“Nirbhaya” is the pseudonym used for the rape victim of the infamous 16 December 2012 Delhi gang rape incident. On just another chilly December night in Delhi, Nirbhaya and her friend were returning from a movie theatre, they were waiting for a bus. One of the would-be culprits convinced them to get on an empty bus with tinted windows. They were assaulted by six males, one of whom was a minor, aged 17. The friend, when he tried to protect Nirbhaya, was beaten up by the perpetrators. Nirbhaya was not just sexually violated, her body was mutilated beyond human imagination. Her intestines were pulled out, and private parts mutilated. She later died of multiple organ failure, internal bleeding and cardiac arrest on the 29th December. There was a lot of social outrage due to the gruesome incident. There were a lot of candle light marches, solidarity movements and protests. India has always been notorious for being unsafe for women, and this was the spark which ignited the fire of public outrage. The outrage was not restricted to India, the whole world had formed an opinion about India. A British documentary called “India’s Daughter” was banned by the central government because it portrayed India in a very derogatory and poor light. A majority of the outrage poured out on social media. Feminist and women’s movements gained momentum and incentive. The culprits were made an example of and condemned. Not just social, there were legal repercussions of the incident too. The UPA government was being pressurized to make stricter laws regarding rape and dealing with juveniles committing heinous crimes. In the case of Parhlad and Ors v State of Haryana, the court called an offence of rape as basically an assault on the human rights of the victim. It was seen as an attack on the individuality and physical sovereignty of a woman. It is important to note that according to Section 375 of the Indian Penal Code, only a man can commit rape, and only on a woman. Until 2012, the definition of rape was restricted just to sexual intercourse. The Criminal Law (Amendment) Act, 2013 gave a broader meaning to the term rape. It amended the definition under Section 375 of the IPC. Section 375 of the IPC, after the amendment, defines rape as any involuntary and forceful penetration without the woman’s consent into the woman’s body parts like the vagina, urethra, mouth or anus. Two developments had a major impact on the amendment. These were the Nirbhaya incident and the Justice Verma Committee report.
Justice Verma Committee Report
The committee was made after the Nirbhaya case to provide for quicker trial and enhance punishment and criminal provisions in the law for people who are accused of committing sexual offences against women. Some of the progressive changes which the committee suggested are:
- According to the committee, rape and sexual assault don’t seem to be simply crimes of passion however it is an expression of power. Rape should be treated as a separate offence and it should not be limited only to the penetration of the vagina, mouth or anus and its scope should be widened. Any other non-consensual penetration whose nature is sexual should be included in the definition of rape given under various laws.
- It recommended that marriage should not be considered as a licence to perform sexual offences.
- It counseled that non-penetrative forms of sexual contact should be regarded as sexual assault. The offence of sexual assault to be outlined so as to include all forms of non-consensual or non-penetrative touching of sexual nature.
- The use of words or any act or any form of gesture that creates a threat of sexual nature should be termed as sexual assault and be punishable for the same.
- There are some key recommendations made by the Committee on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 which were:
- Domestic workers must be included within the purview of the Bill.
- The complainant and the respondent should first attempt to conciliation that makes it easy for both of them to settle the issue.
- The employer should pay compensation to the woman who has suffered from sexual harassment at the workplace in any form.
- The employer should institute an internal complaints committee to which complaints should be filed and heard.
- It opined that Acid attack should not be clubbed with the provisions of grievous hurt and recommended that the central and state government should take some steps to compensate victims of sexual assault.
- It recommended that the requirement of sanction for prosecution of armed forces personnel should be specifically excluded when a sexual offence is alleged. Special commissioners should be appointed in the conflict areas to monitor and prosecute for sexual offences against women.
- The provisions of the IPC on slavery should be amended to criminalise trafficking.
- The terms ‘harm’ and ‘health’ should be defined under the Juvenile Justice Act, 2000 to include mental and physical harm and health of juveniles.
- It was of the view that the death penalty should not be awarded for the offence of rape. It recommended life imprisonment for rape instead.
- The Committee has recommended the discontinuation of the two-finger test as it doesn’t make any sense because the offence of rape can be committed against her even if she is habitual to sex.
- The Committee has recommended certain steps for the reformation of the police. This includes the establishment of Security Commissions in states to ensure that the government doesn’t exercise any kind of influence on the police.
- Some suggestions for reforms in the management of cases:
- A Rape Crisis Cell should be set up for providing immediate notification of the case when an FIR in relation to sexual offences is made. The Cell should also provide legal assistance to the victims.
- All police stations should have CCTVs at the entrance and in the questioning room so that their activities can be monitored.
- A system of online F.I.R. filing should be there.
- It should be the duty of the police officers to assist victims of sexual offences irrespective of the crime’s jurisdiction and anything else.
- The police must be trained on how to deal with sexual offences appropriately and effectively.
- The number of police personnel should be increased for better assistance of the victims.
Review petition
- Article 137 of the Constitution provides that subject to the provisions of any law and rule made under Article 145 the Supreme Court of India has the power to review any judgement pronounced or order made by it.
- In India, a binding decision of the Supreme Court/High Court can be reviewed by filing a Review Petition.
- The parties aggrieved on any order of the Supreme Court due to some apparent error regarding the case can file a review petition.
- Considering the principle of stare decisis, courts generally do not unsettle a decision, if it is not a strong case.
- Chances of success in filing this petition are very low as it goes to the same panel which has heard the case previously and has given the judgement on it.
- In the review petition, the petitioner had tried to raise the plea that he was not in the bus and was somewhere else and that he has nothing to do with the incident. But the presence of necessary evidence made the court to reject this plea.
Curative Petition
- The concept of ‘Curative petition’ was evolved by the Supreme Court of India and it was to answer whether an aggrieved person is entitled to any relief against the final judgement of the Supreme Court, after the dismissal of a review petition.
- The Supreme Court, within the aforesaid case, command that so as to stop the abuse of its methods used in administering justice and to reduce the miscarriage of justice, it may reconsider its judgements in the exercise of its inherent powers.
- In the Nirbhaya case, the Supreme Court of India rejected their pleas.
Mercy Petition
- After facing rejection from all sides, Mercy Petition is the last step which one can take in the context of Indian Judicial System.
- When a person lost all the remedies available to him/her under all the laws then he files a Mercy Petition before the President of India or the Governor of the State in the state where that person resides.
- By virtue of Article 72 of the Indian Constitution, the President has the power to reprieve, respite, or remit a punishment pronounced even by the apex court of law.
- He is also entitled to grant pardon but the power is not discretionary as it requires the consultancy of the Council of Ministers.
- The President upheld the death sentence given by the Supreme Court to the remaining four culprits in the Nirbhaya case.
In modern society the cases of rape have flourished in recent years even though gender equality is enshrined in Indian Constitution[1]. The literacy rate in urban areas can play a significant role in rape cases as literacy status of men and women will affect the number of rape cases. We live in a country of great minds like Mahatma Gandhi hence we desire this evil to eliminate from the modern society. Almost non-existent implementation of government schemes for betterment of women’s situation is one of the main reasons for the dire situation of women in India. Although the same callous attitude is visible in a lot of places, it affects the problem of women more. This is because the callous attitude is not just administrative or political, it is rooted in society and morality.
After the Nirbhaya rape case, where a woman was brutally raped solely because she was out late at night, and was enjoying her freedom and her life with her male friend, our government has although taken steps to improve the condition, it has not helped the women much.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
Reference
[1] Article 15 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of themof The Constitution of India, 1950.
