By Emma Natty:
News reports of the Delhi bus gang-rape on 16 December 2012 floated in and out of my thoughts as I was driven around Delhi on a tourist bus to see the sights. I looked out the window to the sea of saris and recalled there were 37681 female victims of rape in India in 2014 according to National Crime Records Bureau however it is estimated only 1% of victims actually report rape. I wondered how many women in this crowd were victims of sexual violence.
After the incident on 16 December, 2012, there was public outcry and protests throughout India for the girl they named Nirbhaya: ‘fearless’. Women’s rights activist and head of Fight for Women’s Rights Delhi University Mr Dhiraj Kr Nirbhay says he was perplexed when he found out he shared her name. “When I heard what the public had named her I was so disturbed I couldn’t sleep for many nights. I kept thinking why do our names match? I am Nirbhay, this girl is Nirbhaya, this is the same,” he said.
Statistics have earned Delhi the title of the ‘rape capital’ of India. Mr Nirbhay has taken it upon himself to change this using social media sites to fight for women’s rights and end sexually violent crimes against women. “This type of severe case doesn’t just happen in Delhi there have been cases in Lucknow and all throughout India. In India the father is the head of the family, so it’s the man’s responsibility to stop this from happening; to protect women. This is why I am doing this,” he said.
After the incident the government made movements to change the laws very quickly. According to Policy Research Studies Legislative Research Organisation the Justice Verma Committee was formed to recommend amendments to the criminal law to achieve quicker trials and harsher punishments for criminals accused of sexually assaulting women. The committee submitted its report in just over a month after the incident on 23 January, 2013 and two months after this the laws were passed on 2 April, 2013.
Law amendments and new offences in the 2013 law changes from the Policy Research Studies Legislative Research Organisation:
At first glance it seems the Indian government was being proactive by making stricter laws to support victims of sexual violence. Though there has been widespread public support, not everyone is pleased with the changes. To find out the significance of these amendments I travelled to the Indian Law institute in New Delhi to speak with Assistant Professor Dr Jyoti Dogra Sood who says though the 2013 law changes have been projected by the mainstream media as progressive they are very regressive if you examine their content. “Death penalty provisions have been introduced, they have maintained the marital exceptions, they don’t follow certain basic criminal law principles, there is an issue of proportionality; that crimes should be proportionate to the punishment and that is not being followed. There’s bad drafting,” she said.
Law amendments like these are causing India to develop into a surveillance state according to Dr Sood. “Everything is criminalised now. It has been historically proven if you increase punishment the conviction rate comes down. The average person on the street thinks greater punishments will be better but the judges are always wary of convicting a person and giving a higher sentence because there will always be an element of doubt of whether the person is guilty or not,” she said.
Some citizens are calling for female judges in rape cases to address courtroom gender problems, though Dr Sood believes this is an argument that cannot be stretched very far. “Of course there are seditions like this within rape cases; that women should be judges; but women can be anti-feminists and men can be feminists. This is about a level of sensitivity rather than having biologically male or female adjudicators. If we only think women can understand family matters better- so let’s give them family cases- it becomes problematic. This idea fixes women as inherently nurturing and caring and we don’t want this kind of essentialism,” she said.
During an open discussion on gender issues at the Indian Law Institute I spoke with students studying these laws. Law student Mr Abhishek Gupta says while there are gender issues under scrutiny in the judicial process there are also gender specific issues fixed into the laws themselves. “The public perception about the present anti-rape laws are very positive. But when I researched the topic I found there are various other critical aspects not addressed through this law. Gender stereotyping vis-a-vis sexual assault laws effects both men and women. It is an important issue that has never been put in place at the law making level,” he said. Law student Miss Shubra Khanna says another negative of these laws is their inability to cause a deterrence effect. “There are still honour killings of women in rural societies whereby citizens govern themselves. The framing of these laws and the implementation are where we are lacking,” she said.
There seemed to be a controversial cloud surrounding the 2013 law amendments and I wondered why the government had made these specific changes if there were so many issues regarding their implementation. To clarify the problem I spoke with University of Queensland Law/Arts student Miss Zoe Brereton, who is currently on exchange at Jawaharlal Nehru University in Delhi. Though many negatives have been raised regarding these laws, Miss Brereton says the government included some positive elements in the amendments and changes. “They have removed the ‘two finger test’ by doctors as an indicator of previous sexual history of rape victims. They have also introduced punishments for acid attacks and they now recognise rape with an object as a criminal offense,” she said. But when discussing the government’s reasoning for these law changes Miss Brereton suggested it was merely a band aid solution for a much larger social problem. “Laws are easy for the government to change. Increasing penalties and doubling sentences for rape crimes can appease public opinion and be done with little effort. Changing the social discourse around rape crimes is much harder to change,” she said.
Single mum and research senior in Chinese Buddhism studies at Delhi University, Miss Prerna Bhardwaj waited nine years to receive a legal certificate recognising her divorce from her husband. She says the process wasn’t easy but the law wasn’t necessarily the problem. “In my personal case with the courts all the officials were male and I feel they just wanted to crush me. They just had this mindset that I should stay with my husband, case closed. But I eventually met one female magistrate who was able to listen to me, understand my pain and judge that I was honest in my claims,” she said.
Miss Bhardwaj believes the 2013 law changes aren’t the solution for sexual violence, she says gender issues are engrained in India’s social fabric and will stay that way until the society starts to actively change itself. “We need to teach our sons. We can’t keep recreating the same mindset. It’s my responsibility to teach my son Yashank to take care of women,” she said, “Change will only come when we change ourselves.”
Sexual violence is not unique to India. The fact remains India is just one of many countries worldwide experiencing the same women’s right issues. India is also one of many countries yet to find a solution.