By: Akshita Mehta
Rape is a crime, which has a devastating effect on the survivors; it has been described as a “beginning of a nightmare”. The aftershocks include depression, fear, guilt-complex, suicidal-action, diminished sexual interest. etc., “one becomes afraid of’……..writes a victim, “half the human race”
With the rising number of rape cases being registered in India daily, the question as to the safety of women in India is not relevant at all. In India, not a single day passes without hearing a case about the rape of a woman. India is a country of billions out of which 48% are women but it is still unsafe for them. According to the National Crime Records Bureau (NCRB), in 2018 a total of 33,356 rape cases were reported in India out of which 93.9% of the cases were held to be appropriate. With this number of cases of utmost brutality, the question again boils down to whether India is safe for women.
A UN report has it that not less than 250 cases of rape are reported yearly in 65 different countries of the world. Human rights bodies concurred with this but add that cases that were never reported are three times higher than those that were reported to the police.
Image source: The Week
Judicial Approach
Under Article 141 of the constitution of India, the Supreme Court has the power to put out a judicial precedent that is binding on the whole of the government. It also encapsulates the idea of complete justice where justice is not just done but seen to have been done. This gives the Supreme Court the power to lay down laws when there is a gap in law or when the situation is in dire need of such a law and without it, there will be injustice done to the society at large. In Delhi Laws Case, the Supreme Court touched upon the criminal part of the Judicial Precedent where it quashed the provisions laid down by the Delhi state legislation which were amendments to the criminal law. This gives us an ambit that the Supreme Court does have a way of putting out even a Criminal Judicial Precedent on criminal matters, unlike the landmark judgements it has given in the Constitution and civil related issues of law.
Image source: amazonaws.com
Another problem with rape trials is the interpretation of victims’ consent by courts. The current law and the amended version consider non-consensual penetration for sexual purposes as sexual assault. But the determination of consent is hampering justice. “Courts often judge women’s conduct while interpreting consent. In one case, the court let off the accused on grounds that the raped minor’s public hair had been shaved off and so the victim, being ‘such a loose girl’, would have consented to intercourse”. The core of the offence of sexual assault remains sexual intercourse without consent. The term consent has itself been subjected to numerous interpretations. Most infamously in the case of Tuka Ram v. the State of Maharashtra, the Supreme Court observed that ‘no marks of injury were found on the person of the girl after the incident and their absence goes a long way to indicate that the alleged intercourse was a peaceful affair and that the story of a stiff resistance having been put up by the girl is all false.’ Though Tuka Ram has not been expressly overruled, the Court in other cases has not equated the presence of injury marks to the proof of consent.
Final Remarks
When it comes to laying out laws for the correction of society, punitive actions are of no use. We as a country have increased our rigour of punishments in the last decade but it hasn’t done any improvements in current society. On the contrary, we can see a drastic increase in such crimes, it’s like a criminal’s way of saying we aren’t afraid of punishments, our evils and lust surpass them. In reality, what they are afraid of is to change into a person who would understand the pain they are inflicting on their victims. So, if the Supreme court has the discretion to lay down a doctrine I would pray for a Doctrine of Rehabilitation, where the criminals who committed such rape are sent to a psychiatry valve where their psychology is worked upon and they slowly understand the repercussions of their actions and get rid of the mindset which society and pornographic exposure has impacted their minds. It will be in a true sense, changing society for the betterment.