharashtra. There was a public outcry after the Supreme Court gave its verdict to acquit the accused. This eventually led to amendments in the Indian rape law via The Criminal Law Amendment Act 1983. The justices were highly criticized for legal inconsistencies.

What happened that night?

Back in 1972, a young tribal girl named Mathura lived with her brother, Gama, after she lost her parents when she was a child. She worked as a domestic helper at the woman’s house named Nunshi. During her visits to that house, she came in contact with Ashok, son of Nunshi’s sister. Ashok wanted to marry her but Gama, her brother did not agree to the marriage. He then went to the local police station to lodge a complaint claiming that his sister, a minor, was being kidnapped by Ashok and his family members.

The police authority brought Ashok and his family members to the police station after receiving the complaint. Mathura, her brother, Ashok, and his family members were permitted to go back home after a general investigation. But as they were leaving, Mathura was asked to stay behind and she complied as the others waited for her outside. Ganpat, appellant number 1, took Mathura to the washroom and raped her. After Ganpat was done, appellant number 2, Tukaram touched her private parts and tried to rape her but failed due to being highly intoxicated.

Ashok and Nunshi grew suspicious when Mathura did not come out for a long time and the station’s lights were being turned off. They called her name when Tukaram came out and told that Mathura had left already. But shortly after, Mathura came out and told everyone what happened.

Nunshi took her to a doctor who confirmed that Mathura was raped. After Mathura was examined by another doctor, Dr Kamal Shastrakar, who said there were no signs that showed that the girl was forced.

Observations by the courts

The hearing of the case started on June 1, 1974. But soon charges were removed when the defendants were found to not be guilty and on 12 Oct 1976, Bombay High Court acquitted the two constables.

The case starting from the sessions court and went up to the apex court. The session court held that both the accused are not liable for the offence of rape because the intercourse between the girl and accused was "consensual sexual intercourse" as the girl was habituated to the sexual intercourse.

The Bombay High Court reversed the order of the Session Court. The court held that the sexual intercourse was rape and not consensual sexual intercourse. It is proved by the evidence that since, both the accused were stranger to Mathura, how she can have sexual intercourse with them to fulfil the sexual needs of her.

However, in September 1979, the Supreme Court again converted the decision of the High Court and acquitted the accused. The apex court added that as ‘no marks of injury’ were found on Mathura’s body there was ‘no battle’ on her part and since she did not ‘raise an alarm’ for help she ‘consented to sex’. Supreme Court, thereby, assumed that Mathura has consented and not protested. SC also believed that she is habituated to sex, ‘she might have incited the two drunk policemen’ and therefore they concluded that no rape is committed.

Seeing outrage for the first time

This case stirred up great passions and resentment amongst people in the society. Immediately after this verdict is pronounced, four legal luminaries wrote an open letter to the Chief Justice of India. In the letter, they protested against how the accused have been acquitted and the concept of consent that was defined by the Court.

Even though the courts conclusively did not believe that Mathura was raped, but history has come down on her side. She is uniformly depicted as a rape victim, not a woman who cried rape.

The change in the law

After the Supreme Court acquitted the accused, the Criminal Law (Second Amendment) Act, 1983, was introduced and the provisions relating to rape law were amended. A law was drafted which was sensitive to the feelings of the victims, that protect their human rights and dignity.

The amended law now has the following provisions:

Section 114(A) was added to Evidence Act which states that if victim says that she did not consent to the sexual intercourse, the Court shall believe that she did not consent (rebuttable presumption of law).
Section 376(A), Section 376(B), Section 376(C), Section 376(D) of the Indian Penal Code were added which made custodial rape punishable with not less than 7 years of imprisonment.
The amendment also shifted the burden of proof from the accuser to the accused once intercourse was established.
The publication of victims’ identities was banned and the amendment also held that rape trials should be conducted as in-camera proceedings.

Mathura gang rape case is one of the former rape cases after the independence which took a lot of criticism in his hands and ultimately resulted in the development of criminal law amendments. The case is seen as a turning point in women right's movement in India, as it led to just greater awareness of women's legal rights issue, oppression, and patriarchal mindsets.

Expert Opinion

One of the questions raised after the landmark ruling of Supreme Court under the Criminal Law (Second Amendment) Act, 1983, was that why do the legislators wait for extreme incidents to happen to make changes in the law. “Indian law works on two presumptions— let the law survive, rather than perish and correctness of the law,” said Ankit Dhotrekar, School of Law, Bennett University. He added that these presumptions are very strong and to make any amendments the state has to be convinced.

Dhotrekar continued, "Laws need to have the perception of being 'unamenable' to maintain the credibility of the law." But in recent times, any huge outcry which can be sensationalized in the right way has been seen to successfully challenge the laws that have endured centuries. Media has seen to raise public opinion in a short time, "I don't think that is the right way to go about changing the law, but it has been happening over the recent past," added Dhotrekar.

While Dhotrekar felt this way, a former legal executive at Nair & Nair Associates, Jacob George Panickasseril said, “Women's rights have been a low priority issue as compared to other issues for the ruling disposition which consists of mostly male legislators.”

“The legislators understanding democracy are merely voting and they feel that the next five years are theirs to exploit for their good,” said Rama Sarode, trainer on socio-legal issues. “There is no accountability to people who have voted them. Secondly, there are hardly any women who are legislators so lawmakers rarely focus on women issues."

ARUNA SHANBAUG CASE: The unfinished case

Euthanasia is one of the most baffling issues faced by the courts and legislatures globally. The court, in the case in question, comes to grips with the same issue. The case before us is a written command in the name of legal authority to act under Article 32 of the Constitution. The petition was filed by Pinki Virani on behalf of Aruna Ramachandra Shanbaug. Pinki Virani claims to be her friend, as her parents died long back. In a brutal attack by a ward attendant in 1973, Aruna Shanbaug was left with grievous brain damage and paralyzed in the Mumbai hospital where she practised.

The vicious evening

Aruna Ramachandra Shanbaug working at the King Edward Memorial Hospital, Parel, Mumbai as a staff nurse. In November 1973, Sohanlal Bhartha Valmiki a sweeper of the same hospital, assaulted Shanbaug while she changed her clothes in the basement of the hospital. He restrained Shanbaug with a dog chain around her neck and snatched her back with it. Valmiki tried to rape her but found that she was menstruating. So, he sodomized her.

The brutal attack by the dog chain allegedly cut off the oxygen supply to Shanbaug’s brain leaving her blind, deaf, paralyzed, and in a vegetative state for the next 42 years. The next day, a neurologist on shift claimed that she had extensor plantar, which indicates damage to the cortex or some other part of the brain.

What happened with the attacker?

In 1974, Sohanlal Bhartha Valmiki was charged with attempted murder and for robbing Aruna Shanbaug's earrings. He was not charged for rape as sodomy was not considered to be rape under Indian laws at the time.

Valmiki was sentenced to seven years imprisonment by a trial court. The jail time was reduced to six years because he had already served a year in lock-up. Valmiki served a seven-year-sentence and walked out of jail in 1980 and still claims that he did not rape Shanbaug.

Life in stupor

Shanbaug was featherweight and her bones were brittle that could break even if her hand was awkwardly caught. She stopped menstruating and her papier-mache-like skin stretched over her bones. Her wrists were twisted inwards and all her teeth decayed. She was prone to bedsores and could only be given mashed food, on which she survived.

Aruna Shanbaug was alleged to be in a persistent vegetative state. She was claimed to be virtually dead with no state of awareness. With her brain virtually dead, she could neither see, nor hear anything nor could she express herself or communicate, in any manner whatsoever. She is not able to chew; hence she was fed mashed food. Shanbaug was virtually a skeleton. Her excreta and urine were discharged on the bed itself. She was often cleaned up but again ended up in the same sub-human condition.

Purportedly, Shanbaug had not even a thin chance of any improvement in her case and her body lied on the bed in the Mumbai hospital like an animal bereft of life. The prayer of the petitioner, in this case, was that the doctors be directed to stop feeding Shanbaug, and let her die peacefully.

The petition was accepted by the Supreme Court. They constituted a medical board to report back on Shanbaug’s health and medical condition. The medical board reported that the patient was not brain dead and responded to some situations in her way. However, the court turned down the mercy killing petition on 7 March 2011.

Counter petitions opposing euthanasia for Shanbaug were filed by the staff at KEM Hospital and the Bombay Municipal. Nurses of the KEM Hospital were quite happy to watch over the patient.

But from the day of the assault till the day she died on May 18, 2015, Shanbaug could not perform the basic functions of a human being and died of cardiac arrest brought on by severe pneumonia in KEM's acute care unit.

The change in law and implications

Although Virani’s plea was rejected by the Supreme Court, the case resulted in easing restrictions on euthanasia in India after the court's landmark ruling that in exceptional circumstances, life support could be legally withdrawn for terminally ill patients, provided that the family asked for it and doctors and the courts supervised it.

In the landmark judgment on 9 March 2018, the Supreme Court recognized passive euthanasia and said that ‘living will’ can be written by any terminally ill patient that will permit doctors to withdraw life support. A person with no will to live will no more suffer in a comatose state.

Soli Jehangir Sorabjee, an Indian jurist and former attorney general of India, on the role of the legal community said, "Death with dignity is not a legal issue. It is more of a social and religious issue." In a talk with NDTV Sorabjee said, "When a patient has to go through unbearable suffering for a long period of time for a sickness which in the present day has no definite cure is when the person may lose the ability to breathe or defecate on their own. The patient then has no privacy left. This is when euthanasia can be considered."

According to the judgement on March 7, 2011, passive euthanasia will apply only to a terminally ill person with no hope of recovery. Active euthanasia, by administering a lethal injection, will continue to be illegal in India.
A ‘living will’ is a conception where a sufferer can give permission that will allow the withdrawal of life support systems if the person is reduced to a permanent vegetative state with no real chance of survival. The will is an advance directive that may be used by a person before incapacitation to outline a full range of treatment preferences or to reject treatment.

Expert Opinion

Euthanasia has always been an emotional subject to argue on yet many opinions were raised at the time when the Supreme court gave its landmark ruling of allowing passive euthanasia and the living will.

One of the arguments that were raised was about what if the person wants to change the details in the living will. “The inception of living will be complex. Reasonable changes in the living will be treated as normal as one can always change his/her mind,” Vipul Mudgal, Director, Common Cause told NDTV. “Living will is just like any other will where an individual tells in advance about his/her future medical treatment to his lawyers, physician, or family members to make sure that he/she is not subjected to things which they didn’t ask for. It can be revised even after it has been registered in the court.”

The biggest question raised was for the healthcare community. The community was questioned on how can they prescribe medicine of death when they are in the business of saving lives. “Doctors are trained to preserve life and care. But when the dying process has already started, you can’t preserve life,” said Dr RK Mani, Critical case specialist. “One may not be able to cure all the times, but one should always care for the dying,” he added.

Roop Gursahani, Consultant Neurologist at P D Hinduja National Hospital expressed her concerns about the gaps in the judgement in the Indian Journal of Medical Ethics. Gursahani said, “In the absence of any enabling legislation, ‘living will’ would remain in legal limbo.” Gursahani said that only a doctor who follows properly documented instructions from his patient is largely protected. She added, “Since Aruna’s story is still unfinished, it will require another such victim to legally apply the landmark judgment passed on March 7, 2011, to check the implementation in the country.”

DECEMBER 16 GANG RAPE CASE: Raging India

On the dark night of December 16-17, 2012 occurred a rape of a 23-year-old medical student that shocked the nation. She was brutally gang-raped on a moving bus by six men in the capital of India, New Delhi. She was thrown out of the bus after the horrific assault at an isolated place. She succumbed to injuries on December 29, 2012, at a hospital in Singapore. Her friend survived after being treated for broken ribs. The gruesome case jolted the entire nation’s conscience, made international headlines and exposed the reality of sexual violence against Indian women, which prompted the lawmakers to stiffen the rape case penalties.

The cruel night

Jyoti Singh, a 23-year-old female physiotherapy intern was beaten, gang-raped, and tortured on December 16, 2012, in Munirka, a neighbourhood in South Delhi. She was travelling with Awindra Pratap Pandey, her friend.

The woman was on her way home along with her friend, Pandey, after watching the movie "Life of Pi" on the cold night of December 16, 2012. At Munirka bus stand, they boarded an off-duty charter bus where there were six other men including the bus driver. The men shut the doors of the vehicle as the bus started moving in an off-route direction.

Pandey raised an objection suspecting something wrong. He was shouted down and a scuffle broke out as the drunk men started molesting the woman. Pandey was knocked down with a rod. The men dragged her to the back of the bus and repeatedly gang-raped for over an hour.

As she tried to fight back, one of the juvenile assailants inserted an iron rod into her private parts, pulling and ripping her intestines apart. The bus drove throughout Delhi while this was happening. After the attack, both of them were thrown out of the bus to die at the side of the road. A passerby found the two of them half-dead, who then informed the Delhi Police.

The woman was taken to the Safdarjung Hospital where the doctors found that she had only five per cent of her intestines left inside her body. The victim was flown to Singapore after undergoing three operations in a Delhi hospital.

She succumbed to her injuries on December 29, 2012. According to the statement given to the police, she said she wanted justice against the six attackers. As news of the student's death spread across social media in India, police sealed off large parts of central Delhi and appealed for calm as the incident led to widespread demonstrations and protests across the country.

The attackers

All six who were accused of the barbaric crime identified as – Ram Singh, Vinay Gupta, Mukesh Singh, Pawan Gupta, Akshay Thakur and a juvenile – were convicted by the court. The bus driver, Ram Singh, committed suicide on March 11, 2013, in Tihar Jail during the trial.

The minor was tried separately in a juvenile justice court where he was given the maximum sentence of three years’ imprisonment in a reform facility and released in 2015. The trial court had awarded capital punishment to Mukesh, Akshay, Pawan and Vinay in September 2013. On May 5, 2017, the apex court upheld capital punishment given to the four men by the Delhi high court (on March 13, 2014) and earlier by the fast track court (September 2013). The bench of the top court, in a voluminous judgement, had held the attitude of offenders as "bestial proclivity".

The Supreme Court, on July 9, 2018, dismissed the review petitions filed by Mukesh, Pawan and Vinay stating that no ground was established by the accused of seeking a review of the death penalty. On December 18, 2019, Akshay Singh's review petition was also rejected as once again there was no ground to review the 2017 judgement.

A five-judge bench of the Supreme Court, in January 2019, rejected the curative petitions of convicts, Vinay Sharma and Mukesh. The death warrant was issued for the Nirbhaya rapists by a Delhi court on 7 January 2020. The execution date was set for 22 January 2020 at 7 am IST in Tihar Jail.

Mukesh’s mercy plea threw a wrench in the execution and now all four convicts are to be hanged on March 3 according to the Delhi court as they issue a fresh execution date. After exhausting all legal remedies, the four convicts were hanged at Delhi’s Tihar Jail on March 20, 2020.

The change in the law

The new anti-rape bill was introduced in 2013 where stringent punishments for offences acid attacks, stalking and voyeurism. These were introduced alongside life or death sentence for rape. Former President Pranab Mukherjee gave his assent to the bill in April 2013.

Criminal Law (Amendment) Act, 2013 was brought against the scrim of the country-wide public outcry over Delhi gang-rape. The law, passed by Lok Sabha on March 19 and by Rajya Sabha on March 21, has replaced an Ordinance promulgated on February 3.

The 2013 Act amends various sections of the Code of Criminal Procedure, the Indian Penal Code, the Indian Evidence Act and the Protection of Children from Sexual Offences Act.

Changes in criminal law:

The minimum punishment in case of rape of women, according to the amendment, has been increased from rigorous imprisonment of seven years to 10 years, extendable to life imprisonment.
For any victims under 16 years of age, minimum punishment has been increased from 10 years to 20 years. This punishment is extendable to imprisonment for the rest of the convict’s natural life.
For the gangrape of a girl under 16 years of age, the punishment will invariably be a life sentence.
Strict punishment for the rape of a girl under 12 years will be awarded. The punishment will be a minimum 20 years of imprisonment or a life sentence or with death.
In the case of gangrape of a girl below 12 years, the punitive measures will be a life or death sentence.

Speedy investigation and trial:

The investigation of all rape cases has to be imperatively finished within two months.
Appeals have to be dealt within six months.

Restrictions on bail:

The new amendments do not provide any provision for anticipatory bail for anyone accused of rape or gangrape of a girl under 16 years.
15 days prior public notice has to be given by the court to the public prosecutor and the representative of the victim before bail applications are decided in case of rape of a girl under 16 years.

Other measures approved by the cabinet:

Special forensic kits for rape cases will be provided to all police stations and hospitals.
Dedicated manpower will be provided for investigation of rape cases in a time-bound manner.
Special forensic labs will be set up in each state and Union Territory exclusively for rape cases.
A national database and profile of sexual offenders have to be maintained by the National Crime Records Bureau. The bureau will then share the data for tracking, monitoring and investigation, including verification of genealogy by police

The present scheme of One-Stop Centers for assistance to victims will be extended to all districts in the country.

Expert Opinion

The case started an entire debate over whether or not to treat juveniles as adults in exceptional cases of severe crimes. Juvenile offenders of law are tried under the Juvenile Justice Act (JJA) which states that a 'juvenile' is a boy or a girl under the age of 18. Juveniles cannot be charged with the death penalty or life imprisonment irrespective of the severity of the crime.

“Juveniles should be given second chances. They should not be eligible for capital punishment. Law aligns with an international convention that children are children," said Ankit Dhotrekar, School of Law, Bennett University expressing his views on the matter. "Sometimes some agitated protesters they say that a woman cannot attain sexual autonomy by the age of 16, but the same society at other times claim that a woman is ready for marriage at 18 years of age whereas a man has to be 21-years-old,” Dhotrekar said that the inconsistency has been created but we should not forget the fact that children need to be protected.

Many juvenile crimes arise from early learning experiences in the family. They most generally involve weak family bonding, ineffective supervision by the guardians, child abuse and negligence, and harsh discipline.

While some were celebrating this landmark ruling, others were concerned because they didn’t see capital punishment to be enough to put an end to the increasing number of rape cases in India. “Criminals are seen to be only afraid of death. That is why no other laws have worked. According to what I have observed, execution is the only thing that can counter such crimes,” former Delhi high court judge RC Chopra told News 18.

But not everyone felt the same. “As seen in the annual statistics from the National Crime Records Bureau, capital punishment is nowhere helpful in preventing rape,” said Jacob George Panickasseril, former legal executive, Nair & Nair Associates. He added that preventive measures should be taken like good policing. Conviction rates in India are not very high and the interference of politicians have also been proven to obstruct the case like in the Kathua and Unnao rape cases.

Now, after so many years, when the justice has been served to Nirbhaya. Many still feel that we have failed her, as the goal for the protests was not to just enhance the punishment but also boost security for women. "I feel that even after strict laws, there has been a lack of systematic studies to check how the Criminal Law (Amendment) Act, 2013 has been enforced on ground," says Prabha Kotiswaran, professor of law and social justice at King's College told India Today.

If the laws are not implemented correctly, it is of grave concern. For instance, the 2013 law mandates that the concept of 'Zero FIR' where the police officers have to file FIRs even if the offences have occurred in areas beyond their jurisdiction. Yet, this is often not followed. In the Hyderabad gangrape and murder case in November 2019, the victim was initially missing when her family approached the police. The family allegedly said that Cyberabad police refused to file an FIR.

CONCLUSION: Laws have changed, Mindsets haven’t

Even after so many amendments and reforming the law over the years, the episodes of rape keep increasing every year. The crime not only causes tremendous physical injury but also has devastating psychological effects on the victim. The first step towards the eradication of this crime would be to advance safety and security measures for women in the country. It is the attitude and mentality of men that need to be changed more than strengthening the laws to penalize the wrongdoers.

Despite stricter laws, the number of reported cases of rape were seen to rise by 34%. The spike can either demonstrate a higher incidence of reporting, but that does not discredit the grimness of the crime. What was worse is that the rate of filing of charge-sheets came down from 96% to 85% in the same period.

To ensure credible support alternatives for the victims, the government has been seen to make efforts. The government proposed the appointment of ‘Mahila police volunteers’ as an initiative to enhance the safety of women.

The Union government proposed the One-Stop Centre scheme in 2015 to provide integrated services to women subjected to sexual violence. This was financed by the Nirbhaya Fund. The Fund also covers projects under the 'Safe City' scheme. The government has made efforts but the progress has been very slow.

The Centre has also taken up several initiatives like the ‘Women Safety Division’ to fight rape and other sexual offences. The home ministry launched the National Database on Sexual Offenders to keep tabs on listed sexual offenders.

But there is a glaring gap between the government's efforts on paper and implementation on the ground. India doesn’t need new laws. The existing laws are perfectly fine only if the system uses them judicially. Creating a strong and competent criminal justice system is what the government should focus on.

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