Advocate L.Victoria Gowri
WHENEVER crime is committed against women and that too a violent crime, it sends shock waves to the society ,but those shock waves burst like bubbles in a very short time – laments Justice A.S.Anand. But for the first time in our country common men, women and children rocked the capital city ,New Delhi for days together in lakhs from the last week of December 2012 seeking justice. This belligerent fight for justice is not a fight against men. It is not a movement of the so-called feminists. But it is the outburst of the collective consciousness of the elite middle class and upper middle class of New Delhi. The loud outcry is to impose the fundamental duty on every citizen as promulgated by Article 51A(e) of our Constitution to absolutely renounce the practices derogatory to the dignity of women. It is a clarion call with solidarity to achieve the goals enshrined in our Constitution. To ensure women with “equality before law” and “Prohibit any discrimination” as guaranteed by Articles 14 & 15 of our constitution.
The slow, steady and consistent invasion of our values and morals in this country by the continuous rule of pseudo-secularists in the name of secularism, in the name of globalization, in the name of global marketing, has made the constitutional promise of equality, a farce. Bharat had been a land where women were honoured, mothers were worshipped, girl children were treasured. But today after 65 years of Independence, Indian woman is still a bonded labourer, gang rape victim, dowry victim and a saleable commodity in national and international markets. Despite special Constitutional guarantees and other legislations, crimes against women are at alarming rise.
Even after the December 16th, 2012 shameful episode of sexual offence, incidents of rape of women and children are, being reported repeatedly across the country from New Delhi to Tutucorin. Exploitation and victimization of women has reached new dimensions to that extent that it is not merely the right of a woman to live is affected, but it is her right to live with dignity as guaranteed by Article 21 of the Constitution is at stake. Especially the offence of rape which occurs in chapter XVI of the Indian Penal Code is not just an offence affecting the human today, but it is often destructive of the whole personality of the victim. Rape is an experience which shakes the foundations of the lives of the victims. For many its effect is a long term one, impairing their capacity for personal relationships, altering their behavior and values and generating endless fear. In addition to the trauma of the rape itself, victims have had to suffer further agony during legal proceedings too.
In the present scenario of widespread rapes across the country, the recommendations of Justice Verma Committee are likely to assume great significance. The Hon’ble Supreme Court of India had already pointed out exclusively the anomalies in the existing system & remedies to be adopted in Delhi Domestic Working Women’s Forum –Vs- Union of India even before 2 decades on 19th October 1994 that, ……… “Firstly, complaints are handled roughly and are not given such attention as is warranted. The victims, more often than not, are humiliated by the police. The victims have invariably found rape trial s a traumatic experience. The experience of giving evidence in court has been negative and destructive. The victims often say, they considered the ordeal to be even worse than the rape itself. Undoubtedly, the court proceedings added to and prolonged the psychological stress they had to suffer as a result of the rape itself” … “In this back ground, we think it necessary to indicate the broad parameters in assisting the victims of rape.
(1) The complaints of sexual assault cases should be provided with legal representation. It is important to have someone who is well acquainted with the criminal justice system. The role of the victim’s advocate would not only be to explain to the victim the nature of proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, counseling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant’s interests in the police station represent her till the end of the case.
(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and while she was being questioned would be of great assistance to her.
(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.
(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer in mind or whose own lawyer was unavailable.
(5) The advocates shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorized to act at the police station before leave of the court was sought or obtained.
(6) In all rape trials anonymity of the victim must be maintained, as far as necessary.
(7) It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some for example, are too traumatized to continue in employment.
(8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take in to account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape”….
The Hon’ble Supreme Court of India in the aforesaid judgment directed the Union of India to evolve such scheme to wipe out the tears of such unfortunate victims within six months from the date of the said judgment and to take necessary steps for implementation of the scheme at the earliest. But even after 19 years no such scheme is formulated by our democracy to ensure the safety and security of our daughters and mothers. But the alarming frequency of crime against women led Parliament to enact Criminal Law (amendment) Act, 1983 (Act 43 of 1983) to make the law of rape more realistic. By the Amendment Act, Sections 375 and 376 were amended and certain more penal provisions were incorporated for punishing such custodians who molest a woman under their custody or care. Section 114-A was also added in the Evidence Act for drawing a conclusive presumption as to the absence of consent in certain prosecutions for rape, involving such custodians. Section 327 of the Code of Criminal Procedure which deals with the right of an accused to an open trial was also amended by addition of sub-sections 2 and 3 providing and facilitating in-camera proceedings. But these won’t suffice. More stringent punishments should be incorporated in Sections 375 & 376 facilitating death penalty for the offender in case of victims’ death and life imprisonment in other cases. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence”.
Whatever be the amendments in the existing laws, whatever be the new legislations to ameliorate the situation, the absence of an efficient and effective enforcing system would prove all measures a damp squib. Also certain pernicious social threats should also be seriously handled with caution. Almost the offenders of all the rape cases reported across India are found to be drunk at the time of offence. Today India is quickly evolving an alcoholic generation. The unfettered expansion of visual media and internet which silently crawl into the drawing room and bed room of every Indian home embracing the entire population lasciviously, augment the secretion of androgen and estrogen hormones by it’s midnight and mid day sex shows causing the proliferation of sex crimes against women. So a general shift in the policy of the Union and State governments to enforce total prohibition alike the Govt. of the State of Gujarat across our country should be announced immediately and stringent censor measures has to be adopted to regulate visual media including television, internet, cinema etc. Here it is apt to quote Justice Krishna Iyer, “The fight is not for woman’s status but for human worth. The claim is not to end inequality of women but to restore universal justice. The bid is not for loaves and fishes for the forsaken gender, but for cosmic harmony which never comes till women comes. Their emancipation, however, is not their responsibility alone. We all must achieve that goal. If half the population remains deprived, ignorant, down trodden and discriminated against, the country cannot usher in an era of prosperity”.
(The author of the article is one of the National Secretaries of BJP Mahila Morcha. She is a practicing Advocate in the Madurai Bench of Madras High Court).