Enhancing Rape Laws - Victim’s Point of View

Everyone told the little girl as she grew up to take care of herself, to stay safe, and to recognise the predator with ill-intentions ahead of time as the trauma that occurs when faced with sexual assault or rape leaves the individual's dignity shaken and their desire to live freely is no longer sustaining. Regardless of how much each law appears to theorise about the subject and amend penal laws, there seems to be no end to a mindset that contributes to India remaining unsafe for women. 

In IPC, the offence of rape against women is defined under Section 375 and within Section 376, the punishment for this ranges from ten to twenty years, where on average most convicts get away with three to four years of rigorous imprisonment with a minimal fine, and where the accused is financially handful or resourceful or politically influential, he may even expiate by bribing huge amounts and get exonerated. These criminals sometimes go to the extent of torturing their victims who are also as young as toddlers. In any circumstance, even calling it heinous would be an understatement. 

As defined under Section 2(wa) of CrPC, 1973 a 'victim' means a person who has suffered any loss or injury caused by reasons of act or omission for which the accused person has been charged, and the expression 'victim' includes his or her guardian or legal heir. Thus, under CrPC the definition of victim is sufficiently wide and it recognizes the rights of the victim, as well as the family & legal heirs of the victim. But if we review the administrative body's conduct under the pretext of treatment against a rape victim, the dimension in which they work is close to irony.

Police behaviour is majorly affected due to multiple issues, right from the moment when a case is brought to their knowledge. Also, their responsibility has excessively gravitated towards the protection of VIPs and VVIPs. Thus, legit protection for the rape victim and her family is beyond the questionable state. As such the duty of police should be very clearly segregated for such special cases. The police manual is an apparent source to show that a speedy investigation is carried out, but in actuality, there is an immense sluggishness on the part of the police to register FIR and to start with the investigation. Even worse, when there is the indirect influence of political powers or powered personalities, who are themselves associated with or are directly accused. In such circumstances, corruption begins at the level of a police station and it affects timely investigations. There is also a need for the machinery which would govern the investigation carried out by the police. In certain cases, due to a lack of sources such as forensic laboratories, and cyber cells, the investigation process is badly delayed. A major setback that has been seen in the delivery of justice in rape cases is the poor quality of investigations. 

There are cases where police refused to lodge the FIR or have lodged incomplete FIR. The police administration is sometimes involved in inflicting fear in the minds of the victim and her family by haunting them in the name of getting discriminated against in society and being seen as downtrodden especially where the victim comes from a simple background. From unsolicited pieces of advice to giving shameless brutal warnings, there is no limit to doing such on the police's behalf. The victim from a poor background is subjected to similar humiliations as that she suffered from the rapist, unfortunately, few cases from certain states have demonstrated that police themselves get involved in harassing the victim, sometimes to the extent of raping her. Where the victim is a child, a very strict approach should be adopted in investigation and protection as the perpetrator is mostly a habitual sexual offender. It's an extremely sad state of affairs that even a simple law in this regard that directs the police to be in a civil dress while taking the statement of the victim child, assuring a child-friendly environment, or adopting a file statement at the child's residence is rarely followed in practice. There lies no better solution to uproot this problem than to sensitize police administration to deal with such offences through various programs. Issue-centric training needs to be given to the police authority so that they can develop an insight to dutifully address the mental agony of the victim, and impart their best in an investigation.

The trial procedures in the court are as well hellishly humiliating. As of now till date, there are instances where the victim has to see her perpetrator in front of her eyes even though laws prevail in theories for protecting her from seeing and getting seen by the accused. Questionable detailed evidence is brought up to the court and is made to be verified in front of all present in the court, even though this could have been easily done by referring to the FIR if it were sincerely lodged in the first place. The recording of evidence especially in such special cases plays a very vital role, thus, one cannot emphasis enough the medical examination to be carried out within 24 hours for collecting requisite samples. 

The role of a Judge here extends to their best intellect and sensitive inquiry instead of questioning the clothes, lifestyle, freedom, and behaviour of the victim. Such scrutiny is unnecessary and simply casts a judge himself of imparting bias-ness. There should be utmost protection of the character of the victim, and any direct or indirect character assassination should be highly abhorred by the judges. Honestly, a camera recording of a trial is an immense need at this point. Where India marks 1 rape every 16 minutes, the judge should know that his participation should be socially appropriate and in the best interest of the victim. A flawed mind-set of the judiciary shall only impede in delivering justice to the victim.  

Practically, it is also true that trial courts are themselves over-burdened with cases because of which delay is oblivion. Shockingly, a judge vs population indicates an approx. ratio of 1:1, 00,000 which is quite a serious issue. How terrible goes the functioning of lower courts where there's a lack of computers, internet, and technical staff to manage Data, and day-to-day administration is suffered by Advocates and their clients? The current situation is, due to delays made superfluously by the trial courts in producing records, even High Courts are hesitant to ask for records in special cases. The plight of the victim party to hold their patience is beyond imagination in such cases as the procedures and hearings are duly recorded on paper but it has no essence in doing justice at the earliest.

When the victim of sexual offences approaches the judicial body, the duty of an advocate cannot be stressed enough. The demotivated and brutally broken families of a victim can raise their voices rightfully for the victim and the victim herself if the advocate is regular, and gives his/her legal input in the case. The intellect of the advocate in counselling the rape victims and their families helps them to a whole new level, especially because we are yet to overcome the mind-set of society which regards a rape victim herself as responsible for the assault inflicted upon her. Therefore, in the best interest of justice and society, these criminals should be sentenced to life imprisonment at least. This is highly probable that such criminals may even go to the extent of killing their victims to eradicate every sort of evidence, which essentially is the victim itself.

“Investigations and trials” should be carried out expeditiously, ‘otherwise the guarantee of’ equal protection of law under Article 14 and the guarantee of life and personal security under Article 21 of the constitution are meaningless. Under section 309, of CrPC, 1973, it has been directed that the court should continue the trial process on a day-to-day basis. The provision itself stipulates that the trial should be completed within 2 months. Once the trial commences, except for essential reason which makes an adjournment inevitable, proceed day-to-day unless the trial is concluded.  

For eradicating delays associated with issues in dealing with the trial of rape and sexual assault, Fast track courts should be incorporated by all state governments. Moreover, a stern approach should be adopted by the high court in calling for records from the Lower Courts in cases where there is unnecessary delay. Also, S.C.'s guideline for quashing proceedings of cases in which unwarranted delay occurs should be followed.

The right to a speedy trial is made a fundamental right not on sole consideration of 'trial' but is also inclusive of all the stages i.e. registering of the case, filing of the charge sheet, and recording of the evidence. Right to speedy trial which is enshrined under Article 21 of the constitution is not just a modal structure for speedy trial but it is meant to govern the rights of rape victims. Investigating agencies, lawyers, and the judiciary should honestly involve to work in interest of the justice.

The Social groups and NGOs must be popularised as trust-worthy bodies, which could be seen as guiding instruments for rape victims regarding their rights such as counselling, compensation, etc. Amongst all the cognizable offences, rape, and sexual assault should be prioritised as it is too personal, emotionally & mentally traumatising. Camera recording needs to begin right from the police station so that at least humane behaviour is assured. Till the final order, the machinery involved in the delivery of justice should know that they are under obligation to restore and preserve the dignity of the victim and her family irrespective of any personal opinion concerning such mishap.